# Newcome v. Hernando County Sheriff's Office

> District Court, M.D. Florida · February 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10109387

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JAMES R. NEWCOME and
UMAMA J. NEWCOME,

Plaintiffs,

v. Case No. 8:21-cv-2171-TPB-TGW

HERNANDO COUNTY
SHERIFF’S OFFICE, et al.,

Defendants.
________________________________/

ORDER GRANTING IN PART AND DENYING WITHOUT
PREJUDICE IN PART DEFENDANTS’ MOTIONS TO DISMISS

This matter is before the Court on “Defendant, Hernando County Sheriff’s
Office Amended Motion to Dismiss the Plaintiffs’ Complaint with Memorandum of
Law” (Doc. 31) and “Defendants’ Amended and Consolidated Motions to Dismiss the
Plaintiffs’ Complaint with Memorandum of Law” (Doc. 32), both filed on October 29,
2021. Plaintiffs James R. Newcome and Umama J. Newcome filed responses in
opposition to the motions on November 19, 2021 (Docs. 36; 37), along with an
amended response on November 20, 2021 (Doc. 38). After reviewing the motions,
responses, court file, and the record, the Court finds as follows:
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
short and plain statement of the claim showing the [plaintiff] is entitled to relief.”
Fed. R. Civ. P. 8(a). “Although Rule 8(a) does not require ‘detailed factual
allegations,’ it does require ‘more than labels and conclusions’; a ‘formulaic
recitation of the cause of action will not do.’” Young v. Lexington Ins. Co., No. 18-
62468, 2018 WL 7572240, at *1 (S.D. Fla. Dec. 6, 2018), report and recommendation

adopted, No. 18-62468-CIV, 2019 WL 1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In order to survive a motion to dismiss,
factual allegations must be sufficient “to state a claim for relief that is plausible on
its face.” Twombly, 550 U.S. at 555.
When deciding a Rule 12(b)(6) motion, the court’s scope of review is limited to
the four corners of the complaint. St. George v. Pinellas County, 285 F.3d 1334,

1337 (11th Cir. 2002). However, a document attached to the pleading as an exhibit
may be considered if it is central to the plaintiff’s claim and the authenticity of the
document is not challenged. See Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364,
1369 (11th Cir. 1997) (“where the plaintiff refers to certain documents in the
complaint and those documents are central to the plaintiff’s claim, then the Court
may consider the documents part of the pleadings for purposes of Rule 12(b)(6)
dismissal”). Furthermore, when reviewing a complaint for facial sufficiency, a court

“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint
in the light most favorable to the [p]laintiff.” Rickman v. Precisionaire, Inc., 902 F.
Supp. 232, 233 (M.D. Fla. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
“[A] motion to dismiss should concern only the complaint’s legal sufficiency and is
not a procedure for resolving factual questions or addressing the merits of the
case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, No. 8:09-cv-1264-
T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).
As Plaintiffs in this case are proceeding pro se, the Court more liberally

construes the pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018).
However, a pro se plaintiff must still conform with procedural rules and the Court
does not have “license to act as de facto counsel” on behalf of a pro se plaintiff.
United States v. Padgett, 917 F.3d 1312, 1317 (11th Cir. 2019).
Analysis
Claims Against Hernando County Sheriff’s Office

Plaintiffs have named the Hernando County Sheriff’s Office as a defendant in
this case. However, the Sheriff’s Office is not a legal entity subject to suit. See, e.g.,
Faulkner v. Monroe County Sheriff’s Dept., 523 F. App’x 696, 701 (11th Cir. 2013);
Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Fulkerson v. Russell, No.
3:17-cv-560-J-34JRK, 2017 WL 6041954, at *2-3 (M.D. Fla. Dec. 6, 2017) (collecting
cases). Consequently, the motion is granted as to this ground, and all claims
against the Hernando County Sheriff’s Office are dismissed. The Court will grant

leave to amend so that Plaintiffs may sue the proper party.1

1 When a plaintiff sues the sheriff in his official capacity, any claims against individual
defendants in their official capacities are duplicative. This is problematic because it serves
no proper purpose and may confuse a jury. See Busby v. City of Orlando, 931 F.2d 764, 776
(11th Cir. 1991); C.P. by and through Perez v. Collier Cty., 145 F. Supp. 3d 1085, 1091 (M.D.
Fla. 2015). Plaintiffs have been given leave to amend. If they choose to sue Sheriff
Nienhuis in his official capacity in the amended complaint, they should take care to not sue
any individual officers in their official capacities.
Shotgun Pleading
Defendants argue that the complaint should be dismissed as a shotgun
pleading. A shotgun pleading is one where “it is virtually impossible to know which

allegations of fact are intended to support which claim(s) for relief” and the
defendant therefore cannot be “expected to frame a responsive pleading.” See
Anderson v. Dist. Bd. Of Trustees of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th
Cir. 1996). The Eleventh Circuit has identified four primary types of shotgun
pleadings:
(1) Complaints 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;

(2) Complaints that do not commit the mortal sin of re-alleging all
preceding counts but are guilty of the venial sin of being replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action;

(3) Complaints that commit the sin of not separating into a
different count each cause of action or claim for relief; and

(4) Complaints that assert multiple claims against multiple
defendants without specifying which of the defendants are
responsible for which actions or omissions, or which of the
defendants the claim is brought against.

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir.
2015). A district court must generally permit a plaintiff at least one opportunity to
amend a shotgun complaint’s deficiencies before dismissing the complaint with
prejudice. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018).
In many of the counts, Plaintiffs improperly mix several different causes of
action and/or claims for relief. For instance, Count III sets forth what appears to be
two different claims – a Fourth Amendment violation and a Fifth Amendment

violation. Count VII sets out claims for both intentional and negligent infliction of
emotional distress. This improper mixing of claims makes it difficult for
Defendants to respond accordingly and present defenses, and for the Court to
appropriately adjudicate this case.
The complaint also asserts “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.” See Weiland,
792 F.3d at 1323. For example, it is unclear whether Count 2 is only against Sgt.
Adkins because he is the only officer referenced factually in this count. It is also
unclear if this count is alleged against Sgt. Adkins in his individual or official
capacity.2 Count 4 alleges a Fourteenth Amendment violation against “members of
the Hernando County Sheriff’s Office, which would include Officers and possibly
other employees” without identifying these officers or indicating whether the claims

2 In § 1983 cases, a plaintiff should explicitly identify the capacity in which each defendant
is being sued. “The main concern of a court in determining whether a plaintiff is suing
defendants in their official or individual capacity is to ensure the defendants in question
receive sufficient notice with respect to the capacity in which they are being sued.” Id.
Typically, a plaintiff gives notice by expressly stating in the complaint whether a defendant
is being sued in his individual or official capacity. This distinction is important in § 1983
cases since official capacity claims are substantively different from individual capacity
claims. These differences are crucial to the defendants’ ability to identify and properly
respond to the claims and assert meritorious defenses, as well as the Court’s ability to
appropriately adjudicate the case. Because the Court is granting Plaintiffs the opportunity
to amend their complaint, any amended complaint should specifically delineate in which
capacity Plaintiffs are suing each of the defendants in each count.
are against any officers in their individual or official capacities. In some of the
counts, it is even unclear which plaintiff is bringing that claim.
In light of Plaintiffs’ pro se status, the Court will grant leave to amend. Any

amended complaint should indicate – at the top of each count – which plaintiff is
suing which defendant(s) in that count. Plaintiffs should not improperly mix
together any causes of action. Each count should also specifically identify the acts
or omissions of each named defendant.
Failure to State a Claim
Defendants argue that each of Plaintiffs’ federal and state claims are subject

to dismissal for failing to state a claim.
§ 1983 Claims
Defendants contend that Plaintiffs have failed to sufficiently plead any §
1983 claims,3 citing to Monell v. New York City Dept of Social Servs., 436 U.S. 658
(1978). Under Monell, “[l]ocal governing bodies . . . can be sued directly under
§ 1983 for monetary, declaratory, or injunctive relief . . . pursuant to a
governmental ‘custom’ even though such a custom has not received formal approval

through the body’s official decisionmaking channels.” Id. at 690. A municipality can
only be held liable, however, where “action pursuant to official municipal policy of
some nature caused a constitutional tort.” Id. To put it plainly, a municipality

3 Due to the shotgun nature of the complaint, it is difficult to ascertain which counts
actually assert § 1983 claims. The Hernando County Sheriff’s Office identified possible §
1983 claims in Counts 1, 2, 3, 4, 5, 6, 8, and 9 of the complaint.
cannot be liable under § 1983 on a respondeat superior theory solely because it
employs a tortfeasor. Id.
“Supervisor liability arises only ‘when the supervisor personally participates

in the alleged constitutional violation or when there is a causal connection between
the actions of the supervising official and the alleged constitutional deprivation.’”
Gross v. Jones, No. 3:18-cv-594-J-39PDB, 2018 WL 2416236, at *4 (M.D. Fla. May
29, 2018) (quoting Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007)).
Consequently, “to impose § 1983 liability on a local government body, a plaintiff
must show: (1) that his constitutional rights were violated; (2) that the entity had a

custom or policy that constituted deliberate indifference to that constitutional right;
and (3) that the policy or custom caused the violation.” Scott v. Miami-Dade
County, No. 13-CIV-23013-GAYLES, 2016 WL 9446132, at *3 (S.D. Fla. Dec. 13,
2016).
To demonstrate a policy or custom, “it is generally necessary to show a
persistent and wide-spread practice; random acts or isolated incidents are
insufficient.” Id. at *4. The requisite causal connection can be established “when a

history of widespread abuse puts the responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do so.” Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003) (internal quotation omitted). “Alternatively, the causal
connection may be established when a supervisor’s custom or policy results in
deliberate indifference to constitutional rights or when facts support an inference
that the supervisor directed the subordinates to act unlawfully or knew the
subordinates would act unlawfully and failed to stop them from doing so.” Id.
(internal quotation and citation omitted). Significantly, “the Eleventh Circuit has
repeatedly held that without notice of a need to train or supervise in a particular

area, a municipality is not liable as a matter of law for any failure to train or
supervise.” Scott, 2016 WL 9446132, at *4.
Upon review, the Court finds that Plaintiffs do not sufficiently allege that
any constitutional violations were caused by the customs, policies, or procedures of
the Sheriff. In fact, Plaintiffs do not identify any customs, policies, or procedures at
issue. Plaintiffs recount only their own alleged incident and offer no other facts

that would support an inference that the Sheriff had an official policy or widespread
custom that caused Plaintiffs’ injuries. See Campbell v. City of Jacksonville, No.
3:17-cv-914-J-34JRK, 2018 WL 1463352, at *16 (M.D. Fla. Mar. 23, 2018)
(dismissing § 1983 claim after concluding that the plaintiff failed to identify any
actual policies of the defendant, and in describing only the single incident, failed to
offer any facts supporting the existence of a widespread custom); Cooper v. City of
Starke, Fla. No. 3:10-cv-280-J-34MCR, 2011 WL 1100142, at *8 (M.D. Fla. Mar. 23,

2011) (dismissing § 1983 claim after concluding that “boilerplate and conclusory
allegations of municipal policy or practice – devoid of factual development – are
insufficient to state a § 1983 claim” where the plaintiffs failed to identify any actual
policies or decision makers and failed to offer any facts to support the existence of a
widespread custom, and instead only described the single incident involving
plaintiffs); Reyes v. City of Miami Beach, No. 07-22680-CIV, 2007 WL 419906, at *6
(S.D. Fla. Nov. 26, 2007) (acknowledging that although it is generally true that
there is no heightened pleading standard for §1983 claims against municipalities,
plaintiffs still must offer factual allegations that the municipality had an official

policy or widespread custom that was directly responsible for their injuries in order
to raise a claim above the speculative level).
The complaint is woefully inadequate in stating any § 1983 claims.
Accordingly, the motion is granted as to this ground, and all § 1983 claims are
dismissed, with leave to amend. In an amended complaint, in addition to
appropriately separating their claims and causes of action, Plaintiffs should set

forth sufficient allegations that would support their § 1983 claims based on a
custom, policy, or practice of a municipal defendant. Plaintiffs should explain how a
specific custom or policy was the moving force behind any alleged violations of their
constitutional rights. This direction applies to each § 1983 claim that Plaintiffs
seek to assert.
Count 1 (Violation of Fourth Amendment)

In Count 1, Plaintiffs appear to claim that their Fourth Amendment rights
were violated when officers tear-gassed their home or arrested them without a
warrant. This count seems to combine two separate and distinct Fourth
Amendment violations – a seizure based on the use of force and a seizure based on
an unlawful arrest. In the amended complaint, these should be separated into two
distinct counts. Moreover, although Plaintiffs allege that they were arrested
without a warrant or exigent circumstances, they fail to allege that they were
arrested without probable cause. As such, Count 1 is dismissed without prejudice,
with leave to amend.
Count 2 (Violation of Fourth Amendment through Coercion)

In Count 2, Plaintiffs appear to allege a Fourth Amendment violation based
on “coercion.” These claims seem to be based on Plaintiffs’ warrantless arrests and
are therefore duplicative of Plaintiffs’ claims in Count 1. To the extent that
Plaintiffs are attempting to assert any claims under § 760.51, F.S., this statute is
inapplicable to this action.4 Likewise, an alleged violation of Article I section 12 of
the Florida Constitution does not provide for a private right of action here. Count 2

is dismissed without prejudice, with leave to amend.
Count 3 (Violation of Fourth and Fifth Amendment)

In Count 3, Plaintiffs appear to allege a violation of Plaintiffs’ Fourth and
Fifth Amendment rights. The Court begins by noting that it is unclear whether this
count is brought on behalf of both Plaintiffs or is limited to Mrs. Newcome. There
are no facts alleged concerning any violations of Mr. Newcome’s rights. In any
amended complaint, Plaintiffs should clearly articulate – in the title of each count –
which plaintiff is bringing that claim against which defendant(s).
To the extent that Plaintiffs allege that any defendant violated Mrs.
Newcome’s Fourth Amendment rights based on her warrantless arrest, it appears
that this claim is duplicative of the claims in Counts 1 and 2. To the extent that
Plaintiffs assert a Fifth Amendment violation, the nature of that violation is

4 The statute provides that the Attorney General may bring a civil action for violations of
constitutional rights in the name of the state and on behalf of the injured person.
unclear. For instance, Plaintiffs do not allege that Mrs. Newcome was “compelled in
any criminal case to be a witness against [herself].” As such, the Court concludes
that Plaintiffs have failed to allege a violation of the Fifth Amendment. Count 3 is

dismissed without prejudice, with leave to amend.
Count 4 (Violation of Fourteenth Amendment)

In Count 4, Plaintiffs appear to assert a § 1983 claim against various
unspecified defendants based on an alleged Fourteenth Amendment violation of
Plaintiffs’ due process rights. Plaintiffs specifically allege that “Officers and
possibly other employees” of the Hernando County Sheriff’s Office illegally withheld
exculpatory evidence in violation of Brady v. Maryland.5 The Court notes that it is
unclear whether this count is brought on behalf of both Plaintiffs or is limited to Mr.
Newcome. In any amended complaint, Plaintiffs should clearly articulate – in the
title of each count – which plaintiff is bringing that claim against which
defendant(s).
The nature of the alleged constitutional violation is also unclear. Plaintiffs
appear to allege unspecified persons destroyed or withheld evidence from the

prosecutor and/or Mr. Newcome’s attorneys. However, Plaintiffs later allege that
the evidence was presented and seem to only take issue with when they received
the evidence. Plaintiffs do not allege that the unspecified officers and employees
had any duty to provide evidence. Ultimately, Plaintiffs do not provide sufficient

5 373 U.S. 83 (1963).
factual material to demonstrate a constitutional violation. Count 4 is dismissed
without prejudice, with leave to amend.
Count 5 (Violation of Fourteenth & Second Amendment)

In Count 5, Plaintiffs appear to allege that officers violated their Fourteenth
and Second Amendment rights by “fabricating” a crime and “lying” in a warrant
and/or risk protection order, which resulted in the removal of firearms from the
residence for one year. It is unclear whether this count is brought on behalf of both
Plaintiffs or is limited to Mr. Newcome. In any amended complaint, Plaintiffs
should clearly articulate – in the title of each count – which plaintiff is bringing that

claim against which defendant(s).
As for the remainder of the claim, the nature of the constitutional violation is
again unclear. It is unclear whether Plaintiff’s Second Amendment attack is
intended to be a facial or as-applied challenge. Certainly, the Second Amendment
provides a pre-existing individual right to keep and bear arms. See, e.g., District of
Columbia v. Heller, 554 U.S. 570, 592 (2008). Yet, the Second Amendment is not
absolute. See id. at 626-27 (“[N]othing in our opinion should be taken to cast doubt

on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and qualifications
on the commercial sale of arms.”).
The crux of the allegations appears to focus on an alleged set-up to have Mr.
Newcome’s bail revoked and possibly add gun charges, and there is ample
discussion of where a certain firearm was reported to be located but little else.
Plaintiffs have not adequately stated any claim for a constitutional violation in this
count. Accordingly, Count 5 is dismissed without prejudice, with leave to amend.

Count 6 (Malicious Prosecution)

In Count 6, Plaintiffs assert a malicious prosecution claim, although it is
unclear whether this claim is made under state or federal law. Under Florida law,
“[t]he elements of a malicious prosecution claim are: (1) an original criminal or civil
judicial proceeding against the present plaintiff was commenced or continued; (2)
the present defendant as the legal cause of the original proceeding against the
present plaintiff as the defendant in the original proceeding; (3) the termination of
the original proceeding constituted a bona fide termination of that proceeding in
favor of the present plaintiff; (4) there was an absence of probable cause for the
original proceeding; (5) there was malice on the part of the present defendant; and
(6) the plaintiff suffered damage as a result of the original proceeding.”
Zivojinovich v. Ritz Carlton Hotel Co., 445 F. Supp. 2d 1337, 1346 (M.D. Fla. 2006)
(quoting Valdez v. GAB Robins North America, Inc., 924 So. 2d 862, 866 n.1 (Fla. 3d

DCA 2006)). In this case, Plaintiffs have failed to set allege the required elements.
To the extent Plaintiffs are asserting a federal malicious prosecution claim,
they “must prove (1) the elements of the common law tort of malicious prosecution,
and (2) a violation of [their] Fourth Amendment right to be free from unreasonable
seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004).
Plaintiffs have again failed to allege the required elements. Consequently, Count 6
is dismissed without prejudice, with leave to amend.6
Count 7 (Intentional/Negligent Infliction of Emotional Distress)

In Count 7, Plaintiffs assert claims for both intentional and negligent
infliction of emotional distress. As the Court previously explained, this claim is
subject to dismissal because it improperly mixes separate and distinct causes of
action. In addition, this count fails to state a claim as to either intentional infliction
of emotional distress or negligent infliction of emotional distress.
“In Florida, to prove intentional infliction of emotional distress, a plaintiff

must show that (1) the defendant’s conduct was intentional or reckless; (2) the
conduct was outrageous, beyond all bounds of decency, and odious and utterly
intolerable in a civilized community; (3) the conduct caused emotional distress; and
(4) the emotional distress was severe.” Moore v. Pederson, 806 F.3d 1036, 1053
(11th Cir. 2015). “The elements of a negligent infliction of emotional distress claim
are: (1) the plaintiff must suffer a discernable physical injury; (2) the physical injury
must be caused by the psychological trauma; (3) the plaintiff must be involved in

the event causing the negligent injury to another; and (4) the plaintiff must have a
close personal relationship to the directly injured person.” Mbano v. Kriseman, No.

6 In any amended complaint, Plaintiffs should not assert any malicious prosecution claims
against the Sheriff or any officers in their official capacities. See C.P. by and through Perez
v. Collier County, 145 F. Supp. 3d 1085, 1094 (M.D. Fla. 2015) (“Because there can be no
claim for malicious prosecution without a showing of malice, and because Fla. Stat. §
768.28(9)(a) bars claims against the entity or officials acting in their official capacities for
conduct committed with malice, Florida law is also clear that there can be no claim for
malicious prosecution against state agencies or subdivisions.”).
8:14-cv-1923-T-30TBM, 2014 WL 5782802, at *5 (M.D. Fla. Nov. 6, 2014). Plaintiffs
fail to allege the required elements of either cause of action. This count is dismissed
without prejudice, with leave to amend. The Court notes that any amended

complaint should allege facts to support each of these elements as to each plaintiff.
Count 8 (False Arrest/Imprisonment)

In Count 8, Plaintiffs assert a false arrest/imprisonment claim based on their
warrantless arrests. “The tort of false imprisonment or false arrest is defined as the
unlawful restraint of a person against his will, the gist of which action is the
unlawful detention of the plaintiff and the deprivation of his liberty. A plaintiff
must show that the detention as unreasonable and unwarranted under the
circumstances.” Zivojinovich, 445 F. Supp. 2d at 1346 (quoting Rivers v. Dillards
Dep’t Store, Inc., 698 So. 2d 1328, 1331 (Fla. 1st DCA 1997)). Here, Plaintiffs fail to
allege facts to show that the detention was unreasonable or unwarranted under the
circumstances. Although they allege that they were arrested without a warrant,
they fail to allege that they were arrested without probable cause. Furthermore,
Plaintiffs fail to allege active or personal participation in their unlawful restraint by

specific defendants. See, e.g., Jibory v. City of Jacksonville, 920 So. 2d 666, 667 n.1
(Fla. 1st DCA 2005). As such, Count 8 is dismissed without prejudice, with leave to
amend.
Count 9 (Excessive Use of Force)

In Count 9, Plaintiffs assert a claim for “excessive use of force.” It is unclear
whether this is intended to be a federal or state law claim.7 It is also unclear how
this claim is distinct from the claims in Count 1 and the claims in Counts 10 and 11.
Because the nature of this claim is unclear, Count 9 is dismissed without prejudice,
with leave to amend.
Counts 10 and 11 (Aggravated Battery and Aggravated Assault)

In Counts 10 and 11, Plaintiffs assert claims for “aggravated battery” and
“aggravated assault,” citing to criminal law statutes inapplicable to this action.
There are no civil causes of action for “aggravated” battery or assault. However,
Florida law does recognize the common law torts of battery and assault. Because
Plaintiffs may be able to state claims for these common law torts, Counts 10 and 11
are dismissed without prejudice, with leave to amend.
Count 12 (Trespass)

In Count 12, Plaintiffs assert a claim for trespass, citing to criminal law
statutes inapplicable here. As to a possible civil cause of action, Plaintiffs have
failed to state a claim. “Under Florida law, trespass to real property is an injury to
or use of the land of another by one having no authority.” Rebalko v. City of Coral

7 “Excessive use of force” is not an independent cause of action in Florida. Instead, under
Florida law, “an assault and battery claim ‘for excessive force is analyzed by focusing upon
whether the amount of force used was reasonable under the circumstances.’” See Pena v.
Marcus, No. 6:15-cv-69-Orl-18TBS, 2016 WL 10892250, at *5 (M.D. Fla. Dec. 19, 2016)). As
such, this claim is dismissed to the extent that it attempts to assert an independent cause
of action for excessive use of force.
Springs, No. 19-60569-CIV-ALTMAN/Hunt, 2020 WL 6446042, at *28 (S.D. Fla.
Nov. 3, 2020) (internal quotation omitted). “However, law enforcement personnel
have a right, under appropriate circumstances, to enter upon private property,

notwithstanding general trespass principles.” Id. (internal quotation omitted).
Although Plaintiffs allege that unspecified officers entered their property and home
“without permission after being told not to, without having any warrant or exigent
circumstance,” Plaintiffs do not allege that there was no probable cause to enter the
property, or that the officers were not otherwise performing their lawful duties at
the time of entry. As such, this claim is dismissed without prejudice, with leave to

amend.
Count 13 (Willful Destruction of Property)

In Count 13, Plaintiffs assert a claim for “willful destruction of property,”
citing a criminal law statute inapplicable here. As to a possible civil cause of action,
Plaintiffs have failed to state a claim. For instance, they must identify the
defendants who allegedly damaged their property. As such, this claim is dismissed
without prejudice, with leave to amend.
Other Arguments Raised by Defendants

Because it will be necessary for Plaintiffs to file an amended complaint to
correct pleading defects, the Court need not address Defendant’ substantive
arguments that several of Plaintiffs’ causes of action are legally barred. See Shaffer
v. Bank of N.Y. Mellon & Shellpoint LLC, No. 8:17-cv-565-T-33AAS, 2017 WL
1653789, at *1 (M.D. Fla. May 2, 2017). Defendants are not precluded from raising
these arguments – such as qualified immunity and sovereign immunity – in a
future motion to dismiss following the filing of an amended complaint.
Accordingly, it is

ORDERED, ADJUDGED, and DECREED:
1) “Defendant, Hernando County Sheriff’s Office Amended Motion to Dismiss
the Plaintiffs’ Complaint with Memorandum of Law” (Doc. 31) and
“Defendants’ Amended and Consolidated Motions to Dismiss the Plaintiffs’
Complaint with Memorandum of Law” (Doc. 32) are GRANTED IN PART
and DENIED WITHOUT PREJUDICE IN PART.

2) The motions are GRANTED to the extent that Plaintiffs’ claims against
Defendant Hernando County Sheriff’s Office are DISMISSED. The Clerk is
directed to terminate the Hernando County Sheriff’s Office as a party in this
case.
3) The motions are FURTHER GRANTED to the extent that Plaintiffs’
complaint (Doc. 1) is DISMISSED WITHOUT PREJUDICE for the reasons
set forth in this Order.

4) The motions are otherwise DENIED WITHOUT PREJUDICE to any right
Defendants may have to raise appropriate arguments following the filing of
an amended complaint.
5) Plaintiffs are directed to file an amended complaint to correct the pleading
deficiencies identified in this Order on or before February 23, 2022. Failure to
file an amended complaint as directed will result in this Order becoming a
final judgment. See Auto. Alignment & Body Serv., Inc. v. State Farm Mut.
Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020). In any amended
complaint, Plaintiff should take care to name the proper defendant(s).
DONE and ORDERED in Chambers, in Tampa, Florida, this 2nd day of
February, 2022.

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TOM BARBER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109387. Public record. Not legal advice.