Esposito v. Orange Beech Police et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL ESPOSITO, 	*
*
Plaintiff, 	*
*
vs. 	* CIVIL ACTION NO. 24-00266-KD-B
*
KIMBERLEY NEUNER, 	*
*
Defendant. 	*
ORDER
This action is before the Court on review of Plaintiff Michael
Esposito’s 	amended 	complaint 	(Doc. 	8). 	Upon 	consideration, 	the
Court 	finds 	that 	Plaintiff’s 	amended 	complaint 	fails 	to 	provide
adequate 	notice 	of 	the 	claim 	being 	asserted 	and 	the 	grounds 	upon
which 	it 	rests. 	It 	is 	therefore 	necessary 	for 	Plaintiff 	to 	file
a 	second 	amended 	complaint 	that 	complies 	with 	federal 	pleading
standards and provides fair notice of his claim.
I. 	BACKGROUND
On 	August 	1, 	2024, 	Plaintiff 	Michael 	Esposito 	(“Esposito”),
who 	is 	proceeding 	without 	an 	attorney, 	commenced 	this 	action 	by
filing 	a 	complaint 	and 	a 	motion 	to 	proceed 	without 	prepayment 	of
fees. 	(Docs. 1, 2).1
1 The Court denied Esposito’s motion to proceed without prepayment
of fees and ordered him to pay the filing fee. 	(Doc. 5). 	Esposito
paid the $405.00 filing and administrative fees for a civil action
on September 23, 2024. 	(Doc. 6).
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In 	his 	initial 	complaint,2 	Esposito 	named 	as 	defendants 	the
Orange Beach Police Department (“OBPD”) and OBPD Officer Kimberley
Neuner (“Officer Neuner”). 	(Doc. 1 at 2). 	Esposito asserted that
the Court had federal question jurisdiction because he was “being
profiled – systemic profiling towards myself.” 	(Id. at 3). 	When
prompted 	to 	provide 	a 	short 	and 	plain 	statement 	of 	his 	claim,
Esposito 	stated: 	“Please 	- 	I 	will 	lose 	my 	right 	to 	earn 	a 	living
by 	driving 	a 	taxi 	cab 	in 	Orange 	Beach.” 	(Id. 	at 	4). 	In 	the
section 	requesting 	the 	relief 	being 	sought, 	Esposito 	stated:
“Within the last year I’ve been pulled over numerous about 8 times
– I receive 3 tickets 1 warning and a few officers just asking me
questions.” 	(Id.). 	Esposito attached various documents including
personnel complaints that he allegedly filed with the OBPD against
Officer 	Neuner 	and 	the 	“Orange 	Beach 	Police 	Commission 	and
Officers.” 	(Doc. 1-1).
In 	an 	order 	dated 	September 	26, 	2024, 	the 	Court 	found 	that
Esposito’s 	initial 	complaint 	was 	deficient 	because 	it 	failed 	to
set forth any valid basis for federal subject matter jurisdiction
and 	failed 	to 	comply 	with 	the 	basic 	pleading 	standards 	for 	a
complaint 	in 	federal 	court. 	(Doc. 	7 	at 	2-8). 	In 	addition, 	the
Court 	found 	that 	any 	claim 	asserted 	against 	the 	OBPD 	was 	subject
2 Esposito utilized the form titled “Pro Se 1 (Rev. 12/16) Complaint
for 	a 	Civil 	Case” 	for 	both 	his 	initial 	complaint 	and 	his 	amended
complaint. 	(See Docs. 1, 8).
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to 	dismissal 	because 	the 	OBPD 	is 	not 	a 	separate 	legal 	entity
subject to suit. 	(Id. at 8-10).
Esposito’s 	initial 	complaint 	was 	stricken, 	but 	the 	Court
granted him leave to file an amended complaint that stated a valid
basis 	for 	federal 	subject 	matter 	jurisdiction 	and 	addressed 	and
corrected the noted pleading deficiencies. 	(Id. at 10). 	To assist
Esposito 	in 	drafting 	a 	complying 	amended 	complaint, 	the 	Court
informed him of the applicable pleading standards for a complaint
in 	federal 	court, 	including 	what 	is 	required 	to 	properly 	allege
jurisdiction, what is required to state a claim upon which relief
can 	be 	granted, 	and 	the 	requirements 	of 	Rules 	8 	and 	10 	of 	the
Federal Rules of Civil Procedure. 	(Id. at 2-6, 10-11). 	The Court
warned Esposito that if he filed an amended complaint that failed
to 	address 	and 	correct 	the 	noted 	deficiencies 	in 	his 	original
complaint, 	the 	undersigned 	would 	recommend 	that 	this 	action 	be
dismissed. 	(Id. 	at 	12). 	The 	undersigned 	directed 	the 	Clerk 	of
Court 	to 	send 	Esposito 	a 	copy 	of 	this 	Court’s 	Pro 	Se 	Litigant
Handbook and encouraged Esposito to review the handbook carefully
and 	utilize 	it 	in 	drafting 	his 	amended 	complaint, 	so 	as 	to 	avoid
repetition of his pleading errors. 	(Id.).
In 	response 	to 	the 	Court’s 	order, 	Esposito 	timely 	filed 	an
amended complaint. 	(Doc. 8). 	In the amended complaint, Esposito
names 	Officer 	Neuner 	as 	the 	sole 	defendant 	and 	alleges 	that 	the
Court 	has 	federal 	question 	jurisdiction 	because 	he 	is 	bringing 	a
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claim 	under 	42 	U.S.C. 	§ 	1983. 	(Id. 	at 	2-3). 	When 	prompted 	to
provide a short and plain statement of his claim, Esposito states:
“I am being systematically profiled by the police officers employed
by the Orange Beach Police Department.” 	(Id. at 4). 	When prompted
to 	state 	the 	relief 	he 	is 	requesting, 	Esposito 	states: 	“Lost
ability to earn income - $350.000.” 	(Id.).
II. 	DISCUSSION
As the Court previously informed Esposito, a complaint filed
in federal court must contain “a short and plain statement of the
claim 	showing 	that 	the 	pleader 	is 	entitled 	to 	relief.” 	Fed. 	R.
Civ. 	P. 	8(a)(2). 	This 	means 	that 	“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, 	556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 	570 	(2007)). 	The 	purpose 	of 	Rule 	8(a)(2) 	is 	to 	“give 	the
defendant 	fair 	notice 	of 	what 	the 	. 	. 	. 	claim 	is 	and 	the 	grounds
upon 	which 	it 	rests.” 	Twombly, 	550 	U.S. 	at 	555 	(quotation
omitted). 	Each allegation in a complaint “must be simple, concise,
and 	direct.” 	Fed. 	R. 	Civ. 	P. 	8(d)(1). 	Relatedly, 	Rule 	10(b)
mandates 	that 	a 	complaint 	“state 	its 	claims 	. 	. 	. 	in 	numbered
paragraphs, each limited as far as practicable to a single set of
circumstances,” 	and 	that 	“each 	claim 	founded 	on 	a 	separate
transaction or occurrence . . . be stated in a separate count” to
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the 	extent 	doing 	so 	“would 	promote 	clarity.” 	Fed. 	R. 	Civ. 	P.
10(b).
These rules “work together to require the pleader to present
his 	claims 	discretely 	and 	succinctly, 	so 	that 	his 	adversary 	can
discern what he is claiming and frame a responsive pleading, [and
so 	that 	a] 	court 	can 	determine 	which 	facts 	support 	which 	claims
and whether the plaintiff has stated any claims upon which relief
can 	be 	granted[.]” 	Fikes 	v. 	City 	of 	Daphne, 	79 	F.3d 	1079, 	1082
(11th 	Cir. 	1996) 	(quotation 	omitted). 	Complaints 	that 	violate
these 	rules 	are 	“disparagingly 	referred 	to 	as 	‘shotgun
pleadings.’” 	Weiland 	v. 	Palm 	Beach 	Cty. 	Sheriff’s 	Office, 	792
F.3d 1313, 1320 (11th Cir. 2015). 	The unifying characteristic of
all 	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.” 	Id. at 1323. 	A court faced
with 	a 	shotgun 	pleading 	has 	the 	inherent 	authority 	to 	sua 	sponte
demand 	repleader 	of 	such 	complaints. 	Wagner 	v. 	First 	Horizon
Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir. 2006).3
3 Although courts must liberally construe pro se pleadings and hold
them to less stringent standards than formal pleadings drafted by
lawyers, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam),
this 	does 	not 	give 	a 	court 	license 	to 	act 	as 	counsel 	for 	a 	party
or rewrite an otherwise deficient pleading in order to sustain an
action. 	Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th
Cir. 	2014). 	A 	pro 	se 	litigant 	is 	still 	“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).
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The 	Court 	has 	also 	informed 	Esposito 	that 	in 	order 	to 	state
a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege
sufficient facts to plausibly suggest “that the conduct complained
of 	(1) 	was 	committed 	by 	a 	person 	acting 	under 	color 	of 	state 	law
and 	(2) 	deprived 	the 	[plaintiff] 	of 	rights, 	privileges, 	or
immunities 	secured 	by 	the 	Constitution 	or 	laws 	of 	the 	United
States.” 	Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992);
see 	42 	U.S.C. 	§ 	1983. 	A 	plaintiff 	asserting 	a 	claim 	under 	42
U.S.C. § 1983 must show a causal connection between the defendant’s
actions, orders, customs, or policies and the alleged violation of
the 	plaintiff’s 	rights. 	Zatler 	v. 	Wainwright, 	802 	F.2d 	397, 	401
(11th Cir. 1986) (per curiam); Williams v. Bennett, 689 F.2d 1370,
1380 (11th Cir. 1982).
Esposito’s amended complaint fails to meet the basic pleading
requirements set out above. 	As an initial matter, it is reasonably
clear 	that 	Esposito 	is 	asserting 	a 	§ 	1983 	claim 	against 	Officer
Neuner 	based 	on 	his 	belief 	that 	he 	is 	“being 	systematically
profiled by the police officers employed by the Orange Beach Police
Department.” 	(See 	Doc. 	8 	at 	3-4). 	However, 	“[s]ince 	§ 	1983
confers 	no 	substantive 	rights, 	a 	plaintiff 	seeking 	relief 	under
the 	statute 	must 	bring 	a 	§ 	1983 	claim 	in 	conjunction 	with 	some
other 	statute 	or 	constitutional 	provision 	that 	provides
substantive 	rights.” 	Samarco 	v. 	Neumann, 	44 	F. 	Supp. 	2d 	1276,
1284 (S.D. Fla. 1999). 	Esposito’s amended complaint does not cite
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to 	any 	statute 	or 	constitutional 	provision 	that 	provides
substantive 	rights, 	nor 	does 	it 	specify 	which 	of 	Esposito’s
constitutional 	or 	federal 	statutory 	rights 	are 	claimed 	to 	have
been 	violated. 	Thus, 	both 	the 	Court 	and 	Officer 	Neuner 	are 	left
to speculate as to which of his constitutional or federal statutory
rights Esposito believes Officer Neuner to have violated.
Additionally, Esposito fails to allege even a single fact to
support his conclusion that he is “being systematically profiled”
by Officer Neuner or other OBPD officers. 	Indeed, despite listing
Officer Neuner as the sole defendant, Esposito’s amended complaint
does not identify a single act taken or not taken by that officer.
As 	the 	Court 	has 	already 	explained 	to 	Esposito, 	a 	complaint
“requires more than labels and conclusions,” Twombly, 550 U.S. at
555, 	and 	“‘naked 	assertion[s]’ 	devoid 	of 	‘further 	factual
enhancement’” 	are 	insufficient. 	Iqbal, 	556 	U.S. 	at 	678 	(quoting
Twombly, 550 U.S. at 557).
Accordingly, 	Esposito’s 	amended 	complaint 	(Doc. 	8) 	is
STRICKEN because it violates the Federal Rules of Civil Procedure
by 	failing 	to 	provide 	adequate 	notice 	of 	his 	claim(s) 	and 	their
underlying factual grounds. 	Although dismissal of this action is
justified based on Esposito’s failure to file an amended complaint
that 	complies 	with 	the 	Court’s 	previous 	order, 	the 	undersigned
will provide Esposito one final opportunity to amend his complaint
in order to provide adequate notice of his claims and the factual
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grounds 	on 	which 	they 	rest. 	Thus, 	Esposito 	is 	GRANTED 	LEAVE 	to
file, 	on 	or 	before 	January 	3, 	2025, 	a 	second 	amended 	complaint
that 	addresses 	and 	corrects 	the 	pleading 	deficiencies 	noted 	in
this order and provides adequate notice of his claim(s) and their
underlying factual grounds.
Esposito must plead his claims with sufficient specificity to
conform to Rules 8 and 10 of the Federal Rules of Civil Procedure.
This 	includes: 	(1) 	identifying 	his 	pleading 	as 	a 	second 	amended
complaint; 	(2) 	identifying 	proper 	grounds 	for 	this 	Court’s
jurisdiction and alleging facts that show the existence of federal
subject 	matter 	jurisdiction; 	(3) 	making 	clear 	which 	claim(s) 	for
relief 	or 	cause(s) 	of 	action 	he 	is 	asserting 	against 	each
defendant; 	(4) 	providing 	the 	specific 	factual 	grounds 	upon 	which
each 	of 	his 	claims 	for 	relief 	or 	causes 	of 	action 	are 	based; 	(5)
specifying 	the 	conduct 	that 	each 	defendant 	is 	alleged 	to 	have
engaged in with respect to each claim for relief or cause of action
asserted 	against 	that 	defendant; 	and 	(6) 	stating 	the 	relief 	he
seeks. 	To 	the 	extent 	Esposito 	is 	claiming 	that 	a 	defendant
violated 	his 	constitutional 	or 	federal 	statutory 	rights, 	he 	must
identify 	(1) 	the 	particular 	right(s) 	he 	alleges 	the 	defendant
violated, 	(2) 	the 	constitutional 	or 	statutory 	basis 	for 	such
right(s), and (3) the facts underlying his claim.
The Court reiterates to Esposito that a complaint in federal
court 	must 	contain 	sufficient 	factual 	matter 	to 	state 	a 	facially
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plausible claim for relief. 	Ashcroft, 556 U.S. at 678. 	“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.” 	Id. 	This
necessarily requires that a plaintiff include factual allegations
that 	plausibly 	support 	each 	essential 	element 	of 	his 	claim.
Randall 	v. 	Scott, 	610 	F.3d 	701, 	708 	n.2 	(11th 	Cir. 	2010). 	A
complaint 	does 	not 	need 	detailed 	factual 	allegations, 	but 	it
“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. 	“Nor 	does 	a 	complaint 	suffice 	if 	it
tenders 	‘naked 	assertion[s]’ 	devoid 	of 	‘further 	factual
enhancement.’” 	Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 557).
Esposito’s 	second 	amended 	complaint 	will 	replace 	his 	prior
complaint. 	Therefore, 	the 	second 	amended 	complaint 	shall 	not
reference 	or 	seek 	to 	incorporate 	by 	reference 	Esposito’s 	prior
complaints. 	See Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d
1210, 	1215 	(11th 	Cir. 	2006) 	(stating 	that 	the 	original 	complaint
is 	considered 	abandoned 	and 	is 	no 	longer 	a 	part 	of 	the 	pleader’s
allegations 	against 	his 	adversary 	when 	an 	amended 	complaint 	is
filed).
Esposito is hereby cautioned that if he does not file a second
amended complaint within the ordered time, or if he files a second
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amended 	complaint 	that 	fails 	to 	fully 	address 	and 	correct 	the
deficiencies in his first amended complaint that are described in
this 	order, 	the 	undersigned 	will 	recommend 	that 	this 	action 	be
dismissed. 	There 	will 	be 	no 	further 	opportunities 	to 	amend 	in
order to correct pleading deficiencies.
DONE this 2nd day of December, 2024.
/S/ SONJA F. BIVINS 	_
UNITED STATES MAGISTRATE JUDGE
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