[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-13182

Non-Argument Calendar

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D.C. Docket No. 8:14-cv-00118-EAK-EAJ

JOHN S. BARTH, 

 Plaintiff - Appellant,

versus

STARLET MCNEELY, 

CHANTEL HOLLMAN, 

HERBERT BUCK, 

JOHN DOE, 

JANE DOE, 

 Defendants - Appellees,

SARASOTA COUNTY,

 Defendant. 

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Appeals from the United States District Court

for the Middle District of Florida

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(March 10, 2015)

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Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM: 

This case involves a long-running neighborhood dispute that is being 

litigated simultaneously in the Circuit Court of Sarasota County and the Middle 

District of Florida. The disputants are John S. Barth, his next-door neighbor 

Starlet McNeely, and Herbert Buck, who lives behind them.1

 According to the pro 

se complaint Barth filed in the instant case, McNeely has been trying to

force [him] from his home by nuisance, harassment, vandalism, 

trespass, perjury, slander, and solicitation of crime. The nuisance and 

harassment consist of keeping large dogs outside to bark through the 

night, other noisemaking . . . with the intent and effect of severe injury 

to [him] in quality of life and the use and value of his home, for a 

period exceeding one year. [And] Buck has committed assault against 

[him].

Doc. 1, at 2. And Sarasota County has, in violation of his rights under the 

Fourteenth Amendment and federal civil rights statutes, effectively sided with 

McNeely and Buck by refusing to curtail their tortious activity through the 

enforcement of its nuisance ordinance. 

Barth’s complaint alleges that on at least five separate occasions between 

November 2012 and July 2013, he complained to the Sarasota County Sheriff’s 

Office about McNeely and Buck’s tortious conduct and that the Sheriff’s Office 

did nothing to prevent it. As a result, McNeely and Buck’s behavior continued 

 1 The controversy also involves McNeely’s daughter, Chantel Hollman, who lives with 

her. We refer to them as McNeely for ease of discussion. 

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unabated, and Barth sued McNeely and Buck in Sarasota County Circuit Court. 

He brought four lawsuits in all.2

 The first three have concluded; the fourth is still 

pending.3

The complaint Barth presented to the District Court in this case replicates 

the allegations of the complaints he filed in the four Circuit Court cases. The 

complaint contains five counts. All counts comingle in a convoluted manner 

alleged violations of the United States Constitution, federal civil rights statutes, 

and state law. And, with minor immaterial exceptions, all counts assert essentially 

the same wrongful conduct. 

Count I seeks relief4 against the County under 42 U.S.C. § 19835 on the 

grounds that the County, acting through the Sheriff’s Office, denied Barth his 

 2 The record does not contain the complaints in these Circuit Court cases, so we cannot 

know whether Barth only sued McNeely and Buck.

3 In the first case, Barth sued McNeely because her fence allegedly encroached on his 

property. McNeely moved the fence and the case was dismissed. In the second case, which the 

Circuit Court dismissed on a procedural ground, Barth sued McNeely for maintaining a nuisance 

(barking dogs) and Buck for trespass and assault. The third case, brought against McNeely and 

Buck for trespass, nuisance, perjury, slander, and assault, was also dismissed on a procedural 

ground. The complaint in the fourth case, which contained the same allegations as the complaint 

in the third case, was dismissed with leave to amend. The fourth case is still pending.

4 We refer to both legal and equitable relief because the complaint is capable of being 

interpreted as seeking both.

5 Section 1983 states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State . . . subjects, or causes to be subjected, an citizen of the United 

States or other person within the jurisdiction thereof to the deprivation of any 

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Fourteenth Amendment rights to due process of law and equal protection of the 

law through selective enforcement of its nuisance ordinance, the improper training 

of County and Sheriff’s Office employees, and falsifying official records. Count II 

seeks relief from McNeely and Counts III and IV seek relief from McNeely and 

Buck under 42 U.S.C. § 1983 (for violations of the Fourteenth Amendment), 

1985(3), and 1986. Count V seeks relief against McNeely under Florida tort law. 

The defendants moved to dismiss all counts of the complaint under Federal 

Rule of Civil Procedure 12(b)(6) for failure to state a claim and Count V for lack 

of subject matter jurisdiction under 28 U.S.C. 1332 (diversity of citizenship). The 

District Court granted their motions with prejudice with leave to amend. Barth has 

not filed an amended complaint. He instead appeals the District Court’s dismissal 

of his original complaint. 

I.

We affirm the District Court’s dismissal of Count I. The Fourteenth 

Amendment to the United States Constitution provides that a State shall not 

“deprive any citizen of life, liberty, or property without due process of law.” U.S. 

Const. amend. XIV, § 1. Barth claims that as a resident of Sarasota County, he is 

entitled to the County’s enforcement of its nuisance ordinance, a benefit that is the 

 

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, . . . for redress.

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equivalent of a property or liberty interest protected by the procedural component 

of the Fourteenth Amendment’s Due Process Clause.6

 Barth thus argues that 42 

U.S.C § 1983 gives him the right to bring an action against the County to enforce 

the ordinance or for damages. We are not persuaded. 

Whether Barth can obtain relief under § 1983 because Sarasota County 

refused to enforce its nuisance ordinance depends on whether the County created a 

property or liberty interest in such enforcement. The Florida Supreme Court has 

answered this question. In Trianon Park Condominium Ass’n v. City of Hialeah, 

468 So. 2d 912, 918 (Fla. 1985), it held that “there is not now, nor has there ever 

been, any common law duty for . . . a governmental entity to enforce the law for 

the benefit of an individual or a specific group of individuals.” Sarasota County 

has the discretion, as a matter of governance, to enforce compliance with its 

ordinances, including the nuisance ordinance at issue here. Id. at 919. Given this 

fact, the benefit Barth claims is not a property or liberty interest protected by the 

Due Process Clause. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 

125 S. Ct. 2796, 2803, 162 L. Ed. 2d 658 (2005).7

 

 6 We do not read Barth’s complaint as asserting a substantive due process claim—that is, 

a substantive constitutional right to require the County to enforce the law, such as its nuisance 

ordinance. 

7 Barth’s allegation that the County denied him due process through improper training of 

County and Sheriff’s Office employees, and falsifying official records is patently meritless. 

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Barth also claims that the County’s failure to enforce the nuisance ordinance 

denies him equal protection of the laws, in violation of the Fourteenth Amendment. 

We assume for sake of argument that he might have an equal protection claim if he 

could show that the County routinely enforces the ordinance in situations 

materially similar to his. His problem is that his complaint fails to make such a 

showing. 

II.

Counts II, III, and IV seek relief under 42 U.S.C. §§ 1983, 1985(3), and 

1986. To make out a case against McNeely and/or Buck under § 1983, Barth has 

to allege that they subjected him to the tortious conduct his complaint describes 

while acting “under color of any statute, ordinance, regulation, custom, or usage, 

of” Sarasota County. 42 U.S.C § 1983; see supra text accompanying note 5. The 

District Court properly dismissed Barth’s § 1983 claims because Counts II, III, and 

IV fail to allege that McNeely or Buck acted under color of any such law.

Counts II, III, and IV allege that McNeely and/or Buck are liable to him for 

damages under § 1985(3). Section 1985(3) states, in pertinent part:

If two or more persons in any State . . . conspire or go in disguise on 

the . . . premises of another, 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; . . . in any case of conspiracy set forth in this section, if one or 

more persons engaged therein do, or cause to be done, any act in 

furtherance of the object of such conspiracy, whereby another is 

injured in his person or property, or deprived of having and exercising 

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any right or privilege of a citizen of the United States, the party so 

injured or deprived may have an action for the recovery of damages 

occasioned by such injury or deprivation, against any one or more of 

the conspirators.

42 U.S.C. 1985(3) (emphasis added). To state a claim under this section, a 

plaintiff must allege that some racial or other “class-based invidiously 

discriminatory animus lay behind the conspirators’ action.” Childree v. UAP/GA 

CHEM, Inc., 92 F.3d 1140, 1146–47 (11th Cir. 1995). The District Court properly 

dismissed Counts II, III, and IV because they contain no such allegation.

In Counts II, III, and IV, Barth seeks relief against McNeely and Buck under 

42 U.S.C § 1986. That section provides a cause of action against anyone who has 

“knowledge that any of the wrongs conspired to be done, and mentioned in [42 

U.S.C. § 1985(3)], are about to be committed , and having the power to prevent or 

aid in preventing the commission of the same, neglects or refuses to do so.” 42 

U.S.C. § 1986. A section 1986 claim is derivative of a § 1985(3) violation and 

thus requires the existence of a § 1985(3) conspiracy. Since Barth alleged no such 

conspiracy, Counts II, III, and IV fail to state a § 1986 claim. 

III.

Count V seeks relief against McNeely under Florida tort law. Barth alleges 

that subject matter jurisdiction exists under 28 U.S.C. § 1332 because he is a 

citizen of Maine and McNeely is a citizen of Florida. In response to McNeely’s 

motion to dismiss, however, Barth asserted that he is a citizen of Florida. Doc. 16, 

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at 10. The District Court, recognizing that Barth was proceeding pro se, dismissed 

it sua sponte, with leave to amend in order to remove the inconsistency. Doc. 36, 

at 14–15. Barth, however, chose not to eliminate the inconsistency. After 

considering all of Barth’s factual allegations—including those he made in his four 

state court lawsuits8

—we are satisfied that Barth is a citizen of Florida and that § 

1332 jurisdiction is therefore lacking.

IV.

For the foregoing reasons, we affirm the District Court’s dismissal of Counts 

I through V of Barth’s complaint.9

 8 We consider the allegations of the state court complaints only to the extent that Barth’s 

complaint reveals them.

9 In this appeal, Barth challenges the District Court’s denial of his motion for summary 

judgment and denial of his motion to add as a party defendant Robert Lincoln, counsel for 

McNeely and Buck. These challenges are meritless. 

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