JOSE E. MARTINEZ, District Judge.
THE MATTER was referred to the Honorable Chris McAliley, United States Magistrate Judge for a Report and Recommendation on Defendants' Motion to Dismiss Amended Complaint (D.E. No. 29). Magistrate Judge McAliley filed a Report and Recommendation, recommending that Defendants' motion be granted. Plaintiff Nicolas A. Manzini ("Plaintiff) objects to Magistrate Judge McAliley's recommended dismissal of his claims against Defendant Jennifer Falcone Moore ("Moore" or "Defendant") in Counts I and II asserted against her in her individual capacity for damages.
Specifically, Plaintiff objects to Magistrate Judge McAliley's recommended dismissal of his claims against Moore in her individual capacity for damages in Counts I and II, arguing that Magistrate Judge McAliley erred in "sua sponte" considering Moore's argument that she is entitled to qualified immunity, that Magistrate Judge McAliley erred in not recommending that he be given an opportunity to file an amended complaint as to these counts, and that Moore is not entitled to qualified immunity because she was not acting within her discretionary authority when she sent a "libelous" email to Plaintiffs former client on March 18, 2010. Plaintiff also raises a new argument in his reply brief in support of his objections, arguing that he can or has alleged a violation of a federally protected right. The Court has reviewed the entire file and record and made a de novo review of the issues that the objections to the Magistrate Judge's Report and Recommendation present. After careful consideration and for the reasons set forth below, the Court rejects Plaintiffs objections and affirms and adopts Magistrate Judge McAliley's Report and Recommendation.
First, the Court finds Plaintiffs argument that Magistrate Judge McAliley erred by sua sponte considering Moore's argument that she is entitled to qualified immunity, which was first raised in her reply brief, is without merit. Magistrate Judge McAliley appropriately notes that Plaintiff is proceeding pro se and that she has the responsibility to sua sponte dismiss in forma pauperis claims seeking monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). More importantly, any possible prejudice that could have resulted from Magistrate Judge McAliley addressing this argument in her Report and Recommendation is cured by the fact that she did in fact address this argument in a Report and Recommendation and not a final order. Accordingly, Plaintiff had the opportunity to respond to the qualified immunity argument and indeed took advantage of that opportunity, addressing the issue of Moore's qualified immunity in his objections. Accordingly, this issue is completely devoid of all merit, and the Court rejects Plaintiffs objection on this ground.
Next, the Court finds Plaintiffs argument that Magistrate Judge McAliley erred by not recommending that he be given an opportunity to file a second amended complaint is equally without merit. Magistrate Judge McAliley was not required to recommend that Plaintiff be permitted to file an amended complaint. Plaintiff does not cite any case law that holds to the contrary. This is particularly true as Plaintiff argues that Magistrate Judge McAliley should have sua sponte allowed him to amend and not that he asked and she rejected his request. In addition, Plaintiff already filed one amended complaint, and most importantly, the time for filing an amended complaint long since expired under the Court's scheduling order. See (D.E. No. 34) (noting that motions to amend the complaint must be filed on or before November 21, 2011).
The Court also finds Plaintiffs argument that Moore is not entitled to qualified immunity as to Count I because she was not acting within her discretionary authority is without merit. When a government official is sued in her official capacity, she may assert qualified immunity. To demonstrate she is entitled to qualified immunity, a government official must first demonstrate that she was engaged in "a discretionary function when [s]he performed the acts of which the plaintiff complains." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) (internal quotations omitted). In determining whether a government official was performing a discretionary function the "inquiry is two-fold." Id. at 1265. First, the Court asks whether the government employee was "(a) performing a legitimate job-related function (that is pursuing a job-related goal), (b) through means that were within his power to utilize." Id.
In his objections. Plaintiff cites Carroll v. Gross, 984 F.2d 392 (11th Cir. 1993) and argues "[i]n order for Ms. Moore to be immune from Plaintiffs section 1983 claim, it is necessary that `she was acting as [an] agent of the Florida Supreme Court in disciplinary proceedings [at the time of her actions].'" (D.E. No. 63 at 18) (purportedly quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)).
First, Carroll does not state that Moore had to be acting as an agent of the Florida Supreme Court in disciplinary proceedings to be entitled to qualified immunity. In Carroll, the Eleventh Circuit affirmed the district court's dismissal of an action under 28 U.S.C. § 1915(d), finding that the defendants' absolute immunity justified dismissal. 984 F.2d at 393. The Carroll decision, which is a very short decision, found that defendants who were members of the Florida State Bar were entitled to absolute immunity because at the time of the alleged conduct they were acting as agents of the Florida Supreme Court. Id. Thus, Carroll concerns absolute immunity and not qualified immunity, which is at issue in this case, and more importantly, Carroll did not hold that a Florida Bar employee must be acting at a time when there are ongoing disciplinary proceedings to be entitled to qualified immunity. Thus, Plaintiffs reliance on Carroll is misplaced. The Court adopts Magistrate Judge McAliley's analysis of this issue and agrees that Moore was performing a discretionary function. (D.E. No. 61 at 13).
The Court also finds Plaintiffs argument that because he has alleged that Moore communicated "lies" she could not have been acting within her discretionary authority is equally without merit. Plaintiffs argument is basically that because he has alleged that a government official is guilty of misconduct that the government official should not be able to claim that she was acting within her discretionary authority and is entitled to qualified immunity. This, however, would completely obliterate the defense of qualified immunity and is not how this Court determines whether an official is acting within his or her discretionary authority. "Put another way, to pass the first step of the discretionary function test for qualified immunity, the defendant must have been performing a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description. Holloman, 370 F.3d at 1266 (emphasis in original). For all of the reasons discussed above, the Court finds that Moore was performing a discretionary function. Accordingly, the Court rejects Plaintiffs objection to Magistrate Judge McAliley's recommended dismissal of Count I on qualified immunity grounds.
Plaintiff also makes an argument for the first time in his reply brief in support of his objections that he can in fact or has in fact identified violations of the constitution or federal law. (D.E. No. 65 at 7). Specifically, Plaintiff argues that Moore violated his rights under the Sixth Amendment and his due process rights under the Fourteenth Amendment. It is unclear if these arguments are made in opposition to Magistrate Judge McAliley's recommendation that the Court grant qualified immunity as to Count I or in opposition to Magistrate Judge McAliley's recommendation that this Court dismiss Count II for failure to state a claim. The Court first finds that these arguments are untimely, and in the alternative, the Court finds that they are without merit.
First, the Court finds this new objection raised in Plaintiffs reply brief is untimely. As Magistrate Judge McAliley informed Plaintiff, he had fourteen days from the date of the Report and Recommendation, which was signed and docketed on May 1, 2012, to file his objections to Magistrate Judge McAliley's Report and Recommendation. See (D.E. No. 61 at 16). Plaintiff did in fact file objections, stating three objections, which the Court has discussed and considered above. In these three objections. Plaintiff did not argue that Magistrate Judge McAliley's Report and Recommendation was in error because Moore did in fact violate his federally protected rights. On May 24, 2012, past the deadline for filing objections. Plaintiff filed his reply brief which raises this new objection. The Court finds it is untimely and denies it for this reason. See also Abrams v. Ciba Specialty Chemicals Corp., 663 F.Supp.2d 1220, 1232 n.16 (S.D. Ala. 2009) (stating that "new arguments are impermissible in reply briefs.").
In the alternative, even considering the merits of Plaintiff's argument, the Court finds Plaintiff has still failed to state federal violations. The Court finds Plaintiffs assertion that he can demonstrate a violation of the Sixth Amendment in the context of Magistrate Judge McAliley's recommended dismissal of Count II are without merit. Magistrate Judge McAliley recommended that Plaintiffs claim against Moore in her individual capacity for damages in Count II be dismissed for failure to state a claim. Specifically, in Count II Plaintiff alleged that Moore violated his Sixth Amendment rights to due process. (D.E. No. 24 at 10). Magistrate Judge McAliley, however, found that the Sixth Amendment is entirely inapplicable to Moore's alleged conduct as it applies only to criminal prosecutions, and in this Count, Plaintiff referenced only a civil proceeding. (D.E. No. 61 at 11). Plaintiff appears to argue that he could allege a Sixth Amendment violation because at the time Moore disclosed certain information in the civil state case there was a criminal investigation pending against him and because Moore allegedly "instigated" the criminal prosecution against Plaintiff without telling the judge in the civil action or Plaintiff that such a criminal investigation was ongoing or without telling anyone that she had provided information pursuant to a subpoena in the criminal investigation. (D.E. No. 65 at 7, 11-12). Specifically, Plaintiff alleges that he had the right to view any evidence submitted to the judge in the civil case in camera because the same information was being considered in his criminal investigation, and he had a right to view these documents stemming from his right to confront witnesses under the Sixth Amendment. Id. at 11. Plaintiffs arguments, however, still focus on actions taken by Moore in the civil lawsuit and not on any actions taken in a criminal prosecution. Moreover, Plaintiffs argument is that he was deprived of the right to confront witness in the civil action and not in the criminal prosecution. Accordingly, Plaintiff has still failed to state a claim in Count II for the same reasons stated in Magistrate Judge McAliley's Report and Recommendation.
The Court also finds that to the extent Plaintiff argues he can allege the violation of a constitutional right in the context of qualified immunity and Count I, his arguments are without merit. In considering the doctrine of qualified immunity, after a government official meets the burden and demonstrates that she was engaged in a discretionary function, Magistrate Judge McAliley correctly noted that "[t]he burden thus shifts to Plaintiff, to allege facts that demonstrate that Moore's conduct violated a constitutional right and that, at the time of the violation, the constitutional right was clearly established." (D.E. No. 61 at 13) (emphasis in original). Magistrate Judge McAliley found in examining this shifting burden that
(D.E. No. 61 at 14). As stated above. Plaintiff now alleges that he could allege a violation of the Sixth Amendment and the Fourteenth Amendment. For the reasons discussed above, Plaintiffs arguments relating to the Sixth Amendment are without merit.
Plaintiff alleges that Moore violated both his substantive and procedural due process rights under the Fourteenth Amendment by sending the March 18, 2010 email to Plaintiffs former client "falsely advising that Plaintiff had admitted trust account violations." (D.E. No. 65 at 7). Plaintiff alleges that this "false email" was "the basis" for the judge in the civil case entering an ex-parte injunction that froze Plaintiffs bank accounts for two weeks resulting in the closure of Plaintiff's law office. Id. at 8. In his Amended Complaint, Plaintiff alleged that based on Plaintiffs false emails his former client filed suit against him and his former "legal client was successful in getting the circuit court judge . . . to issue an injunction freezing all of . . . [his] bank accounts . . . on an ex-parte basis." (D.E. No. 24 at ¶¶ 17, 18).
First, with regard to substantive due process, "[t]he substantive component of the Due Process Clause protects those rights that are fundamental, that is rights that are implicit in the concept of ordered liberty." McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994) (internal quotations omitted). Plaintiff has not alleged that there has been a violation of a fundamental right, and he does not state a violation of his substantive due process rights.
Next, Plaintiff argues that he has a procedural due process claim for deprivation of a property interest. (D.E. No. 65 at 11). To state a claim for procedural due process a plaintiff must allege "a deprivation of a constitutionally-protected liberty or property interest; state action and constitutionally inadequate process." Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). A plaintiff must also be able to establish an "affirmative causal connection between the defendant's acts or omissions and the alleged constitutional deprivation." Troupe v. Sarasota County, Fla., 419 F.3d 1160, 1165 (11th Cir. 2005). Plaintiff alleges that he suffered a deprivation of his property interests because the judge in the state civil action froze his bank accounts for two weeks causing him to have to close his law office. (D.E. No. 65 at 10-11). Plaintiff alleges that it was Moore's disclosure of certain information to his former client in certain emails that resulted in his former client filing the state court action against him and in turn resulted in the state court trial judge freezing his bank accounts. Id. at 7-8, 10; (D.E. No. 24 at ¶ 17-21).
2. This case is
DONE AND ORDERED.
