Bent v. Wilson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CRAIG BENT,

Plaintiff,

v. Case No. 6:21-cv-75-WWB-EJK

KEVIN WILSON and ROBERT RILEY,

Defendants.

/

ORDER

THIS CAUSE is before the Court on Defendants’ Motion to Dismiss Amended

Complaint (“Motion to Dismiss,” Doc. 42)1 and Plaintiff’s Response (Doc. 44) thereto.

For the reasons set forth below, Defendants’ Motion will be granted.

I. BACKGROUND

On December 17, 2016, non-parties Cheyanne Arias, Nestor Vinas, and Marc

Hernandez were in a Chevy Malibu near the area of North Powers Drive and Silver Star

Road in Orlando, Florida when Brandon Bascom approached their vehicle with a knife

and stabbed one of the tires. (Doc. 40, ¶¶ 7–8). Hernandez shot Bascom in the torso. (Id.

¶ 9). Bascom then entered a silver vehicle and began to drive in reverse, eventually

crashing into several objects before succumbing to his injuries. (Id.). As Bascom was

getting into the silver vehicle, an “unknown black male” exited a light-colored Chevrolet

vehicle and approached the Malibu, firing numerous shots towards the Malibu. (Id. ¶¶ 10–

1 The Court notes that Defendants’ Motion fails to comply with this Court’s January

13, 2021 Standing Order. In the interests of justice, the Court will consider the Motion, but

the parties cautioned that future failures to comply with all applicable rules and orders of

this Court may result in the striking or denial of filings without notice or leave to refile.

11). Arias exited the Malibu and fled while Hernandez returned fire. (Id. ¶¶ 12–13). The

unknown shooter retreated to the light-colored Chevrolet and fled the scene. (Id. ¶ 14).

None of the occupants of the Malibu could identify the unknown shooter. (Id. ¶ 15).

Defendants, Kevin Wilson and Robert Riley, members of the Orange County

Sheriff’s Office, were assigned to investigate the incident. (Id. ¶¶ 2, 3, 16). During their

investigation, Defendants discovered that Bascom and Plaintiff were acquaintances. (Id.

¶ 17). On December 19, 2016, Natalie Richardson, a witness to the shooting, met with

Defendants to be interviewed. (Id. ¶¶ 19–20). Richardson told Defendants that she had

only seen the shooter from the side and not from the front. (Id. ¶ 21). Defendants

presented Richardson with a photo lineup that included Plaintiff’s picture in the second

spot. (Id. ¶ 22). Richardson told Defendants that she did not get a good look at the shooter

and did not think she could make an identification based on the person’s face. (Id. ¶ 25).

Despite this, Plaintiff alleges that Riley pressured Richardson to pick his photo out of the

lineup, including by falsely telling Richardson that other witnesses had identified Plaintiff

as the shooter from the photo lineup. (Id. ¶¶ 26, 29). Plaintiff alleges that because of

Riley’s pressure, Richardson choose his photo from the lineup and signed her name. (Id.

¶ 31). Wilson was present during this exchange and did not intervene. (Id. ¶¶ 27, 32).

Afterward, Riley drafted a police report that falsely stated Richardson had voluntarily

identified Plaintiff as the shooter and omitted any mention of Richardson’s hesitation or

Riley’s lies and pressure and obtained a warrant for Plaintiff’s arrest. (Id. ¶¶ 34, 36).

Wilson did not intervene to prevent Riley from completing the false report. (Id. ¶ 35).

Plaintiff was arrested on January 31, 2017. (Id. ¶ 37).

Plaintiff alleges that he was not involved in the shooting but nonetheless, was

charged with second degree murder, attempted first degree murder, and shooting at or

into an occupied vehicle as a result of Defendants’ actions and inactions. (Id. ¶¶ 38–39).

Plaintiff remained in custody until he was released on bond on June 26, 2019. (Id. ¶ 40).

Plaintiff was subsequently found not guilty of the charges at a jury trial. (Id. ¶ 41). As a

result of the foregoing, Plaintiff filed the Amended Complaint, alleging claims for Unlawful

Pretrial Detention (Count I), Fabrication of Evidence (Count II), Malicious Prosecution

(Count III), and Failure to Intervene (Count IV) pursuant to 42 U.S.C. § 1983.

II. LEGAL STANDARD

“A pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Where a complaint alleges fraud or mistake, “a party must state with particularity the

circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Malice, intent,

knowledge, and other conditions of a person’s mind may be alleged generally.” Id.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss

a complaint for “failure to state a claim upon which relief can be granted.” In determining

whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the

complaint as true and construes them in a light most favorable to the non-moving party.

See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless,

“the tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Furthermore, “[t]o survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“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.

III. DISCUSSION

Riley moves to dismiss Count II of the Amended Complaint and Wilson seeks

qualified immunity as to Count IV. Plaintiff opposes the Motion as to both Defendants.

A. Count II

Riley argues that Count II should be dismissed because Plaintiff’s fabrication of

evidence claim is a mislabeled claim for malicious prosecution and Plaintiff has failed to

sufficiently allege the elements of such claim. Plaintiff argues that his fabrication of

evidence claim is separate and distinct from his malicious prosecution claim because it

seeks to vindicate his Fourth Amendment right not to be deprived of liberty, whereas the

malicious prosecution claim seeks to vindicate his Fourth Amendment right not to be

prosecuted with malice and without probable cause. Plaintiff offers no binding—or even

persuasive—legal authority explicitly recognizing fabrication of evidence as its own claim

under the Fourth Amendment or articulating the elements of such claim. Instead, Plaintiff

simply asserts that “to state a claim for fabrication of evidence, a plaintiff must allege that

a defendant included false information in an arrest report either knowingly and

intentionally or with reckless disregard for the truth.” (Doc. 44 at 3–4). Yet the cases upon

which Plaintiff relies discuss whether government actors were entitled to qualified

immunity for a false arrest claim, Kingsland v. City of Mia., 382 F.3d 1220, 1223 (11th Cir.

2004), and a malicious prosecution claim, Williams v. Aguirre, 965 F.3d 1147, 1152 (11th

Cir. 2020), not the elements for a fabrication of evidence claim. Plaintiff also cites to

Franks v. Delaware, 438 U.S. 154 (1978), the landmark Supreme Court case “requir[ing]

a district court to hold a hearing if a defendant makes a substantial showing that: (1) a

warrant affiant made intentionally false or recklessly misleading statements or omissions

and (2) those statements or omissions were necessary to the finding of probable cause[,]”

United States v. Jones, 847 F. App’x 830, 834 (11th Cir. 2021) (citing Franks, 438 U.S.

at 155–56), without any explanation or discussion. Further, Plaintiff’s reliance on

McDonough v. Smith for the proposition that fabrication of evidence is a recognized claim

is misplaced because the Court explicitly “assume[d] without deciding” that the fabrication

of evidence and malicious prosecution claims were distinct. 139 S. Ct. 2149, 2155 (2019).

The Court further notes that the fabrication of evidence claim addressed in McDonough

was raised under the Due Process Clause of the Fourteenth Amendment, not the Fourth

Amendment. Id. Thus, the Court is not convinced that Plaintiff has or can state a distinct

claim for fabrication of evidence under the Fourth Amendment because, as pleaded,

Count II is either duplicative of Count I or fails to sufficiently allege an alternative claim for

malicious prosecution.

First, Count II is duplicative of Plaintiff’s unlawful pretrial detention claim because

both claims rely on Riley’s purportedly false or misleading statements to obtain an arrest

warrant and Plaintiff’s subsequent detention. (Doc. 40, ¶¶ 42–49). “Duplicative claims are

those that stem from identical allegations, that are decided under identical legal

standards, and for which identical relief is available. To promote judicial economy, a court

should dismiss claims that are duplicative of other claims.” Manning v. Carnival Corp.,

No. 12-22258-CIV, 2012 WL 3962997, at *2 (S.D. Fla. Sept. 11, 2012) (citation and

quotations omitted); see also Diaz v. Medline Indus., Inc., No. 20-24952-CIV, 2021 WL

2075422, at *2 (S.D. Fla. Feb. 24, 2021). Therefore, to the extent that the claims are

based on the same factual allegations and seek to vindicate the same harm, Count II

should be dismissed.

In the alternative, to the extent Plaintiff instead intended to vindicate the harm

arising from his prosecution, as opposed to his arrest and detention, the Court agrees

that the claim is a mislabeled claim for malicious prosecution and Plaintiff has not

sufficiently alleged such a claim. “[I]n the Eleventh Circuit, a fabrication-of-evidence claim

is really just a species of malicious prosecution” because it “vindicates [ ] the right not to

be prosecuted with fabricated evidence.” Watkins v. Session, No. 19-60810-CIV, 2021

WL 663762, at *10 (S.D. Fla. Feb. 19, 2021) (collecting cases). Because the Court finds

that Plaintiff has failed to come forward with persuasive authority to the contrary and

Plaintiff does not dispute that he has failed to meet the elements of a malicious

prosecution claim, Count II can also be dismissed on these grounds.

B. Count IV

In Count IV, Plaintiff alleges that Wilson was present when Riley unduly coerced

Richardson into identifying Plaintiff and had the opportunity to prevent Riley’s misconduct

during the photo array and subsequent use of the report that caused Plaintiff to be

arrested and detained but failed to do so. (Doc. 40, ¶¶ 56–61). Wilson argues that he is

entitled to qualified immunity as to Count IV. In response, Plaintiff argues that Defendants’

Motion as to Count IV must be denied as premature.

“In order to receive qualified immunity, the public official must first prove that he

was acting within the scope of his discretionary authority when the allegedly wrongful acts

occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation omitted). “The

question is ‘whether the act complained of, if done for a proper purpose, would be within,

or reasonably related to, the outer perimeter of an official’s discretionary duties.’” Hargis

v. City of Orlando, No. 6:12-cv-723-Orl, 2012 WL 6089715, at *3 (M.D. Fla. Dec. 7, 2012)

(quoting Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir. 2006)). There

is no dispute that Wilson was acting within his discretionary duties when he accompanied

Riley during Richardson’s interview. Eubanks v. Freburger, No. 11-60714-CIV, 2012 WL

4936061, at *3 (S.D. Fla. Oct. 17, 2012) (“Actions such as investigating crimes and

questioning witnesses fall within the scope of a law enforcement officer’s discretionary

authority.”).

Where, as here, the defendant has established that he was acting within the scope

of his discretionary authority, the burden shifts to the plaintiff to prove that the defendant

“(1) . . . violated a constitutional right, and (2) this right was clearly established at the time

of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th

Cir. 2004). The two prongs of the qualified immunity analysis may be addressed in either

order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). “[I]t is proper to grant a motion

to dismiss on qualified immunity grounds when the complaint fails to allege the violation

of a clearly established constitutional right.” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th

Cir. 2019) (quotation omitted). “For a right to be clearly established, ‘[t]he contours of the

right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.’” Id. at 1311 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). “[I]n the light of the pre-existing law[,] the unlawfulness must be apparent.” Id. at

1312 (quoting Loftus v. Clark-Moore, 690 F.3d 1200, 1205 (11th Cir. 2012)). “[A] plaintiff

cannot strip a § 1983 defendant of his qualified immunity by citing to general rules or

abstract rights.” Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999).

Plaintiff has failed to point this Court to any controlling authority that requires a law

enforcement officer to intervene when another officer coerces a witness or includes

misleading information in an arrest affidavit. In his briefing, Plaintiff points to case law

establishing that in the context of a warrantless arrest, a non-arresting officer “may be

liable if he knew the arrest lacked any constitutional basis and yet participated in some

way.” Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013); see also Buress v. City

of Mia., No. 21-12131, 2022 WL 2161438, at *3 (11th Cir. 2022). Plaintiff has not,

however, demonstrated that the law was clearly established that an officer can be liable

under the circumstances of this case, where Wilson was allegedly aware that the arrest

affidavit prepared by Riley contained misleading information. See Rowe v. City of Fort

Lauderdale, 279 F.3d 1271, 1281 (11th Cir. 2002) (“[T]his Court has held that a police

officer did not violate clearly established law merely by failing to act in the face of

knowledge that another officer had fabricated a confession.”); see also McGuire v. City of

Montgomery, No. 2:11-CV-1027, 2013 WL 1336882, at *14 (M.D. Ala. Mar. 29, 2013) (“[I]t

is unclear whether the duty to intervene exists for constitutional deprivations other than

excessive force.”); Lewis v. Blue, No. 2:09-CV-862, 2010 WL 730210, at *6 (M.D. Ala.

Mar. 3, 2010) (“[C]ase law seems to indicate that failure to intervene claims are cognizable

only when related to excessive force violations.”); Heine v. Rice, No.

8:00CV2297T24TBM, 2001 WL 1338780, at *8 (M.D. Fla. Apr. 9, 2001) (holding that a

law enforcement officer was entitled to qualified immunity where the plaintiff failed to show

clearly established law that requires an officer to intervene when another officer omits

information from a warrant affidavit). Plaintiff has failed to meet his burden. Thus, Wilson

is entitled to qualified immunity, and Count IV will be dismissed accordingly.

C. Shotgun Pleading

Nevertheless, this does not end the Court’s inquiry. Upon review, the Court finds

that the Amended Complaint continues to be an impermissible shotgun pleading. “The

failure to identify claims with sufficient clarity to enable the defendant to frame a

responsive pleading constitutes a ‘shotgun pleading.’” Beckwith v. BellSouth Telecomms.

Inc., 146 F. App’x 368, 371 (11th Cir. 2005) (citing Byrne v. Nezhat, 261 F.3d 1075, 1029–

30 (11th Cir. 2001)). “Shotgun pleadings wreak havoc on the judicial system” and “divert

already stretched judicial resources into disputes that are not structurally prepared to use

those resources efficiently.” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279

(11th Cir. 2006) (quotation omitted). As such, “[w]hen presented with a shotgun complaint,

the district court should order repleading sua sponte.” Ferrell v. Durbin, 311 F. App’x 253,

259 n.8 (11th Cir. 2009); see also Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc.,

162 F.3d 1290, 1333 (11th Cir. 1998) (noting that shotgun pleadings drain judicial

resources, and the district should act sua sponte to define the issues at the earliest

possible stage).

The Eleventh Circuit has defined four types of shotgun pleadings. “The most

common type—by a long shot—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.”

Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 (11th Cir. 2015). The

second most common type “is a complaint that . . . is guilty of the venial sin of being

replete with conclusory, vague, and immaterial facts not obviously connected to any

particular cause of action.” Id. at 1322. “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.” Id. at 1322–23. “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.” Id. at 1323.

On September 1, 2021, this Court warned Plaintiff that his Amended Complaint

(Doc. 38) constituted an impermissible shotgun pleading and was subject to immediate

dismissal because each count adopted the allegations of all preceding counts. (Doc. 39

at 1; see also Doc. 38, ¶¶ 37, 43, 47). Plaintiff was granted leave to file an amended

pleading and was warned that the “[f]ailure to timely file an amended pleading that

corrects the deficiencies noted in . . . this Order and that complies with all applicable rules

and orders may result in the dismissal of this case without further notice.” (Doc. 39 at 2).

Despite this warning, Plaintiff’s Amended Complaint, inexplicably, remains a shotgun

pleading because Counts II, III, and IV incorporate by reference all preceding paragraphs

with the phrase “[a]s described above[.]” (Doc. 40, ¶¶ 47, 50, 56). Notably, while Counts

II, III, and IV incorporate all that comes before it, Count I neglects to incorporate any of

the factual allegations in the complaint and, thus, arguably, fails to state a claim.

Accordingly, the Amended Complaint will be dismissed in its entirety. Although the Court

is not required to grant Plaintiff further leave to amend at this juncture, Plaintiff will be

granted leave to file one last amended pleading to address the shotgun pleading issue,

but he is cautioned that failure to correct the deficiencies noted herein may result in the

dismissal of any amended pleading with prejudice. See Barmapov v. Amuial, 986 F.3d

1321, 1326 (11th Cir. 2021).

IV. CONCLUSION

Therefore, it is ORDERED and ADJUDGED as follows:

1. Defendants’ Motion to Dismiss (Doc. 42) is GRANTED.

2. Counts I, II, and III of the Amended Complaint (Doc. 40) are DISMISSED

without prejudice.

3. Count IV of the Amended Complaint (Doc. 40) is DISMISSED with

prejudice. The Clerk is directed to terminate Kevin Wilson as a defendant

in this matter and amend the case style accordingly.

4. On or before September 21, 2022, Plaintiff may file an amended pleading

to correct the shotgun pleading deficiencies noted herein only. Plaintiff is

not permitted to replead Count II or make any additional factual allegations

or claims. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541,

542 (11th Cir. 2002). Failure to timely file an amended pleading in

accordance with this Order may result in the dismissal of this case without

further notice.

DONE AND ORDERED in Orlando, Florida on September 16, 2022.

WENDY W.B

UNITED STATES T JUDG

Copies furnished to:

Counsel of Record