# Denson, Jr. v. Kinney

> District Court, M.D. Florida · September 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10111000

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10111000

## How later opinions describe it (automated extraction)

- 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"
- noting that the existence of a duty of care is a "minimal threshold legal requirement for opening the courthouse doors"

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111000. Public record. Not legal advice.