Denson, Jr. v. Kinney

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ANTHONY DENSON, JR.,

Plaintiff,

v. Case No: 2:21-cv-497-JES-NPM

KEVIN RAMBOSK, MATTHEW

KINNEY, ALAN FLANAGAN,

DAVID MERCADO, JASON BOOTH,

RYAN TUTT, NATHAN KIRK,

JOESPH AMOROSI, and

BARTOLOME AMENGUAL,

Defendants.

OPINION AND ORDER

This case comes before the Court on review of defendants

Sheriff Rambosk, Kinney, Flanagan, Mercado, Booth, Tutt, Kirk,

Amorosi, and Amengual’s Motion to Dismiss Plaintiff’s Third

Amended Complaint and Supporting Memorandum of Law (Doc. #74),

which was filed on July 8, 2022.1 Plaintiff filed a Response in

Opposition (Doc. #76) on July 22, 2022. For the reasons set forth,

the motion is granted in part and denied in part.

1 On July 8, 2022, defendant Collier County filed an Unopposed

Motion to Dismiss Plaintiff’s Third Amended Complaint With

Prejudice, Each Party To Bear Their Own Costs and Fees (Doc. #73.)

Based upon Collier County’s certification that pursuant to Local

Rule 3.01(g) the motion was unopposed, the Court granted its motion

and the claims against Collier County were dismissed with prejudice

on July 13, 2022. (Doc. #75.) On the same day, Collier County was

terminated as a named defendant in this case.

I.

A. Brief Overview

This case involves a civil rights action initiated by

plaintiff Anthony Denson, Jr. (Plaintiff or Denson) against nine

defendants – Kevin Rambosk in his individual and official

capacities as the Sheriff of Collier County (Sheriff Rambosk), and

Collier County Sheriff Office (CCSO) deputies Matthew Kinney

(Deputy Kinney), Alan Flanagan (Deputy Flanagan), David Mercado

(Deputy Mercado), Jason Booth (Deputy Booth), Ryan Tutt (Deputy

Tutt), Nathan Kirk (Deputy Kirk), Joseph Amorosi (Deputy Amorosi),

and Bartolome Amengual (Deputy Amengual) in their individual

capacities (collectively Defendants). (Doc. #72, ¶¶ 1, 14-15.)

According to the Third Amended Complaint (TAC), the origin of this

case began with a traffic stop on July 5, 2017, when Plaintiff,

who was lawfully operating a motor vehicle in Naples, Florida, was

unlawfully seized, searched, assaulted, battered, arrested,

imprisoned, and maliciously prosecuted by the CCSO deputies and

Sheriff Rambosk. (Doc. #72.)

B. Procedural Background

On July 5, 2021, Plaintiff filed this lawsuit against

Defendants asserting federal and state law claims that arose from

his July 5, 2017 arrest and subsequent state court prosecution.

(Doc. #1.) On July 6, 2021, Plaintiff filed an Amended Complaint,

which the Court dismissed as a shotgun pleading with leave to

amend. (Doc. #58.) In its Order, the Court explained that the

Amended Complaint was a shotgun pleading in three respects: (1) it

impermissibly asserted multiple claims against multiple

defendants; (2) it did not distinguish between claims against

Sheriff Rambosk in his official and individual capacities; and (3)

it incorporated the first 96 paragraphs in each count, thereby

including conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action. (Id., pp. 2-4.) The

Court provided further instruction to Plaintiff and his counsel on

how to cure the shotgun pleading. (Id., p. 5.)

On February 15, 2022, Plaintiff filed a Second Amended

Complaint (SAC), which Defendants sought to dismiss, in part,

because it continued to be a shotgun pleading. (Docs. ##59, 62,

63.) The Court agreed with Defendants that the SAC was another

shotgun pleading because it (1) repeated the “venial sin” of

including immaterial, irrelevant, or repetitive allegations by

reincorporating the first 96 paragraphs into all eighteen counts,

(2) it continued to lump all the defendants together into certain

counts despite those counts being brought against only the CCSO

deputies or Sheriff Rambosk, and (3) it continued to commingle

official and individual claims against Sherriff Rambosk. (Doc.

#71, pp. 7-11.) The Court granted Plaintiff leave to file a third

amended complaint in compliance with the Federal Rules of Civil

Procedure, but warned Plaintiff and his counsel that if the

pleading remained a shotgun pleading after amendment, the Court

would dismiss his case with prejudice on this basis alone. (Id.,

p. 11.)

Plaintiff filed an eighteen-count Third Amended Complaint

(TAC) on June 28, 2022. (Doc. #72.) The claims set forth in the

TAC are as follows: (1) First Amendment retaliation under 42 U.S.C.

§ 1983 against the CCSO deputies; (2) illegal search and seizure

under § 1983 against the CCSO deputies; (3) false arrest under

Florida law against all Defendants; (4) false imprisonment under

Florida law against all Defendants; (5) false arrest under § 1983

against the CCSO deputies; (6) false imprisonment under § 1983

against the CCSO deputies; (7) assault under Florida law against

all Defendants; (8) battery under Florida law against all

Defendants; (9) excessive force under § 1983 against the CCSO

deputies; (10) malicious prosecution under Florida law against all

Defendants; (11) malicious prosecution under § 1983 against the

CCSO deputies; (12) deprivation of rights and denial of equal

protection under Florida law against all Defendants; (13)

deprivation of rights and denial of equal protection under 42

U.S.C. §§ 1981, 1983 against all Defendants; (14) conspiracy to

interfere with civil rights under 42 U.S.C. §§ 1983, 1985 against

all Defendants; (15) failure to intervene under § 1983 against the

CCSO deputies; (16) negligent hiring and retention under Florida

law against Sheriff Rambosk; (17) negligent training and

supervision under Florida law against Sheriff Rambosk; and (18)

governmental “Monell” liability under § 1983 against Sheriff

Rambosk.

Defendants move to dismiss the TAC because, among other

things, the TAC is still a shotgun pleading. (Doc. #74.) Defendants

assert that despite Plaintiff having the benefit of its arguments

in previous motions to dismiss, and the Court’s Orders granting

dismissal, Plaintiff has put little effort into drafting a

complaint that does not run afoul of shotgun pleading principles

and the Federal Rules of Civil Procedure. Defendants therefore

conclude that the TAC should be dismissed with prejudice. (Id.,

pp. 3, 10.)

Plaintiff responds that the TAC is not a shotgun pleading.

Plaintiff argues that even absent the incorporation of the first

97 paragraphs into each cause of action, the claims would remain

legally acceptable because of the factual allegations included

into each claim. (Doc. #76, pp. 6-10.)

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

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).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also, Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations

omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

III.

A. Shotgun Pleading

Defendants assert that the TAC contains an excessive number

of paragraphs (276) and counts (18), which alone qualifies as a

shotgun pleading. Defendants also argue that the TAC continues to

violate three of the four categories of shotgun pleading identified

by the Eleventh Circuit in Weiland v. Palm Beach Cnty. Sheriff's

Office, 792 F.3d 1313, 1321-22 (11th Cir. 2015):

[A] complaint that does not commit the mortal sin of re-

alleging all preceding counts but is guilty of the venial

sin of being replete with conclusory, vague, and

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 1322-23. (Doc. #74, pp. 8-9.) The core

deficiency among all variants of the shotgun pleading is the

failure to provide defendants with adequate notice of the claims

against them and their accompanying grounds for relief. Id. at

1322. Defendants argue that the First through Ninth Causes of

Action, as well as the Twelfth through the Sixteenth and Eighteenth

Causes of Action, are examples of shotgun pleadings.

As a threshold matter, the Court rejects the argument that

the large number of paragraphs or counts in a complaint necessarily

results in a shotgun pleading. The Court must look to the quality

of the pleading as well as the quantity of the allegations. See

Lawrie v. Ginn Dev. Co., LLC, 656 F. App'x 464, 465 (11th Cir.

2016) (“[I]n pleading, as in many aspects of life, quality matters

more than quantity.”).

(1) First Cause of Action — First Amendment Retaliation

Pursuant to 42 U.S.C. § 1983 Against CCSO Deputies

The TAC’s First Cause of Action alleges a First Amendment

Retaliation claim pursuant to 42 U.S.C. § 1983 against the CCSO

deputies in their individual capacities. This claim incorporates

Paragraphs 1-9, 11, 14–61, 67–77, 80, 84–88, 90, 91, and 94-96 of

the TAC. (Doc. #72, p. 30.)

Defendants argue that the incorporation of Paragraphs 54, 55,

58, 59, 60, 77, 86, and 91 effectively names Sheriff Rambosk in

both his individual and official capacities into this count,

although he is not a named defendant in the count. Additionally,

defendants argue that the incorporation of Paragraphs 44-61, 67-

77, 80, and 86 pleads facts alleging causes of action for excessive

force, battery, assault, malicious prosecution, and

discrimination, all of which are immaterial to the First Amendment

Retaliation claim. (Doc. #74, p. 10.) A careful reading of the

claim, however, shows otherwise.

The Eleventh Circuit noted in Weiland that the incorporation

of unnecessary facts and allegations into all counts is not per se

dispositive of whether a complaint is a shotgun pleading. Weiland,

792 F.3d at 1316. Here, Plaintiff does incorporate paragraphs

from his “Factual Charges” section alleging excessive force,

battery, assault, and malicious prosecution, and discrimination.

However, the incorporated paragraphs simply identify the substance

of the retaliation conduct. (Doc. #72, ¶ 101.) The First Cause of

Action does "a good enough job," Weiland, 792 F.3d at 1316, in

giving the Defendants notice of the retaliation claim against them,

and therefore does not constitute a shotgun pleading.

The Court agrees that incorporation of Paragraphs 58-60, 77,

and 86 are troublesome in that they incorporate allegations against

Sheriff Rambosk, in his individual and official capacities,

despite the Sheriff not being identified as a defendant in this

cause of action. While a district court has the authority to

dismiss a complaint on shotgun pleading grounds, Weiland, 792 F.3d

at 1320, the Court concludes that the proper remedy is less drastic

in this case. The Court will strike the incorporation of paragraphs

58-60, 77, and 86 from the First Cause of Action in the TAC,

thereby eliminating these allegations about Sheriff Rambosk as to

that claim. See Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1357

(11th Cir. 2018) (a district court may strike a shotgun pleading

sua sponte or on a party's motion). The motion to dismiss the

remainder of the First Cause of Action is denied.

(2) Second Cause of Action — Illegal Search and Seizure

Pursuant to 42 U.S.C. § 1983 Against CCSO Deputies

The TAC’s Second Cause of Action asserts a claim for illegal

search and seizure pursuant to Section 1983 against all the CCSO

deputies in their individual capacities. The Second Cause of

Action incorporates Paragraphs 1-9, 11, 14-35, 46, 49, 53-58, 68-

69, 73-77, 79-81, 83-85, 87-91 and 94-96. (Doc. #72, p. 33.)

Defendants argue that the Second Cause of Action constitutes

a shotgun pleading because Paragraphs 54, 55, 58, 77, 79, 83, 87,

88 and 91 incorporate allegations against Sheriff Rambosk, in his

individual and official capacities, while Paragraphs 53, 56, 58,

73-77, 79, 81, 83, 85, 87, 88, 89 and 90, incorporate facts

alleging excessive force, battery, assault, malicious prosecution,

discrimination and retaliation, all of which are immaterial to the

claim for illegal search and seizure. (Doc. #74, pp. 10-11.)

Upon careful review of the TAC, the Court finds that

Paragraphs 58, 77, 79, 83, 87, and 91 incorporate allegations

against Sheriff Rambosk in his individual and official capacities,

despite the Sheriff not being identified as a defendant in this

cause of action. Likewise, Paragraphs 81, 83, 85, 87, 88, and 90

allege discrimination, malicious prosecution, assault, and battery

that are immaterial to Plaintiff’s illegal search and seizure

claim. The Court finds it necessary to strike Paragraphs 58, 77,

79, 81, 83, 85, 87, 88, and 90 from this claim. See Weiland, 792

F.3d at 1322. Defendants’ motion to dismiss this claim is otherwise

denied.

(3) Third, Fourth, Fifth, and Sixth Causes of Action — False

Arrest and False Imprisonment Pursuant to 42 U.S.C. §

1983 and Florida Law

The TAC’s Third and Fourth Causes of Action set forth claims

for false arrest and false imprisonment under Florida law, while

the Fifth and Sixth Causes of Action allege the same claims

pursuant to 42 U.S.C. § 1983.2 (Doc. #72, pp. 34-39.) The Florida

state law claims are brought against the CCSO deputies and Sheriff

Rambosk in his official capacity, while the federal claims are

brought against only the CCSO deputies in their individual

capacities. (Id.)

Defendants argue that the incorporated paragraphs 31, 35, 37,

49, 59, 67, 70-71, 76-77, 81, and 83 plead immaterial facts

asserting malicious prosecution, discrimination, battery,

excessive force, conspiracy, and unlawful search. Defendants are

partially correct.

By incorporating Paragraphs 59, 81, and 83 into these causes

of action, the TAC mixes various immaterial allegations related to

2 The Third Cause of Action incorporates Paragraphs 1-37, 49,

53-60, 63-77, 79-90, and 94-97; the Fourth Cause of Action

incorporates Paragraphs 1-37, 49, 53-60, 64-71, 76-77, 81–84, and

94-97; the Fifth Cause of Action incorporates Paragraphs 1-37, 49,

53-60, 67-77, 81-84, 86–87, 90, and 94-97; and the Sixth Cause of

Action incorporates Paragraphs 1-37, 49, 53-57, 60, 67-72, 76, 81-

84, and 94-97.

other causes of action (i.e., discrimination, retaliation and

malicious prosecution) with the distinct claims of false arrest

and false imprisonment. As to the remainder of the paragraphs

identified by Defendants, the Court is not convinced that they

allege additional claims that make it “virtually impossible to

know which allegations of fact are intended to support which

claim(s) for relief.” Weiland, 792 F.3d at 1325. Rather,

Paragraphs 31, 35, 37, 49, 67, 70-71, and 76-77 provide background

information that led up to Plaintiff’s arrest and imprisonment,

identify the crimes for which Plaintiff was charged, the length of

Plaintiff’s detainment, and the lack of probable cause, all of

which may be relevant to claims of false arrest and imprisonment.

The Court therefore elects the less drastic remedy of striking

only Paragraphs 59, 81, and 83 from each of these causes of action

instead of dismissing each claim. Accordingly, Paragraphs 59, 81,

and 83 are stricken from the Third, Fourth, Fifth, and Sixth Causes

of Action, but Defendants’ motion is otherwise denied at to these

claims.

(4) Seventh, Eighth, and Ninth Causes of Action – Assault

and Battery Under Florida Law and Excessive Force

Pursuant to 42 U.S.C. § 1983

The TAC asserts an assault and battery claim under Florida

law in the Seventh and Eighth Causes of Action against the CCSO

deputies in their individual capacities and Sheriff Rambosk in his

official capacity. (Doc. #72, pp. 40-43.) The Ninth Cause of Action

sets forth an excessive force claim pursuant to § 1983 against the

CCSO deputies in their individual capacities.3 (Id., p. 45.)

Defendants argue that by incorporating paragraphs 13 and 78,

Sheriff Rambosk is being sued in both his official and individual

capacities for use of force on Plaintiff. This is problematic,

defendants argue, because the TAC does not contain any allegations

that Sheriff Rambosk was present during the arrest, that he

physically touched Mr. Denson, or that he ordered CCSO deputies to

apply excessive force upon Plaintiff. (Doc. #74, p. 12.) Plaintiff

responds that “ordering” the other Defendants to touch him may

constitute direct participation in an unlawful act. (Doc. #76, p.

8.)

Assuming Plaintiff may be correct, Plaintiff has not pointed

to any allegations within the TAC that support a reasonable

inference that Sheriff Rambosk ordered the CCSO Deputies to

assault, batter, or use excessive force upon Plaintiff. Thus, the

Court strikes Paragraphs 13 and 78 from the Seventh and Eighth

Causes of Causes of action, and Paragraph 78 from the Ninth Cause

of Action.

3 The Seventh Cause of Action incorporates Paragraphs 1-37,

39-43, 53-56, 59, 69, 76, 78, 83-84, 89-90, 94-97; the Eighth Cause

of Action incorporates Paragraphs 1-43, 53-56, 59, 69, 76, 78, 83-

84, 89-90, 94-97; and the Ninth Cause of Action incorporates

Paragraphs 1-9, 14-45, 47-57, 76-78, 83-85, 87, 89-90, and 94-96.

Defendants also contend that all three causes of action

incorporate paragraphs that plead facts alleging false arrest,

malicious prosecution, discrimination, conspiracy, retaliation,

unlawful search, and negligent hiring, training and supervision,

all of which are immaterial to the claims of assault, battery, and

excessive use of force. (Id.) In particular, Defendants argue that

Paragraphs 11, 13, 76, 79, 83-84, 89-90 assert additional claims

in the Seventh and Eighth Causes of Action, while Paragraphs 76,

83-84, and 89-90 are improperly incorporated in the Ninth Cause of

Action. (Id., p. 12 n.4.)

The Court finds Paragraphs 11, 76, 79, 83-84, 89-90 are

immaterial to Plaintiff’s claims for assault, battery, and

excessive force as they allege claims for discrimination,

malicious prosecution, negligent hiring, training, and

supervision. Nonetheless, these causes of action are “informative

enough to permit [the Defendants] to readily determine if they

state a claim upon which relief can be granted.” Weiland, 792 F.3d

at 1326. Thus, the Court will also strike Paragraphs 11, 76, 79,

83-84, 89-90 from the Seventh and Eighth Causes of Action, and

Paragraphs 76, 83-84, and 89-90 as to the Ninth Cause of Action,

but declines to dismiss the Seventh, Eighth, and Ninth Causes of

Action in their entirety.

(5) Twelfth and Thirteenth Causes of Action – Deprivation of

Rights and Denial of Equal Protection Of The Law Under

Fla. Stat. §§ 760.07 and 760.08, and 42 U.S.C. §§ 1981

& 1983

The Twelfth Cause of Action brings a claim for deprivation of

rights and a denial of equal protection under the law pursuant to

Fla. Stat. §§ 760.07 and 760.08, while the Thirteenth Cause of

Action asserts the same claim pursuant to 42 U.S.C. §§ 1981 and

1983. Each claim is brought against the CCSO deputies and Sheriff

Rambosk in his official capacity, and they incorporate Paragraphs

1-97 of the TAC. (Doc. #72, pp. 52, 55.)

Defendants argue that all 97 paragraphs are not material to

these claims. (Doc. #74, p. 12.) Defendants further argue that

both causes of action commingle both official capacity and

individual capacity claims, which is made more confusing as to

Defendant Rambosk, who is named in his official capacity in these

claims, but through incorporation of Paragraphs 12, 13, 54, 55,

58, 59, 60, 62, 63, 65, 66, 78, 82, 83, 86, is also apparently

being sued in his individual capacity. (Id., pp. 12-13.)

Unlike the previous causes of action, Plaintiff incorporates

all of the first 97 paragraphs of the TAC, which include repetitive

allegations and immaterial facts that have no bearing on these

claims and which violate Rule 8(a)(2). The Court has warned

Plaintiff in two previous Opinion and Orders about conclusory,

vague, and immaterial facts caused by incorporating the first 96

paragraphs into each count. (Doc. #58, pp. 4-5; Doc. #71, pp. 8-

9.) Plaintiff nevertheless continues to do so in the Twelfth and

Thirteen causes of action, and thus includes not only repetitive

and immaterial factual allegations, but also other claims for

illegal search and seizure, excessive force, false imprisonment,

and malicious prosecution. Additionally, Plaintiff continues to

commingle official and individual capacity claims as to Sheriff

Rambosk. Because Plaintiff made no effort to eliminate immaterial

allegations and vague claims, Defendants’ motion to dismiss with

prejudice the Twelfth and Thirteenth Causes of Action is hereby

granted.

(6) Fourteenth Cause of Action – Conspiracy To Interfere

With Civil Rights Under 42 U.S.C. §§ 1983 & 1985

The Fourteenth Cause of Action asserts a claim for conspiracy

to interfere with civil rights pursuant to Sections 1983 and 1985

of the United States Code against the CCSO Deputies and Sheriff

Rambosk in their individual capacities. (Doc. #72, p. 57.)

Plaintiff alleges that the Defendants committed overt acts in

furtherance of their conspiracy when they engaged in verbal and

written communication with one another to agree to submit false

allegations to prosecutors and fabricate inculpatory evidence

against him. (Id., ¶ 231.)

Defendants argue that Plaintiff incorporates all of the first

97 paragraphs, except for Paragraph 10, which refers to the former

defendant — Collier County. (Id., ¶ 229.) By doing so, Defendants

assert, Plaintiff has pled immaterial facts to the conspiracy claim

and commingled both official and individual capacity claims by

incorporating paragraphs 11, 13, 79, 91, and 92.

For the reasons discussed above as to the Twelfth and

Thirteenth Causes of Action, the Court finds that the Fourteenth

Cause of Action continues to constitute the second type of

impermissible shotgun pleading – incorporation of immaterial

allegations. Defendants’ motion is hereby granted as to this claim,

and the Fourteenth Cause of Action it is dismissed with prejudice.

(7) Fifteenth Cause of Action – Failure to Intervene

Pursuant to 42 U.S.C. § 1983

The Fifteenth Cause of Action alleges a federal failure to

intervene claim against the CCSO deputies in their individual

capacities, and incorporates introductory Paragraphs 1-9, 14-37,

41-47, 50-58, 68-69, 76, 84, and 94-96.

Defendants argue that by incorporating Paragraphs 54, 55, 58,

94, and 96 into this failure to intervene claim, Plaintiff has

implicated Sheriff Rambosk in his individual capacity, as well as

pled facts alleging malicious prosecution, discrimination, and

retaliation through incorporation of Paragraphs 76 and 84. (Doc.

#74, p. 13.) The Court finds only paragraphs 58 and 84

troublesome, alleging claims against Sheriff Rambosk and asserting

other claims not pertinent to Plaintiff’s failure to intervene

cause of action. The Court finds that the less drastic remedy of

striking these two paragraphs more appropriate, since Defendants

may still determine the claim upon which relief is sought by

Plaintiff. See Jackson, 898 F.3d at 1357. Paragraphs 58 and 84

are stricken from the Fifteenth Cause of Action, but Defendants’

motion to dismiss this claim is otherwise denied.

(8) Sixteenth and Seventeenth Causes of Action – Negligent

Hiring and Retention, and Negligent Training and

Supervision Under Florida Law

The TAC asserts a claim for negligent hiring and retention in

the Sixteenth Cause of Action and a claim for negligent training

and supervision in the Seventeenth Cause of Action. Both claims

are brought under Florida law against Sheriff Rambosk in his

official capacity, and incorporate Paragraphs 1-49, 53-60, 68-69,

76, and 88-97. (Doc. #72, pp. 60, 62.)

Defendants argue that by incorporating paragraphs 13 and 14,

Plaintiff is also naming the individual defendants in these counts,

and that most of the incorporated paragraphs plead facts alleging

claims for false arrest and imprisonment, assault, battery,

excessive force, malicious prosecution, conspiracy,

discrimination, retaliation, and unlawful search. (Doc. #74, p.

14.)

The Court agrees that the incorporation of the paragraphs is

problematic since Paragraph 13 names Sheriff Rambosk in his

individual capacity, and Paragraph 14 identifies Deputy Kinney,

who is not part of this claim. Thus, the Court will strike

Paragraphs 13 and 14 from each cause of action.

Furthermore, the cause of action includes numerous

allegations (i.e., Paragraphs 48, 53-60, 68-69, 89, 90, and 96)

that are not material to any claim against Sheriff Rambosk for

negligent hiring, retention, training, or supervision. As such,

it “materially increased the burden [upon Defendants] of

understanding the factual allegations underlying each count.”

Weiland, 792 F.3d at 1324. Accordingly, the Court strikes

paragraphs 13, 14, 48, 53-60, 68-69, 89, 90, and 96 from the

Sixteenth and Seventeenth Causes of Action. Defendants’ motion to

dismiss these claims as shotgun pleadings is otherwise denied.

(9) Eighteenth Cause of Action — Governmental “Monell”

Liability Pursuant to 42 U.S.C. 42 U.S.C. § 1983

In his final cause of action, Plaintiff alleges a governmental

“Monell” Liability claim against Sheriff Rambosk in his official

capacity, and incorporates Paragraphs 1 through 97 of the TAC.

(Doc. #72, p. 64.) Defendants argues that this claim should be

dismissed because it unnecessarily incorporates Paragraphs 1

through 97, including Paragraphs 13 and 14 which commingle

individual and official capacity claims. The Court agrees.

The Eighteenth Cause of Action consists of approximately five

pages of allegations which alone may be sufficient to state a

Section 1983 Monell claim. Plaintiff, however, incorporated all

of the first 97 paragraphs into this claim such that it is “rife

with immaterial factual allegations” and is violates the rules

against shotgun pleading. Barmapov v. Amuial, 986 F.3d 1321, 1325

(11th Cir. 2021). See also Chudasama v. Mazda Motor Corp., 123

F.3d 1353, 1359 n.9 (11th Cir. 1997) (describing a complaint in

which four counts incorporated all 43 numbered paragraphs of

factual allegations, many of which appeared to relate to only one

or two counts, as "an all-too-typical shotgun pleading").

Accordingly, as with some of the prior counts, the Court finds

that dismissal with prejudice is warranted.

B. Alternative Grounds For Dismissal

Defendants assert there are alternative grounds for dismissal

as to of some of the causes of action set forth in the TAC.4 (Doc.

#74, p. 15.)

(1) Official and Individual Capacity State Law Claims

Defendants argue that the Third, Fourth, Seventh, and Eighth

Causes of Action are state law claims that are both individual

capacity and official capacity claims, in the alternative, in the

same count. (Doc. #74, p. 15.) Defendants assert that would make

4 Defendants also raise alternative arguments as to why the

Fourteenth and Eighteenth Causes of Action should be dismissed for

failure to state a claim. (Doc. #74, pp. 16, 18.) Because the Court

has previously found each cause of action should be dismissed on

shotgun pleading grounds, it does not address Defendants’

alternative arguments as to these claims.

them immune from suit based upon mutually exclusive immunity

afforded under state law. (Id.) Defendants conclude that the

attempt to plead in the alternative in a single count to avoid

immunity fails because one allegation does not cancel out the

other. Plaintiff responds that he did not dually plead to avoid

immunity with respect to individual or official capacity; instead,

he asserts two factual allegations that would invoke immunity

contingent upon which allegations are substantiated through the

course of discovery. (Doc. #76, pp. 7-8.)

At this stage of the litigation, the Court finds Plaintiff has

alleged sufficient facts for either individual or official

capacity claims. This is proper under Fed. R. Civ. P. 10(b). The

Court declines to dismiss these causes of action based upon the

arguments set forth by Defendants.

(2) Tenth Cause of Action – Malicious Prosecution Under

Florida Law

The Tenth Cause of Action asserts a claim for malicious

prosecution under Florida law against the CCSO deputies in their

individual capacities and Sheriff Rambosk in his official

capacity. (Doc. #72, p. 47.) Defendants argue that this cause of

action fails to state a claim against Sheriff Rambosk in his

official capacity because the government is immune from suit for

malicious prosecution under Fla. Stat. § 768.28(9)(a). (Doc. #74,

p. 16.) Plaintiff did not address this issue in his response. (See

Doc. #76.)

Plaintiff has brought a state tort claim for malicious

prosecution against Sheriff Rambosk in his official capacity. Not

surprisingly, Florida law is clear that malice is a required

element to a malicious prosecution claim. Miami-Dade Cnty. v. Asad,

78 So. 3d 660, 664 (Fla. 3d DCA 2012). 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. Weiland, 792 F.3d at 1330; Fla. Dept. of Envtl.

Prot. v. Green, 951 So. 2d 918, 919 (Fla. 4th DCA 2007); Johnson

v. State Dep't of Health and Rehab. Servs., 695 So.2d 927, 930

(Fla. 2d DCA 1997). Accordingly, Plaintiff's state law claim for

malicious prosecution against Sheriff Rambosk in his official

capacity is dismissed with prejudice.

(3) Eleventh Cause of Action – Malicious Prosecution Under

42 U.S.C. § 1983

The Eleventh Cause of Action asserts a malicious prosecution

claim pursuant to Section 1983 against the CCSO deputies in their

individual capacities. (Doc. #72, pp. 49-50.) Defendants argue

that Plaintiff’s July 5, 2017 warrantless arrest cannot serve as

the predicate deprivation of liberty to support a § 1983 malicious

prosecution claim. (Doc. #74, p. 16.) Rather, Defendants contend

that Plaintiff must allege that he was seized in relation to the

prosecution itself, and that the normal conditions of pre-trial

release do not constitute a seizure for purposes of this claim.

(Id.) Thus, Defendants argue that Plaintiff fails to state a claim

here. (Id.)

To state a section 1983 malicious prosecution claim,

plaintiff must allege: "(1) the elements of the common law tort of

malicious prosecution, and (2) a violation of [the plaintiff's]

Fourth Amendment right to be free from unreasonable seizures."

Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004)

(citing Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)).

Defendants do not challenge the sufficiency of the allegations as

to the first prong. Defendants assert, however, that Plaintiff

has failed to sufficiently allege the second prong of the section

1983 malicious prosecution claim, i.e., a constitutional violation

in relation to the prosecution.

The Eleventh Circuit has summarized the requirements of this

prong as follows:

Kingsland bears the burden of proving that she was seized

in relation to the prosecution, in violation of her

constitutional rights. In the case of a warrantless

arrest, the judicial proceeding does not begin until the

party is arraigned or indicted. Thus, the plaintiff's

arrest cannot serve as the predicate deprivation of

liberty because it occurred prior to the time of

arraignment, and was not one that arose from malicious

prosecution as opposed to false arrest.

Id. at 1235 (citation omitted) (internal quotation marks omitted).

The Eleventh Cause of Action fails to plausibly allege a

constitutional deprivation in relation to the prosecution

independent of the initial Fourth Amendment violation. The only

constitutional violations alleged within the TAC relate to

Plaintiff's seizure and warrantless arrest. As these occurred

prior to the beginning of the judicial proceeding, they are not

related to the prosecution for purposes of section 1983 malicious

prosecution claims. Kingsland, 382 F.3d at 1235-36. The only other

allegation by Plaintiff of a constitutional violation is

conclusory and not sufficient to state a claim for relief for

section 1983 malicious prosecution. (Doc. #72, ¶ 53: "As a direct

and proximate result of the acts of Defendants . . . Plaintiff

sustained . . . deprivation of his rights pursuant to the First,

Fourth, Fifth, Sixth and Fourteenth Amendments to the United States

Constitution . . . , loss of liberty . . . .”). Accordingly,

Plaintiff has failed to state a claim for Section 1983 malicious

prosecution against the CCSO deputies in their individual

capacities. The Eleventh Cause of Action is dismissed without

prejudice.

(4) Sixteenth Cause of Action — Negligent Hiring and

Retention Under Florida Law

Defendants argue that the Sixteenth Cause of Action, which

brings a claim against Sheriff Rambosk in his official capacity

for negligent hiring and training under Florida law, fails to state

a claim upon which relief may be granted. (Doc. #74, pp. 17-18.)

Specifically, Defendants argue that this cause of action appears

to be based on a claim that all individual deputies were

negligently hired and retained, but the only specific deputy

identified is Deputy Kinney. Defendants also emphasize that the

incorporation of Paragraph 13, which also names Sheriff Rambosk in

his individual capacity, would mean that to the extent the Sheriff

acted in bad faith and with malicious purposes creates an

impossible situation regarding the application of immunity

pursuant to Fla. Stat. § 768.28(9)(a).

The Court does not agree with defendants’ argument that the

cause of action only identifies deputy Kinney. Paragraph 241 of

the TAC states that “[a]n appropriate investigation would have

revealed the unsuitability of the individual CCSO defendants,

particularly Defendant Kinney, for employment assignments . . . .”

(Doc. #72, ¶ 241)(emphasis added). This is clear that Plaintiff

is referencing each defendant CCSO deputy.

As discussed above, the Court struck Paragraph 13 from the

Sixteenth Cause of Action because it confusingly and unnecessarily

incorporates Sheriff Rambosk in his individual capacity.

Accordingly, Defendants’ motion to dismiss the Sixteenth Cause of

Action for failure to state a claim is denied.

(5) Seventeenth Cause of Action — Negligent Training and

Supervision Under Florida Law

Defendants argue that the Seventeenth Cause of Action, a state

law claim for negligent training and supervision against Sheriff

Rambosk in his official capacity, also fails to state a claim upon

which relief may be granted. (Doc. #74, p. 18.) Defendants

reiterate their argument that this cause of action incorporates

Paragraph 13 of the TAC, and thus appears to bring a claim against

Sheriff Rambosk in his individual capacity. (Id.) Since the Court

has stricken paragraph 13, this argument is moot.

Defendants further argue that the TAC contains vague and

conclusory allegations that Sheriff Rambosk owed a duty to

plaintiff under state law to train, supervise, and discipline the

CCSO deputies in a particular way or to establish specific training

programs, or to supervise deputies in a particular manner prior to

their contact with Plaintiff. (Id., p. 19.) Defendants assert there

can be no governmental liability unless a common law or statutory

duty of care was owed to the injured party. (Id.) Defendants argue

that Sheriff Rambosk is immune from suit for decisions regarding

what subject matters to include in a training program or by policy

or in discipline, including how the Sheriff’s Office should train

deputies. In sum, Defendants contend that because no duty exists,

this claim should be dismissed. (Id., citing Lewis v. City of St.

Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001)(sovereign

immunity barred claim regarding how to train officers); Cook v.

Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1117-19 (11th Cir.

2005)(sovereign immunity barred claim regarding how to train

officers in suicide prevention)).

To sufficiently state a cause of action under Florida law for

negligent supervision, a plaintiff must allege: (1) the existence

of a relationship giving rise to a legal duty to supervise; (2)

negligent breach of that duty; and (3) proximate causation by

virtue of the breach. Albra v. City of Ft. Lauderdale, 232 F.

Appx. 885, 888 (11th Cir. 2007). "A person injured by a government

actor in the course of enforcing the laws for the general

protection of the public ordinarily has no claim, because the actor

owes no actionable common-law duty of care to the general public."

Vaden v. Campbell, No. 4:09CV12-RH/WCS, 2009 U.S. Dist. LEXIS

127138, 2009 WL 1919474, at *3 (N.D. Fla. July 2, 2009); McCain v.

Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992) (noting that the

existence of a duty of care is a "minimal threshold legal

requirement for opening the courthouse doors") (internal citations

and emphasis omitted). Rather, an individual injured by a

government actor only has a claim "if the government actor owes

the person a special duty of care." Id.; see Trianon Park Condo.

Assoc. v. City of Hialeah, 468 So. 2d 912, 919 (Fla. 1985). A

special duty of care arises "when law enforcement officers become

directly involved in circumstances which place people within a

'zone of risk' by [1] creating or permitting dangers to exist, [2]

by taking persons into police custody, [3] detaining them, or [4]

otherwise subjecting them to danger." Wallace v. Dean, 3 So. 3d

1035 (Fla. 2009) (quoting Pollock v. Fla. Dep't of Highway Patrol,

882 So. 2d 928, 935 (Fla. 2004)) (emphasis in original).

Here, Plaintiff has alleged facts showing that he was taken

into police custody and detained, and thus was owed a duty of care.

See Moore v. State, Fla. Fish and Wildlife Conservation Commission,

861 So.2d 1251, 1253 (Fla. 1st DCA 2003) ("[O]nce appellant had

been restrained of this liberty, he was in the 'foreseeable zone

of risk" [and] a duty of care was owed to the appellant.").

Plaintiff, however, does not allege facts showing that Sheriff

Rambosk breached this duty of care. Plaintiff alleges that the

Sheriff fell short in training and supervising his employees, but

he does not provide any facts as to why more training or

supervising was needed. (Doc. #72, ¶¶ 251-52.) Plaintiff simply

alleges a general duty to train his officers “so that they would

be able to interact with members of the public without violating

their civil rights,” based on Sheriff Rambosk’s knowledge of “the

individual CCSO defendants’ propensities for violating the

individual rights granted under the Constitution . . . and the

laws of . . . Florida.” (Doc. #72, ¶¶ 253-55.) Because these

conclusory allegations fail to "nudge [] [plaintiff's claim]

across the line from conceivable to plausible," the negligent

retention claim must be dismissed without prejudice for failure to

state a claim. See Twombly, 550 U.S. at 557; Harper v. Lawrence

Cnty., Ala., 592 F.3d 1227, 1233 (11th Cir. 2010).

(6) Punitive Damages

Defendants argue that Plaintiff also seeks punitive damages

from Sheriff Rambosk in his official capacity (Doc. #72, ¶ 5),

which are not recoverable as a matter of law. (Doc. #74, p. 5 n.2.)

The Court agrees. See City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 271, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981); Colvin v.

McDougall, 62 F.3d 1316, 1319 (11th Cir. 1995). Accordingly,

Plaintiff’s demand for punitive damages against Sheriff Rambosk

(in his official capacity) is dismissed.

Accordingly, it is now

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. #74) is GRANTED in

part and DENIED in part.

a. As to the First Cause of Action for First Amendment

Retaliation, Paragraphs 58-60, 77, and 86 are stricken

from this claim, but Defendants’ motion is otherwise

DENIED as to this claim.

b. As to the Second Cause of Action, Paragraphs 58, 77,

79, 81, 83, 85, 87, 88, and 90 are stricken from this

claim, but Defendants’ motion is otherwise DENIED as

to this claim.

c. As to the Third Cause of Action, Paragraphs 59, 81,

83 are stricken from this claim, but Defendants’

motion is otherwise DENIED as to this claim.

d. As to the Fourth Cause of Action, Paragraphs 59, 81,

83 are stricken from this claim, but Defendants’

motion is otherwise DENIED as to this claim.

e. As to the Fifth Cause of Action, Paragraphs 59, 81,

83 are stricken from this claim, but Defendants’

motion is otherwise DENIED as to this claim.

f. As to the Sixth Cause of Action, Paragraphs 59, 81,

83 are stricken from this claim, but Defendants’

motion is otherwise DENIED as to this claim.

g. As to the Seventh Cause of Action, Paragraphs 11, 13,

76, 78-79, 83-84, 89-90 are stricken from this claim,

but Defendants’ motion is otherwise DENIED as to this

claim.

h. As to the Eighth Cause of Action Paragraphs 11, 13,

76, 78-79, 83-84, 89-90 are stricken from this claim,

but Defendants’ motion is otherwise DENIED as to this

claim.

i. As to the Ninth Cause of Action, Paragraphs 76, 78,

83-84, and 89-90 are stricken from this claim, but

Defendants’ motion is otherwise DENIED as to this

claim.

j. Defendants’ motion to dismiss the Tenth Cause of

Action as to defendant Sheriff Rambosk is hereby

GRANTED and the claim is DISMISSED without prejudice.

k. Defendants’ motion to dismiss the Eleventh Cause of

Action is hereby GRANTED and the claim is DISMISSED

without prejudice.

l. Defendants’ motion to dismiss the Twelfth Cause of

Action is hereby GRANTED and the claim is DISMISSED

with prejudice.

m. Defendants’ motion to dismiss the Thirteenth Cause of

Action is hereby GRANTED and the claim is DISMISSED

with prejudice.

n. Defendants’ motion to dismiss the Fourteenth Cause of

Action is hereby GRANTED and the claim is DISMISSED

with prejudice.

o. As to the Fifteenth Cause of Action, Paragraphs 58

and 84 are stricken, but Defendants’ motion is

otherwise DENIED as to this claim.

p. As to the Sixteenth Cause of Action, Paragraphs 13,

14, 48, 53-60, 68-69, 89, 90, and 96 are stricken,

but Defendants’ motion is otherwise DENIED as to this

claim.

gq. Defendants’ motion to dismiss the Seventeenth Cause

of Action is hereby GRANTED and the claim is DISMISSED

without prejudice.

r. Defendants’ motion to dismiss the Eighteenth Cause of

Action is hereby GRANTED and the claim is DISMISSED

with prejudice.

s. Defendants’ motion to dismiss Plaintiff’s demand for

punitive damages against Sheriff Rambosk (in his

official capacity) is GRANTED.

DONE and ORDERED at Fort Myers, Florida, this 21st day of

September, 2022.

/ (2b fp

aff le fy dE, Ah

J9GHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record