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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

BILLY CLIFTON STEWART, 

 Plaintiff,

vs. 5:09cv285/RS/MD

FLORIDA DEPARTMENT OF EDUCATION

AND VOC REHAB DIVISION, et al.,

 Defendants.

O R D E R

Plaintiff Billy Clifton Stewa rt currently has three cases pending before the

undersigned: 5:09cv285/RS/MD, 5:09ccv286/RS/MD and 5:10cv28/RS/MD. Despite the

fact that plaintiff names different defendants in the three cases, upon a rev iew of the

respective files in these cases, t he C ourt has determined that these cases present

significant common questions of fact or law. Each of the three cases ar ises out of the

alleged wrongs that occurr ed in the course of plaintiff’s quest to obtain vocational

rehabilitation benefits. Some of the same actions and events are repeated throughout the

pleadings in each case, and whether named as defendants in each case or not, the same

individuals’ names appear in more than one case . Accordingly, pursuant to Rule 42( a),

Fed. R. Civ. P., these cases shall be consolidated for all further proceedings. Therefore,

all further papers and pleadings shall be filed only in Case No. 5:09cv285/RS/MD. 

In one of his pending cases, at the time he filed his most recent complaint, plaintiff

mentioned that he “may make a motion to dismiss without prejudice soon because he has

a wish to attempt to make a complaint in Florida Court.” (Case 5:09cv286/RS/MD, doc. 26

at 1). Nothing further was filed in that case and the status of plaint iff’s desire to file a
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complaint in state court is not clear. He may have already done this. If he has, he should

file a notice of voluntary dismissal of this case.

If, on the other hand, plaintiff wishes to proceed with this consolidated action, he will

be required to file a unified Fourth Amended Co mplaint in which he sets forth his claims

and allegations against all defendants. Plaintiff should be mindful that he should balance

the requirements of Rule 8 of the Federal Rules of Civil Procedure, which instructs litigants

to include a “short and plain statement of the cl aim,” with the necessity to provide sufficient

detail from which the court may assess whether plaintiff has presented a viable claim, and

perhaps ultimately, for the defendants to respond to plaintiff’s allega tions. Plaintif f has

previously been advised that he should not fill his pleadings with irrelevant historical and

background material which is not directly related to the claims asserted in the “Statement

of Claims” section of the complaint. For plaintiff’s benefit, the court will also provide some

additional guidance to him regarding the appr opriate presentation of his case, as it has

done previously when it noted the lack of legal viability of some of the claims he purported

to raise. For instance, in more than one of the underlying complaints, he appears to wield

the terms “equal protection” and “due process” without a full understanding of their legal

meaning, and hence without providing adequate factual support for these claims. 

The Due Process Clause of the Fourteenth Amendment provides that no state shall

“deprive any person of life, liberty or property without due process of law.” It is comprised

of both a procedural and a substantive component.

The initial question with any due process challenge is whether the injury claimed by

the plaintiff is within the scope of the Due Process Clause. Behrens v. Regier, 422 F.3d

1255, 1259 (11th Cir. 2003) (citing Smith ex. rel. Smith v. Siegelman, 322 F.3d 1290, 1296

(11th Cir. 2003)). “The requirements of pr ocedural due process apply only to the

deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty

and property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701,

2705, 33 L.Ed.2d 548 (1972) (cited in Behrens, supra). Plaintiff must therefore identify a

liberty or property interest of which he was deprived such that an actionable procedural due

process violation ensued. 

Case No: 5:09cv285/RS/MD
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The substantive component of the Due Process Clause also protects rights that are

“fundamental,” that is, rights that are implicit in the concept of ordered liberty. Behrens, 422

F.3d at 1264 (quot ing McKinnery v. Pate, 20 F.3d 1550, 1556 (11 th Cir. 1994) (internal

quotations omitted) . Fundamental rights are those rights created by the Constitution. 

Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) (citing

DeKalb Stone, Inc. v. county of DeKalb, Ga., 106 F.3d 956, 959 n.6 (11 th Cir. 1997). 

Property interests are not constitutional in origin. Greenbriar Village, 345 F.3d at 1262

(citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548

(1972)). Absent a basis for a claim of a substantive due process violation, he should omit

reference to this sort of claim from his Fourth Amended Complaint. 

In order to state an equal protection claim, a plaintiff must prove t hat he was

discriminated against by establishing that other similarly situated individuals outside of his

protected class were tr eated more favorably. Amnesty Intern., USA v. Battle, 559 F.3d

1170, 1180 (11th Cir. 2009) (citing GJR Investments, Inc. v. County of Escambia, Fla., 132

F.3d 1359 (11th Cir. 1998). Thus the identification of these individuals comprises a part of

the claim itself. Id. Plaintiff must identify the existence of “similarly situated individuals”

or there is no basis for an equal protection claim. 

Plaintiff has made reference to 28 U.S.C. § 1985(3) in each of the underlying cases.

To state a claim under § 1985( 3), a plaintiff must all ege: (1) defendants engaged in a

conspiracy; (2) the conspiracy's purpose was to directly or indirectly deprive a protected

person or class the equal protection of the laws, or equal privileges and immunities under

the laws; (3) a conspirator committed an act to further the conspiracy; and (4) as a result,

the plaintiff suffered injury to either his person or his property, or was deprived of a right or

privilege of a citizen of the United States. Jimenez v. Wellstar Health System , 596 F.3d

1304, 1312 (11th Cir. 2010) (citing Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1379

(11th Cir.1997)). Again, with respect to this claim, plaintiff has failed to identify similarly

situated individuals to support his assertion that he was subjected to an equal protection

violation. If he cannot do this, he should dr op this c laim from his Fourth Amended

Complaint.

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Title 29 U.S.C. § 794(a) provides in per tinent part that “no otherwise qualified

individual with a disability . . . shall solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financ ial assistance. . . “ To the extent plaintiff

wishes to raise a claim under this s ection, he must establish that he was “otherwise

qualified” for the positions he was allegedly denied. 

Plaintiff has named Eric Smith, the Co mmissioner of the Florida Department of

Education and Vocational Rehabilitation, as a defendant in more than one of the underlying

cases. However, there are no allegations against Mr. Smith in the complaints. Plaintiff

should also be aware that respondeat superior, without more, does not provide a basis for

recovery under section 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70

L.Ed.2d 509 (1981); Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007); Cottone

v. Jenne, 326 F.3d 1352 (11 th Cir. 2003) ; Harris v. Ostrout, 65 F.3d 912, 917 (11 th Cir.

1995). “Supervisory liability under § 1983 occurs either when the supervisor personally

participates in the alleged unconstitutional conduct or when there is a causal connection

between the actions of a supervising official and the alleged constitutional deprivation.” 

Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003); see also Marsh v. Butler County,

268 F.3d 1014, 1035 (11th Cir. 2001); Swint v. City of Wadley, Alabama, 51 F.3d 988, 999

(11th Cir. 1995); Rivas v. Freeman, 940 F.2d 1491, 1495 ( 11th Cir. 1991). Thus, one

cannot be held liable for the actions or om issions of others, but c an only be held

responsible if he participated in the deprivati on of plaintiff’s constitutional rights. Marsh,

supra; Harris v. Ostrout, 65 F.3d 912, 917 (11 th Cir. 1995) . The necessary causal

connection can be established “when a history of widespread abuse puts the responsible

supervisor on notice of the need to correct the alleged deprivation, and he fails to do so.”

Cottone, supra, (quoting Gonzalez v. Reno, 325 F.3d at 1228, 1234 ( 11th Cir. 2003)

(quoting Braddy v. Fla. Dept. of Labor & and Employment Sec., 133 F.3d 797, 802 (11th Cir.

1998))); Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990); Ancata v. Prison Health

Services, Inc., 769 F.2d 700 (11th Cir. 1985). A supervisor ordinarily cannot be held liable

under a respondeat superior theory for the acts and omissions of individuals acting in

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contravention to policy. Tittle v. Jefferson County Commission, 10 F.3d 1535, 1540 (11th

Cir. 1994). However, the causal connection may be established when a supervisor’s

“custom or policy ... result[s] in deliberate indifference to constitutional rights” or when facts

support an inference that the supervisor “directed [his] subordinates to act unlawfully or

knew that the subordinates would act unlawfu lly and failed to stop them from doing so.”

Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007) (citation omitted); Cottone,

326 F.3d at 1360. “The st andard by which a supervisor is held liable in [his] individual

capacity for the actions of a subordinate is extremely rigorous.” Cottone, 326 F.3d at 1360-

1361 (quoting Gonzalez, 325 F.3d at 1234).

Plaintiff also states that some of hi s claims are against t he defendants in their

“official capacities.” Such claims are likely barred by Eleventh Amendment immunity.

Although, by it s terms, the Eleventh Amendm ent does not bar suits against a state in

federal court by its own citizens, the Supreme Court has extended its protections to apply

in such cases. Abusaid v. Hillsborough County Bd. of County Com’rs, 405 F.3d 1298, 1303

(11th Cir. 2005) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890);

see also Manders v. Lee, 338 F.3d 1304, 1308 n. 8 (11 th Cir. 2003) (en banc)). Absent

waiver or express congressional abrogation, the Eleventh Amendm ent prohibits a suit

brought by a priv ate individual against a state in federal court. See Federal Maritime

Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 1877-

78, 152 L.Ed.2d 962 (2002); Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099,

87 L.Ed.2d 114 (1985); Gamble v. Florida Department of Heath and Rehabilitative

Services, 779 F.2d 1509, 1511 (11th Cir. 1986). A suit against a state employee in his or

her official capacity is deemed to be a su it against the state for Elevent h Amendment

purposes. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105

L.Ed.2d 45, 58 (1989). Thus, a plaintiff may not br ing a § 1983 action for monetary

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damages against the state or state officials in their official capacities. Miller v. King, 384

F.3d 1248 (11th Cir. 2004).1

In amending, plaintiff should carefully review the foregoing, as well as the court’s

previous orders in each of the underlying cases, to determine whether he can present

allegations sufficient to state a cause of action under the relevant law against any of the

individuals he wishes to name as a defendant. If plaintiff chooses to file a Fourth Amended

Complaint, he should name as defendants only those persons who are responsible for the

alleged constitutional violations. In the statement of facts, plaintiff should clearly describe

how each named defendant is involved in each alleged constitutional violation, alleging the

claims as to each defendant in separat ely numbered paragraphs and including spec ific

dates and times of the alleged unconstitutional acts. The facts relating to each defendant

should be set out clearly and in enough detail to s upport the legal conclusions in the

complaint. Randall v. Scott, ___ F.3d. ___, 2010 WL 2595585 (11th Cir. 2010). If plaintiff

cannot state exactly how a particular defendant harmed him, or the defendant’s actions do

not rise to the level of an actionable constitutional or statutory violation, he should delete

or drop that person as a defendant from his complaint. In the section entitled “Statement

of Claim,” plaintiff must state what rights he contends have been violated, and he must

provide support in the statement of facts for the claimed violations. Plaintiff is advised that

the amended complaint must contain all of hi s allegations because once an amen ded

complaint is filed, any matters not raised therein are deemed abandoned. Local Rule 15.1,

Northern District of Florida. However, plaintiff’s Fourth Amended Complaint should not

exceed 25 pages, absent leave of court.2

 1State officials in their official capacities are not immune from claims for prospective declaratory or injunctive relief. 

Powell v. Barrett, 496 F.3d 1288, 1308 & n. 27 (11th Cir. 2007); Miller v. King, 384 F.3d 1248 (11th Cir. 2004) (citing Will, 491

U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2312 n. 10 105 L.Ed.2d 45 (1989) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.

14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985)); Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54,

52 L.Ed. 714 (1908); see Edwards v. Wallace Community College, 49 F.3d 1517, 1524 (11th Cir.1995); Stevens v. Gay,

864 F.2d 113, 114-15 (11th Cir.1989)). 

 2This limitation should not be difficult in spite of the consolidation of three cases. Each of those cas es

contains repetitive and superfluous background or allegations, and many of the claims plaintiff purported to

raise are not legally viable.

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Plaintiff should file a single copy of the Fourth Amended Complaint bearing the case

number 5:09cv285/RS/MD and an original signature with the Court and keep an identical

copy for himself. Plaintiff should not file a memorandum of law or o therwise provide

citations to statutes and cases, and he should not file exhibits as evidentiary support for his

complaint. The court will notify plaintiff when memoranda and exhibits are necessary, such

as prior to trial or in conjunction with a motion for summary judgment. Furthermore, plaintiff

should not submit service copies of his complaint unless and until the court directs him to

do so. Finally, plaintiff is advised that discovery is premature at this stage of the case and

plaintiff should not do any discovery without leave of court.

 Accordingly, it is ORDERED:

1. The clerk is directed to consolidate cases 5:09cv285/RS/MD; 5:09cv286/RS/MD;

5:10cv28/RS/MD. A copy of this order shall be placed in each of those cases. All future

pleadings shall be filed in 5:09cv285/RS/MD. 

2. The plaintiff shall have twenty-eight (28) days in which to file a Fourth Amended

complaint, which shall be typed or clearly wr itten and shall follow the format of standard

court forms and the instructions contained herein.

3. If plaintiff has chosen to pursue his claims in state court or no longer wishes to

pursue his claims in this forum or at this time, he should file a Notice of Volunt ary

Dismissal. 

 4. In any event, failure to submit an amended complaint as instructed will result in

a recommendation of dismissal without prejudice of this entire action.

DONE AND ORDERED this 5th day of August, 2010.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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Case No: 5:09cv285/RS/MD