Case No. 6:10-cv-1588-Orl-28GJK.United States District Court, M.D. Florida, Orlando Division.
June 24, 2011
JOHN ANTOON II, District Judge
This cause is before the Court on the Motion to Dismiss (Doc. 20) filed by Orange County Sheriff Jerry Demings (“Demings”). Plaintiff has filed two documents (Docs. 34 70) in response to this motion.
Demings is sued only in his official capacity — the equivalent of a suit against Demings’s office. In a similar, prior lawsuit before this Court, Case No. 6:07-cv-1971, Plaintiff sued Demings’s predecessor, then-Sheriff Kevin Beary, but despite being given repeated opportunities to amend his complaint in that case Plaintiff failed to state a viable
claim against the Sheriff — one that alleged a policy or custom that was the moving force behind a constitutional violation as required for an actionable claim pursuant to 42 U.S.C. § 1983. The claims in that case were accordingly dismissed.
In the Complaint (Doc. 1) in the present case, which arises largely from the same facts as the prior suit, Plaintiff once again fails to allege an actionable policy or custom by the Sheriff. Demings is mentioned only in the caption of the Complaint and (as “Defendant 2”) in one paragraph thereof, and the Complaint plainly fails to state a cause of action against Demings. In light of the numerous opportunities Plaintiff has already been given to state a cause of action against this Sheriff or his predecessor, Demings’s motion to dismiss (Doc. 20) is GRANTED and Plaintiff’s claims against Demings are DISMISSEDwith prejudice. Plaintiff’s Motion for More Definitive Statement (Doc. 70) is DENIED.
DONE and ORDERED in Orlando, Florida.