CROSBY

v.

STATE OF FLORIDA

THIS CAUSE is before the Court on Defendant City of Jacksonville’s Motion to Dismiss Third Amended Complaint with Prejudice and Supporting Memorandum of Law (Doc. 53; Motion), filed on April 22, 2022. In the Motion, Defendant City of Jacksonville (the City) moves to dismiss this action with prejudice for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Plaintiff James Crosby, acting pro se, filed a response in opposition to the Motion on April 27, 2022. See Traverse and Dumur [sic] of Motion to Dismiss by City of Jacksonville and Memorandum of Law (Doc. 63; Response). Accordingly, this matter is ripe for review.¹

I. Standard of Review

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F. 3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F. 3d 701,

705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F. 3d 1250, 1262– 63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary,” the complaint should “‘give the defendant fair notice of what the . .

. claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court from this action, the Motion is due to be denied. For the reasons stated in the prior Order, there is no basis for recusal and as such, the undersigned is obligated to continue presiding over this matter. See December⁵, 2022 Order at 2-6. To the extent Crosby asks the Court to reconsider various other aspects of the December⁵, 2022 Order, his request will be denied as moot because, for the reasons that follow, the Court finds that the Third Amended Complaint is due to be dismissed in its entirety.   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). 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.” Twombly, 550 U.S. at 555 (citations omitted); see also Jackson, 372 F. 3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal” (citations and quotations omitted)). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678-79. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570). Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Moreover, when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Id. (citation omitted). And, while “[p]ro se   pleadings 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), “‘this leniency does not give the court a license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)2 (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F. 3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part on other grounds as recognized in Randall, 610 F. 3d at 706); see also Campbell v. Air Jamaica Ltd., 760 F. 3d 1165, 1168-69 (11th Cir. 2014).

II. Procedural History

Crosby initiated this action, pro se, on January 19, 2022. See Certified Complaint (Doc. 1). On January 21, 2022, the Court entered an Order (Doc. 6) striking the Complaint and providing Crosby with the opportunity to file an amended complaint. See Order at 4-7, 10-11. In the Order, the Court explained the pleading requirements applicable in federal court, including that a complaint must set forth a short and plain statement of the claim showing that

As a result, the Court faced “the onerous task of sifting out irrelevancies in order to decide for itself which facts are relevant to a particular cause of action asserted.” Id. at 5. In addition, the Complaint was “‘replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.’” Id. at 5-6 (quoting Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F. 3d 1313, 1322 (11th Cir. 2015)). Indeed, Crosby’s Complaint spanned thirtynine pages, with nearly 200 paragraphs of allegations. Id. at 6. The Court observed that:

[w]hile long on allegations of conspiracy and wrongdoing, the Complaint is short on substance such that the Court is left to wade through pages of conclusory accusations in search of a coherent set of facts. Plaintiff’s allegations also lack dates, timeframes, or any discernible chronology, making it impossible to follow the series of events that led to this lawsuit. Moreover, given the shotgun reincorporation of all allegations, the Court cannot determine which facts make up which causes of action much less what Plaintiff’s specific claims are as to each Defendant.   See id. The Court directed Crosby to file an amended complaint and explained that he must “avoid the shotgun pleading deficiencies set forth above and describe in sufficient detail the factual basis for each of his claims and how each Defendant is responsible.” Id. at 6-7. Less than thirty minutes after entry of the Court’s Order, the Clerk’s Office docketed a motion from Crosby for leave to amend the complaint. See Motion Requesting Leave to Amend Complaint (Doc. 7). And, a few days later, Crosby filed his amended complaint. See Certified Complaint (Doc. 9; Amended Complaint), filed February 1, 2022. Upon review of the docket, the Magistrate Judge entered an order denying Crosby’s motion for leave to amend and observed that Crosby appeared to have filed the Amended Complaint “before being notified of the Court’s order striking his [original] complaint . . . .” See Order Denying Motion to Amend as Moot (Doc.

10) at 1. As such, the Magistrate Judge struck the Amended Complaint and directed Crosby to file a second amended complaint which complied with the Court’s January 21, 2022 Order. Id. at 2. Crosby filed a second amended complaint on February⁴, 2022. See Verified Complaint and Demand for Jury

Trial (Doc. 12; Second Amended Complaint). Ten days later, Crosby sought leave to file a third amended complaint. See Motion Requesting Leave to Amend   Complaint (Doc. 17), filed February 14, 2022. The Magistrate Judge granted Crosby’s request, see Order (Doc. 22), and on March 28, 2022, Crosby filed his third amended complaint, which is the operative pleading at this time. See Verified Complaint and Demand for Jury Trial (Doc. 23; Third Amended Complaint or TAC).³ The Third Amended Complaint is thirty-two pages long with ninety-three paragraphs and three counts. Crosby names six Defendants—the State of

Florida (the State), the City, Chancey Metal Products, All State Steel, Shawn Fitzgerald, and Mark Jones. At this time, the City and the State are the only Defendants remaining in this action. See Minute Entry (Doc. 74); Order (Doc. 96); Order (Doc. 97). Although Crosby does appear to have corrected his more egregious pleading errors, the Third Amended Complaint remains replete with vague allegations and conclusory assertions of wrongdoing. Indeed, Crosby’s allegations are difficult to follow and largely premised on his unsupported inference that the people around him are all secretly acting on behalf of the government. In addition, Crosby’s allegations of wrongdoing rely heavily on his conclusory assertion that the actions of others are “illegal.” As explained above,

III. Factual Background4

Generally, Crosby contends that the State and the City, at the direction of the federal government, have engaged in a long-running, wide-ranging conspiracy to frame men as child predators. Crosby’s allegations regarding the “illegal tactics” being used as part of this conspiracy are largely too vague to be comprehensible, but generally, he appears to contend that the government is using adult websites to “frame” men for soliciting minors. See TAC ¶¶ 20, 22- 23. He connects this conspiracy to his 2007 arrest on a sex offense, his

“stalking, harassing, and investigating” him due to his involvement with FS, leading to his arrest in October of 2018 for failure to register. Id. ¶¶ 31-32; see Motion, Ex. B. Although unclear, it appears Crosby served a term of home confinement as a result of that charge. See TAC ¶ 37.

Significantly, Crosby alleges that he has for years engaged in his own “stings” on law enforcement in an effort “to sabotage their illegal stings and

U.S.C. § 241 & § 242” against all Defendants. Id. at 21. As to each Count, Crosby demands compensatory and punitive damages. Id. at 18, 20-22, 29-30. At the conclusion of the Third Amended Complaint, Crosby also demands “injunctions to stop his unconstitutional sex offender registration and the illegal investigation still being performed . . . .” Id. at 31-32. He also maintains that “it is required and necessary to relieve [Crosby] from the previous order illegally denying him federal habeas relief through a writ of error coram nobis or any other writ under the All Writs Act . . . .” Id. at 32.

IV. Discussion

Despite concerted effort, the Court finds it difficult to discern the specific nature of Crosby’s claims, much less which facts are intended to support which particular claims. The wide-ranging scope of Crosby’s allegations,

encompassing prior convictions in 2007 and 2018, combined with conclusory   assertions of wrongdoing and only vague allegations of fact, make it nearly impossible to identify the specific theories of relief on which Crosby intends to rely. Confusing the matter further, Crosby appears to combine distinct claims within a single count—such as in Count One where Crosby raises claims for “discriminatory enforcement of vague/overbroad statutes” and the use of “illegal investigative tactics.” See TAC at 13. As such, the City’s assertion that the Third Amended Complaint remains an impermissible shotgun pleading and should be dismissed on this basis is not without some merit. See Motion at 4-7; see also Gilbert v. City of Pine Lake, Ga., No. 19-12585, 2022 WL 1162087, at *4 (11th Cir. Apr. 20, 2022) (affirming dismissal as a shotgun pleading, inter alia, where complaint “contained scattered accusations, making it uncertain,

even when liberally construed, what his claims were, and to whom they pertained”). Nevertheless, given Crosby’s meaningful efforts to correct his pleading deficiencies and the leniency shown to pro se pleadings, the Court will endeavor to consider the substance of his claims.

A. Count Two: Racketeering Activities Under 18 U.S.C. § 1964 and 42 U.S.C. § 19836

The Court finds it helpful to begin with Count Two. In this Count, Crosby asserts a claim pursuant to the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1964. Crosby alleges a racketeering scheme between the State and the City “that has existed since at least 2006 with just the state governments and since at least 2003 between the government and an illegal television program called [To Catch a Predator.]” See TAC ¶ 60. As described above, the scheme involves illegally framing men as child predators. Id. ¶ 62. Significantly, Crosby alleges that he “is only a sex offender because he was framed by this racket and can’t get out of it because of the racket.” Id. ¶ 65. Crosby’s RICO claim fails for several reasons. A private plaintiff asserting a civil RICO claim must plausibly allege that the defendants: “(1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at least two predicate acts of racketeering, which (5) caused (6) injury to the business or property of the plaintiff.” See Cisneros v. Petland, Inc., 972 F. 3d 1204, 1211 (11th Cir. 2020). Crosby’s allegations, as summarized above, are wholly insufficient to establish

See Reilly v. Herrera, 622 F. App’x 832, 833-34 (11th Cir. 2015).8 Although the ruling in Heck concerned § 1983 claims, “a number of other courts have held that the Heck rule applies with equal force to civil RICO claims” and the Court finds the reasoning of these cases persuasive. See Harrison v. Grand Jurors,

“vacat[ing] the illegal order denying federal habeas relief . . . .” See TAC ¶¶ 1, 93. Thus, to proceed with this lawsuit Crosby must satisfy Heck’s favorable termination requirement. Crosby does not allege that his 2007 criminal conviction has been overturned or called into question. To the contrary, Crosby asserts that his request for habeas relief was denied in 2015. See TAC ¶¶ 14, 21. Accordingly, the Heck bar governs, and the RICO claim is due to be dismissed without prejudice. See Petersen v. Overstreet, 819 F. App’x 778, 779 (11th Cir. 2020) (“[C]ases barred by Heck . . . are typically dismissed without prejudice . . . .”).⁹

B. Counts One and Three

Next, the Court addresses Crosby’s § 1983 claims in Counts One and Three. In Count One, Crosby asserts a § 1983 claim premised on the use of “illegal investigative tactics.”10 In Count Three, Crosby raises a related § 1983 conspiracy claim.11 “In order to prevail on a civil rights action under § 1983, a

930 F. 3d 1206, 1224 (11th Cir. 2019). Although vague, the crux of Crosby’s allegations in Count One appears to be that the City and the State are engaging in unreasonable warrantless searches. For example, Crosby alleges that the City placed wiretaps on his phones and those of his acquaintances without a warrant, “infiltrated” his place of employment to “coerce [his] coworkers . . . to be involved in a warrantless and illegal search of Plaintiff’s belongings,” and “illegally” tracked his movements. See, e.g., TAC ¶¶ 39, 42, 46, 48. As such, although not specified, Crosby appears to be alleging violations of his Fourth Amendment rights. See Gennusa v. Canova, 748 F. 3d 1103, 1109-10 (11th Cir. 2014) (“The Fourth Amendment, as a prosecution against the named defendants because there is no private right of action under these criminal statutes.”).   applied to the states by way of the Fourteenth Amendment, protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” (quoting U.S. Const. amend. IV) (internal citation omitted)). As to the claim for conspiracy, Crosby asserts that beginning sometime in 2019, his neighbor Shawn Fitzgerald initiated the conspiracy with the City and the State so that Fitzgerald could take Crosby’s house. See TAC ¶¶ 69, 73.

Crosby’s former employers were also allegedly members of the conspiracy. Generally, the conspiracy involved surveilling Crosby, tracking his movements, and surreptitiously providing information to law enforcement. It appears the object of the alleged conspiracy was to have Crosby “illegally” arrested for

Crosby’s conduct in November of 2018, detailed above. See TAC ¶¶ 34-35, 70, 73, 75, 77.12

“A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality.” Sewell v. Town of Lake Hamilton, 117 F. 3d 488, 489 (11th Cir. 1997) (citation omitted). The policy requirement is designed to

“‘distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.’” Grech v. Clayton Cnty., Ga., 335 F. 3d 1326, 1329 n.5 (11th Cir. 2003) (en banc) (quotation omitted). Indeed, municipal liability arises under § 1983 only where “‘a deliberate choice to follow a course   of action is made from among various alternatives’ by city policymakers.” City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)). A municipality will rarely have an officiallyadopted policy that permits a particular constitutional violation, therefore, in order to state a cause of action for damages under § 1983, most plaintiffs must demonstrate that the municipality has a custom or practice of permitting the violation. See Grech, 335 F. 3d at 1330; McDowell v. Brown, 392 F. 3d 1283, 1289 (11th Cir. 2004).13 The Eleventh Circuit has defined “custom” as “a practice that is so settled and permanent that it takes on the force of law” or a “persistent and wide-spread practice.” Sewell, 117 F. 3d at 489. Upon review, the Court finds that the Third Amended Complaint is devoid of allegations sufficient to establish municipal liability as to Count One or Count Three. Crosby does not allege that the purportedly illegal investigatory tactics are the result of an official City policy or widespread custom of engaging in warrantless wiretaps or searches. And Crosby’s conclusory allegations of conspiracy are insufficient to plausibly allege the existence of any agreement to violate his civil rights, much less one premised on an official City policy or

C. State of Florida

Having determined that the claims against the City are due to be dismissed, the sole remaining Defendant in this action is the State. Upon review of the docket, the Court notes that the State appeared in this action on May 11, 2022, see Notice of Appearance of Counsel (Doc. 75), but to date, has not filed a response to the Third Amended Complaint. As such, Crosby was required to apply for default under the Local Rules of this Court. See Local Rule 1.10(b), United States District Court, Middle District of Florida (Local Rule(s)). He has failed to do so. Accordingly, pursuant to Local Rule 1.10(c), Crosby’s claims against the State are due to be dismissed without prejudice. See Local

Rule 1.10(c) (“Failure to comply with a deadline in this rule can result in dismissal of the claim or action without notice and without prejudice.”). In this instance, however, the Court finds it appropriate to dismiss Counts One and Three with prejudice as Crosby’s § 1983 claims against the State are futile. See Tazoe v. Airbus S.A.S., 631 F. 3d 1321, 1335-37 (11th Cir. 2011); Woodroffe v. Fla. Dep’t of Fin. Servs., 774 F. App’x 553, 555 (11th Cir. 2019). The State of Florida is not subject to suit under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989) (“[A] State is not a person within the meaning of § 1983.”). Accordingly, it is ORDERED:

1. Plaintiff’s Motion to Reconsider Denial Without Prejudice Relief From Judgment and Other Orders and Demand for Disqualification Pursuant to Federal Law (Doc. 115) is DENIED as to his request for recusal, and otherwise DENIED as moot.

2. Defendant City of Jacksonville’s Motion to Dismiss Third Amended Complaint with Prejudice and Supporting Memorandum of Law (Doc. 53) is GRANTED to the extent set forth in this Order. 3. Count Two of the Third Amended Complaint (Doc. 23) is DISMISSED without prejudice. Counts One and Three of the Third Amended Complaint are DISMISSED. 4. The Clerk of the Court is directed to enter judgment, terminate all pending motions, and close the file. DONE AND ORDERED in Jacksonville, Florida, this 8th day of March, 2023.

United States District Judge

Ie11 Copies to: Counsel of Record Pro Se Parties