United States District Court

for the

Southern District of Florida

Eliezer Taveras, Plaintiff,

v.

Florida Department of 

Transportation and others, 

Defendants.

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Civil Action No. 22-23745 -Civ-Scola

Order on Magistrate Judge’s Report and Recommendations

This case has been referred to United States Magistrate Judge Jonathan 

Goodman for all pretrial matters. (ECF No. 34.) Judge Goodman has issued a 

report (Rep. & Recs., ECF No. 103), recommending that the Court grant in part 

and deny in part Defendants Florida Department of Transportation, Jared 

Perdue, Larry J. Saravia, and Alpine Towing, Inc.’s joint motion to dismiss 

(ECF No. 88). The Defendants and Plaintiff Eliezer Taveras have all filed 

objections. (Defs.’ Objs., ECF No. 109; Pl.’s Objs., ECF No. 112.) After a careful, 

de novo review, the Court adopts the report’s recommendation that the 

complaint be dismissed, modifying only (1) the reason for dismissing count 

three and (2) that aspect of the report that recommends affording Taveras one 

more attempt to replead his case. Accordingly, the Court largely adopts Judge 

Goodman’s report and recommendations (ECF No. 103), thus granting in 

large part the Defendants’ joint motion to dismiss (ECF No. 88) and

overruling both sides’ objections (ECF Nos. 109, 112), as more fully explained 

below.

In his second amended complaint (2nd Am. Compl. (“Compl.” or 

“complaint”), ECF No. 85), Taveras seeks monetary damages as well as 

injunctive and declaratory relief from the Defendants, stemming from, in broad 

strokes, Alpine’s towing of Taveras’s car which is intertwined with issues 

related to allegedly improper toll-road charges imposed by FDOT through 

Florida’s SunPass program. Associated with those allegations, Taveras sets 

forth six counts in his complaint: four 42 U.S.C. § 1983 claims (count one 

against Alpine and Saravia only; and counts four through six against all four 

Defendants); a claim alleging Alpine and Saravia violated the Fair Debt 

Collection Practices Act (count two); and a claim for declaratory relief against 

FDOT (count three). After careful analysis, Judge Goodman recommends 

granting the Defendants’ motion to dismiss as to all six counts of Taveras’s 

complaint. At the same time, Judge Goodman also recommends that the Court 

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afford Taveras one more chance to amend his complaint. (Rep. & Recs. at 43–

44.)

Both parties have filed objections to the report. While the Defendants 

“wholeheartedly agree with the recommendation that Plaintiff’s [complaint] be 

dismissed in its entirety,” they complain that it should be dismissed with

prejudice, rather than without, as Judge Goodman recommends. In support, 

the Defendants point to undue prejudice and the futility of any amendment.

Taveras, on the other hand, quarrels with several of Judge Goodman’s 

conclusions while at the same time acknowledging that, through additional 

allegations, he could shore up his claims in response to the various deficiencies

identified in the report. Notably, however, Taveras neglects to specify what 

those new factual allegations would actually be. Despite neither party’s 

identifying any actual legal or factual error, the Court has nonetheless 

undertaken a through de novo review of the entirety of Judge Goodman’s report 

and recommendations. After that review, the Court adopts the report’s ultimate 

recommendation to dismiss all six counts but, as to count three, for a slightly 

different reason. Further, as mentioned, the Court declines to adopt Judge 

Goodman’s recommendation that Taveras be afforded yet another opportunity 

to amend his complaint. 

To start, the Court agrees that all of Taveras’s § 1983 claims fail. First, 

as the report points out, the claims against Perdue are lodged against him in 

his official capacity as FDOT secretary. The Court agrees that such claims are 

redundant because Taveras has asserted the same claims against FDOT itself.

See Higdon v. Tusan, 746 F. App’x 805, 814 (11th Cir. 2018) (unpublished)

(“[O]fficers sued in their official capacity should be dismissed, as keeping suits 

against both the municipality and the officers plainly would be redundant.”). 

Next, the Court concurs that Taveras’s § 1983 claims against Alpine and 

Saravia also fail because the complaint is devoid of factual allegations that 

either of these non-governmental defendants acted under color of state law. 

(See Rep. & Recs. at 15–21.) 

Nor can Taveras’s remaining § 1983 claims, against FDOT, survive 

dismissal. As the report explains, any claims seeking monetary damages 

against FDOT are barred by Eleventh Amendment immunity. (Id. at 11–13.) 

Further, to the extent Taveras seeks injunctive relief against FDOT, through § 

1983, he fails to state a claim. Part of the deficiency of these claims arises from 

Taveras’s improper attempt to premise his § 1983 claims on an alleged 

violation of a criminal statute—18 U.S.C. § 241. Under this provision, 

“Conspiracy against rights,” there is no private right of action and, as a 

criminal statute, it “cannot be the basis of a civil lawsuit.” Albertini v. San Diego 

Cnty. Sheriff's Dept., No. 324CV00284JESSBC, 2024 WL 1078244, at *3 (S.D. 

Case 1:22-cv-23745-RNS Document 124 Entered on FLSD Docket 07/12/2024 Page 2 of 5
Cal. Mar. 12, 2024). Additionally, to the extent Taveras seeks to establish that 

FDOT violated his due-process rights, his allegations, as the report details, are 

purely conclusory and lacking factual support. (See Rep. & Recs. at 27–29.) For 

the foregoing reasons then, counts one, four, five, and six are dismissed.

The Court also agrees with Judge Goodman that count two, Taveras’s 

FDCPA claim against Alpine and Saravia, fails because the complaint contains 

no facts plausibly showing that either Alpine or Saravia are debt collectors

under the FDCPA. 

And as to the remaining count—Taveras’s claim against FDOT for a 

declaration that he does not owe FDOT any debt (count three)—the Court 

makes a slight modification to Judge Goodman’s report. Judge Goodman 

recommends dismissing this claim because Taveras failed to address the 

Defendants’ jurisdictional arguments. But because the Court dismisses all of 

Taveras’s federal claims and count three amounts to nothing more than a

state-law claim disputing a debt, arising between two Florida citizens (Compl. 

¶¶ 7, 8), the Court declines to exercise supplemental jurisdiction over it. 

Baggett v. First Nat. Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997)

(“State courts, not federal courts, should be the final arbiters of state law.”);

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir.2004) (“encourag[ing]

district courts to dismiss any remaining state claims when . . . the federal

claims have been dismissed prior to trial”).

Next, the Court modifies that part of the report that recommends 

affording Taveras yet one more chance to amend his complaint. Instead, upon 

a de novo review of the record, the Court exercises its discretion to dismiss 

Taveras’s complaint without leave to amend despite his pro se status. Notably, 

Taveras has attempted to amend his complaint six times, three of which were 

disallowed or stricken as improper or unauthorized. Under review now is 

Taveras’s third authorized attempt to properly plead his case. As a starting 

point then, an additional unprompted opportunity to amend, even if it appears 

Taveras could possibly state a claim, is not required. See Carter v. HSBC Mortg. 

Services, Inc., 622 F. App’x 783, 786 (11th Cir. 2015) (unpublished)

(recognizing that, when it appears a more carefully drafted complaint “might 

state a claim,” a district court must afford a pro se plaintiff “at least one chance 

to amend the complaint” before it is dismissed with prejudice) (emphasis 

added). 

Moreover, even if Taveras hadn’t already been afforded multiple 

opportunities to amend, there is nothing to indicate that, at this stage, “a more 

carefully drafted complaint might state a claim.” Id. Until the filing of his 

objections, Taveras chose to stand on his pleadings in the face of the 

Defendants’ motion to dismiss, never once proactively seeking to address the 

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identified deficiencies. And while, in his objections, he appears to finally 

acknowledge some shortcomings in his second amended complaint, he provides 

no concrete information about any facts he could supply that would result in a 

single viable claim against these Defendants. Instead, he simply refers, in 

purely conclusory fashion, to generalized “amendments” or “additional detailed 

allegations” that he says would address the Court’s concerns. (See, e.g., Pl.’s 

Objs. at 3, 4, 6, 7, 8, 10.) In sum, even when prompted, Taveras wholly fails to 

identify any specific facts that might actually salvage any of his claims,

indicating that further amendment would be entirely futile. 

Furthermore, even if Taveras’s objections could be construed as 

affirmatively seeking amendment, the request is wholly improper. First, the 

Eleventh Circuit has roundly “rejected the idea that a party can await a ruling 

on a motion to dismiss before filing a motion for leave to amend.” Avena v. 

Imperial Salon & Spa, Inc., 740 F. App’x 679, 683 (11th Cir. 2018)

(unpublished). Second, it is improper to seek leave to amend by making vague 

references to a hypothetical amended pleading in objections to a report and 

recommendation. Cf. Newton v. Duke Energy Florida, LLC, 895 F.3d 1270, 1277 

(11th Cir. 2018) (“[W]here a request for leave to file an amended complaint 

simply is imbedded within an opposition memorandum, the issue has not been 

raised properly.”); Avena, 740 F. App’x at 683 (noting that “a motion for leave to 

amend should either set forth the substance of the proposed amendment or 

attach a copy of the proposed amendment”) (cleaned up). Further, the deadline 

for amending the pleadings has long since passed so any request for leave to 

amend would be untimely as well.

And, even if Taveras had properly sought amendment, denial would be 

unwarranted not only based on undue delay and futility (as set forth above),

but also based on undue prejudice. In his objections, Taveras reveals that, if 

afforded the opportunity to amend, his intention would be to expand his case 

by adding claims for conversion, unjust enrichment, violations of consumer 

protection laws, and intentional infliction of emotional distress. (Pl.’s Objs. at 

9.) This proliferation of claims would exponentially increase the burden on the 

parties defending this case, amounting to undue prejudice. See Carter 622 F. 

App’x at 786 (“Prejudice is likely to exist if the amendments involve new 

theories of recovery or would require further discovery.”). This too militates 

against further amendment.

Lastly, the Court notes that not all of Taveras’s claims are dismissed with 

prejudice, as some of his claims were not dismissed on their merits. White v. 

Lemma, 947 F.3d 1373, 1377 (11th Cir. 2020) (“[A] dismissal under Federal 

Rule of Civil Procedure 12(b)(6) . . . is on the merits and with prejudice.”) 

Indeed, the only claims the Court dismisses with prejudice are those that are 

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dismissed for a failure to state a claim: (1) the FDCPA claims against Alpine 

and Saravia (count two); (2) the § 1983 claims against Alpine and Saravia

(count one and within counts four through six); and (3) the § 1983 claims 

against FDOT seeking injunctive relief (count four and to the extent injunctive

relief is sought in counts five and six). None of Taveras’s other claims are 

dismissed on their merits and are therefore dismissed without prejudice. See, 

e.g., Dupree v. Owens, 92 F.4th 999, 1007 (11th Cir. 2024) (“Dismissals for a 

lack of jurisdiction are not judgments on the merits and are to be entered 

without prejudice.”). Accordingly, the Court overrules that part of the 

Defendants’ objections insisting that the entirety of the dismissal of Taveras’s 

case should be with prejudice. And, to the extent the Defendants argue Taveras 

should not be allowed further amendment, the point is moot, based on the 

Court’s findings as set forth above.

In sum then, the Court largely adopts Judge Goodman’s report and 

recommendations (ECF No. 103), modifying it only to a limited extent, thus 

granting in large part the Defendants’ joint motion to dismiss (ECF No. 88), 

overruling both the Defendants and Taveras’ objections (ECF Nos. 109, 112)

and closing this case. All other pending motions are denied as moot. 

Done and ordered in Miami, Florida, on July 11, 2024.

________________________________

Robert N. Scola, Jr.

United States District Judge

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