Motion To Disqualify

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
UNITED STATES OF AMERICA, ex rel., JORG BUSSE, et al.,
Plaintiffs,
v. 1:10-cv-00321-JL
UNITED STATES OF AMERICA, et al.,
Defendants.
_______________________________________________________________/
MOTION TO DISQUALIFY MAGISTRATE & NOTICE OF FRAUD ON THE COURT,

FEAR OF FURTHER PREJUDICE, AND PLAINTIFFS’ OBJECTIONS
PLAINTIFFS’ ILLEGALLY SEIZED COMPLAINT AND CIVIL RICO ALLEGATIONS
1. In the Complaint illegally seized by the Federal Bureau of Investigation, the Plaintiffs had
alleged and conclusively proven Defendants’ pattern of racketeering activity.
DEFENDANTS’ PATTERN OF RACKETEERING ACTIVITY
2. “Racketeering activity” is defined “as any act which is indictable” under numerous
provisions of Title 18, including mail fraud (18 U.S.C. § 1341) and wire fraud (18 U.S.C. §
1343). 18 U.S.C. § 1961(1)(B).
DEFENDANTS AGREED TO COLLECT UNLAWFUL DEBT (FAKE JUDGMENT)
3. As provided in 18 U.S.C. § 1962(c),
It shall be unlawful for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of unlawful debt.
Here in short, the Plaintiffs had established violations of 1962(c) and shown that the
Defendant(s) “engaged in (1) conduct (2) of an enterprise (3) through a pattern of (4)
racketeering activity…” See Lincoln House, Inc. v. Dupre, 903 F.2d 845, 846 (1st Cir.
1990) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 87 L. Ed. 2d 346, 105 S.
Ct. 3275 (1985) (footnote omitted)).
PLAINTIFFS PROVED DEFENDANTS’ PATTERN OF RACKETEERING
4. Here, the Plaintiffs were successful in establishing a "pattern of racketeering activity by
showing at least two predicate acts of racketeering activity and established that the
“predicates were related, and that they amounted to or posed a threat of continued criminal
activity.” See Lincoln House, supra, 903 F.2d at 846.
DEFENDANTS’ PROVEN PATTERN OF RACKETEERING INJURED PLAINTIFFS
5. Here, Plaintiffs suffered injuries as a result of the racketeering activity, 18 U.S.C. §
1964(c), and had standing. The recoverable damages flow from Defendants’ commission of
the predicate acts.
6. “Each time a plaintiff suffers an injury caused by a violation of 18 U.S.C. § 1962 a cause of
action to recover damages based on that injury accrues to plaintiff at the time he/she
discovered or should have discovered the injury.” See Rodriguez v. Banco Central, 917 F.2d
664, 665 (1st Cir. 1990).
THE PLAINTIFFS ARE ENTITLED TO DAMAGES AND RELIEF
7. Here, success on the merits entitled the Plaintiffs to treble damages, costs, and reasonable
attorney's fees. 18 U.S.C. § 1964(c).
THE DEFENDANTS COUNTERFEITED JUDGMENT(S) TO DEFRAUD PLAINTIFFS
8. 18 U.S.C. § 1341 provides:
“Whoever, having devised or intending to devise any scheme or artifice to defraud,

or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, or to sell, dispose of, loan, exchange, alter, give away,
distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious
2
coin, obligation, security, or other article, or anything represented to be or intimated
or held out to be such counterfeit or spurious article, for the purpose of executing
such scheme or artifice or attempting to do so, places in any post office or authorized
depository for mail matter, any matter or thing whatever to be sent or delivered by the
Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly
causes to be delivered by mail according to the direction thereon, or at the place at
which it is directed to be delivered by the person to whom it is addressed, any such
matter or thing, shall be fined not more than $ 1,000 or imprisoned not more than five
years, or both. If the violation affects a financial institution, such person shall be fined
not more than $ 1,000,000 or imprisoned not more than 30 years, or both.”
Here, the fraudulently pretended publicly recorded fake “court judgment(s)”, mailed in
furtherance of a scheme to defraud and before the fraud reached fruition, e.g., satisfied the
mailing element of 18 U.S.C. § 1341. See Schmuck v. United States, 489 U.S. 705, 103 L.
Ed. 2d 734, 109 S. Ct. 1443 (1989).
MAGISRATE KNEW OF DEFENDANTS’ SCHEMES & FRAUD ON THE COURT
9. Here, this Court knew that Defendants devised schemes to defraud the Plaintiffs. Evidence
of Defendants’ scheme has been published on thousands of pages worldwide and read by
hundreds of thousands of readers. See, e.g., www.google.com; www.youtube.com;
www.scribd.com.
RECORD EVIDENCE OF FRAUD ON THE COURT
10. Here, the illegal seizure of Plaintiffs’ Complaint and litigation files constituted fraud on the
Court and was for illegal purposes of keeping the Plaintiffs away from the Court. Here, this
Court knew that the law did not authorize the unlawful FBI seizure and obstruction of
justice & lawful prosecution.
U.S. MAGISTRATE KNEW OF RECORD FRAUD ON THE COURT
11. Here, said Magistrate knew that Government Officials had “taken the law into their own
hands” for illegal purposes such as, e.g., to conceal Government crimes, perpetrate fraud
on the Court, and keep the Plaintiffs away from the Court.
3
THE PLAINTIFFS CANNOT TRUST AND OBJECT TO THE MAGISTRATE
12. Because of said prejudice, the Plaintiffs cannot trust said Magistrate who knew that the FBI
had seized both summons and the complaint files. Here,
13. In effect here, the Magistrate has been enforcing and/or extending the illegal FBI scheme of
raiding litigants so that they can no longer litigate.
GOVERNMENT & FBI FAILED TO COMPLY WITH THE LAW
14. In particular, this Court must extend time, because the Government and/or FBI failed to
follow the law, which proximately caused Plaintiffs’ inability to serve the seized complaint.
15. Here, U.S. Government agents “took the law in its own hands” by unlawfully seizing
Plaintiffs’ privileged litigation files. Not extending the time pursuant to said law would be
tantamount to aiding and abetting the obstruction of justice and prima facie criminality of
the seizure of privileged and protected litigation files.
MAGISTRATE’S RECORD PARTIALITY PURSUANT TO 28 U.S.C. § 455
16. 28 U.S.C. § 455 provides the bases for a judge to disqualify her/imself in a pending
proceeding. In general, a federal judge is disqualified “in any proceeding in which his
impartiality might reasonably be questioned.” § 455(a). In addition, § 455(b) provides
specific instances for disqualification which include "[w]here he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding," where he was involved in the matter in controversy as a private
lawyer or as a material witness, or where, while in government employment, he participated
in or expressed an opinion about the particular case.
4
SIGNIFICANT RISK OF FRAUD ON THIS COURT
17. ”Because a judge is presumed to be impartial, the party seeking disqualification bears the
burden of proving otherwise." See United States v. Dehghani, 550 F.3d 716, 721 (8th Cir.
2008). For purposes of § 455(a), the question is “whether a reasonable person perceives a
significant risk that the judge will resolve the case on a basis other than the merits.” See
United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008). “A trial judge must hear cases
unless some reasonable factual basis to doubt the impartiality or fairness of the tribunal is
shown by some kind of probative evidence.” See Blizard v. Frechette, 601 F.2d 1217, 1221
(1st Cir. 1979).
18. Here, there has been significant risk that said Magistrate will resolve the case on the basis of
Plaintiffs’ inability to gain access to their litigation files and Complaint after Defendants’
proven pattern of racketeering and said unlawful FBI seizure which constituted fraud on
this Court.
MAGISTRATE’S RECORD REFUSAL TO REVIEW & UPHOLD THE RULE OF LAW
19. This Court has refused to review and explain HOW the Plaintiffs could possibly pursue their
prosecution WITHOUT the computers and litigation files illegally seized by the Federal
Bureau of Investigation (FBI) in September 2010.
PLAINTIFFS’ PROSECUTION WAS PRIVILEGED & FILES WERE PROTECTED
20. Here, the Plaintiffs engaged in privileged prosecution and their litigation files were
protected as a matter of law.
THE COURT DELIBERATELY DEPRIVES PLAINTIFFS OF THEIR DAY IN COURT
21. It is elementary that in this electronic Court the use of electronic files and equipment is
absolutely essential and that said illegal seizure was tantamount to obstruction of justice.
5
22. U.S. Magistrate McCafferty cited Fed.R.Civ.P. 4 in her “12/13/2010 Order” and knew that
Rule 4(c)(1) required both “summons and complaint” to be “served”:
“A summons must be served with a copy of the complaint. The plaintiff is responsible
for having the summons and complaint served within the time allowed by
Rule 4(m) and must furnish the necessary copies to the person who makes service.”
Here, said Magistrate knew that corrupt Officials searched and incapacitated the Plaintiffs
so that Plaintiffs could no longer serve both “summons and complaint” under said Rule.
Here, the Magistrate entirely disregarded the seized complaint files.
THIS COURT MUST EXTEND THE TIME FOR SERVICE UNDER RULE 4
23. Under Rule 4(m), this Court must extend the time for service, because the Plaintiffs had
shown the good cause of unlawful FBI seizure, which the Court had again acknowledged
in its “12/13/2010 Order”:
“But if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period…”
Here, the “appropriate period” was the time period taken by the FBI and/or Government to
return the illegally seized litigation files to the Plaintiffs. It was elementary
that the Plaintiffs had entirely no control over the FBI and its crooked ways.
RECORD JUDICIAL BIAS IN FAVOR OF CORRUPT DEDFENDANTS / OFFICIALS
24. Here, the record showed the de facto bias in favor of Defendants and/or corrupt Officials:
“…this court is not the proper venue for plaintiffs to challenge the execution of a
warrant...
So Ordered by Magistrate Judge Landya B. McCafferty.”
MAGISTRATE’S CONCLUSORY AND PREJUDICIAL CHALLENGE OF “VENUE”
25. Here, said U.S. Magistrate’s challenge of “venue” was prejudicial, premature, and
conclusory. Said Magistrate knew that on its face, the warrant had lacked probable cause.
Here, Plaintiffs’ prosecution has been a privileged activity, and the published civil
6
prosecution materials could not have possibly constituted any credible threat. Here,
Magistrate McCafferty offered no support for her prejudicial conclusion. See also 28
U.S.C. §§ 1391, 1404.
26. Here, the deliberate deprivations of fundamental Federal and Florida Constitutional
rights by Florida and Federal Officials and Defendants invoked Federal jurisdiction.
ILLEGAL/CRIMINAL CRIMINALIZATION OF CONSTITUTIONAL PRIVILEGES
27. WHEN here corrupt Defendants and/or U.S. agents deliberately misconstrued privileged
civil litigation as a “threat “, they perverted Plaintiffs’ Constitutionally guaranteed privileges
and rights just like despotic regimes.
28. In December 2010, and at this time, “venue” was not even at issue, because the complaint
could not have possibly been served after the FBI had illegally seized the prosecution files
and evidence.
29. In the absence of any service caused by said illegal FBI seizure, “venue”” and the authority
of this Court to hear this case are not even at issue.
30. Pursuant to Fed.R.Civ.P. 4(d)(5):
“Waiving service of a summons does not waive any objection to personal jurisdiction
or to venue.”
Here, there could not have been any “objection to personal jurisdiction or to venue”. The
Magistrate ignored that first, Plaintiffs need the seized complaint. Only thereafter may the
“venue” be challenged.
PLAINTIFFS WERE ENTITLED TO RELIEF AND THE RETURN OF THEIR FILES
31. Here, this Court knew that “summons” could not possibly cure the FBI atrocity and illegal
seizure, because the Plaintiffs were entitled to the “appropriate time” to get both the
illegally seized complaint and summons back. Only allowing for the “summons” was in
7
reality a charade, because the Plaintiffs were entitled to meaningful relief and the return
of their prosecution files and computers as a matter of Federal and Florida law.
PLAINTIFFS AGAIN OBJECT TO JUDICIAL FARCE OF “90 DAYS”
32. WHY and HOW, under said Rule 4, “90 days” were an “appropriate period” to get the
complaint & litigation files back from the FBI [and not just the summons] remained a
mystery in the “12/13/2010 Order”.
PREJUDICIAL “12/13/2010 MAGISTRATE’S ORDER”
33. On 12/13/2010, U.S. Magistrate Judge Landya B. McCafferty “ordered”:
“Before the Court is plaintiffs’ motion for judicial motion of FBI file (doc. no. 9).
Plaintiffs assert that they need additional time to serve defendants with the complaint
(doc. no. 1) because the Federal Bureau of Investigations, on September 8, 2010,
executed a search warrant and seized their computers and the summons previously
issued to them by the Clerk in this case. This seizure occurred approximately 40 days
after plaintiffs filed their complaint (doc. no. 1) (filed July 29, 2010).”
“Plaintiffs shall have 90 days from the date of this Order to serve each defendant
[without any litigation files] …”
Here, neither “summons” nor “90 days” cured the ongoing deliberate deprivations, FBI
seizure, retaliation, and racketeering.
In this adversarial system, said “Order” was prima facie inappropriate and prejudicial,
because unjustly, it lets Government Officials get away with corruption and fraud at
Plaintiffs’ expense.
MAGISTRATE KNEW OF 09/08/2010 FBI SEIZURE OF PLAINTIFFS’ COMPUTERS
34. Here, said Magistrate knew that “because the Federal Bureau of Investigations, on
September 8, 2010, executed a search warrant and seized their computers…” the Federal
Bureau of Investigations deliberately deprived the Plaintiffs of their fundamental rights
guaranteed under the Federal and Florida Constitutions. See, e.g., doc. no. 16.
8
OFFICIALS CONSPIRED TO OBSTRUCT JUSTICE & PLAINTIFFS’ PROSECUTION
35. Here, FBI Officials conspired and/or agreed with Defendants and/or other Government
Officials to obstruct justice and Plaintiffs’ prosecution of the Defendants and/or corrupt
Officials.
THE COURT DID NOT RESPOND TO PLAINTIFFS’ 12/27/2010 MOTION
36. As of “12/27/2010”, the Clerk of this Court had entered:
“MOTION/Demand for FBI's Necessary Return of Raided Files & Complaint and
Notice of Entitlement and Compliance with 12/13/10 Order filed by Jorg Busse,
Jennifer Franklin Prescott. (Attachments: # 1 Exhibit A, Property Related
Documents)(cmp)”
However since December 2010, the Court has neither responded nor granted the Plaintiffs
the mandatory extension of time and “appropriate time period” under said Rule 4.
37. Here, this Court knows that the FBI did not return any of plaintiffs’ computers, complaint,
and/or files for unlawful purposes of, e.g., obstructing justice and keeping the Plaintiffs
away from the Court. As the direct and proximate result of said illegal FBI seizure, the
Plaintiffs cannot possibly have their day in Court.
PUBLICLY RECORDED PROOF OF CORRUPTION IN FLORIDA
38. This Court knew that Plaintiffs had proven Governmental and judicial corruption and
fraud in Florida, U.S.A.
RECORD JUDICIAL ASSERTIONS OF A FAKE “RESOLUTION”
39. In particular, this Court knew that
a. The FBI covered up for crooked lawmakers who had usurped judicial authority under
color of a fake “resolution” and fake Lee County “land parcels” such as, e.g., “12-44-20-
01-00000.00A0”;
b. No lawmaker could have possibly taken Plaintiffs’ private riparian lands and easements
(Property ID 12-44-20-01-00015.015A) against Plaintiffs’ will;
c. Prima facie irrational and idiotic judicial assertions of a fake “resolution” violated the
most elementary legal principles and perverted the separation-of-powers doctrine;
9
d. The record title to Plaintiffs’ lands could not have possibly transferred to “Lee County,
Florida” in the record absence of any judicial proceedings;
40. Autocratic governments such as, e.g., in Libya or Nazi Germany confiscated private land
and property against private citizens’ will.
41. Tyrannical governments are also known for illegally seizing key evidence against crooked
Officials and perverting the rule of law as seen in the instant case.
CASES & PROOF OF GOVERNMENT CORRUPTION & FRAUD
42. This Court knew of publicly recorded patently clear Government fraud and corruption as
evidenced by, e.g., the following Cases in the Middle District of Florida:
a. 2:2007cv00228;
b. 2:2008cv00899;
c. 2:2009cv00041;
d. 2:2010cv00089;
e. 2:2009cv00341;
f. 2:2008cv00364;
g. 2:2010cv00390;
h. 2:2009cv00791;
i. 2:2009cv00602.
GOVERNMENT COVER-UP, RETALIATION & SEIZURE OF ESSENTIAL FILES
43. Here, this Court knew that in retaliation and without any probable cause, the Federal
Bureau of Investigation, Tampa, Florida, searched and seized, e.g., Plaintiffs’ records,
computers, camera, and other equipment essential for Plaintiffs’ successful litigation and
proof of Governmental corruption in Florida. Here, Officials had conspired to cover up
Government corruption and fraud and employed illegal seizure tactics just like dictatorial
regimes.
CORRUPT JUDGES/OFFICIALS COVER UP FOR CORRUPT JUDGES IN FLORIDA
44. Here, this Court knew that the search warrant [No. 8:10-mj-1416 (AEP)]:
a. Originated in said corrupt Florida Court/Government system (Middle District of Florida);
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b. Was signed by a judge presiding over Plaintiffs’ prosecution of Defendant fellow Judges
for corruption and fraud in said Court (Magistrate A. E. Porcelli);
c. Was yet another incident of fraud on the Court(s) and deliberately deprived Plaintiffs
of due process and their most fundamental Florida and Federal Constitutional rights.
GOVERNMENT COERCION, EXTORTION & INTIMIDATION
45. Here, this Court knew that said FBI search was for unlawful purposes of, e.g.,
a. Coercing the Plaintiffs to refrain from further litigation;
b. Concealing Governmental and judicial corruption in Florida, U.S.A.;
c. Destroying indisputable proof of Government corruption and fraud;
d. Extorting Plaintiffs’ private property and land parcel 12-44-20-01-00015.015A, Lee
County, Florida, U.S.A.;
e. Intimidating and threatening the Plaintiffs.
DELIBERATE DEPRIVATIONS IN ORDER TO DISRUPT ORDERLY PROSECUTION
46. Said retaliatory search & seizure of Plaintiffs’ documents, computers, and equipment, e.g.:
a. Unlawfully deprived the Plaintiffs of their essential means to continue their

prosecution;
b. Unlawfully deprived the Plaintiffs of their most fundamental rights under, e.g., the 1st,
4th, 14th, 7th, and 5th U.S. Constitutional Amendments;
c. Rendered Plaintiffs physically incapable of further orderly prosecution to which they
were clearly entitled.
PLAINTIFFS DEMANDED THE RETURN OF THEIR FILES
47. Here this Court knew that Plaintiffs had demanded the recovery and/or return of their files
and computers illegally seized in September 2010. Approximately six months after said
Government atrocity, no part of Government has made any credible effort to uphold the
rule of law and grant Plaintiffs the relief to which there have been entitled. Again, the
Plaintiff victims demand:
11
a. Return of their illegally seized computers and equipment;
b. Relief from said unlawful seizure;
c. Restraining orders against further Government retaliation and intimidation.
d. Damages for the racketeering and facially illegal search and seizure;
e. Reestablishment of said proof of Government corruption and fraud.
NATIONAL EMERGENCY AND PLAINTIFFS’ UNAVAILABILITY
48. The Plaintiffs have been in the Pacific since 2010. Furthermore, Plaintiff Jennifer Franklin-
Prescott, a United Kingdom citizen, has family, friends, and property in the Pacific. A
national emergency was declared after the devastating New Zealand earthquake. The
Plaintiffs cannot leave because of said disaster and emergency and will therefore be
unavailable. Hereby, the Plaintiffs again give notice of their unavailability.
NOTICE OF PLAINTIFFS’ CHANGE OF ADDRESS
49. Hereby, the Plaintiffs file their Notice of Change of Address:
Jennifer Franklin-Prescott, and Dr. J. R. Busse, Plaintiffs

Care/of Papanui PostShop
7 Main North Road, Papanui, Christchurch, 8053
New Zealand
WHEREFORE, the Plaintiff corruption victims respectfully demand
1. An Order disqualifying/recusing said Magistrate McCafferty:
2. An Order declaring said seizure of Plaintiffs’ litigation files and Complaint unlawful and
violative of both the Federal and Florida Constitutions;
3. An Order extending time for service for the mandatory “appropriate period” under said
Rule 4; 4(m), because the law mandated the return of Plaintiffs’ protected litigation files;
4. An Order extending the time until the mandatory return of Plaintiff’s litigation files,
because as a matter of law, the FBI had no right to “take the law into its own hands” and
conceal the well proven and pleaded Government corruption & fraud;
12
5. An Order barring any magistrate from any further proceedings in this case after Plaintiffs’
objections;
6. An Order enforcing the rule of law and return of Plaintiffs’ prosecution materials, which
were illegally seized in September 2010;
7. An Order declaring this venue proper for Plaintiffs’ prosecution of Defendants and corrupt
Officials;
8. An Order enforcing and declaring Plaintiffs’ fundamental Florida and Federal
Constitutional rights under, e.g., the 1st, 4th, 14th, 7th, and 5th U.S. Constitutional
Amendments;
9. An Order enjoining the FBI from unlawfully confiscating and retaining Plaintiffs’ seized
computers, equipment, camera, and records;
10. An Order restraining the Defendant Officials and said FBI from any further intimidation and
obstruction of justice & prosecution in the Federal Courts.
/s/Dr. Jorg Busse, Private Attorney General;

Victim of Government and judicial corruption
/s/Jennifer Franklin-Prescott, Private Attorney General;

Victim of judicial and Government corruption
CC: Defendants; Clerk of Court
BY CERTIFIED DELIVERY
U.S. District Court
District of New Hampshire
Clerk of Court’s Office
55 Pleasant Street, Room 110
Concord, NH 03301, U.S.A.
T: 603.225.1423
F: 603.225.1481
13
3/11/2011 Lee County Property Appraiser - Onlin…
Tax Year 2010

Lee County Property Appraiser
Next Lower Parcel Number Next Higher Parcel Number Tax Estimator Tax Bills Print
Property Data for Parcel 12-44-20-01-00000.00A0

Owner Of Record [ Tax Map Viewer ]
LEE COUNTY
PO BOX 398
FORT MYERS FL 33902
Site Address
GOVT LOT
CAPTIVA FL 33924
Legal Description
CAYO COSTA PB 3 PG 25
ALL UNNUMBERED AND
ACCRETED LANDS
Classification / DOR Code

COUNTIES - OTHER / 86 [ Pictometry Aerial Viewer ]
Property Values (2010 Tax Roll) Exemptions Attributes
Homestead 0 Land Units of Measure AC

Just 1,074,100
Additional Homestead 0 Total Number of Land Units 107.41
Assessed 1,074,100
Widow 0 Frontage 0
Portability Applied 0
Widower 0 Depth 0
Assessed SOH 1,074,100
Disability 0 Total Number of Buildings 0
Taxable 0
Wholly 1,074,100 Total Bedrooms 0
Building 0
Senior 0 Total Bathrooms 0
Building Features Incl. in bldg value
Agriculture 0 Total Buildings Sq Ft 0
Land 1,074,100 1st Year Building on Tax Roll 0
Land Features Incl. in land value Historic District No
SOH Difference 0
Taxing Authorities
Sales / Transactions
Sale Price Date OR Number Type Description Vacant/Improved
Sales disqualified as a result of examination of the deed

100.00 12/01/1969 569/875 01 V
Disqualified (Doc Stamp .70 / SP less th $100 / Other Disq)
Solid Waste (Garbage) Roll Data
Elevation Information
Appraisal Details
Land
Land Tracts
Use Code Use Code Description Number of Units Unit of Measure
8210 Government Owned, Park 107.41 Acres

leepa.org/Display/DisplayParcel.aspx?… 1/2
6/13/2010 Civil - Small Claims Detail
Civil / Small Claims Detail Information
* The data displayed below was last modified 1/20/2010 7:03:35 PM
BUSSE, JORG ETAL PLAINTIFF VS STATE OF FLORIDA ETAL DEFENDANT
Case Number: 06-CA-003185

Uniform Case Number: 362006CA0031850001CH
Case Type: CA Declaratory Judgment
Sub Case Type:
Judge: Gerald, Lynn, Jr.
Filed Date: 7/31/2006
Disposition: Other
Disposition Date: 12/5/2008
Plaintiffs
Lay, Janet Attorney: Janet Lay
Busse, Jorg Attorney: Jorg Busse
Roesch Family Attorney: Roesch Family
Ruzicka, Gerald E Attorney: Gerald E Ruzicka
Carroll Family Attorney: Carroll Family
Defendants
Beason, Tom Attorney:
Lee County Property Appraisers Office Attorney:
Turner, John Attorney:
Norman, Reginald Attorney:

http://www.leeclerk.org/Civil_Detail.as… 1/22
6/15/2010 FindACase™ | Prescott v. State of Flori…
Buy Document Now
[U] Prescott v. State of Florida
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com
April 21, 2009
JENNIFER FRANKLIN PRESCOTT, JORG BUSSE, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES,

v.
STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION, DIVISION OF RECREATION AND PARKS, HAROLD GEORGE VIELHAUER, ET AL.,
DEFENDANTS-APPELLEES, KENNETH M. WILKINSON, DEFENDANT-APPELLEE-CROSS-APPELLANT.
Appeals from the United States District Court for the Middle District of Florida D. C. Docket No. 08-00364-CV-FTM-29-SPC.
Per curiam.
[DO NOT PUBLISH]
Non-Argument Calendar
Before BLACK, HULL and PRYOR, Circuit Judges.
Jennifer Franklin Prescott and Jorg Busse ("the Appellants"), proceeding pro se, appeal the district court's: (1) dismissal without
prejudice of their pro se civil rights complaint for lack of subject matter jurisdiction and failure to state a claim and (2) denial of their
motion for the district court judge to recuse himself. Appellee Ken Wilkinson cross-appeals the district court's denial of his motion for
sanctions against the Appellants. After review, we affirm.
I. BACKGROUND
A. Current Action
The Appellants are owners of Lot 15A in the Cayo Costa subdivision in Lee County, Florida. On May 5, 2008, the Appellants filed the
present pro se complaint against numerous state and county officials*fn1 alleging that they had violated the Appellants'
constitutional rights with respect to their Cayo Costa property. Most of the allegations in the complaint concern the 1969 Lee
County Resolution 569/875, which claimed the undesignated areas on the east and west side of the Cayo Costa subdivision plat
and all accretions thereto as public land to be used for public purposes. The Appellants' Lot 15A is on the west side of the Cayo
Costa subdivision on the Gulf of Mexico and is adjacent to land that was claimed through Resolution 569/875 to create the Cayo
Costa State Park.
The Appellants' complaint alleged that the Appellees: (1) passed an invalid resolution that resulted in the unconstitutional taking of
their land without just compensation, the operation of a state park on their land, and the destruction of their land through the
failure to prevent fires on their property during a drought, all in violation of the Takings and Due Process Clauses; (2) enacted Lee
County Resolution 569/875 without notice and a hearing in violation of the Due Process Clause; and (3) treated certain individuals
differently in violation of the Equal Protection Clause. The Appellants alleged numerous bases for federal jurisdiction.*fn2 The
complaint also alleged several state law violations, including allegations that the Appellees recklessly destroyed their property
during fires in April 2008, trespassed on their land, and conspired to defraud and defrauded them of their land. The Appellants
requested various injunctive, declaratory, punitive, and compensatory relief.
B. Prior Similar Action
This is the second federal complaint of this nature that has been filed regarding Appellants' Lot 15A. In January 2008, Appellant
Busse filed a complaint that made near identical allegations to the instant complaint, with the exception of the allegations regarding
the April 2008 fire. Appellant Prescott was not a party in the previous case.
…findacase.com/…/wfrmDocViewer.aspx 1/4
On May 5, 2008, the district court dismissed the first complaint for lack of subject matter jurisdiction and failure to state a claim. The
district court determined that it lacked jurisdiction because Busse had not yet pursued available state court remedies and the
Takings Clause claim therefore was not ripe for review. To the extent that Busse's complaint alleged that the taking of his property
raised a substantive due process claim under the Fourteenth Amendment, the district court concluded that there was no
independent substantive due process claim concerning takings and that property rights were not fundamental rights that would
support a substantive due process claim. The district court dismissed Busse's procedural due process claims regarding Lee County
Resolution 569/875 because the Resolution was a legislative act that was not subject to a procedural due process claim and, even if
it was not, Busse still had not alleged that Florida's post-deprivation remedy was inadequate. The district court also found that
Busse had not stated an equal protection claim because he had not alleged that there was a similarly situated person for
comparison and the state could not be a comparator.
The district court analyzed the other alleged bases for federal jurisdiction and found that they were all inadequate.*fn3 After
dismissing Busse's federal claims, the district court declined to exercise supplemental jurisdiction over the state law claims.
Accordingly, the district court dismissed Busse's first complaint without prejudice.*fn4 Busse appealed the district court's dismissal of
his first complaint, and this Court affirmed. Busse v. Lee County, Florida, No. 08-13170, 2009 WL 549782 (11th Cir. Mar 5, 2009)
(unpublished).
C. Dismissal of Current Action
The Appellees moved to dismiss the Appellants' second complaint for the same reasons outlined in the orders from the district court
and this Court in the first case. The district court ordered the Appellants to show cause why the complaint should not be dismissed
for lack of subject matter jurisdiction. The district court stated that the complaint was nearly identical to the previous complaint filed
by Busse that was dismissed for lack of subject matter jurisdiction and that the Appellants had not cured the deficiencies noted in
the first dismissal order.
After receiving the Appellants' responses, the district court granted the Appellees' motions to dismiss. The district court determined
that the Appellants' complaint was nearly identical to Busse's complaint in the previous case. The district court stated that it
previously had explained its reasoning for dismissing Busse's claims and adopted the reasoning from its order in the first case.
The district court also denied the Appellants' multiple motions for the district court judge to recuse himself. The Appellants had
requested that the district court judge recuse himself because he had ruled against Busse in the previous lawsuit and because the
district court's refusal to find that Resolution 569/875 was invalid showed that the judge was biased. The district court determined
that the Appellants had not asserted any reasonable basis for recusal.
Finally, one of the Appellees, Wilkinson, moved for sanctions against the Appellants under Federal Rule of Civil Procedure 11(c).
Wilkinson alleged that
(1) the Appellants knew the district court did not have jurisdiction over their complaint because the court previously had dismissed
an identical complaint and
(2) the complaint was filed in bad faith to harass the Appellees. Appellee Wilkinson requested that the district court award him
attorney's fees and issue an injunction preventing Busse from representing himself in the case and filing further lawsuits in the
court. The district court denied Wilkinson's motion, but warned the Appellants that they may be sanctioned in the future if they were
to file another complaint with similar allegations, file the same document numerous times, or improperly designate a motion as an
emergency.
The Appellants appeal the district court's dismissal of their instant complaint and denial of their motion for recusal.*fn5 Appellee
Wilkinson cross-appeals the district court's denial of his motion for sanctions.*fn6
II. DISCUSSION
A. Dismissal for Lack of Jurisdiction and Failure to State a Claim
Both the district court and this Court addressed the Appellants' takings, procedural and substantive due process, and equal
protection claims in detail in the previous case concerning the Appellants' property. See Busse, No. 08-13170, 2009 WL 549782, at
*2-4. The Appellants' present complaint raises nearly identical allegations and Appellants have not remedied the pleading
deficiencies that resulted in the first dismissal.*fn7 The district court dismissed the Appellants' present complaint for the same
reasons stated in its dismissal order in the first case. Accordingly, we affirm the district court's dismissal for the same reasons stated
in our opinion in the first case. See id. We repeat our reasoning briefly here.
First, the district court properly dismissed the Appellants' Taking Clause claim for lack of jurisdiction because it was not ripe. A just
compensation claim is not ripe "until the landowner has pursued the available state procedures to obtain just compensation." Eide
v. Sarasota County, 908 F.2d 716, 721 (11th Cir. 1990). Florida courts have recognized a reverse condemnation remedy, see
Reahard v. Lee County, 30 F.3d 1412, 1417 (11th Cir. 1994), and the Appellants have not alleged that they pursued this remedy.
This requirement applies even though the reverse condemnation remedy was not recognized until after the alleged taking occurred.
Id. ("[A] Florida property owner must pursue a reverse condemnation remedy in state court before his federal takings claim will be
ripe, even where that remedy was recognized after the alleged taking occurred.").
Second, the district court properly dismissed the Appellants' procedural due process claim because they failed to allege that Florida's
post-deprivation remedies were inadequate. Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996).
Third, the district court properly determined that the Appellants failed to state a substantive due process claim. To the extent that
the Appellants' substantive due process claim was predicated on the denial of a state-defined property right, they did not state a
viable substantive due process claim. Greenbriar Village, L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003)
(stating that substantive due process protects fundamental rights protected by the Constitution, which does not include state-
created property interests). Even if the alleged deprivation was the result of a legislative act, as opposed to an executive act, the
Appellants did not allege that there is a property right at stake that is not already protected by the Takings Clause. Villas of Lake
Jackson, Ltd. v. Leon County, 121 F.3d 610, 615 (11th Cir. 1997) ("There is no substantive due process 'takings' claim that would
protect a specific property right not already protected by the Takings Clause.").
Fourth, the district court properly determined that the Appellants' conclusory allegations failed to state an equal protection claim
because, inter alia, they did not allege that similarly situated persons had been treated disparately. Thigpen v. Bibb County, 223
F.3d 1231, 1237 (11th Cir. 2000) ("[T]o properly plead an equal protection claim, a plaintiff need only allege that through state
action, similarly situated persons have been treated disparately."), abrogated on other grounds by Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002).
For the reasons above, and those articulated in our opinion affirming the dismissal in Busse's first complaint, we affirm the district
court's dismissal of the Appellants' complaint.*fn8 Furthermore, because the district court correctly dismissed the Appellants' federal
claims for lack of jurisdiction and failure to state a claim, the district court did not abuse its discretion when it declined to exercise
supplemental jurisdiction over their remaining state law claims. See 28 U.S.C. § 1367(c)(3); Raney v. Allstate Ins. Co., 370 F.3d
1086, 1088-89 (11th Cir. 2004).
B. Motion for the District Court to Recuse
The district court did not abuse its discretion in denying the Appellants' motion for recusal. The district court's rulings in Busse's first
case are not a sufficient basis to question the district court's impartiality in the present case so as to warrant recusal. Thomas v.
Tenneco Packaging Co., Inc., 293 F.3d 1306, 1329 (11th Cir. 2002) (stating the general rule that "bias sufficient to disqualify a judge
must stem from extra-judicial sources" (quotation marks omitted)); United States v. Meester, 762 F.2d 867, 884 (11th Cir. 1985)
("[A] motion for disqualification may not ordinarily be based on the judge's rulings in the same case."). The Appellants have not
alleged, much less shown, that the district court made any remarks that demonstrated a bias or prejudice against the Appellants.
See Thomas, 293 F.3d at 1329 (stating an exception to the general rule that bias must stem from extra-judicial sources "when a
judge's remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party"
(quotation marks omitted)).
C. Rule 11 Sanctions
Although this issue is closer, we cannot say that the district court abused its discretion in denying Appellee Wilkinson's motion for
sanctions. The district court was intimately familiar with the Appellants’ claims in both complaints and their conduct throughout the
litigation and was thus in the best position to determine whether Rule 11 sanctions were appropriate. We note that the district
court has now warned the Appellants that their conduct may warrant sanctions in the future if continued.
III. CONCLUSION
Therefore, we affirm the district court's orders dismissing the Appellants' complaint, denying the Appellants' motion for recusal, and
denying Appellee Wilkinson’s motion for sanctions.
AFFIRMED.
Opinion Footnotes
*fn1 The complaint named the following defendants (herein collectively "the Appellees"): (1) the State of Florida Board of Trustees
of the Internal Improvement Trust Fund; (2) the Florida Department of Environmental Protection, Division of Recreation and Parks;
(3) Lee County, Florida; (4) the Board of Lee County Commissioners; (5) Jack N. Peterson, Lee County Attorneys Jack Peterson,
Donna Marie Collins, and David Owen; (6) Lee County property appraisers Kenneth M. Wilkinson and Sherri L. Johnson; and (7)
Cayo Costa State Park employees Reginald Norman, Harold Vielhauerin, Linda Funchess, Reagan Russell, and Tom Beason.
*fn2 The Appellants alleged that there was federal jurisdiction for their complaint under:
(1) 42 U.S.C. § 1983; (2) 28 U.S.C. §§ 1331 and 1343; (3) Articles III and IV of the U.S. Constitution; (4) the Fifth and Fourteenth
Amendments; (5) the federal common law doctrines of accretion and erosion; (6) the Federal Appraisal Standards, Uniform
Standards of Professional Appraisal Practice, and 12 U.S.C. §§ 3331-3351; (7) the Federal Declaratory Judgment Act, 28 U.S.C. §
2201; and (8) the 1862 Homestead Act.
*fn3 Specifically, the district court found that: (1) Articles III and IV of the U.S. Constitution did not provide a basis for federal
jurisdiction; (2) 28 U.S.C. § 1343 was not a basis for federal jurisdiction because there were no federal civil rights claims before the
court; (3) the 1899 Rivers and Harbors Act was inapplicable; (4) the 1862 Homestead Act had been repealed; (5) if the federal
common law doctrines of accretion and erosion existed, they did not provide a basis for federal jurisdiction; and (6) the Federal
Appraisal Standards were inapplicable.
*fn4 The Appellants filed the complaint in the present case on the same day that the district court dismissed the first complaint.
*fn5 We review de novo questions concerning our subject matter jurisdiction, including ripeness. See Elend v. Basham, 471 F.3d
1199, 1203 (11th Cir. 2006). We review de novo a grant of a motion to dismiss for failure to state a claim, "accepting the allegations
in the complaint as true and construing them in the light most favorable to the plaintiff." Swann v. S. Health Partners, Inc., 388 F.3d
834, 836 (11th Cir. 2004). "Courts must construe pro se complaints more liberally than they would formal pleadings drafted by
lawyers." Brown v. Crawford, 906 F.2d 667, 673 (11th Cir. 1990).
We review for abuse of discretion a district judge's recusal decision. Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1319-
20 (11th Cir. 2002).
*fn6 We review the denial of a motion for sanctions under Rule 11 for an abuse of discretion. Beck v. Prupis, 162 F.3d 1090, 1100
(11th Cir. 1998).
*fn7 The claims in the present complaint are not precluded under res judicata, collateral estoppel, or the law of the case doctrine
because this litigation involves slightly different parties and the first complaint was not decided on the merits. Nevertheless, the
analysis by the district court and this Court in the first case applies equally here because the present complaint contains essentially
the same allegations as the first complaint.
*fn8 As stated in our opinion in the first case, we agree with the district court's analysis of the other bases for jurisdiction asserted
in the Appellants' complaint and conclude that none of them could serve as a jurisdictional basis for Busse's claims. See Busse, No.
08-13170, 2009 WL 549782, at *2 n.2. To the extent that the Appellants raised claims in their complaint that are not addressed in
their brief, those claims are abandoned on appeal. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). To the extent
that the Appellants attempt to raise a Fourth Amendment claim or any other claim for the first time on appeal, we will not consider
them because they were not raised in the district court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir.
2004).
20090421
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6/15/2010 FindACase™ | Busse v. Lee County
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[U] Busse v. Lee County
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

March 5, 2009
JORG BUSSE, PLAINTIFF-APPELLANT, KENNETH M. ROESCH, JR., ET AL., PLAINTIFFS,

v.
LEE COUNTY, FLORIDA, BOARD OF LEE COUNTY COMMISSIONERS, THE LEE COUNTY PROPERTY APPRAISER, STATE OF
FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, KENNETH M. WILKINSON, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from the United States District Court for the Middle District of Florida D. C. Docket No. 07-00228-CV-FTM-29-SPC.
Per curiam.
[DO NOT PUBLISH]
Non-Argument Calendar
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
Jorg Busse, proceeding pro se, appeals the district court's dismissal of his third amended complaint in his civil rights action against
various state and local governmental entities and officials in Florida, pursuant to 42 U.S.C. §§ 1983 and 1985. The district court
dismissed Busse's federal claims because he had either failed to adequately plead them or had not established federal subject
matter jurisdiction. In the absence of any viable federal claims, the court declined to retain jurisdiction over Busse's state law claims.
Based on our review of the record and the parties' briefs, we AFFIRM the dismissal.
I. BACKGROUND
On 10 December 1969, the Board of Commissioners of Lee County, Florida ("the Board") adopted a resolution claiming certain lands
in the Cayo Costa subdivision as public lands ("the Resolution"). R10-288 at 9. In the Resolution, the Board identified the relevant
lands by reference to a map of the subdivision which showed that, along with a number of designated land parcels in the
subdivision, there were also a number of unidentified areas on the eastern and western edges of the subdivision. Id. The Board laid
claim to all of these non-designated parcels "and accretions thereto for the use and benefit of the public for public purposes." Id.
Busse asserts that he currently owns Lot 15A of the Cayo Costa subdivision along with all accretions thereto and that the
Resolution violates his property rights under both federal and state law. Id. at 1. To vindicate his rights, he brought suit in the
United States District Court for the Middle District of Florida against an array of state and local parties, including the Lee County
Board of Commissioners, the county property appraiser, and the Florida Department of Environmental Protection.*fn1 Id. In his third
amended complaint, Busse made six claims: unconstitutional deprivation under 42 U.S.C. § 1983; unconstitutional temporary
takings; trespass; conspiracy, fraud, and malfeasance regarding the designation of certain unplatted lots; conspiracy to materially
misrepresent and defraud; and oppression or slander of title. Id. at 3--8. He asserted that an array of statutory and constitutional
provisions supported the exercise of jurisdiction: two civil rights acts - 42 U.S.C. § 1983 and 28 U.S.C. § 1343; Articles Three and
Four and the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments of the United States Constitution;
the 1899 Rivers and Harbors Appropriation Act (33 U.S.C. § 403); the 1862 Homestead Act, the federal common law doctrine of
accretion and erosion; the Federal Appraisal Standards, Uniform Standards of Professional Appraisal Practice, and 12 U.S.C. §§
3331--3351; and the Federal Declaratory Judgment Act (28 U.S.C. § 2201). Id. at 2--3.
The defendants subsequently filed separate motions to dismiss Busse's third amended complaint, primarily based on lack of subject
matter jurisdiction and failure to state a claim. R10-285, 291, 303, 304. The district court granted these motions and dismissed
Busse's third amended complaint. R11-338. In so doing, the court first found that Busse had made out a valid takings claim but that
it had no jurisdiction over that claim since he had failed to show that he had pursued all available state remedies before bringing
suit. Id. at 7--10. The court then concluded that Busse had not made out a valid claim under any of his other alleged federal bases.
Id. at 10--15. Given that the court did not have jurisdiction over any of Busse's federal claims, it chose to dismiss his state law
claims. Id. at 15. Busse now appeals the dismissal of all of the claims in his third amended complaint.
II. DISCUSSION
We review de novo a district court's legal conclusions regarding subject matter jurisdiction, including the determinations that a claim
is not ripe or that the court lacks subject matter jurisdiction over it. See Lanfear v. Home Depot, Inc., 536 F.3d 1217, 1221 (11th Cir.
2008); Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). We also "review a grant of a motion to dismiss for failure to state a
claim de novo, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff."
Gandara v. Bennett, 528 F.3d 823, 826 (quotation marks and citation omitted). The decision not to exercise supplemental
jurisdiction over a state law claim is reviewed for abuse of discretion. See Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 738
(11th Cir. 2006). Since Busse is proceeding pro se, we construe his pleadings liberally. See Miller v. Donald, 541 F.3d 1091, 1100
(11th Cir. 2008).
On appeal, Busse argues that the district court erred in dismissing his federal claims. He asserts that his Takings Clause claim was
ripe for review and that he had properly stated claims involving violations of his procedural due process, equal protection, and
substantive due process rights under the Fifth and Fourteenth Amendments.*fn2 Additionally, we read Busse's brief liberally to
argue that the district court abused its discretion in refusing to exercise supplemental jurisdiction over his state law claims. We
address these arguments in turn.
A. Takings Clause Claims
Busse contends that the Resolution constituted an unconstitutional taking of his property rights in Lot 15A. The Fifth Amendment
prohibits the taking of private property "for public use, without just compensation" - a condition made applicable to the States by
the Fourteenth Amendment. U.S. Const. amend. V; Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 2457 (2001)
(noting that the Fourteenth Amendment made the Takings Clause applicable to the States). A plaintiff can bring a federal takings
claim only if he can show that he did not receive just compensation in return for the taking of his property. See Eide v. Sarasota
County, 908 F.2d 716, 720 (11th Cir. 1990). As a result, for a takings claim to be ripe, a plaintiff must demonstrate that he
unsuccessfully "pursued the available state procedures to obtain just compensation" before bringing his federal claim. Id. at 721.
In this case, Busse's claim would not be ripe because he has not shown that he attempted to obtain or secure relief under
established Florida procedures. Since at least 1990, Florida courts have recognized that an inverse-condemnation remedy is
available for alleged takings violations. See Reahard v. Lee County, 30 F.3d 1412, 1417 (11th Cir. 1994). Busse contends that his
claim would still be ripe since that remedy was unavailable in 1969 when the Board of Commissioners enacted the Resolution.
However, our past circuit precedent dictates "that a Florida property owner must pursue a reverse condemnation remedy in state
court before his federal takings claim will be ripe, even where that remedy was recognized after the alleged taking occurred." Id.
Accordingly, regardless of whether Busse has a valid property interest in Lot 15A, because he has not alleged that he sought and
was denied compensation through available state procedures, his Takings Clause claim would not be ripe for review. We thus
conclude that the district court did not err in finding that it lacked subject matter jurisdiction over Busse's Takings Clause claim.
B. Procedural Due Process Claims
Busse asserts that his procedural due process rights were violated since Lee County had no authority to take his land nor
jurisdiction over it and because the Resolution was improperly executed. The Fourteenth Amendment provides that no state shall
"deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. A plaintiff could make a
procedural due process claim by challenging the procedures by which a regulation was adopted, including the failure to provide pre-
deprivation notice and hearing. See Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 615 (11th Cir. 1997); Zipperer v. City
of Fort Myers, 41 F.3d 619, 623 (11th Cir. 1995). For such a claim to be valid, however, the plaintiff would have to allege that state
law failed to provide him with an adequate post-deprivation remedy. See Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996) (per
curiam).
Based on these standards, we find that Busse has failed to state a valid procedural due process claim. Florida provides him an
adequate post-deprivation remedy, inverse condemnation, and he makes no argument that this procedure is inadequate. Even if it
was inadequate, though, Busse still would not have a valid procedural due process claim. The Resolution constituted a legislative
act since it was a general provision that affected a large number of persons and area, 200 acres in all, rather than being specifically
targeted at Busse or his immediate neighbors. See 75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288, 1294 (11th Cir. 2003).
Since alleged problems with the adoption of such acts cannot serve as the basis for a procedural due process claim, Busse could not
cite them as the basis for his claim. See id. (noting that "if government action is viewed as legislative in nature, property owners
generally are not entitled to procedural due process"). Accordingly, we find that the district court did not err in dismissing Busse's
procedural due process claims.
C. Equal Protection Claims
Busse also argues that his equal protection rights were violated because the Board, in adopting the Resolution, treated differently
privately-owned property and state-owned property.*fn3 The Fourteenth Amendment forbids states from "deny[ing] to any person
within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "[T]o properly plead an equal protection claim, a
plaintiff need only allege that through state action, similarly situated persons have been treated disparately." Thigpen v. Bibb
County, 223 F.3d 1231, 1237 (11th Cir. 2000) abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 122 S.Ct. 2061 (2002).
Under Florida law, counties can exercise eminent domain over any land that is not owned by the state or federal government. See
Fla. Stat. § 127.01(1)(a) (2006). Since a state landowner would not be subject to the eminent domain power but Busse, as a
private landowner, would be, Busse could not be similarly situated to a state landowner. Busse therefore cannot rely on his
disparate eminent domain treatment vis-a-vis state landowners as the basis for an equal protection claim. Since Busse made no
other allegations of disparity in his third amended complaint, we find that he has failed to plead a valid equal protection claim and
that the district court correctly dismissed this claim.
D. Substantive Due Process Claim
Busse also appears to allege that the Resolution denied him his substantive due process property rights. Substantive due process
protects only those rights that are "fundamental," a description that applies only to those rights created by the United States
Constitution. See Greenbriar Village, L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) (per curiam). Property
rights would not be fundamental rights since they are based on state law. See id. Busse thus could not bring a viable substantive
due process claim based on the alleged denial of a state-defined property right. See id. Accordingly, we find that the district court
properly dismissed his substantive due process claims.*fn4
E. Supplemental Jurisdiction
Busse also contends that the court abused its discretion in not hearing his pendent state law claims. "The decision to exercise
supplemental jurisdiction over pendent state claims rests within the discretion of the district court." Raney v. Allstate Ins. Co., 370
F.3d 1086, 1088--89 (11th Cir. 2004) (per curiam). Since the district court "had dismissed all claims over which it has original
jurisdiction," it therefore had the discretion not to exercise supplemental jurisdiction over Busse's state law claims. 28 U.S.C. §
1367(c)(3). Furthermore, we expressly encourage district courts to take such action when all federal claims have been dismissed
pre-trial. See Raney, 370 F.3d at 1089. Accordingly, the district court did not abuse its discretion when it chose not to retain
supplemental jurisdiction over Busse's state law claims.
III. CONCLUSION
Busse contends that the district court incorrectly dismissed his federal claims regarding alleged takings and deprivations of property
rights. Since Busse's takings claim was not ripe because he had not pursued available state remedies and he failed to adequately
plead his other federal claims, the district court correctly dismissed all of these claims. As a result, despite Busse's objections to the
contrary, the district court also did not commit an abuse of discretion in not exercising jurisdiction over his state law claims.
Accordingly, we AFFIRM the district court's dismissal of Busse's third amended complaint.
AFFIRMED.
Opinion Footnotes
*fn1 The full list of defendants includes: Lee County, Florida; the Board of Lee County Commissioners, in their official and private
capacities; Kenneth M. Wilkinson, the Lee County property appraiser, in his official and private capacity; the State of Florida Board of
Trustees of the Internal Improvement Trust Fund of the State of Florida, in their official and private capacities; the Florida
Department of Environmental Protection, the Florida Division of Recreation and Parks, and the Cayo Costa State Park staff, in their
individual and private capacities; and Jack N. Peterson, Lee County Attorney, in his official and private capacity. Id.
*fn2 Busse's brief on appeal does not discuss the other jurisdictional bases cited in his third amended complaint - Articles Three and
Four of the United States Constitution; the 1899 Rivers and Harbors Appropriation Act; the 1862 Homestead Act; the federal
common law doctrine of accretion and erosion; the Federal Appraisal Standards, Uniform Standards of Professional Appraisal
Practice, and 12 U.S.C. §§ 3331--3351; and the Federal Declaratory Judgment Act. Generally arguments not raised in a brief on
appeal are deemed abandoned. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Furthermore, we agree with the
district court's analysis of these provisions and find that none of them could serve as a potential jurisdictional basis for Busse's
claims. See, e.g., Arthur v. Haley, 248 F.3d 1302, 1303 n.1 (11th Cir. 2001) (per curiam) (noting that appellate courts can and should
sua sponte inquire into subject matter jurisdiction whenever it appears to be lacking).
*fn3 In his brief on appeal, Busse argues that he experienced different treatment than other landowners in Lee County. However,
we need not address this argument since he did not mention this in his third amended complaint and we find that none of the
exceptions that would allow us to consider an issue not raised before the district court would apply here. See Narey v. Dean, 32
F.3d 1521, 1526-27 (11th Cir. 1994) (discussing the exceptions to this general rule).
*fn4 The district court, in addressing Busse's substantive due process claim, mentions that assertions of irrational and arbitrary
government action could not serve as the basis for such a claim. Even under a liberal reading of Busse's complaint, though, we do
not think he made such allegations. In the third amended complaint, he discusses takings violations and procedural problems with
the enactment of the Resolution but never questions the rationale for its passage. Accordingly, we need not address whether he
has a valid substantive due process claim based on arbitrary and capricious government action.
20090305
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6/15/2010 FindACase™ | Prescott v. Alejo
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Prescott v. Alejo
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

April 1, 2010
JENNIFER FRANKLIN PRESCOTT; JORG BUSSE, PLAINTIFFS,

v.
ROGER ALEJO; KENNETH M. WILKINSON; JACK N. PETERSON; ROGER DESJARLAIS; LEE COUNTY FLORIDA; LEE COUNTY
VALUE ADJUSTMENT BOARD; LORI L. RUTLAND; STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT TRUST FUND; STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL, PROTECTION; CHAD LACH; REAGAN
KATHLEEN RUSSELL; KAREN B. HAWES; CHARLIE GREEN; BOB JANES; BRIAN BIGELOW; RAY JUDAH; TAMMY HALL; FRANK
MANN; UNITED STATES ATTORNEY(S); SEAN P. FLYNN; E. KENNETH STEGEBY; DAVID P. RHODES; A. BRIAN ALBRITTON;
CYNTHIA A. PIVACEK; JOHNSON ENGINEERING, INC.; STEVEN CARTA; MIKE SCOTT; HUGH D. HAYES; GERALD D. SIEBENS;
STATE OF FLORIDA ATTORNEY GENERAL; WILLIAM M. MARTIN; PETERSON BERNARD; SKIP QUILLEN; TOM GILBERTSON;
CHARLES BARRY STEVENS, DEFENDANTS.
ORDER
This matter comes before the Court on the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Waiver of Any and All
Fees (Doc. #31) filed on December 18, 2009; the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Miscellaneous
Relief, Specifically to Set Aside Fraudulent Order (Doc. 36) (Doc. # 47) filed on January 8, 2010; the Plaintiffs Jennifer Franklin
Prescott and Dr. Jorge Busse's Motion for Recusal of Magistrate Judge Sheri Polster Chappel (Doc. # 48) filed on January 8, 2010;
the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Set Aside Order (Doc. # 38) and to Adjudicate New Issues
(Doc. # 49) filed on January 11, 2010; the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Set Aside Order (Doc.
# 38) and Mandatory Recusal of Magistrate Judge Chappell (Doc. # 50) filed on January 11, 2010; the Plaintiffs Jennifer Franklin
Prescott and Dr. Jorge Busse's Motion to Set Aside Order (Doc. # 37) and Mandatory Recusal of Magistrate Judge Chappell (Doc. #
51) filed on January 11, 2010; the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Release of Lien (Doc. # 67)
February 16, 2010; the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Enjoin Judge Shopping and Enforce
Court's Own Order for Removal of Corrupt R.A. Lazzara (Doc. # 72) filed on March 1, 2010; the Plaintiffs Jennifer Franklin Prescott
and Dr. Jorge Busse's Emergency Motion to Enjoin Defendants' Title Fraud & Fraud on the Court, and Any Government/ Judicial Sale
(Doc. # 73) filed on March 5, 2010; the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Specifically Enjoin
Governmental Fraudulent Concealment of Uncontroverted Eminent Domain Record Forgeries and Obstruction of Justice and Court
Access (Doc. # 82) filed on March 12, 2010; the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Reconsideration
and Declaratory Statement(s) of the Emergency of Judicial Case Fixing, Fraud on the Court(s) (Doc. # 83) filed on March 12, 2010;
the Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Immediate Screening of the Prima Facie Illegality
and Nullity of Lee County Scam O.R. 569/875 (Doc. # 85) filed on March 15, 2010; the Plaintiffs Jennifer Franklin Prescott and Dr.
Jorge Busse's Emergency Motion to Enjoin Governmental Extortion & Threats by Defendant U.S. Agents, Judges, and Counsel (Doc.
# 80) and for Removal from all Proceedings of Magistrate Judge S. Polster Chappell (Doc. # 86) filed on March 15, 2010; and the
Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Immediate Removal of Court Officer Corinins and
Objection to Perpetration of Fraud on Court (Doc. # 90) filed on March 15, 2010.
The Plaintiffs continue in many of their Motions to request the recusal of Magistrate Judge Chappell. Under 28 U.S.C. § 455(a),
"[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned." Any doubt "must be resolved in favor of recusal." See Murray v. Scott, 253 F.3d 1308, 1310 (11th
Cir. 2001). When considering recusal, the potential conflict must be considered as it applies to the entire case. Id. at 1310-11. A
judge contemplating recusal should not ask whether he or she believes he or she is capable of impartially presiding over the case
but whether "[the judge's] impartiality might reasonably be questioned." Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th
Cir. 1988). However, a judge has as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when
the law and facts require. United States v. Malmsberry, 222F.Supp.2d 1345 (11th Cir. 2002) (citing United States v. Greenspan, 26
F.3d 1001 (10th Cir. 1994)). The Court does not find after a thorough review of the record that the court's impartiality might
reasonably be questioned based upon the facts cited in the Plaintiff's Motion.
Section 28 U.S.C. 455(b) spells out certain situations in which partiality is presumed and recusal is required.*fn1 After reviewing the
explicitly enumerated conflicts of interest in which recusal is mandatory under section 455(b), if the Court does not find that any
apply, the judge is obligated to continue to preside over the case. See Lawal v Winners International Rests Co. Ops., Inc., 2006 WL
898180 at * 4 (N.D. Ga. April 6, 2006) (holding a trial judge has as much obligation not to recuse herself when there is no reason to
do so as she does to recuse herself when the converse is true).
The Court has already found that there are simply no grounds for recusal. The Plaintiffs only grounds set forth in all of their Motions
stem from the fact that the Court has ruled against them in making determinations on issues before the Court. The Court states
again that adverse rulings are not grounds for recusal.
The Plaintiffs continually assert that Judges in the Middle District of Florida, specifically the undersigned, and Judges on the Eleventh
Circuit are corrupt and have participated in a conspiracy against him. The allegations appear to be based solely on the fact that the
Plaintiff received adverse rulings from judges in the Middle District of Florida and from the Eleventh Circuit. A review of the Plaintiff's
filings demonstrate that the Plaintiff's Motions are immaterial and scandalous, and do not present legal arguments for the Court's
review. The Plaintiffs' Motions are often merely repeats of the same frivolous arguments over and over again with only a few
paragraphs changed to add a new allegation or individual defendant who prevailed on an issue before the Court. The Court finds
no good cause to support any of the Plaintiffs Motions, and they are all due to be denied.
Accordingly, it is now
ORDERED:
(1) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Waiver of Any and All Fees (Doc. #31) is DENIED.
(2) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Miscellaneous Relief, Specifically to Set Aside Fraudulent
Order (Doc. 36) (Doc. # 47) is DENIED.
(3) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Recusal of Magistrate Judge Sheri Polster Chappell (Doc.
# 48) is DENIED.
(4) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Set Aside Order (Doc. # 38) and to Adjudicate New
Issues (Doc. # 49) is DENIED.
(5) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Set Aside Order (Doc. # 38) and Mandatory Recusal of
Magistrate Judge Chappell (Doc. # 50) is DENIED.
(6) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Set Aside Order (Doc. # 37) and Mandatory Recusal of
Magistrate Judge Chappell (Doc. # 51) is DENIED.
(7) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Release of Lien (Doc. # 67) is DENIED.
(8) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Enjoin Judge Shopping and Enforce Court's Own Order for
Removal of Corrupt R.A. Lazzara (Doc. # 72) is DENIED.
(9) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion to Enjoin Defendants' Title Fraud & Fraud on the
Court, and Any Government/ Judicial Sale (Doc. # 73) is DENIED.
(10) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Specifically Enjoin Governmental Fraudulent
Concealment of Uncontroverted Eminent Domain Record Forgeries and Obstruction of Justice and Court Access (Doc. # 82) is
DENIED.
(11) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Reconsideration and Declaratory Statement(s) of the
Emergency of Judicial Case Fixing, Fraud on the Court(s) (Doc. # 83) is DENIED.
(12) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Immediate Screening of the Prima Facie
Illegality and Nullity of Lee County Scam O.R. 569/875 (Doc. # 85) is DENIED.
(13) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion to Enjoin Governmental Extortion & Threats by
Defendant U.S. Agents, Judges, and Counsel (Doc. # 80) and for Removal from all Proceedings of Magistrate Judge S. Polster
Chappell (Doc. # 86) is DENIED.
(14) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Immediate Removal of Court Officer Corinins
and Objection to Perpetration of Fraud on Court (Doc. # 90) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 1st day of April, 2010.
Opinion Footnotes
*fn1 Subsection 455 (b)(1) requires a judge to disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding."; 455 (b)(2): "[w]here in private practice [the judge]
served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association
as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it."; 455 (b)(3): where the
judge "served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the
proceeding or expressed an opinion concerning the merits of the particular case in controversy."; 455(b)(4): where a judge "knows
that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject
matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of
the proceeding."; or 455(b)(5)(i): "[w]here he or his spouse, or a person within the third degree of relationship to either of them, or
the spouse of such a person... [i]s party to the proceeding, or an officer, director, or trustee of a party."; 455(b)(5)(ii): where the
judge "or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person... is
acting as a lawyer in the proceeding."
20100401
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Prescott v. Alejo

March 31, 2010

v.
ORDER
This matter comes before the Court on the Plaintiffs, Jennifer Prescott and Dr. Jorge Busse's Emergency Motion for Judicial Notice of
Concealment of Evidence (Doc. # 101) filed on March 26, 2010; the Plaintiffs, Jennifer Prescott and Dr. Jorge Busse's Emergency
Motion for Judicial Notice of Concealment of Evidence and Objection to Order (Doc. # 98) which was Procured by Fraud on the Court
(Doc. # 102) filed in March 26, 2010; the Plaintiffs, Jennifer Prescott and Dr. Jorge Busse's Emergency Motion Objections to Order
(Doc. # 98) and Judicial Notice of Concealment of Evidence (Doc. # 103) filed on March 26, 2010; the Plaintiffs, Jennifer Prescott and
Dr. Jorge Busse's Emergency Motion to Enjoin the Case Fixing on Record and Conspiracy of Case Fixing (Doc. #106) filed on March
29, 2010; the The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Miscellaneous Relief to Clear
Judicial Error (Doc. # 107) filed on March 29, 2010; The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion
of the Dispositive Declaration of Plaintiffs' Record Ownership by U.S. Court of Appeals (Doc. # 108) filed on March 29, 2010; The
Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Miscellaneous Relief Specifically Timely Objections to
Clear Judicial Error (Doc. # 109) filed on March 29, 2010; The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency
Motion for Miscellaneous Relief (Doc. # 110) filed on March 29, 2010; The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's
Emergency Motion for Injunction of Criminal Concealment and Striking of Document 76 by Judge Chappell (Doc. # 111) filed on March
29, 2010; and the Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Judicial Notice of Defendants' Fraud on the
Court and Fraudulent Pleadings (Doc. # 112) filed on March 29, 2010.
In their Motions, the Plaintiffs continually assert that Judges in the Middle District of Florida, specifically the undersigned, and Judges
on the Eleventh Circuit are corrupt and have participated in a conspiracy against him. The allegations appear to be based solely on
the fact that the Plaintiff received adverse rulings from judges in the Middle District of Florida and from the Eleventh Circuit. A review
of the Plaintiff's filings demonstrate that the Plaintiff's Motions are immaterial and scandalous, and do not present legal arguments
for the Court's review. Therefore, the Court finds good cause to deny the Motions.
The Plaintiffs also move in their Motion to Enjoin the Case Fixing on Record and Conspiracy of Case Fixing (Doc. #106) for the
undersigned to recuse herself from this case. This is the fourth Motion for Recusal made by the Plaintiffs in this case.
Under 28 U.S.C. § 455(a), "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned." Any doubt "must be resolved in favor of recusal." See Murray v. Scott, 253
F.3d 1308, 1310 (11th Cir. 2001). When considering recusal, the potential conflict must be considered as it applies to the entire
case. Id. at 1310-11. A judge contemplating recusal should not ask whether he or she believes he or she is capable of impartially
presiding over the case but whether "[the judge's] impartiality might reasonably be questioned." Parker v. Connors Steel Co., 855
F.2d 1510, 1524 (11th Cir. 1988). However, a judge has as strong a duty to sit when there is no legitimate reason to recuse as he
does to recuse when the law and facts require. United States v. Malmsberry, 222F.Supp.2d 1345 (11th Cir. 2002) (citing United
States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994)). The Court does not find after a thorough review of the record that the court's
impartiality might reasonably be questioned based upon the facts cited in the Plaintiff's Motion.
The Plaintiffs again seek for the undersigned to recuse herself based upon rulings that were adverse to the Plaintiffs' position. As
the Court has explained in its prior Orders, receiving an adverse ruling from a judge is not a basis for recusal.
ORDERED:
(1) The Plaintiffs, Jennifer Prescott and Dr. Jorge Busse's Emergency Motion for Judicial Notice of Concealment of Evidence (Doc. #
101) is DENIED.
(2) The Plaintiffs, Jennifer Prescott and Dr. Jorge Busse's Emergency Motion for Judicial Notice of Concealment of Evidence and
Objection to Order (Doc. # 98) which was Procured by Fraud on the Court (Doc. # 102) is DENIED.
(3) The Plaintiffs, Jennifer Prescott and Dr. Jorge Busse's Emergency Motion Objections to Order (Doc. # 98) and Judicial Notice of
Concealment of Evidence (Doc. # 103) is DENIED.
(4) The Plaintiffs, Jennifer Prescott and Dr. Jorge Busse's Emergency Motion to Enjoin the Case Fixing on Record and Conspiracy of
Case Fixing and for Judge to Recuse (Doc. #106) is DENIED.
(5) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Miscellaneous Relief to Clear Judicial Error
(Doc. # 107) is DENIED.
(6) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion of the Dispositive Declaration of Plaintiffs'
Record Ownership by U.S. Court of Appeals (Doc. # 108) is DENIED.
(7) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Miscellaneous Relief Specifically Timely
Objections to Clear Judicial Error (Doc. # 109) is DENIED.
(8) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Miscellaneous Relief (Doc. # 110) is DENIED.
(9) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Injunction of Criminal Concealment and
Striking of Document 76 by Judge Chappell (Doc. # 111) is DENIED.
(10) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Judicial Notice of Defendants' Fraud on the Court and
Fraudulent Pleadings (Doc. # 112) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 31st day of March, 2010.
Opinion Footnotes
20100331
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Prescott v. Alejo

March 30, 2010

v.
ORDER
This matter comes before the Court on the Plaintiffs , Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Recusal of
Magistrate Judge (Doc. #45) filed on January 8, 2010; The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for
Recusal of Magistrate Judge (Doc. # 60) filed on January 26, 2010; and The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge
Busse's Emergency Motion for Recusal of Magistrate Judge (Doc. # 105) filed on March 29, 2010.
The Plaintiffs make unsubstantiated and unwarranted allegations based entirely upon the Court making adverse rulings against
their positions in this case. Adverse rulings against a party are not grounds for recusal. Further, the Court has previously denied the
Plaintiffs' Motions to Recuse by Orders (Doc. #36 and #37) filed on January 8, 2010 based upon the same reasons stated in the
instant Motions.
Accordingly, it is now ORDERED:
(1) The Plaintiffs Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Recusal of Magistrate Judge (Doc. #45) is DENIED.
(2) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Recusal of Magistrate Judge (Doc. # 60) is DENIED.
(3) The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Emergency Motion for Recusal of Magistrate Judge (Doc. # 105) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 30th day of March, 2010.
Opinion Footnotes
20100330
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Busse v. Lee County

February 1, 2010
JORG BUSSE PLAINTIFF,

v.
LEE COUNTY, FLORIDA; BOARD OF LEE COUNTY COMMISSIONERS; THE LEE COUNTY PROPERTY APPRAISER; STATE OF
FLORIDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, DEFENDANTS.
ORDER
This matter comes before the Court on the Plaintiff Dr. Jorge Busse's Motion for Mandatory Recusal of Def. Corrupt U.S. Magistrate S.
Polster Chappell (Doc. #416) filed on December 21, 2009; and the Plaintiff Dr. Jorge Busse's Motion for Mandatory Recusal of Def.
Corrupt U.S. Magistrate S. Polster Chappell (Doc. #417) filed on December 21, 2009. The Second Motion to Recuse was filed on the
same day and appears to be an exact copy of the initial Motion to Recuse (Doc. # 416). Therefore, the Plaintiff's initial Motion to
Recuse is moot.
States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994)).
The Court does not find after a thorough review of the record that the court's impartiality might reasonably be questioned based
upon the facts cited in the Plaintiff's Motion. After reviewing the explicitly enumerated conflicts of interest in which recusal is
mandatory under section 455(b), if the Court does not find that any apply, the judge is obligated to continue to preside over the
case. See Lawal v Winners International Rests Co. Ops., Inc., 2006 WL 898180 at * 4 (N.D. Ga. April 6, 2006) (holding a trial judge
has as much obligation not to recuse herself when there is no reason to do so as she does to recuse herself when the converse is
true).
explicitly enumerated conflicts of interest in which recusal is mandatory under section 455(b), the Court does not find that any
apply, and therefore, does not find good cause for recusal.
The Plaintiff is seeking the recusal of the undersigned of being corrupt and dishonest. However, form the Motion it appears the
Plaintiff's sole grounds for the recusal of the undersigned is based upon adverse rulings against the Plaintiff. Adverse rulings
against a parties position is not grounds for recusal.
ORDERED:
(1) The Plaintiff Dr. Jorge Busse's Motion for Mandatory Recusal of Def. Corrupt U.S. Magistrate S. Polster Chappell (Doc. #416) is
DENIED as moot.
(2) The Plaintiff Dr. Jorge Busse's Motion for Mandatory Recusal of Def. Corrupt U.S. Magistrate S. Polster Chappell (Doc. #417) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 1st day of February, 2010.
Opinion Footnotes
20100201
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Prescott v. Alejo

June 11, 2010

v.
ORDER
This matter comes before the Court on the Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Recusal of
Magistrate Judge Sheri Polster Chappell (Doc. #144) filed on April 12, 2010.
The Plaintiffs' allegations supporting the Motion center around the fact that the undersigned has ruled against their position on
various motions before the Court. Adverse rulings are not grounds for recusal. Therefore, the Motion is due to be denied.
The Plaintiffs are cautioned that they have now filed no less than eight Motions to Recuse the undersigned (Doc. #s 32, 33, 45, 49,
50, 51, 60, 105) all of which assert grounds which are frivolous, argumentative, immaterial, impertinent, and scandalous. The Court
has denied all of these Motions. Plaintiffs are cautioned that continued filing of the same motion reiterating the same grounds for
recusal may result in the imposition of sanctions.
ORDERED: The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion for Recusal (Doc. #144) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 11th day of June, 2010.
Opinion Footnotes
20100611
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Prescott v. Alejo

April 30, 2010

v.
ORDER
This matter comes before the Court on the Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Extend Time for
Service (Doc. #122) filed on March 29, 2010. District courts have broad discretion in managing their cases. Chrysler Int'l Corp. v.
Chenaly, 280 F.3d 1358, 1360 (11th Cir. 2002). The broad discretion given to the court includes the management of pretrial
activities such as discovery and scheduling. Id. (citing Johnson v. Bd. of Regents of Univ. Georgia, 263 F.3d 1234, 1269 (11th Cir.
2001).
An extension of time to effect service may be granted for good cause. Fed. R. Civ. P. 4(m).
As grounds, the Plaintiffs simply state that Sheriff Mike Scott stated that he was not a defendant in this case. However, the Plaintiffs
fail to state why Scott or any other potential defendants were not served in a timely manner. Thus, the Plaintiff has failed to
demonstrate the necessary good cause to grant the extension of time.
ORDERED:
The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Extend Time for Service (Doc. #122) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 30th day of April, 2010.
20100430
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Prescott v. Alejo

April 30, 2010

v.
ORDER
This matter comes before the Court on the Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Extend Time for
Service (Doc. #122) filed on March 29, 2010. District courts have broad discretion in managing their cases. Chrysler Int'l Corp. v.
Chenaly, 280 F.3d 1358, 1360 (11th Cir. 2002). The broad discretion given to the court includes the management of pretrial
activities such as discovery and scheduling. Id. (citing Johnson v. Bd. of Regents of Univ. Georgia, 263 F.3d 1234, 1269 (11th Cir.
2001).
An extension of time to effect service may be granted for good cause. Fed. R. Civ. P. 4(m).
As grounds, the Plaintiffs simply state that Sheriff Mike Scott stated that he was not a defendant in this case. However, the Plaintiffs
fail to state why Scott or any other potential defendants were not served in a timely manner. Thus, the Plaintiff has failed to
demonstrate the necessary good cause to grant the extension of time.
ORDERED:
The Plaintiffs, Jennifer Franklin Prescott and Dr. Jorge Busse's Motion to Extend Time for Service (Doc. #122) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 30th day of April, 2010.
20100430
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Prescott v. Alejo

March 26, 2010

v.
ORDER
This matter comes before the Court on the Plaintiffs, Jennifer Franklin Prescott and Jorge Busse's Motion to Compel Defendants
Responses and Declare Defendants' Previous Pleadings not Responsive to Proven Judicial Case Fixing, Corruption, Fraud in the
Court(s) and Bribery (Doc. # 84 ) filed on March 12, 2010.
Pursuant to Local Rule 3.01(a), "[i]n every motion or other application for an order, the movant shall include a concise statement of
the precise relief requested, a statement of the basis for the request, and memorandum of legal authority in support of the request,
all of which the movant shall include in a single document not more than twenty-five pages long." The Plaintiffs' Motion has no
organization or legal reasoning. Instead it is a compilation of unsupported allegations and charges against any official that has
rendered an adverse ruling against their position. The Motion requests relief ranging from injunctions, reconsideration, vacating and
setting aside judgments against the Plaintiff, and compensatory damages. As such, the Plaintiff's Motion is due to be denied.
ORDERED: The Plaintiffs, Jennifer Franklin Prescott and Jorge Busse's Motion to Compel Defendants Responses and Declare
Defendants' Previous Pleadings not Responsive to Proven Judicial Case Fixing, Corruption, Fraud in the Court(s) and Bribery (Doc. #
84 ) is DENIED.
20100326
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Prescott v. Alejo

March 26, 2010

v.
ORDER
This matter comes before the Court on the Plaintiffs, Jennifer Franklin Prescott and Jorge Busse's Motion for Default Judgment in
Plaintiffs' Favor (Doc. #89) filed on March 15, 2010.
A district court may enter a default judgment against a properly served defendant who fails to defend or otherwise appear pursuant
to Federal Rule of Civil Procedure 55(b)(2). ABS-SOS Plus Partners Ltd. v. Vein Associates of America, Inc., WL 5191701 *1-2 (M.D.
December 10, 2008) (citing DirecTV, Inc. v. Griffin, 290 F. Supp.2d 1340, 1343 (M.D. Fla.2003). A district court may also strike
pleadings and direct a clerk to enter default against defendants who have made an appearance as a sanction for discovery abuses
or the abandonment of defenses.Pickett v. Executive Preference Corporation, 2006 WL 2947844 (M.D. Fla. Oct.16, 2006) (striking
defendant's pleadings for abandoning its defense, and directing Clerk to enter default against defendant).
The Federal Rules of Civil Procedure also gives a district court the power to enter a default, strike pleadings, or render judgment
against a party that disobeys the court's discovery or pretrial scheduling orders. ABS-SOS Plus Partners Ltd., WL 5191701 *1-2
(citingFed. R. Civ. P. 37(b)(2)(C) (The court may enter "an order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by
default against the disobedient party."); see also Fed.R.Civ.P. 16(f) (incorporating the sanction powers articulated in Rule
37(b)(2)(C) as applied to scheduling or pretrial orders).
In this instance, the Plaintiffs have failed to establish that the Defendants did not answer or that any Defendant failed to obey an
order of the Court. Thus, there is no good cause to grant the requested relief. Furthermore, the Plaintiffs' Motion has no
organization or legal reasoning. Instead it is a compilation of unsupported allegations and charges against any official that has
rendered an adverse ruling against their position. The Motion requests relief ranging from a default judgment, injunctions,
reconsideration, declaratory judgments, vacating and setting aside judgments against the Plaintiff, compensatory damages, and
punitive damages. Pursuant to Local Rule 3.01(a), "[i]n every motion or other application for an order, the movant shall include a
concise statement of the precise relief requested, a statement of the basis for the request, and memorandum of legal authority in
support of the request, all of which the movant shall include in a single document not more than twenty-five pages long." As such,
the Plaintiff's Motion is due to be denied.
ORDERED: The Plaintiffs, Jennifer Franklin Prescott and Jorge Busse's Motion for Default Judgment in Plaintiffs' Favor (Doc. #89) is
DENIED.
20100326
6/15/2010 FindACase™ | Busse v. State
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Busse v. State

February 4, 2009
DR. JORGE BUSSE AND JENNIFER FRANKLIN PRESCOTT, PLAINTIFFS,

v.
STATE OF FLORIDA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Richard A. Lazzara United States District Judge
ORDER
Pending before the Court is the Report and Recommendation of United States Magistrate Judge Mark A. Pizzo issued January 21,
2009, at docket 121, in which he recommends dismissing Plaintiffs' third amended complaint with prejudice after they failed to
respond to his order to show cause issued December 30, 2008, at docket 52, as to why that complaint should not be dismissed.
True to their history of engaging in vexatious litigation tactics, Plaintiffs have inundated this Court with no less than ten pleadings
challenging the propriety of Judge Pizzo's recommendation in words that are rambling, disjointed, and at times incomprehensible.
See dockets 138, 144, 149, 150, 160, 165, 166, 171, 181, and 183. The Court, nevertheless, has undertaken a de novo review of
the record in light of Plaintiffs' objections. See Macort v. Prem, Inc., 208 Fed.Appx. 781, 783-84 (11th Cir. 2006) (citing Heath v.
Jones, 863 F.2d 815, 822 (11th Cir. 1989)). After doing so, and being mindful that a pro se plaintiff's complaint must be construed
more liberally than one prepared by an attorney, the Court has no hesitancy in concluding that Judge Pizzo's Report and
Recommendation should be adopted, confirmed, and approved in all respects resulting in the dismissal with prejudice of Plaintiffs'
third amended complaint.
There is another reason justifying dismissal of this case with prejudice: Plaintiffs' wanton and wilful refusal to abide by the orders of
this Court. Such conduct is manifested in their persistent refusal to obey Judge Pizzo's order of December 30, 2008, found at docket
52, directing them to cease and desist from sending correspondence to the chamber's e-mail account of any judge of this Court and
their conscious failure to appear before this Court on January 30, 2009, as directed in Judge Pizzo's order of January 9, 2009, found
at docket 76, even after the Court warned them that their failure to appear could result in the dismissal of their case with prejudice.
See order entered January 12, 2009, at docket 80.*fn1
One final matter needs to be addressed by the Court: the issue of whether the undersigned should recuse himself pursuant to the
dictates of 28 U.S.C. § 455 because Plaintiffs have sued him in case number 2:09-cv-41-FtM-99TBM. The Court declines to do so for
the reasons explained in footnote three of the order entered in that case on January 30, 2009, at docket 8.*fn2
Accordingly, it is ordered and adjudged as follows:
1) Judge Pizzo's Report and Recommendation issued January 21, 2009, at docket 121, is adopted, confirmed, and approved in all
respects and made a part of this order for all purposes.
2) This case is dismissed with prejudice.
3) The Clerk is directed to enter judgment against Plaintiffs and in favor of Defendants, to terminate all pending motions and
deadlines, and to close this case.
4) In light of Plaintiffs' persistent history of filing baseless and incomprehensible pleadings which have impacted the resources of
this Court, as well as of Defendants,*fn3 the Clerk is directed not to accept for filing any future pleading submitted by Plaintiffs in
this case, except for a notice of appeal from this order.*fn4
DONE AND ORDERED at Tampa, Florida, on February 4, 2009.
6/15/2010 FindACase™ | Busse v. State
Opinion Footnotes
*fn1 In the order entered January 30, 2009, at docket 147, immediately following the hearing at which Plaintiffs did not appear, the
Court announced its intention to delay any ruling with regard to sanctions to be imposed until after the filing of objections to Judge
Pizzo's Report and Recommendation.
*fn2 The Court notes in that regard that Judge Pizzo's observation in his Report and Recommendation that "[a]ny official, including
any lawyer associated with these matters, disagreeing with [Plaintiff Busse] is serially named as a defendant in the next lawsuit[]"
proved to be prescient with regard to the undersigned judge.
*fn3 See motions for sanctions filed February 3, 2009, at dockets 172 and 174.
*fn4 See Bafford v. Township Apartments Assoc., Ltd., case number 8:08-cv-724-T-27TGW, docket 7, 2008WL 1817333*4 (M.D. Fla.
2008) (directing clerk not to accept any additional filings except a notice of appeal after sua sponte dismissing pro se plaintiff's
complaint with prejudice as patently frivolous, harassing, and vexatious).
20090204
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6/15/2010 FindACase™ | Romero v. Watson
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Romero v. Watson
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

May 13, 2009
GOVINDA ROMERO, PLAINTIFF,

v.
CLOVIS WATSON JR, CITY MANAGER OF THE MUNICIPALITY OF ALACHUA, FLORIDA IN HIS INDIVIDUAL CAPACITY, AND
GENE PATTON, BUILDING OFFICIAL OF THE MUNICIPALITY OF ALACHUA, FLORIDA IN HIS INDIVIDUAL CAPACITY, AND
THE MUNICIPALITY OF ALACHUA FLORIDA, DEFENDANTS.
The opinion of the court was delivered by: Stephan P. Mickle United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
This cause comes before the Court for consideration of Defendants' motion to dismiss Counts I, III, IV, and V (doc. 6), Defendants'
supporting documents (doc. 7), and Plaintiff Romero's response in opposition (doc. 11).
For the following reasons, Defendants' motion to dismiss will be granted as to Count I (Procedural Due Process), Count III
(Substantive Due Process), and Count V (Temporary Taking of Property without Just Compensation), without prejudice and with
leave to amend. Defendants' motion to dismiss with prejudice will be granted as to Count IV (Substantive Due Process -
Fundamental Liberty Interest). Count II (Equal Protection) was not challenged in Defendants' motion.
Facts Alleged
Plaintiff Govinda Romero ("Romero") sought to erect a mobile home on his property in the city of Alachua, Florida. Romero applied for
the required building permit, and the city issued the permit on February 1, 2007. (Pl.'s First Am. Compl. ¶ 20, Ex. B.) The next day,
Romero purchased a mobile home for $49,000 and hired a company for its set up and delivery. (Compl. ¶ 21.) On February 16, 2007,
Building Official Patton, at the request of City Manager Watson or alternatively on his own, issued a stop work order on Romero's
property which required Romero to immediately cease and desist all work on the property. (Compl. ¶¶ 25-26, 30, Ex. C.) The stop
work order contained no reference to any violation of a building regulation or other law (Compl. ¶ 28), and remained in effect until
its dissolution on July 13, 2007 (Compl. ¶ 31).
Ten days after the issuance of the stop work order, on February 26, 2007, the City of Alachua City Commission held a public meeting
and comment. (Compl. ¶¶ 32, 34.) Citizens complained about mobile homes and their devaluation of surrounding properties,
including a complaint that someone was "trying to move in a $30,000, used trailer in a neighborhood of $200,000 homes and that
will devalue the whole area." (Compl. ¶¶ 33-36.) After public comments, the City Commission passed Emergency Ordinance 7-11, a
temporary moratorium on the "acceptance of applications for and issuance of land use, building, and development permits for
manufactured home dwelling units" for sixty-one days. (Compl. ¶¶ 32, 37; Def.'s Docs. 1.) Then, at a meeting on May 21, 2007, the
Commission passed Ordinance 7-23 to extend the temporary moratorium for an additional ninety-one days until July 28, 2007.
(Compl. ¶ 60; Def.'s Docs. 2.) The extension included exemptions for two property owners who were faced with hardship, but did
not exempt Romero. (Compl. ¶¶ 60-61.) In any event, Romero contends that the moratorium was "not applicable to plaintiff's
previously issued permit on February 1, 2007." (Compl. ¶ 37; Pl.'s Resp.: 18.)
Romero brought suit under 42 U.S.C. § 1983 against the city of Alachua, Building Official Patton, and City Manager Watson
(collectively, the Defendants). Romero alleges five violations of his constitutional rights: (1) Procedural Due Process; (2) Equal
Protection; (3) Substantive Due Process; (4) Substantive Due Process - Fundamental Liberty Interest; and (5) Temporary Taking
without Just Compensation. (Compl.) Defendants have moved to dismiss all counts except the Equal Protection claim found in Count
II. (Def.'s Mot. to Dismiss.)
Standard on a Motion to Dismiss
To state a claim for relief, the plaintiff must give "'the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.'" Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The court may
grant a motion to dismiss under Rule 12(b)(6) if the plaintiff's factual allegations create merely a suspicion of a legally cognizable
right of action. See Twombly, 127 S.Ct. at 1964-65. The court should not evaluate the veracity or weight of potential evidence on a
motion to dismiss. See Clark v. Potter, No. 5:07cv41/RS/EMT, 2008 WL 186619, at *1 (N.D. Fla. Jan. 18, 2008) (internal citations
omitted). Instead, the alleged facts must be accepted as true and must be construed in the light most favorable to the plaintiff. See
Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999) (internal citations omitted).
I. INTRODUCTION
"Land-use litigation is a complex area of law, to say the least." Watson Constr. Co. v. City of Gainesville, 433 F. Supp. 2d 1269,
1274 (N.D. Fla. 2006). Both litigants and courts can be confused by the complexity, and "often one cannot tell which claim has been
brought or which standard is being applied." Eide v. Sarasota County, 908 F.2d 716, 722 (11th Cir. 1990). The United States
Supreme Court has refined its understanding of these concepts over the years, sometimes overturning or modifying previous
decisions or portions of them. See Watson, 433 F. Supp. 2d at 1274 (describing refinements in land-use litigation). The Eleventh
Circuit has recognized the ensuing confusion and has attempted to clarify this area of the law on several occasions. See Greenbriar
Village, LLC v. Mountain Brook, 345 F.3d 1258 (11th Cir. 2003); Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (11th Cir.
1997); McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994); Eide v. Sarasota County, 908 F.2d 716 (11th Cir. 1990). The resulting legal
framework is difficult to interpret and this case illustrates that "confusion abounds." Watson, 433 F. Supp. 2d at 1274. In some
cases, the abounding legal confusion has led to the dreaded "shotgun" pleading, in which plaintiffs add to the problem by alleging a
myriad of facts under an undecipherable legal theory. See Boatman v. Town of Oakland, Fla., 76 F.3d 341, 344 n.6 (11th Cir. 1996)
(citing Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991)). In an attempt to cut through the confusion, the court must
examine each cause of action "for what it actually is, not for what [the plaintiff] would have it be" when determining the type of
claim. McKinney, 20 F.3d at 1560.
While this task can be difficult, the goal is simple: to limit the role of the federal court in land-use litigation. "Federal courts do not sit
as zoning boards of appeals." Mackenzie v. City of Rockledge, 920 F.2d 1554, 1558 (11th Cir. 1991) (citing Spence v. Zimmerman,
873 F.2d 256, 262 (11th Cir. 1989)). In addition, "[f]ederal courts must not usurp the roles of agencies, review boards, and state
courts in reviewing the wisdom of executive actions." DeKalb Stone, Inc. v. County of DeKalb, Ga., 106 F.3d 956, 960 (11th Cir.
1997). There is an important reason for this policy: a state should have the first chance to correct the mistakes it makes when
reasonably regulating the land within its borders. See Eide, 908 F.2d at 726 ("zoning is a delicate area where a county's power
should not be usurped without giving the county an opportunity to consider concrete facts and the merits prior to a court suit.").
II. DECIPHERING THE CLAIM
There are several important distinctions that determine the claim a plaintiff may bring in land-use cases. These distinctions include
whether the interest concerned is based in state law and whether the state action at issue is executive or legislative. However,
"[n]ot every wronged party has a valid claim for a constitutional violation whenever a local building official makes an incorrect
decision regarding a building permit." Spence v. Zimmerman, 873 F.2d at 260 n.5.
A. Property Interest: State-Created or Fundamental
The first important distinction is whether the property interest concerned is created by state law. Property rights created by state
law, such as a potential right in a building permit, are entitled only to procedural due process protection. McKinney, 20 F.3d at 1556;
see also Busse v. Lee County Fla., No. 08-13170, 2009 WL 549782, at *4 (11th Cir. March 5, 2009). State-created rights may be
infringed by the state as long as certain procedures are followed. McKinney, 20 F.3d at 1556. Procedural due process protects not
against "the deprivation of rights; it only protects against an unfair process." Watson, 433 F. Supp. 2d at 1277 (emphasis in
original). A procedural due process violation is not complete "'unless and until the state fails to provide due process.'" McKinney, 20
F.3d at 1557 (quoting Zinermon v. Burch, 494 U.S. 113, 123 (1990)); see also Reams v. Irvin, No. 08-12023, 2009 WL 579222, at *6
(11th Cir. Mar. 9, 2009). In many cases, if the state provides an adequate post-deprivation procedure, then the state has fulfilled its
obligation to provide procedural due process when depriving the plaintiff of a state-created right. See McKinney, 20 F.3d at 1557. In
such a case, the court's only consideration is whether adequate remedies were available under state law, not whether the plaintiff
took advantage of them. See Horton v. Bd. of County Comm'rs, Flagler County, 202 F.3d 1297, 1300 (11th Cir. 2000); McKinney, 20
F.3d at 1565 (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 (1982) ("The fact that [the plaintiff] failed to avail himself of
the full procedures provided by state law [such as post-deprivation remedies] does not constitute a sign of their inadequacy.")).
Each state's law will dictate the parameters of the state-created property right and a plaintiff's interest therein. See Coral Springs
St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1333-34 (11th Cir. 2004). In Florida, the "question of whether a prospective builder
has a protected property interest in a building permit . . . has been the subject of much confusion in the courts." Sullivan Props., Inc.
v. City of Winter Springs, 899 F. Supp. 587, 593 (M.D. Fla. 1995) (citing Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379
(11th Cir.1994)); see also Decarion v. Monroe County, 853 F. Supp. 1415, 1418 (S.D. Fla. 1994); Villas of Lake Jackson, Ltd. v. Leon
County, 796 F. Supp. 1477, 1484 (N.D. Fla.1992). Under Florida law, vested rights can be created: (1) through a party's reasonable
and detrimental reliance on existing law; or (2) when a municipality has acted in a clear display of bad faith, absent any reliance.
Coral Springs St. Sys., 371 F.3d at 1334.
The state of Florida not only dictates the parameters of the property interest, but also provides remedies for improper zoning
decisions. Executive or quasi-judicial decisions of a zoning board are subject to review by certiorari. See Bd. of County Comm'rs of
Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993) (holding that the zoning board is not required to make findings of fact,
but that upon certiorari review the zoning board must demonstrate its ruling was based on competent substantial evidence).
Legislative zoning decisions are also subject to attack in circuit court. See id. Florida circuit courts possess broad powers of review
to determine whether due process is observed. See McKinney, 20 F.3d at 1563-64. Certiorari to the state court is usually an
adequate state remedy. See Reams, 2009 WL 579222, at *7.
On the other hand, if the interest concerned arises under the federal constitution rather than as a creation of state law, the interest
is protected by substantive due process. Substantive due process protects "those rights that are 'fundamental,' that is, rights that
are 'implicit in the concept of ordered liberty.'" McKinney, 20 F.3d at 1556 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
Fundamental rights include most of those enumerated in the Bill of Rights and certain unenumerated rights, such as the right to
privacy. See McKinney, 20 F.3d at 1556; Planned Parenthood v. Casey, 505 U.S. 833, 851-53 (1992). These rights are protected
"against certain government action regardless of the fairness of the procedures used." McKinney, 20 F.3d at 1556 (internal
quotations omitted). Unlike state-created interests, no amount of subsequent process, such as a post-deprivation hearing, will cure
a violation of substantive due process. Id. at 1557. Instead, this violation is complete when it occurs. Id.
While "property rights have been important common law rights throughout history" and "are protected in many situations by
procedural due process . . . common law rights are not equivalent to fundamental rights, which are created only by the Constitution
itself." DeKalb Stone, Inc. v. County of DeKalb, Ga., 106 F.3d 956, 959 n.6 (11th Cir. 1997); see also Collins & Co. v. City of
Jacksonville, 38 F. Supp. 2d 1338, 1342 (M.D. Fla. 1998) (granting the defendant's motion to dismiss because the right to "own,
alienate, or otherwise use real property" does not fall within the set of fundamental rights protected by substantive due process
under current Supreme Court jurisprudence); Reserve, Ltd. v. Town of Longboat Key, 933 F. Supp. 1040, 1043-44 (M.D. Fla. 1996)
(holding that the plaintiff's interest in a revoked building permit "falls comfortably short of a fundamental right").
In sum, a state-created property right is protected by procedural due process. Fundamental rights are protected by substantive due
process, but the right to use real property for a specific purpose is not a fundamental right.
B. State Action: Executive or Legislative
The second important distinction to determine the claim that is available available to the plaintiff is whether the complained-of
conduct is an executive*fn1 or legislative act. To characterize the act, some federal circuits examine the function performed by the
decision maker, such as a legislative body performing legislation, while other circuits characterize legislative acts as those that are
generally applicable and prospective. See 75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288, 1296 (11th Cir. 2003); see also
Sullivan Props., 899 F. Supp. at 596.
For instance, "[e]xecutive acts characteristically apply to a limited number of persons (and often to only one person); executive acts
typically arise from the ministerial or administrative activities of members of the executive branch." McKinney, 20 F.3d at 1557 n.9.
"'Acts of zoning enforcement rather than rulemaking are not legislative.'" DeKalb Stone, 106 F.3d at 959 (quoting Crymes v. DeKalb
County, 923 F.2d 1482, 1485 (11th Cir. 1991) (internal citations omitted)); see also Reserve, 933 F. Supp. at 1043-44 (holding that
even if the decision to revoke a building permit was made by the legislative branch, the decision itself is executive because it applies
to one person and not the general population).
If the complained-of state action concerning a right to real property is executive in nature, rather than legislative, the plaintiff can
not maintain a substantive due process claim. See Villas of Lake Jackson, 121 F.3d at 614-15 (implying that executive acts will not
sustain an arbitrary and capricious substantive due process claim); DeKalb Stone, 106 F.3d at 959-60 (holding no substantive due
process cause of action exists when an executive actor deprives the plaintiff of a state-created property right); McKinney, 20 F.3d at
1557 n.9 (implying that only legislative acts will support a substantive due process claim); Reserve, 933 F. Supp. at 1043 ("Section
1983 substantive due process claims arising from non-legislative deprivations of state-created property interests are no longer
cognizable."); Sullivan Props., 899 F. Supp. at 596.
On the other hand, "[l]egislative acts, [unlike executive acts], generally apply to a larger segment of-if not all of-society; laws and
broad-ranging executive regulations are the most common examples." McKinney, 20 F.3d at 1557 n.9; see also 75 Acres, 338 F.3d
at 1296 (analyzing the imposition of a building moratorium on one piece of property to determine whether it was a legislative act
that did not implicate procedural due process or an adjudicative act that required procedural due process). Furthermore, a
"'legislative act involves policy-making rather than mere administrative application of existing policies.'" DeKalb Stone, 106 F.3d at
959 (quoting Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir. 1991) (internal citations omitted)). Prospective "zoning-type
decisions made by an elected body" are often legislative or quasi-legislative.
75 Acres, 338 F.3d at 1296 n.12.
In the Eleventh Circuit, an arbitrary or capricious legislative act may provide the basis for a substantive due process claim, which is
called an "arbitrary and capricious due process claim." Villas of Lake Jackson, 121 F.3d at 611, 615; see also Eide, 908 F.2d at 721-
22 (stating that while other courts refer to a claim based on arbitrary and capricious legislation as a substantive due process claim,
the Eleventh Circuit refers to this claim as an arbitrary and capricious due process claim). A balancing test is used to determine
whether the city's decision was arbitrary and capricious or whether it was substantially related to general welfare interests,
including its effect on aesthetics and surrounding property values. Corn v. City of Lauderdale Lakes, 997 F.2d 1369, 1374-75 (11th
Cir. 1993).
A legislative act may also support other types of claims. See Villas of Lake Jackson, 121 F.3d at 615 (describing four potential claims
based on a zoning regulation that deprives the plaintiff of a constitutionally-protected right to use the property for a certain
purpose).*fn2 For instance, a legislative act may form the basis for an action under the Equal Protection Clause*fn3 or the Takings
Clause of the Constitution. See Villas of Lake Jackson, 121 F.3d at 612, 615.
To illustrate, a plaintiff may establish a Takings Clause claim if a regulation or state action "goes too far" and destroys the value of
the land entirely, even if temporarily, without compensating the property owner. See First English Evangelical Lutheran Church of
Glendale v. Los Angeles County, Cal., 482 U.S. 304, 316-18 (1987). A Takings claim must be asserted under the Takings Clause of
the Fifth Amendment. See Villas of Lake Jackson, 121 F.3d at 611 (noting that the possible "due process takings" claim mentioned in
the Eleventh Circuit's Eide opinion was no longer cognizable under Supreme Court jurisprudence). A Takings Clause claim addresses
government action that is invalid absent compensation, while an arbitrary and capricious substantive due process claim addresses
government action that is invalid the moment it occurs despite any subsequent remedy or compensation. See Tampa Hillsborough
County Expressway Auth. v. A.G.W.S. Corp., 640 So.2d 54, 57 (Fla. 1994).
However, mere fluctuations in the value of real property due to governmental decision-making are generally just "incidents of
ownership" and do not amount to a Taking. See First English, 482 U.S. at 320. In addition, a challenge to a regulatory deprivation of
a single use of real property must be considered in light of the remaining use of the property as a whole. See Villas of Lake Jackson,
121 F.3d at 614 (illustrating that destroying one strand in the bundle of property rights does not constitute a Taking; rather, a
Taking would chop through all the strands in the bundle).
Furthermore, a Takings claim must be ripe in order for the federal court to have jurisdiction. See Eide, 908 F.2d at 725. The plaintiff
must meet the "ripeness prerequisite of exhaustion of the state-court inverse condemnation remedy." Villas of Lake Jackson, 121
F.3d at 612; see also Bickerstaff Clay Prods. Co. v. Harris County, Ga. Bd. of Comm'rs, 89 F.3d 1481, 1490-91 (11th Cir. 1996) ("A
Takings clause claim does not become ripe unless the state provides no remedy [such as an action for inverse condemnation] to
compensate the landowner for the taking."). The state of Florida ensures that full and just compensation be paid if a Taking occurs
which "substantially" interferes with private property. See Joint Ventures, Inc. v. Dep't of Transp., 563 So.2d 622, 624, 627 (Fla.
1990) (describing the guarantee of just compensation granted by the Florida constitution and the Florida courts); see also Executive
100, Inc. v. Martin County, 922 F.2d 1536, 1539, 1542 (11th Cir. 1991) (recognizing that property owners may bring reverse
condemnation proceedings for regulatory takings in Florida courts).
If a plaintiff's Takings claim is ripe after using state court inverse condemnation remedies, he may bring a facial or as applied
challenge to the zoning regulation. See Eide, 908 F.2d at 725. For an as applied challenge, the plaintiff must pass an additional two-
part test. See Eide, 908 F.2d at 716 n.16. First, the zoning decision must be made finally and applied to the property. Eide, 908 F.2d
at 716 n.16. Second, the city "must have made all other decisions necessary for the court to determine whether the landowner has
been deprived of substantially all economically beneficial value of the property." Eide, 908 F.2d at 716 n.16.
To summarize the previous distinctions, a plaintiff's state-created property interest is only entitled to procedural due process for a
potential deprivation by an executive act. A legislative act, however, can support a substantive due process claim if it is arbitrary
and capricious. Before a court can even consider a Takings Clause claim, the plaintiff must exhaust the state's inverse condemnation
remedies. To determine the available claim, if any, a court must analyze the interest at stake and classify the disputed state action.
III. ANALYSIS
Against this complicated legal framework, the Court will examine the factual allegations of Romero's complaint to determine if he has
stated a claim.
A. Count I: Procedural Due Process
A successful § 1983 claim "alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process." Grayden v.
Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (internal citations omitted).
Romero has met the first two requirements. First, he alleged a protected property interest in his building permit. (Compl. ¶¶ 20, 21.)
This interest arises under Florida law through the doctrine of equitable estoppel. See Coral Springs St. Sys., 371 F.3d at 1334.
Romero has alleged expenditures made in reliance on the permit. (Compl. ¶¶ 20, 21.) Defendants have not challenged this state-
created interest.
Second, Romero alleged that state action caused the deprivation through the stop work order issued on his property. (Compl. ¶¶
47, 48.) Unfortunately, Defendants misread this allegation and direct their arguments to the moratorium rather than the stop work
order. In their motion to dismiss, Defendants argue that because the moratorium was a legislative act, Romero is entitled to no
additional due process protection beyond the legislative process. (Def.'s Mot.: 2-4); see 75 Acres, 338 F.3d at 1296 (holding that
legislative acts do not entitle a plaintiff to procedural due process). However, Romero never alleges that the moratorium violated his
procedural due process, but rather that the stop work order caused the deprivation. (Compl. ¶¶ 47, 48; Pl.'s Resp.: 2-3.) For this
reason, Romero properly alleges an executive state action caused his deprivation.
The third requirement, however, is not satisfied by the allegations in Romero's complaint and requires dismissal of Count I. Romero
must allege a constitutionally inadequate process, and Romero claims that the "Municipality of Alachua Land Use Regulations
provide no procedure upon which plaintiff ROMERO could administratively contest the stop work order." (Compl. ¶ 51.c) (emphasis
added). He restates this belief in his response. (Pl.'s Resp.: 10) ("such appeal opportunity appearing nowhere in the City of Alachua
LDRs"). Romero believes this lack of procedure also precluded him from review by the Florida circuit courts because there was no
record created for the circuit court to review. (Compl. ¶ 51.d.) However, even assuming circuit court review is precluded without a
record, such a procedure to contest the stop work order does exist, and the reason there was no record the circuit court could
review was because Romero failed to use the available post-deprivation remedies provided by the state. See McKinney, 20 F.3d at
1565 (stating that a plaintiff's failure to use procedures provided by state law does not render the procedures inadequate).
For example, Romero could have appealed the stop work order to the city of Alachua's Zoning Board of Appeals ("BOA").*fn4 The
Alachua Land Development Regulations ("LDRs") are available online and detail the appeal procedure.*fn5
Section 2.4.18, entitled "Mobile Home Move-On Permit," applies to the "placement, erection, and use of a mobile home in the City"
and enables "any person aggrieved or affected by a decision of the LDR Administrator [to] appeal such decision to the BOA in
accordance with section 2.4.20, Appeal of Interpretations or Decisions by LDR Administrator."*fn6 Land Dev. Reg. § 2.4.18 (B); (H)
(emphasis in original). Section 2.4.20 details the "Appeal Procedure," which includes appellant's ability to appear, with or without
counsel, and present evidence to support his appeal. Land Dev. Reg. § 2.4.20 (B)(1)-(5). Contrary to Romero's assertion, the city's
LDRs do include an appeal procedure.
Furthermore, if Romero had used the city's appeals process and then received an unfavorable decision from the BOA, he would have
had a record for the state court to review. The Florida circuit court could have used its broad powers of review to determine
whether Romero received due process. See McKinney, 20 F.3d at 1563-64. However, Romero's complaint mistakenly fails to
recognize the availability of any appeal procedure provided by the city and the opportunity for state court review of that procedure.
The state of Florida does provide post-deprivation remedies. Romero fails to recognize the availability of these remedies at all. For
this reason, Count I must be dismissed because it does not state a claim for a violation of Romero's procedural due process.
B. Count III: Substantive Due Process
Defendants argue that Count III, entitled "Substantive Due Process," must be dismissed because it is based on a state-created
property right which is not entitled substantive due process protection. The Court agrees. The building permit is entitled only to
procedural due process protections. See McKinney, 20 F.3d at 1556; Coral Springs St. Sys., 371 F.3d at 1334. For this reason,
Romero's claim for a substantive due process violation based on the building permit, and subsequent stop work order which
suspended his permit privileges, must be dismissed.
In addition, the Court holds that the stop work order was an executive act because it applied to only Romero, it was an act of
zoning enforcement (even if issued improperly), and it was not prospective or generally applicable to the city's citizens. See
McKinney, 20 F.3d at 1557 n.9; DeKalb Stone, 106 F.3d. at 959. This characterization of the stop work order as an executive act
applies despite the identity of the responsible party. See Reserve, 933 F. Supp. at 1043-44 (holding that the decision to revoke a
building permit was executive, even if made by the legislative branch, because it applied only to one person). Because the stop
work order was an executive act, Romero is only entitled to procedural due process protections for its potentially wrongful
suspension of his building privileges.
The only claim Romero could state for a violation of his substantive due process would involve an arbitrary and capricious legislative
act. See Villas of Lake Jackson, 121 F.3d at 615. While the moratorium could provide the basis for this claim if it were a legislative
act, Romero consistently states that he does not contest the moratorium and that the moratorium never applied to him. (Compl. ¶
37) (stating the moratorium applied only to "the approval or issuance of any new or subsequent mobile home permits and is not
applicable to plaintiff's previously issued [building] permit"). He explains:
[D]efendants unlawfully prevented the plaintiff from building activity as a result of an unlawful stop work order and not as a result of
a lawfully enacted moratorium . . . . [The moratorium] regulated future applications and building activity but did not address the
Plaintiff directly. It was the CITY MANAGER's stop work order, issued prior to the enactment of the emergency ordinance, that
prevented the Plaintiff from completing his building project. (Pl.'s Resp.: 2, 18.) Therefore, the Court need not classify the
moratorium as legislative or executive or determine whether it violated Romero's substantive due process. Romero asserts
definitively that he does not contest the moratorium.
For these reasons, Romero's substantive due process claim in Count III must be dismissed. Romero does not state a claim based on
an arbitrary and capricious legislative act.
C. Count IV: Substantive Due Process - Fundamental Liberty Interest
Count IV, entitled "Substantive Due Process - Fundamental Liberty Interest," mirrors Count III almost identically.*fn7 Romero
apparently asserts a fundamental right to build on his property in this count. (Pl.'s Resp.:11-12.) However, there is no fundamental
liberty interest in a specific use of one's property, such as the erection of a mobile home. See DeKalb Stone, 106 F.3d at 959-60
(stating that property rights, while important, are not fundamental); Collins, 38 F. Supp. 2d at 1342-43 (holding that the right to
"own, alienate, or otherwise use real property" does not fall within the set of fundamental rights protected by substantive due
process). For that reason, and because any other discernable claim in Count IV was previously stated in Count III, Count IV must be
dismissed with prejudice.
D. Count V: Temporary Taking of Property without Just Compensation
As Romero recognizes, a Takings claim is only ripe for adjudication if the plaintiff overcomes the just compensation hurdle, including
exhaustion of the state court inverse condemnation remedy. (Pl.'s Resp.: 14.); see Villas of Lake Jackson, 121 F.3d at 612. If the
claim is ripe, then the court must also determine whether a final decision was reached and applied to the property. See Eide, 908
F.2d at 716 n.16. The state of Florida provides an inverse condemnation remedy. See Executive 100, 922 F.2d at 1539. Romero,
however, fails to recognize the existence of this remedy and never overcame the required hurdle by using the state's remedy. (Pl.'s
Resp.: 15.)
In his response, Romero asserts a futility defense to justify this failure to exhaust the state court inverse condemnation remedy.
(Pl.'s Resp.: 16-17.) However, the available futility defense applies to the final decision hurdle, not to the just compensation hurdle.
See Eide, 908 F.2d at 726-727. There is no futility exception to the just compensation hurdle. See Williamson County Reg'l Planning
Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95 (1985) ("if a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and
been denied just compensation."). Instead, a plaintiff may assert only the inadequacy of the state compensation procedures. See
id. Even assuming that Romero meets the final decision hurdle, he has not used "all state procedures for just compensation." See
Eide, 908 F.2dat 723; see also Williamson County, 473 U.S. at 194-95. Romero has also not alleged the inadequacy of Florida's just
compensation procedure. Therefore, Romero's claim is not ripe and Count V must be dismissed.
IV. CONCLUSION
To summarize, a property owner does possess a right to use and develop his property, but that right is subject to reasonable
regulation by the state. See DeKalb Stone, 106 F.3d at 959 n.6. If the state's action is improper, then the plaintiff may state a claim
based upon the type of act that caused the deprivation of the property right. If the state uses an arbitrary or capricious legislative
act to unreasonably regulate, then a substantive due process claim will lie. See McKinney, 20 F.3d at 1557 n.9. If the state uses an
improper executive act to deprive the plaintiff of his interest, then a procedural due process claim will lie. See DeKalb Stone, 106
F.3d at 959-60. If the state goes so far that its regulation cuts through all the strands in the property owner's bundle of rights,
depriving him of all economically viable uses of his land, then a Takings Clause claim will lie. See Villas of Lake Jackson, 121 F.3d at
614.
However, Romero's facts as stated in the complaint do not support a legally cognizable cause of action, even after construing the
facts in the light most favorable to the plaintiff and examining the cause of action for what it actually is, not for what Romero names
it. See Kirby, 195 F.3d at 1289; McKinney, 20 F.3d at 1560. Therefore, Defendants' motion to dismiss four counts of the complaint
will be granted. Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendants' motion to dismiss (doc. 6) is granted as to Counts I, III, and V.
2. Plaintiff shall have up to and including June 1, 2009, to file an amended complaint to state valid claims for relief on Counts I, III,
and V. If Plaintiff chooses not to amend by this date, the claims will be dismissed with prejudice.
3. Defendants' motion to dismiss (doc. 6) is granted with prejudice as to Count IV.
DONE AND ORDERED this thirteenth day of May, 2009.
Opinion Footnotes
*fn1 Executive and adjudicative acts are grouped together for this purpose as "non-legislative" acts. For simplicity, this Order will
refer to both types of non-legislative acts as executive acts.
*fn2 The Eleventh Circuit in Villas of Lake Jackson also stated that a zoning regulation could provide the basis for a "procedural due
process claim challenging the procedures by which the regulation was adopted." 121 F.3d at 615. However, the court has since
clarified that statement, holding that for legislative acts, "property owners are generally not entitled to procedural due process"
because the legislative process itself provides all the required due process. 75 Acres, 338 F.3d at 1294; but cf. Busse v. Lee County
Fla., No. 08-13170, 2009 WL 549782, at *3 (11th Cir. March 5, 2009) (stating that a plaintiff could state a claim for procedural due
process "challenging the procedures by which a regulation was adopted," but then stating that "alleged problems with the adoption
of such acts cannot serve as the basis for a procedural due process claim").
*fn3 The Equal Protection claim is not addressed in this Order because the Defendants did not challenge Romero's Equal Protection
claim in Count II.
*fn4 As Romero points out in his response, Defendants cite the incorrect Land Development Regulation ("LDR") for the appeal
procedure. (Def.'s Mot.: 5; Pl.'s Resp.: 8.) The Court has taken judicial notice of the 549 pages of LDRs, and this Order cites the
correct LDR for the appeal.
*fn5 City of Alachua, Fla., Land Dev. Reg., available at http://www.cityofalachua.com/index.asp?Type=B_BASIC&SEC={EEF21F5E-

EFB 5-4367-850C-1AF6A0A0D38D}.
*fn6 The "LDR Administrator" is previously defined in Section 2.1.6(A)(1) as the City Manager or his designee.
*fn7 The only difference between the two counts is the omission of five paragraphs found in Count III (although reincorporated by
reference in Count IV) and the substitution of paragraph 91 from Count III for paragraph 109 in Count IV. (Compl. ¶¶ 71-112.)
20090513
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Prescott v. Alejo

March 25, 2010

v.
ORDER
This matter comes before the Court on the Defendants, A. Brian Albritton, David P. Rhodes, Sean P. Flynn, and E. Kenneth Stegeby's
(USAO Defendants) Motion to Strike Plaintiffs' Notices (Doc. # 74, 75, and 76) and for an Award of Monetary Sanctions (Doc. #80)
filed on March 9, 2010.
Federal Rule of Civil Procedure 12(f) provides that the Court may order "any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter" be stricken from a pleading. Harvey v. Home Depot U.S.A., Inc., 2005 WL 1421170 (M.D. Fla. June
17, 2005). In evaluating a motion to strike, the court must treat all well pleaded facts as admitted and cannot consider matters
beyond the pleadings. Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002). A motion to strike
will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the
parties. Harvey, 2005 WL 1421170 (citing Scelta v. Delicatessen Support Services, Inc., 57 F. Supp. 2d 1327, 1347 (M.D. Fla. 1997).
The UASO Defendants move to strike the Plaintiff's Motion for Judicial Notice of Appeal and Notice of Publications of Defendants'
Fraud (Doc.# 74), Motion for Judicial Notice of Defendants' Fraud upon the Court and Notice of Publications of Defendants' Fraud
(Doc. # 75), and Motion for Relief from Defendants' Fraud upon the Court and Notice of Publications of Defendants' Fraud (Doc. #
76), all filed on March 8, 2010, as an immaterial, impertinent and scandalous matter. The USAO Defendants further request the court
exercise its inherent authority to award sanctions against Plaintiffs Prescott and Busse.
As grounds, the USAO Defendants state that all three Motions contain irrelevant, scandalous material, and that the Plaintiffs are
merely using this case to harass any individual that has opposed them in their previous lawsuits. As an example, the Plaintiff
referred to AUSA Jennifer Corinis as "Jennifer Whore Corinis." (Doc. # 75 ¶ 15). The Plaintiff continually asserts that Judges in the
Middle District of Florida are corrupt and have participated in a conspiracy against him. The allegations appear to be based solely on
the fact that the Plaintiff received adverse rulings from judges in the Middle District of Florida and from the Eleventh Circuit. A review
of the Plaintiff's filings demonstrate that the Plaintiff's Motions are immaterial and scandalous, and do not present legal arguments
for the Court's review. Therefore, the Court finds good cause to strike the Motions.
The USAO Defendants also move the Court to impose sanctions, under Rule 11, on the Plaintiffs for bringing the Motions. The
purpose of Rule 11 sanctions is to reduce frivolous claims defenses, or motions and to deter costly meritless maneuvers.
Massengale v. Ray, 267 F.3d 1298, 1302 (11th Cir. 2001). Rule 11 requires district courts to impose appropriate sanctions, after
notice and a reasonable opportunity to respond where an attorney or party submits a pleading to the court that: (1) is not well-
grounded in fact and therefore has no reasonable factual basis; (2) is not legally tenable; or (3) is submitted in bad faith for an
improper purpose. Ricccard v. Prudential Insurance Company, 307 F.3d 1277, 1294 (11th Cir. 2002) (citing Fed. R. Civ. P. 11(b)).
The USAO Defendant's Rule 11 Motion is due to be denied for failure to comply with the Rule's requirements. First, a motion for Rule
11 sanctions must be filed separately from other motions or requests. Nicarry v. Cannaday, 2006 WL 3931449 * 3 (M.D. Fla.
December 7, 2006). Further, the motion must be served in accordance with Rule 5, but should not be presented to the court until
after opposing counsel has been given a twenty-one (21) day "safe harbor" period in which to correct or withdraw the offending
document. Id.(citing DeShiro v. Branch, 183 F.R.D. 281 (M.D.Fla.1998) (explaining in detail the "safe harbor" period). Here, the USAO
Defendant's included the Rule 11 Motion with their Motion to Strike and they fail to comply with the "safety harbor" provision. Thus
the Motion for Rule 11 Sanctions is due to be denied at this time. However, the Court cautions the Plaintiffs that future filings
containing immaterial and scandalous matters may result in sanctions being imposed.
ORDERED:
The Defendants, A. Brian Albritton, David P. Rhodes, Sean P. Flynn, and E. Kenneth Stegeby's (USAO Defendants) Motion to Strike
Plaintiffs' Notices (Doc. # 74, 75, and 76) and for an Award of Monetary Sanctions (Doc. #80) is GRANTED in part and DENIED in part.
(1) The Defendants, A. Brian Albritton, David P. Rhodes, Sean P. Flynn, and E. Kenneth Stegeby's (USAO Defendants) Motion to
Strike Plaintiffs' Notices is GRANTED. The Clerk of the Court is hereby directed to STRIKE (Docs. # 74, 75, and 76).
(2) The Defendants, A. Brian Albritton, David P. Rhodes, Sean P. Flynn, and E. Kenneth Stegeby's (USAO Defendants) Motion for Rule
11 Sanctions is DENIED.
20100325
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Busse v. Lee County

December 11, 2007
JORG BUSSE PLAINTIFF,

v.
LEE COUNTY, FLORIDA; BOARD OF LEE COUNTY COMMISSIONERS; THE LEE COUNTY PROPERTY APPRAISER; STATE OF
FLORIDA BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, STATE OF FLORIDA DEPEARTMENT OF
ENVIRONMENTAL PROTECTION, DEFENDANTS.
OPINION AND ORDER
This matter is before the Court on consideration of the Magistrate Judge's Amended Report and Recommendation (Doc. #252), filed
November 14, 2007, recommending that defendant Lee County Property Appraiser's Motion for Rule 11 Sanctions (Doc. #97) should
be granted. No objections have been filed and the time to do so has expired.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify
the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982),
cert. denied, 459 U.S. 1112 (1983). In the absence of specific objections, there is no requirement that a district judge review factual
findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or
in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in
the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno,
826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994) (Table).
After conducting an independent examination of the file and upon due consideration of the Report and Recommendation, the Court
accepts the Report and Recommendation of the magistrate judge. The Court further agrees that monetary sanctions would not be
appropriate.
ORDERED: The Amended Report and Recommendation (Doc. #252) is hereby adopted and defendant's Motion for Rule 11 Sanctions
(Doc. #97) is GRANTED as follows:
1. Plaintiff's future pleadings, motions, or filings with the Court must first be reviewed by an attorney, who will not be required to
make a formal appearance on behalf of plaintiff and plaintiff is not required to hire to represent him;
2. Plaintiff's filings must reflect affirmation that the attorney has reviewed the pleading, motion, or filing, and the document must be
signed by the attorney indicating review;
3. In the alternative, plaintiff will not be permitted to file any pleadings, motions, or miscellaneous filings without first being granted
permission from the assigned United States Magistrate Judge after review for frivolity; and
4. All pleadings, motions, or other miscellaneous filings that are not reviewed by an attorney or the Magistrate Judge will be stricken
from the record.
DONE AND ORDERED at Fort Myers, Florida, this 11th day of December, 2007.
20071211
6/15/2010 FindACase™ | Burgess v. Holmes Cou…
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Burgess v. Holmes County Board of County Commissioners
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

May 7, 2010
WANDA LOU BURGESS AND DANNY BURGESS PLAINTIFFS,

v.
HOLMES COUNTY BOARD OF COUNTY COMMISSIONERS, HOLMES COUNTY ROAD DEPARTMENT, AND DON BENTON,
DEFENDANTS.
The opinion of the court was delivered by: Richard Smoak United States District Judge
ORDER
Before me is Plaintiffs' motion for preliminary injunction (Doc. 3).
One of the elements required before a district court may grant a preliminary injunction is a showing by the movant that it has a
substantial likelihood of success on the merits of the case. Horton v. City of St. Augustine, 272 F. 3d 1318, 1326 (11th Cir. 2001).
Plaintiffs cannot satisfy this element, because it is doubtful that this case presents issues for federal jurisdiction.
A takings clause claim does not become ripe unless the state provides no remedy to compensate the landowner for the taking.
Bickerstaff Clay Products Co. v. Harris County, 89 F.3d 1481, 1490-91 (11th Cir. 1996). Florida courts have long recognized that an
inverse-condemnation remedy is available for alleged takings violations. See Busse v. Lee County, 317 Fed. Appx. 968, 972 (11th
Cir. 2009). Furthermore, Florida law provides a remedy for landowners who dispute the "dedication" of a road to the public. Fla.
Stat. § 95.361(4). Plaintiffs do not allege that they have unsuccessfully pursued the available state procedures. Thus, their takings
claim is not ripe and this Court lacks subject matter jurisdiction. Without subject matter jurisdiction, it is impossible for Plaintiffs to
succeed on the merits of the case. Therefore, the Plaintiffs have failed to satisfy the first requirement for a preliminary injunction.
Plaintiffs argue that subject matter jurisdiction is present because they are making a challenge based on the "public use clause,"
which was found to confer federal jurisdiction in another case brought by Plaintiffs' counsel, Hughes v. Holmes Co. Brd. of Co.
Comm'rs et. al., 5:03-cv-265/RV-MD. However, the Eleventh Circuit has held that reaching the "public use" issue is error when a
takings claim is not yet ripe. Bickerstaff Clay Products Co. v. Harris County, 89 F.3d 1481, 1489 n. 14 (11th Cir. 1996).
It is unnecessary to have a hearing on the factual issues of Plaintiffs' motion since Plaintiffs cannot satisfy the first element required
for a preliminary injunction--likelihood of success on the merits--without federal jurisdiction. Plaintiffs' motion for a preliminary
injunction (Doc. 3) is denied.
ORDERED on May 7, 2010.
20100507
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6/15/2010 FindACase™ | Prescott v. Lazzara
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Prescott v. Lazzara

February 6, 2009
JENNIFER FRANKLIN PRESCOTT AND DR. JORG BUSSE, PLAINTIFFS,

v.
RICHARD A. LAZZARA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Richard A. Lazzara United States District Judge
ORDER
Upon due and careful consideration of Plaintiffs' latest motions filed this day, it is ordered and adjudged that these motions, found
at dockets 24, 25, 26, 27, 28, 29, and 30 are denied as being wholly without factual or legal merit. Plaintiffs are put on notice that
any future motions having no basis in fact or law will be summarily denied by endorsed order. Plaintiffs are reminded of their
obligation to file on or before February 13, 2009, a proper response to this Court's order to show cause entered January 30, 2009,
at docket 8, failing which this case will be dismissed with prejudice and without further notice.
DONE AND ORDERED at Tampa, Florida, on February 6, 2009.
20090206
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UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA, ex rel., JORG BUSSE, et al.,

UNITED STATES OF AMERICA, et al.,

MOTION TO DISQUALIFY MAGISTRATE & NOTICE OF FRAUD ON THE COURT,

PLAINTIFFS’ ILLEGALLY SEIZED COMPLAINT AND CIVIL RICO ALLEGATIONS

alleged and conclusively proven Defendants’ pattern of racketeering activity.

DEFENDANTS’ PATTERN OF RACKETEERING ACTIVITY

1343). 18 U.S.C. § 1961(1)(B).

DEFENDANTS AGREED TO COLLECT UNLAWFUL DEBT (FAKE JUDGMENT)

3. As provided in 18 U.S.C. § 1962(c),

Ct. 3275 (1985) (footnote omitted)).

PLAINTIFFS PROVED DEFENDANTS’ PATTERN OF RACKETEERING

4. Here, the Plaintiffs were successful in establishing a "pattern of racketeering activity by

activity.” See Lincoln House, supra, 903 F.2d at 846.

DEFENDANTS’ PROVEN PATTERN OF RACKETEERING INJURED PLAINTIFFS

5. Here, Plaintiffs suffered injuries as a result of the racketeering activity, 18 U.S.C. §

the predicate acts.

664, 665 (1st Cir. 1990).

THE PLAINTIFFS ARE ENTITLED TO DAMAGES AND RELIEF

attorney's fees. 18 U.S.C. § 1964(c).

THE DEFENDANTS COUNTERFEITED JUDGMENT(S) TO DEFRAUD PLAINTIFFS

8. 18 U.S.C. § 1341 provides:

“Whoever, having devised or intending to devise any scheme or artifice to defraud,

Ed. 2d 734, 109 S. Ct. 1443 (1989).

MAGISRATE KNEW OF DEFENDANTS’ SCHEMES & FRAUD ON THE COURT

hundreds of thousands of readers. See, e.g., www.google.com; www.youtube.com;

RECORD EVIDENCE OF FRAUD ON THE COURT

justice & lawful prosecution.

U.S. MAGISTRATE KNEW OF RECORD FRAUD ON THE COURT

had seized both summons and the complaint files. Here,

raiding litigants so that they can no longer litigate.

GOVERNMENT & FBI FAILED TO COMPLY WITH THE LAW

the seizure of privileged and protected litigation files.

MAGISTRATE’S RECORD PARTIALITY PURSUANT TO 28 U.S.C. § 455

impartiality might reasonably be questioned.” § 455(a). In addition, § 455(b) provides

prejudice concerning a party, or personal knowledge of disputed evidentiary facts

lawyer or as a material witness, or where, while in government employment, he participated

in or expressed an opinion about the particular case.

(1st Cir. 1979).

MAGISTRATE’S RECORD REFUSAL TO REVIEW & UPHOLD THE RULE OF LAW

Bureau of Investigation (FBI) in September 2010.

PLAINTIFFS’ PROSECUTION WAS PRIVILEGED & FILES WERE PROTECTED

protected as a matter of law.

THE COURT DELIBERATELY DEPRIVES PLAINTIFFS OF THEIR DAY IN COURT

Rule 4(c)(1) required both “summons and complaint” to be “served”:

Here, the Magistrate entirely disregarded the seized complaint files.

in its “12/13/2010 Order”:

RECORD JUDICIAL BIAS IN FAVOR OF CORRUPT DEDFENDANTS / OFFICIALS

MAGISTRATE’S CONCLUSORY AND PREJUDICIAL CHALLENGE OF “VENUE”

U.S.C. §§ 1391, 1404.

ILLEGAL/CRIMINAL CRIMINALIZATION OF CONSTITUTIONAL PRIVILEGES

civil litigation as a “threat “, they perverted Plaintiffs’ Constitutionally guaranteed privileges

and rights just like despotic regimes.

of this Court to hear this case are not even at issue.

30. Pursuant to Fed.R.Civ.P. 4(d)(5):

PLAINTIFFS WERE ENTITLED TO RELIEF AND THE RETURN OF THEIR FILES

PLAINTIFFS AGAIN OBJECT TO JUDICIAL FARCE OF “90 DAYS”

mystery in the “12/13/2010 Order”.

PREJUDICIAL “12/13/2010 MAGISTRATE’S ORDER”

33. On 12/13/2010, U.S. Magistrate Judge Landya B. McCafferty “ordered”:

seizure, retaliation, and racketeering.

MAGISTRATE KNEW OF 09/08/2010 FBI SEIZURE OF PLAINTIFFS’ COMPUTERS