The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
Case No. 24-00142-CIV-DIMITROULEAS/HUNT
MICHAEL TUCKER, and
AZUREE’D TUCKER, individually
and on behalf of M.T., a Minor Child,
Plaintiffs,
v.
THE SCHOOL BOARD OF LEE COUNTY,
FLORIDA; STEPHAN CATO; KYLE
BURCHFIELD; ALEX CARCIOPPOLO;
ROBERT HINSON; CHRISTOPHER
CHAPELL; ROBERT BUTZ; and
CHRISTOPHER S. BERNIER, Ph.D.,
Defendants.
_________________________________/
REPORT AND RECOMMENDATIONS
This matter is before this Court on a Motion to Dismiss by Defendants. ECF No.
29. The Honorable William P. Dimitrouleas, United States District Judge, previously
referred this case to the undersigned for a Report and Recommendation. See 28 U.S.C.
§ 636(b). Having carefully reviewed the Motion, the Response, the entire case file, and
applicable law, and being otherwise fully advised in the premises, the undersigned hereby
RECOMMENDS that the Motion be GRANTED for the reasons laid out below.
I. Background
The First Amended Complaint alleges in relevant part that Plaintiff M.T., an African
American student-athlete, was subjected to race-based discrimination, during both
extracurricular activities and the school period, while participating as one of only two
African American players on the Fort Myers High School baseball team.
The alleged harassment began with a February 14, 2023 text message from
Defendant Alex Carcioppolo, an assistant coach on the baseball team, which read:
“Happy Valentine’s Day niggas.” The message was sent to both the team and coaching
staff. Defendant Carcioppolo later deleted the message following complaints, claiming
that he sent it to the wrong group. Team members were split as to whether the message
was problematic, and some blamed M.T. for the backlash against the assistant coach.
Following the incident, a meeting was held with the team, the high school’s Athletic
Director, coaches, and school assistant principals. Students on the team reported they
regularly heard racial slurs being used among team members and that this was known by
staff. The Complaint alleges students directly reported the use of derogatory racial slurs
to Defendants Carcioppolo and Kyle Burchfield, head coach for the baseball team, but
were told to stop “acting like a sissy” for being “bothered” by the use of the slurs. Plaintiffs
allege M.T. then experienced retaliation from Defendants and others for speaking up and
voicing concerns of discrimination.
A series of meetings followed, but Defendants1 allegedly refused to allow
discussion of Defendant Carcioppolo or directly address harassment the African
American teammates experienced. M.T.’s parents got involved following a series of
confrontations, both during team activities and during the school day. Plaintiffs allege
Defendants engaged in retaliation against M.T. and his parents to force M.T. off the team,
including enforcing a new Code of Conduct that appeared targeted at M.T. The Complaint
1 Where possible, the specific Defendants involved are identified. Otherwise, the
attribution is as generally alleged in the Complaint.
further alleges Defendants subjected M.T. to ostracization and race-based commentary
by students and staff at games, team dinners, and school events.
M.T.’s parents were likewise targeted for speaking out about the alleged
discrimination and prejudice. Defendants allegedly deliberately failed to include M.T.’s
parents in educational decisions regarding their son. Defendants also allowed parents of
M.T.’s teammates to directly provide financial benefits to the baseball program, skirting
the official Athletic Booster Club and allowing them to sponsor events for the team
privately to avoid including M.T. and his parents.
On April 5, 2023, Principal Robert Butz removed Defendant Burchfield from his
coaching duties. The following day the baseball team played a game at which Defendant
Stephan Cole (FHMS Athletic Director) was present and where college scouts and
recruiters attended to watch and evaluate the players for future scholarships and
university recruitment. However, unbeknownst to M.T., the Defendants, FMHS coaches
and staff, FMHS students, and other FMHS parents allegedly planned a “walk out” in
response to the termination. Defendants allegedly knew the walkout was going to occur
as early as March 9, 2023.
When it was M.T.’s turn at bat, a group of FMHS players began to walk out of the
dugout, leaving only M.T. and the other African American student on the field. Parents,
staff, and administrators allegedly cheered the players on, while school district faculty and
staff, including Defendants Hinson and Chappell, joined the players walking out. Kids
and parents allegedly began to yell at one another, and some yelled at Plaintiffs, with
racial slurs being thrown around. Following the walkout, all the remaining games of the
season were cancelled.
Defendants now seek to have the Complaint dismissed on multiple grounds. ECF
No. 47. The Motion has been fully briefed and is now ripe for determination.
II. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
“To meet this ‘plausibility standard,’ a plaintiff must ‘plead[ ] factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Arias v. Integon Nat’l Ins. Co., No. 18-22508-CIV-ALTONAGA/GOODMAN,
2018 WL 4407624, at *2–3 (S.D. Fla. Sept. 17, 2018) (quoting Iqbal, 556 U.S. at 678). “A
complaint may be dismissed for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Reilly v. Herrera, 622 F. App’x 832, 833 (11th Cir. 2015).
“On a motion to dismiss, a court construes the complaint in the light most favorable
to the plaintiff and accepts its factual allegations as true.” Id. (citing Brooks v. Blue Cross
& Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)). “Unsupported
allegations and conclusions of law, however, will not benefit from this favorable reading.”
Id. (citing Iqbal, 556 U.S. at 679).
III. Discussion
Defendants make several arguments as to why Plaintiffs’ Amended Complaint
should be dismissed. First, Defendants argue that Plaintiffs’ Amended Complaint
constitutes an impermissible “shotgun pleading” and thus must be dismissed. Next,
Defendants contend Plaintiffs’ claim should be dismissed against the individuals named
in their official capacities because, Defendants argue, the claims are duplicative as the
suit is in actuality a suit against the government entity, namely, the School Board.
Defendants further allege any claim under § 1983 cannot succeed because the Complaint
fails to allege an official action made by the School Board with the required discriminatory
intent; therefore, the Complaint fails to state a valid claim under Title VI and section 1983.
Finally, Defendants argue this Court should not take up Plaintiffs’ state law claim alleging
a violation of the FEEA for the same reasons Plaintiffs’ Title VI and equal protection claims
are insufficient. Because Plaintiffs’ federal claims are due to be dismissed, Defendants
contend, Plaintiffs’ state law claims may likewise be dismissed.
The undersigned begins with Defendants’ argument that the Complaint fails to
comply with Fed. R. Civ. P. 8(a) and 10(b). Complaints that violate either Rule 8(a)(2) or
Rule 10(b), or both, are often disparagingly referred to as “shotgun pleadings.” Weiland
v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). Rule 8(a)(2)
requires a complaint to include “a short and plain statement of the claim showing that the
pleader is entitled to relief,” while Rule 10(b) provides in relevant part that “a party must
state its claims or defenses in numbered paragraphs, each limited as far as practicable
to a single set of circumstances.” Id. (quoting Fed. R. Civ. Pro. 8, 10).
Courts have generally identified four types of shotgun pleadings.
The most common type . . . is a complaint containing multiple counts where
each count adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last count to be a
combination of the entire complaint. The next most common type . . . is a
complaint that does not commit the mortal sin of re-alleging all preceding
counts but is guilty of the venial sin of being replete with conclusory, vague,
and immaterial facts not obviously connected to any particular cause of
action. The third type of shotgun pleading is one that commits the sin of not
separating into a different count each cause of action or claim for relief.
Fourth, and finally, there is the relatively rare sin of asserting multiple claims
against multiple defendants without specifying which of the defendants are
responsible for which acts or omissions, or which of the defendants the
claim is brought against. The unifying characteristic of all types of shotgun
pleadings is that they fail to one degree or another, and in one way or
another, to give the defendants adequate notice of the claims against them
and the grounds upon which each claim rests.
Weiland, 792 F.3d at 1321–23 (footnotes omitted).
Defendants allege Plaintiffs’ Complaint is guilty of all four types of shotgun
pleadings. First, Defendants contend that because each count realleges and
incorporates all prior allegations in the Complaint, the Complaint improperly renders the
final count a combination of the entire Complaint. Next, Defendants argue the Complaint
is replete with conclusory, vague, and immaterial facts that are not connected to any
particular cause of action, and fails to properly identify which Defendants are responsible
for particular acts or omissions, or even which Defendants a particular claim is brought
against. Additionally, Defendants take issue with Plaintiffs’ vague conclusions that said
actions caused Plaintiffs’ irreparable harm. Defendants further note at least two of the
claims are alleged against the Lee County School District, an entity not named as a
Defendant.2
As may be evident from the factual recitation, Plaintiffs’ Complaint falls into the
fourth category of shotgun pleadings, in that it fails to adequately identify which
Defendants, specifically, are responsible for which acts or omissions. And this failure is
critical to the claims at issue, which have relatively specific requirements and particular
defenses that hinge on who, in particular, did what, and when.
2 The School District was named as a Defendant in the initial Complaint, but was
dropped as a Defendant in the Amended Complaint.
Take, for instance, Plaintiffs’ Title V| claim. Certainly, Plaintiffs make clear the
claim is brought against the School Board, a named Defendant, and the School District
which does not appear to have been named as a Defendant. As to the Board (and
District), Plaintiffs allege
Defendants knew, for months, that M.T. was the target of racially motivated
attacks and harassment, including the continued use of racial slurs,
disparate application of rules and Codes, threatening behavior at school,
and a staged walkout, but did not take prompt or effective steps reasonably
calculated to end the harassment, eliminate the hostile environment,
prevent its recurrence, or remedy its effects. To the contrary, Defendants
told M.T. to stop being a “sissy” and intentionally allowed continued
harassment to occur. Defendants School District and School Board acted
Knowingly, intentionally, recklessly and with deliberate indifference by
allowing and tolerating the discrimination to occur in the first place, but also
by allowing the retaliation to occur after M.T. engaged in protected activity.
ECF No. 29 at 13-14.
Plaintiffs also allege generally that Defendants have enabled:
e A permissive environment in which the use of derogatory racial terms is
intentionally tolerated and condoned;
e Inconsistent discipline with more infractions and harsher punishments being
meted out to African American students, like M.T., on the basis of the color of
their skin;
e Rampant threats, hostility, and harassment to occur against African American
students, like M.T.;
e African American students, like M.T. to be exposed to known harassment,
embarrassment, and disparagement by other students, faculty and staff;
e Retaliatory application of discipline and revisions of the Codes of Conduct
unfairly targeting African American students, like M.T.;
e Reduced playing time and cancelled seasons on the basis of racism and
discrimination and in retaliation for engaging in protected activities; and
e Retaliatory acts against M.T. and his parents by publicly humiliating and
shaming M.T. and his parents, and condoning and/or encouraging others to do
the same.
Id. at 14.
Plaintiffs argue they have alleged enough facts to demonstrate the School Board
committed a violation under Title VI. Plaintiffs note they contend Defendants
discriminated against M.T. based on his race because of Defendants’ custom, policy, and
practice of excluding African American students from participating in educational
programs and activities, particularly on the baseball team. Plaintiffs argue they allege
African Americans on the baseball team experienced hostility after a racial slur was texted
by a coach, and were ostracized, harassed, and denied playing opportunities for months
following the Defendant Carcioppolo’s demotion from coaching. Plaintiffs also note they
allege the new Code of Conduct rules inappropriately targeted M.T. and were used as a
tool of harassment for the African American players in retaliation for the issues that
followed Defendant Carcioppolo’s demotion. Plaintiffs argue they allege the School
Board knew about all these things but did nothing to stop the harassment and appeared
to tolerate it. These allegations are enough, according to Plaintiffs, to survive Defendants’
Motion to Dismiss.
However, Defendants argue Plaintiffs’ Complaint nonetheless fails to adequately
allege discriminatory action by the School Board. Specifically, Defendants argue there
are no operative facts alleged against the Lee County School Board and the Complaint
instead broadly alleges the Board could have controlled the discriminatory conduct at
issue.
This is problematic in that Title VI claims require that “for a school district to be
liable for damages, an ‘appropriate person’ must have had actual notice of the
harassment and an opportunity to rectify any violation.” Brooks v. Skinner, 139 F. Supp.
3d 869, 883 (S.D. Ohio 2015) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 290 (1998)). An “‘appropriate person’ is an official ‘who at a minimum has authority
to address the alleged discrimination and to institute corrective measures on the [school
district’s] behalf[.]’” Id. (quoting Gebser, 524 U.S. at 290). “In applying Gebser, appellate
courts have required actual knowledge by the school board itself, the school
superintendent, or a school principal.” Id.
A reasonable reading of the Complaint reveals the only allegation explicitly
regarding either a member of the School Board, the superintendent, or the principal is
that “on April 5, 2023, Principal Robert Butz removed Defendant Burchfield from his
coaching duties.” ECF No. 29 at 11. Defendants are correct that this statement is far
from what is necessary. Plaintiffs’ specific allegations are simply not enough to establish
liability, and their general allegations fail to close the necessary gap to put Defendants on
notice of the allegations against them.
To be sure, the Complaint certainly alleges a horrific campaign of harassment
against Plaintiffs occurred. This alone, however, is not enough to survive the Motion to
Dismiss. Defendants correctly point out that Plaintiffs have merely broadly concluded that
the School Board could have controlled discriminatory conduct by unspecified persons,
but Plaintiffs have alleged no operative facts demonstrating that ability, or anything that
would justify the conclusion that the School Board tolerated or condoned discrimination,
retaliated against M.T. or his parents, or otherwise violated Plaintiffs’ rights.3
A similar fate befalls Plaintiffs’ 1983 claims. Defendants here also argue
Plaintiffs have failed to clearly separate the claims against the various Defendants. As
above, the Complaint alleges generally (1) that Defendants maintained a policy and
3 Defendants also argue Plaintiffs have failed to adequately allege a Title VI claim
against the individual Defendants. Plaintiffs concede this, noting they allege the Title VI
claim against only the School Board. But the fact that Defendants could plausibly be
confused as to whom the claim was directed against highlights the problematic nature of
the pleading.
practice of both discriminatory and retaliatory discipline of students on the basis of race
or for engaging in protected activity, namely voicing concerns of discrimination, (2) that
Defendants were deliberately indifferent to the maintenance of a racially hostile
educational environment, and (3) that Defendants retaliated against parents and students
who complained about racial discrimination. These allegations, Plaintiffs contend, are
enough for their 1983 claim to survive a motion to dismiss.
Although Plaintiffs respond the Complaint at issue is properly organized and
presents enumerated legal claims listing the liable Defendants and the legal basis for the
particular claims against them, a fair reading of the Complaint does not bear this out. As
an initial matter, Defendants are correct that it is difficult, if not impossible, to determine
which of the Defendants Plaintiffs bring the claims against. At best, a reader can know
that “[t]his cause of action is not alleged against the School District of Lee County,
Florida.” ECF No. 29 at 18. As noted above, there is no indication that the School District
is a party in any way to this case. Further, although the School District is referred to in
the 1983 count, not a single actual Defendant is referred to by name. Instead, all actions
are attributed to all Defendants. This, again, is not enough to give Defendants notice of
the claims brought against them.4
As to the state law count, the undersigned notes it also suffers from the same
deficiencies as the prior counts, in that it alleges generally the “Defendants” (but again,
explicitly not the non-Defendant District) engaged in acts and omissions depriving
4 Defendants also argue the 1983 claims improperly allege both a due process and
equal protection claim while also containing allegations of both substantive due process
and procedural due process violations. As with the previous footnote, such plausible
confusion again speaks to the pleading’s deficiencies.
Plaintiffs of educational opportunities. Additionally, because none of Plaintiffs’ federal
claims survive, the undersigned would nonetheless recommend this Court decline to
exercise supplemental jurisdiction over the state law claims. 28 U.S.C.A. § 1367(c) (“The
district courts may decline to exercise supplemental jurisdiction over a claim [if] . . . the
district court has dismissed all claims over which it has original jurisdiction.”).
In short, Plaintiffs’ Complaint, with few exceptions, fails to offer basic “facts
concerning ‘who did what to whom and why.’” Olson v. Loy, 951 F. Supp. 225, 228 (S.D.
Ga. 1996). And even when Plaintiffs do allege specific acts by particular Defendants,
they fail to offer adequate connective tissue to join those facts to their legal claims. It is
simply impossible from the face of the Complaint to know who, other than Defendant
Carcioppolo, used derogatory racial terms, instated the new Code of Conduct and meted
out discipline unfairly, or issued threats, harassment and retaliation against any of the
Plaintiffs. It is entirely possible that Plaintiffs have valid claims against the individual
Defendants, the School Board, and perhaps the School District, but the Complaint lacks
the necessary detail to make that determination. Given this, Defendants have not been
given “adequate notice of the claims against them and the grounds upon which each claim
rests.” Weiland, 792 F.3d at 1321–23. The Complaint, therefore, must be dismissed.
IV. Leave to Amend
Plaintiffs have requested that this Court, should it find their Complaint deficient,
allow them leave to amend the Complaint. Rule 15 of the Federal Rules of Civil Procedure
“reflects a policy of ‘liberally permitting amendments’ and absent a ‘substantial reason to
deny leave to amend’ a plaintiff’s request should be granted.” Produce Pay, Inc. v.
Agrosale, Inc., 533 F. Supp. 3d 1140, 1143 (S.D. Fla. 2021) (quoting Espey v. Wainwright,
734 F.2d 748, 750 (11th Cir. 1984)). “In order to deny leave to amend, the Court must
identify a ‘justifying reason.’” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Further, “[l]eave to amend should not be denied on the ground of futility unless the
proposed amendment is clearly insufficient or frivolous on its face.” Id. (quoting Montes
v. M & M Mgmt. Co., No. 15-80142-CIV-MARRA, 2015 WL 11254703, at *1 (S.D. Fla.
May 12, 2015)). Although this would be the second time Plaintiffs have amended their
complaint, the undersigned sees no reason to deny them another opportunity to plead
their case. Defendants have not opposed Plaintiffs’ request, and Plaintiffs’ Complaint is
neither “clearly insufficient or frivolous on its face.” Id. The undersigned would, therefore,
recommend granting Plaintiffs’ request to be allowed to file an amended complaint.
RECOMMENDATION
For the foregoing reasons, the undersigned respectfully RECOMMENDS
Defendants’ Motion to Dismiss, ECF No. 47, be GRANTED, and Plaintiffs be given leave
to amend their Complaint.
Within fourteen (14) days after being served with a copy of this Report and
Recommendation, any party may serve and file written objections to any of the above
findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.
§ 636(b)(1); S.D. Fla. Mag. R. 4(b). Any response shall be filed within three (3) days of
the objections. The parties are hereby notified that a failure to timely object waives the
right to challenge on appeal the district court’s order based on unobjected-to factual and
legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1 (2016);
see Thomas v. Arn, 474 U.S. 140 (1985).
DONE and SUBMITTED at Fort Lauderdale, Florida, this 29th day of May 2025.
Pe It
PATRICKM.HUNT its
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
The Honorable William P. Dimitrouleas
All counsel of record
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