Oscar L. Washington, Sr. v. Timothy Bauer

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 05-10531 September 2, 2005

Non-Argument Calendar THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 04-01597-CV-T-26-TGW

OSCAR L. WASHINGTON, SR., individually and as

father of minor children Nicole E. Walls, Kiera L.

Washington, Oscar L. Washington, Jr. and Prince D. Washington,

RAMONA L. WASHINGTON, individually and as mother

of minor children Nicole E. Walls, Kiera L. Washington,

Oscar L. Washington, Jr. And Prince D. Washington,

Plaintiffs-Appellants,

versus

TIMOTHY BAUER, individually and in his official

capacity as Sergeant and Patrol Supervisor of the Sarasota

County Sheriff Department,

JACK RAYMO BLESSEE, individually and in his official

capacity as Sergeant and Patrol Supervisor of the Sarasota County Sheriff

Department, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 2, 2005)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

I.

Oscar L. Washington, Sr., (“Oscar”), and Ramona L. Washington

(“Ramona”), individually and as parents of four children (collectively, “the

plaintiffs”), proceeding pro se, appeal the district court’s dismissal of the sixth

amended complaint in their civil rights action, brought under 42 U.S.C. § 1983, for

failure to state a claim. The plaintiffs named in their sixth amended complaint the

following entities as defendants: (1) Sarasota County; (2) Sarasota County

Sheriff’s Department (“SCSD”); and (3) the state of Florida’s Department of

Children and Family Services (“DCFS”). (Id. at 1). In addition, the plaintiffs

named the following defendants in their individual capacities: (1) Sheriff William

Balkwill, of the SCSD; (2) SCSD Deputy Timothy Bauer; (3) SCSD Deputy Jack

Raymo Blessee; (4) SCSD Deputy Tracy Ross; (5) SCSD Deputy Jeffery Harris;

(6) SCSD Deputy Michael Jackson; (7) SCSD Deputy Gary Gustafson; (8) SCSD

Deputy Jason Smithers; (9) SCSD Detective Louis Clemento; (10) SCSD Deputy

Donald Lewis; (11) SCSD Detective Chris Iorio; (12) Governor Jeb Bush; (13)

Lucy D. Hadi, the interim secretary of DCFS; (14) DCFS Suncoast Regional

Director Lynn Richard; (14) DCFS Operation Program Manager Lynne Johnston;

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(15) DCFS Supervisor Kim Allen; (16) DCFS investigator Connie Valentino; and

(17) DCFS investigator George Van Salisbury. The complaint contained five

labeled counts: (1) Count 1 alleged unlawful detention and search; (2) Count 2

alleged denial of equal protection rights; (3) Count 3 alleged denial of the right to

family association; (4) Count 4 alleged violations of the plaintiffs’ civil rights

under 42 U.S.C. § 1983; and (5) Count 5 alleged negligence.

In their lengthy brief on appeal, the plaintiffs reiterate the numerous claims

they raised in their complaints before the district court. The plaintiffs detail several

incidents pertaining to the SCSD’s and DCFS’s roles in removing their children

from their home, and they allege illegal behavior and constitutional violations by

the various defendants. In general, the plaintiffs contend that the various

defendants acted under the color of state law and violated clearly established law

during these incidents. Moreover, the plaintiffs assert that the various defendants

are not entitled to qualified immunity for their actions.

II.

We review the district court’s grant of a motion to dismiss de novo,

accepting all allegations in the complaint as true. Kyle K. v. Chapman, 208 F.3d

940, 942 (11th Cir. 2000). A district court may dismiss a complaint for failure to

state a claim only where it appears beyond a doubt that a pro se litigant can prove

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no set of facts that would entitle him to relief. See Leal v. Georgia Dep’t of Corr.,

254 F.3d 1276, 1280 (11th Cir. 2001).

III.

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a

“short and plain statement of the claim” showing that the pleader is entitled to

relief. Further, Federal Rule of Civil Procedure 10(b) requires that the averments

of a claim “shall be made in numbered paragraphs, the contents of each of which

shall be limited as far as practicable to a statement of a single set of circumstances .

. . [and] [e]ach claim found upon a separate transaction or occurrence . . . shall be

stated in a separate count.” Fed.R.Civ.P. 10(b). These rules, working together,

require a plaintiff “to present his claims discretely and succinctly, so that his

adversary can discern what he is claiming and frame a responsive pleading” and

allow the court to determine which facts supported which claims and whether the

plaintiff had stated any claims upon which relief can be granted. Fikes v. City of

Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996).

Although pro se complaints must be liberally construed, Haines v. Kerner,

404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96, 30 L. Ed. 2d 652 (1972), such

complaints still must comply with the procedural rules governing the proper form

of pleadings, McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 1984,

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124 L. Ed. 2d 21 (1993). In addition, there is a heightened pleading requirement

when a plaintiff brings a § 1983 complaint against officials acting in their

individual capacities. Laurie v. Alabama Court of Criminal Appeals, 256 F.3d

1266, 1275-76 (11th Cir. 2001).

In order to prevail in a § 1983 civil rights action, the plaintiff must show a

deprivation of a “federal right by a person acting under color of state law.” Griffin

v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Municipalities and

other local government entities are included among those persons to whom § 1983

applies. Monell v. Department of Social Servs., 436 U.S. 658, 690-91, 98 S. Ct.

2018, 2036, 56 L. Ed. 2d 611 (1978). Municipalities and other local government

entities, however, may not be held liable on a respondeat superior theory; instead,

it is only when the execution of its policy or custom inflicts the subject injury that

the municipality or local government entity is responsible as an entity under §

1983. Board of County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382,

1388, 137 L. Ed. 2d 626 (1997). “A policy is a decision that is officially adopted

by the municipality, or created by an official of such rank that he or she could be

said to be acting on behalf of the municipality.” Sewell v. Town of Lake Hamilton,

117 F.3d 488, 489 (11th Cir. 1997). A custom is a practice that is so settled and

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permanent that it takes on the force of law. Monell, 436 U.S. at 690-91, 98 S. Ct.

at 2036.

In regard to § 1983 suits against state agencies and state officials, in their

official capacities, the Eleventh Amendment of the Federal Constitution generally

prohibits such actions. Miller v. King, 384 F.3d 1248, 1259-60 (11th Cir. 2004),

unless the state has waived immunity or Congress has abrogated it. Gamble v. The

Florida Dept. of Health and Rehabilitative Servs., 779 F.2d 1509, 1512 (11th Cir.

1986). However, a claimant “may bring a § 1983 action against state officials in

their official capacities, but only for prospective, injunctive relief.” Miller, 384

F.3d at 1260.

“Qualified immunity shields government officials executing discretionary

responsibilities from civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Courson v. McMillian, 939 F.2d 1479, 1486 (11th Cir. 1991)

(quotation and citation omitted). “To receive qualified immunity, the public

official must first prove that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.” Vinyard v. Wilson, 311 F.3d

1340, 1346 (11th Cir. 2002) (quotation and citation omitted). “To establish that

the challenged actions were within the scope of his discretionary authority, a

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defendant must show that those actions were (1) undertaken pursuant to the

performance of his duties, and (2) within the scope of his authority.” Harbert

Intern., Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). “[A] court must ask

whether the act complained of, if done for a proper purpose, would be within, or

reasonably related to, the outer perimeter of an official’s discretionary duties.” Id.

(citation omitted).

Once the defendant establishes that he was acting within his

discretionary authority, the burden shifts to the plaintiff to show that

qualified immunity is not appropriate. The Supreme Court has set

forth a two-part test for the qualified immunity analysis. The

threshold inquiry a court must undertake in a qualified immunity

analysis is whether the plaintiff’s allegations, if true, establish a

constitutional violation. If a constitutional right would have been

violated under the plaintiff’s version of the facts, the next, sequential

step is to ask whether the right was clearly established.

Vinyard, 311 F.3d at 1346 (citations omitted).

In the instant case, the plaintiffs’ failure to submit a “short and plain

statement” of their claims in the format dictated by Fed.R.Civ.P. 8(a)(2) and 10(b)

makes it difficult to determine upon what authority and facts they relied. The sixth

amended complaint contains a lengthy statement of facts asserting numerous

instances of wrongdoing, and each labeled count details several claims against

numerous defendants. The statement of the counts does not comply with

Fed.R.Civ.P 10(b), as each claim founded upon a separate transaction or

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occurrence is not detailed in a separate paragraph. Furthermore, despite the

plaintiffs’ filing of numerous complaints prior to the instant complaint, and the

district court’s warning that failure to comply might result in dismissal, the

plaintiffs nevertheless failed to file a complaint that complied with Fed.R.Civ.P.

8(a)(2) and 10(b). As such, the district court did not abuse its discretion when it

dismissed the complaint with prejudice for failure to follow the rules of procedure

and state a claim.

Notwithstanding, even if the plaintiffs had complied with the requirements

of Fed.R.Civ.P. 8(a) and 10(b), their claims must still fail. As to the plaintiffs’

claims against Sarasota County and SCSD, and to the extent the plaintiffs made

claims against said individual defendants from these entities, in their official

capacities, the plaintiffs did not allege a practice, pattern, or custom followed or

established by these defendants that resulted in injury to them, and thus these

claims were properly dismissed.1 See Monell, 436 U.S. at 690-91, 98 S. Ct. at

2036. To the extent the plaintiffs allege that the SCSD defendants and the DCFS

defendants, in their individual capacities, violated the plaintiffs’ constitutional

rights, they have not met their burden to show that the defendants’ actions violated

1

The only difference between a § 1983 claim against an individual, in his official

capacity, as an agent or employee of a municipality or local government entity and one against

the municipality or local government entity itself is in name. Brown v. Neumann, 188 F.3d

1289, 1290 (11th Cir. 1999).

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a clearly established law. Courson, 939 F.2d at 1488. Accordingly, the

defendants, in their individual capacities, are entitled to qualified immunity.

Regarding the plaintiffs’ claims against Governor Bush, the district court

noted that, although the plaintiffs contended that Governor Bush was being sued in

his individual capacity, their complaint lacked specific factual allegations as to

him. The court, therefore, rightly concluded that Governor Bush was entitled to

qualified immunity because the plaintiffs had failed to meet the heightened

pleading standard described earlier. And, as to the plaintiffs’ claims against DCFS,

and to the extent the plaintiffs made claims against the DCFS individual defendants

and Governor Bush, in their official capacities, the Eleventh Amendment of the

Federal Constitution bars such § 1983 claims.2 Miller, 384 F.3d at 1259-60. As

the defendants correctly contend in their brief, the State of Florida has not waived

its immunity as to § 1983 claims, nor has Congress abrogated it. Further, it does

not appear that the plaintiffs made any claims for prospective, injunctive relief

under § 1983 from these defendants, much less properly alleged claims under §

1983 in this regard.

2

It seems the district court mistakenly believed that DCFS was a local government

entity, as it held that the plaintiffs’ claims against DCFS must fail because the plaintiffs did not

allege a custom or policy that resulted in a violation of their clearly established constitutional or

statutory rights, citing Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995). However, DCFS

is a state agency, see Fla. Stat. § 20.19, which changes the nature of its available § 1983 defenses

as explained herein. In any event, the district court’s error is immaterial.

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In sum, upon review of the record and consideration of the parties’ briefs,

we find no reversible error. Thus, we affirm the district court’s judgment of

dismissal.

AFFIRMED.

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