Petition for Writ of Certiorari — Donnahue George, Petitioner v. William Snyder, et al.

Supreme Court briefApr 28, 2021

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IN THE

SUPREME COURT OF THE UNITED STATES

Donnahue George -Petitioner

vs.

Westway Towing

William Snyder

Fort Lauderdale Code Enforcement

John Doe

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court Of Appeals 11th Circuit

APPENDIX

Donnahue George

1012 NW 2nd Street

Fort Lauderdale FI 33311

(347)216-5257

Email: DonnahueGeorge@gmail.com

APPENDIX A

USCA11 Case: 20-11648

Date Filed: 02/12/2021

Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-11648

Non-Argument Calendar

D.C. Docket No. 0:19-cv-61827-RAR

DONNAHUE GEORGE,

Plaintiff-Appellant,

versus

WILLIAM SNYDER,

WESTWAY TOWING,

FORT LAUDERDALE CODE ENFORCEMENT,

JOHN DOE,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Florida

(February 12, 2021)

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Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Federal pleading rules serve a dual purpose. First, they ensure that the

defendants have fair notice of the claims against them so that they can frame an

appropriate defense. And, second, they guarantee that the district court will have

“a clear and definitive response before it,” so it can “recognize the parties’ claims

and defenses, identify the issues of fact to be litigated, and proceed to a just result.”

Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008). The

district court found that Donnahue George, a pro se plaintiff, violated those

pleading rules when he submitted a threadbare and conclusory complaint, leaving

the court and the defendants unable to discern and analyze his claims. So it

dismissed his complaint.

George believes that this dismissal was in error. He also contends that the

court erred in other ways, including incorrectly setting aside the clerk’s entry of

default against the defendants and striking the defendants’ separate motions to

dismiss and ordering them to file a joint motion. Because we find that the district

court did not abuse its discretion in any of these decisions, we will affirm.

I.

Donnahue George alleges that on March 18, 2019, William Snyder entered

his property and, with the help of West Way Towing Co., stole his vehicle from his

covered driveway. George’s neighbors called to alert him that his vehicle was

being towed. When they put Snyder on the phone, George informed him that the

vehicle was his and that it was parked legally on his own property. But rather than

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return the vehicle, Snyder hung up and “proceeded to tow the vehicle and submit

the false report to his department that stated he did not know who the owner of the

vehicle was and that it was derelict.”

George spent the next several months trying to recover his vehicle. He went

to the Fort Lauderdale Police Department and to “code enforcement,” but was told

only that his vehicle was towed because it was derelict. So he called West Way

Towing. They put him on hold three times and never returned his call. He wrote

to “code enforcement” and to the City of Fort Lauderdale. Again, no reply.

As a last resort, he filed this lawsuit. In his first attempt at drafting his

complaint, he completed a handwritten five-page form, alleging generally that

“William Snyder conspired with [West Way] Towing to deprive Plaintiff of his

constitutional rights by illegally stealing his property from his premises without

legal authority and fabricating information to cover up the theft.” The district

court promptly sua sponte dismissed the case without prejudice because the

“Plaintiff s Complaint fail[ed] to state a claim upon which relief may be granted.”

Specifically, the court noted that Rule 8(a)(2) of the Federal Rules of Civil

Procedure requires a complaint to contain a “short and plain statement of the

claim” showing that the plaintiff is entitled to relief. In that first complaint,

George had not included “sufficient factual matter, that if accepted as true, allows

the Court to reasonably infer that Defendants are liable for any misconduct or

wrongdoing, or what the claim or claims against each of them may be.”

A few months later, George moved to reopen his case and to file an amended

complaint. The district court granted that motion. The case then sat; no

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defendants appeared. George eventually filed affidavits showing that he had

served the defendants and asked the clerk to enter default. After the clerk’s entry

of default was noted on the docket, George moved for a default judgment against

all the defendants.

Within days of that motion being filed, counsel for West Way Towing,

Snyder, and Fort Lauderdale Code Enforcement entered their appearances and

moved to set aside the clerk’s entry of default. George, they explained, had only

served his original complaint on them—not the amended complaint. Once they

discovered that the case had been dismissed sua sponte by the court, they assumed

the matter was closed. But when they were notified of the clerk’s entry of default

against them, they quickly entered their appearances and moved to set aside the

default. The district court found that the defendants had established good cause for

failing to appear, so it set aside the entry of default and allowed the case to

proceed.

The defendants then filed separate motions to dismiss the amended

complaint. But the district court struck those motions because the court’s policies

and procedures prohibited “filing of separate motions, unless there are clear

conflicts of positions.” It instructed the defendants to refile with a joint motion.

After briefing on the motion to dismiss was completed, the court dismissed

George’s amended complaint. Again repeating the Rule 8(a) requirements, the

court noted that George had “failed to remedy the deficiencies noted by this Court

in its prior Order Dismissing Case.”

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II.

The district court dismissed George’s complaint as a shotgun pleading,

violating the Federal Rules of Civil Procedure’s pleading requirements. A district

court possesses “inherent authority to control its docket and ensure the prompt

resolution of lawsuits, which in some circumstances includes the power to dismiss

a complaint for failure to comply with Rule 8(a)(2) and Rule 10(b)” of the Federal

Rules of Civil Procedure. Weiland v. Palm Beach Cnty. Sheriff’s Off, 792 F.3d

1313, 1320 (11th Cir. 2015). We review those dismissals for abuse of discretion.

Id.

Though pro se parties’ pleadings are liberally construed by courts, the

litigants are not relieved from following procedural rules. Albra v. Advan, Inc.,

490 F.3d 826, 829 (11th Cir. 2007). Rule 8(a) sets standards for the content of

pleadings, requiring complaints to provide a “short and plain statement of the

grounds for the court’s jurisdiction,” a “short and plain statement of the claim

showing that the pleader is entitled to relief,” and a “demand for the relief sought.”

Fed. R. Civ. P. 8(a)(l)-(3). Rule 10(b) regulates the form of those pleadings,

stating that a “party must state its claims or defenses in numbered paragraphs” and

must assert “each claim founded on a separate transaction or occurrence” in a

“separate count.” Fed. R. Civ. P. 10(b). Pleadings that violate these rules are

known as “shotgun pleadings.”

Shotgun pleadings take many different forms, but their “unifying

characteristic” is that they fail to give the defendants “adequate notice of the claims

against them and the grounds upon which each claim rests.” Weiland, 792 F.3d at

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1323. The most common type is a complaint that contains “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.” Id. at 1321. But a complaint that commits the “sin of not

separating into a different count each cause of action or claim for relief’ or the “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,” is equally prohibited. Id. at 1323.

The district court determined George’s amended complaint fell into this

latter category. The complaint did not “include sufficient factual matter that would

allow the Court to reasonably infer that Defendants are liable for any misconduct

or wrongdoing, or what the claim or claims against each of them may be.” It

recited facts but did “not contain any counts,” nor did it make any attempt to tether

the factual allegations to the various claims. It did not contain enough factual

allegations for the court to determine the “basis of its subject matter jurisdiction.”

And it set forth only “vague and conclusory allegations.” The district court

dismissed the complaint because, in sum, it failed to “comply with the Federal

Rules of Civil Procedure and federal pleading standards, and does not provide a

sufficient basis for this Court to find subject matter jurisdiction.”

We find no abuse of discretion in this decision. Though George’s

amended complaint is an improvement upon his first, it still did not provide the

defendants adequate notice of the claims against them, for the reasons the district

court outlined. George’s brief on appeal now does a better job tethering his factual

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allegations to his particular causes of action, but that information is lacking in his

pleading. He cannot amend his complaint now through his appellate briefing.

We emphasize, though, that the district court dismissed this case on

procedural grounds and, it appears, without prejudice.1 George may have real and

valid claims against West Way Towing, Snyder, or the Fort Lauderdale Code

Enforcement. He remains free to try again with a new complaint that contains

clear factual allegations tethered to specific counts against particular defendants, as

required by Rules 8(a) and 10(b).

III.

George also claims two other errors by the district court. First, he suggests

that the district court incorrectly set aside the clerk’s entry of default, and second,

he argues that the court impermissibly struck the defendants’ separate motions to

dismiss. We review both orders for abuse of discretion. Compania

Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d

948, 951 (11th Cir. 1996); Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1320

(11th Cir. 2013). Under this standard, we must “affirm unless we find that the

district court has made a clear error of judgment, or has applied the wrong legal

The district court never stated whether the dismissal was with or without prejudice. A district

court may dismiss a case for failure to comply with court rules “under the authority of either

Rule 41(b) or the court’s inherent power to manage its docket.” Weiland, 792 F.3d at 1321 n.10.

To dismiss with prejudice under Rule 41(b), the court must find that “(1) a party engages in a

clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court

specifically finds that lesser sanctions would not suffice.” Betty K Agencies, LTD. v. M/V

Monada, 432 F.3d 1333, 1337-38 (11th Cir. 2005) (quotation omitted). Because the “order does

not cite Rule 41(b)” or “make the findings necessary to justify a dismissal under that provision,”

we will assume it dismissed under its inherent power to manage its docket and that it was done

without prejudice. See Weiland, 792 F.3d at 1319-20.

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standard.” Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010)

(quotation omitted).

Under Federal Rule of Civil Procedure 55(c), the district court “may set

aside an entry of default for good cause.” Good cause is not precisely defined and

often depends upon the court’s consideration of whether “the default was culpable

or willful, whether setting it aside would prejudice the adversary, and whether the

defaulting party presents a meritorious defense.” Compania, 88 F.3d at 951.

The district court correctly applied that standard here, finding good cause for

vacating the entry of default. The defendants, it said, were not “properly served

with the Amended Complaint; as such their default was not culpable or willful.”

More, the court noted that the defendants “acted promptly to vacate the Clerk’s

Entry of Default” and that “vacating the Clerk’s Default will not unduly prejudice

Plaintiff.” Because George has not identified any clear error in the district court’s

judgment, we will affirm.

Finally, the district court did not err in striking the defendants’ separate

motions to dismiss and ordering that they file a joint motion. District courts have

“broad discretion” in managing their cases. Chrysler Int’l Corp. v. Chemaly, 280

F.3d 1358, 1360 (11th Cir. 2002). Because of the “caseload of most district courts

and the fact that cases can sometimes stretch out over years,” district courts may

use this discretion to ensure that their cases “move to a reasonably timely and

orderly conclusion.” Id. That is all that the district court’s order did here. By

striking the separate motions and requiring a joint motion to be filed in compliance

with the court’s rules, it tried to streamline the case. Contrary to George’s

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contentions, nothing in this order gave “defense strategies to the defendants,”

evidenced any sort of bias toward the defendants, or suggested in any way that the

court abused its discretion.

* * *

Because we find no abuse of discretion in any of the district court’s orders

challenged by George, we AFFIRM.

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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street. N.W.

Atlanta. Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.cal 1 .uscourts.gov

February 12, 2021

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 20-11648-JJ

Case Style: Donnahue George v. William Snyder, et al

District Court Docket No: 0:19-cv-61827-RAR

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless

exempted for good cause. Non-incarcerated pro se parties are permitted to use the ECF system by registering for an

account at www.pacer.gov. Information and training materials related to electronic filing, are available at

www.call.uscourts.gov. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been

entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11 th Cir. R. 40-3, and the time for filing a petition for rehearing en

banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing

or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed

by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is

governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all

persons and entities listed on all certificates previously filed by any party in the appeal. See 11 th Cir. R. 26.1 -1. In addition, a

copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See

Uth Cir. R.35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the

appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of

certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or

cja_evoucher@cal 1 .uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, costs taxed against appellant.

Please use the most recent version of the Bill of Costs form available on the court's website at www.cal 1 .uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block

below. For all other questions, please call Tiffany A, Tucker. JJ at (404)335-6193.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Jeff R. Patch

Phone#: 404-335-6151

OPIN-1A Issuance of Opinion With Costs

APPENDIX B

Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-CIV-61827-RAR

DONNAHUE GEORGE,

Plaintiff,

v.

WILLIAM SNYDER, WESTWAY

TOWING, FORT LAUDERDALE

CODE ENFORCEMENT, and JOHN

DOE,

Defendants.

ORDER GRANTING JOINT MOTION TO DISMISS

THIS CAUSE comes before the Court on Defendants Fort Lauderdale Code Enforcement,

William Snyder, and West Way Towing’s Motion to Dismiss (“Motion”) [ECF No. 39], filed on

December 19, 2020. Defendants ask the Court to dismiss Plaintiffs Amended Complaint [ECF

No. 11] pursuant to Federal Rule of Civil Procedure 12(b)(6). Having reviewed the parties’

submissions, the record, and being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED that Defendants’ Motion is hereby GRANTED, as

explained herein.

BACKGROUND

On July 22, 2019, pro se Plaintiff Donnahue George filed a Complaint alleging that

Defendants violated his constitutional rights when they improperly towed his vehicle without his

permission. See Comp. [ECF No. 1]. The Court dismissed Plaintiffs Complaint sua sponte for

failure to state a claim. See Order Dismissing Case [ECF No. 7]. In doing so, the Court noted that

Plaintiff s Complaint lacked any detail regarding the purported theft and was entirely conclusory

in nature. Id. Plaintiff then filed a Request to Reopen Case and to File an Amended Complaint

Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 2 of 6

[ECF No. 9], alleging that he could remedy the pleading deficiencies identified by the Court. The

Court granted Plaintiffs request, afforded Plaintiff an opportunity to file an amended complaint,

and noted that “failure to file an amended complaint that comports with the Federal Rules of Civil

Procedure ... will result in an order of dismissal without further notice.” Order Granting Plaintiffs

Request to Reopen Case [ECF No. 10].

On October 21, 2019, Plaintiff filed an Amended Complaint.

See Am. Comp.

On

November 6, 2019, Plaintiff filed a Motion for Clerk’s Entry of Default [ECF No. 13], which the

Clerk denied for failure to file executed summons [ECF No. 14], Plaintiff then filed executed

summons [ECF Nos. 15-17] and renewed his request for a Clerk’s Entry of Default [ECF No. 18],

which was granted [ECF No. 19]. Plaintiff then filed a Motion for Default Final Judgment [ECF

No. 22], Days later, Defendants filed Motions to Set Aside or Vacate the Clerk’s Default [ECF

No. 23, 25] on grounds that Plaintiff had never served the Amended Complaint. Because this case

had been closed, Defendants had not received notice of the Amended Complaint or the Order

Granting Plaintiffs Motion to Reopen.

Accordingly, the Court granted Defendants’ Motions to Set Aside or Vacate the Clerk’s

Default, denied Plaintiff s Motion for Default Final Judgment, and ordered Defendants to file a

response to Plaintiff s Amended Complaint. See Order Vacating Clerk’s Default [ECF No. 27].

Defendants subsequently filed the instant Motion to Dismiss, which is ripe for disposition.

LEGAL STANDARD

A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint;

it does not adjudicate the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th

Cir. 1984). At the pleading stage, a complaint must contain “a short and plain statement of the

claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8(a) does

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Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 3 of 6

not require “detailed factual allegations,” it does require “more than labels and conclusions;” a

“formulaic recitation of the cause of action will not do.” Bell Atl. Corp v. Twombly, 550 U.S. 544,

555 (2007). To survive a motion to dismiss, “factual allegations must be enough to raise a right

to relief above the speculative level” and must be sufficient “to state a claim for relief that is

plausible on its face.” Id. at 555, 570. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In considering a 12(b)(6) motion to dismiss, a court must review the complaint in the light

most favorable to the plaintiff, and it must generally accept the plaintiffs well-pleaded facts as

true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez,

480 F.3d 1043, 1057 (11th Cir. 2007). Although generally, pro se complaints are held to a less

stringent pleading standard than pleadings drafted by lawyers, seeAbele v. Tolbert, 130 F. App’x

342, 343 (11th Cir. 2005), “liberal construction of pro se pleadings does not give a court license

to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to

sustain an action,” Smitherman v. Decatur Plastics Prod. Inc., 735 F. App’x 692, 692-93 (11th

Cir. 2018) (quoting Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014))

(internal quotations omitted).

ANALYSIS

Plaintiff s Amended Complaint alleges that Defendants unlawfully towed his vehicle and

falsified paperwork to justify their illicit behavior. See generally Am. Comp. However, even

under the relaxed pleading standard afforded to pro se litigants, Plaintiffs Amended Complaint

fails to meet the foregoing standards. The Amended Complaint does not include sufficient factual

matter that would allow the Court to reasonably infer that Defendants are liable for any misconduct

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Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 4 of 6

or wrongdoing, or what the claim or claims against each of them may be. To begin, Plaintiffs

Amended Complaint is a recitation of facts that does not contain any counts, and therefore does

not permit Defendants—or the Court—to properly analyze the same.

Moreover, while Plaintiff alleges certain constitutional violations, his factual allegations

are untethered to his constitutional claims. The Court cannot discern which Defendants are alleged

to have violated the Constitution and what the basis for these allegations may be. Indeed, it appears

that Plaintiff does not appreciate that private individuals and corporations cannot generally be

found liable for constitutional violations absent certain circumstances, see Smartt v. First Union

Nat 7 Bank, 245 F. Supp. 2d 1229,1233 (M.D. Fla. 2003), and that departments of city government

are normally not considered legal entities capable of being sued, Dean v. Barber, 951 F.2d 1210,

1214(11th Cir. 1992).

While it is clear from Plaintiffs Amended Complaint that he believes his vehicle was

unlawfully towed, what remains decidedly unclear is how such actions translate into the legal

claims Plaintiff alleges. Plaintiff s conclusory allegations that “Defendants committed trespass by

entering my property to steal my vehicle” or that “Defendants caused me intentional infliction of

emotional distress by stealing my vehicle” simply do not suffice to state a plausible claim. Because

Plaintiff does not specify which Defendant is liable for each barebone allegation, the Court cannot

discern the basis of Plaintiff s claims. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d

1313, 1323 (11th Cir. 2015) (“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.”); see also Fed. R.

Civ. P. 8(a) (“A pleading that states a claim for relief must contain ... a short and plain statement

of the claim showing that the pleader is entitled to relief.”) (emphasis added).

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Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 5 of 6

Further, the Court cannot determine the basis of its subject matter jurisdiction from

Plaintiff s allegations. Federal courts are ‘“empowered to hear only those cases within the judicial

power of the United States as defined by Article III of the Constitution,’ and which have been

entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am.

Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367

(11th Cir. 1994)). Accordingly, once a federal court determines that it is without subject matter

jurisdiction, the court is powerless to continue. Id. at 410. Here, Plaintiff alleges that the Court

has federal question jurisdiction pursuant to his constitutional claims and his claim under 42 U.S.C.

section 1983. But both of these jurisdictional bases present challenges for Plaintiff.

With respect to his constitutional claims, Plaintiff concedes that he cannot proceed against

Defendant Westway Towing, a private corporation. Similarly, and perhaps in recognition of his

inability to pursue claims against Defendant Fort Lauderdale Code Enforcement, Plaintiff offers

to substitute the same for the City of Fort Lauderdale.1 Additionally, to the extent Plaintiff is

raising constitutional claims against the last remaining Defendant—William Snyder—said claims

lack any indicia to suggest Snyder was acting as an agent of the City such that a viable

constitutional claim against him may exist.

Plaintiffs alleged section 1983 claim is similarly problematic. While Plaintiff sets forth

section 1983 as a basis for the Court’s subject matter jurisdiction, even under the most liberal

construction of the Amended Complaint, Plaintiff has not alleged an action under section 1983.

Beyond his jurisdictional allegation, Plaintiff s Amended Complaint never mentions section 1983,

contains no allegations against the City of Fort Lauderdale, and does not allege a custom or policy

The Court notes that even if Plaintiff were permitted to substitute the City of Fort Lauderdale as a

defendant in this case, such substitution would not cure the pleading deficiencies identified herein.

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Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 6 of 6

that caused Plaintiffs injury.

In sum, Plaintiff has failed to remedy the deficiencies noted by this Court in its prior Order

Dismissing Case [ECF No. 7]. Plaintiffs Amended Complaint continues to set forth vague and

conclusory allegations, fails to comply with the Federal Rules of Civil Procedure and federal

pleading standards, and does not provide a sufficient basis for this Court to find subject matter

jurisdiction.

CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants’ Motion

to Dismiss [ECF No. 39] is GRANTED. Plaintiffs Amended Complaint [ECF No. 11] is

DISMISSED. The Clerk is directed to CLOSE this case.

DONE AND ORDERED in Fort Lauderdale, Florida, this 27th day of April, 2020.

RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

Page 6 of 6

APPENDIX C

REC’D BY.

D.C.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-CV-61827-RUIZ/SELTZER

DONNAHUEGEORGE

DEC 20 2019 '

ANGELA E. NOBLE

CLERK U.S. DIST. CT.

S. D. OF.FLA, - FT, LAUD.

MOTION IN OPPOSITION

Plaintiff

v.

WILLIAM SNYDER

WESTWAY TOWING

FORT LAUDERDALE CODE ENFORCEMENT

Defendant

PLAINTIFF OPPOSITION MOTION TO DEFENDANT FORT LAUDERDALE CODE

ENFORCEMENT. DEFENDANT WILLIAM SNYDER AND DEFENDANT WESTWAY

TOWING JOINT MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT

(ECF#39)

Come now the Plaintiff Donnahue George who requests that this honorable court

deny the Defendant Fort Lauderdale Code Enforcement, Defendant William

Snyder and Defendant Westway Towing motion to dismiss Plaintiffs Amended

Complaint(ECF No. 39) and in support therefore states as follows

Procedural History

1. July 22, 2018 Plaintiff Donnahue George filed his complaint against, City of

Fort Lauderdale code enforcement, Westway Towing, William Snyder and

John Doe (See ECF1.)

2. Defendants Westway Towing was served with the summons on July 23,

2019 and Plaintiff Donnahue George filed a motion to reopen the case on

September 23. 2019 and served Westway Towing representative by US mail

(ECF 16)

3. Plaintiff Donnahue George filed a Motion to Re-Open the case on

September 23, 2019 (ECF 9)

4. Donnahue George filed his Amended Complaint on October 21, 2019 (ECF

11) Plaintiff Donnahue George served a copy of the Amended Complaint to

Westways registered agent as required by Florida Statute

5. A Clerks Default was entered based on the Amended Complaint not the

original complaint. (ECF 19)

6. The allegations in the pleadings essentially accuse Westway towing of

stealing plaintiffs vehicle in cahoots with Defendant William Snyder,

violating Florida state towing laws and Penal laws and then fabricating

evidence to coverup the theft.

Memorandum of Law

I.

Standard on a motion to dismiss.

To defeat a motion to dismiss under Rule 12(b) (6), a plaintiff bears the

burden of providing grounds of his entitlement to relief. In Bell Atlantic

Corp v. Twombly 550 U.S. 544 (2007) the courts held that there must be

sufficient facts in a complaint to state a claim to relief that is plausible on its

face for it to avoid dismissal for failure to state a claim. Plaintiffs Donnahue

George facts are plausible on its face to state a claim for relief. Defendant

Westway Towing in Cahoots with Defendant William Snyder entered my

property illegally on March 18, 2019 at approximately 0930 and stole my

perfectly running limo that was clean and covered and legally parked in my

paved driveway. Defendant has failed to give a legal reason why they

entered my property and stole my vehicle. Florida Statute 715.07 (2)(a)(2)

states that if you tow a vehicle in the state of florida without the owners

permission you have to notify the local police department within 30

minutes. West way towing has years in the business and is familiar with the

statute yet no one notified the Fort Lauderdale police department in 30

minutes so at that point, the tow truck driver committed a misdemeanor by

violating Florida statute 715.07 (2)(a)(2). What someone did do was report

to the fort Lauderdale police department that my vehicle was found

abandoned in the street in fort Lauderdale a few hours after it was stolen

from my property. There are sufficient facts concerning the actions and

inactions of the defendants on March 18, 2019 to state a claim by which

relief can be granted.

A court considering a Rule 12(b) Motion is generally limited to the facts

contained in the complaint and attached exhibits, (see Wilchcombe v

Teevee Toons Inc, 555 F.3d 949, 959 (11th Cir 2009) The facts contained in

the complaint are very precise as to the illegal actions which was entering

my property and stealing my vehicle and the illegal inactions not nitifying

the fort lauderdale police department as required by statute. Westway

Towing entered my property stole my vehicle violated florida statutes in

order to cover up the theft and they still have not presented any evidence

to the contrary.

II.

Plaintiff Donnahue George Amended Complaint sets forth multiple

factual allegations upon which relief must be granted.

Plaintiff Donnahue George original complaint was vague because he knew

that the Defendants Westway Towing and Defendant William Snyder had

no moral problem with fabricating evidence, ignoring florida statutes and

penal code in order to cover up their felonious actions and inactions.

While the defendant Westway towing is correct that the constitutional

rights violations cant be attributed to them, They still entered my property

illegally on March 18, 2019 which was a trespass, stole my perfectly running

vehicle out my driveway which made it tresspass to chattel and Conversion.

They committed fraud by totally ignoring Florida Statute 715.07 (2)(a)(2)

which required them to notify the local police department in 30 minutes

which they did not do. Violation of this statute is a misdeamenor. Then

someone a few hours later notified Fort Lauderdale police department that

they found by vehicle abandoned in the street. The illegal actions and

illegal inactions of Defendant Westway towing was the proximate cause of

my intentional emotional distress. They knew what they were doing was

illegal, by their own evidence they submitted (see exhibit B) they knew that

I was the owner of the vehicle and it was registered at the address that

they towed it from. It appears they then dropped it in the street then

someone called Fort Lauderdale Police department reported my vehicle

abandoned and then it was towed again. These are issues that will be

answered during the discovery process. I am very confident that Fort

Lauderdale police department has very accurate records.

In alleging Fraud or Mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice , intent knowledge and

other conditions of a persons mind may be alleged generally (see State

Farm Mut. Auto Ins. Co. v. Performance Orthopedics & Neurosurgery, LLC,

278 F. Supp. 3d 1307,1317 (S.D. Fla. 2017)

Westway Towing entered the property illegally without plaintiff Donnahue

George expressed authority which created the trespass. The facts are very

clear on its face. Westway Towing knew plaintiff Donnahue George was the

owner of the vehicle by their own evidence they presented to the courts

(see Exhibit B) Westway Towing even armed with that information still

removed Plaintiffs Donnahue George vehicle from his premises in direct

violation of Florida State Statutes. Westway towing knew that they were

required to notify the local police department within 30 minutes of towing

my vehicle and they did not which is a misdemeanor and further evidence

of their fraud.

In Dagerath v. State , 100 So. 3d 1260,1263 (Fla. 4th DCA 2012) the courts

held that the defendant had to meet the following elements for trespass (1)

the defendant willfully entered the structure conveyance or other property.

Westway towing willfully entered the property and stole my vehicle. (2)

the structure, conveyance or other property was owned by or in Ithe lawful

possession of another. Plaintiff Donnahue George is the legal owner of

1012 NW 2nd st Fort Lauderdale FI and he is the legal registered owner of

the perfectly good clean running vehicle that defendants stole out of his

property.

In order for co-conspirators to commit a crime together they do not have to

have a legal relationship. Defendant William Snyder and Defendant

Westway Towing committed the trespass together. Committed the trespass

of Chattel together along with the conversion. Employer employee

relationship not required to commit a crime. Defendant William Snyder

committed part of the fraud alone by submitting a report to his department

that he did not know who the owner of the vehicle was and that it was

derelict. Westway towing committed part of the fraud on their own by not

notifying the local police department in 30 minutes as required by Florida

state statutes. Someone later notified Fort Lauderdale Police Department

that they found my vehicle abandoned in the street.

Conversion may be demonstrated by a Plaintiffs demand and a Defendants

Refusal (See Goodrich v Malowney, 157 So. 2d 829, 832 (Fla. 2d DCA1963)

The generally accepted rule is that demand and refusal are unnecessary

where the act complained of amounts to conversion regardless whether a

demand was made". While Defendant William Snyder And his

Coconspirator Westway towing was in the process of stealing plaintiff

vehicle, plaintiff neighbor called plaintiff Donnahue George and told him

about the theft in progress. Plaintiff Donnahue George spoke to defendant

William Snyder and told him he did not have permission to remove my

vehicle from my property and defendant William Snyder simply ignored my

request and hung up the phone.

In order for Plaintiff Donnahue George to state an action for intentional

infliction of emotional distress a complaint must allege four elements.

These elements do not have to be proven in the complaint. Plaintiff

Donnahue George must allege (1) reckless or deliberate infliction of Mental

suffering (2) outrageous conduct (3) the conduct caused the emotional

distress (4) the distress was severe

In regards to (1) Defendant William Snyder in conspiracy with Westway

towing reckless and deliberately trespassed on my property and stole my

vehicle under the color of law. When I asked Defendant William Snyder to

stop stealing my vehicle he just hung up the phone on me leaving me

helpless without any recourse . Defendant William Snyder and Westway

Towing actions intentionally caused me mental suffering.

In regards to (2) The fact that Defendant West way Towing trespassed on

my property and stole my vehicle and then lied to cover up the theft, a

reasonable person would find that conduct to be outrageous.

In regards to (3) The actions of Defendant Westway Towing entering my

premises illegally with the intent to steal my vehicle was the actual cause of

my mental distress

In regards to (4) the distress was very severe because I did not know what

to do I was not in a position to do anything at the time and when I went to

the police station and they told me my car was found abandoned in the

street I was distressed. I attempted to call Westway Towing and after I gave

them the vin # for my vehicle they just put me on hold and never came

back on the phone putting me in further distress. Hart v. United States, 894

F.2d 1539,1548 (11* Cir. 1990)

The Defendant Westway Towing own intentional disregard of Florida state

Statutes is further evidence that their actions were willful and intentional.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

7. Plaintiff Donnahue George alleges that on March 18, 2019 at approximately

0930. Defendant William Snyder without any legal authority and with the

assistance of Westway towing stole my perfectly running covered limo out

of my paved driveway. Plaintiff Donnahue George has presented proof that

Defendant William Snyder then submitted a erroneous report to Fort

Lauderdale Code enforcement stating that the vehicle was derelict and that

he did not know who the owner was (See Exhibit A) Yet Defendant

Westway Towing submitted a title search that the ran on plaintiffs car that

same day and time that lists the plaintiff as the owner and the car was

registered at the address from where it was towed, (see exhibit B). Plaintiff

Donnahue George does not allege that he filed a police report. Plaintiff

Donnahue George states that he went to the Fort Lauderdale Police

department to file a report and that police officer Rivera Shield # 1625

informed Plaintiff Donnahue George that his car was found abandoned on

NE 5th street and NE 2nd ave. Plaintiff Donnahue George has no idea who

reported his vehicle abandoned in the street but after a discovery period

plaintiff is confident that the Fort Lauderdale Police department has

accurate records. Defendant William Snyder and Defendant Westway

entered my property illegally with the intent to trespass of chattel and

violated Plaintiff Donnahue George constitutional rights arising under the

4th, 5th and 14th amendments plus 42 USC 1983, by committing grand theft

auto, fraud , trespass, trespass of chattel, intentional infliction of emotional

distress and conversion.

As Demonstrated below, Plaintiff Donnahue George claims should be

granted in its entirety because:

First, Fort Lauderdale Code Enforcement is an entity that is capable of being

sued because the process server informed me that the statute required her

to serve the director of Code enforcement, and even if the courts even

wanted to entertain that allegation, the City of Fort Lauderdale is on notice

and has had ample time to provide an answer and defense. Plaintiff

Donnahue George added John Doe to his Complaint because he knew after

discovery there would be more defendants. It is a very simple issue to add

City of Fort Lauderdale as a defendant if that will make the Defendant

happy.

Second, to the extent that Plaintiff Donnahue George does state a claim

against defendant William Snyder who was supposed to be acting in his

official capacity as a City of Fort Lauderdale employee. Plaintiff Donnahue

George notified Fort Lauderdale Police Department, Fort Lauderdale Code

enforcement, Fort Lauderdale City hall and Broward county commission on

June 24. 2019 (See exhibit C) in complete compliance of pre-suit

requirements 768.28(6)(a), Fla. Stat. (2017) warranting this court granting

all of plaintiff Donnahue George claims.

Third, Plaintiff Donnahue George claims are very specific and the facts are

overwhelming. Defendant William Snyder entered my property and with

the assistance of Westway Towing stole my perfectly good running limo

that was clean and covered and legally parked on my paved driveway.

While Defendant William Snyder was in the process of stealing my vehicle

in violation of Florida towing statutes 715.07 (2)(a)(3) which is a felony, my

neighbors saw him and immediately called me. I had my neighbor put

Defendant William Snyder on the phone and I explained to him that he did

not have my permission to remove my legally parked covered car from my

paved driveway. Westway towing and William Snyder then stole my

vehicle. Defendant William Snyder then submitted an erroneous report

with his department (see Exhibit A) which he signed stating that a covered

vehicle on private property was derelict and that he did not know who the

owner was. He knew it wasn't derelict he knew who the owner was and he

still removed the vehicle from my private property and lied about it.

Westway towing have provided me with documentation(See Exhibit B) that

proves that they knew who the owner of the vehicle was, they knew it was

registered at that address and they still towed the vehicle in violation of

Florida Towing Statutes. They were in possession of the correct information

and Defendant William Snyder still submitted that report to his department

alleging that the vehicle was derelict and he did not know who the owner

was. This is further evidence that the fraud perpetrated by Defendant

William Snyder and Defendant Westway Towing was deliberate, intentional

and willful. Florida Statute 715.07 (2)(a)(2) states that if you tow a vehicle in

the state of Florida without the owners permission you have to notify the

local police department in 30 minutes. Violation of this statute is a

misdeameanor. Nobody notified Fort Lauderdale police department in 30

minutes in violation of Florida state statute, instead someone notified Fort

Lauderdale police department dispatcher that they found my vehicle

abandoned in the street blocks from my house.

Fourth, Plaintiff specifically states a cause of action against Defendant

William Snyder and the City. Defendant William Snyder had no legal reason

to enter my property and steal my vehicle. The City of Fort Lauderdale as

the employer of Defendant William Snyder is responsible for training him

and supervising his actions. Its obvious to a reasonable person that either

they failed in training him properly, supervising him properly or both. By

entering my property to commit a felony by stealing my vehicle and then

fabricating evidence to cover up the felony, Defendant William Snyder

committed Grand theft auto, trespass, trespass of chattel, fraud and

conversion. Only through a court ordered discovery period will we beable

to determine if this was a one-time incident, or a pattern of behavior that

has been going on unsupervised and unchecked for years.

Fifth, Plaintiff Donnahue George spoke to Defendant William Snyder while

he was in the process of towing my car and explained to defendant William

Snyder that he did not have my authority to remove my perfectly running

covered vehicle from my paved driveway. Defendant William Snyder hung

up on plaintiff Donnahue George and proceeded to steal the plaintiffs

vehicle. The plaintiff Donnahue George felt weak and helpless at that point

because there was nothing he could do to stop Defendant William Snyder

from violating his Constitutional rights. The emotional helplessness that he

felt at that point can not be overstated and then to return home and see

that his vehicle is missing, and then to add insult to injury to be informed by

Officer Rivera shield#1625 that his vehicle was found abandoned in the

road sent Plaintiff Donnahue George in a sense of panic and he

immediately went to Fort Lauderdale code enforcement to find out what

was going on. Defendant William Snyder handed Plaintiff Donnahue George

a paper stating that he did not know who the owner of the vehicle was and

that it was derelict. Plaintiff Donnahue George told defendant William

Snyder that he knows who owned it because you spoke to me while you

were towing it and you hung up on me. Defendant William Snyder just

walked away.

ARGUMENT AND MEMORANDUM OF LAW

I.

Fort Lauderdale Code Enforcement is an entity capable of being

sued and the case must not be dismissed. The City of Fort

Lauderdale should be added as a defendant in the case

Amended Complaint Fort Lauderdale Code Enforcement was the employer

of Defendant William Snyder and was responsible or supervising and

training him. n Monell v. Dept. of Social Services, 436 U.S. 658, 98 S. Ct.

2018, 56 L. Ed. 2d 611 (1978), the Supreme Court held that "municipalities

and other local government *1132 units" are "persons" subject to liability

for violating 42 U.S.C. § 1983. Defendant Fort Lauderdale Code

enforcement violated my rights under 42 U.S.C 1983 through the actions of

their employee William Snyder so they are units and persons subject to

liability under the law.

In Post v. City of Fort Lauderdale 750 F. Supp. 1131,1132-33 (S.D. Fla. 1990)

The Courts held that until the court is apprised of the factual involvement

of the defendants they will remain parties in the case. There has not been

enough evidence presented for the court to know the factual involvement

of Fort Lauderdale Code enforcement and therefore Fort Lauderdale Code

enforcement should not be removed from the lawsuit. They were

specifically the ones required to train and supervise defendant William

Snyder. There should be a discovery period to determine how complicit

Fort Lauderdale Code enforcement was in illegal felony actions of

Defendant William Snyder. Plaintiff Donnahue George agrees with

Defendant that The City of Fort Lauderdale should be added as a defendant

in this lawsuit.

II.

Plaintiff Donnahue George has Compiled with Pre-suit

Requirements and Thus all his AlleRations in his Amended

Complaint Must be Granted

Plaintiff Donnahue George is asserting state law tort claims and Federal

Constitutional Rights violation claims and has met the pre-suit

requirements in 768.28(6)(a), Fla. Stat. (2017). Plaintiff Donnahue George

on June 24, 2019 notified Fort Lauderdale code enforcement, The Fort

Lauderdale Police department, Fort Lauderdale City Hall and the Broward

County Commission (See exhibit C) No one responded. Plaintiff Donnahue

George notice to the appropriate agency was within the 3 years as required

by statute. In section 768.28, the Florida legislature has waived the

sovereign immunity of the state and its subdivisions from tort action

provided, among other things, that the claimant present a written claim to

the appropriate agency within 3 years after the accrual of the claim.

The Actions of Defendant William Snyder goes outside the norms of

Qualified Immunity and as to his actions he there is no pre-suit

prerequisite. In Hutton v. Strickland, 919 F.2d 1531,1536 (11 Cir. 1990) the

courts state that Qualified immunity protects government officials

performing discretionary functions from civil liability if their conduct

violates no "clearly established statutory or constitutional rights of which a

reasonable person would have know". A reasonable person would know

that they should not enter a persons property to steal someone elses

property. A reasonable person would know that entering a property with

the intent to commit a crime is trespass and would violate a persons

constitutional rights. A reasonable person would know that if you fabricate

evidence to cover up a crime that would be fraud. Defendant William

Snyders actions were clearly outside the Norms of Qualified Immunity.

A Plaintiff facing Qualified Immunity must produce evidence that would

allow a fact finder to find that no reasonable person in the defendants

position could have thought the facts were such that the justified the

defendants actions. (See Sims v Metropolitan Dade County,972 F.2d 1230,

1234-35 (11th Cir. 1992) Defendant William Snyders actions were clearly

outside the norms of qualified immunity and a fact finder would that no

reasonable person would find the fact that he fabricated evidence to cover

up his crime justified.

III.

Plaintiff Donnahue George has Stated a Claim Upon Which R elief

can be Granted and all the Allegations in his Amended Complaint

should be Granted

The facts that Plaintiff Donnahue George has asserted state very specific

facts about the actions of Defendant William Snyder and the theft of

Plaintiffs vehicle from his paved driveway in front his house. Florida state

statute 715.07 (2)(a)(3) states that if a person is removing a vehicle or

vessel from the premises or parking lot in which the vehicle is not lawfuly

parked must stop when a person seeks return of the vehicle. Violation of

this statute is a Felony. First Defendant William Snyder had no authority to

remove the vehicle from the premises and while he was unlawfully

removing the vehicle from my property I told him to stop and he did not.

He hung up the phone on me and continued to commit 2 felonies first

grand theft auto second violation of Florida statute 715.07(2)(a)(3) which is

also a felony. Defendant Fort Lauderdale Code enforcement was

responsible for the supervision and training of Defendant William Snyder so

they are culpable in his actions.

Defendant William Snyder in his own fraudulent paperwork establishes the

date and time that he trespassed on my property and stole my vehicle.(see

Exhibit A) Florida statute 18-3 definitions establishes that derelict means

any motor vehicle or vessel which is in a state of evident disuse , neglect or

abandonment is wrecked or partially dismantled having no motor. My

vehicle was working running and cleaned and covered in my paved

driveway it was clearly not a derelict vehicle according to the definition

established by the State of Florida. Defendant William Snyder stole

plaintiffs perfectly running vehicle with the assistant of West way towing

and then fabricated evidence to cover up the theft. A reasonable person

would know that Defendant Williams Snyders action were illegal and

outrageous and the fact that he lied in his paperwork to his department is

further proof that he knew that his actions were illegal and outside

accepted norms.

IV.

Plaintiff Donnahue George States Multiple Causes of Actions

Against Defendant William Snyder and All his Allegations are

supported by Facts.

Plaintiff Donnahue George Fourth, Fifth and Fourteenth Amendment rights

were violated by Defendant William Snyder. Defendant West way towing

own submitted evidence proves that I was the owner of the vehicle (see

Exhibit B) and the trespass of my property with the intent to steal my

vehicle under the color of law violated my Fourth, Fifth and Fourteenth

Amendment rights

The 4th Amendment provides: The right of the people to be secure in their

persons, houses, papers, and effects against unreasonable search and

seizure. Defendant William Snyder entered my property unlawfully stole

my vehicle under the color of law and then fabricated evidence to cover up

the theft

The Fifth Amendment provides: that no person shall be deprived of life,

liberty or property without due process of law. Defendant William Snyder

entered my property stole my vehicle gave me no advance warning of the

theft or no do process but most thieves do not tell you in advance that they

are coming to steal your property. He stole my vehicle under the color of

law with no due process and without just compensation

The 14th Amendment provides : All persons born or naturalized in the

United States , and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. Nor shall any state

deprive any person of life liberty or property without due process of law:

Defendant William Snyder denied me the due process of the law by stealing

my vehicle under the color of law and when caught in the act of stealing my

vehicle by my neighbors simply hung up the phone on me and continued

with the theft. There was no due process of law as required by the

Constitution but as stated before a thief is not going to give you advance

notice that they are going to steal. There is no ordinance that allows a Code

enforcement Officer to enter a property to steal a vehicle with or without

prior notice. The defendant can cite all the cases that they want regarding

neutrality of ordinances but in this particular case there was no ordinance

that was followed. Defendant William Snyder entered my property by

trespass stole my vehicle and then lied to cover up the theft. There is no

ordinance or statute that allows him to steal my property.

V.

Plaintiff Donnahue George States a Cause of Action For His

Emotional Distress.

In order for Plaintiff Donnahue George to state an action for intentional

infliction of emotional distress a complaint must allege four elements.

These elements do not have to be proven in the complaint. Plaintiff

Donnahue George must allege (1) reckless or deliberate infliction of Mental

suffering (2) outrageous conduct (3) the conduct caused the emotional

distress (4) the distress was severe

In regards to (1) Defendant William Snyder in conspiracy with Westway

towing reckless and deliberately trespassed on my property and stole my

vehicle under the color of law. When I asked Defendant William Snyder to

stop stealing my vehicle he just hung up the phone on me leaving me

helpless without any recourse . Defendant William Snyder intentionally

caused me mental suffering.

In regards to (2) The fact that Defendant William Snyder trespassed on my

property and stole my vehicle and then lied to cover up the theft, a

reasonable person would find that conduct to be outrageous.

In regards to (3) The actions of Defendant William Snyder entering my

premises illegally with the intent to steal my vehicle was the actual cause of

my mental distress

In regards to (4) the distress was very severe because I did not know what

to do I was not in a position to do anything at the time and when I went to

the police station and they told me my car was found abandoned in the

street I was distressed. I attempted to call Westway Towing and after I gave

them the vin # for my vehicle they just put me on hold and never came

back on the phone putting me in further distress. Hart v. United States, 894

F.2d 1539,1548 (11th Cir. 1990)

The Defendant William Snyders own fraudulent papers state that the

vehicle was stolen from my house plus he also has pictures of my vehicle

before he stole it under the color of law.

VI.

Plaintiff Donnahue George States a Cause of Action Under 42 U.S.C.

1983

To state a cause of action under section 1983 a plaintiff must allege two

elements (1) Challenged conduct by a person acting under the color of law

(2) challenged conduct that deprived the plaintiff of federal rights.

In regards to(l) Defendant William Snyder trespassed on my property

under the color of law as a Code enforcement officer and stole my perfectly

good running vehicle that was clean and covered and parked on my paved

driveway.

In regards to (2) By stealing my vehicle Defendant William Snyder deprived

of my 4th, 5th and 14th Amendment rights.

A Municipality may not be held liable under 1983 Solely because it employs

a tortfeasor (see Monell v New York City Dept of Social Services 436 U.S.

658, 692 instead the plaintiff must identify municipal policy or custom that

caused the injury (See Pembaur v Cincinnati 475 U.S. 469,480-481. Until

plaintiff is given an opportunity to submit interrogatories and depose other

City employees plaintiff will not be able to establish if this was a one time

incident or if the Fort Lauderdale Code Enforcement has established

customs and or policys that allow code enforcement officers think they can

just trespass and steal citizens personal property

CONCLUSION

Based on the authority cited and the arguments presented herein. Plaintiff

Donnahue George respectfully requests that this deny defendant Florida

Code Enforcement, Defendant William Snyder and Defendant Westway

Towing motion to dismiss and this honorable court grant everything that

Plaintiff Donnahue George requests in his Amended complaint or order a

schedule so that we can start discovery proceedings.

Respectfully Requested

Date December 19, 2019

1

Donnahue George

Conclusion

Based on the authority cited and the arguments presented herein. Plaintiff

Donnahue George respectfully requests that this honorable court deny

defendant Fort Lauderdale Code Enforcement, defendant William Snyder

and Defendant Westway Towing motion to dismiss Plaintiffs Amended

Complaint and this honorable court grant everything that Plaintiff

Donnahue George requests in his Amended complaint or order Defendants

to file an Answer to Plaintiffs Complaint.

Date December 19, 2019

Donnahue George

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of Dec, 2019.1 mailed this foregoing

document to the Clerk of the court and this Document is being served this day by

US Mail to Defendant Attorney: Robert Oldershaw at City Attorney 100 North

Andrews av Fort Lauderdale Florida 33301 and Harrison T Bergman 2001

Hollywood Blvd, Suite 200 Hollywood Florida 3302Q,

December 20, 2019

Donnahue George

Case 0:19-cv-61827-RAR Document 38 Entered on FLSD Docket 12/18/2019 Page 8 of 12

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Case 0:19cv-61327-RAR Document 38 Entered or F! SD Docket 12/18/2019 Page 10 of 12

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Case 0:19-cv-61827-RAR Document 38 Entered on FL.SD Docket 12/18/2019 Page 11 of 12

Case 0:19-cv-6l827-RAR Document 25-2 Entered on FLSD Docket 11/14/2019 Page 2 of 3

Page 9

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Retrieved On: Mon March 18, 2019 11:12:09 AM EOT

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APPENDIX D

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

No. 20-11648

Donnahue George, Plaintiff-Appellant

v.

|WestWay Towing

j William Snyder

Fort Lauderdale Code Enforcement

John Doe

Defendant- Appellee

On Appeal from

the United States District Court

for the Southern District of Florida

Case No. 19-CV- 61827

INITIAL BRIEF OF PLAINTIFF- APPELLANT

Donnahue George

1012 NW 2nd Street

Fort Lauderdale FI 3 3311

(347)216-5257

Emml; DonnahueGeorge@.gmail .com

l

STATEMENT OF INTERESTED PARTIES AND CORPORATE

DISCLOSURE STATEMENT

Plaintiff- Appellant does not have a parent corporation and is not a publicly held

corporation.

Interested parties are as follows:

Fort Lauderdale Code Enforcement, Defendant- Appellee

Westway Towing, Defendant-Appellee

William Snyder, Defendant-Appellee

John Doe, Defendant-Appellee

Donnahue George, Plaintiff- Appellant

Richard Bergman, Attorney for Defendant-Appellee

Micheal Bostick, Attorney for Defendant-Appellee

Robert Oldershaw, Attorney for Defendant Appellee

Honorable Judge Rodolfo A. Ruiz II U.S. District Court Judge

2

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not warranted because the case law is very clear on its face. The

Plaintiff-Appellant was very specific in his descripti on of the fraudulent actions by

the Defendants in his Complaint and he has met the legal threshold required by

statute and case law for the case to move forward. Defendants Westway Towing

and William Snyder entered by residential property under the color of law stole my

property and denied me my constitutional rights to due process and the unjust

seizure of my property. Florida statute 713.78 is very clear that the only person that

can tow vehicles from private property are the Owner the owners representative or

a law enforcement officer. The statutes are very clear that a code enforcement

officer is not a law enforcement officer and therefore is not authorized to tow

vehicles from private property.

any

TABLE OF CONTENTS

STATEMENT OF INTERESTED PERSONS...........................

2

STATEMENT REGARDING ORAL ARGUMENT..... .

3

TABLE OF CONTENTS................................................

4

TABLE OF AUTHORITIES.....................................................

5

JURISDICTIONAL STATEMENT...........................................

6

STATEMENT OF ISSUES ON APPEAL...................................

7

STATEMENT OF THE CASE.......................................

8

COURSE OF PROCEEDINGS AND DISPOSITION BELOW.

8

STATEMENT OF FACTS............................................

STANDARD OF REVIEW.....................................

SUMMARY OF ARGUMENT...........................................

ARGUMENT..........................................................

CONCLUSION........................................

CERTIFICATE OF COMPLIANCE WITH FED.R. APP.P.32(a)

CERTIFICATE OF SERVICE.............

4

9

15

17

19

33

35

36

TABLE OF AUTHORTTTFS

Cases

Bell Atlantic Corp v. Twombly,

550 U.S 408, 544 (2007)................................................

16

Monell v. Dept ofSocial Services,

436 U.S 658, 98 S. Ct. 2018, 56L.Ed.2d611 (1978)..............

20

Post v. City ofFort Lauderdale,

750 F. Supp. 1131, 1132-33 (S.D. Fla 1990)..........................

20

Hutton v. Strickland, 919 F,2d 1531, 1536(11th Cir.1990)......

22

Simms v. Metropolitan Dade County

972 F.2d 1230, 1234-35 (11th Cir. 1992)................................

22

Hartv. United States, 894 F.2d 1539. 1548 (11th Cir. 1990)...

27

Monell v. New York City Dept ofSocial Services.

436 U.S. 658 692...............................................

28

Pembaurv, Cincinnati 475 U.S. 469, 480-481

28

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)

29

Griffin IT inc. Media v. Intelligente Corp,

No. 07-80535-CIV, 2009 WL162754 (S.DFla. Jan 16, 2008)..

30

Compama Interamericana Export-import S.A. v Compania Dominicana de

Aviacion, 88F.3d 948, 951-952 (11th Cir. 1996)..........................

30

Longhini v. Haydau. Inc.

No. 17-230330- CV, 2017 WL 1401316, at *1 (S.D. Fla. Apr, 19, 2017

Locasiov. U.S. 473 F.3d493, 495-96 (2nd Cir. 2007)....................

31

32

In re Holocaust Victim Assets Litigation, 2010 WL 4038794

(quoting Grinnell Corp, 384 U.S. at 583)...............................

Rabkin v. Oregon Health Sciences Univ.

5

32

350 F.3d 967. 977 (9th Cir 2003)........................................

16

F, T v, Cantil- Sakauye,

No. 10-15248, F.3d2012 WL 76351

Cir. March 12 2012)

U.S. v. Laurienti, 611 F.3d 530, 551 (9h Cir 2010)

16

16

Federal Statutes

42 USC 1983,.......................................................

..11,20

United States Constitution 4th 5th and 14th amend.

11,24,25,28

Canon 2 ofJudicial Code of Conduct..................

33

Florida Statutes

Fla. Statute 715.07(2)(a)(3).................................

6

18

Fla. Statute 713.78 .......................................

.12,19

Fla Statute 768.28(6)(a)...........................

12,21

Fla Statute 715.07(2)(a)(3)..................................

..13,23

JURISDICTIONAL STATEMENT

Jurisdiction is proper in this case under 28 U.S.C. 1331, as this appeal arises from a

judgment dismissing Plaintiff Donnahue George case for failure to state a claim in

United States District Court for the Southern District of Florida. When Defendants

illegally entered Plaintiff Donnahue George premises under the color of law and

stole his vehicle. The court has appellate jurisdiction pursuant to 28 U.S.C 1291.

The District Court entered a final judgment dismissing Plaintiffs case on April 27,

2020. A notice of appeal was timely filed on April 30, 2020.

STATEMENT OF ISSUES ON APPF AT

(1) Whether the District Court erred by dismissing Plaintiff- Appellant

Donnahue George case for failure to state a claim when defendants were

P*"PP®rly served, and Plaintiff- Appellant Donnahue George was very

specific in his Amended complaint about Defendants unconstitutional

actions. The Defendants entered Plaintiff Donnahue George premises

illegally under the color of law and stole his personal property, thereby

denying him his constitutional rights to do process and violating his

constitutional rights against unjust seizure of his property.

(2) Whether the District Court erred by setting aside the Clerks entry of Default

and not issuing the Default Judgment, when it was filed before defendants

filed motion to set aside Clerks entry of Default. Defendants were properly

served and (1) the defaulting party didn’t have a meritorious defense (2)

the default was culpable and willful; and (3) and setting it aside prejudice the

Plaintiff-Appellant

(3) Whether the District Court erred by striking the Defendants separate motions

to dismiss and ordering that they file a joint motion to dismiss, unless they

had conflicting interests, and issuing orders before plaintiff has time to

respond, which gives the impression that the District court is acting like co­

counsel for the defense and becoming the architect of the defendants defense

strategy and denying Plaintiff Donnahue George Constitutional rights to a

fair and impartial trial.

STATEMENT OF THE C ASF

1. COURSE OF PROCEEDINGS AND DISPOSITION BELOW

Plaintiff Donnahue George filed a complaint against Defendants William Snyder,

Westway Towing and Fort Lauderdale code enforcement on July 22, 2019. It was

dismissed for failure to state a claim 2 days later July 24, 2019. Plaintiff Donnahue

George filed an amended complaint on October 21, 2019. All defendants were

properly served and never answered the amended complaint. On November 6,

2019 plaintiff Donnahue George filed a motion for Clerks entry of Default. On

November 8, 2019 plaintiff Donnahue George filed a motion for Default Judgment

in person, but for some reason it wasn’t entered for 4 days On November 12, 2019

During the 4 days when Plaintiff Donnahue George Motion for Default Judgment

was lost even though he personally walked it into the Clerk of the Court. The

Default Judgment was never entered. The defendants who never answered the

Amended Complaint became aware of the Clerks entry of Default and the Motion

for Default Judgement and filed Attorney appearances. Defendants filed motions to

set aside the Clerks entry of Default and the District Court granted the motion and

set aside the clerks entry of default without giving Plaintiff Donnahue George time

to file his opposition motion, This denied plaintiff Donnahue George his due

process rights to a fair hearing on the motion and eroded the Plaintiffs confidence

in the impartiality of the Judiciary.

2. STATEMENT OF FACTS

Plaintiff Donnahue George states that on March 18, 2019 at approximately

0930. Defendant William Snyder a city employee without any legal

authority to enter private property and with the assistance of Westway

towing who was a state actor stole my perfectly running covered limo out of

my paved driveway. Plaintiff Donnahue George has presented proof that

Defendant William Snyder then submitted an erroneous report to Fort

Lauderdale Code enforcement stating that the vehicle was derelict and that

he did not know who the owner was (See ECF/Tab#l 1 Exhibit B) Yet

Defendant and state actor Westway Towing submitted a title search that they

ran on plaintiffs car that same day and time that lists the plaintiff as the

owner and the car was registered at the address from where it was towed.

(see ECF/Tab #25 exhibit 2). Plaintiff Donnahue George does not allege that

he filed a police report. Plaintiff Donnahue George states that he went to the

Fort Lauderdale Police department to file a report and that police officer

Rivera Shield # 1625 informed Plaintiff Donnahue George that his car was

found abandoned on NE 5th street and NE 2nd ave. Plaintiff Donnahue

George has no idea who reported his vehicle abandoned in the street but

10

after a discovery period plaintiff is confident that the Fort Lauderdale Police

department has accurate records. Defendant William Snyder and Defendant

and state actor Westway entered my property illegally with the intent to

trespass of chattel, violated Plaintiff Donnahue George constitutional rights

arising under the 4th, 5th and 14th amendments plus 42 USC 1983, by

committing grand theft auto, fraud, trespass, trespass of chattel, intentional

infliction of emotional distress and conversion.

As demonstrated below, Plaintiff Donnahue George claims should be

granted in its entirety because:

Firsf, Fort Lauderdale Code Enforcement is an entity that is capable of being

sued because the process server informed me that the statute required her to

serve the director of Code enforcement, and even if the courts even wanted

to entertain that allegation, the City of Fort Lauderdale is on notice and has

had ample time to provide an answer and defense. Plaintiff Donnahue

George added John Doe to his Complaint because he knew after discovery

there would be more defendants. It is a veiy simple issue to add City of Fort

Lauderdale as a defendant if that will make the Defendant happy.

Second, to the extent that Plaintiff Donnahue George does state a claim

against defendant William Snyder who was supposed to be acting in his

official capacity as a City of Fort Lauderdale employee, Westway Towing

li

who was acting as an agent for the state. Plaintiff Donnahue George notified

Fort Lauderdale Police Department, Fort Lauderdale Code enforcement, Fort

Lauderdale City hall and Broward county commission on June 24. 2019 (See

exhibit C) in complete compliance of pre-suit requirements 768.28(6) (a),

Fla. Stat. (2017) warranting this court granting all of plaintiff Donnahue

George claims.

Third, Plaintiff Donnahue George claims are very specific and the facts are

overwhelming. Defendant William Snyder and state actor Westway Towing

entered my property illegally and with the assistance of state actor Westway

Towing stole my perfectly good running limo that was clean and covered

and legally parked on my paved driveway. While Defendant William Snyder

and state actor WestWay Towing were in the process of stealing my vehicle

in violation of Florida towing statutes 715.07 (2) (a) (3) which is a felony,

and Florida statute 713.78 which is very clear that the only person that can

tow vehicles from private property are the Owner the owners representative

or a law enforcement officer. The statutes are very clear that a code

enforcement officer is not a law enforcement officer and therefore is not

authorized to tow any vehicles from private property. Plaintiff Donnahue

George neighbors saw Defendant William Snyder and immediately called

Plaintiff. I had my neighbor put Defendant William Snyder on the phone and

12

I explained to him that he did not have my permission to remove my legally

parked covered car from my paved driveway. State actor Westway towing

and William Snyder then stole my vehicle. Defendant William Snyder then

submitted an erroneous report with his department (see ECF/Tab #11 exhibit

B) which he signed stating that a vehicle on private property was derelict

and that he did not know who the owner was. He knew it wasn’t derelict he

knew who the owner was and he still removed the vehicle from my private

property and lied about it. Westway towing have provided me with

documentation(See ECF/Tab #25 exhibit 2) that proves that they knew who

the owner of the vehicle was, they knew it was registered at that address and

they still towed the vehicle in violation of Florida Towing Statutes. They

were in possession of the correct information and Defendant William Snyder

still submitted that report to his department alleging that the vehicle was

derelict and he did not know who the owner was. This is further evidence

that the fraud perpetrated by Defendant William Snyder and Defendant

Westway Towing was deliberate, intentional and willful. Florida Statute

715.07 (2)(a)(2) states that if you tow a vehicle in the state of Florida

without the owners permission you haveTo notify the local police

department in 30 minutes. Violation of this statute is a misdemeanor.

Nobody notified Fort Lauderdale police department in 30 minutes in

13

violation of Florida state statutes, instead someone notified Fort Lauderdale

police department dispatcher that they found my vehicle abandoned in the

street blocks from my house.

Fourth, Plaintiff specifically states a cause of action against Defendant

William Snyder, state actor Westway Towing and Fort Lauderdale Code

enforcement. Defendant William Snyder and state actor Westway Towing

had no legal reason to enter my property and steal my vehicle. The City of

Fort Lauderdale as the employer of Defendant William Snyder is responsible

for training him and supervising his actions. Its obvious to a reasonable

person that either they failed in training him properly, supervising him

properly or both. By entering my property to commit a felony by stealing my

vehicle and then fabricating evidence to cover up the felony, Defendant

William Snyder and state actor Westway Towing committed Grand theft

auto, trespass, trespass of chattel, fraud and conversion. Only through a court

ordered discovery period will we be able to determine if this was a one-time

incident, or a pattern of behavior that has been going on unsupervised and

unchecked for years.

Fifth, Plaintiff Donnahue George spoke to Defendant William Snyder while

he was in the process of towing my car and explained to defendant William

Snyder that he did not have my authority to remove my perfectly running

14

covered vehicle from my paved driveway. Defendant William Snyder hung

up on plaintiff Donnahue George and proceeded to steal the plaintiffs

vehicle. The plaintiff Donnahue George felt weak and helpless at that point

because there was nothing he could do to stop Defendant William Snyder

from violating his Constitutional rights. The emotional helplessness that

Donnahue George felt at that point cannot be overstated, and then to return

home and see that his vehicle is missing, and then to add insult to injury to

be informed by Officer Rivera shield# 1625 that his vehicle was found

abandoned in the road sent Plaintiff Donnahue George in a sense of panic

and he immediately went to Fort Lauderdale code enforcement to find out

what was going on. Defendant William Snyder handed Plaintiff Donnahue

George a paper stating that he did not know who the owner of the vehicle

was and that it was derelict. Plaintiff Donnahue George told defendant

William Snyder that he knows who owned it because you spoke to me while

you were towing it and you hung up on me. Defendant William Snyder just

walked away.

3. STANDARD OF REVIEW

The Standard of Review is Abuse of Discretion. “ An abuse of

discretion is a plain error, discretion exercised to an end not justified by the

evidence, a judgement that is clearly against the logic and effect of the facts

15

as are found (seeRabkin v. Oregon Health Sciences Univ. 350 F.3d 967. 977

(9th Cir 2003)

In some cases the court has elected not to decide which standard of review is

applicable on the ground that the outcome would not be changed by

applying different standards of review (See E, T v, Cantil- Sakauye, No. 1015248, F.3d2012 WL 76351 (9th Cir. March 12 2012) U.S. v. Laurienti, 611

F.3d 530, 551 (9th Cir 2010)

The Law states to defeat a motion to dismiss under Rule 12(b) (6), a

plamtiff bears the burden of providing grounds of his entitlement to relief. In

Bell Atlantic Corp v. Twombly 550 U.S. 544 (2007) the courts held that

there must be sufficient facts in a complaint to state a claim to relief that is

plausible on its face for it to avoid dismissal for failure to state a claim.

Plaintiffs Donnahue George facts are plausible on its face to state a claim for

relief.

For all these reasons, this honorable Court should reverse the District Courts

dismissal of the case reverse the District court order setting aside the Clerks

entry of default enter the default Judgment and setting the line that Judges

cannot cross so it does not give the appearance that the Court is acting as

Co-counsel for the defense.

16

SUMMARY OF THF ARGUMENT

The District Court’s decision should be reversed because its legal conclusion is

contrary to the facts and the law. Plaintiff Donnahue George filed an initial

complaint on July 22, 2019, the complaint that was not specific enough because

Plaintiff Donnahue George did not want to give the defendants all the evidence that

he had. Just 2 days later on July 24, 2019(See ECF/Tab# 7) The District Court

Judge said it was not specific enough and Dismissed it for failure to state a claim

for which relief can be granted. Plaintiff Donnahue George filed an Amended

complaint(See ECF/Tab #11) and was veiy specific and detailed about the actions

of the defendants. The District Court Judge obviously accepted it as legally

sufficient to state a claim for which relief could be granted, because District Court

did not dismiss the Amended Complaint in 2 days as they did the prior complaint.

The District Court Judge is now reversing his own decision. After the Defendants

Attorneys got involved all of a sudden the Amended Complaint failed to state a

claim for which relief can be granted.

Plaintiff Donnahue George served the defendants with the amended complaints

and when they did not answer, Plaintiff Donnahue George filed for a clerks entry

of Default (See ECF/Tab # 13). On November 18, 2018 Plaintiff Donnahue George

presented himself to the clerk of the court and filed his Motion for default

Judgment.(see ECF/Tab # 22) Somehow it took 4 days for the Plaintiffs Motion for

17

Default judgment to be entered in the system, but during those 4 days while

Plaintiffs Default Judgment motion was sitting somewhere, the defendants

Attorneys were notified about the Notice of Default and the Default Judgment and

entered Notice of Attorney Appearance.(See ECF #20 and #21) The Defendants

never answered the Amended Complaint but after the Clerks entry of Default was

entered and the Motion for Default Judgment was filed, somehow miraculously

Defendants became aware of the Lawsuit. Defendants filed a motion to set aside

the Clerks entry of Default (See ECF/Tab # 25). Before Plaintiff Donnahue George

had an opportunity to file his opposition to the motion for setting aside the default.

The District court judge set aside the Clerks entry of default on both parties,

denying Plaintiff Donnahue George his constitutional rights to a fair an impartial

hearing on the motion.(See ECF/Tab #27)

Defendants filed separate motions to dismiss but the District Court Judge striked

the motions and ordered Defendants to file a joint motion to dismiss.(see ECF/Tab

#36) Telling them they should only file separate complaints only if they have

conflicting interests. The Judge actions were more like a co-counsel for the

Defense not an impartial advocate for justice. If no papers were filed about who

did what and why, How could an impartial court determine whether or not the

Defendants had conflicting interest. The District court Judge was being the

Architect of the Defendants Defense. I believe that the purpose of the joint motion

18

was to try to cloud the constitutional violations by Defendant William Snyder who

entered my property illegally under the color of law and stole my vehicle and then

submitted fraudulent paperwork to his department to cover up the theft. Westway

towing as a state actor can violate my constitutional rights while acting as an agent

for the City.

Defendants then filed a Joint motion for Dismissal with prejudice (See ECF/Tab #

39). Plaintiff Donnahue George filed a motion in opposition (See ECF/Tab # 40)

There was absolutely no evidence to support the dismissal of my case for failure to

state a claim, The District Court Judge granted the Motion to Dismiss with

prejudice making it a final disposition See ECF/Tab #42) Plaintiff Donnahue

George filed a timely Notice of Appeal on April 30, 2020.

ARGUMENT

I.

The District Court erred by Dismissing Plaintiffs Amended

Complaint for Failing to state a claim for which relief can hp

granted.

Fort Lauderdale Code Enforcement is an entity capable of being SUed and

the case should not have been dismissed.

Fort Lauderdale Code Enforcement was the employer of Defendant William

Snyder and was responsible or supervising and training him. Monell v.

Dept ofSocial Services, 436 U.S. 658. 98 S. Ct. 2018, 56 L. Ed. 2d 611

19

(1978), the Supreme Court held that "municipalities and other local

government *1132 units" are "persons" subject to liability for violating 42

U.S.C. § 1983. Defendant Fort Lauderdale Code enforcement violated my

rights under 42 U.S.C 1983 through the actions of their employee William

Snyder so they are units and persons subject to liability under the law.

In Post v. City ofFort Lauderdale 750 F. Supp. 1131, 1132-33 (S.D. Fla.

1990) The Courts held that until the court is apprised of the factual

involvement of the defendants they will remain parties in the case. There has

not been enough evidence presented for the court to know the factual

involvement of Fort Lauderdale Code enforcement and therefore Fort

Lauderdale Code enforcement should not be removed from the lawsuit. They

were specifically the ones required to train and supervise defendant William

Snyder. There should be a discovery period to determine how complicit Fort

Lauderdale Code enforcement was in illegal felony actions of Defendant

William Snyder. Plaintiff Donnahue George agrees with Defendant that The

City of Fort Lauderdale should be added as a defendant in this lawsuit.

1 Plaintiff Donnahue George has Comniled with Pre-suit Requirement*

and Thus all his Allegations in his Amended Comnlaint Must he

Granted

20

Plaintiff Donnahue George is asserting state law tort claims and Federal

Constitutional Rights violation claims and has met the pre-suit requirements

in 768.28(6)(a), Fla. Stat. (2017). Plaintiff Donnahue George on June 24,

2019 notified Fort Lauderdale code enforcement, The Fort Lauderdale

Police department, Fort Lauderdale City Hall and the Broward County

Commission (See ECF/Tab #40) No one responded. Plaintiff Donnahue

George notice to the appropriate agency was within the 3 years as required

by statute. In section 768.28, the Florida legislature has waived the

sovereign immunity of the state and its subdivisions from tort action

provided, among other things, that the claimant present a written claim to the

appropriate agency within 3 years after the accrual of the claim.

The Actions of Defendant William Snyder goes outside the norms of

Qualified Immunity and as to his actions so there is no pre-suit prerequisite.

In Hutton v. Strickland, 919 F.2d 1531,1536 (11 Cir. 1990) the courts state

that Qualified immunity protects government officials performing

discretionary functions from civil liability if their conduct violates no

“clearly established statutory or constitutional rights of which a reasonable

person would have know”. A reasonable person would know that they

should not enter a persons property to steal someone elses property .A

reasonable person would know that entering a property with the intent to

21

commit a crime is trespass and would violate a persons constitutional rights.

A reasonable person would know that if you fabricate evidence to cover up a

crime that would be fraud. Defendant William Snyders actions were clearly

outside the Norms of Qualified Immunity.

A Plaintiff facing Qualified Immunity must produce evidence that would

allow a fact finder to find that no reasonable person in the defendants

position could have thought the facts were such that the justified the

defendants actions. (See Sims vMetropolitan Dade County,972 F.2d 1230,

1234-35 (11th Cir. 1992) Defendant William Snyders actions were clearly

outside the norms of qualified immunity and a fact finder would that no

reasonable person would find the fact that he fabricated evidence to cover

up his crime justified.

2 gk»Ptiff Donnahue George has Stated a Claim Upon Which Relief can

be Granted and all the Allegations in his Amended Complaint should be

Granted

The facts that Plaintiff Donnahue George has asserted state veiy specific

facts about the actions of Defendant William Snyder and the theft of

Plaintiffs vehicle from his paved driveway in front his house. Florida state

statute 715.07 (2)(a)(3) states that if a person is removing a vehicle or vessel

22

from the premises or parking lot in which the vehicle is not lawfully parked

must stop when a person seeks return of the vehicle. Violation of this statute

is a Felony. First Defendant William Snyder had no legal authority to enter

my premises and remove the vehicle from the premises, and while he was

unlawfully removing the vehicle from my property I told him to stop and he

did not. He hung up the phone on me and continued to commit 2 felonies

first grand theft auto second violation of Florida statute 715.07(2)(a)(3)

which is also a felony. Defendant Fort Lauderdale Code enforcement was

responsible for the supervision and training of Defendant William Snyder so

they are culpable for his actions.

Defendant William Snyder in his own fraudulent paperwork establishes the

date and time that he trespassed on my property and stole my vehicle.(see

ECF/ Tab #11 Exhibit B) Florida statute 18-3 definitions establishes that

derelict means any motor vehicle or vessel which is in a state of evident

disuse , neglect or abandonment is wrecked or partially dismantled having

no motor. My vehicle was working running and cleaned and covered in my

paved driveway it was clearly not a derelict vehicle according to the

definition established by the State of Florida. Defendant William Snyder

stole plaintiffs perfectly running vehicle with the assistant of state actor

Westway towing and then fabricated evidence to cover up the theft. A

23

reasonable person would know that Defendant Williams Snyders action were

illegal and outrageous and the fact that he lied in his paperwork to his

department is further proof that he knew that his actions were illegal and

outside accepted norms.

3. Plaintiff Donnahue George States Multiple Causes of Actions Against

Defendant William Snyder and Westwav Towing and All his Allegations

are supported bv Facts.

Plaintiff Donnahue George Fourth, Fifth and Fourteenth Amendment rights

were violated by Defendant William Snyder and Westway Towing acting as

employee and agent of the state. Defendant Westway towing own submitted

evidence proves that I was the owner of the vehicle (see ECF/Tab #25

Exhibit 2) and the trespass of my property with the intent to steal my vehicle

under the color of law violated my Fourth, Fifth and Fourteenth Amendment

rights

The 4th Amendment provides: The right of the people to be secure in their

persons, houses, papers, and effects against unreasonable search and seizure.

Defendant William Snyder along with Westway Towing entered my

property unlawfully stole my vehicle under the color of law and then

fabricated evidence to cover up the theft

24

The Fifth Amendment provides: that no person shall be deprived of life ,

liberty or property without due process of law. Defendant William Snyder

along with Westway towing entered my property stole my vehicle gave me

no advance warning of the theft and due process but most thieves do not tell

you in advance that they are coming to steal your property. He stole my

vehicle under the color of law.

The 14th Amendment provides : All persons bom or naturalized in the

United States , and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. Nor shall any state

deprive any person of life liberty or property without due process of law:

Defendant William Snyder along with Westway towing as agents of Fort

Lauderdale Code Enforcement denied me the due process of the law by

stealing my vehicle under the color of law and when caught in the act of

stealing my vehicle by my neighbors simply hung up the phone on me and

continued with the theft. There was no due process of law as required by the

Constitution but as stated before a thief is not going to give you advance

notice that they are going to steal. There is no ordinance that allows a Code

enforcement Officer to enter private property to steal a vehicle with or

without prior notice. The defendant can cite all the cases that they want

regarding neutrality of ordinances but in this particular case there was no

25

ordinance that was followed. Defendant William Snyder entered my

property by trespass stole my vehicle and then lied to cover up the theft.

There is no ordinance or statute that allows him to steal my property.

4 gfelintiff Donnahue George States a Cause of Action For His Emotional

Distress.

In order for Plaintiff Donnahue George to state an action for intentional

infliction of emotional distress a complaint must allege four elements. These

elements do not have to be proven in the complaint. Plaintiff Donnahue

George must allege (1) reckless or deliberate infliction of Mental suffering

(2) outrageous conduct (3) the conduct caused the emotional distress (4) the

distress was severe

In regards to (1) Defendant William Snyder in conspiracy with Westway

towing reckless and deliberately trespassed on my property and stole my

vehicle under the color of law. When I asked Defendant William Snyder to

stop stealing my vehicle he just hung up the phone on me leaving me

helpless without any recourse . Defendant William Snyder intentionally

caused me mental suffering.

In regards to (2) The fact that Defendant Williiam Snyder and Westway

Towing trespassed on my property and stole my vehicle and then lied to

26

cover up the theft, a reasonable person would find that conduct to be

outrageous.

In regards to (3) The actions of Defendant William Snyder and Westway

towing entering my premises illegally with the intent to steal my vehicle was

the actual cause of my mental distress

In regards to (4) the distress was very severe because I did not know what to

do I was not in a position to do anything at the time and when I went to the

police station and they told me my car was found abandoned in the street I

was distressed. I attempted to call Westway Towing and after I gave them

the vin # for my vehicle they just put me on hold and never came back on

the phone putting me in further distress. Hart v. United States, 894 F.2d

1539,1548 (11th Cir. 1990)

The Defendant William Snyders own fraudulent papers state that the vehicle

was stolen from my house plus he also has pictures of my vehicle before he

stole it under the color of law.

5. Plaintiff Donnahue Genri ■c States a Cause of Action Under 42 ILS.r

1983

27

To state a cause of action under section 1983 a plaintiff must allege two

elements (1) Challenged conduct by a person acting under the color of law

(2) challenged conduct that deprived the plaintiff of federal rights.

In regards to(l) Defendant William Snyder trespassed on my property under

the color of law as a Code enforcement officer and stole my perfectly good

running vehicle that was clean and covered and parked on my paved

driveway.

In regards to (2) By stealing my vehicle Defendant William Snyder and

Westway Towing deprived Plaintiff Donnahue George of his 4th , 5th and 14th

Amendment rights.

A Municipality may not be held liable under 1983 Solely because it

employs a tortfeasor (see Monell v New York City Dept ofSocial Services

436 U.S. 658, 692 instead the plaintiff must identify municipal policy or

custom that caused the injury (See Pembaur v Cincinnati 475 U.S. 469,

480-481. Until plaintiff is given an opportunity to submit interrogatories and

depose other City employees plaintiff will not be able to establish if this

a one time incident or if the Fort Lauderdale Code Enforcement has

established customs and or policys that allow code enforcement officers

think they can just trespass and steal citizens personal property.

28

was

In Burton v. Wilmington Parking Authority, 365 US. 715 (1961) The

courts said that “Constitutional standards are invoked when it can be said

that the State is responsible for the specific conduct to which the Plaintiff

Complains The Court also said a challenged action may be state action

when it results from the states exercise of coercive power, when the state

provide significant encouragement, either covert or overt or when a private

actor operates as a willful participant in joint activity with the state. Fort

Lauderdale code enforcement hired William Snyder as Code enforcement

officer and therefore was responsible for his actions. Westway towing

entered my property and stole my vehicle under the supervision of William

Snyder therefore Westway towing was a state actor and violated my

constitutional rights to due process under the law Violating my 4th 5th and

14th amendment rights along with William Snyder.

Florida statute 713.78 is very clear that the only person that can tow vehicles

from private property are the Owner the owners representative or a law

enforcement officer. The statutes are very clear that a code enforcement

officer is not a law enforcement officer and therefore is not authorized to

tow any vehicles from private property.

IL

The District Court erred by setting aside the clerks entry of default

and not entering the default judgment

29

Federal Rule of Civil procedure 55 (c) allows the court to set aside the clerks

entry of default “ for good cause shown” The court is vested with

considerable discretion to set aside an entry of default. (See Griffin IT, Inc

Media v. intelligente Corp., No. 07-80535-CIV, 2009 WL162754, at *2

(S.D. Fla. Jan 16, 2008) The Eleventh Circuit reasoned: that if a party

willfully defaults by displaying either an intentional or reckless disregard for

the judicial proceedings, the courts need make no findings in denying relief.

(See Compania Interamericana Export-import, S.A. Compania

Dominicana deAviacion, 88 F.3d 948, 951-952 (11th Cir. 1996)

1. The Defendants Fort Lauderdale Code enforcement and William Snyder

showed a willfull and intentional disregard for the judicial proceedings

by being properly served and never answering any of plaintiffs motions.

They were legally served with the motion to reopen the case and did

nothing. They were also legally served with the Amended Complaint and

did nothing. Only after Plaintiff got the entry of Default on November 7,

2019 and filed his motion for Default Judgment on November 8, 2019

did the Defendants respond to this lawsuit. They did not do anything until

7 days after the entry ofjudgment was signed by the clerk.

2. To determine whether good cause exists , the Court may consider (1)

whether the defaulting party presents a meritorious defense (2) whether

30

the default was culpable or willful; and (3) whether setting it aside would

prejudice the adversay. (See Longhini v. Hayday. Inc., No. 17-230330CIV, 2017 WL 1401316,. at *1 (S.D. Fla. Apr. 19, 2017)

3. In regards to (1) the defendants do not have a meritorious defense to their

actions they violated Florida civil Statutes and Penal Statutes by entering

my property and stealing my vehicle. They then fabricated evidence to

cover up the theft. William Snyder submitted a report that he did not

know who the owner of the vehicle was and that it was a derelict vehicle,

(see ECF/Tab #11 exhibit B) when he knew exactly who the owner was

and knew it was not a derelict vehicle. Someone also committed fraud by

notifying Fort Lauderdale police department that they found my vehicle

abandoned in the street far away from my house. If they had a

meritorious defense for their actions they would not have to fabricate

evidence to justify their actions

4. In regards to (2) The default on the part of the defendants was culpable

and willful. They were served with the motion to reopen the case and

then refused to respond. After the courts reopened the case they were

again served with the amended motion and they still refused to respond.

They willfully and intentionally refused to respond to the motions filed

by the plaintiff when they were properly served.

31

5. In regards to (3) The plaintiff would be unduly prejudice because the

defendants had more than enough time to respond to the plaintiffs

motions and refused to do so in a timely manner.

In-

The District Court erred by striking Defendants Separate Motions

to Dismiss and ordering them to file a joint motion.

The Defendants William Snyder and Fort Lauderdale Code filed a motion

to dismiss( See ECF#34) and Westway Towing filed a separate motion to

dismiss see (ECF#35). The District Court Judge ordered that the separate

motions for dismissal are to be striked. The Judge ordered the Defendants

to file a joint motion to dismiss unless they had conflicting interests.

The Defendants had not filed an Answer to the Complaint how could the

judge determine if they had or didn’t have conflicting interests. In

Locasio v U.S. 473 F.3d 493, 495-96 (2nd Cir. 2007) “The courts should

not display a deep seated favoritism or antagonism that would make fair

judgment impossible The courts held in In re Holocaust Victim A.ssets

litigation,2010 WL 4038794 (quoting Grinnell Corp, 384 U.S. at 583)

personal bias is an attitude arising from extrajudicial sources that results

“ in an opinion on the merits on some basis other than what the judge

learned from his participation in the case” The District had learned

nothing from the case because no answers were filed but the District

32

Court was giving defense strategies to the defendants ( See ECF/Tab#27)

and issuing orders before Plaintiff had an opportunity to respond ( see

ECF/ #28 and #29) Canon 2 of the Judicial Code of Conduct requires

federal Judges to” respect and comply with the law” and to “ act at all

times in a manner that promotes public confidence in the integrity and

impartiality of the judiciary. If the District Court is giving Defendants

defense strategies and making decisions without giving plaintiff time to

respond, How can these actions promote public confidence in the

integrity and impartiality of the judiciary.

The District Court stepped out of the shoes of impartial pursuer of justice

and became a part of both defense teams. The District Court was

coaching the Defendants on how to prepare their Defense therefore

denying Plaintiff Donnahue George an opportunity to have a fair and

impartial trial.

CONCLUSION

Wherefore Plaintiff Donnahue George respectfully submits that his

Amended Complaint was legally sufficient and stated a claim by which

relief could be granted. The defendants were properly served and the Clerks

entry of default should not have been set aside, and the default judgment

should have been entered. The District court should not be giving defense

33

strategies to the defendants or making decisions before Plaintiff has an

opportunity to respond, giving the appearance the court is co-counsel for the

defense. For all the reasons presented Plaintiff requests that this Honorable

Court reinstate the Clerks entry of Default order the lower court to enter the

Default Judgment, reverse the District Courts Dismissal of Plaintiffs case

and grant plaintiff Donnahue George all he asked for in his amended

complaint, require Fort Lauderdale Code enforcement to release their code

enforcement training manual and whatever else the courts find fair and

equitable.

Respectfully Submitted

Date May'S, 20x0

Donnahue George

1012 NW 2nd Street

Fort Lauderdale FI

33311

(347)216-5257

Email: DonnahueGeorge@gmail.com

34

CERTFICATE OF COMPLIANCE WITH FED .R.APP.P.32(a)

1. This brief complies with the type-volume limitations of Fed. R. App.P.

32 and Fed. R. P. 29 because it is less than 30 pages.

2. This brief complies with the typeface requirements of Fed.R. App. P.

32(a)(6) because it has been prepared in a proportionally- spaced

typeface using Microsoft Word in 14- point Ti:

ewiRoVnan

Dated May 5, 2020

DonnahuVoeorge

35

CERTIFICATE OF SFRVTCF

I Donnahue George certify that I mailed a copy of this Appellants Brief and

Appendix to the Clerk of the Court on May 5, 2020 and I also mailed a copy

to Richard Bergman 2001 Hollywood Blvd suite 200 Hollywood Florida '

3 3 02 0^

Micheal Bostick 100 N Andrews Ave Fort Lauderdale Florida 33301 and

Robert Oldershaw 100 N Andrews Ave Fort Lauderdale Florida 33301 on

May 5, 2020

Dated May 5, 2020

Donnahue/Gdorge

36

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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