O'Boyle v. Sweetapple

• Decision Date: 17 May 2016
• Docket Number: CASE NO.:14-CV-81250-KAM
• Parties: Martin E. O'Boyle, Plaintiff, v. Robert A. Sweetapple, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

187 F.Supp.3d 1365

Martin E. O'Boyle, Plaintiff,

v.Robert A. Sweetapple, et al., Defendants.

CASE NO.:14-CV-81250-KAM

United States District Court, S.D. Florida.

Signed May 17, 2016

Daniel Desouza, Desouza Law, P.A., Fort Lauderdale, FL, for Plaintiff.

Barry Adam Postman, Joshua Alexander Goldstein, Cole Scott & Kissane, P.A., Kristi Bergemann Rothell, Methe & Rockenbach, P.A., West Palm Beach, FL, Jeffrey Lawrence Hochman, Hudson Carter Gill, Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA, Fort Lauderdale, FL, for Defendants.

OPINION AND ORDER

KENNETH A. MARRA, United States District Judge

This matter is before the Court on Defendant, Town of Gulf Stream's, Motion to Dismiss Second Amended Complaint (DE 56). This matter is ripe for review. As more fully described below, the motion is partially granted.

I. Background

Plaintiff, Martin E. O'Boyle, sues the Town of Gulf Stream (the "Town") under 42 U.S.C. § 1983 (2012) for First Amendment retaliation.¹ The following facts are taken from O'Boyle's second amended complaint, which the Court must accept as true for the purposes of this order.

O'Boyle, who is a resident of the Town, describes himself as "an avid supporter of Florida's Public Records Law."² (DE 41 ¶¶ 8–9.) Over the past few years, he has submitted numerous public records requests to the Town and various other municipalities and agencies. (DE 41 ¶ 9.)When O'Boyle believes that his public records requests are not complied with, he sues to enforce his rights under the Public Records Law. (DE 41 ¶ 10.) O'Boyle has filed approximately 29 lawsuits against the Town for alleged violations of the Public Records Law. (DE 41 ¶ 11.) With the sole purpose of chilling O'Boyle's right to petition in the courts for redress, the Town commission unanimously voted to initiate a RICO lawsuit against O'Boyle. (DE 41 ¶¶ 65–66.)³

Prior to the RICO suit, O'Boyle ran for a seat on the Town council and placed numerous campaign signs throughout the Town. Many of the signs were allegedly removed by Town agents or officials. (DE 41 ¶ 13.) These signs were allegedly "targeted" for removal at the request of Town Manager William Thrasher because the signs contained political content. (DE 41 ¶ 13.) During this same time period, O'Boyle flew banners and displayed signs that were critical of his opponents or carried other political messages. (DE 41 ¶ 14.) In response, the Town threatened O'Boyle with code enforcement citations carrying daily fines not to exceed $500 per sign per day if O'Boyle did not remove his signs and otherwise cease such political speech. (DE 41 ¶ 14.) The Town has made similar threats against other residents displaying signs with political messages and has issued citations to such residents. (DE 41 ¶¶ 53–54.) The Town has also used the state-court system to sanction or restrain O'Boyle from flying politically-charged banner planes. (DE 41 ¶ 59.)

After the March 2014 election, O'Boyle continued to criticize Town officials with banners on the side of his truck, which he would occasionally park at Town Hall "to ensure maximum visibility and political effectiveness." (DE 41 ¶¶ 16, 56.) In April 2014, the Town passed a parking ordinance that was directed at preventing this display of O'Boyle's banners. (DE 41 ¶ 58.) The ordinance reserves parking spaces in front of Town Hall for Town employees or those conducting business at Town Hall. (DE 41 ¶ 63.) The effect of this ordinance is that O'Boyle may only park in the rear of Town Hall, where his banner will enjoy little visibility because the Town installed hedges near the rear parking spaces shortly after enacting the ordinance. (DE 41 ¶ 63.) The Town later towed O'Boyle's truck for violating the ordinance. (DE 41 ¶ 64.)

O'Boyle claims that the Town's actions constitute retaliation for constitutionally-protected speech and activities. The Town moved to dismiss for failure to state a claim. In its motion, the Town also argues that the complaint is ambiguous or a "shotgun" pleading and that O'Boyle, at a minimum, should be required to re-plead with more exacting allegations.

II. Legal Standard

While the Town labels its motion as solely a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the motion raises some arguments that are more accurately categorized as being brought under Rule 12(e), which governs motions for a more definite statement. Putting aside labels in favor of substance, the Court discusses the standards for both types of motions.

A. Rule 12(b)(6) Standard

Rule 8(a) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the ground on which it rests. The Supreme Court has held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and alteration omitted).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937. The Court must accept all of the plaintiff's factual allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

B. Rule 12(e) Standard

Rule 12(e) permits a party to "move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." If a pleading "fails to specify the allegations in a manner that provides sufficient notice" or does not contain enough information to allow a responsive pleading to be framed, the proper motion to be filed is a motion for a more definite statement. Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ; Sisk v. Tex. Parks and Wildlife Dep't , 644 F.2d 1056, 1059 (5th Cir.1981). Courts typically grant motions under Rule 12(e) for "shotgun" pleadings, in which it is "virtually impossible to know which allegations of fact are intended to support which claim(s) for relief." Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll. , 77 F.3d 364, 366 (11th Cir.1996).

III. Discussion

A. Motion to Dismiss

Retaliation against the exercise of First Amendment rights is a well-established basis for section 1983 liability. Bennett v. Hendrix , 423 F.3d 1247, 1255–56 (11th Cir.2005) ; Pendleton v. St. Louis Cty. , 178 F.3d 1007, 1011 (8th Cir.1999). The elements of a First Amendment retaliation claim are (1) the plaintiff engaged in speech or an act that was constitutionally protected, (2) the defendant's retaliatory conduct adversely affected the protected speech or act, and (3) there is a causal connection between the retaliatory actions and the adverse effect on the constitutionally-protected speech or act. Bennett , 423 F.3d at 1250. Furthermore, when a plaintiff sues a municipality under § 1983, the plaintiff must show that execution of the municipality's policy or custom caused the alleged injury. Monell v. Dep't of Soc. Servs. of N.Y. , 436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

O'Boyle alleges three bases for his retaliation claim: (1) the Town's filing of a RICO suit in response to O'Boyle's multiple lawsuits against the Town pursuant to Florida's Public Records Law, (2) the Town's actions in response to O'Boyle's flying of banners and display of signs with messages criticizing Town officials and other political content, and (3) the passing of the parking ordinance and towing of O'Boyle's truck pursuant to the ordinance. The Court addresses each basis separately.

1. The Town's RICO Lawsuit Against O'Boyle

Regarding the Town's RICO lawsuit in response to O'Boyle's multiple lawsuits under Florida's Public Records Law, the Town argues that O'Boyle cannot satisfy the first element of a retaliation claim—constitutionally-protected speech or activity. The Town bases its argument on the premise that O'Boyle's right to public records, which forms the basis of his lawsuits, arises under state law rather than the First Amendment. Assuming without deciding that the Town's premise is correct, it does not follow that O'Boyle's right to file a lawsuit enforcing a state-law right is not constitutionally protected. The substantive right that forms the basis of O'Boyle's lawsuits against the Town is separate from his right to sue the Town (regardless of the particular underlying grievance). The Town improperly conflates these rights.

Suing a municipality is a form of petitioning the government for a redress of grievances and is thus protected by the First Amendment.⁴ See Tuccio v. Marconi , 589 F.3d 538, 541 (2d Cir.2009) ("To be sure, our constitutional doctrine prohibits government officials from punitive retaliation against persons who exercise their First Amendment right to sue the government."); Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 91 (2d Cir.2002) ("The rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First...