Kibodeaux v. Morgan

• Decision Date: 09 November 2022
• Docket Number: 6:22-cv-662-RBD-LHP
• Parties: CHRISTOPHER KIBODEAUX, Plaintiff, v. DIANNA MORGAN, DAVID STRONG, RYAN ZIKA and MICHAEL D. LUGO, Defendants
• Court: U.S. District Court — Middle District of Florida

CHRISTOPHER KIBODEAUX, Plaintiff,
v.
DIANNA MORGAN, DAVID STRONG, RYAN ZIKA and MICHAEL D. LUGO, Defendants

No. 6:22-cv-662-RBD-LHP

United States District Court, M.D. Florida, Orlando Division

November 9, 2022

REPORT AND RECOMMENDATION

LESLIE HOFFMAN PRICE, UNITED STATES MAGISTRATE JUDGE

TO THE UNITED STATES DISTRICT COURT:

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

MOTION: AMENDED MOTION TO PROCEED IN FORMA PAUPERIS (Doc. No. 20)

FILED: July 19, 2022

THEREON it is RECOMMENDED that the motion be DENIED AS MOOT

Plaintiff filed a second amended motion. See Doc. No. 21.

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MOTION: SECOND AMENDED MOTION TO PROCEED IN FORMA PAUPERIS (Doc. No. 21).

FILED: July 21, 2022

THEREON it is RECOMMENDED that the motion be DENIED WITHOUT PREJUDICE

MOTION: DEFENDANTS' AMENDED MOTION TO DISMISS PLAINTIFF'S COMPLAINT WITH PREJUDICE (Doc. No 24).

FILED: August 1, 2022

THEREON it is RECOMMENDED that the motion be DENIED AS MOOT.

I. INTRODUCTION AND RELEVANT PROCEDURAL HISTORY

Pro se Plaintiff Christopher Kibodeaux underwent revision spinal surgery at the Downtown Orlando location of Orlando Health, which was successful. Doc. No. 1, at 4. A few months later, Plaintiff was involved in a car accident that apparently caused him some physical issues, but his spinal surgeon and Orlando Health allegedly refused to listen to Plaintiff's concerns or needs and instead discharged him as a patient. Id. Plaintiff took issue with his treatment, filed internal complaints with Orlando Health, filed a police report, and protested

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outside Orlando Health. Id. Orlando Health ultimately banned Plaintiff from all of its locations, accusing him of, among other things, “looting.” Id., at 4, 6.^[1]

On November 22, 2021, Plaintiff filed a Pro se lawsuit under 42 U.S.C. § 1983 against Orlando Health, alleging that Orlando Health violated his right to peacefully protest when it called the Orlando Police Department, claimed Plaintiff was “looting,” and issued a “no trespass” order. Christopher Kibodeaux v. Orlando Health, Case No. 6:21-cv-1969-RBD-DCI (“Orlando Health I”) (Doc. 1). Plaintiff filed a motion for leave to proceed in forma pauperis, id., Doc. No. 2, which the Court denied without prejudice, and the Court dismissed the complaint for failure to state a claim and failure to comply with basic pleading requirements, but afforded Plaintiff leave to file an amended complaint. Id., Doc. No. 10; see also id., Doc. No. 4.

On December 30, 2021, Plaintiff filed his amended complaint, along with a renewed motion to proceed in forma pauperis. Orlando Health I, Doc. Nos. 15-16. The amended complaint no longer sought relief against Orlando Health, but instead listed four individuals as Defendants: Ryan Zika (Orlando Health's General Counsel), David Strong (Orlando Health's CEO), Joshua Montemayor (Orlando Health's Corporate Risk Manager), and Attorney Michael D. Lugo (outside counsel

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for Orlando Health). Id., Doc. No. 15. The amended complaint was based on the same operative facts described above, and attempted to allege claims under 42 U.S.C. § 1983, 18 U.S.C. § 241, and 18 U.S.C. § 1961, et seq. (the “RICO Act”). Id. Before the Court ruled on the renewed motion to proceed in forma pauperis, Plaintiff moved to voluntarily dismiss his case without prejudice, which the Court granted on February 23, 2022. Id., Doc. Nos. 32, 34.

But Plaintiff was not done. On April 5, 2022, he initiated the present case with the filing of a Pro se Complaint. Doc. No. 1. The Complaint is nearly identical to the amended complaint filed in Orlando Health I - Plaintiff again lists Strong, Zika, and Lugo as Defendants, identifies the same factual allegations, and lists 42 U.S.C. § 1983, 18 U.S.C. § 241, and 18 U.S.C. § 1961 as the basis for his claims. Id. The only differences are that Plaintiff has substituted a new Defendant -Dianna Morgan (Orlando Health Board Chair) - for Montemayor, and has utilized a civil complaint form for civil negligence which also identifies 28 U.S.C. § 1332 as the basis for this Court's jurisdiction. Id.

With the complaint, Plaintiff filed a motion for leave to proceed in forma pauperis. Doc. No. 2; see also Doc. No. 13. The undersigned denied that motion without prejudice because Plaintiff did not provide sufficient information. Doc. No. 19. Plaintiff subsequently filed a renewed motion on July 19, 2022, and an amended renewed motion on July 21, 2022. Doc. Nos. 20-21. And Defendants

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Morgan, Strong, Zika and Lugo (collectively “Defendants”), who have now appeared in this case, have moved to dismiss Plaintiff's complaint with prejudice, to which Plaintiff has filed a response in opposition. Doc. Nos. 24, 25.^[2] All three motions have been referred to the undersigned, and are ripe for review.

For the reasons discussed herein, the undersigned will recommend that the first renewed motion to proceed in forma pauperis be denied as moot, that the second renewed motion be denied without prejudice, that Defendants' motion to dismiss be denied as moot, and that Plaintiff's complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2) with leave to amend.

II. STANDARD OF REVIEW

The Court must conduct a two-step inquiry when a plaintiff files a complaint and seeks leave to proceed in forma pauperis. First, the Court must evaluate the plaintiff's financial status and determine whether he or she is eligible to proceed in forma pauperis. 28 U.S.C. § 1915(a)(1). Second, once the Court is satisfied that the plaintiff is a pauper, the Court must review the complaint pursuant to § 1915(e)(2) and dismiss the complaint if the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the complaint seeks monetary

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relief against a defendant who is immune from such relief. Id. § 1915(e)(2)(B)(i)-(iii).^[3] A complaint is frivolous within the meaning of § 1915(e)(2)(B) if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Additionally, under Federal Rule of Civil Procedure 12(h)(3), a district court may at any time, upon motion or sua sponte, act to address the potential lack of subject matter jurisdiction in a case. Herskowitz v. Reid, 187 Fed.Appx. 911, 912-13 (11th Cir. 2006) (citing Howard v. Lemmons, 547 F.2d 290, 290 n.1 (5th Cir. 1977)).^[4]“[I]t is incumbent upon federal courts trial and appellate to constantly examine the

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basis of jurisdiction, doing so on our own motion if necessary.” Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir. 1981) (citations omitted).^[5]

A Pro se complaint should be construed leniently, but a court does not have “license . . . to rewrite an otherwise deficient pleading [by a Pro se litigant] in order to sustain an action.” GJR Invs. V. Cty. Of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Iqbal, 556 U.S. 662. Moreover, a pro se litigant “is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989), cert. denied, 493 U.S. 863 (1989).

III. ANALYSIS

Upon review of Plaintiff's second amended motion to proceed in forma pauperis (Doc. No. 21), it appears that Plaintiff qualifies as a pauper pursuant to § 1915(a)(1). However, Plaintiff's complaint (Doc. No. 1), as currently pleaded, does not state a claim upon which relief may be granted.

As discussed above, Plaintiff purports to assert claims under 42 U.S.C. § 1983, 18 U.S.C. § 241, and 18 U.S.C. § 1961. Doc. No. 1. “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant deprived him of a right secured under the United States Constitution or federal law and (2) such deprivation

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occurred under color of state law.” Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam) (citations omitted). The Eleventh Circuit “requires proof of an affirmative causal connection between the official's acts or omissions and the alleged constitutional deprivation” in § 1983 cases. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (citing Williams v. Bennett, 689 F.2d 1370, 1380, 1381 (11th Cir. 1982)). “More than conclusory and vague allegations are required to state a cause of action under 42 U.S.C. § 1983.” Hannah v. Union Corr. Inst., No. 3:12-cv-436-J-20JBT, 2012 WL 1413163, at *1 (M.D. Fla. Apr. 23, 2012) (citing L.S.T., Inc., v. Crow, 49 F.3d 679, 684 (11th Cir. 1995) (per curiam); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)).

While Plaintiff generally references violations of his First Amendment rights, he has not sufficiently alleged that any such deprivation occurred under color of state law. State action requires (1) an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the [S]tate or by a person for whom the State is responsible,” and (2) that “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). State action may also be established where the allegations show that the defendant is a private actor who conspired with a state actor. Rowe v. City of Fort Lauderdale, ...