Petition for Writ of Certiorari — Joe Carollo, Petitioner v. William O. Fuller, et al.

App. 1

2022 WL 333234

Only the Westlaw citation is currently available.

United States Court of Appeals, Eleventh Circuit.

William O. FULLER,

Martin A. Pinilla, II, Plaintiffs-Appellees,

v.

Joe CAROLLO, Defendant-Appellant,

John Does 1-10, et al., Defendants.

No. 21-11746

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Non-Argument Calendar

|

Filed: 02/04/2022

Appeal from the United States District Court for the

Southern District of Florida, D.C. Docket No. 1:18-cv24190-RS.

Attorneys and Law Firms

Rossana Arteaga-Gomez, Jeffrey W. Gutchess, Brandon

Perry Rose, AXS Law Group, PLLC, Joshua Jay Shore,

Krinzman Huss Lubetsky Feldman & Hotte, Miami,

FL, for Plaintiffs-Appellees.

Benedict P. Kuehne, Kuehne Davis Law, PA, Thomas

Emerson Scott, Jr., Cole Scott & Kissane, PA, Miami,

FL, for Defendant-Appellant.

Before WILLIAM PRYOR, Chief Judge, WILSON, and

ANDERSON, Circuit Judges.

App. 2

Opinion

PER CURIAM:

Joe Carollo, a City Commissioner, appeals a second time a denial of immunity from a complaint filed

by William O. Fuller and Martin A. Pinilla, businessmen from the Little Havana neighborhood of Miami,

who allege that Carollo repeatedly harassed them in

retaliation for their political support of his election opponent in violation of the First Amendment. See 42

U.S.C. § 1983. After briefing and oral argument, we dismissed Carollo’s first appeal for lack of jurisdiction because it challenged a nonfinal order that granted the

businessmen leave to amend their complaint. Fuller v.

Carollo, 977 F.3d 1012 (11th Cir. 2020). Fuller and

Pinilla amended their complaint, and the district court

granted a partial dismissal based on legislative immunity and denied a dismissal based on qualified immunity. We affirm.

I.

BACKGROUND

At this stage, we accept the allegations in the

amended complaint as true and construe them in the

light most favorable to the plaintiffs. See Keating v.

City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). We

need not rehash all the details of the proceedings that

led to their first appeal. We limit our review to the

allegations in the amended complaint that relate to

Carollo’s arguments for legislative and qualified immunity.

App. 3

In 2017, Carollo was a candidate for city commissioner for the district 3 that includes Little Havana.

Before the general election, he sought Fuller’s political

support and the two men appeared to have a good relationship. Carollo advanced to a runoff election

against Alfie Leon.

After early voting for the runoff began, Leon held

political rallies at a property Fuller owned that was

adjacent to an early voting center. Carollo’s campaign

chief of staff, Steve Miro, noticed Pinilla at the rallies

and notified Carollo. On the last day of early voting,

Miro saw Pinilla at a rally, called Fuller, and demanded

that he shut down the event. Carollo and Miro then

used contacts in city government to shut down the

rally. Carollo defeated Leon in the runoff election in

November.

Less than a week later, at Carollo’s direction, dozens of police, fire, building, and other officers raided

Sanguich de Miami, a restaurant where Fuller and

Pinilla were investors and landlords. Weeks later,

Carollo introduced and voted for Ordinance 13733,

which ended the temporary-use permits used to operate Sanguich. When Sanguich attempted to reopen,

city officials twice shut it down acting on direct orders

from Carollo and his associates. Carollo also targeted

Sanguich at the Gay 8 Festival where it operated as a

tent vendor. Carollo and Miro voiced concerns about

Sanguich selling contaminated food to a city fire inspector, who then performed an intrusive surprise inspection. Carollo did not target any other vendor at the

festival. Sanguich eventually relocated to a property

App. 4

not owned by Fuller and Pinilla and resumed operations without interference.

A month after the runoff election, Carollo also attempted to shut down Fuller and Pinilla’s office Christmas party. Carollo had Maria Lugo, a campaign

advisor and former city employee, demand that the director of code enforcement shut down the event for

lacking a special events permit. When an enforcement

officer reported that the event did not violate the code,

her supervisor (a friend of Lugo) instructed her to remain outside the event until it ended. Carollo also

complained to the assistant city manager, who instructed the director to attend the party in person. The

director later confirmed to Fuller that Carollo’s actions

were politically motivated.

Three months after the runoff, Carollo shut down

the one-year anniversary party of Union Beer Store after visiting the property with several police officers

and code enforcement officer. Fuller and Pinilla were

landlords for and partners in Union Beer.

That same month, Carollo also started harassing

the Ball & Chain nightclub, which Fuller and two

friends owned. Carollo and several associates visited

the club’s valet parking lot and photographed cars on

the pretense of performing an “official investigation” of

the operation. Later, Carollo visited residents of a

nearby building to solicit noise complaints against the

club. Carollo also conducted a “park-and-walk” with

city employees, including the acting director of code enforcement, to meet with a resident Carollo had prepped

App. 5

to make a noise complaint against the club. Carollo arranged the park-and-walk without the knowledge of

the city manager. Carollo later texted a parking complaint to the city manager, who in turn directed three

code officers and a police officer to force club employees

to move their cars from the club’s parking lot. The general manager of the club later discovered Carollo and

a member of the code enforcement board behind the

club attempting to solicit more noise complaints from

neighbors.

Carollo also used his official authority to harass

Fuller in other ways. For example, Carollo issued orders shutting down Domino Plaza, the customary site

of the monthly Viernes Culturales festival hosted by

an organization led by Fuller. And, after Carollo raised

concerns about Fuller-owned properties during a meeting of the city commission, the city attorney sent an

email to local administrators requesting a review of

records of and the inspection of properties discussed at

the meeting, most of which were owned by Fuller or his

associates or were related to Fuller’s businesses.

Fuller and Pinilla filed a complaint in the district

court alleging that Carollo retaliated against them in

violation of the First Amendment. See 42 U.S.C. § 1983.

Carollo moved to dismiss based on qualified immunity

and legislative immunity. A magistrate judge issued a

report and recommendation that the district court

grant Carollo’s motion in part and deny it in part. The

district court adopted that report and recommendation. And it granted Fuller and Pinilla leave to amend

their complaint consistent with the report and

App. 6

recommendation. We dismissed Carollo’s appeal of

that order for lack of jurisdiction. Fuller, 977 F.3d 1012

After remand, Fuller and Pinilla filed a second

amended complaint against Carollo. The amended

complaint repeated many of the allegations made in

the amended complaint.

Carollo moved to dismiss the amended complaint,

which the district court granted in part and denied in

part. Fed. R. Civ. P. 12(b)(6). The district court ruled

that Carollo enjoyed legislative immunity as to “the

passage of Ordinance 13733,” but that he lacked legislative or qualified immunity for the “multiple actions

directed solely at [Fuller and Pinilla] or directed at

others who did business with [them]” and where his

conduct “involve[d] code enforcement, something the

Eleventh Circuit has stated is administrative, not legislative.”

II.

STANDARD OF REVIEW

We review de novo the denial of a motion to dismiss based on immunity from suit. See Crymes v.

DeKalb Cty., Ga., 923 F.2d 1482, 1485 (11th Cir. 1991)

(legislative immunity); Keating, 598 F.3d at 762 (qualified immunity).

III.

DISCUSSION

We divide our discussion in two parts. First, we

discuss Carollo’s argument for legislative immunity.

App. 7

Second, we discuss Carollo’s argument for qualified immunity.

A. The District Court Did Not Err by Partially

Denying Carollo Legislative Immunity.

“Absolute legislative immunity extends only to actions taken within the sphere of legitimate legislative

activity.” Brown v. Crawford Cty., Ga., 960 F.2d 1002,

1011 (11th Cir. 1992) (internal quotation marks omitted). So, “[i]t is the official function that determines the

degree of immunity required, not the status of the acting officer.” Espanola Way Corp. v. Meyerson, 690 F.2d

827, 829 (11th Cir. 1982) (alteration adopted) (quoting

Marrero v. City of Hialeah, 625 F.2d 499, 508 (5th Cir.

1980)). To enjoy absolute immunity, the legislator must

engage in “[a] legislative act [that] involves policymaking rather than [the] mere administrative application of existing policies.” Crymes, 923 F.2d at 1485. The

act of “rulemaking . . . [is] legislative.” Id. But the enforcement of laws against “specific individuals, rather

than the general population, . . . [are] more apt to be

administrative” and excluded from protection under

the doctrine of legislative immunity. Id.

The district court did not err in partially denying

Carollo’s argument for legislative immunity. Fuller

and Pinilla’s amended complaint alleges that Carollo

exceeded the bounds of his legislative responsibilities

by repeatedly harassing their businesses. Carollo’s alleged enforcement actions were not legislative functions for which he was entitled to absolute immunity.

App. 8

Carollo argues that legislative immunity applies to

“matters arising out of his Commission votes,” but the

district court ruled that he was immune from suit for

actions related to the passage of Ordinance 13733. Carollo also argues that he is immune from suit for “introducing legislation to abolish the use of special

masters,” but Fuller and Pinilla deleted that allegation

from their amended complaint. Carollo identifies no

legislative function he allegedly performed for which

the district court denied him absolute immunity.

B. Carollo’s Argument for Qualified Immunity Fails.

Carollo’s argument for qualified immunity also

fails. Carollo argues that the district court erred in determining that his actions fell outside “the allowable

duties and functions of a City legislative policymaker.”

But the district court agreed that Carollo was acting in

his discretionary capacity as a city commissioner. Carollo also argues that an investigative report attached

to the complaint “rendered the[ ] First Amendment retaliation claims implausible,” but the district court declined to consider the hearsay in that report. See Jones

v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir.

2012). Carollo does not challenge that reasoning. And

Carollo identifies no legal error in the ruling that the

complaint against him alleges that he violated settled

law prohibiting officials from retaliating against constituents who engage in political activities protected by

the First Amendment.

App. 9

IV.

CONCLUSION

We AFFIRM the partial denial of Carollo’s motion

to dismiss.

App. 10

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 21-11746

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WILLIAM O. FULLER,

MARTIN A. PINILLA, II,

Plaintiffs-Appellees,

versus

JOE CAROLLO,

Defendant-Appellant,

JOHN DOES 1-10, et al.,

Defendants.

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Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:18-cv-24190-RS

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JUDGMENT

It is hereby ordered, adjudged, and decreed that the

opinion issued on this date in this appeal is entered as

the judgment of this Court.

Entered: February 4, 2022

For the Court: DAVID J. SMITH, Clerk of Court

App. 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-24190-CIV-SMITH

WILLIAM O. FULLER and

MARTIN PINILLA, II,

Plaintiffs,

v.

JOE CAROLLO,

Defendant.

/

ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANT’S MOTION TO DISMISS

(Filed May 13, 2021)

This matter is before the Court on Defendant

Commissioner Carollo’s Motion to Dismiss Second

Amended Complaint; Motion to Strike; Request for

Hearing [DE 154], Plaintiff ’s Opposition [DE 162], and

Defendant’s Reply [DE 167]. This case arises from Defendant’s alleged retaliatory conduct towards Plaintiffs after they supported Defendant’s opponent in an

election for City Commissioner. Defendant ultimately

won the election and Plaintiffs allege that since the

election Defendant has subjected Plaintiffs to a campaign of harassment in retaliation for Plaintiffs’ exercise of their First Amendment right, thereby violating

42 U.S.C. § 1983. For the reasons set forth below, the

Motion is granted in part and denied in part.

App. 12

THE SECOND AMENDED COMPLAINT1

I.

The Second Amended Complaint (“SAC”) alleges a

single count of First Amendment retaliation against

Defendant, in violation of § 1983. Plaintiffs seek monetary damages, including punitive damages, attorneys’

fees, and injunctive relief. Plaintiffs are local businessmen who own properties and businesses in the Little

Havana neighborhood of Miami. One of Plaintiff

Fuller’s businesses is the Ball & Chain nightclub. Together Plaintiffs are working on redevelopment and

restoration of the Tower Hotel.

In the summer of 2017, Defendant announced his

campaign for Commissioner for the City of Miami’s

District 3, which includes Little Havana. The election

required a run-off election between Defendant and another candidate, Alfie Leon. In November 2017, during

the early voting period for the run-off election, a rally

in support of Defendant’s opponent was held on property that Plaintiffs owned and which was located near

a voting center. Defendant allegedly used his contacts

at the City to have Code Enforcement Officers and police shut down the rally. The following day, the same

thing happened. Defendant won the election.

Under section 4(d) of the City of Miami Charter:

Except for the purpose of inquiry and as may

be necessary as provided in section 14, the

mayor, the city commission, any committees

1

The Second Amended Complaint is fifty-seven pages long

and contains 321 numbered paragraphs. Set forth below is a summary of the allegations.

App. 13

and members thereof shall deal with the administrative service solely through the city

manager, and neither the mayor nor the city

commission, nor any committees nor members thereof shall give orders to any of the

subordinates of the city manager, city attorney, city clerk and independent auditor general, either publicly or privately.

Thus, under the terms of the Charter, a commissioner

cannot give orders to any subordinates of the City

Manager; all orders should be directed to the City

Manager who has the authority to give direction to the

City departments.

According to the SAC, after Defendant won the

election, he began a campaign of retaliation against

Plaintiffs. Defendant immediately drew up a list of

Plaintiffs’ properties and associated businesses in District 3. Steve Miro, who had worked on Defendant’s

campaign, stated that “when [Defendant] took office

. . . he went after Mr. Fuller, obviously.” Orlando Diez,

the Director of Code Compliance, Construction Manager, Officer of Capital Improvements for the City of

Miami at the time, believed that Defendant, in an indirect way, told him to selectively target Fuller’s properties.

On December 15, 2017, Plaintiffs held their annual office holiday party at the Tower Hotel. Defendant

conspired with another City employee, Maria Lugo, to

shut the party down. Lugo repeatedly called and texted

Diez, as the Director of Code Enforcement, insisting

that he shut down the event because the party lacked

App. 14

a Special Events Permit. Diez sent a Code Officer to

the Tower Hotel to investigate. The Code Officer did

not identify any violations but was instructed to wait

outside until the party ended. Diez also received a call

from Assistant City Manager Alberto Parjus who directed Diez to go to the event himself because complaints were “coming from a Commissioner’s office.”

Diez went to the property with additional Code Enforcement Officers. When Diez spoke to Fuller, he told

Fuller that this was a political target and Defendant

was behind it.

In fall 2017 a sandwich shop, Sanguish de Miami

(“Sanguish”), opened on Plaintiffs’ property in a refurbished shipping container. Under the City Code the use

of shipping containers for retail business was permitted using Temporary Use Permits (“TUPs”). On November 26, 2017, less than a week after Defendant

won the election, Sanguish was raided by 25-30 City

enforcement personnel. After the raid, Fuller was contacted by City Manager Daniel Alfonso, who advised

that Code Enforcement had been summoned to the

property and, when asked if this was retaliation from

Defendant, Alfonso replied “si.” The owners of Sanguish also contacted Alfonso, who confirmed to them

that the raid was performed at the direction of Defendant. In December 2017, Defendant met with Sanguish’s owners and he told them they should relocate

from Plaintiffs’ property. Thereafter, at a December 14,

2017 City Commission meeting, Defendant inserted a

provision into another commissioner’s legislation that

would prevent TUPs from being used in District 3,

App. 15

Ordinance 13733. After additional run-ins with Code

Enforcement Officers, Sanguish ultimately relocated

to another location not owned by Plaintiffs. As a result,

Plaintiffs have suffered a loss of rental income and

other monetary damages.

Plaintiffs are the landlords of and partners in the

Union Beer Store in District 3. On February 10, 2018,

Union Beer held its one-year anniversary party in the

parking lot behind the store. Defendant appeared at

the property with police officers and approximately 1520 Code Enforcement Officers. Defendant then ordered

Code Enforcement to shut the party down.

On February 18, 2018, Defendant, and others, entered a parking lot used by the valet operator for Ball

& Chain, the nightclub owned by Plaintiff Fuller and

others. Defendant informed the valet attendant that

he was performing an “official investigation” of the

valet operation. When the operator of the valet business arrived, he told Defendant that the lot had been

approved by the Miami Parking Authority and that

the valet service had a valid lease with the lot owner.

Defendant then told the valet operator that “I am the

law” and that the operator was “working for a millionaire,” meaning Fuller, which was not acceptable to Defendant.

On March 3, 2018, Defendant called a Code Enforcement supervisor and requested that an Officer be

sent to District 3 because Defendant had concerns

about building permits. When the Officer arrived, Defendant asked to ride along with the Officer to point

App. 16

out five locations, three of which belonged to Plaintiffs,

at which Defendant wanted the Officer to search for

code violations. After the ride along, Defendant followed up with the Officer to see if any violations had

been issued. On March 14, 2018, Defendant arranged

for a “park-and-walk” with numerous City officials and

employees, in search of code violations.

On March 12, 2018, Plaintiff Fuller, through his

company The Barlington Group, filed an Ethics Complaint against Defendant with the Miami-Dade Commission on Ethics and Public Trust. While the Ethics

Complaint was pending, the alleged harassment of

Plaintiffs stopped. On August 13, 2018, Fuller withdrew the Ethics Complaint and the harassment began

again.2

On August 20, 2018, just after withdrawal of the

Ethics Complaint, Plaintiffs received a letter from the

city which included notice of a Code violation at one of

their properties where Plaintiffs intended to put a kiosk marketplace using retrofitted containers. Plaintiffs

had a lawful Farmer’s Market TUP for the marketplace. On September 4, 2018, the City informed Plaintiffs that it was revoking the TUP that allowed the

kiosks on the property. On September 12, 2018, an

emergency hearing was held at the Code Enforcement

Board Meeting, where the Board granted the City permission to enter the property and remove the kiosks.

2

Attached to the SAC as Exhibit A is the Miami-Dade Commission on Ethics & Public Trust Investigative Report (“Investigative Report”) that resulted from the Ethics Complaint.

App. 17

Also, after the Ethics Complaint was withdrawn,

Defendant reported false noise complaints and parking violations related to the Ball and Chain. Plaintiffs

maintain that Defendant also attempted to stop a

monthly neighborhood festival, with which they were

associated, by closing the venue, Domino Plaza, and

then reserving the plaza on the same days as future

festivals. Defendant has gone on local radio shows and

defamed Plaintiffs, claiming they are associated with

corrupt governments and investors.

At a February 14, 2019 City Commission meeting,

Defendant raised the issue of Code compliance but

only focused his presentation on Plaintiff ’s properties

in District 3. The presentation included false and misleading information about various Code violation on

Plaintiffs’ properties. The Commissioners passed a resolution calling for a task force to investigate Code compliance issues. After the meeting, the City Attorney

asked City administrators to inspect eleven properties,

seven of which were owned or affiliated with Fuller.

Several City officials expressed concern that this was

selective enforcement aimed against a business owner.

Plaintiffs have also learned that Defendant has engaged in a campaign to direct City officials to use City

resources and funds to purchase properties Plaintiffs

were attempting to purchase.

II.

PROCEDURAL HISTORY

On October 11, 2018, Plaintiffs filed their Complaint against multiple defendants, including

App. 18

Defendant Carollo. Thereafter, Plaintiffs filed an

Amended Complaint. The defendants filed motions to

dismiss the Amended Complaint, which were referred

to Magistrate Judge Louis for a Report and Recommendation. On April 30, 2019, Magistrate Judge Louis

issued her Report and Recommendation [DE 99]

(“R&R”).

The R&R, among other things, recommended that

Defendant’s motion to dismiss the Amended Complaint be granted, with leave to amend. The R&R found

that Plaintiffs have standing to bring their First

Amendment retaliation claim but recommended that

Plaintiffs be granted leave to amend to clarify the injuries for which Plaintiffs seek redress and to clarify

the nature of the injunction sought. The R&R also

found that Plaintiffs stated a claim upon which relief

can be granted for First Amendment retaliation. However, the R&R found that Defendant’s actions prior to

winning the election were not actionable and neither

were Defendant’s action regarding the enactment of

Ordinance 13733.

The R&R also declined to accept as true the hearsay statements contained in the Investigative Report

that resulted from the Ethics Complaint. While those

hearsay statements contradict some of the allegations

in the Amended Complaint, the R&R declined to consider them to disprove the allegations in the Amended

Complaint. The R&R also addressed Defendant’s defense of qualified immunity. The R&R found that, while

Defendant was acting within his discretionary authority, Plaintiffs had alleged that Defendant violated their

App. 19

constitutional rights, which were clearly established at

the time of his wrongful acts. Thus, Defendant was not

entitled to qualified immunity. On June 12, 2019, the

district court affirmed and adopted the R&R, granted

Defendant’s Motion to Dismiss, denied Defendant

qualified immunity, and permitted Plaintiffs to file a

second amended complaint.

On June 26, 2019, Defendant filed a Notice of Appeal as to the denial of qualified immunity. On June 28,

2019, Plaintiffs filed the SAC, dropping the other defendants and leaving only Defendant Carollo. As to Defendant Carollo, the SAC is nearly identical to the

Amended Complaint except for additional allegations

regarding Plaintiffs’ injuries and damages and the injunctive relief sought. On October 26, 2020, the Eleventh Circuit issued its mandate, in which it dismissed

the appeal for lack of jurisdiction because the district

court had granted the motion to dismiss with leave to

amend.

III. MOTION TO DISMISS STANDARD

The purpose of a motion to dismiss filed pursuant

to Federal Rule of Civil Procedure 12(b)(6) is to test the

facial sufficiency of a complaint. See Fed. R. Civ. P.

12(b)(6). The rule permits dismissal of a complaint that

fails to state a claim upon which relief can be granted.

Id. It should be read alongside Federal Rule of Civil

Procedure 8(a)(2), which requires a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Although a complaint challenged by a

App. 20

Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff is still obligated to provide the “grounds” for his entitlement to relief, and a

“formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007).

When a complaint is challenged under Rule

12(b)(6), a court will presume that all well-pleaded allegations are true and view the pleadings in the light

most favorable to the plaintiff. American United Life

Ins. Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir.

2007). However, once a court “identif[ies] pleadings

that, because they are no more than conclusions, are

not entitled to the assumption of truth,” it must determine whether the well-pled facts “state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678-79 (2009). A complaint can only survive a

12(b)(6) motion to dismiss if it contains factual allegations that are “enough to raise a right to relief above

the speculative level, on the assumption that all the

[factual] allegations in the complaint are true.”

Twombly, 550 U.S. at 555. However, a well-pled complaint survives a motion to dismiss “even if it strikes a

savvy judge that actual proof of these facts is improbable, and ‘that a recovery is very remote and unlikely.’ ”

Id. at 556.

IV. DISCUSSION

Defendant seeks to dismiss the SAC because: (1) it

does not state a claim upon which relief can be granted;

App. 21

(2) Plaintiffs lack standing to assert allegations

against Defendant on behalf of non-parties; (3) Defendant is protected by the doctrines of qualified immunity and legislative immunity; and (4) Defendant’s

actions prior to his election as a City Commissioner

cannot give rise to a civil rights claim. Defendant previously raised several of these arguments when he

sought to dismiss Plaintiffs’ Amended Complaint. Specifically, Defendant previously argued that Plaintiffs

lack standing, that Plaintiffs fail to state a claim, and

that he is entitled to qualified immunity. The Court, by

adopting the R&R, denied Defendant’s prior motion to

dismiss on these grounds. In addition to the Motion to

Dismiss, Defendant also seeks to strike the allegations

in six paragraphs of the SAC because they are “immaterial, impertinent, or scandalous matter.” The Court

will address each of these arguments.

A. Standing

Defendant argues that the SAC should be dismissed to the extent that it asserts claims on behalf of

non-parties. Plaintiffs respond that this Court has already determined that they have standing and, as far

as the claims of non-parties, Plaintiffs respond that the

SAC alleges the nonparties have assigned their claims

to Plaintiffs. Even if the non-parties have assigned

their claims to Plaintiffs, there are no claims of First

Amendment retaliation pled as to the non-parties.

Plaintiffs have not pled that the non-parties exercised

their First Amendment rights and were then retaliated against by Defendant. Thus, there is no alleged

App. 22

“claim” for the non-parties to assign. However, as the

Court has previously determined, Plaintiffs have adequately pled that they have standing and that the

damages Plaintiffs seek are not for the harm suffered

by non-parties but for the injuries suffered by Plaintiffs. As the R&R noted, “the conduct alleged to have

impacted nonparty entities are examples of [Defendant’s] retaliatory conduct towards Plaintiffs, as he

allegedly targeted all business that Plaintiffs are associated with.” (R&R at 7.) Consequently, Defendant’s

Motion is granted to the extent Plaintiffs seek to recover monetary damages allegedly suffered by nonparties; otherwise, the Motion is denied.

B. Failure to State a Claim

Defendant contends that the SAC fails to state a

claim for violation of § 1983 when the Investigative Report is considered. The Court has already held, in the

Order adopting the R&R, that it is not required to accept the statements and representations in the Investigative Report as true and that virtually the same

allegations in the Amended Complaint stated a valid

claim for First Amendment retaliation. The Court will

not revisit this ruling based on Defendant’s vague and

conclusory statement that the Investigative Report

shows that Defendant did not engage in retaliatory

conduct. In the instant motion, Defendant points to

nothing specific in the Investigative Report that would

undermine Plaintiffs’ claim. Given that the allegations of the Amended Complaint and the SAC make

App. 23

virtually identical allegations in support of Plaintiffs’

claim, Defendant’s Motion is denied on this ground.

Defendant also argues that Defendant’s alleged violations of the City Charter do not state a civil rights

violation. Plaintiffs, however, do not allege that the violation of the City Charter alone constitutes a civil

rights violation; instead, the SAC alleges that the violations along with Defendant’s other actions amount to

a civil rights violation.

C. Qualified Immunity

Defendant maintains that he is entitled to qualified immunity for actions taken in his role as an

elected City Commissioner. The Court also previously

held that Defendant was not entitled to qualified immunity. In adopting the R&R, the Court found that

while Defendant was acting within his discretionary

authority, Plaintiffs had met their burden of showing

that Defendant had violated a constitutional right and

that it was well-settled law that the government may

not retaliate against its citizens for expressing their

First Amendment rights; therefore, Defendant was not

entitled to qualified immunity.

In his Motion, Defendant agrees with the R&R’s

finding that he was acting in his discretionary role as

City Commissioner but again argues that he did not

violate Plaintiffs’ constitutional rights, nor did he violate clearly established law. Thus, he maintains that he

is entitled to qualified immunity. Plaintiffs argue that

not only did Defendant violate their clearly established

App. 24

constitutional rights, but Defendant’s actions also exceeded his discretionary authority. As noted earlier, the

Amended Complaint and the SAC make nearly identical allegations. Because the allegations remain essentially the same and neither side has offered any reason

for the Court to reconsider its earlier adoption of the

R&R as to the issue of qualified immunity, Defendant’s

Motion to Dismiss based on qualified immunity is denied. Defendant is not entitled to qualified immunity

for the reasons set forth in the R&R.

D. Legislative Immunity

Defendant argues that he is entitled to legislative

immunity, which gives him absolute immunity from

suit, because the SAC states that Defendant’s actions

were in furtherance of his duties. Defendant argues

that his immunized conduct encompasses the introduction of legislation, all commentary made during a

City Commission meeting, his alleged district inquiries, fact-findings, and investigations as an extension of

his policy-making function. While it is not entirely

clear from Defendant’s Motion whether he seeks to dismiss the entire SAC based on legislative immunity or

whether he seeks to dismiss only portions of it, what is

clear is that Defendant has an overly broad view of legislative immunity.

While a defendant performing a legislative function has absolute immunity, merely being a legislator

does not confer absolute immunity. See Crymes v. DeKalb Cty., Ga., 923 F.2d 1482, 1485 (11th Cir. 1991). It

App. 25

is the function performed, not the status of the acting

officer that determines the degree of immunity. Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th

Cir. 1982) (citation omitted). The Eleventh Circuit has

explained how to determine whether an act was legislative, and thus entitled to immunity, or whether it was

administrative, and thus not entitled to immunity:

A legislative act involves policy-making rather than mere administrative application of

existing policies. Minton v. St. Bernard Parish

School Bd., 803 F.2d 129, 135 (5th Cir. 1986)

(citing Hornsby v. Allen, 326 F.2d 605, 608-09

(5th Cir. 1964)). Acts of zoning enforcement

rather than rulemaking are not legislative.

Front Royal & Warren County Industrial Park

Corp. v. Front Royal, 865 F.2d 77, 79 (4th Cir.

1989). If the facts utilized in making a decision are specific, rather than general, in nature, then the decision is more likely

administrative. Moreover, if the decision impacts specific individuals, rather than the

general population, it is more apt to be administrative in nature. See Cutting v. Muzzey, 724

F.2d 259, 261 (1st Cir. 1984). See generally Developments in the Law–Zoning, 91 Harv. L.

Rev. 1427, 1510-11 (1978).

Crymes, 923 F.2d at 1485. Thus, immunity has been

found in cases involving the vetoing of an ordinance

passed by the city’s legislative body, the examining of

a person before a legislative committee, and voting on

legislation. Espanola Way, 690 F.2d at 830.

App. 26

Based on this, Defendant is not entitled to legislative immunity. Plaintiffs allege that Defendant took

multiple actions directed solely at them or directed at

others who did business with Plaintiffs, solely for the

purposed of harming them. Thus, Defendant’s actions

were directed at specific individuals, not the general

population. Further, many of the allegations in the

SAC involve code enforcement, something the Eleventh Circuit has stated is administrative, not legislative. The only allegations that would fall within the

legislative ambit are those concerning the passage of

Ordinance 13733, which disallowed TUPs in District 3

only. Thus, as to the allegations directly relating to the

passage of Ordinance 13733, Defendant is entitled to

legislative immunity.

E. Motion to Strike

Defendant moves to strike six paragraphs from

the SAC, paragraphs 269-274, that allege Defendant

himself has violated City Code. Defendant argues that

these allegations are irrelevant to Plaintiffs’ claim of

retaliation and are included in the SAC to embarrass

and damage Defendant individually. Thus, Defendant

seeks to strike these allegations pursuant to Federal

Rule of Civil Procedure 12(f ). Plaintiffs contend that

these allegations are not to embarrass or damage Defendant but, instead, help demonstrate Defendant’s retaliatory motive. Plaintiffs argue that Defendant’s own

failure to comply with City Code shows that his actions

towards Plaintiffs may not have been solely based on

App. 27

his desire to avoid code violations within his community.

The Court agrees with Plaintiffs. Defendant has

maintained that he was just doing his job to ensure

code compliance. However, Defendant’s own alleged

multiple failures to comply with the City Code undermine this contention. Consequently, the allegations are

not irrelevant to Plaintiffs’ claim and the Motion to

Strike is denied.

Accordingly, it is

ORDERED that:

1. Defendant Commissioner Carollo’s Motion to

Dismiss Second Amended Complaint; Motion to Strike;

Request for Hearing [DE 154] is GRANTED in part

and DENIED in part:

a. The Motion to Dismiss Second Amended

Complaint is GRANTED in part and DENIED in

part. The Motion is granted as to the allegations concerning the passage of Ordinance 13733 and as to any

non-party claims asserted by Plaintiffs. The Motion is

denied in all other respects.

b.

The Motion to Strike is DENIED.

c.

The Request for Hearing is DENIED as

moot.

2. Defendant shall file an answer to the Second

Amended Complaint by May 24, 2021.

App. 28

3. Defendant Commissioner Carollo’s Motion to

Continue Stay of Discovery Pending Resolution of Motion to Dismiss Second Amended Complaint [DE 172]

is DENIED as moot.

DONE AND ORDERED in Fort Lauderdale,

Florida, this 13th day of May, 2021.

/s/ Rodney Smith

RODNEY SMITH

UNITED STATES

DISTRICT JUDGE

Copies to: Counsel of Record

App. 29

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-----------------------------------------------------------------------

No. 19-12439

-----------------------------------------------------------------------

D.C. Docket No. 1:18-cv-24190-RS

WILLIAM O. FULLER,

MARTIN PINILLA,

Plaintiffs-Appellees,

versus

JOE CAROLLO,

Defendant-Appellant.

-----------------------------------------------------------------------

Appeal from the United States District Court

for the Southern District of Florida

-----------------------------------------------------------------------

(September 25, 2020)

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and

HULL, Circuit Judges. WILLIAM PRYOR, Chief

Judge:

Joe Carollo, a Miami City Commissioner, appeals

from an order that Carollo says denied him qualified

immunity. But the district court granted Carollo’s motion to dismiss and granted the plaintiffs, Miami businessmen William Fuller and Martin Pinilla, leave to

App. 30

amend their complaint. That order is not appealable.

We dismiss Carollo’s appeal for lack of jurisdiction.

Fuller and Pinilla allege that Carollo violated

their rights to freedom of speech and association under

the First Amendment by retaliating against them for

their support of one of Carollo’s political opponents.

They sued Carollo and others, see 42 U.S.C. § 1983, and

the case was referred to a magistrate judge for pretrial

proceedings. Carollo and other defendants not party to

this appeal moved to dismiss the complaint for failing

to state a claim. Carollo’s motion sought dismissal of

the complaint based, in part, on qualified immunity.

The magistrate judge recommended dismissing

Fuller and Pinilla’s complaint with leave to amend

based on problems with the scope of the requested relief. Because the magistrate judge recommended dismissing with leave to amend, she also reviewed the

other arguments presented in the motions to dismiss,

including Carollo’s argument for qualified immunity.

The magistrate judge concluded that Carollo was not

entitled to qualified immunity because his alleged conduct violated clearly established law.

The district court adopted the magistrate judge’s

report and granted the motions to dismiss, with leave

for Fuller and Pinilla to amend. The district court also

ordered that “Defendant Carollo’s Motion to Dismiss

[be] DENIED as to qualified immunity for the reasons

detailed in the Report and Recommendation.” But

given the dismissal of the complaint, that language

had no effect.

App. 31

We have no choice but to sua sponte dismiss this

appeal for lack of jurisdiction. “[T]he existence of appellate jurisdiction in a specific federal court over a

given type of case is dependent upon authority expressly conferred by statute.” Carroll v. United States,

354 U.S. 394, 399 (1957). Carollo argues that we have

jurisdiction because “a district court’s denial of a claim

of qualified immunity, to the extent that it turns on an

issue of law, is an appealable ‘final decision’ within the

meaning of 28 U.S.C. § 1291.” Mitchell v. Forsyth, 472

U.S. 511, 530 (1985). But the district court did not enter

an appealable order denying Carollo qualified immunity. The district court instead dismissed Fuller and

Pinilla’s complaint and granted them leave to amend

it.

So a different finality rule applies: “[A]n order dismissing a complaint with leave to amend within a

specified time becomes a final judgment if the time allowed for amendment expires. . . .” Auto. Alignment &

Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953

F.3d 707, 719-20 (11th Cir. 2020). The district court

gave Fuller and Pinilla until June 28, 2019, to file an

amended complaint. But Carollo filed his notice of appeal on June 26, two days before the order granting

Fuller and Pinilla leave would have become final. And

there is no later judgment that could have cured Carollo’s premature notice of appeal. Fuller and Pinilla did

in fact amend their complaint within the time allowed

by the district court; on June 28 they filed a new pleading entitled “Second Amended Complaint.” And on August 19, 2019, the district court stayed the proceedings

App. 32

on the Second Amended Complaint pending this appeal. Because Carollo did not appeal from a final order

of the district court, we lack jurisdiction under section

1291. And no other statute provides us with jurisdiction over the appeal.

We DISMISS the appeal.

App. 33

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 18-24190-CIV-MORENO

WILLIAM O. FULLER and

MARTIN PINILLA, II,

Plaintiffs,

vs.

JOE CAROLLO and

JOHN DOES 1-10,

Defendants.

/

ORDER ADOPTING MAGISTRATE JUDGE

LOUIS’S REPORT AND RECOMMENDATION

(Filed Jun. 13, 2019)

THE MATTER was referred to the Honorable Lauren F. Louis, United States Magistrate Judge, for a Report and Recommendation on Defendant Joe Carollo’s

Motion to Dismiss (D.E. 53), Defendant the City of Miami’s Motion to Dismiss (D.E. 54), and Maria Lugo’s

Motion to Dismiss (D.E. 64). The Magistrate Judge

filed a Report and Recommendation (D.E. 99) on April

30, 2019. The Court has reviewed the entire file and

record. The Court has made a de novo review of the

issues that the objections to the Magistrate Judge’s Report and Recommendation present, and being otherwise fully advised in the premises, it is

App. 34

ADJUDGED that United States Magistrate

Judge Lauren F. Louis’s Report and Recommendation

is AFFIRMED and ADOPTED. Accordingly, it is

ADJUDGED that Defendant Joe Carollo’s Motion

to Dismiss is GRANTED and Plaintiff shall have leave

to amend the complaint consistent with the Report and

Recommendation. Defendant Carollo’s Motion to Dismiss is DENIED as to qualified immunity for the reasons detailed in the Report and Recommendation. It is

ADJUDGED that Defendant the City of Miami’s

Motion to Dismiss is GRANTED and Plaintiff shall

have leave to amend the complaint consistent with the

Report and Recommendation. It is

ADJUDGED that Defendant Maria Lugo’s Motion to Dismiss is GRANTED in part as set forth in the

Report and Recommendation. It is also

ADJUDGED that the motions for extension of

time to file objections and responses (D.E. 103, 109) are

DENIED as moot. It is also

ADJUDGED that Plaintiff shall file an amended

complaint by no later than June 26, 2019. It is also

ADJUDGED that the Joint Motion to Stay Discovery (D.E. 71) is DENIED as moot in view of this

order.

App. 35

DONE AND ORDERED in Chambers at Miami,

Florida, this 12th of June 2019.

/s/ Federico A. Moreno

FEDERICO A. MORENO

UNITED STATES

DISTRICT JUDGE

Copies furnished to:

United States Magistrate Judge Lauren F. Louis

Counsel of Record

App. 36

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 18-24190-CIV-MORENO/LOUIS

WILLIAM O. FULLER, and

MARTIN PINILLA, II,

Plaintiffs,

vs.

JOE CAROLLO, THE CITY

OF MIAMI, MARIA LUGO,

AND JOHN DOES 1-10,

Defendants.

/

REPORT AND RECOMMENDATION

(Filed Apr. 30, 2019)

This cause came before the Court upon the Motions to Dismiss Plaintiffs’ Amended Complaint

brought by Defendants Joe Carollo (ECF No. 53), The

City of Miami (ECF No. 54), and Maria Lugo (ECF No.

64). This matter was referred to the undersigned

United States Magistrate Judge, pursuant to 28 U.S.C.

§ 636(b)(1)(A) and the Magistrate Judge Rules of the

Local Rules of the Southern District of Florida, by the

Honorable Federico A. Moreno, United States District

Judge, to take all necessary and proper action with

respect to any and all pretrial matters. (ECF No. 49).

Having carefully considered the briefs, the record as a

whole, and being otherwise fully advised in the premises, the undersigned recommends that Carollo’s Motion to Dismiss be GRANTED; that the City’s Motion

App. 37

be GRANTED; and that Lugo’s Motion be GRANTED,

in part; and that Plaintiffs be afforded leave to amend.

I.

BACKGROUND

Plaintiffs William O. Fuller and Martin Pinilla, II

bring this action under 42 U.S.C. § 1983, against Defendants Joe Carollo, the City of Miami (the “City”),

Maria Lugo, and John Does 1 through 10.1 Plaintiffs

are local businessmen, who own several properties in

Little Havana located in District 3 of the City.

In the summer of 2017, Defendant Carollo announced his intention to run for a vacant City of Miami

District 3 Commissioner position. See Amended Complaint (ECF No. 43 at ¶ 30). On November 18, 2017,

during the run-off election period, Plaintiffs allege that

they allowed a group Carollo’s opponent’s supporters

to host a rally at one of Plaintiffs’ commercial properties. (Id. at ¶ 41). Plaintiffs allege that after becoming

aware of the rally, Carollo used his political connections to shut down the rally. (Id. at ¶ 45). The next day,

Plaintiffs once again permitted a second rally at the

same location which was, likewise, shutdown by City

Code Enforcement. Plaintiff Pinilla was spotted at the

rally by Steve Miro, a staff campaign member of

1

The facts recited herein are taken from the Second

Amended Complaint. The factual allegations contained in the

Second Amended Complaint are taken as true for purposes of Defendants’ Motion pursuant to Federal Rule of Civil Procedure

12(b)(6). See Speaker v. US. Dep’t of Health & Human Servs. Ctrs.

For Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.

2010).

App. 38

Carollo; Miro reported Pinilla’s presence at the rally to

Carollo and phoned Fuller to instruct him to shut the

rally down. (Id. at ¶¶ 33, 49, 51).

Carollo won the run-off election and was sworn in

as a City of Miami Commissioner on December 2, 2017.

Plaintiffs allege that for a period often months following those rallies, Carollo has engaged in retaliatory

efforts targeted at Plaintiffs, their tenants, and business affiliates, as a consequence of Plaintiffs’ support

of Carollo’s political opponent. (Id. at p. 1-2). The first

alleged event occurred immediately after Carollo took

office. Carollo instructed Defendant Lugo, a City employee, to direct Code Enforcement officers to inspect

Plaintiffs’ holiday party on the basis that Plaintiffs did

not obtain the necessary permit. (Id. at ¶¶ 73-76).

Plaintiffs allege that their annual holiday party is a

well-attended event, which the City Commissioners

have attended in past years. Carollo allegedly learned

of Plaintiffs’ party and conspired with Lugo to shut it

down. Lugo allegedly contacted the Director of Code

Enforcement directly, instructing him to shut the party

down for special permitting violations. (Id. at ¶¶ 7274). Director Diez did as instructed and sent a Code

Officer to the party. After Director Diez reported to

Lugo that no violations were identified, Lugo allegedly

contacted the Chief of Code Enforcement, who then

sent the Code Officer to the party a second time. With

no violations still identified, the Code Officer was instructed to stand outside the party until it was over,

which she did, allegedly intimidating the guests in the

process. (Id. at ¶¶ 82-84). Plaintiffs allege that the

App. 39

Code Enforcement officers made their guests uneasy

and concerned. (Id. at ¶ 78). Director Diez later contacted Plaintiff Fuller and confirmed Plaintiffs’ suspicion that Carollo and Lugo had orchestrated the

interference by Code Enforcement at the party. (Id. at

¶ 93).

Diez allegedly told Fuller that he was a “political

target,” (Id. at ¶ 90), a sentiment allegedly echoed by

Carollo’s campaign staff member Miro, who has made

statements that when he took office, Carollo “went after” Fuller for supporting Carollo’s opponent in the run

off. (Id. at ¶¶ 64, 70). Miro further stated that Carollo

created a spreadsheet itemizing properties owned by

Plaintiffs to track their businesses. (Id. at ¶¶ 63-68).

Plaintiffs allege that in early 2018, Carollo targeted them by harassing their tenants Sanguish de Miami (“Sanguish”) and Union Beer, a company of which

Plaintiff Fuller was an investor. Carollo purportedly

harassed Sanguish by revoking all temporary use permits (“TUPs”), which was necessary for Sanguish to operate, from District 3. (Id. at ¶ 108). Additionally, Code

Enforcement officers continuously visited the sandwich shop. Sanguish ultimately relocated its business

to another location not owned by Plaintiffs. (Id. at

¶ 108). Carollo also shut down Union Beer’s anniversary party because it had failed to obtain the required

event permit. (Id. at ¶ 120).

Later, in March 2018, Carollo contacted a Code

Enforcement supervisor and requested that an officer

be sent to District 3 because Carollo had concerns

App. 40

regarding building permits at five businesses, three of

which were owned by Plaintiffs. (Id. at ¶ 148). Carollo

also toured District 3, including Plaintiffs’ properties,

with numerous City employees, including the Mayor

and Deputy City Manager, and members of an organization, of which Lugo was a board member, in search

of potential code violations. (Id. at ¶ 158).

On March 12, 2018, Plaintiff Fuller, through his

company The Barlington Group, filed an ethics complaint against Carollo with the Miami-Dade Commission on Ethics and Public Trust for Carollo’s

retaliatory actions. (Id. at ¶ 165). Plaintiffs allege that

while the ethics complaint was being investigated,

Carollo stopped targeting Plaintiffs, their businesses,

and their tenants. On August 13, 2018, Fuller withdrew the ethics complaint with the intention to amend

and include additional charges against Carollo. (Id. at

¶¶ 171-173).

Plaintiffs allege that after Fuller withdrew the

ethics complaint, Carollo’s retaliation continued. In

August 2018, the City, at Carollo’s direction, informed

Plaintiffs that kiosks related to one of Plaintiffs’ business ventures – a farmer’s market – were in violation

of the City Code and issued a citation. (Id. at ¶ 176).

The City also informed Plaintiffs that it was revoking

their TUP in light of new legislation. TUP permits

were no longer available in District 3, and because the

building permit that allowed the kiosks was dependent

on the TUP, the City would also be revoking the building permit. (Id. at ¶ 182).

App. 41

Plaintiffs further allege that after the ethics complaint had been filed and withdrawn, Carollo reported

false noise complaints and parking violations related

to the night club Ball and Chain, of which Fuller was

a part owner, and the valet company the night club

hired. (Id. at ¶¶ 158-164, 124-134). Plaintiffs also allege that the retaliatory actions include the City Commission’s passing of an ordinance abolishing special

masters, and Carollo’s statements to local radio shows

that Plaintiffs were associated with corrupt governments and investors, and that Plaintiffs were attempting to make District 3 less diverse.

On January 8, 2019, Plaintiffs filed their threecount Amended Complaint, alleging First Amendment

retaliation claims against Carollo and the City pursuant to 42 U.S.C. §1983 (Counts I and II, respectively);

and a conspiracy to commit First Amendment retaliation claim against Carollo and Lugo (Count III). Plaintiffs seek injunctive relief and monetary damages for

business disruption, emotional distress, and reputational harm.

II.

DISCUSSION

In their Motions to Dismiss,2 Defendants assert

three grounds for dismissal: (1) Plaintiffs fail to allege

2

Although all Defendants bring separate Motions to Dismiss, the Motions are substantively identical in their arguments

for dismissal. Moreover, Carob moved to adopt all of Lugo’s and

the City’s arguments (ECF No. 82); which this Court granted

(ECF No. 88).

App. 42

Article III standing; (2) the Amended Complaint fails

to comply with Rule 8(a)(2) of the Federal Rules of Civil

Procedure because it is a shotgun pleading; and (3)

Plaintiffs fail to state a claim for which relief can be

granted in violation of Rule 12(b)(6) of the Federal

Rules of Civil Procedure.

A. Article III Standing

All Defendants argue that Plaintiffs fail to allege

facts sufficient to show that they have standing to

bring their First Amendment retaliation claims. Defendants aver that Plaintiffs have not suffered an injury in fact and instead improperly seek damages

incurred (if at all) by non-parties such as Union Beer,

Ball and Chain, and Viernes Culurales. Additionally,

the City and Carollo aver that Plaintiffs’ injuries cannot be redressed by this Court.

To sufficiently plead Article III standing, a plaintiff must plead a plausible injury in fact, causation,

and redressability by the reviewing court. L.S. by Hernandez v. Peterson, No. 18-cv-61577, 2018 WL 6573124,

at *5 (S.D. Fla. Dec. 13, 2018) (citing Dermer v. MiamiDade Cty., 599 F.3d 1217, 1220 (11th Cir. 2010)). If a

plaintiff cannot satisfy these constitutional standing

requirements, then the case lies outside of the district

court’s jurisdiction. Young Apartments, Inc. v. Town of

Jupiter, 529 F.3d 1027, 1038 (11th Cir. 2008). Injuries

that satisfy the Article III standing requirement are

distinct, palpable, and concrete. Harris v. Evans, 20

F.3d 1118, 1122 (11th Cir. 1994). At the initial pleading

App. 43

stage, a plaintiff may establish standing by pleading

general factual allegations of injury. Young Apartments, 529 F.3d at 1038. However, while the plaintiff ’s

allegations at this stage are presumed sufficient to establish the facts alleged in the complaint, the Court is

not required to speculate concerning plaintiff ’s injuries if he has not pled one. Eland v. Basham, 471 F.3d

1199, 1206 (11th Cir. 2006).

In the Amended Complaint, Plaintiffs allege that

they have suffered injuries as a result of conduct made

in retaliation for Plaintiffs’ exercise of their First

Amendment rights, including monetary damages as a

result of Defendants’ retaliatory conduct, specifically

damages for “business disruption” and “reputational

harm.” (ECF No. 43 at ¶ 232). Plaintiffs also allege that

they have suffered emotional distress and mental anguish as a result of retaliatory conduct against the

Plaintiffs individually. (Id. at ¶ 273).

In their Motions, Defendants aver that Plaintiffs

lack standing to bring claims against the Defendants

because Plaintiffs were not individually injured, and

instead, seek damages as a result of injuries purportedly suffered by non-party organizations. In their opposition, Plaintiffs clarified that they do not seek

economic injuries suffered by any business entity as a

result of the retaliatory actions against those entities,

but rather allege direct injuries suffered by Plaintiffs

in their individual capacity. Though Plaintiffs seek no

monetary damages arising from these acts, the conduct

alleged to have impacted non-party entities are examples of Carollo’s retaliatory conduct towards Plaintiffs,

App. 44

as he allegedly targeted all businesses that Plaintiffs

are associated with. See Plaintiffs’ Response in Opposition to City of Miami’s Motion to Dismiss (ECF No.

66 at p. 1920). Additionally, at the hearing, Plaintiffs

explained that despite their reference to the retaliatory actions towards third parties and their allegations

of economic losses due to business disruption, Plaintiffs are not seeking monetary damages for business

losses. Plaintiffs’ counsel made an ore tenus motion for

leave to amend to better plead the Plaintiffs’ injuries.

Plaintiffs have alleged a personal injury sufficient

to demonstrate standing. Nonetheless, the Court recognizes the lack of clarity in the Amended Complaint

with respect to the damages sought. As it stands, the

Amended Complaint fails to allege a distinct injury to

the individual Plaintiffs as they allege their injuries in

two conclusory paragraphs of the Amended Complaint

(ECF No. 43 at ¶¶ 232, 273) and in the “wherefore”

clause; without more the Court is unable to determine

what injuries Plaintiffs specifically suffered or what

specific actions caused said injuries. Accordingly, the

undersigned recommends that Plaintiff be afforded

leave to amend to clarify the injury or injuries for

which Plaintiffs seek redress. See Thomas v. Town of

Davie, 847 F.2d 771, 773 (11th Cir. 1988) (noting the

Eleventh Circuit’s preference for granting leave to

amend a complaint dismissed for failure to state a

claim absent a “substantial reason” to deny leave to

amend).

Carollo and the City also argue that Plaintiffs lack

constitutional standing because the Court cannot

App. 45

provide redress for the injuries alleged. The Amended

Complaint seeks “a permanent injunction against further retaliation against them and further violations of

the Miami City Charter.” (ECF No. 43 at ¶ 276). Defendants argue that the request sought is overly broad.

The Court agrees.

Plaintiffs respond in opposition that courts have

repeatedly granted injunction relief in First Amendment cases. Plaintiffs rely primarily on Hoyfe v. Nye

Cty., 18-CV-01492-RFB-GWF, 2018 WL 4107897, at *1

(D. Nev. Aug. 28, 2018), in support of their request for

a permanent injunction. In Hoyfe, the plaintiff brought

a First Amendment retaliation claim against a municipality and sought a temporary injunction enjoining

the municipality from making decisions regarding

plaintiff ’s license applications during the pending litigation. In that case, the court granted plaintiff ’s request for a temporary injunction. However, Plaintiffs’

reliance on Hoyfe is misplaced because the plaintiff in

that case sought a temporary injunction preventing

the defendant from partaking in specific conduct during an identified period of time frame. Here, Plaintiffs’

request for a permanent injunction is overly broad.

Plaintiffs seek an order enjoining Carollo from “participating in any decision of the Board of Commissioners

in relation to any matters that directly affect the Plaintiffs . . . ” (Id. at ¶ 227). Plaintiffs also request that the

Court enjoin the City “from taking further retaliatory

action against Plaintiffs . . . ” (Id. at ¶ 303). As it

stands, the Amended Complaint essentially asks the

Court to prohibit Carollo and the City from performing

App. 46

their official functions if they could affect Plaintiffs. It

is impossible for the Court to determine what types of

conduct Plaintiffs deem “retaliatory” for purposes of

their request for an injunction. Accordingly, Carollo’s

and the City’s Motions should be granted on this basis.

Because leave to amend is recommended, the

Court further analyzes the deficiencies raised in Defendants’ motions to dismiss based on Rule 12(b)(6),

as repetition of such deficiencies would again warrant

dismissal See Fox, 309 F. Supp. 3d at 1245 (“Nevertheless, the Court addresses the Amended Complaint’s

five claims and the parties’ arguments in order to give

Plaintiff direction on how to proceed with a final,

amended pleading . . . ”).

B. Shotgun Pleading – Rule 8(a)(2)

Defendants challenge the Amended Complaint as

a shotgun pleading, arguing that Plaintiffs allege

vague and immaterial facts that make it impossible for

this Court or Defendants to understand what conduct

by each Defendant gave rise to the claims alleged in

the Amended Complaint.

Rule 8(a)(2) requires that a complaint contain a

“short and plain statement of the claim showing that

the pleader is entitled to relief ” using allegations that

are “simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2),

(d)(1). The Supreme Court has explained that Rule 8

does not require “detailed factual allegations,” but rather demands “more than unadorned, the-defendantunlawfully-harmed me accusation.” Ashcroft v. Iqbal,

App. 47

556 U.S. 662, 678 (2009). Shotgun pleadings violate

Rule 8 by failing to give the defendants adequate notice of the claims against them and the grounds upon

which each claim rests on. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).

A complaint containing multiple counts, each

count incorporating by reference the allegations of previous counts, is fairly characterized as a shotgun

pleading if it results in a situation where it impossible

for the court or the defendant to know which allegations are intended to support the respective claims for

relief. Weiland v. Palm Beach Cty. Sheriff ’s Office, 792

F.3d 1313, 1322 (11th Cir. 2015) (“the most common

type [of shotgun pleading] . . . is a complaint containing multiple counts where each count adopts the allegations of all preceding counts causing each successive

count to carry all that came before and the last count

to be a combination of the entire complaint.”); Keith v.

DeKalb Cnty., 749 F.3d 1034, 1045 n.39 (11th Cir. 2014)

(“The complaint, through its incorporation into successive counts all preceding allegations and counts, is a

quintessential ‘shotgun’ pleading . . . ”). Courts in the

Eleventh Circuit have little tolerance for shotgun

pleadings as they waste judicial resources, inescapably

broaden the scope of discovery, and ultimately wreak

havoc on judicial dockets. Vibe Micro, Inc., 878 F.3d at

1294-95.

While the Court notes that the Amended Compliant suffers from one of the characterizes of a shotgun

pleading – incorporation of superfluous allegations into

three counts – the undersigned does not recommend

App. 48

dismissal on this ground, as the allegations are decipherable with respect to the individual defendants

named. As the Eleventh Circuit noted in Weiland,

which all the parties cite to, the incorporation of unnecessary facts and allegations into all counts is not

per se dispositive of whether a complaint is a shotgun

pleading. 792 F.3d at 1316. In Weiland, the appellate

court concluded that while the complaint at issue was

not ideal, it did “a good enough job” in giving the defendants notice of the claims against them, and therefore, did not constitute a shotgun pleading. Id.

Moreover, as noted above, the primary argument

advanced by Defendants is the failure of the Amended

Complaint to specify the injury suffered by the various

business entities described in the complaint, and to allege Plaintiffs’ interests in those entities with sufficient specificity to demonstrate Plaintiffs’ standing to

seek redress on behalf of those businesses – not Plaintiffs’ inability to put Defendants on notice was to what

conduct gave rise to the claims against them. The undersigned accordingly recommends denying the motions to dismiss on this basis.

C. Carollo’s and the City’s Motions to Dismiss for Failure to State a Claim

In Counts I and II, Plaintiffs claim that Carollo

and the City violated their First Amendment rights.

Plaintiffs contend that Carollo’s action were pretextual

and undertaken with improper retaliatory motives, adversely affecting the Plaintiffs’ protected speech. In

App. 49

their Motions, Defendants challenge the Amended

Complaint on the grounds that Plaintiffs fail to state a

claim because they do not allege an adverse action or

that there is a causal connection between the retaliatory actions and the adverse effect on speech. Moreover, Carollo and the City argue that they are entitled

to qualified and sovereign immunity, respectively.

“Under Federal Rule of Civil Procedure 8(a)(2), a

complaint must contain a short and plain statement of

the claim showing that the pleader is entitled to relief.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). To survive a Rule 12(b)(6) motion to dismiss, a

plaintiff must plead sufficient facts to state a claim

that is “plausble on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). The Court’s consideration is limited to

the allegations in the complaint. See GSW, Inc. v. Long

Cty., 999 F.2d 1508, 1510 (11th Cir. 1993). All factual

allegations are accepted as true and all reasonable inferences are drawn in the plaintiff ’s favor. See Speaker

v. US. Dep’t of Health & Human Servs. Ctrs. For Disease Control & Prevention, 623 F.3d 1371, 1379 (11th

Cir. 2010). While a plaintiff need not provide “detailed

factual allegations,” a plaintiff ’s complaint must provide must provide “more than labels and conclusions.”

Twombly, 550 U.S. at 555 (internal citations and quotations omitted). “[A] formulaic recitation of the elements of a cause of action will not do.” Id. Rule 12(b)(6)

does not permit dismissal of a complaint because the

court anticipates “actual proof of those facts is improbable;” however, “[f ]actual allegations must be enough

to raise a right of relief above the speculative level”

App. 50

Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir.

2007) (quoting Twombly, 550 U.S. at 545). A court evaluating a motion to dismiss for failure to state a claim

must focus its analysis on the four corners of the complaint but may also consider any attachments to the

complaint in making its determination. Watson v. Bally

Mfg. Corp., 844 F. Supp. 1533, 1535 n.1 (S.D. Fla. 1993),

aff ’d mem., 84 F.3d 438 (11th Cir. 1996). Additionally,

any documents that are referenced in the complaint

and are central to the plaintiff ’s case may be considered. In re Sunbeam Sec. Litig., 89 F. Supp. 2d 1326,

1335 (S.D. Fla. 1999).

To state a claim under Section 1983, a plaintiff

must allege that a person, acting under color of state

law, deprived him of “rights, privileges, or immunities

secured by the Constitution and laws.” Blanton v. Griel

Mem’l Psychiatric Hosp., 758 F.2d 1540, 1542 (11th Cir.

1985). The Plaintiffs in this action bring claims of First

Amendment retaliation against Defendants Carollo,

and the City, and allege that Defendant Lugo conspired

to commit those constitutional violations.

To survive a Rule 12(b)(6) motion to dismiss based

on a claim of First Amendment retaliation under Section 1983, a plaintiff must allege facts establishing

that: (1) his speech or act was constitutionally protected by the First Amendment; (2) a state actor’s retaliatory conduct adversely affected the protected

speech; and (3) that there is an actual causal connection between retaliatory actions and the adverse

speech. Abella v. Simon, 522 F. App’x 872, 874 (11th Cir.

2013). Jones v. Robinson, 665 F. App’x 776, 778 (11th

App. 51

Cir. 2016) (citing Keeton v. Anderson-Wiley, 664 F.3d

865, 878 (11th Cir. 2011)). With regard to the second

element, a plaintiff suffers an adverse action if the defendant’s purported retaliatory conduct would likely

deter a person of ordinary firmness from the exercise

of their First Amendment rights. Bennett v. Hendrix,

423 F.3d 1247, 1250 (11th Cir. 2005). The third element

requires the plaintiff to adequately allege that his protected speech was the motivating factor behind the defendants’ conduct. Smith v. Mosely, 532 F.3d 1270, 1278

(11th Cir. 2008). A plaintiff must allege a sequence of

events from which a retaliatory motive can be plausibly inferred, notwithstanding other non-retaliatory

motives the defendant may harbor. Eisenberg v. City of

Miami Beach, 1 F. Supp. 3d 1327, 1344 (S.D. Fla. 2014).

1. Constitutional Violations

In the Amended Complaint, Plaintiffs allege that

Carollo has violated their First Amendment rights by

retaliating against them by: (1) shutting down the

rallies on Plaintiffs’ properties; (2) sending Code Enforcement officers to Plaintiffs’ holiday party for the

purpose of harassing their guests and issuing a bogus

citation; (3) intimidating their tenants and business affiliates; (4) revoking their temporary use permit to participate in a local farmer’s market; and (5) enacting the

passing of retaliatory legislation.

With respect to the first allegation of misconduct

– the shutting down of the rallies – Carollo was not yet

a government actor and, therefore, the conduct is not

App. 52

actionable against Carollo or the City under Section

1983. 42 U.S.C. § 1983. Nor is the last allegation actionable, arising from the enactment of an ordinance

banning temporary use permits in District 3; Plaintiffs

have not stated a cognizable claim because they do not

challenge the constitutionality of the ordinance on its

face. See In re Hubbard, 803 F.3d 1298, 1313-14 (11th

Cir. 2015) (holding that a plaintiff cannot bring a First

Amendment challenge against an otherwise facially

constitutional ordinance by claiming that the lawmakers who passed it acted with an unconstitutional purpose).

With respect to the remain alleged acts, the undersigned has considered the three-prong test set forth

above and recognizes that Plaintiffs have satisfied the

first prong: that their speech was protected by the First

Amendment. Abella v. Simon, 522 F. App’x 872, 874

(11th Cir. 2013) (quoting McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 346 (1995)). Plaintiffs allege

they were engaged in protected activity by permitting

a political rally on their property and by filing an ethics

complaint with Miami-Dade County. (ECF No. 43 at p.

2). Defendants do not challenge Plaintiffs’ contention

that their activities constitute protected speech.

As to the second prong, a plaintiff suffers an adverse action if the defendant’s purportedly retaliatory

behavior would likely deter a person of ordinary

firmness from the exercise of their First Amendment rights. Bennett v. Hendrix, 423 F.3d 1247, 1254

(11th Cir. 2005) (finding retaliatory acts, including, a

prolonged “campaign of harassment” by local police

App. 53

officers, where defendants repeatedly followed,

stopped, cited, and intimidated plaintiffs, and disseminated flyers depicting plaintiffs as criminals). In applying the ordinary firmness test, courts liberally

interpret whether the alleged conduct had an adverse

effect, thus while “ ‘the effect on freedom of speech may

be small . . . there is no justification for harassing people for exercising their constitutional rights.’ ” Eisengberg, 1 F. Supp. at 1343 (quoting Bennett, 423 F.3d at

1254); Garcia v. City of Trenton, 348 F.3d 726, 729 (8th

Cir. 2003) (noting that the adverse effect on speech

“need not be great in order to be actionable,” where the

retaliatory issuance of parking tickets for a nominal

total amount would be sufficient to chill the speech of

a person of ordinary firmness).

In Eisenberg, the plaintiffs, a development company and its individual president (Eisenberg), brought

a First Amendment retaliation claim against a municipality for retaliatory conduct – the issuance of unfounded citations at one of the plaintiffs’ commercial

properties, unflattering statements to plaintiffs’ mortgagee, the shutting down of one of the commercial

properties, and Eisenberg’s arrest – in response to

statements that Eisenberg made regarding a kickback

scheme which the City and its officials were purportedly involved in. Eisenberg, 1 F. Supp. at 1343. The

court determined that conduct, “improperly motivated

as alleged, would likely be sufficient to deter a person

of ordinary firmness, especially as the adverse effect

need not be substantial” Id.

App. 54

The Amended Complaint amply states and describes activities constituting retaliatory conduct directed by Carollo that satisfy the second prong of the

ordinary firmness test. The Amended Complaint alleges

that in response to Plaintiffs’ exercise of constitutionally protected political speech, Carollo effectuated a

Code Enforcement raid of Plaintiffs’ holiday party to

intimidate Plaintiffs’ guests (ECF No. 43 at ¶ 84); performed Code Enforcement “drive-bys” by looking for violations at Plaintiffs’ businesses on multiple occasions;

and representing to employees and independent contractors that there were parking and noise violations

(Id. at ¶ 148); and revocation of Plaintiffs’ TUP permit

to prevent Plaintiffs’ participation in a local farmer’s

market (Id. at ¶¶ 183-185). The Amended Complaint

also alleges that Carollo made defamatory statements

on local radio stations suggesting that Plaintiffs were

attempting to make District 3 less culturally diverse

and support radical governments (Id. at ¶224); and

that Carollo made intimidating statements to Plaintiffs’ tenants to encourage the tenants to relocate (Id.

at¶¶ 97, 107). The facts as alleged and viewed in the

light most favorable to the Plaintiffs sufficiently represent the type of conduct that would likely have an adverse effect upon a person of ordinary firmness.

Eisenberg, 1 F. Supp. at 1343.

Moreover, Defendants urge this Court to find that

Plaintiffs fail to meet their burden to show an adverse

effect because some of the code violations and drivebys were aimed at Plaintiffs’ tenant and corporate affiliates, instead of Plaintiffs individually. However, the

App. 55

fact that some of the alleged retaliatory acts did not

directly impact Plaintiffs individually does not defeat

the sufficiency of the factual allegations supporting the

second prong of the ordinary firmness test. See Cuevas

v. City of Sweetwater, No. 15-22785-CIV, ECF No. 38

(S.D. Fla. Oct. 28, 2015). In Cuevas, the plaintiff, owner

of a gas station, alleged that the municipality and a

city commissioner violated his First Amendment

rights by harassing him personally as well as intimidating the gas station employees who were employed

by an unrelated company after the plaintiff displayed

support for the commissioner’s political opponent. Id.

In determining the issues of whether plaintiff had

standing to allege an injury rising from the retaliatory

conduct aimed at the gas station employees and the independent contractor that operated the gas station,

the court concluded that it was “fairly obvious” how

Cuevas as the owner of the gas station might be dissuaded from his continued support for a political candidate despite some of the retaliatory conduct being

aimed at other related parties. Id. (citing Ranize v.

Town of Lady Lake, Florida, No. 5:11-CV-646, 2012 WL

4856749 (M.D. Fla. Oct. 12, 2002)). Likewise, under the

facts alleged in the Amended Complaint, it is plausible

that the retaliatory conduct aimed at Plaintiffs, their

tenants, and business affiliates may discourage a person of ordinary firmness from exercising their First

Amendment rights.

With regard to the third prong of a First Amendment retaliation claim, Plaintiffs plausibly allege a

causal connection between the described retaliatory

App. 56

actions and the adverse effects on speech. To establish

a causal connection at the motion to dismiss stage, a

plaintiff must allege that his protected speech was a

motivating factor behind the alleged retaliatory conduct. Bennett, 423 F.3d at 1250; Eisenberg, 1 F. Supp.

3d at 1344. A plaintiff must plead a series of events

from which a retaliatory motive can be plausibly inferred. Id. Causation may be shown by pleading “(1) an

unusually suggestive temporal proximity between the

protected activity and the alleged retaliatory act, or (2)

a pattern of antagonism coupled with timing to establish a causal link.” Lozman v. City of Riviera Beach, 39

F. Supp. 1392, 1405-06 (S.D. Fla. 2014).

Plaintiffs allege that their protected speech occurred on two occasions at the rallies in November

2017, and when Plaintiff Fuller filed the ethics complaint in March 2018. Taken in the light most favorable

to Plaintiffs, the alleged retaliatory conduct occurred

within close temporal proximity of Plaintiffs’ expression of their protected speech. Plaintiffs allege that in

December 2017, within a month of the rallies, Carollo

orchestrated Code Enforcement officers to investigate

Plaintiffs’ holiday party. Later, in January and February 2018, Carollo intimidated Plaintiffs’ tenant by directing Code Enforcement to “raid” the tenant’s

business and by purportedly explaining that “my problem is not as much with you as it is with your landlord.”

(ECF No. 43, ¶¶ 112, 113). The Amended Complaint

also alleges that in February 2018, three months after

the rallies, Carollo and two City employees investigated Ball and Chain, a business of which Fuller is in

App. 57

an investor, and took pictures of the cars parked in the

parking lot adjacent to the business (Id. at ¶¶ 112,

113). Likewise, Carollo alleged appeared at an anniversary party hosted by Union Beer, another business in

which Fuller is an investor, and stated that “you need

a temporary event permit . . . but even if you had applied for one, I would have denied it.” (Id. at ¶ 120).

Subsequently, the Amended Complaint alleges

that Fuller filed an ethics complaint against Carollo in

March 2018. (Id. at ¶ 165). Plaintiffs allege that while

the complaint was being investigated, the retaliatory

conduct ceased, but that once the complaint was withdrawn in August 2018, the conduct commenced again.

Plaintiffs allege that seven days after the complaint

was withdrawn, Plaintiffs received a letter from the

City advising them of a code violation regarding kiosks

Plaintiffs intended to use at a local farmer’s market,

for which they had previously obtained temporary use

permits. (Id. at ¶¶ 178-181). Plaintiffs further allege

that within weeks of the withdrawal of the complaint,

the investigations and drive-bys at Ball and Chain recommenced. (Id. at ¶ 175). Plaintiffs allege that their

political speech against Carollo was the motivation for

all retaliatory conduct and substantiate their allegations of motive with statements Carollo allegedly

made, admitting that he was targeting Fuller. “ ‘Numerous courts have found that harassment in the form

of constant monitoring, investigating or issuance of violations can contravene First Amendment rights.’ ” See

Cuevas v. City of Sweetwater, No. 15-22785-CIV, ECF

No. 38 (S.D. Fla. Oct. 28, 2015) (quoting Hollywood

App. 58

Cmty. Synagogue, Inc. v. City of Hollywood, Fla., 430

F. Supp. 2d 1296, 1316 (S.D. Fla. 2006)). The undersigned finds that the Amended Complaint sufficiently

allege the necessary causal relationship between the

Plaintiffs’ speech and the alleged retaliatory conduct.

2. Plausibility of Constitutional Violation and Investigative Re port

In its Motion, the City’s main argument for dismissal under Rule 12(b)(6) is that Plaintiffs fail to

plausibly allege that Carollo’s retaliatory conduct was

plausible, let alone causally connected, to Plaintiffs’

protected speech. In support of its argument, which

Carollo adopted by motion, the City relies on the Investigative Report attached to the Amended Complaint, arguing that the Report contradicts the

allegations of the Amended Complaint, and therefore

must be accepted as true. The City directs the Court to

Fuller’s statements that he was unaware that the rally

taking place was in support of the candidate opposing

Carollo; Defendants’ argue that if the Plaintiffs did not

intend to exercise their speech in support of Carollo’s

opponent, they cannot now claim a violation of their

First Amendment right. The City further argues that

the Investigative Report represents that Plaintiffs own

at least twenty properties in District 3 and that the

likelihood of there being legitimate code violations is

high, and as such, the Court should find that the investigations and citations were justified.

App. 59

At the motion to dismiss stage, the Court may consider attachments to the Amended Complaint; however, it is not bound to accept the hearsay statements

and representations in the Investigative Report as

true to affirmatively disprove the allegations in the

Amended Complaint. See Bryant v. Miami-Dade Cty.,

No. 10-23768, 2011 WL 13223543, at *3 n.3 (S.D. Fla.

Mar. 20, 2015) (“Moreover, taking judicial notice of a

document does not mean that the Court accepts the

contents of the documents as true.”); Barron v.

Snyder’s-Lance, Inc., No. 13-62496, 2015 WL 1182066,

at *4 (S.D. Fla. Mar. 20, 2015) (citing Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,

960 (9th Cir. 2010) (“Courts may take judicial notice of

publications introduced to ‘indicate what was in the

public realm at the time, not whether the contents of

those articles were true.”). Accordingly, the undersigned recommends denial of the City’s Motion on this

basis.

3. Qualified Immunity

Carollo argues that even if Plaintiffs are able to

plead a claim for First Amendment retaliation against

him, the claim should be dismissed because he is

shielded from suit by the doctrine of qualified immunity. Qualified immunity shields government officials

sued in their individual capacities so long as their conduct does not violate a clearly established constitutional right. Lozman v. City of North Bay Village; No.

07-23357-CIV, 2009 WL 10699944, at *5 (S.D. Fla.

2009); Oliverv. Fiorino, 586 F.3d 898, 904 (11th Cir.

App. 60

2009) (quoting McCullough v. Antolini, 559 F.3d 1201,

1205 (11th Cir. 2009)). The doctrine is intended to allow government officials to perform their discretionary

duties without fear of personal liability or harassing

litigation, “protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.” Grider v. City of Aubern Ala., 618 F.3d 1240,

1254 (11th Cir. 2010). The initial burden is on the defendant to establish that he was acting within the

scope of his discretionary authority. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir. 2006)

(quoting Lumley v. City of Dade City, Fla., 327 F.3d

1186, 1194 (11th Cir. 2003)). If the defendant is unable

to show he was acting within his discretionary authority, he is ineligible for the benefit of qualified immunity.

Lozman, 2009 WL 10699944, at *5 (citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). However, if

the defendant meets his burden, the burden shifts to

the plaintiff to show that qualified immunity is not appropriate under the circumstances. Grey, 458 F.3d at

1303.

In order to prevent the granting of a motion to dismiss on claims challenged under the doctrine of qualified immunity, the plaintiff must allege sufficient facts

to allege that: (1) the defendant violated a constitutional right; and (2) the right was clearly established

at the time of the alleged violation. Wall-DeSousa v.

Florida Dep’t of Highway Safety and Motor Vehicles,

691 F. App’x 584, 589 (11th Cir. 2017) (citing Morris v.

Town of Lexington, 748 F.3d 1316, 1322 (11th Cir.

2014)). In suits brought pursuant to Section 1983, such

App. 61

as this one, the question of qualified immunity and the

Rule 12(b)(6) standard become intertwined. GJR Invs.,

Inc. v. Cty. Of Escambia, Fla., 132 F.3d 1359, 1366 (11th

Cir. 1998) overruled on other grounds as recognized in

Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). In

other words, where a defendant raises the qualified immunity defense in a Rule 12(b)(6) motion, the court

should grant the motion if the complaint fails to allege

a violation of a clearly established constitutional right.

Williams v. Bd. Of Regents of the Univ. Sys. of Ga., 477

F.3d 1282, 1300 (11th Cir. 2007).

In his Motion, Carollo argues that he was acting

within his discretionary duties in all instances alleged

in the Amended Complaint. The initial burden is on

Carollo to show that he was engaged in a discretionary

function at the time of the alleged misconducts. Carollo

argues that the Amended Complaint alleges that he

made repeated inquiries regarding noise complaints

and parking violations, which were well within his discretionary authority. See Carollo’s Motion to Dismiss

(ECF No. 53 at p. 19). The Motion further avers that

the Amended Complaint alleges that Carollo held

meetings with other government employees and constituents regarding Plaintiffs’ businesses and that all

of those discussions were also within his discretionary

authority. Id. Plaintiffs contend that Carollo did not

have the authority to direct Code Enforcement officers

to investigate Plaintiffs’ businesses because the City

Charter requires that the City Manager, not the Commission, direct and manage Code Enforcement.

App. 62

A public official can show that he was acting

within his discretionary authority by showing that the

facts as alleged would result in the conclusion that his

actions were (1) undertaken pursuant to the performance of his duties; and (2) were within the scope of

his authority. Roberts v. Spielman, 643 F.3d 899, 903

(11th Cir. 2011). The Court must examine the “general

nature of the defendant’s action” to determine if the

conduct was within the government actor’s discretionary authority. Holloman ex. rel. Hollman v. Harland,

370 F.3d 1252, 1266 (11th Cir. 2004).

Carollo argues that his conduct of reporting potential code violations to Code Enforcement constitutes

proper encouragement of enforcement of municipal

law. On the other hand, Plaintiffs argue that the City

Manager, not Carollo, should have been the person directing the Code Enforcement Department. Plaintiffs

allege that Carollo played a central role and was the

driving force behind the harassing investigations and

issuance of bogus citations. However, when determining whether a public official is acting within his discretionary authority, the Court must consider a

“government’s official’s actions at the minimum level

of generality necessary to remove the constitutional

taint.” Holloman, 370 F.3d at 1266. The inquiry is not

whether Carollo had the authority to direct Code Enforcement officers to retaliate against Plaintiffs. Id.

(“[T]he inquiry is not whether the defendant’s authority to commit the allegedly illegal act. Framed that

way, the inquiry is no more than an untenable tautology.”). Rather, the question is whether Carollo had the

App. 63

authority to report his suspicion of code violations and

encourage enforcement of the Code. Id. (“[W]e look to

the general nature of the defendant’s action, temporarily putting aside the fact that it may have been

committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent,

or other conditionally inappropriate circumstances.”).

The relevant section of the City of Miami Charter

that governs the City Commission, cited by both parties, provides that “[e]xcept for the purpose of inquiry

and as may be necessary as provided in the section the

mayor, the city commission, any committees and members thereof shall deal with the administrative service

solely through the city manager [ . . . ].” See Miami, Fla.

Charter, Subpart A, Section 4(d) (emphasis added).

Therefore, in his ardent reporting and investigation of

potential code violations as alleged, Carollo was acting

within his discretionary authority.

Because Carollo met his burden to show that his

actions were within his discretionary authority, the

burden shills to Plaintiffs to show that qualified immunity is not appropriate under the circumstances.

Bryant v. Jones, 575 F.3d 1281, 1295 (11th Cir. 2009).

To meet their burden, Plaintiffs must allege that Carollo violated a constitutional right, and that this constitutional right was clearly established at the time of

the wrongful act. Because the Court has already determined that Plaintiffs plausibly allege with supporting

and detailed facts the three elements of a First Amendment retaliation claim, the only inquiry is whether

App. 64

that right was established at the time of the misconduct. The undersigned fords that it was.

It is well-settled that the government may not retaliate against its citizens for the expression of their

First Amendment rights. Kollin v. Dorsett, No. 1562728-CIV, 2016 WL 4385356, at *4 (S.D. Fla. Apr. 14,

2016) (“The undersigned has little difficulty in concluding that the right to exercise free speech without fear

of retaliation by governmental officials was clearly established law at the time of [the] alleged conduct in

2013.”); Bennett, 423 F.3d at 1256; Cuevas v. City of

Sweetwater, No. 15-22785-CIV, ECF No. 38 (S.D. Fla.

Oct. 28, 2015). Accordingly, the undersigned recommends denying Carollo’s Motion on the basis of qualified immunity.

4. Sovereign Immunity

In its Motion, the City argues that the First

Amendment retaliation claim against it should be dismissed because Plaintiffs fail to allege a claim that

would survive the doctrine of sovereign immunity. See

City’s Motion to Dismiss (ECF No. 54 at p. 4).

Municipalities and other local government entities are subject to liability for the actions of government officials under Section 1983 and may be sued

directly for relief where “the action that is alleged to

be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially

adopted by that body’s officers.” Monell v. N.Y.C. Dep’t

of Soc. Servs., 436 U.S. 658, 690 (1978); Reyes v. City of

App. 65

Miami Beach, No. 07-22680-CIV, 2007 WL 4199606, at

*4 (S.D. Fla. Nov. 26, 2007) (“As an initial matter, it is

clearly established that a municipality . . . cannot be

held liable under Section 1983 for the acts of its employees under a theory of respondeat superior.”). A municipality may only be held liable under Section 1983

where there is a direct and causal link between the

municipality policy or custom and the alleged connotational violation. City of Canton v. Harris, 489 U.S. 378,

385 (1989).

To avoid dismissal of his claim against a municipality, a plaintiff must allege sufficient facts showing

either: (1) an officially promulgated policy; (2) an unofficial custom or practice of the municipality shown

through repeated acts of a final policy maker for the

government entity; or (3) through a showing of the municipalities deliberate indifference to the constitutional rights of an individual, or by a repeated failure

to make any meaningful investigation into multiple

complaints of constitutional violations. Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003); German v. Broward Cty. Sheriff ’s Office, 315 F. App’x 773,

776 (11th Cir. 2009) (noting that a policy or custom “is

established by showing a persistent and widespread

practice and an entity’s actual or constructive

knowledge of such customs, though the custom need

not receive formal approval”). On the undersigned’s

finding that Plaintiffs sufficiently alleged a constitutional violation, the only inquiry that remains is

whether Plaintiffs sufficiently allege a policy or custom

of deliberate indifference.

App. 66

Plaintiffs argue that the City is liable under the

third alternative of Monell liability: a custom of deliberate indifference. Plaintiffs argue that many City officials, including the Mayor and the City Manager

permitted a custom of “permitting and condoning” unconstitutional retaliation as they were aware of Carollo’s conduct against the Plaintiffs. (ECF No. 43 at

¶ 286). In support of their argument, Plaintiffs represent that the Mayor, City Manager, Deputy City Manager, and Code Enforcement Director participated in a

walkthrough of District 3 to search for code violations

at Plaintiffs’ properties, and therefore, were aware of

the unconstitutional conduct (Id. at ¶ 286); and that

code enforcement officers followed Carollo’s orders,

thereby carrying out his retaliatory conduct.

Plaintiffs rely primarily on Lozman v. City of Riviera Beach, 39 F. Supp. 3d 1392 (S.D. Fla. 2014), in support of their argument against sovereign immunity. In

Lozman, the plaintiff brought a First Amendment retaliation claim against a municipality, alleging years of

constitutional violations after plaintiff spoke out

against the local government. 39 F. Supp. at 1400-01.

After the court determined that a constitutional violation had been established, the court denied the municipality’s sovereign immunity defense on the basis that

plaintiff sufficiently showed a custom of indifference.

Id. at 1408. In that case, the record showed that the

municipality – through a majority of its city council

members – was aware and in fact participated in repeated constitutional violations, including repeated arrests and expulsion of council meetings, against the

App. 67

plaintiff. Id. at 1408. Here, no such body of government

officials have been identified. That Plaintiffs alleged

that a couple City officials, all belonging to different

offices, were aware that Carollo raised code violations

occurring at Plaintiffs’ properties does not amount to

the custom of indifference identified in Lozman. Additionally, Lozman alleged constitutional violations that

spanned for a period of three years. Plaintiffs allege

misconduct – primarily at the behest of one individual

– over the span of ten months. Accordingly, the undersigned recommends that the City’s Motion be granted,

and Plaintiffs claims against the City dismissed.

D. Motion to Dismiss Conspiracy Claim

Against Carollo and Lugo

Plaintiffs allege that Carollo and Lugo agreed to

deprive Plaintiffs of their First Amendment rights.

(ECF No. 43 at ¶ 305). Specifically, Plaintiffs allege

that Lugo conspired with Carollo: (1) to shut down the

November 2017 rallies; (2) by calling Code Enforcement to report unfounded violations at Plaintiffs’ holiday party; and (3) by investigating and reporting false

noise complaints against Ball and Chain. In support of

her argument under Rule 12(b)(6), Lugo argues that

Plaintiffs fail to allege an underlying constitutional violation and that Plaintiffs’ claim against her are

barred by the intracorporate conspiracy doctrine. Carollo adopted this argument by motion.

To survive a motion to dismiss of a Section 1983

conspiracy, a plaintiff must allege that the parties

App. 68

reached an agreement to deprive plaintiff of his constitutional rights and committed an act in furtherance of

that conspiracy. Grider v. City of Auburn, Ala., 618 F.3d

1240, 1261 (11th Cir. 2010) (citing Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990) (“The plaintiff

attempting to prove such conspiracy must show that

the parties ‘reached an understanding’ to deny the

plaintiff his or her rights. The conspiratorial acts must

impinge upon the federal right; the plaintiff must

prove an actional wrong to support the conspiracy.”).

The intracorporate conspiracy doctrine holds that

corporate agents are an extension of the same corporation, thereby defeating the element of the claim that

requires two persons enter into an agreement to deny

a plaintiff of a constitutional right. See McAndrew v.

Lockheed Martin, Corp., 206 F.3d 1031, 1036 (11th Cir.

2000). Under the doctrine, a corporation cannot conspire with its own employees; and employees, acting

within the scope of their employment, cannot conspire

among themselves. Grider v. City of Auburn, Ala., 618

F.3d 1240, 1261 (11th Cir. 2010). The Eleventh Circuit

has extended the doctrine to public entities, such as

the City and its employees. Id. (citing Denney v. City of

Albany, 247 F.3d 1172, 1190-91 (11th Cir. 2001)). An

exception to the intracorporate conspiracy doctrine exists when a plaintiff shows that the conspiring employees were acting outside the scope of their employment.

Id. at 1261.

The Amended Complaint alleges that, at Carollo’s

direction, Lugo agreed to use her political contacts to

shut down the rallies. (ECF No. 43 at ¶ 55). With

App. 69

respect to this alleged misconduct, Lugo and Carollo

argue that the shutting down of the rallies cannot constitute a Section 1983 violation because Carollo was

not acting under state color. See Lugo’s Motion to Dismiss (ECF No. 64 at p. 9). The Court notes that while

this is true for the claim against Carollo, it is not the

case for the conspiracy claim against her since, as she

alleges, Lugo was a government actor at all relevant

times. Plaintiffs’ conspiracy claim against Lugo and

Carollo is independent from Plaintiffs’ claims against

Carollo. Accordingly, the Court must examine whether

Plaintiffs have alleged sufficient facts to maintain

their conspiracy claim against Lugo for this conduct.

Plaintiffs specifically allege that Carollo, after becoming aware of the rallies, contacted Lugo who agreed to

aid in the shutting down of the rallies. Lugo does not

dispute that the rallies constitute protected speech or

raise any other challenge to this misconduct. Therefore, Lugo’s Motion should be denied as to this misconduct.

With regard to the remaining events alleged, including investigation of the holiday party, Lugo’s participation in the walkthrough of Plaintiffs’ businesses,

and subsequent investigation of Ball and Chain, the

undersigned finds that the conduct alleged occur ed

solely between City employees and therefore, are

barred by the intracorporate conspiracy doctrine. Additionally, the doctrine bars Plaintiffs’ claim because

Lugo and Carollo were both City employees acting

within the scope of their employment as the subject of

their alleged conspiracy – retaliating against Plaintiff

App. 70

for expression of constitutionally protected speech – involves job-related functions within their scope of employment. As discussed above, Carollo had the

authority to report and inquire about potential code

violations, and likewise, Lugo, as an employee of the

Code Enforcement Department, was well-within her

scope of employment by investigating potential code violations. See Girder, 618 F.3d at 1261 (“We recognize

that one might reasonably believe that violating someone’s constitutional right is never a job-related function or within the scope of [employment] . . . The scopeof-employment inquiry is whether the employee . . .

was performing a unction that, but for the alleged constitutional infirmity, was within the ambit of [their]

authority (i.e., job-related duties) . . . ”). Accordingly,

the undersigned recommends that Lugo’s Motion be

granted, in part.

III. RECOMMENDATION

For the foregoing reasons, it is RECOMMENDED

that Carollo’s Motion to Dismiss be GRANTED, with

leave to amend; that the City’s Motion to Dismiss be

GRANTED, with leave to amend; and that Lugo’s Motion to Dismiss be GRANTED, in part.

Pursuant to Local Magistrate Rule 4(b), the parties have fourteen (14) days from the date of this Report and Recommendation to serve and file written

objections, if any, with the Honorable Federico A.

Moreno, United States District Judge. Failure to file

objections by that date may bar the parties from de

App. 71

novo determination by the District Judge of any factual or legal issue covered in the Report and shall bar

the parties from challenging on appeal the District

Judge’s Order based on any unobjected-to factual or legal conclusions included in the Report. See 28 U.S.C.

§ 636(b)(1); 11th Cir. Rule 3-1; Patton v. Rowell, No. 1610492, 2017 WL 443634 (11th Cir. Feb. 2, 2017); Cooley

v. Commissioner of Social Security, No. 16-11238, 2016

WL 7321208 (11th Cir. Dec. 16, 2016).

RESPECTFULLY SUBMITTED in Chambers

this 30th day of April, 2019.

/s/ Lauren Louis

LAUREN LOUIS

United States Magistrate Judge

Copies to:

The Honorable Federico A. Moreno

Counsel of Record

App. 72

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 21-11746-CC

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WILLIAM O. FULLER,

MARTIN A. PINILLA, II,

Plaintiffs - Appellees,

versus

JOE CAROLLO,

Defendant - Appellant,

JOHN DOES 1-10, et al.,

Defendants.

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Appeal from the United States District Court

for the Southern District of Florida

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ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

(Filed Apr. 1, 2022)

BEFORE: WILLIAM PRYOR, Chief Judge, WILSON,

and ANDERSON, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having requested that the Court be polled on rehearing en banc.

App. 73

(FRAP 35) The Petition for Panel Rehearing is also denied. (FRAP 40)