Bell v. Florida

• Decision Date: 13 March 2017
• Docket Number: Case No: 6:17-cv-326-Orl-31KRS
• Parties: RENEE D. BELL, Plaintiff, v. STATE OF FLORIDA, Defendant.
• Court: U.S. District Court — Middle District of Florida

RENEE D. BELL, Plaintiff, v. STATE OF FLORIDA, Defendant.

Case No: 6:17-cv-326-Orl-31KRS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

March 13, 2017

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:

This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Doc. No. 2)

FILED: February 23, 2017

I. PROCEDURAL HISTORY.

In this lawsuit, Plaintiff, Renee D. Bell, purports to pursue multiple causes of action against Defendant, the State of Florida ("the State"), including claims that the State violated the U.S. Constitution (including the First, Fifth, and Fourteenth Amendments), violated 42 U.S.C. § 1983, committed criminal conspiracy (including violations of 18 U.S.C. §§ 241 and 242), defamed Plaintiff, violated the employment provisions of the Americans with Disabilities Act ("ADA"), and violated unspecified provisions of the Florida Constitution, "Fla. Administrative laws," and "regulations governing officers of the law." Doc. No. 1. She seeks $12 million in damages, "restoration of damage to name," back pay from February 20, 2006 to the present, and payment for property loss from June 13, 1988 to the present. Id. Although Plaintiff provides scant factual details in her complaint, it is apparent that this is a continuation of Plaintiff's previous lawsuit, Bell v. Florida Highway Patrol, Case No. 6:05-cv-1806-Orl-31DAB. See id. at 1 ("Comes now, the Plaintiff, in the above styled cause, by and through Pro Se, authority file a new case in respect to prior case filed and dismissed. The prior cause subject, Renee D. Bell v. FHP, et al.").¹

That lawsuit has a long and complex history, which has been outlined elsewhere and will be stated only briefly here. See, e.g., Case No. 6:05-cv-1806 ("Bell I"²), Doc. Nos. 110, 146, 162; Bell v. Fla. Highway Patrol, 325 F. App'x 758 (11th Cir. 2009) (per curiam), 476 F. App'x 856 (11th Cir. 2012) (per curiam), 589 F. App'x 473 (11th Cir. 2014) (per curiam). Plaintiff initially filed suit against the Florida Highway Patrol ("FHP") and Larry Costanzo on December 5, 2005. Bell I, Doc. No. 1. After her motion to proceed in forma pauperis was denied, Plaintiff paid the filing fee and was granted leave to file an amended complaint, which she did on May 21, 2007. Id., Doc. No. 44. The Court granted Defendants' motion to dismiss the amended complaint on July 23, 2007, and granted Plaintiff an opportunity to amend. Id., Doc. No. 53. Plaintiff filed her second amended complaint on August 7, 2007. Id., Doc. No. 54. The Court dismissed the second amended complaint with prejudice, Doc. No. 61, but the Eleventh Circuit later reversed that decision. Bell, 325 F. App'x at 758. After remand, Defendants again moved to dismiss Plaintiff's second amended complaint. The Court granted that motion and dismissed the second amended complaint without prejudice, but also gave Plaintiff leave to file a third amended complaint. BellI, Doc. No. 81. In the Order, the Court gave Plaintiff specific instructions as to the form and contents of any such third amended complaint. Id.

Plaintiff filed her third amended complaint on August 7, 2009. Id., Doc. No. 84. Defendants again moved to dismiss. The Court granted the motion to dismiss because Plaintiff had not complied with the previous Order regarding the form and contents of her third amended complaint. Id., Doc. No. 110. The Court dismissed Plaintiff's third amended complaint without prejudice and gave her one final opportunity to amend. Id. Rather than amend, Plaintiff appealed the decision to the Eleventh Circuit. While Plaintiff's appeal was pending, Plaintiff also was granted permission to file a fourth amended complaint, which she filed on December 9, 2009. Id., Doc. No. 127. The Court dismissed the fourth amended complaint, this time with prejudice, on July 22, 2010. Id., Doc. No. 135. Plaintiff appealed that decision, too. On August 16, 2011, the Eleventh Circuit concluded that the dismissal of Plaintiff's third amended complaint became a final, appealable order when she filed her notice of appeal, thereby depriving the district court of jurisdiction. Thus, it remanded the case and instructed the district court to strike Plaintiff's fourth amended complaint and vacate all orders after Plaintiff filed her notice of appeal of the dismissal of the third amended complaint. In deciding the case, the court noted that, by choosing to appeal rather than amend, Plaintiff had waived her right to amend. Id., Doc. No. 146.

On May 24, 2012, the Eleventh Circuit ruled on Plaintiff's appeal of the dismissal of her third amended complaint and affirmed the Court's ruling. Bell, 476 F. App'x at 856. Because she now had no operative complaint, Plaintiff requested permission to file a fourth amended complaint. Ultimately, the Court denied that request and directed the Clerk to close the file. Bell I, Doc. No. 162. Plaintiff again appealed, but the Eleventh Circuit affirmed the decision on December 11, 2014, noting that Plaintiff waived her right to further amend her complaint when she chose to appealthe order dismissing her third amended complaint, rather than taking advantage of the opportunity to amend. Bell, 589 F. App'x at 474. Plaintiff filed a petition for writ of certiorari to the U.S. Supreme Court, but that petition was denied on October 3, 2016. Bell v. Fla. Highway Patrol, 137 S. Ct. 234 (2016). Plaintiff's request for rehearing was denied on January 23, 2017, finally bringing the Bell I litigation to a close. Bell v. Fla. Highway Patrol, No. 16-5434, 2017 WL 276277 (U.S. Jan. 23, 2017). One month later, Plaintiff initiated this action.

Although Plaintiff was not entirely consistent in the presentation of her claims throughout the decade-long Bell I litigation, a review of the five complaints she filed in that case makes it clear that her dispute with the FHP is, at its heart, an employment dispute. It appears that Plaintiff began employment with the FHP on June 13, 1988, as a communications dispatch officer. Bell I, Doc. No. 84, at 17. In 2000, Plaintiff became a word processor and typist, a position that Plaintiff held until her separation from employment on February 20, 2006. Id. It appears that the events that led to Plaintiff's termination began on August 3, 2005. It appears that, when the FHP described the reasons for Plaintiff's termination, it described them as follows:³

On August 3, 2015, Plaintiff's immediate supervisor (a defendant in the Bell I litigation), Larry Costanzo, advised her not to discuss the recent firing of another employee. After that, Plaintiff made a 911 call to the Orange County Sheriff's Office and falsely (according to the FHP) reported that she had been threatened by Costanzo. Plaintiff insisted that the Sheriff's Office send a deputy to the FHP station. Another trooper was present when the deputies arrived and reported that she was very embarrassed by the way Plaintiff acted in front of the deputies. Also on August 3, after calling the Sheriff's Office, Plaintiff called WFTV Channel 9 and reported that another FHPcaptain was being arrested. A WFTV news anchor called the FHP's public affairs officer for comment, and the public affairs officer reported that she was highly embarrassed by Plaintiff's actions. Based on these actions and what the FHP described as a "pattern of creating a hostile work environment for supervisors and for co-workers" and a "strong unwillingness to interact and cooperate with supervisors and coworkers as well," the FHP proposed to dismiss Plaintiff from employment. Id., Doc. No. 84, at 6. It appears that Plaintiff's termination became final on February 20, 2006. Id. at 17; see also Bell II, Doc. No. 1, at 2 (seeking back pay from February 20, 2006 to the present).

In the Bell I litigation, Plaintiff lodged many complaints about this series of events, including defamation by Costanzo, administrative irregularities in the procedures used to terminate her (for example, relying on hearsay and terminating her even though a policy would allegedly restrict the penalty for first occurrences to suspension), and claims that her termination violated the U.S. Constitution and constituted retaliation. See, e.g., Bell I, Doc. No. 84, at 4, 7-14, 25-29. Plaintiff also complained about some events that occurred prior to her termination, including allegations that she was discriminated against on the basis of her race in violation of Title VII of the Civil Rights Act of 1964 and her disability in violation of the ADA. See, e.g., id. at 17-25. Although Plaintiff does not provide any factual detail in her current complaint, it is clear that she is still complaining about her termination and the conditions of her employment with the FHP.⁴ Indeed, she explicitly says that she wants to "file a new case in respect to prior case filed and dismissed." Bell II, Doc. No. 1, at 1. Thus, although she has changed the Defendant to be the State and has possibly addedsome new legal theories, she is basing this lawsuit on the same factual underpinnings as the facts that supported the Bell I litigation.

Plaintiff seeks to proceed in the current case without prepayment of fees (Doc. No. 2), which the Court construes as a motion to proceed in forma pauperis. Her motion has been referred to me and is ripe for decision.

II. STANDARD OF REVIEW.

Pursuant to 28 U.S.C. § 1915(e)(2)(B), when a plaintiff seeks to proceed in forma pauperis the Court is required to consider whether the plaintiff's complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See also Local Rule 4.07; Mitchell v. Farcass, 112 F.3d 1483, 1491 n.1 (11th Cir. 1997) (Lay, J., concurring) ("Section 1915(e) applies to all [in forma pauperis] litigants — prisoners who pay fees on an installment basis, prisoners who pay...