Case 4:09-cv-00373-RS-WCS Document 32 Filed 12/17/09 Page 1 of 5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA
Tallahassee Division

ROBERT A. BRAYSHAW,

Plaintiff,

vs. Case No.: 4:09-cv-373 –RS-WCS

CITY OF TALLAHASSEE, FLORIDA

Defendant.
_____________________________/

CITY OF TALLAHASSEE’S RESPONSE TO PLAINTIFF’S

MOTION FOR RELIEF FROM ORDER OF DISMISSAL
OR IN THE ALTERNATIVE MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT

Defendant, City of Tallahassee (the City), by and through undersigned

counsel, files its response to plaintiff’s motion for relief from order of dismissal

(Doc. 31) or in the alternative requests that the Court consider its response as the

City’s motion to dismiss plaintiff’s amended complaint (Doc. 22), and in support

thereof states:

1. Based on undisputed facts from the allegations in plaintiff’s

complaint,1 the Court’s Order that dismissed plaintiff case (Doc. 29) concluded as

1
These facts included the following: (1) plaintiff was seeking to enjoin the City from
future employment of § 843.17; (2) the City had adopted portions of § 843.17 as City Ordinance
12-1; and (3) City Ordinance 12-2 was repealed on January 28, 2009.
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a matter of law that (1) there was no prospect that the City could enforce City

Ordinance 12-1 against plaintiff in the future; (2) there is no likelihood of injury to

plaintiff in the future; and (3) plaintiff lacked standing to bring any claim for

equitable relief against the City. Although the Court did not so state in its order,

absent standing there is no subject matter jurisdiction for plaintiff’s equitable

claims against the City.2 Since the allegations relating to equitable relief are

identical in plaintiff’s complaint and amended complaint, the underlying factual

and legal basis for the Court’s order dismissing plaintiff’s case was, and remains,

correct. Accordingly, plaintiff’s motion for relief from order of dismissal should be

denied.

2. The complaint and amended complaint are identical in the following

other ways: (a) each pleading seeks relief against the City under 42 U.S.C. § 1983

and Monell v. New York City Dept. of Social Services.3 (Doc. 1 and 22, ¶ 3); (b)

each pleading challenges the constitutionality of Fla. Stat. § 843.17 under the First

and the Fourteenth Amendments to the United States Constitution. (Doc. 1 and 22,

¶ 3); (c) each pleading requests that the Court declare § 843.17 unconstitutional on

its face, and as applied to plaintiff’s actions, and seeks to enjoin the City and its

agents from enforcing § 843.17 (Doc. 1 ¶ 23 and Doc. 22, ¶ 27); and, (d) the

2
Tanner Advertising Group, L.L.C. v. Fayette County, GA, 451 F.3d 777, 790-91 (11th
Cir. 2006).
3
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

2
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Monell claim in each pleading is based on plaintiff’s contention that § 843.17 was

adopted by the City as policy by City Ordinance 12-1 (Doc. 22, ¶ 16), despite the

undisputed fact that City Ordinance 12-1 was repealed on January 28, 2009.

3. As to the City, the only difference between the complaint and the

amended complaint is that in the amended complaint’s prayer for relief (Doc. 22 at

p. 8) plaintiff added the following: “(d) award Plaintiff monetary damages against

Defendant City of Tallahassee;” Plaintiff’s amended complaint contains no factual

allegations that he actually suffered injury that would warrant monetary damages.

In fact, plaintiff’s amended complaint alleges quite the opposite in paragraph 25, to

wit: “Plaintiff has no adequate remedy at law because the denial of Plaintiff’s

constitutional rights cannot be remedied through legal relief.”

4. Without factual allegations regarding injuries to support a request for

monetary damages, plaintiff’s amended complaint against the City is nothing but a

rehash of his initial complaint that should not require the filing of another motion

to dismiss, as plaintiff still lacks standing and the Court is without subject matter

jurisdiction. The Court correctly dismissed plaintiff’s case without prejudice.

5. The City requests that the Court deny plaintiff’s motion for relief from

order of dismissal.

3
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6. In the alternative, the City adopts its motion to dismiss plaintiff’s

complaint and supporting memorandum of law (Doc. 16) in its entirety as the

City’s motion to dismiss plaintiff’s amended complaint (Doc. 22).

7. Plaintiff lacks standing to bring his claims for injunction and/or

declaratory relief against the City and plaintiff’s amended complaint as to those

claims should be dismissed for lack of jurisdiction under Rule 12 (b)(1).

8. Plaintiff’s amended complaint as to monetary damages against the

City should be dismissed under Rule 12(b)(6) for failure to state a claim upon

which relief can be granted.

WHEREFORE, for the foregoing reasons, the City of Tallahassee

respectfully requests that this Court deny plaintiff’s motion for relief from order of

dismissal or in the alternative consider the City’s response as a motion to dismiss

plaintiff’s amended complaint and dismiss the amended complaint based on the

facts and arguments set out in the City’s motion to dismiss plaintiff’s complaint,

which is adopted and incorporated herein.

4
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by electronic mail on this 17th day of December 2009 to:

Randall C. Marshall, Esq. James K. Green, Esq.

Legal Director Suite 1650, Esperante
American Civil Liberties Union 222 Lakeview Ave.
Foundation of Florida, Inc. West Palm Beach, FL 33401
4500 Biscayne Blvd., Ste. 340
Miami, FL 33137

Anne Swerlick, Esq.

2425 Torreya Drive
Tallahassee, FL 32303

ATTORNEYS FOR PLAINTIFF

s/ Billy J. Hendrix
BILLY J. HENDRIX
Assistant City Attorney
FBN: 849529
City Attorney’s Office
300 South Adams Street, Box A-5
Tallahassee, Florida 32301
(850) 891-8554; Fax: (850) 891-8973
ATTORNEYS FOR DEFENDANT
CITY OF TALLAHASSEE