Opinion

Thomas v. Hillsborough County Sheriff's Office

Court
District Court, M.D. Florida
Filed
Sep 2, 2021
Cited by
0 cases
Authority
More cited than 19.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BENJAMIN THOMAS,

Plaintiff, Case No. 8:20-cv2756-CEH-AAS

v.

HILLSBOROUGH COUNTY SHERIFF’S

OFFICE,

Defendant.

_______________________________/

ORDER

This matter is before the Court on Defendant’s Motion to Dismiss (Doc. 10).

Chad Chronister, in his capacity as Sheriff of the Hillsborough County Sheriff’s Office,

moves to dismiss Plaintiff’s Complaint for naming the incorrect Defendant and for

failing to state a claim under federal or Florida law. Plaintiff filed a response in

opposition. Doc. 12. The Court, having considered the motion and being fully advised

in the premises, will grant Defendant’s Motion to Dismiss.

I. BACKGROUND1

Plaintiff, Benjamin Thomas, proceeding pro se, brought this action in state court

against the Hillsborough County Sheriff’s Office (“HCSO”), seeking an injunction,

court costs, and damages. Plaintiff sues the HCSO for alleged violations under the

1 The following statement of facts is derived from the Plaintiff’s Complaint (Doc. 1-1), the

allegations of which the Court must accept as true in ruling on the instant motion, See Linder

v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v. Latin

Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th Cir. 1983).

False Claims Act, 18 U.S.C. § 3729; under the Fifth Amendment Double Jeopardy

clause; and under 18 U.S.C. § 242 for the deprivation of his rights under color of law.

Doc. 1-1 at 5, ¶¶ 3–5.2 Plaintiff further alleges state law claims for defamation by

implication and defamation per se. Id. at 4, ¶¶ 1–2.

In his Complaint Plaintiff vaguely references Risk Protection Orders entered

against him following the HCSO’s use of false information about him, portraying

Plaintiff as a convicted criminal when there was no conviction, and wrongfully

accusing Plaintiff of being a threat to himself or others. Doc. 1-1 at 7–8.

In October 2018, the HCSO petitioned the state court for a Risk Protection

Order, resulting in the seizure of Plaintiff’s firearms and ammunition, which Plaintiff

alleges was in violation of his Second Amendment constitutional right. Id. at 7–8.

Plaintiff alleges the Defendant improperly utilized discovery from a pending criminal

case involving the Plaintiff and misrepresented facts to portray Plaintiff as having

unlawfully used or possessed a firearm. Id. Plaintiff further alleges Defendant

portrayed Plaintiff as having been convicted of a crime even though the charges were

“Nol Pros.ed [sic] by the state.” Id.

In October 2019, Defendant “filed and published another claim against the

Plaintiff accusing the Plaintiff of being a threat to himself or to other[s] due to the

Plaintiff’s mental state.” Id. at 8, ¶ 3. Plaintiff alleges the HCSO included false

information and omitted facts to portray Plaintiff as mentally unstable and a potential

2 Because Plaintiff repeats paragraph numbering in his complaint, the Court uses the

CM/ECF docketing page numbers followed by the paragraph number from the cited page.

danger to himself or others. Id. Plaintiff claims he has no history of mental instability,

self-harm, or reckless or dangerous behavior. Id. Plaintiff also alleges he has been

psychologically abused by the HCSO during previous, traumatic altercations and is

fearful of Defendant. Id.

Plaintiff alleges that information surrounding the claims made against him were

“published” by the HCSO and have caused him to be treated differently and more

aggressively by all branches of law enforcement. Id. at 9, ¶ 4. Plaintiff asserts such

publications have caused him to be treated differently by the public, affecting his

employment, housing opportunities, and access to certain venues. Id. at 9, ¶¶ 5–6.

Plaintiff alleges that the HCSO published the claims against him with malice and

without a factual basis to justify them. Id. at 9, ¶ 7.

Plaintiff filed suit in state court on October 14, 2020. Doc. 1-1. Defendant timely

removed the action to this Court, based on the Court’s original jurisdiction under 28

U.S.C. § 1331. Doc. 1. The instant motion followed. Doc. 10.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a

“short and plain statement of the claim showing that the pleader is entitled to relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels,

conclusions and formulaic recitations of the elements of a cause of action are

insufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Furthermore, mere naked assertions are not enough. Id. A complaint must contain

sufficient factual matter, which, if accepted as true, would “state a claim to relief that

is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(citation omitted). The court, however, is not bound to accept as true a legal conclusion

stated as a “factual allegation” in the complaint. Id.

Pleadings from pro se litigants are held to a less stringent standard than pleadings

drafted by attorneys. Tannenbaum v. United States¸148 F.3d 1262, 1263 (11th Cir. 1998).

However, they still must meet minimal pleading standards. Pugh v. Farmers Home

Admin., 846 F. Supp. 60, 61 (M.D. Fla. 1994).

III. DISCUSSION

Chad Chronister, in his official capacity as Sheriff of HCSO (“Sheriff”), moves

to dismiss Plaintiff’s Complaint for failure to state any cognizable claim against him.

Doc. 10. The Court agrees, and Plaintiff’s Complaint will be dismissed with leave to

amend.

A. Procedural Deficiencies

1. Improperly Named Defendant

Plaintiff named the HCSO as the party Defendant, which is an improper party.

In Florida, a sheriff’s office is not deemed to be a legal entity with the capacity to be

sued. Faulkner v. Monroe Cty. Sheriff's Dep't, 523 F. App’x 696, 701 (11th Cir. 2013).

Thus, the Sheriff is correct that Plaintiff has named the wrong party. To bring a claim

against the HCSO, Plaintiff must sue Chad Chronister, in his official capacity as the

Sheriff of HCSO. Because the proper party to name in a civil action against a Florida

sheriff’s office is the Sheriff in his legal capacity, the Complaint is due to be dismissed

against the HCSO.

2. Shotgun Pleading

Plaintiff’s Complaint also fails because it is a shotgun pleading. “A complaint

that fails to articulate claims with sufficient clarity to allow the defendant to frame a

responsive pleading constitutes a ‘shotgun pleading.’” Lampkin-Asam v. Volusia Cty.

Sch. Bd., 261 F. App’x 274, 277 (11th Cir. 2008) (citation omitted). The Eleventh

Circuit has repeatedly condemned the use of shotgun pleadings for “imped[ing] the

administration of the district courts’ civil docket.” PVC Windoors, Inc. v. Babbitbay Beach

Constr., N.V., 598 F.3d 802, 806 n. 4 (11th Cir. 2010). Shotgun pleadings require the

court to sift through rambling and often incomprehensible allegations in an attempt to

separate the meritorious claims from the unmeritorious, resulting in a “massive waste

of judicial and private resources.” Id. (citation omitted). The Eleventh Circuit thus has

established that a shotgun pleading is an unacceptable form of establishing a claim for

relief.

Four general types of shotgun pleadings have been identified by the courts.3

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322–23 (11th Cir. 2015).

3 “The most common type . . . is a complaint containing multiple counts where each count

adopts the allegations of all preceding counts, causing each successive count to carry all that

came before and the last count to be a combination of the entire complaint. The next most

common type . . . is guilty of the venial sin of being replete with conclusory, vague, and

“The unifying characteristic of all types of shotgun pleadings is that they fail to one

degree or another, and in one way or another, to give the defendants adequate notice

of the claims against them and the grounds upon which each claim rests.” Id. at 1323

(citations omitted).

Relevant here, Plaintiff’s Complaint fails to separate each cause of action or

claim for relief into a different count. Rather, the Complaint comingles all his claims

under the headings “Statement of Claim” and “Factual Allegations.” Under the rules

and in order to promote clarity, each claim founded on a separate transaction or

occurrence must be stated in a separate count. Fed. R. Civ. P. 10(c).

B. Federal Claims

In conclusory and vague fashion, Plaintiff asserts various federal claims against

Defendant, most of which are inapplicable on the alleged facts. Further, as the Sheriff

asserts in his motion to dismiss, Plaintiff fails to plead any ultimate facts to support the

federal claims alleged.

First, Plaintiff alleges Defendant violated the False Claims Act, 31 U.S.C. §

3729(a)(1)(B) (“FCA”). To state a claim under the FCA, a plaintiff must allege that

because of false statements, government funds were used to pay a false or fraudulent

claim. Allison Engine Co. v. U.S. ex rel. Sanders, 553 U.S. 662, 668 (2008). By way of

immaterial facts not obviously connected to any particular cause of action. The third type of

shotgun pleading is one that commits the sin of not separating into a different count each

cause of action or claim for relief. Fourth, and finally, there is the relatively rare sin of

asserting multiple claims against multiple defendants without specifying which of the

defendants are responsible for which acts or omissions, or which of the defendants the claim

is brought against.” Weiland, 792 F.3d at 1321–23.

example, an FCA claim arises in the context of a health care provider submitting

fraudulent claims to be paid by Medicare or Medicaid. There are no allegations here

of fraudulent claims presented to the government for payment. Nothing in Plaintiff’s

allegations indicate any relevance or applicability of the FCA. Accordingly, his claim

under the FCA is dismissed.

Next, Plaintiff alleges Defendant violated his constitutional right under the Fifth

Amendment’s “Double Jeopardy” clause, which guarantees that no person shall be

put in jeopardy of life or limb twice for the same offense. U.S. Const. amend. V. This

protection arises in the context of threatened criminal punishment in successive

proceedings. Hudson v. United States, 522 U.S. 93, 98–99 (1997) (citing Missouri v.

Hunter, 459 U.S. 359, 366 (1983)). The present action is a civil matter, and thus the

prohibitions against criminal double jeopardy are wholly irrelevant. This claim is due

to be dismissed.

In Plaintiff’s final federal claim, he alleges Defendant, in violation of 18 U.S.C.

§ 242 (1996), deprived him of his constitutional right to bear arms. Section 242 of Title

18 criminalizes the willful deprivation of a person’s rights or privileges while acting

under the color of law. Id. Specifically, Section 242 provides:

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person in any

State, . . . to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or laws

of the United States, . . . shall be fined under this title or

imprisoned not more than one year, or both.

18 U.S.C. § 242. Again, the instant action is a civil matter, and thus, § 242 does not

apply.

To the extent Plaintiff intended to assert an action under 42 U.S.C. § 1983,

which provides for a civil remedy against a person who deprives another of a civil

right, privilege or immunity under the color of state law, his claim still fails. Plaintiff

pleads no ultimate facts to support such claim.

To state a Section 1983 claim against a governmental entity such as Defendant,

a plaintiff must plead that some municipal policy or custom was the driving force

causing the constitutional deprivation. Seegmiller v. Sch. Bd. of Collier Cty., No. 2:15-CV-

87-FTM-38DNF, 2015 WL 3604608, at 3 (M.D. Fla. June 7, 2015). Specifically, a

plaintiff must allege: (1) a violation of some constitutional right; (2) that a purposeful

indifference to that constitutional right resulted from policy or custom within the

municipality; and (3) the violation was caused by that policy or custom. McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Plaintiff offers conclusory statements,

without more, that the HCSO deprived him of his constitutional rights. Plaintiff has

not identified the existence of a HCSO policy or custom, let alone one that resulted in

the deprivation of his constitutional rights.

C. State Law Claims

Plaintiff asserts state law claims against Defendant for defamation by

implication and defamation per se. A plaintiff may pursue a defamation per se claim

under a theory of libel per se or slander per se depending on the facts of the case. Klayman

v. Jud. Watch, Inc., 22 F. Supp. 3d 1240, 1247 (S.D. Fla. 2014), aff’d (11th Cir. Feb. 17,

2015). “Slander” typically refers to defamatory spoken words, whereas “libel” pertains

to written statements that are defamatory. See Dunn v. Air Line Pilots Ass’n, 193 F.3d

1185, 1191 (11th Cir.1999) (citation omitted). Here, Plaintiff appears to be challenging

allegedly defamatory statements made by the HCSO in connection with its petition for

a Risk Protection Order. Doc. 1-1 at 7, 12–15.4

Under Florida law, a plaintiff states a cause of action for defamation by alleging:

(1) publication; (2) falsity; (3) the actor was negligent or acting with knowledge or

reckless disregard as to the falsity of the publication; (4) damages; and (5) the statement

was defamatory. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).

Defamation by implication “applies in circumstances where literally true statements

are conveyed in such a way as to create a false impression.” Id. at 1108. A published

statement is libelous per se if: “(1) it charges that a person has committed an infamous

crime; (2) it charges a person with having an infectious disease; (3) it tends to subject

one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in

his trade or profession.” Richard v. Gray, 62 So. 2d 597, 598 (Fla.1953) (en banc)

(citations omitted).

Defendant argues that Plaintiff fails to state a claim for defamation because he

does not allege the Sheriff “published a false statement.” Doc. 10 at 8. In his

Complaint, Plaintiff alleges in conclusory fashion that Defendant “filed and

4 Plaintiff does not specifically reference a “Risk Protection Order” in the Complaint, but he

attaches as exhibits to the Complaint certain state court filings related to the HCSO’s petitions for

Risk Protection Orders. See Docs. 1-1 at 12–15.

published” claims against the Plaintiff in October 2018 and October 2019. He does not

specifically reference the Risk Protection Orders in his Complaint, nor does he allege

any ultimate facts as to how the claims were published and to whom. Additionally, he

does not plead ultimate facts, as opposed to conclusory statements, that the claims

were libelous or created a false impression. To state a claim, Plaintiff’s allegations must

contain more than conclusory allegations or a formulaic recitation of the elements of

a claim. See Iqbal, 556 U.S. at 677–78. As such, Plaintiff fails to state a claim for

defamation per se or defamation by implication, and his state law claims are due to be

dismissed.

D. Judicial Notice and Absolute Immunity

The Sheriff additionally argues that even if Plaintiff properly pleaded his

defamation claims, Florida’s litigation privilege provides absolute immunity for any

statements made by the HCSO in a judicial proceeding. Doc. 10 at 9. In support of his

argument, the Sheriff requests the Court take judicial notice, pursuant to Fed R. Evid.

201(c)(2), of the state court Risk Protection Order proceedings, Case No. 18-MH-

005704, in the Thirteenth Judicial Circuit for Hillsborough County, Florida.

Courts may take judicial notice of publicly filed documents, including from

other litigation, at the Rule 12(b)(6) stage. U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d

805, 812 n.4 (11th Cir. 2015) (citing Fed. R. Evid. 201; Lozman v. City of Riviera Beach,

713 F.3d 1066, 1075 n.9 (11th Cir. 2013)). “A district court may take judicial notice of

an adjudicative fact that is both ‘not subject to reasonable dispute’ and either (1)

‘generally known within the trial court’s territorial jurisdiction’ or (2) ‘can be

accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.’” Grayson v. Warden, Comm’r, Ala. Dep’t of Corr., 869 F.3d 1204, 1224–25

(11th Cir. 2017) (quoting Fed. R. Evid. 201(b)). Pursuant to Rule 201(c)(2), the Court

“must take judicial notice if a party requests it and the court is supplied with the

necessary information.” However, “even though a court may take judicial notice of a

document filed in another court . . . to establish the fact of such litigation and related

filings, a court cannot take judicial notice of factual findings of another court.”

Grayson, 869 F.3d at 1225 (citations and internal quotations omitted).

Specifically, the Sheriff requests the Court take judicial notice of the state court

Risk Protection Order proceeding and the documents from that proceeding attached

as exhibits to his motion to dismiss. Since the documents filed by the Sheriff are court

documents and, as such, are matters of public record whose authenticity cannot

reasonably be questioned, the Court will take judicial notice of those documents (Doc.

10-1, 10-2, 10-3, 10-4) and the occurrence of those proceedings in state court Case No.

18-MH-005704, in the Circuit Court of the Thirteenth Judicial Circuit for Hillsborough

County, Florida. See Horne v. Potter, 392 F. App’x 800, 802 (11th Cir. 2010) (district

court properly took judicial notice of documents filed in related litigation, which were

public records that were “not subject to reasonable dispute” because they were

“capable of accurate and ready determination by resort to sources whose accuracy

could not reasonably be questioned.”) (citations omitted). However, the Court does

not take judicial notice of any factual findings, arguments, “admissions,” or legal

conclusions advanced within these documents or proceedings.

The Sheriff urges that absolute immunity bars Plaintiff’s defamation claims

because the alleged statements were made in the context of the state-court judicial

proceedings of which he requests the Court take judicial notice. It is well-settled under

Florida law that absolute immunity against a civil action applies to statements made

during judicial proceedings, as participants in litigation must be able to communicate

freely and use their best judgment in the prosecution or defense of a lawsuit without

the fear of being sued. Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1274

(11th Cir. 2004). “The privilege initially developed to protect litigants and attorneys

from liability for acts of defamation but has since been extended to cover all acts related

to and occurring within judicial proceedings.” Id. (citation omitted).

Under Florida law, the litigation privilege is an affirmative defense that may not

properly be considered on a motion to dismiss unless it is abundantly clear that “‘the

complaint affirmatively and clearly shows the conclusive applicability’ of the defense

to bar the action.” Id. at 1275–77 (11th Cir. 2004) (applying Florida law to

supplemental state-law claims adjudicated in federal court) (citations omitted). Indeed,

the Sheriff is correct that statements made by members of the HCSO during judicial

proceedings would likely be protected by the litigation privilege. However, on a

motion to dismiss, the applicability of the privilege must appear clearly from the

allegations of the Complaint. Because the Court has determined that Plaintiff’s

allegations fail to state a defamation claim as they are vague and conclusory and do

not allege ultimate facts reflecting how the claims were published and to whom, the

Court cannot say that the Complaint “affirmatively and clearly” shows the

applicability of the privilege. Thus, the Court cannot conclude at this procedural

juncture that Florida’s litigation privilege applies to provide absolute immunity to the

Sheriff for statements made by the HCSO.

E. Leave to Amend

“[A] district court’s discretion to dismiss a complaint without leave to amend is

‘severely restrict[ed]’ by Fed. R. Civ. P. 15(a), which directs that leave to amend ‘shall

be freely given when justice so requires.’” Thomas v. Town of Davie, 847 F.2d 771, 773

(11th Cir. 1988) (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir.

1981)). “In the absence of any apparent or declared reason—such as undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies

by amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, futility of amendment, etc.—the leave sought should,

as the rules require, be ‘freely given.’” Garfield v. NDC Health Corp., 466 F.3d 1255,

1270 (11th Cir. 2006) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Nothing on

the record before the Court suggests undue delay, bad faith, or dilatory motive on the

part of Plaintiff, nor that the Sheriff will be unduly prejudiced if the Court allows

Plaintiff the opportunity to amend his complaint. Therefore, the Court will allow

Plaintiff the opportunity to file an Amended Complaint.

For the reasons stated above, it is hereby

ORDERED:

1. The Court takes judicial notice of the existence of a proceeding in state

court Case No. 18-MH-005704, in the Circuit Court of the Thirteenth Judicial Circuit

for Hillsborough County, Florida, and of Docs. 10-1, 10-2, 10-3, and 10-4 attached to

the Sheriffs motion to dismiss. However, the Court does not take judicial notice of

any factual findings, arguments, “admissions,” or legal conclusions advanced within

those documents or proceedings.

2. Defendant’s Motion to Dismiss (Doc. 10) is GRANTED. Plaintiff's

Complaint is DISMISSED, without prejudice, for failing to state a claim and for

being a shotgun pleading.

3. Plaintiff is granted leave to file an Amended Complaint, which corrects

the deficiencies addressed in this Order. The Amended Complaint shall be filed within

twenty-one (21) days of the date of this order. Failure to file an Amended Complaint

within the time provided will result in dismissal of this action without further notice.

DONE AND ORDERED in Tampa, Florida on September 2, 2021.

Chaken -_— Aiwarda Mn TDA pl el

Charlene Edwards Honeywell

United States District Judge

Copies to:

Benjamin Thomas, pro se

Counsel of Record

14

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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