Nielsen v. Pinellas County, Office of Human Rights et al, No. 8:2008cv00711 - Document 28 (M.D. Fla. 2009)
Court Description: ORDER granting 18 Motion to dismiss with leave to file an amended complaint which cures all defects of the current Amended Complaint, within twenty days of this Order; denying 23 Motion for leave to file. Signed by Judge Elizabeth A. Kovachevich on 8/17/2009. (CB)
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Nielsen v. Pinellas County, Office of Human Rights et al UNITED MIDDLE Doc. 28 STATES DISTRICT TAMPA FREDERICK V. DISTRICT OF COURT FLORIDA DIVISION NIELSEN, Plaintiff, v. CASE NO. PINELLAS COUNTY, OF HUMAN RIGHTS, 8:08-CV-711-T-17TBM OFFICE Defendant. ORDER This cause Dkt. Dkt. 23 Dkt. 24 Response Dkt. 25 Notice Dkt. 26 Reply 18 is before the Court on: Motion to Dismiss Amended Complaint Motion for Leave to File Second Amended Complaint In the Amended Complaint, asserts claims Charge of the Discrimination states Title VII the Age of retaliation, Defendant's VII the of internal that on the basis Discrimination Plaintiffs Charge claim of Frederick V. for discrimination in employment. discriminated against of Plaintiff Civil in of Nielsen Plaintiff's Plaintiff Nielsen was sex and race in violation Rights Act of 1964, as amended, Employment Act of 1967, as amended. Discrimination was allegedly denying amended to Plaintiff grievance procedure, and include a access to in violation of Title and the ADEA. Dockets.Justia.com Case I. No. 8:08-CV-711-T-17TBM Standard As S.Ct. the 1955 12(b)(6) Review Supreme (2007), of state a of the a Rules claim upon which facts on its Id. face." standard set (1957)). at The this to at forth 1974 in inferences and allegations relief above in the the failure it does Rule to not (rejecting the traditional 12(b)(6) Gibson, reasonable favor. conclusions survive if to is plausible Court To granted for 127 relief that facts allegations. Procedure can be 355 set in cast a motion complaint speculative if the level." are Court such presumed dismiss, the to are Nor must form of be need not inferences complaint. "must be enough 45-46 inferences must the in the to 41, complaint However, out U.S. factual drawn by plaintiffs legal dismissed pursuant in plaintiff's all Twomblv, a claim for unsupported by the accept Bell Atlantic v. of Civil Conley v. allegations stage in relief state construed in plaintiff's accept held complaint must be Federal plead "'enough true Court the factual factual raise Bell Atlantic, a right 127 to S.Ct. at 1965. II. A. Dkt. 18 Failure Motion to Defendant Join to Indispensable argues indispensable party, that County Office Pinellas County that the Plaintiff Plaintiff Nielsen of Human Government, proposed Party Pinellas County. Pinellas In Dismiss and Rights lacks has Defendant is the a has changed the argues department capacity Second Amended Complaint, Nielsen filed to the Defendant to join an that the of to be sued. Court notes "Pinellas Case No. County, 8:08-CV-711-T-17TBM a political subdivision of After consideration, as to this B. the Court to Defendant Florida." the Motion Rule argues the Amended Complaint that of circumstances, to Dismiss 10(b), which and therefore Fed.R.Civ.P. are not contains limited to dismissal without a single prejudice appropriate. does The Court not contain After as grants of Comply with multiple unnumbered paragraphs is State issue. Failure set the that the proposed Second Amended Complaint unnumbered paragraphs. consideration, to this C. notes the Court grants the Motion to Dismiss issue. Failure to State a Claim for Violation of 42 U.S.C. Sec. 1985(3) Defendant sufficient 42 U.S.C. facts Sec. Plaintiff s doctrine. 761, 767 argues to state 1985(3). claim See that is the Motion file proposed claim for Defendant barred by the does conspiracy further not in argues intracorporate allege violation of that conspiracy Alachua County Commission, 200 F.3d 2000) . Plaintiff Nielsen Amend to a Dickerson v. (11th Cir. Defendant's Plaintiff Nielsen to did not Dismiss, file but a response filed a in Motion opposition for Leave the proposed Second Amended Complaint. Second Amended Complaint has not been to to However, amended as to Case No. this 8:08-CV-711-T-17TBM issue. Defendant's Motion consideration, the Court grants is unopposed. After the Motion to Dismiss a Claim for Violation of 42 as to issue. D. Failure to State Defendant only sex and support a age claim Defendant the the 528 basis the age for 83-84 without classification legitimate state Defendant further should be such, 1981 redress. See 42 U.S.C. Defendant See Sec. lacked a Kimel v. in question the is alleges necessary to 1981. does not plead facts rational basis Fla. (2000)("States may offending facts 1981 Bd. Of discriminate on Fourteenth Amendment if rationally related to a interest.") party that Sec. that discrimination. age of no the Amended Complaint 62, Sec. Plaintiff's Amended Complaint violation that U.S. of a establish alleged Regents, that discrimination and alleges argues sufficient to for argues U.S.C. is the not Butts argues v. that Defendant, defendant, is a the proper avenue and the State Actor, for County of Volusia, proper and, Plaintiff 222 F.3d 891 as to seek (11th Cir. 2000) . The Court Complaint was unopposed. Dismiss E. as Failure notes not After to to Defendant this that Plaintiff's amended as to this consideration, the proposed issue. Court Second Amended Defendant's Motion grants the Motion is to issue. State argues a Claim that for Violation of 42 U.S.C. Plaintiff's Amended Complaint Sec. does 1983 not Case No. 8:08-CV-711-T-17TBM allege a policy, and therefore pursuant Serv. to fails 42 of City of allege facts rational Section Sec. for argues the further claim to Inter-Local Agency, Defendant's argues of 551 Motion that that (1978). Defendant F.Supp.2d is the Dismiss as this a therefore does claim is based on See McNa 1343, 1349 unopposed. consideration, and lacked not Plaintiff may not maintain a the ADEA. After Failure does extent that issue. F. the Amended Complaint 690 Dept. 1983. proposed Second Amended Complaint to Soc. 658, v. liability of establish Section the underlying violations that Monell alleged discrimination, claim under 1983 See 436 U.S. to of discrimination, a claim for municipal 1983. New York, sufficient Defendant pattern or practice state further basis state a to U.S.C. Defendant not custom, The was not the Court v. Communications (M.D. Court Fla. notes amended as grants 2008). that to the this the Motion to issue. to Allege Facts Sufficient to Invoke 28 U.S.C. Sec. 1391(e)(3)(2008) Defendant Defendant is an agency thereof, U.S. C. Sec. for that officer or and, employee therefore, further argues jurisdiction violation of Plaintiff does of cannot the not allege that United States proceed pursuant or to an 28 1391. Defendant basis argues Rule 8, over that Plaintiff does Plaintiff's Fed.R.Civ.P. state law not specify the claims, in Case No. 8:08-CV-711-T-17TBM The Court notes Complaint, his state that in the proposed Second Amended Plaintiff Nielsen alleges law claims pursuant to that the Florida The proposed Second Amended Complaint U.S.C. this Sec. 1391(e) (3). issue. Dismiss III. as After to Motion this for Defendant's consideration, Plaintiff was not Motion the Civil bringing Rights Act. amended as is Court is to 28 unopposed as to grants the Motion to issue. Leave to File Plaintiff Nielsen moves Second Amended Complaint for leave to file the proposed Second Amended Complaint. Defendant opposes Plaintiff's Motion Second Amended Complaint. Motion should be denied because the Complaint does Complaint. not U.S.C. and 28 Sec. U.S.C. Leave See 178, futile. Courts V. to an amended 15 (a). a of as under a Sec. 1981, 42 Plaintiff's to claim pursuant U.S.C. should be Foman v. Sec. Rule 15 (a) when amended is still subject F.3d 1310, leniency to pro court the Davis, 371 amendment justified by 1320 se license to to to would be futility when (11th Cir. serve 1983, U.S. dismissal. litigants, to freely given. court may properly deny leave is a File the Amended state amend give of to to 169 that to Plaintiff's proposed Second leave Weaver, not defects complaint Pursuant district argues Leave proposed Second Amended fail U.S.C. file should show leniency does 42 the that 1391(e)(3). Denial King Corp. argues continues complaint complaint of Sec. (1962), amend the the to all 1985(3), Fed.R.Civ.P. 182 cure Defendant Amended Complaint 42 Defendant for 1999). but as Burger de this facto Case No. counsel 8:08-CV-711-T-17TBM for a party, pleading in order or to to County of Escambia, sustain an Fla., After consideration, to File would be IV. 26 Dkt. The to to the Federal Rules file a it with of Civil for Leave Second Amended of Florida. and the Court that Plaintiff Procedure, is and the Local Plaintiff did not the Motion to file to grant did not seek leave. an Dismiss Amended Complaint amended complaint current Amended Complaint, Order. It ORDERED that Complaint the 1998). is leave the District Reply, ORDERED that of the Motion v, Reply Plaintiff Neilsen granted, (11th Cir. Inc. dismissal. reminds Accordingly, Investments, 1369 the Court denies Court leave to this GJR 132 F.3d 1359, subject Rules of the Middle defects action. Second Amended Complaint because Complaint subject rewrite an otherwise deficient is within which is cures twenty days further the Motion is denied due to for Leave futility. to File Second Amended all of Case No. 8:08-CV-711-T-17TBM DpNE y Copies All and ORDERED of August, in Chambers, 2009. to: parties and counsel of record in Tampa, Florida on this
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