Coletta v. The City of North Bay Village
| Decision Date | 11 April 1997 |
| Docket Number | No. 95-2082-CIV.,95-2082-CIV. |
| Citation | 962 F.Supp. 1486 |
| Parties | Al COLETTA, Plaintiff, v. THE CITY OF NORTH BAY VILLAGE, a municipal corporation organized under the laws of the State of Florida; Paul Vogel, in his individual capacity; James DiPietro, in his individual capacity; Michael Berkman, in his individual capacity, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
John K. Shubin, Shubin & Bass, Miami, FL, Michael Ullman, North Miami Beach, FL, for Plaintiff.
Harriet R. Lewis, Adorno & Zeder, P.A., Ft. Lauderdale, FL, for Defendants.
ORDER ON MOTIONS TO DISMISS
THIS CAUSE comes before the Court upon Defendants Paul Vogel, James DiPietro, and Michael Berkman's Motion to Dismiss Counts I and IV of Plaintiff's Second Amended Complaint, filed December 5, 1996; and Defendants Paul Vogel, James DiPietro, and Michael Berkman's Motion to Dismiss Counts II and III of Plaintiff's Second Amended Complaint, filed December 19, 1996. For the reasons set forth below, the Court grants said motions as to Counts I and IV, and denies said motions as to Counts II and III.
Plaintiff Al Coletta, a resident and property owner in the City of North Bay Village, ("the City") brings this action under Title 42, United States Code, Sections 1983 and 1988, alleging violations of the plaintiff's substantive and procedural due process rights, his rights to equal protection of the law, and his First Amendment right to free speech. According to the Second Amended Complaint, the plaintiff's previously cordial relationship with the mayor of the City of North Bay Village ("the City"), Defendant Paul Vogel, deteriorated after the mayor allegedly attempted to exact a fee of $2,500 in 1982 in connection with the plaintiff's business ventures. The plaintiff contends that, since that time, the mayor has "personally directed a vindictive and malicious campaign to destroy [the plaintiff] ... [and] deprive [him] of his rights to life, liberty, and property...." Second Amended Complaint, at ¶ 11.
On May 22, 1996, the Court issued an Omnibus Order that, among other things, dismissed Count I of the plaintiff's original complaint and directed the plaintiff to file an amended complaint that complied with the Court's rulings in the Omnibus Order. Similarly, on October 30, 1996, the Court issued an Order on Pending Motions that, among other things, dismissed Count I of the Amended Complaint and gave the plaintiff "one final opportunity to amend the complaint."
On November 19, 1996, the plaintiff filed his Second Amended Complaint. In the Second Amended Complaint, the plaintiff again alleges violations of his substantive due process rights, his rights to equal protection of the law and his First Amendment right to free speech, and adds an allegation that he was not given procedural due process. In each count, he seeks damages from Mayor Paul Vogel, City Manager James DiPietro, Building Inspector and Code Enforcement Officer Michael Berkman (collectively, "the individual defendants") and the City. Presently, the individual defendants move to dismiss each count.
To state a claim, Fed.R.Civ.P. 8(a) requires, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." The court must "take the material allegations of the complaint and its incorporated exhibits as true, and liberally construe the complaint in favor of the Plaintiff." Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 798 (11th Cir.1988), aff'd, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (citation omitted). The law in this Circuit is well-settled that "the `accepted rule' for appraising the sufficiency of a complaint is `that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). The moving party bears a heavy burden. St. Joseph's Hosp., Inc. v. Hospital Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986).
As noted above, on two separate occasions this Court has issued orders dismissing the plaintiff's claims that his substantive due process rights were violated. In his most recent amendment to Count I, the plaintiff again attempts to allege a claim for violations of his substantive due process rights. With minor exceptions, the factual allegations supporting the present claim are identical to those set out in the earlier complaints.
The plaintiff asserts that his rights to the use of his property have been violated. Land use rights, as property rights generally, are state created. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir.1989). State created rights are not subject to substantive due process under the Due Process Clause because "substantive due process rights are created only by the Constitution." McKinney v. Pate, 20 F.3d 1550, 1556. Moreover, in a very recent opinion, the Eleventh Circuit explicitly applied the McKinney analysis to land use regulations, and found that violations of such regulations do not give rise to substantive due process claims. DeKalb Stone Inc. v. County, 106 F.3d 956 (11th Cir.1997). Although he attempts to couch the claim in terms of federal rights, the plaintiff has yet again attempted to state a claim for a deprivation of substantive clue process based on violations of state created land use rights. As the Court noted in prior orders, benefits created by state law are protected only by the procedural component of the Fourteenth Amendment's Due Process Clause. McKinney at 1556-57. Therefore, the plaintiff has failed for the third time to state a claim for violations of his substantive due process rights. Accordingly, consistent with this Court's October 30, 1996, Order on Pending Motions, the Court dismisses Count I with prejudice.
In McKinney, the Eleventh Circuit observed that, unlike the deprivation of a right provided by substantive federal law, which gives rise to a Section 1983 lawsuit as soon as the wrongful action is taken, "a procedural violation is not complete `unless and until the state fails to provide due process.'" McKinney at 1557 (quoting Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 983-84, 108 L.Ed.2d 100 (1990)). Thus, even when a plaintiff has suffered a procedural deprivation at the hands of the state, he has not suffered a violation of his procedural due process rights unless and until the state refuses to make available a means to remedy the deprivation. Id.
In the present action, the plaintiff has failed to allege that any of the defendants refused to make available a procedural means to remedy any of the alleged deprivations. In fact, with regard to some of the alleged violations of his rights, plaintiff admits that he availed himself of the appellate rights available to him. See Second Amended Complaint ¶¶ 21 and 22. In addition, with regard to other alleged violations the plaintiff admits that he was ultimately awarded the permits and approvals sought. See Second Amended Complaint ¶ 25. At no point does the plaintiff allege that he was denied any procedural means to remedy the alleged violations. Accordingly, even viewing the Second Amended Complaint in the light most favorable to the plaintiff, the Court finds that it appears beyond doubt that he can prove no set of facts that would entitle him to relief as to Count IV.
Moreover, in Count IV the plaintiff seeks compensatory and punitive damages. He does not seek a remedial hearing or other equitable relief In McKinney, the Eleventh Circuit noted that "if the claimant elects not to seek a remedial hearing, no compensatory damages may be awarded either." McKinney at 1557 n. 11. Consequently, even if the plaintiff's own pleadings did not demonstrate that he cannot state a claim for any deprivation of procedural due process, the Court could not award the relief the plaintiff seeks. Accordingly, the Court grants the individual defendants' motion to dismiss as to Count IV.
In order to state a prima facie case for a violation of plaintiff's first amendment rights, he must plead three elements: (1) the defendants acted under color of state law; (2) the defendants deprived the plaintiff of his First Amendment rights; and (3) that his rights were protected by the United States Constitution. See e.g. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). At this stage in the proceedings, the plaintiff merely needs to allege facts in support of these three elements. As noted at the outset, this is a low threshold standard. Upon a review of the Second Amended Complaint, the motion, and the law, the Court is constrained to deny the individual defendants' motion to dismiss Count III on these grounds.
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