Cosby v. Lee Cnty., Case No. 214–cv–255–FtM–38DNF.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Citation55 F.Supp.3d 1393
Docket NumberCase No. 214–cv–255–FtM–38DNF.
PartiesGregory V. COSBY, Sr., Plaintiff, v. LEE COUNTY, Jack Barden, Paul Valenti and Glen Salyer, Defendants.
Decision Date24 September 2014

55 F.Supp.3d 1393

Gregory V. COSBY, Sr., Plaintiff
LEE COUNTY, Jack Barden, Paul Valenti and Glen Salyer, Defendants.

Case No. 214–cv–255–FtM–38DNF.

United States District Court, M.D. Florida, Fort Myers Division.

Filed Sept. 24, 2014.

55 F.Supp.3d 1396

Gregory V. Cosby, Sr., Fort Myers, FL, pro se.

John S. Turner, Fort Myers, FL, for Defendants.



This matter comes before the Court on the Defendants, Lee County, Jack Barden, Paul Valenti and Glen Salyer's Dispositive Motion to Dismiss Amended Complaint (Doc. # 27) filed on July 22, 2014. The Plaintiff, Gregory V. Cosby, Sr. filed his Response in Opposition (Doc. # 32) on August 11, 2014. The Motion is now fully briefed and ripe for the Court's review.


The Plaintiff, Cosby was employed as the maintenance supervisor by Provincetown Condominium Association. On August 4, 2008, Cosby filed charges with the Lee County Office of Equal Opportunity (LCOEO) alleging that Provincetown discriminated against him by paying his predecessor, Keith Hicks, a higher ending wage than his beginning wage. (Doc. # 28, ¶ 14). Cosby's claim was brought pursuant to Lee County Ordinance 00–18 and was designated as claim A8130E. (Doc. # 26, ¶ 15). The LCEOE is tasked with administering the Ordinance.

In August of 2011, Cosby met with the Defendant Barden to discuss his claim A8130E. (Doc. # 26, ¶ 19). On December 13, 2011, Cosby was sent a Final Investigative Report (FIR) and Notice of Dismissal

55 F.Supp.3d 1397

informing him that A8130E had been dismissed because the investigation found no reasonable cause to pursue A8130E. (Doc. # 26, ¶ 20). On December 13, 2011, the Defendant Valenti sent Cosby a letter concurring with the Notice and FIR denying A8130E. (Doc. # 26, ¶ 23). On December 20, 2011, Cosby delivered a letter to Winton, Barden and Karen Hawes2 requesting a staff review of the no reasonable cause determination reached by Barden's investigation of A8130E. (Doc. # 26, ¶ 28). The next day on December 21, 2011, Cosby delivered another letter requesting an amendment of the staff review of his claim. (Doc. # 26, ¶ 29).

On December 22, 2011, Winton sent Cosby a letter informing him that a county attorney would perform a review of Barden's investigation. (Doc. # 26, ¶ 31). On March 24, 2012, Winton sent Cosby a letter informing him the LCOEO had requested an independent review of his case file. (Doc. # 26, ¶ 34). On April 20, 2012, Cosby received a letter from Barden informing him that the EEOC upheld the LCOEO's no reasonable cause determination. (Doc. # 26, ¶¶ 37–38). Thereafter, the LCOEO took no further action on A8130E.

On June 5, 2012, Cosby sent a letter to Salyer and Stephane Figueroa, Human Resources Coordinator for Lee County, regarding his claims against Barden's investigation of A8130E. (Doc. # 26, ¶ 65). On June 11, 2012, Salyer responded to Cosby's letter of June 5, 2012, stating that he supported Barden's handling of his claim. (Doc. # 26, ¶ 66). On September 25, 2012, the Lee County Board of Commissioners passed Lee County Ordinance 12–23 which repealed Lee County Ordinance 00–18. (Doc. # 26, ¶ 69).

The Plaintiff subsequently brought the instant lawsuit against the Defendants, Lee County, Florida, Jack Barden, individually and in his official capacity as the Lee County Office of Equal Opportunity analyst, Paul Valenti, individually, and Glen Salyer, individually in the Circuit Court in the Twentieth Judicial Circuit in and for Lee County Florida. The Defendants removed the case to this Court.

Count I of the Amended Complaint pleads a procedural due process claim against Barden in his individual capacity. Count II alleges Barden violated Cosby's due process rights in his official capacity. Count III also alleges that Barden violated Cosby's due process rights and violated his equal protection rights under the law. Count IV alleges an equal protection claim against Barden in his official capacity as an employee of the LCOEO. Count V alleges a due process violation against Valenti and Salyer in their individual capacities. Count VI is an equal protection claim against Valenti and Salyer. And Count VII is a claim against Barden, Valenti, and Salyer for conspiracy to deprive Cosby of his Constitutional rights.


In deciding a motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiffs. Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). However, dismissal for failure to state a claim upon which relief may be granted does not require appearance, beyond a doubt. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561–563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). While a complaint attacked by a Rule 12(b)(6) motion to dismiss

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does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitlement” to relief requires more than labels, conclusions, and a formulaic recitation of the cause of actions elements. Bell Atlantic, 550 U.S. 544, 561–563, 127 S.Ct. 1955.

To satisfy the pleading requirements of Fed.R.Civ.P. 8, a complaint must simply give the defendants fair notice of what the plaintiff's claim is and the grounds upon which it rests. Id. at 555, 127 S.Ct. 1955 ; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Although the pleading standard announced in Fed. R. Civ. P. 8 does not require “detailed factual allegations,” it does demand more than an unadorned, “the-defendant-unlawfully-harmed-me accusation.” Sinaltrainal v. Coca–Cola Co., 578 F.3d 1252, 1268 (11th Cir.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ). Furthermore, unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of the allegations. Sinaltrainal, 578 F.3d at 1268 (citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.2005) ). The facts as pled must state a claim for relief that is plausible on its face. Sinaltrainal, 578 F.3d at 1268 (citing Iqbal, 129 S.Ct. at 1950 ). Dismissal is warranted under Fed.R.Civ.P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Simplexgrinnell, L.P. v. Ghiran, 2007 WL 2480352 (M.D.Fla. August 29, 2007) (citing Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ; Brown v. Crawford County, Georgia, 960 F.2d 1002, 1009–1010 (11th Cir.1992) ).


The Defendants argue that Cosby failed to allege that LCOEO had a custom policy or practice to discriminate. The Defendants further argue that Barden, Valenti, and Salyer are entitled to absolute immunity or in the alternative entitled to qualified immunity. Finally the Defendants argue that the intra-corporate conspiracy doctrine protects them from any conspiracy claims. Cosby states that he was deprived of his due process rights under the Fourteenth Amendment because he was not allowed a hearing before the LCOEO dismissed A8130E on a no reasonable cause determination.

(1) Whether Cosby's Amended Complaint is a Shotgun Pleading

Initially, the Court notes that Cosby's Amended Complaint is a shotgun pleading. A shotgun pleading “incorporate[s] every antecedent allegation by reference into each subsequent claim for relief.” Frantz v. Walled, 513 Fed.Appx. 815, 820 (11th Cir.2013) (quoting Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir.2006) ). In a shotgun complaint, “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trustees of Cent. Fl. Comm. Coll., 77 F.3d 364, 366 (11th Cir.1996). Defendants faced with such pleadings cannot and will not be expected to frame a responsive pleading.Id. “[U]nless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.” Id. For this reason, shotgun complaints should be dismissed, allowing plaintiffs to re-plead their claims. See Magluta v. Samples, 256 F.3d 1282, 1284–85 (11th Cir.2001).

Cosby's Amended Complaint contains seventy-one (71) factual allegations which

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Cosby incorporates into each of the seven Counts in the Amended Complaint. In addition to incorporating each factual allegation into each Count, Cosby incorporates paragraphs 73, 74, 75, 76, and 77 from Count I into Counts II and III, and paragraphs 73, 74, 75, 76, 77, 84, 85, 89, 90, 96, and 97 from various Counts into the remaining successive Counts. The Amended Complaint's failure to link factual allegations to specific counts makes it...

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