VIRGINIA M. HERNANDEZ COVINGTON, District Judge.
Pro se Plaintiffs Martin W. Otto, Sr. and Alma Lee Otto assert that Defendant Hillsborough County seized seventy-one of their purebred dogs on May 2, 2007, and again raided their property and seized "all" of their dogs, "mostly young puppies, mother dogs, new born puppies and ten pregnant females" on December 21, 2009. (Doc. #38 at ¶¶ 8-13). The Ottos filed a scattershot Second Amended Complaint containing twenty-nine counts against the County on March 4, 2013. (Doc. #38). The County filed its Motion to Dismiss (Doc. #41) on March 7, 2013. After considering the Ottos' responsive submission (Doc. #42), the Court grants the Motion to Dismiss and dismisses this action with prejudice.
Although the Ottos have been given multiple opportunities to file a cogent complaint, they have failed to do so. Nevertheless, the Court gathers from reviewing the exhibits to the Second Amended Complaint that the County took possession of seventy-one purebred dogs from the Ottos' premises on May 2, 2007, and thereafter, on December 21, 2009, took possession of the Ottos' remaining sixty-seven dogs, leaving the Ottos without a single dog. The Ottos assert that they are dog breeders and, due to the confiscation of their dogs, have been permanently deprived of their ability to earn a living. In addition, the Ottos assert that the County charged them approximately $7,000.00 for care of the dogs while the dogs were in the County's custody. The Ottos seek $25 million in compensatory damages as well as punitive damages and treble damages. (Doc. #38 at 27-28).
Exhibit 7 to the Second Amended Complaint is an April 1, 2010, Order from the Thirteenth Judicial Circuit in and for Hillsborough County, Florida entered by the Honorable Nick Nazaretian, County Court Judge.
(emphasis in original).
Based on these findings and after an evidentiary hearing, Judge Nazaretian permanently enjoined Alma, Timothy, and Martin Otto from owning animals in Hillsborough County. Judge Nazaretian also ordered the Otto family to pay for "investigative costs, costs of care and veterinary medical costs" in the amount of $7,331.16 to Hillsborough County.
On July 9, 2012, the Ottos filed their initial Complaint against Hillsborough County. (Doc. #1). The County filed a Motion to Dismiss (Doc. #14) on October 15, 2012, and this Court held a hearing on the Motion to Dismiss on December 19, 2012. During the hearing, the Court explained in detail the requirements for filing a complaint in compliance with Rule 8 of the Federal Rules of Civil Procedure and also explained that the Ottos faced statute of limitations issues with respect to the County's actions in 2007. The Court issued an Order on December 19, 2012, dismissing the Complaint without prejudice and with leave to amend. (Doc. #25). Among other things, this Court instructed:
(Doc. #25 at 5).
The Ottos have not complied with the Court's directive. On January 16, 2013, the Ottos filed their rambling, incoherent and deficient Amended Complaint. (Doc. #28). The County once again filed a Motion to Dismiss (Doc. #29) and thereafter, with leave of Court, the Ottos filed the Second Amended Complaint (Doc. #38). For the third time, the County seeks dismissal of this case (Doc. # 41). The Ottos have responded to the third Motion to Dismiss. (Doc. #42).
The Second Amended Complaint asserts the following twenty-nine counts:
1. Unreasonable Searches and Seizures — 4
2. Violation of Due Process Protections — 5
3. Cruel and Unusual Punishment — 8
4. Violation of Equal Protection Clause — 14
5. Trespass
6. Document Fraud
7. Damage to Animal Enterprise
8. Damage to Animal Enterprise
9. Deprivation of Rights under Color of Law
10. Fictitious, or Fraudulent Statement, False Writing or Document Fraudulent Statement
11. Extortion and Threats
12. False Official Certificates or Writing
13. Simulated Forms of Court or Legal Process
14. Defamation
15. Theft of Livestock
16. Searches without Warrant
17. Deprive Economic Benefit of Animal Property Seized
18. Loss of any Real or Personal Property Including Animals or Records
19. Official Records not Recorded
20. Injured in his Business or Property by Reason of a Violation of Section 1962
21. Illegal Costs of Caring for Surrendered Property
22. No Hearing for Custody 10 Days after Seizure
23. Grounds for Issuance of Search Warrant
24. No Inspection Warrants
25. Fraud on the Court
26. Slander
27. Frauds and Swindles
28. Services of a Court Reporter
29. Sale or Receipt of Stolen Livestock
The County seeks the dismissal with prejudice of each count under Rule 12(b)(6), Fed. R. Civ. P., and other governing law. In addition to asserting that the Second Amended Complaint fails to state a cognizable claim, the County also contends that such Complaint is a shotgun pleading and fails to comply with Rule 8, Fed. R. Civ. P.
On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff.
The Court notes that the Motion to Dismiss has not been converted into a motion for summary judgment because the Court has not considered matters outside the pleadings. "Rule 7(a) defines `pleadings' to include both the complaint and the answer, and Rule 10(c) provides that `[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.'"
Although given multiple opportunities to cure identified deficiencies, the Ottos' Second Amended Complaint still fails to comply with Rule 8(a), Fed. R. Civ. P., which requires "(1) a short and plain statement of the grounds for the court's jurisdiction . . ., (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought."
Because a motion to dismiss is before the Court, the Court assumes that all the facts alleged in the Second Amended Complaint are true.
"Criminal statutes provide no basis for civil liability."
Count 6 for "document fraud" asserted pursuant to 8 U.S.C. § 1324c;
Count 7 for "Damage to animal enterprise" asserted pursuant to 18 U.S.C. § 43;
Count 8 for "Damage to animal enterprise" asserted pursuant to Florida Statute § 828.42;
Count 9 for "Deprivation of rights under color of law" asserted pursuant to 18 U.S.C. § 241;
Count 10 for "fictitious, or fraudulent statement, false writing or document fraudulent statement" asserted pursuant to 18 U.S.C. § 1001;
Count 11 for "Extortion and threats" asserted pursuant to Florida Statute § 836.05;
Count 12 for "False Official certificates or writings" asserted pursuant to 18 U.S.C. § 1018;
Count 13 for "Simulated forms of court or legal process" asserted pursuant to Florida Statute § 817.39;
Count 15 for "Theft of livestock" asserted pursuant to 18 U.S.C. § 677;
Count 16 for "Searches without warrant" asserted pursuant to 18 U.S.C. § 2236;
Count 18 for "loss of any real or personal property including animals or records" asserted pursuant to the Animal Enterprise Terrorism Act, 18 U.S.C. § 43;
Count 19 for "official records not recorded" asserted pursuant to 18 U.S.C. § 1021;
Count 27 for "Frauds and swindles" asserted pursuant to 18 U.S.C. § 1341; and
Count 29 for "Sale or receipt of stolen livestock" asserted pursuant to 18 U.S.C. § 2317.
The Ottos purport to assert several federal counts that are not cognizable under the facts presented and are not germane to this action. For instance, the Court dismisses with prejudice, Count 3, for "Cruel and Unusual Punishment" brought pursuant to the Eighth Amendment to the United States Constitution. That cause of action is simply unsupported by the facts of this case as the Ottos are not complaining about any aspect of detention or incarceration.
Likewise, the Court dismisses with prejudice Count 17 for "Deprive economic benefits of animal property seized" asserted pursuant to the Animal Welfare Act ("AWA"), 7 U.S.C. § 2131. Although this case does involve animals, the AWA is completely inapplicable. As discussed in
The dismissal with prejudice of Count 26 is also required. That count is labeled as "Slander" but seeks relief pursuant to 28 U.S.C. § 4101, the Securing the Protection of our Enduring and Established Constitutional Heritage Act (the "SPEECH Act"). As described in
The complained of seizure of the Ottos' animals has no relationship to a foreign judgment and, thus the federal SPEECH Act is inapplicable. Furthermore, the Second Amended Complaint contains no allegations that could support a "slander" action against the County. Instead, the Ottos contend: "We were slandered by the press who did not bother to check the facts . . . My character was assassinated with complete disregard for any kind of journalistic ethics in the newspaper and on several channels of the television." (Doc. #38 at ¶ 16). The Ottos' contention that the "press" improperly characterized them in a negative light is not attributable to the County.
The Court likewise dismisses the Ottos' RICO claim, asserted in Count 20, with prejudice. In this count, the Ottos allege:
(Doc. #38 at ¶ 51) (emphasis in original).
The Ottos' statement of their RICO claim, and the referenced factual allegations, have no bearing whatsoever on the elements required for stating a RICO claim. The four elements required to state a RICO claim are: (1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering activity.
In
The Court determines that the Ottos' RICO claim asserted against the County is completely implausible. Furthermore, the operative complaint does not touch upon or even allude to any of the elements required to assert a successful RICO claim. Any RICO claim asserted under the facts alleged in this case would be specious and meritless. The Court finds that further amendment of this claim would be futile, warranting dismissal with prejudice.
In Count 1, the Ottos claim that the County violated the Fourth Amendment by conducting unreasonable searches and seizures; in Count 2, the Ottos contend that the County violated the Fifth Amendment by ignoring due process protections; and in Count 4, the Ottos assert that the County violated the equal protection clause of the Fourteenth Amendment.
To bring a federal constitutional claim against a state actor, a plaintiff must travel under 42 U.S.C. § 1983.
The Eleventh Circuit, however, has ruled that municipal liability under § 1983 is strictly limited.
As stated by the Court in
Here, the Ottos failed to allege that a policy, practice, procedure or custom existed within the County that was the moving force behind the alleged constitutional injuries, and the Ottos' Constitutional claims asserted via § 1983 in Counts 1, 2, and 4 against the County are accordingly barred and subject to dismissal with prejudice. The Ottos have been given multiple opportunities to identify such a custom or policy and have utterly failed to do so.
The exhibits to the Second Amended Complaint demonstrate that, on December 21, 2009, faced with extreme animal cruelty, the County obtained the voluntary consent of Timothy Otto to take the Ottos' abused and feces-coated dogs. The dogs were in need of emergency medical care and were housed in deplorable conditions. Exigent circumstances were present and justified the actions taken. Thereafter, the Ottos participated in a post deprivation evidentiary hearing and an Order was subsequently issued barring the Ottos from further animal ownership in Hillsborough County. It appears that the Ottos also participated in an appellate process.
The Court determines that the Ottos should not be permitted to further amend the Complaint in an effort to allege that a custom or policy of the County was the moving force behind the Ottos' alleged constitutional injuries. The factual allegations contained in the Ottos' operative complaint and the exhibits attached thereto simply do not support such an allegation. This Court is not inclined to buttress insufficient claims in favor of the Ottos merely because they are proceeding pro se. If the Court were of the opinion that such claims could be properly and plausibly asserted under the facts presented, the Court would not hesitate to allow further amendment. The Court, however, is not convinced. Counts 1, 2, and 4 are therefore dismissed with prejudice.
Having dismissed each of the Ottos' federal claims, the Court determines that it is appropriate to decline to exercise supplemental jurisdiction over the remaining civil claims, which are asserted under state law. Specifically, these claims are asserted in Count 5 (for Trespass), Count 14 (for Defamation), Count 21 (for Illegal costs of caring for Surrendered property under Florida Statute § 440.14), Count 22 (for No hearing for custody 10 days after seizure under Florida Statute § 828.073), Count 23 (for Grounds for issuance of search warrant under Florida Statute § 933.02), Count 24 (for No inspection Warrants under Florida Statute § 933.20), Count 25 (for Fraud on the Court), and Count 28 (for Services of a court reporter).
Diversity jurisdiction is not present in this case, and the Court finds that judicial economy and fairness to the parties are not served by retaining jurisdiction over these state law claims. Accordingly, it is
(1) The Motion to Dismiss (Doc. #41) is
(2) This action is dismissed with prejudice.
(3) The Clerk is directed to terminate all pending motions and to
