JACKMAN

v.

20TH JUDICIAL CIRCUIT COURT ADMINISTRATION

EDERR, and NICHOEL FORRETT,

Defendants. /

OPINION AND ORDER1

Before the Court is Defendants 20th Judicial Circuit Court Administration, Scott Wilsker, Suzanne Ederr, and Nichoel Forrett’s Motion to Dismiss (Doc. 54) and pro se Plaintiff Keiron Jackman’s response in opposition (Doc. 55). The Court grants the Motion in part.

BACKGROUND2

This is an employment discrimination case. Jackman worked as a staff attorney for the Circuit. Like all new staff attorneys, Jackman was on an initial

LEGAL STANDARD

A complaint must recite “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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.’” Id. (quoting Twombly, 550 U.S. at 570). A facially plausible claim allows a “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

DISCUSSION

Defendants move to dismiss on five bases. The Court takes each in turn.

A. Shotgun Pleading

First, Defendants say the Complaint still flouts Rules 8 and 10. Jackman disagrees. While the Complaint is not a model of clarity, the Court agrees with Jackman. Neither the factual allegations nor Counts 3-9 are shotgun pleadings. Counts¹ and 2 are closer calls. Still, they do not transform the Complaint into a pleading the Rules prohibit. First, reading the Complaint as a whole, both Counts are only against the Circuit. See (Doc. 53 at 1 (identifying the Circuit as “Defendant”), 28-32). Second, each puts the Circuit on notice of the claims. And third, what could make them a shotgun pleading (collectively pleading several counts as a single claim) does not warrant outright dismissal of the entire

Complaint with prejudice. Count¹ alleges discrimination under FCRA, Title VII, § 1981 and § 1983. Yet the Court already dismissed the §§ 1981 and 1983 claims against the Circuit. See infra p.4. And Counts⁷ and 8 allege FCRA discrimination too. So after disregarding the dismissed and redundant portions, Count¹ is just a Title VII discrimination claim. Likewise, Count 2 alleges retaliation under Title VII and § 1981. But again, the Court already dismissed the § 1981 claim against the

Circuit. Thus, all that remains of Count 2 is Title VII retaliation. So the Court denies the Motion as it relates to shotgun pleading. Still, when repleading, Jackman should remove references to the claims he pled elsewhere or those already dismissed.

B. Individual Title VII and FCRA Liability

Second, Forrett, Ederr, and Wilsker argue they cannot be individually liable under Title VII or FCRA. But as noted, the Complaint doesn’t plead these claims against them. See also (Doc. 55 at 5). Regardless, the Court already ruled on Title VII and FCRA liability for those three. (Doc. 41 at 4-5 (“Jackman’s claims against Defendants Wilsker, Ederr, and Forrett in their individual and official capacities under Title VII and the FCRA are due to be dismissed.”)). The Court, therefore,

denies the Motion in this regard.

C. Eleventh Amendment Immunity

Third, the Circuit seeks immunity for the §§ 1981 and 1985 claims. Again, the Court already ruled on this matter. (Doc. 41 at 9-10 (“The Court finds that the § 1981, 1983, and 1985 claims asserted against the 20th Judicial Circuit are barred by the Eleventh Amendment.”)). So the Motion is denied on this basis. Yet Jackman should omit mention of those claims from his next complaint.

D. Conspiracy

Fourth, Forrett and Ederr seek dismissal of Count⁵, alleging conspiracy under § 1983, § 1985, and the Fourteenth Amendment.³ “A plaintiff may state a

§ 1983 claim for conspiracy to violate constitutional rights by showing a conspiracy existed that resulted in the actual denial of some underlying constitutional right.” Grider v. City of Auburn, Ala., 618 F. 3d 1240, 1260 (11th Cir. 2010). Under § 1985, plaintiff must allege: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Denney v. City of Albany, 247 F. 3d 1172, 1190 (11th Cir. 2001) (citation omitted); see also Burrell v. Bd. of Trs. of Ga. Mil. Coll., 970 F. 2d 785, 793-94 (11th Cir. 1992) (explaining racial or class-based discriminatory animus is necessary). There are differences between the two causes of action. See Grider, 618 F. 3d at 1262 n.34. Still, for either theory, there must be an alleged agreement, or meeting of the minds, between multiple individuals. Burrell, 970 F. 2d at 788-89. Forrett and Ederr contend the claim fails because it hinges on employment discrimination allegations. In doing so, they rely on a case holding plaintiffs cannot use § 1985(3) to enforce rights created by Title VII. Great Am. Fed. Sav. &

“corporation and its agents to conspire with itself, just as it is not possible for an individual person to conspire with himself.” Id. The intracorporate conspiracy doctrine applies “not only to private corporations but also to public, government entities.” Id. What is more, it protects both public entities and their employees from suit. Denney, 247 F. 3d at 1190. For the doctrine to apply, the employees must have acted within the scope of their employment. Grider, 618 F. 3d at 1261. “The scope-of-employment inquiry is whether the employee . . . was performing a function that, but for the alleged constitutional infirmity, was within the ambit of the [employee’s] scope of authority (i.e., job-related duties) and in furtherance of the employer’s business.” Id. And it affects conspiracies under both §§ 1983 and 1985(3). Id.; Detris v. Coats, 523 F. App’x 612, 615 (11th Cir. 2013). Jackman alleges Forrett and Ederr conspired with one another to discriminate against him based on his race and gender. But everything Forrett and Ederr allegedly did was part of their employment working for the Circuit.⁴ Neither side disputes that. So under a straightforward application of the intracorporate conspiracy doctrine, the claim is barred. E.g., Rehberg v. Paulk, 611 F. 3d 828, 854 (11th Cir. 2010) (“The ‘conspiracy’ occurred only within a government entity, and thus the intracorporate conspiracy doctrine bars” the claim.); Nassar v. Fla. Dep’t of Agric., 754 F. App’x 903, 907 (11th Cir. 2018). The doctrine, however, is not without limitations. See McAndrew v. Lockheed Martin Corp., 206 F. 3d 1031, 1041 (11th Cir. 2000) (excepting civil cases based on underlying criminal conspiracies) (en banc). Jackman contends one exception applies—“defendants’ conduct ‘involved a series of acts over time going well beyond simply ratification of a managerial decision by directors.” Dickerson, 200 F. 3d at 770 (quoting Stathos v. Bowden, 728 F. 2d 15, 21 (1st Cir. 1984) (Breyer, J.)). Yet while the Eleventh Circuit recognized that doctrinal exception applies in other jurisdictions, it declined to answer whether to adopt the limitation.

‘series of [discriminatory] acts’ exception does not apply in this circuit”).⁶ To be sure, some applied a different nonbinding exception (independent personal stake) that occupies a similar acknowledged-but-not-adopted status. N.R. by Ragan v. Sch. Bd. of Okaloosa Cnty., Fla., 418 F. Supp. 3d 957, 1001-02 (N.D. Fla. 2019); Williams v. Fulton Cnty. Sch. Dist., 181 F. Supp. 3d 1089, 1146-47 (N.D. Ga. 2016). Whereas, others refused to embrace that exception too. Harris v. City of Boynton

Beach, No. 9:16-CV-80148-ROSENBERG/BRANNON, 2016 WL 3971409, at *8-9 (S.D. Fla. July 25, 2016) (dismissing a conspiracy claim given “the absence of any applicable exception recognized and adopted by the Eleventh Circuit”).⁷ In any

E. Negligent Failure to Remedy

Fifth and finally, Wilsker wants Count⁶ (failing to remedy the conspiracy under § 1986) dismissed. “Section 1986 claims are therefore derivative of § 1985 violations.” Park v. City of Atlanta, 120 F. 3d 1157, 1159-60 (11th Cir. 1997). Because the conspiracy claim fails, this one does too. (Doc. 41 at 7-8); Higdon v. Tusan, 746 F. App’x 805, 813 (11th Cir. 2018). Also, the Complaint says Wilsker’s actions amounted to “negligent failure to remedy discrimination and harassment and prevent a conspiracy.” (Doc. 53 at 37). From his briefing, it appears Jackman tried to bring claims under Florida law for negligent misrepresentation, negligent retention or supervision, and information negligently supplied for the guidance of others. (Doc. 55 at 9-10). Like the last pleading, however, it is unclear where the Complaint alleges these. Count⁶ alleges a § 1986 claim, and the allegations relate to that cause of action. But Count⁶ does not provide notice of the state-law claims identified in the briefing. Previously, the Court cautioned Jackman that “it is the pleading, not the briefing on a motion to dismiss, that must state a claim.” (Doc. 41 at 7). All the same, a previous Order discussed the claims raised in the briefing and explained why the pleading was deficient. In doing so, it explained how similar negligent failure to remedy discrimination and harassment allegations failed. (Doc. 41 at 8-9). Despite the opportunity to replead and state the claims, the Complaint still does not allege those state-law causes of action. So Count⁶ is dismissed with prejudice. Because Jackman has several surviving causes of action, he may replead to remove all references to dismissed or redundant claims. Accordingly, it is now ORDERED: (1) Defendants’ Motion to Dismiss with Prejudice (Doc. 54) is GRANTED in part. a. Counts⁵ and⁶ are DISMISSED with prejudice. b. The balance of the Motion is DENIED. (2) Plaintiff must FILE an amended complaint in accordance with this Order on or before November 11, 2020. The failure to file an amended complaint will result in the closure of this case without further notice. DONE and ORDERED in Fort Myers, Florida on October 28, 2020.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record