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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SHARON SCHWINDT,
Plaintiff,
Case No: 8:13-cv-809-T-17EAJ

v.
HERNANDO COUNTY,
Defendant.

ORDER GRANTING MOTION TO DISMISS

SECOND AMENDED COMPLAINT WITH PREJUDICE

This case came before the Court pursuant to the Defendant Hernando County's
Motion to Dismiss Plaintiff's Second Amended Complaint with Prejudice and Incorporated
Memorandum of Law (Doc. No. 40) filed by the Defendant, Hernando County, Florida (the
"Defendant" or "Hernando County"), through which it requests that the Court dismiss

the Second Amended Complaint (the "Second Amended Complaint") filed by the
Plaintiff, Sharon Schwindt (the "Plaintiff' or "Ms. Schwindt") for failure to state a claim.
For the reasons set forth below, the Motion is GRANTED, and the Complaint is dismissed
with prejudice. The Clerk of Court is directed to close this case and terminate any pending
motions.
I.

Introduction

Through the Second Amended Complaint, the Plaintiff seeks $500,000,000.00 in

damages pursuant to 42 U.S.C. 1983 ("Section 1983") for alleged violations of her
constitutional rights.

Specifically, the Plaintiff alleges that Hernando County violated,

among other things, her Fourth Amendment right to be free of unlawful searches and
seizures, by breaking onto her property in the early morning hours of February 20, 2013

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and stealing three of her dogs. The Defendant, for its part, argues that the Second
Amended Complaint should be dismissed for failure to state a plausible claim for
municipal liability under Section 1983. Even assuming arguendo that the Plaintiff has
stated a plausible claim for a violation of her Fourth Amendment rights, the Plaintiff has
nevertheless failed to plead facts that plausibly suggest the alleged violation was officially
sanctioned or caused by an official policy of Hernando County. Given that this case has
been pending for nearly three years and the Plaintiff has been afforded numerous
opportunities to perfect her allegations, the Court will dismiss the Second Amended
Complaint with prejudice. See, e.g., Nettles v. City of Leesburg Police Dep't, 415 F .App'x
116, 124 (11th Cir. 2010) (affirming dismissal with prejudice where plaintiff was given
three opportunities to file a complaint that complied with applicable pleading standards).
II.

Background
A.

Procedural Facts

The Plaintiff originally commenced this action by filing an earlier version of the
Second Amended Complaint in Florida state court. (Doc. No. 1-3). On March 20, 2013,
the Defendant filed a Notice of Removal (Doc. No. 1), removing the case to this Court.
On September 23, 2014, after a period of dormancy, the Plaintiff filed an Amended
Complaint (Doc. No. 27) (the "Amended Complaint") seeking the return of her three dogs

pursuant to Section 1983. On July 16, 2015, the Court dismissed the Amended Complaint
for failing to, among other things, allege a basis for municipal liability under Section 1983
(Doc. No. 35) (the "Dismissal Order"). In the Dismissal Order, the Court indicated that
if the Plaintiff failed to allege a plausible violation of federal law and a plausible basis for
municipal liability in her Second Amended Complaint, the Court would dismiss this action

with prejudice.

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On September 28, 2015, the Plaintiff filed the Second Amended Complaint. While
the Second Amended Complaint contains additional facts not alleged in the original
complaint and Amended Complaint, it provides little in the way of clarity regarding the
Defendant's alleged bases for municipal liability under Section 1983. On October 8, 2015,
the Defendant filed the Motion, seeking dismissal of the Second Amended Complaint for,
among other reasons, failing to allege that any of Hernando County's "policies or customs
were the moving force behind a violation of [the Plaintiff's] rights." (Doc. No. 40). On
October 21, 2015, the Plaintiff filed the Plaintiffs (sic) Answer (Doc. No. 41) (the
"Response"), providing additional argument and background facts regarding the
allegations set forth in the Second Amended Complaint.
B.

Factual Background

The Amended Complaint, Second Amended Complaint, and Response suffer from
significant organizational and syntactic deficiencies. As a result, the Defendant has asked
the Court to dismiss the Second Amended Complaint for being "unintelligible" and a
"complete mess." (Doc. No. 40, at 5). While the Second Amended Complaint is far from
a model of clarity, given that the Plaintiff is proceeding prose, the Court has taken it upon
itself to synthesize and re-cast the Plaintiff's allegations, as set forth below, to better frame
the issues raised in the Motion.

1.

The Plaintiff's History as a Pet Owner

The Plaintiff has had documented issues with animal control authorities since the
early 1990s, which include, but are not limited to, (i) having animals, including horses and
canines, confiscated and removed from her property due to alleged acts of animal cruelty,
(ii) being cited for possessing unlicensed animals and causing public nuisances; and (iii)

being permanently enjoined from owning or harboring any animals, except for two non-

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threatening, non-aggressive domestic pets weighing less than 20 pounds. (Doc. No. 272, at 3-4; 33-42)

Despite those issues, on or about February 20, 2013, the Plaintiff

apparently was the owner of three canines and/or wolf-hybrids weighing between 35 and
45 pounds. (Doc. No. 27, at 1-2).

2.

Alleged Removal of Three Canines from Plaintiff's Property

The Plaintiff alleges that Hernando County animal control personnel violated her
constitutional rights, as part of an elaborate conspiracy and/or personal vendetta against
her, by unlawfully breaking onto and removing those animals from her property.
Specifically, the Plaintiff alleges that in the early morning hours of September 20, 2013,
she left "something on the stove," which caused her home to fill with smoke. (Doc. No.
41, at 13). The Plaintiff alleges that when she noticed the smoke in her home at or around
3:00 a.m., she immediately moved the three canines into a fenced area near the front
door of her residence. (Doc. No. 41, at 13). The Plaintiff further alleges that she brought
the three dogs back inside the home at approximately 3:30 a.m. (Doc. No. 27, at 1; Doc.
No. 41, at 13). This was presumably the last time she saw the three dogs on her property.
At approximately 8:30 a.m. on February 20, 2013, the Plaintiff alleges that she drove
around her neighborhood, but could not find any trace of the dogs or of any animal control
officers. (Doc. No. 27, at 2). Thereafter, the Plaintiff alleges that she discovered her dogs
had been seized by animal control officers and "checked in" to an animal control facility
at 4:00 a.m. 1 (Doc. No. 27, at 2). Upon returning to her property, she alleges that she

The Second Amended Complaint does not state whether the canines were checked in
to animal control at 4:00 a.m. or 4:00 p.m. Notably, however, an attachment to an earlier
version of the Amended Complaint indicates the canines may have been checked in by
Hernando County animal control at approximately 4:03 p.m.; thus casting doubt on the
Plaintiff's timeline of events. (Doc. No. 17-1, at 2). Nevertheless, for present purposes,
the Court will assume that the Plaintiff's version of the facts is correct.
1

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noticed boards had been removed ("or kicked in with a metal toe shoe") from a wooden
fence surrounding her property (Doc. No. 27, at 2; Doc. No. 41, at 13).
Since the Plaintiff last remembers the dogs being inside of her home and/or
property line, she posits that the Defendant, acting through its animal control officers,
must have broken through the wooden fence surrounding her property, unlawfully entered
her home and/or property, and removed the three dogs from her property while she was
sleeping. (Doc. No. 27, at 2-3; Doc. No. 38, at 14-15). In so doing, the Plaintiff alleges
that Hernando County violated her constitutional rights, including her Fourth Amendment
right to be free of unlawful searches and seizures. (Doc. No. 38, at 15-22). 2 The Plaintiff
further alleges that Hernando County has conspired against her and other Hernando
County residents by making false accusations of animal cruelty and neglect in order to
improperly deprive them of their animals. (Doc. No. 41, at 6-7). In particular, the Plaintiff
describes four situations in which acquaintances of hers allegedly had animals seized by
Hernando County under false pretenses. (Doc. No. 41, at 6-7).
As to the persons responsible for the alleged theft of her animals, the Plaintiff
identifies numerous potentially responsible individuals, including attorney John Jouben;
her former acquaintance, John Driscoll; several Hernando County judges, namely Judges
Scaglioni, Menendez, Tombrink, and Hitzmann; and several other Hernando County

In the Dismissal Order, the Court described the requirements for pleading violations of
the Plaintiff's rights under the Fourth, Fifth, Fourteenth, and Fifteenth Amendments. In
the Second Amended Complaint, the Plaintiff claims violations of her rights under the
First, Fourth, Fifth, Fourteenth, and Fifteenth Amendments. Rather than address each of
the Plaintiff's bases for alleged constitutional violations, the Court, as discussed below,
will assume that the Plaintiff has adequately plead facts to plausibly suggest a violation
of her Fourth Amendment right to be free of unlawful searches and seizures.
2

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officials, such as animal control officers Brenda Rodgers and Greg Harrison. (Doc. Nos.
38 & 41 ). However, nowhere in the Amended Complaint, Second Amended Complaint,
or Response does the Plaintiff identify a final policymaker responsible for the alleged
conspiracy to steal her and/or her acquaintances' animals.

Ill.

Legal Analysis
A.

Federal Pleading Standard

"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,
556 U.S. 662, 678 (2009). "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.

In evaluating whether a complaint meets the federal

pleading standard, the Court is not required to "accept as true" any allegations that
constitute legal conclusions. Id. Once the Court has identified the plaintiff's well-pleaded
factual allegations that do not constitute legal conclusions, the Court must determine
whether those allegations "plausibly give rise to an entitlement to relief." Id. at 679. This,
according to the Supreme Court, is "a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but is has not shown - that the pleader is entitled to relief." Id.
Here, the Court must consider whether, in light of the federal pleading standard
discussed above, the Plaintiff has alleged sufficient factual matter to plausibly suggest
that the Defendant can be held liable under Section 1983. To do so, the Court must first
discuss the requirements for pleading a claim under Section 1983.

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8.

Requirements for Stating a Claim under Section 1983

Section 1983 creates a cause of action for- the deprivation of rights, privileges, or
immunities by the federal Constitution or federal law, by any person acting under color of
state law. 42 U.S.C. 1983. To state a Section 1983 claim against a municipality, the
Plaintiff must allege that (1) her constitutional rights were violated, (2) the municipality,
through a custom or policy, officially sanctioned the violation, and (3) the policy or custom
caused the violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
As a result, the first requirement for stating a claim under Section 1983 is to
plausibly allege a constitutional violation. Based on the Court's review of the Plaintiff's
allegations, the most colorable constitutional violation claimed by the Plaintiff is the
violation of her Fourth Amendment right to be free of unreasonable searches and
seizures. In short, the Plaintiff alleges that Hernando County, through its animal control
personnel, unlawfully broke and entered her property by kicking out a board from her
privacy fence during the early morning hours of February 20, 2013.
Assuming arguendo that the Plaintiff has adequately alleged a constitutional
violation, the Court must determine whether the Plaintiff has sufficiently alleged the
second requirement for stating a claim under Section 1983, namely that "the municipality
has officially sanctioned the wrongful act." McGinley v. Jetton, 2011 WL 2600443, at *6
(M.D. Fla. Jun. 29, 2011); see also Moore v. Miami-Dade County, 2007 WL 4644629, at
*3 (S.D. Fla. Dec. 10, 2007) ("[A] county may be held liable under 1983 only if the
plaintiff's injury was inflicted pursuant to an 'official policy' of the county.").

"Official

sanction exists when it can be shown that the violation was caused by the execution of
an express policy, or was caused by a widespread practice or custom." McGinley, 2011

WL 2600443, at *6.

11

Under either theory, a plaintiff must (1) show that the ... county

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has authority and responsibility over the governmental function in issue, and (2) must
identify those officials who speak with final policymaking authority for that local
governmental entity concerning the act alleged to have caused the particular
constitutional violation in issue." Moore v. Miami-Dade County, 2007 WL 4644629, at *4
(S.D. Fla. Dec. 10, 2007)
Here, the Plaintiff has not identified any officially promulgated policy that resulted
in her alleged injury. Rather, liberally construing the Complaint, the Plaintiff has alleged
that the Defendant has engaged in a custom or practice that resulted in the alleged
constitutional violation. As a result, the Court will consider whether the Plaintiff has stated
a claim by evaluating whether the Complaint contains sufficient facts to establish
municipal liability for violations caused by an unofficial custom or practice.
To prevail on a 1983 action that is premised on an unofficial custom or practice,
"a plaintiff must establish a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to constitute a custom
or usage with the force of law." Id. Two ways in which such a permanent and well settled
practice "can rise to the level of a custom or policy [are] (1) if the municipality tacitly
authorizes these actions or (2) displays deliberate indifference towards the misconduct."
Id.

Where a plaintiff seeks to establish that a county policy resulted in a constitutional

deprivation through deliberate indifference, the plaintiff "must show that the county had
subjective knowledge of a risk of serious harm and consciously disregarded that risk." Id.
Importantly, however, merely pointing to "random acts or isolated incidents are insufficient
to establish a custom or practice." Id.

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In sum, "to withstand a motion to dismiss" in a 1983 action seeking damages for
a constitutional violation based on an unofficial custom or practice, the "plaintiff must
allege: (1) an unofficial practice; (2) through repeated acts; (3) of a final policymaker of
the County; (4) that is permanent and well settled; (5) about which the County's final
policymakers knew and failed to stop." Id. at *6.
Taking the Plaintiff's well-pleaded factual allegations as true, the Plaintiff has failed
to allege facts that plausibly suggest Hernando County officially sanctioned the alleged
constitutional violation. At best, the Plaintiff has alleged that Hernando County's animal
control officers engaged in an elaborate scheme to break and enter onto her property and
steal her dogs, and that approximately four other Hernando County residents were
deprived of their animals under false pretenses.

Critically, however, the Plaintiff has

neither identified a final policymaker of Hernando County responsible for the policy or
practice of stealing residents' animals, nor alleged that Hernando County's final
policymakers knew about the alleged violations. Stated differently, the Plaintiff has failed
to identify which final policymaker for Hernando County "tacitly acknowledged" the alleged
violations, or that a final policymaker for Hernando County was "deliberately indifferent"
to those violations.

Rather, the Plaintiff has merely alleged that both she and four

individuals were subject to an elaborate scheme by Hernando County's animal control

personnel to steal their animals. Those allegations, even if true, are not sufficient to state
a claim for relief under 1983 because they fall short of identifying and alleging that
policymaking officials officially sanctioned the purported conspiracy.
Moreover, even if the Plaintiff could allege the existence, identity, and
involvement of a final policymaker who tacitly acknowledged or was deliberately

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indifferent towards the alleged violations, the Plaintiff has failed to allege facts that the
alleged wrongful conduct was permanent and well-settled. In particular, the Plaintiff has
not alleged when the four other instances of similar conduct allegedly occurred and, as a
result, the Court cannot reasonably or plausibly infer that the alleged violations constitute
a permanent and well-settled custom or practice.
As a result, the Complaint must be dismissed due to the Plaintiff's failure to allege
sufficient facts from which the Court can infer the alleged violations were officially
sanctioned or caused by a custom or practice of Hernando County.
IV.

Conclusion

Accordingly, it is
ORDERED that the Motion is granted and the Second Amended Complaint is
DISMISSED WITH PREJUDICE. The Clerk of Court is directed to close this case and

terminate any pending motions.

DONE and ORDERED in Chambers, in Tampa, Florida this 29th day of October,

2015.

Copies furnished to:

Counsel of Record
Unrepresented Parties

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