Opinion
3:21-cv-726-MMH-PDB
05-24-2023
Earl M. Johnson, Jr., Plaintiff, v. Lenny Curry and Ronald DeSantis, Defendants.
REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS (D72, D73) AND FOR A SPEEDY HEARING (D66)
Patricia D. Barksdale, United States Magistrate Judge.
Earl M. Johnson, Jr., proceeding pro se, sues the Mayor of the City of Jacksonville, Florida (referred to here as “the City”), and the Governor of the State of Florida, both in their official capacities.Mr. Johnson asks the Court to declare that any city or state budgetary enactment supporting a public place in the Middle District of Florida named after a Confederate soldier or serving as the site for a Confederate-related monument, flag, or program violates his rights under federal statutory and constitutional law.
The Court struck the original and amended complaints because they were “shotgun pleadings.” D58, D61. With leave, Mr. Johnson filed a second amended complaint.D63. The defendants now move to dismiss that complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds this Court lacks subject-matter jurisdiction and Mr. Johnson fails to state a claim on which relief can be granted. D72, D73. For his part, Mr. Johnson moves for a speedy hearing under Federal Rule of Civil Procedure 57 because, according to him, no fact is disputed and no discovery is necessary. D66.
The Court referred the motions to the undersigned for a report and recommendation “regarding an appropriate resolution[.]” D74. The undersigned recommends granting the motions to dismiss in part, dismissing the action without prejudice for lack of subject-matter jurisdiction, and directing the clerk to terminate the motion for a speedy hearing.
I. Allegations
In the second amended complaint, Mr. Johnson alleges he is a “United States citizen” and an “African American (a Black person), the descendant of enslaved African Americans then-held in Confederate states, and a payor of local and state taxes within the jurisdiction.” D63 ¶¶6, 47. He states:
9. The Confederate States of America, also known as the Confederacy, was founded [in] 1860, in treason, included 11 southern states seceding from the United States of America, and caused the Civil War to preserve the enslavement of African Americans (Black people).
10. On March 21, 1861, weeks before the start of the Civil War, Alexander Stephens, the Vice President of the Confederacy, underscored the White supremacy bedrock of the secessionist government in his Cornerstone Speech, in which he proclaimed the Confederate ideal of perpetual inferiority of Black people to their White countrymen:
Our new government is founded upon the great truth that the Negro is not equal to the White man; that slavery, subordination to the superior race, is his natural and normal condition.
Alexander Stephens, V.P., C.S.A.
11. The designer of the Confederate Battle Flag, William Thompson, gave it the moniker “the White man's flag.”
12. Following the defeat of the Confederacy in the Civil War, and during Reconstruction that followed, White supremacy organizations emerged such as the Klu [sic] Klux Klan (“KKK”), Knights of the White Camellias and White League, seeking to preserve White supremacy through murder, violence and intimidation within the Middle District of Florida.
13. By 1912 women'[s] auxiliary groups such as the United Daughters of the Confederacy (“UDC”), within the Middle District of Florida, rose to promote the falsehood of benign ownership of Black Americans and White supremacy; working with the KKK to “protect whites from negro rule.”Id. ¶¶9-13 (emphasis omitted).
Mr. Johnson alleges “there are approximately 47[] monuments and naming tributes to the Confederacy and White supremacists on tax-funded public land, including counties, a county census district, school district names, parks, schools, streets, roads, programs, a courthouse mural, and a government building flying the Confederate Battle Flag[.]” Id. ¶14. He alleges these include but are “not limited to”:
Alachua
• Sidney Lanier Center
Baker
• Baker County
• Baker County School District
• Baker County Pre-K/Kindergarten
• Baker County Middle School
• Baker County High School
• Robert E. Lee Lane
• Baker County Courthouse Mural Depicting Hooded KKK Members Riding Horseback
Bradford
• Bradford County
• Bradford County School District
• Bradford County Middle School
• Bradford County High School
Columbia
• Olustee Confederate Battle Monument at State Park
Duval
• Florida Confederate Soldiers Memorial Pedestal at City Park
• Monument to Women of the Confederacy at City Park
• Yellow Bluff Fort Monument at State Park
• Confederate Point Road
• Confederate Street
• Confederate Point Road [sic]
• Stonewall (Jackson) Street
• (Stonewall) Jackson Street
• (Jefferson) Davis Street
• Jefferson (Davis) Street
Hamilton
• Confederate Monument at County Courthouse Lawn
Hendry
• Hendry County
• Hendry County School District
Hernando
• Confederate Soldier Monument at County Courthouse Lawn Hillsborough
• Lanier Elementary School
• Robert E. Lee Road
• Stonewall Jackson Elementary School
Lee
• Lee County
• Lee County School District
• Lee County Adolescent Mothers Program
• Lee County Memorial Hospital
Madison
• Confederate Monument at State Park
Manatee
• Judah P. Benjamin Confederate Memorial at State Park
Marion
• Confederate Flag at County Government Building
Nassau
• Yulee County Census Division
• General Lee Road
Pasco
• Pasco County
• Pasco County School District
• Pasco County Elementary School
• Pasco County High School
Putnam
• Robert E. Lee Drive
• Confederate Monument at County Courthouse Lawn
Suwannee
• Confederate Monument at State Park
Volusia
• Confederate Oak at City ParkId. ¶14.
Mr. Johnson alleges, “During the last four (4) years, [he] has traveled through or visited most all of the public locations above-identified within the Middle District of Florida.”Id. ¶15. He alleges he “is deeply repulsed, disheartened, and intimidated by the governmental celebrations of White supremacy against him as a Black American.” Id. ¶16. He alleges his “deep repulsion, disheartenment, and intimidation are reasonable” because “White supremacist organizations, such [as] the KKK, Nazis and other race hate groups have and continue to use Confederate tribute sites within the Middle District of Florida to celebrate White supremacy ideals, and to encourage the incitement of intimidation and violence against Black Americans” like him. Id. ¶17.
Mr. Johnson alleges the defendants continue “to maintain public funding for tributes to the Confederacy, Confederates and White supremacists on public land” within the Middle District of Florida, including, with respect to the City, “monuments, tributes, streets, roads, and parks,” and, with respect to the Governor, “monuments, tributes, namings, counties, programs, governmental buildings, streets, roads, parks, courthouses, and a census district[.]” Id. ¶¶18, 19. He alleges the defendants “continue [to] enact general budgetary allocations inuring to the presence, maintenance, preservation and protection of monuments and/or naming tributes to the Confederacy, Confederates and White supremacists on public land, within the Middle District of Florida, through public tax-based funding, under the color of law.” Id. ¶20. He alleges their conduct is “continuing in nature.” Id. ¶21.
II. Claims for Relief
Under five counts, Mr. Johnson asks the Court to provide declaratory relief under the Declaratory Judgment Act. D63 ¶¶22-71. The Act provides, “In a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). “Any such declaration shall have the force and effect of a final judgment or decree[.]”Id. The Federal Rules of Civil Procedure “govern the procedure for obtaining a declaratory judgment under ... § 2201.” Fed.R.Civ.P. 57.
In each count, Mr. Johnson says he “travels under” 42 U.S.C. § 1983. D63 ¶¶24, 36, 46, 56, 64. The statute provides, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . subjects, or causes to be subjected, any citizen of the United States . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]” 42 U.S.C. § 1983. Through this language, § 1983 provides a federal cause of action against any “person” who, acting under color of state law, deprives another of a federal right.Conn v. Gabbert, 526 U.S. 286, 290 (1999).
This Court need not decide whether to decline to exercise jurisdiction under the Declaratory Judgment Act, if any, because a jurisdictional ground for dismissal exists.
In count I, Mr. Johnson asks the Court to declare “the alleged conduct” violates Title II of the Civil Rights Act of 1964 (“Injunctive Relief Against Discrimination in Places of Public Accommodation”), codified at 42 U.S.C. § 2000a to § 2000a-6. D63 at 11. The section of the Act on which Mr. Johnson relies provides, “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation ... without discrimination or segregation on the ground of race, color, religion, or national origin.” 42 U.S.C. § 2000a(a).
In count II, Mr. Johnson asks the Court to declare “the alleged conduct” violates the Thirteenth Amendment to the United States Constitution. D63 at 13. The amendment provides, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1.
In count III, Mr. Johnson asks the Court to declare “the alleged conduct” violates the substantive component of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. D63 at 15. The clause provides, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.
In count IV, Mr. Johnson asks the Court to declare “the alleged conduct” violates the Equal Protection Clause of the Fourteenth Amendment. D63 at 17. The clause provides, “[N]or shall any State . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
In count V, Mr. Johnson asks the Court to declare “the alleged conduct” violates 42 U.S.C. § 1981. D63 at 18. The statute provides, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 42 U.S.C. § 1981(a).
In each count, Mr. Johnson repeats the statement that the right identified is violated by “Defendants' enactment of general budgetary allocations inuring to the presence, maintenance, preservation and protection of monuments, tributes and/or namings to the Confederacy, Confederates, and White supremacists, located on public land, including counties, a census division, buildings and programs, through public funding under color of [law, amounting] to an intentional governmental endorsement of White supremacy and the ideology that Plaintiff, a Black American, is inferior and subhuman[.]” D63 ¶¶28, 37, 48, 57, 65.
In each count, Mr. Johnson repeats the same language or nearly the same language: “Defendants' conduct is not rationally based upon some legitimate purpose”; “Neither Defendant is entitled to immunity, whether Eleventh Amendment, Qualified or otherwise because the conduct was not reasonable”; “Plaintiff does not seek monetary damages”; “As a direct and proximate result of Defendants' conduct alleged in this complaint, Plaintiff has suffered [been injured]”; and “Plaintiff has exhausted all conditions perquisite [sic].” D63 ¶¶29-33, 39-43, 49-53, 58-62, 67-71.
For count I (Title II), Mr. Johnson adds, “The budgetary enactments ... burden the liberty of Plaintiff, a Black American, as they abridge central precepts of equality based upon race and color.” Id. ¶27. For count II (Thirteenth Amendment), he adds, “The budgetary enactments . burden the liberty of Plaintiff, a Black American, as they abridge central precepts of equality and amount to badges, indicia and vestiges of slavery.” Id. ¶38. For count V (§ 1981), he adds the defendants' conduct is intentional. Id. ¶66.
III. Motions
A. Defendants' Motions to Dismiss
For their subject-matter-jurisdiction argument, the defendants focus on standing. See D72 at 5-10; D73 at 7-15. For their alternative failure-to-state-a-claim argument, the defendants focus on plausibility. See D72 at 10-19; D73 at 15-21. Mr. Johnson counters their arguments. See D76 at 4-17; D79 at 3-20. Because subject-matter jurisdiction is a threshold issue, the undersigned begins the analysis there.
1. Subject-Matter Jurisdiction
a. Standards