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Case 8:12-cv-01755-EAK-TBM Document 10 Filed 09/20/13 Page 1 of 7 PageID 122

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAVID RIGGINS,

Plaintiff,

v.

CASE NO. 8:12-CV-1755-T-17TBM

POLK COUNTY PROCUREMENT
DEPARTMENT,

Defendant.

This cause is before the Court on:

ORDER

Dkt. 5 Motion to Dismiss
Dkt. 6 Response

Pro se Plaintiff' David Riggins' Complaint alleges discrimination on the basis of

gender, in violation of Title VII of the Civil Rights Act of 1964, and Sec. 287.097(4),

Florida Statutes. The alleged discrimination was in connection with the award of Quote

12-037.

(Dkt. 1, pp. 9-10). Plaintiff Riggins has attached exhibits to the Complaint,

including Plaintiffs Charge of Discrimination dated April 27, 2012.

Defendant Polk County has moved to dismiss Plaintiff's Complaint. Plaintiff

Riggins opposes Defendant's Motion to Dismiss.

I. Standard of Review

A. Rule 12(b)(6)

"Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short

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Case No. 8:12-CV-1755-T-17TBM

and plain statement of the claim showing that the pleader is entitled to relief." "[Detailed
factual allegations" are not required, Bell Atlantic v. Twomblv, 550 U.S. 544, 555 (2007),
but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to
relief that is plausible on its face," ]±, at 570. Aclaim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. \±, at 556. Two working principles
underlie Twomblv. First, the tenet that a court must accept a complaint's allegations as
true is inapplicable to threadbare recitals ofa cause ofaction's elements, supported by
mere conclusory statements. JcL, at 555. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense, id,, at 556. Acourt considering a motion to dismiss
may begin by identifying allegations that, because they are mere conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the complaint's
framework, they must be supported by factual allegations. When there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twomblv. 550 U.S. 544

(2007).

B. Pro Se Plaintiff

"Pro 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). However, a p_ro se litigant is not excused from
compliance with a Court order or other judicial or statutory deadlines. See Wayne v.
Jarvis. 197 F.3d 1098, 1104 (11th Cir.1999) (holding that "the problem here is not one
of construction: instead, the problem is one of lack of compliance with a deadline
imposed by law. Liberal construction does not mean liberal deadlines.").

2

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II. Discussion

Defendant has moved to dismiss the Complaint for several separate reasons,

which the Court will address below.

A. Failure to Exhaust

Defendant argues that Plaintiff failed to exhaust administrative remedies.

Plaintiff responds that Plaintiff received a Notice of Right to Sue as to Plaintiffs

Charge of Discrimination on May 9, 2012.

After consideration, the Court denies the Motion to Dismiss as to this issue.

B. No Private Cause of Action Based on Sec. 287.094(4), Florida Statutes

Defendant argues that there is no private cause of action based on Sec.

287.094(4), Florida Statutes. Defendant argues that the statute provides an

administrative remedy, and there is no explicit or implicit authorization for a private

cause of action to be brought in state or federal court.

Sec. 287.094(4). Florida Statutes, provides:

(4) No agency shall deny any contractor, firm, or individual a fair
opportunity to compete in the public procurement of commodities and
services based on race, national origin, gender, religion, or physical
disability, which for purposes of this subsection constitutes prohibited
discrimination. Complaints alleging prohibited discrimination by an agency
in its public procurement may be filed with the Office of Supplier Diversity
within 60 days after the facts giving rise to the complaint are known or

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reasonably should have been discovered. Any complaint shall be filed in
writing and must set forth the specific facts giving rise to the claim of
prohibited discrimination. The Office of Supplier Diversity shall, within 10
days, refer the complaint to the Inspector General for the agency that is
the subject of the complaint, who shall coordinate a prompt investigation
and issue written findings of fact. These findings shall be reviewed by the
Chief Inspector General or his or her designee, who is authorized to
conduct any further investigation deemed necessary or appropriate. Upon
a final determination that an agency has abused its discretion by engaging
in prohibited discrimination, the Chief Inspector General shall refer any
state employee determined to have participated in the prohibited
discrimination for disciplinary action in accordance with chapter 60K(9),
Florida Administrative Code, and subsequently enacted rules, up to and
including termination.

Plaintiff has not provided any authority that would support a private cause of action

based on the language of the above statute.

After consideration, the Court grants the Motion to Dismiss as to this issue.

C. Section 1983 Claim

Defendant argues that, to the extent that Plaintiff is asserting liability against Polk

County on the basis of respondeat superior, a local government may not be sued for

constitutional violations under respondeat superior, but can only be held liable for

constitutional violations when the constitutional deprivation arises from a government

policy or custom. Monell v. Department Social Services of City of New York, 98 S.Ct.

2018, 2037 (1978). The policy must be driving force behind the violation. Gold v. City
of Miami. 151 F.3d 1346, 1350 (11* Cir. 1998). Defendant also argues that, to the
extent that any Section 1983 claim is based on Sec. 287.094(4), Florida Statutes, a

state law cannot be the basis of a Sec. 1983 claim.

After consideration, the Court grants the Motion to Dismiss as to this issue, with

leave to file an Amended Complaint within fourteen days.

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D. Insufficient Factual Allegations

Defendant argues that the Complaint does not include sufficient factual matter to

state a claim for relief.

Plaintiff responds that the Complaint is direct and to the point, and with the

attached EEOC charge presents the basis for Plaintiffs claim.

After consideration, the Court grants the Motion to Dismiss as to this issue, with

leave to file an Amended Complaint within fourteen days. The present Complaint does

not comply with the following Federal Rules of Civil Procedure:

Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and

(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.

Rule 10. Form of Pleadings

(b) Paragraphs; Separate Statements. A party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances. A later pleading may refer by number to a

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paragraph in an earlier pleading. Ifdoing so would promote clarity, each
claim founded on a separate transaction or occurrence-and each defense
other than a denial-must be stated in a separate count or defense.

The allegations that Plaintiff included in the Response do not solve the problem of the
absence of factual allegations in Plaintiffs Complaint. Whatever claims Plaintiff

intends to assert must be presented in one whole document, the First Amended

Complaint, which shall be filed within fourteen days. Litigation is not a guessing game.

A defendant is entitled to notice of what claims Plaintiff is asserting, and the factual and

legal basis for those claims. The Court directs Plaintiffs attention to the standard of

review for Rule 12(b)(6) above.

In filing an Amended Complaint, Plaintiff is directed to:

1. Comply with Fed. R. Civ. P. 8(a) and 10(b);

2. Attach the Notice of Right to Sue;

3. Correct the name of Defendant: "Polk County, a political subdivision of the

State of Florida."

Accordingly, it is

ORDERED that the Motion to Dismiss (Dkt. 5) is granted in part and denied in

part as stated above. Plaintiff shall file an Amended Complaint within fourteen days.

Plaintiff shall comply with the Federal Rules of Civil Procedure, the Local Rules of the

Middle District of Florida, and this Order. Failure to comply may have adverse

consequences, including dismissal of Plaintiff's lawsuit.

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Case No. 8:12-CV-1755-T-17TBM

DONE and ORDERED in Chambers, in Tampa, Florida on this

20th day of September, 2013.

Copies to:
All parties and counsel of record