Orloski v. Vincent House et al

MOTION to dismiss for failure to state a claim

M.D. Fla.June 29, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CHRISTOPHER ORLOSKI, Plaintiff, vs. VINCENT HOUSE, VAN GOGH’S Case No.: 8:17-cv-00553-JDW-AAS PALETTE, INC., LIGIA GOMEZ, WILLIAM MCKEEVER, ELLIOTT STEELE, Defendants. ______________________________/ DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT WITH PREJUDICE Defendants VINCENT HOUSE, VAN GOGH’S PALETTE, INC., LIGIA GOMEZ, WILLIAM MCKEEVER and ELLIOTT STEELE (collectively referred to herein as “Defendants”), by and through their undersigned counsel, and pursuant to Rules 8(a), 10(b), and 12(b)(6) of the Federal Rules of Civil Procedure and Local Rule 3.01 of the Rules of the United States District Court, Middle District of Florida, file this Motion to Dismiss Plaintiff’s Second Amended Complaint With Prejudice (Doc. 1). In support of this motion, Defendants state as follows: 1. Plaintiff, Christopher Orloski, (“Plaintiff”) commenced this action by filing a pro-se Complaint on or about March 7, 2017. (Doc.1). Currently before this Court is Plaintiff’s Second Amended Complaint. (Doc. 28). Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 1 of 13 PageID 336 2 2. Plaintiff’s Second Amended Complaint consists of forty-three (43) pages of rambling allegations with unnumbered paragraphs and two (2) exhibits. (Doc. 28, Exs. 1 and 2). Despite the lengthy and somewhat complicated appearance of the Second Amended Complaint, Plaintiff’s overall grievance appears to be that Defendants violated the Americans with Disabilities Act, 42 U.S.C. §12112, et seq (“ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. §794 when they refused to accept his application to Defendant Vincent House and denied him membership to the non-profit organization.1 (Doc. 28 at 14). The named individual Defendants make up Vincent House’s executive team. (Doc. 28 at 9-10). 3. Plaintiff’s Second Amended Complaint is due to be dismissed with prejudice as Plaintiff has failed to assert a claim upon which relief can be granted against any of the named Defendants and these deficiencies cannot be cured by Plaintiff. MEMORANDUM OF LAW I. STANDARD OF REVIEW A. Federal Rules of Civil Procedure 8(a) and 10(b) Rule 8(a) of the Federal Rules of Civil Procedure provides that a complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This threshold requirement exists “to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Further, Rule 10(b) requires that “a party must state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances . . . [and] . . . if doing so would promote clarity, each claim founded on a 1 Plaintiff may be also asserting a claim for retaliation as retaliation is mentioned in the Second Amended Complaint. (Doc. 28 at 32-33). However, in the subsection entitled “Claim,” retaliation is not mentioned. (Doc.28 at 34). Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 2 of 13 PageID 337 3 separate transaction or occurrence . . . must be stated in a separate count. Fed. R. Civ. P. 10(b). While pleadings submitted by a pro se plaintiff "are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed," Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curium), "[a] [pro se] complaint that fails to articulate claims with sufficient clarity to allow the defendant to frame a responsive pleading constitutes a 'shotgun pleading' . . . prohibited by Rule 8(a)(2)." Lampkin-Asam v. Volusia Cty. Sch. Bd., 261 F. App'x 274, 277 (11th Cir. 2008). As such, pro se complaints that are "disjointed, repetitive, disorganized and barely comprehensible" may be dismissed. Fries v. Scott, 2017 U.S. Dist. LEXIS 85821, *4 (M.D. Fla. May 8, 2017) (citing Lampkin-Asam, 261 F. App'x at 276). B. Federal Rule of Civil Procedure 12(b)(6) Fed. R. Civ. P. 12(b)(6) permits the Court to dismiss a complaint that fails to state a claim upon which relief may be granted. “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, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The Supreme Court of the United States in Iqbal clarified that the decision in Twombly “expounded the pleading standard for ‘all civil actions.’” Id. at 684. The Court explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Id. at 678. “Threadbare recitals of the elements of a cause of action, Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 3 of 13 PageID 338 4 supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). When deciding a motion to dismiss, "the court limits its consideration to the pleadings and exhibits attached thereto" and incorporated into the complaint by reference. Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1352 n.7 (11th Cir. 2006). To survive a motion to dismiss, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556.) Moreover, the complaint must contain allegations addressed to each material element "necessary to sustain a recovery under some viable legal theory." Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684 (11th Cir.2001). II. LEGAL ANALYSIS A. Plaintiff’s Second Amended Complaint violates Rules 8(a) and 10(b) and should be dismissed. Plaintiff’s Second Amended Complaint does not meet the requirements of either Rule 8(a) or Rule 10(b), Federal Rules of Civil Procedure and should be dismissed. First, the Second Amended Complaint is not a short and plain statement of the claim demonstrating that Plaintiff is entitled to relief, as Rule 8(a) requires. Rather, it is disjointed and disorganized, contains a plethora of superfluous anecdotal information and does not give Defendants fair notice of the purported claims. Second, while Plaintiff appears to be alleging violations of the ADA and the Rehabilitation Act, much of the information of the Second Amended Complaint is immaterial to either of these alleged claims and is presented in such a manner that it is difficult to ascertain what facts support which cause of action or claim for Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 4 of 13 PageID 339 5 relief. Further, Plaintiff asserts these claims against multiple defendants, but lumps all defendants together and fails to provide a factual basis to distinguish each of the Defendants’ conduct - all in violation of Rule 8. Pro Image Installers, Inc. v. Dillon, 2009 U.S. Dist. LEXIS 3777 (N.D. Fla. Jan. 15, 2009). Finally, in addition to the numerous Rule 8 violations, the purported claims asserted in the Second Amended Complaint are not stated in numbered paragraphs and are not contained in separate counts, as mandated by Rule 10(b). “Taken together, Rules 8 and 10 ‘require the pleader to present his claims discretely and succinctly . . . .’” Bey v. Am. Honda Fin. Servs. Corp., 2017 U.S. Dist. LEXIS 80228, *4 (M.D. Fla. May 25, 2017) (quoting Fikes v. City of Daphne, 79 F.3d 1079, 1082 n.6 (11th Cir. 1996)). Plaintiff’s failure to present his claims discretely and succinctly makes it difficult if not impossible for Defendants to respond to the varied allegations contained in the Second Amended Complaint. Defendants acknowledge Plaintiff is proceeding pro se and as such, this Court must read the allegations in the Second Amended Complaint liberally and hold the Second Amended Complaint to less stringent standards than those drafted by attorneys. Bey, 2017 U.S. Dist. LEXIS 80228 at *3 (citing Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, this more liberal pleading standard does not obviate Plaintiff from having to meet the minimum pleading standards identified in the Rules. Townsend v. Guity, 2017 U.S. Dist. LEXIS 80885, *4 (M.D. Fla. May 26, 2017) (citing Pugh v. Farmers Home Admin., 846 F. Supp. 60, 61 (M.D. Fla. 1994)). Plaintiff’s Second Amended Complaint fails to meet the minimum pleading standards, even under a more liberal reading, and amounts to a shot gun Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 5 of 13 PageID 340 6 pleading. “The unifying characteristic of all types of shotgun pleadings is that they fail to . . . give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Owens-Benniefield v. Nationstar Mortg. LLC, 2017 U.S. Dist. LEXIS 60775, *3 (M.D. Fla. Apr. 21, 2017) (citations omitted). “In such cases, it is ‘virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.’” Owens-Benniefield, 2017 U.S. Dist. LEXIS 60775, at *3 (citing Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)). “A defendant faced with such a complaint is not expected to frame a responsive pleading.” Anderson, 77 F.3d at 366. Plaintiff’s Second Amended Complaint suffers from the very deficiencies discussed in Owens-Benniefield. As such, the Second Amended Complaint should be dismissed. Owens- Benniefield, 2017 U.S. Dist. LEXIS 60775 at *3 (citing Stevens v. Barringer, Case No. 2:11- cv-697-UA-SPC, 2013 U.S. Dist. LEXIS 251, 2013 WL 24272, at *2 (M.D. Fla. Jan. 2, 2013) (“The Federal Rules of Civil Procedure, pertinent precedent, sound principles of litigation management, and fairness to the opposing party almost uniformly commend requiring a litigant to submit a complaint that is not a 'shotgun pleading' and that otherwise complies with the salutary rules of pleading.”). Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 6 of 13 PageID 341 7 B. Plaintiff’s ADA claims should be dismissed for failure to state a claim 1. Failure to Exhaust Administrative Remedies Even if Plaintiff’s Second Amended Complaint did not violate the pleading standards, which it does, his ADA claim is still due to be dismissed as Plaintiff has failed to exhaust his administrative remedies, a fact he admits.2 (Doc. 28 at 11, 33). Prior to instituting a claim under the ADA, a private plaintiff must file a complaint with either the Equal Employment Opportunity Commission (“EEOC”) or the Florida Commission on Human Relations (”FCHR”), against the party or parties who committed the alleged discriminatory acts. Golfin v. Alorica Inc., 2015 U.S. Dist. LEXIS 53460, *4 (M.D. Fla. Apr. 23, 2015). “The plaintiff then must receive a notice from the EEOC (or the FCHR) providing the plaintiff with the right to sue, which must be acted upon within ninety (90) days of receipt.” Id. (citing Baker, 2008 U.S. Dist. LEXIS 69240, 2008 WL 4200147 at 9). Plaintiff’s failure to exhaust his administrative remedies as to his ADA claim preclude him from asserting his claims before this court and should be dismissed with prejudice. Matthews v. Vill. Ctr. Cmty. Dev. Dist., 2006 U.S. Dist. LEXIS 8164, at *9 (M.D. Fla. Feb. 13, 2006). 2 Plaintiff appears to be asserting that the U.S. Department of Education Office of Civil Rights does not require exhaustion of rights at the administrative level as a prerequisite to filing suit under the Rehabilitation Act (Doc. 28 at 11). While exhaustion of administrative remedies is not required for certain claims brought under Section 504 of the Rehabilitation Act, Redding v. Nova Southeastern Univ., Inc., 165 F. Supp. 3d 1274, 1297 n.27 (S.D. Fla. 2016); it is a requirement of claims brought under the ADA. Matthews, 2006 U.S. Dist. LEXIS 8164, at 9. Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 7 of 13 PageID 342 8 2. ADA Claims as to Corporate Defendant Vincent House3 Even if Plaintiff had exhausted his administrative remedies, which, according to him, he has not, his ADA claim is still due to be dismissed as Plaintiff has failed to allege any facts establishing that Vincent House is an employer, as the term is defined under the statute, and that he was either an employee or an applicant for employment. (Doc. 28). The ADA provides, in relevant part, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 USCS § 12112 (emphasis added). Put another way, the ADA provides that no employer “shall discriminate against a qualified individual with a disability because of the disability of such individual.” New v. City of Ormond Beach, 2017 U.S. Dist. LEXIS 51653, *3-4 (M.D. Fla. Apr. 5, 2017). In order to allege a prima facie case of discrimination under the ADA, Plaintiff must not only present facts that Defendant Vincent House was an employer, but also that he was an employee (or a job applicant) and that (1) he has a disability; (2) he is qualified to perform the essential functions of the position with or without reasonable accommodation; and (3) his employer discriminated against him because of his disability.4 Pecora v. ADP, LLC, 2017 U.S. Dist. LEXIS 17230, *7 (M.D. Fla. Feb. 7, 2017) (citations omitted). 3 Although Plaintiff lists Van Gogh’s Palette, Inc. as a separate defendant, it does not appear Plaintiff is asserting any allegations as to Van Gogh’s Palette, Inc. Rather, it appears the asserted claims are as to Vincent House as a d/b/a of Van Gogh’s Palette, Inc. However, because Plaintiff’s Second Amended Complaint does not comply with Rules 8 or 10, it is difficult to determine which entity is the subject of the asserted claims. (Doc. 28 at 7 - 9). 4 Even if he is asserting a failure to accommodate claim, his claim should still be dismissed for similar reasons - he has failed to allege or provide any factual support relative to Vincent House being an employer or him being an employee or applicant for employment. Marshall v. Aryan Unlimited Staffing Solution, 2013 U.S. Dist. Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 8 of 13 PageID 343 9 While unclear, it appears Plaintiff is alleging he was discriminated against by Vincent House when he was denied membership to the organization or was subjected to more strenuous application requirements because of his disability and as a result, precluded from receiving the organization’s vocational rehabilitation services. (Doc. 28 at 14). Notably, Plaintiff does not provide any factual allegations showing that he was either an employee or subject to discrimination in his role as an employee. Similarly, he does not allege nor does he provide any facts to support that he was an applicant for employment and denied employment or employment opportunities with Vincent House as a result of his disability. To the contrary, Plaintiff’s singular conclusory complaint is that he was denied membership into Defendant Vincent House. By his own admission, Vincent House is not an employer, but rather a program whose mission is to “assist promote, and celebrate individuals recovering from mental illness and other disabilities, in their effort to improve social and vocational skills, and become employed in the community.” (Doc. 28 at 8)(emphasis added). Moreover, throughout his Second Amended Complaint, Plaintiff alleges he submitted “clubhouse membership” applications (Doc. 28 at 14, 18, 21-25). At no time does Plaintiff assert any set of facts to support or allege that he submitted or attempted to submit an employment application, that he was denied employment opportunities with Vincent House, or that he was an employee of Vincent House. Plaintiff’s failure to allege either that Vincent House was an employer, as defined by statute, or the facts necessary to support a prima face case of discrimination under LEXIS 30308, at *12 (S.D. Fla. Mar. 6, 2013) (proving prima facie case for failure to accommodate claim under the ADA). Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 9 of 13 PageID 344 10 the ADA render his ADA claim subject to dismissal with prejudice. Lane v. Hillsborough County Hosp. Auth., 1997 U.S. Dist. LEXIS 9891, *22 (M.D. Fla. July 10, 1997). 3. ADA Claims as to individual defendants. Plaintiff has also alleged that individual Defendants Ligia Gomez, William McKeever and Elliot Steele violated the ADA, specifically by discriminating against him relative to his membership at Vincent House. However, Plaintiff’s claims against the individual Defendants are due to be dismissed with prejudice as there is no cause of action under the ADA against individuals for disparate treatment. Badillo v. Thorpe, 158 Fed. Appx. 208, 211 (11th Cir. 2005). C. Plaintiff’s Rehabilitation Act claims as to Defendant Vincent House should be dismissed for failure to state a claim. To state a claim under Section 504 of the Rehabilitation Act, a plaintiff must allege in more than a conclusory fashion that he “(1) he has a disability, (2) that the defendant’s program receives federal financial assistance, (3) that he is otherwise qualified for the benefits, and (4) that he was discriminated against solely by reason of his disability.” Berg v. Department of Labor & Empl. Sec., 1996 U.S. Dist. LEXIS 22345, at *9 (M.D. Fla. Sept. 13, 1996). Plaintiff has failed to allege a prima facie case of a violation of the Rehabilitation Act. Specifically, he fails to allege and fails to provide factual support relative to what specific benefits he sought, that he was/is qualified for those benefits and the specific ways he was discriminated against relative to the benefits. While he asserts in conclusory fashion that he was subject to discrimination in violation of the Rehabilitation Act, he fails to provide any factual support for this claim. Unfortunately, Plaintiff’s “[t]hreadbare recitals of the elements of a cause of action [as to Defendant Vincent House], supported by mere Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 10 of 13 PageID 345 11 conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. As such, his Rehabilitation Act claim should be dismissed. D. Plaintiff’s Rehabilitation Act claims as to the Individual Defendants should be dismissed for failure to state a claim. Plaintiff has also asserted that the individually named Defendants violated the Rehabilitation Act with respect to their treatment of him. However, his claims against the individual Defendants should be dismissed with prejudice as the statute does not provide for individual liability. Williams v. Fulton Cnty. Sch. Dist., 181 F. Supp. 3d 1089, 1140 (N.D. Ga. 2016 (citing Berkery v. Kaplan, 518 Fed. App’x 813,814-15 (11th Cir. 2013)). E. Plaintiff should be required to provide a more definite statement for any remaining claims. To the extent this Court allows Plaintiff to proceed on any of his claims, Plaintiff should be required to provide a more definite statement as to those claims. Rule 12(e) of the Federal Rules of Civil Procedure provides that a defendant may move for a more definite statement “[i]f a pleading … is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” Fed. R. Civ. P. 12(e). “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.’” Gombos v. Cent. Mortg. Co., 2011 U.S. Dist. LEXIS 21413, at * 4 (S.D. Fla. 2011). See also Anderson v. District Bd. of Trustees of Cent. Fla. Community College, 77 F.3d 364, 367 (11th Cir. 1996). As explained above, Plaintiff’s Second Amended Complaint amounts to a typical “shotgun” pleading that fails to conform to the required pleading standards. It does not provide the short and plain statement, as required by Rule 8, and while Rule 10 requires a Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 11 of 13 PageID 346 12 plaintiff to allege his/her claims in separate counts, when each count is “founded on a separate transaction or occurrence,” Plaintiff’s Second Amended Complaint fails in this regard. See Fed. R. Civ. P. 10(b). See also Warbunde v. Home Quality Mgmt., Inc., Case No. 2:05-cv-337-FtM-33SPC, 2006 U.S. Dist. LEXIS 24529, at *9 (M.D. Fla. Apr. 28, 2006) (“It is not sufficient to incorporate all of the factual allegations for each count and [the defendant] should not be made to sift through the allegations and attempt to decipher which facts are supportive of a given claim.”). To the extent Plaintiff is permitted to proceed with his claims, Plaintiff should be required to present his claims in such a fashion that makes it possible for Defendants to know which factual allegations support which claims. His current presentation makes responding an impossible feat. See Gombos, 2011 U.S. Dist. LEXIS 21413 at * 5-6 (court concluding that plaintiff’s complaint is a shotgun pleading that must be re-pled). CONCLUSION WHEREFORE, DEFENDANTS VINCENT HOUSE, VAN GOGH’S PALETTE, INC., LIGIA GOMEZ, WILLIAM MCKEEVER and ELLIOTT STEELE, respectfully request that the Court: (1) dismiss Plaintiff’s Second Amended Complaint in its entirety for failure to adhere to Rules 8 and 10 of the Federal Rules of Civil Procedure; (2) dismiss with prejudice Plaintiff’s ADA claim against Defendants Vincent House and Van Gogh’s Palette for failure to exhaust his administrative remedies; (3) dismiss with prejudice Plaintiff’s Rehabilitation Act claims against Defendants Vincent House and Van Gogh’s Palette for failure to state a claim upon which relief can be granted; (4) dismiss with prejudice all claims against the individual Defendants for failure to state a claim upon which relief can be Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 12 of 13 PageID 347 13 granted; (5) require Plaintiff to provide a more definite statement for any claims remaining; (6) award Defendants reasonable attorneys’ fees and costs as may be determined by this Court, and (7) grant such other and further relief as this Court deems just and proper. DATED this 29th day of June, 2017. Respectfully submitted, /s/ Monica Williams Harris Laura E. Prather, B.C.S. Florida Bar No. 0870854 laura.prather@jacksonlewis.com Monica Williams Harris, Esq. Florida Bar No. 0566780 monica.harris@jacksonlewis.com JACKSON LEWIS P.C. 100 South Ashley Drive, Suite 2200 Tampa, Florida 33602 Telephone: (813) 512-3210 Facsimile: (813) 512-3211 Attorneys for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 29, 2017, I electronically filed the foregoing with the clerk of court using the CM/ECF system, which will send notice of electronic filing to Plaintiff, Christopher Orloski. I FURTHER CERTIFY that we will also be mailing a copy of the foregoing to the Plaintiff at Christopher Orloski, 1450 S. MLK Jr. Avenue, Apt. 704, Clearwater, Florida 33756 and sending a copy via electronic email to corloski15@gmail.com. /s/ Monica Williams Harris Monica Williams Harris Case 8:17-cv-00553-JDW-AAS Document 41 Filed 06/29/17 Page 13 of 13 PageID 348