Plaintiffs' Response To Defendants' Motion To Dismiss And, Alternatively, Motion To Strike Portions of Plaintiffs' Complaint

Case 2:20-cv-00307-SPC-MRM Document 7 Filed 05/18/20 Page 1 of 6 PageID 69
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
Fort Myers Division
Case No: 2:20-cv-00307-SPC-MRM
REGINA L. DAYTON, and

RAY SEWARD
Plaintiffs,
v.
CITY OF MARCO ISLAND and

ERIK BRECHNITZ,
Defendants.
_______________________________________/
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS AND,

ALTERNATIVELY, MOTION TO STRIKE PORTIONS OF PLAINTIFFS’
COMPLAINT
Plaintiffs, REGINA L. DAYTON (“DAYTON”) and RAY SEWARD (“SEWARD”)
(collectively “Plaintiffs”), by and through their undersigned counsel and submit the following
response in opposition to Defendants’, THE CITY OF MARCO ISLAND (“COMI”) and ERIK
BRECHNITZ (“BRECHNITZ”), (collectively “Defendants”), Motion to Dismiss and
Alternatively, Motion to Strike Portions of Plaintiffs Complaint (“Motion”). For the reasons set
forth below, Plaintiffs request this Court deny the Motion in is entirety.
I. Background
This is an action under 42 USC §1983 Federal Civil Rights case under the First Amendment
of the United States Constitution as applied to the States through the United States Constitution’s
Fourteenth Amendment. Plaintiffs attended a council meeting held on January 21, 2020, where
Defendant, BRECHNITZ was presiding as chairman. During the citizens comments section of the
council meeting Plaintiffs’ were prevented from making comments concerning chairman
BRECHNITZ, violating Plaintiffs’ First Amendment Right.
II. Motion to Dismiss Standard
The standard of review for a Motion to Dismiss is discussed in Rosy Blue, NV v. Davis,
2007 U.S. Dist. LEXIS 31436 (M.D. Fla. April 30, 2007). In Rosy Blue, this District established
that in ruling on a motion to dismiss, the court must view the complaint in the light most favorable
to the Plaintiff. Bell Atlantic elaborates, stating that the Plaintiff must plead enough facts to raise
a reasonable expectation that discovery will reveal evidence of illegal conduct. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 548 (2007). Thus, the complaint must contain enough facts to state a
claim to relief that is plausible on its face. Id. at 570.
A motion to dismiss under Rule 12(b)(6) should be granted only if it appears beyond a
doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to
relief. Conley v. Gibson, 335 U.S. 41, 48 (1957); see also Fed. R. Civ. P. 12(b)(6); Bell Atlantic
Corp v. Twombly, 550 U.S. 540, 570 (2007). A motion under Rule 12(b)(6) merely tests the legal
sufficiency of a complaint, requiring a court to construe the complaint liberally, assume all facts
as true, and draw all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 556-57.
A complaint should never be dismissed because the court is doubtful that the plaintiff will be able
to prove all of the factual allegations contained therein. Id.
III. Defendant, BRECHNITZ is not entitled to Qualified Immunity
The defense of qualified immunity protects officials performing discretionary functions from
liability "where their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Gold v. City of Miami, 121 F.3d 1442, 1445
(11th Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d
Page 2 of 6
396 (1982)). To be entitled to qualified immunity, "the public official must show that he was
acting within the scope of his discretionary authority at the time the allegedly wrongful acts
occurred." Durruthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003) (citing Lee v. Ferraro, 284
F.3d 1188, 1194)(11th Cir. 2002)). In this case, it is not disputed that during the council meeting,
BRECHNITZ was acting in his official duty. However, BRECHNITZ actions violated clearly
established rules.
When evaluating a claim for qualified immunity, a court must determine: "(1) whether the facts
alleged, viewed in the light most favorable to the plaintiff, show that the officer's conduct violated
a constitutional right, and (2) whether, under the facts alleged, there was a violation of "clearly
established law." Pearson v. Callahan, 555 U.S. 223, 224 (2009).
The general rule is that a government official is entitled to qualified immunity from a civil
rights action: ". . . unless the law preexisting the defendant official's supposedly wrongful act was
already established to such a high degree that every objectively reasonable official standing in the
defendant's place would be on notice that what the defendant official was doing would be clearly
unlawful given the circumstances." Pace v. Capobianco, 283 F.3d. 1275, 1282 (11th Cir. 2002).
In this case, Plaintiffs’ Complaint identifies a set of clearly established rules identified in the
Complaint as the City of Marco Island City Council Rules of Procedure, The City of Marco Island
City Council Rules of Procedure Section (7)(C)(2) provides that “The Public shall be encouraged
to address City Council on any subject matter not scheduled on the agenda during the Citizens’
Comments section of the agenda.” (emphasis added). The rule is sufficiently clear that
BRECHNITZ would have known that preventing Plaintiffs from making comments concerning
Councilor Honig would have been a violation of established City of Marco Island City Council
Rules of Procedure. Accordingly, Plaintiffs’ seek the denial of Defendants Motion to Dismiss.
Page 3 of 6
IV. Municipal Liability under Section 1983
The United States Supreme Court overruled its earlier decision in Monroe v. Pape, 365 U.S.
167 (1961), to the extent that Monroe held that local governments ("municipal corporations") were
entirely immune from section 1983 suits. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690,
56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) ("Congress did intend municipalities and other local
government units to be included among those persons to whom § 1983 applies. Local governing
bodies, therefore, can be sued directly under § 1983 . . . ."); see id. at 695, 701 (explicitly
overruling Monroe v. Pape with respect to municipal liability under section 1983). Samedi v.
Miami-Dade Cty., 134 F. Supp. 2d 1320, 1348 (S.D. Fla. 2001).
Municipal liability is limited to certain situations in which plaintiff complains of "'acts that are,
properly speaking, acts 'of the municipality' -- that is, acts which the municipality has officially
sanctioned or ordered.'" Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir.
1991) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)). A plaintiff may establish
a case of municipal liability under section 1983 by following one of several routes, including a
showing of a local government's policy, custom or practice, or a failure to train its
employees. See 923 F.2d at 1481. Samedi v. Miami-Dade Cty., 134 F. Supp. 2d 1320, 1348 (S.D.
Fla. 2001).
“[I]t is when execution of a government's policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that
the government as an entity is responsible under § 1983”. Monell v. Dep't of Soc. Servs., 436 U.S.
658, 694, 98 S. Ct. 2018, 2037-38 (1978). To prove § 1983 liability against a municipality based
on custom, a plaintiff must establish a widespread practice that, "'although not authorized by
Page 4 of 6
written law or express municipal policy, is 'so permanent and well settled as to constitute a 'custom
or usage' with the force of law . . .” Samedi at 1350 (S.D. Fla. 2001).
In the case at bar, despite the City of Marco Island City Council Rules of Procedure, providing
for and encouraging citizen comments related to any topic. The city council has prohibited
comments as they relate to councilor Honig. The complaint in this case, establishes at least two
occurrences where it has become the practice for the City Council to violate the rules of procedure
and limit comments by citizens as it relates to councilors. At no time did Plaintiffs’ comment seek
to establish personal attacks against councilor Honig or any councilor for that matter. Nonetheless,
Plaintiffs’ were stopped from speaking and making such comments. In preventing Plaintiffs’ from
making comments the City of Marco Island is invoking a custom of repeatedly violating the City
of Marco Island City Council Rules of Procedure and Plaintiffs’ First Amendment rights.
Discovery into the case is likely to reveal that is has become common practice for the City of
Marco Island Council to limit comments from citizens when the citizens comments are not in line
with the council’s viewpoint. Accordingly, the city of Marco Island has established a custom that
has exposed the city to Municipal liability and Plaintiffs seek the denial of Defendants’ Motion to
Dismiss.
V. Plaintiffs are entitled to a demand of Punitive Damages
In a section 1983 action, punitive damages are available when a defendant's conduct is "shown
to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 75 L. Ed. 2d 632, 103 S. Ct.
1625 (1983); see Anderson v. City of Atlanta, 778 F.2d 678, 688 (11th Cir. 1985). Peden v.
Suwannee Cty. Sch. Bd., 837 F. Supp. 1188, 1196 (M.D. Fla. 1993).
Page 5 of 6
The decision to award punitive damages is left to the jury and in a section 1983 action, a jury
may properly awarded punitive damages even though it awards no compensatory damages,
but only where the jury first finds that a constitutional violation was committed by the party
against whom the punitive are imposed. Peden v. Suwannee Cty. Sch. Bd., 837 F. Supp. 1188, 1197
(M.D. Fla. 1993). Nevertheless, Defendants are seeking to prevent Plaintiffs’ from properly
seeking punitive damages. Plaintiffs are entitled to seek an award for punitive damages and have
a jury decide the award, if any, of such damages. Accordingly, Plaintiffs request to strike
Plaintiff’s’ request for punitive damages should be denied.
Certificate of Service
I herby certify that on May 18, 2010, I electronically filed the forgoing with the
Clerk of the Court by using the CM/ECF system. I further certify that the forgoing document
and has been provided to counsel for Defendants via electronic mail to Mathew H. Mandel,
Esq. at [email protected]
Respectfully submitted,
DIANE S. PERERA, P.A.

Counsel for Plaintiffs’
12485 S.W. 137 Ave., Suite 106
Miami, FL 33186
Phone: 305-252-1388
[email protected]
By: _Diane S. Perera__________

Diane S. Perera, Esq.
FL Bar No. 994723
Page 6 of 6

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Case 2:20-cv-00307-SPC-MRM Document 7 Filed 05/18/20 Page 1 of 6 PageID 69

UNITED STATES DISTRICT COURT

Case No: 2:20-cv-00307-SPC-MRM

REGINA L. DAYTON, and

CITY OF MARCO ISLAND and

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS AND,

Plaintiffs, REGINA L. DAYTON (“DAYTON”) and RAY SEWARD (“SEWARD”)

BRECHNITZ (“BRECHNITZ”), (collectively “Defendants”), Motion to Dismiss and

BRECHNITZ, violating Plaintiffs’ First Amendment Right.

II. Motion to Dismiss Standard

claim to relief that is plausible on its face. Id. at 570.

to prove all of the factual allegations contained therein. Id.

III. Defendant, BRECHNITZ is not entitled to Qualified Immunity

established law." Pearson v. Callahan, 555 U.S. 223, 224 (2009).

IV. Municipal Liability under Section 1983

Miami-Dade Cty., 134 F. Supp. 2d 1320, 1348 (S.D. Fla. 2001).

showing of a local government's policy, custom or practice, or a failure to train its

V. Plaintiffs are entitled to a demand of Punitive Damages

Plaintiff’s’ request for punitive damages should be denied.

DIANE S. PERERA, P.A.

By: _Diane S. Perera__________

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