Opinion

Doss v. Holder

Court: District Court, M.D. Florida
Filed: Sep 28, 2023
Cited by: 0 cases
Authority: More cited than 20.0%

“The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.”

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Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SURGRET URANIA DOSS,

Plaintiff,

v. Case No: 8:22-cv-129-CEH-AAS

GREGORY P. HOLDER, MICHAEL

R. VICTOR, PAT KENNEDY, JOHN

WALTER MCDARBY, CITY OF

TAMPA, CHAD CHRONISTER,

JOHN DOES I-X,

Defendants.

ORDER

This matter comes before the Court on Defendant John Walter McDarby’s

Motion to Dismiss (Doc. 79); Defendant Chad Chronister’s Motion to Dismiss (Doc.

80); Defendant City of Tampa’s Motion to Dismiss (Doc. 81); Defendants Pat

Kennedy and Michael R. Victor’s Motion to Dismiss (Doc. 82); and Defendant

Gregory P. Holder’s Motion to Dismiss (Doc. 83). Plaintiff, Surgret U. Doss, filed

responses in opposition. Docs. 86, 87, 88, 89, 90.

Defendants argue for dismissal of Plaintiff’s claims on several grounds,

including immunity, failure to state a claim, and that certain claims are time-barred.

The Court, having considered the motions and being fully advised in the premises, will

grant Defendants’ Motions to Dismiss. Plaintiff will be allowed one final opportunity

to amend certain claims, as detailed below.

I. FACTUAL BACKGROUND1

Plaintiff Surgret U. Doss (“Plaintiff” or “Doss”), who proceeds pro se, filed a

Fourth Amended Complaint (Doc. 72) on November 30, 2022. The events giving rise

to his claims are as follows.

Plaintiff Purchases Foreclosed Properties

The Hillsborough County Clerk of Court regularly conducts public foreclosure

auctions online. Doc. 72 ¶ 28. In 2016, David Acevedo bought four properties: 517

Tuscanny St., 2534 Clareside Dr., 4336 Spinnaker Cove Lane, and 12725 Bramfield

Dr. Id. ¶¶ 29–30. In March 2016, Acevedo transferred ownership of those properties

to Plaintiff by way of four quitclaim deeds. Id. ¶ 31. The same year, Plaintiff moved

into the Spinnaker property and used this address to obtain a replacement

identification card from the Department of Motor Vehicles. Id. ¶ 33.

Plaintiff claims that after the expiration of the statute of limitations, a non-party

law firm filed to foreclose against the Tuscanny property. Id. ¶¶ 34–38. Plaintiff was

denied intervenor status in that case. Id. ¶ 38. Additionally, a foreclosure case was filed

regarding the Spinnaker property, and Plaintiff asserts several procedural errors related

to notices of appearance and substitution of counsel were made in that matter. Id. ¶¶

39–55.

1 The statement of facts is derived from the Fourth Amended Complaint (Doc. 72), the

allegations of which the Court must accept as true in ruling on the instant motions to dismiss.

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

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

Then-Judge Gregory Holder presided over Hillsborough Circuit Court Case 15-

CA-71, which concerned the Spinnaker property. Id. ¶¶ 39–40. On January 6, 2017,

Plaintiff filed an Emergency Motion to Intervene in the case, requesting relief and a

hearing as an interested party. Id. ¶ 56. The motion was denied without a hearing. Id.

Soon after, Hillsborough County Sheriff’s Office (“HCSO”) employees posted a writ

of possession for the Spinnaker Property, and Plaintiff’s Emergency Motion

challenging it was denied. Id. ¶ 58. On January 31, 2017, Plaintiff filed an emergency

petition in the Second District Court of Appeal, and the Court issued an Order staying

the writ of possession. Id. ¶ 59.

Judge Holder’s Perjury Referral

On February 9, 2017, Judge Holder reported Plaintiff to law enforcement for

possible perjury based on a sworn filing Plaintiff allegedly submitted stating that he

did not own property in the country, state, or nation. Id. ¶¶ 61, 71–73. Specifically, he

contacted Detective Michael Victor, whose General Offense Report notes that Holder,

“believing a fraud was being committed, researched the Hillsborough County Property

Appraiser’s website and located real property owned by the suspect (Doss) and request

[sic] this fraud (perjury) be investigated by law enforcement.” Id. ¶ 61.

On February 14, Plaintiff attempted to intervene in the Tuscanny property case,

but the sitting judge obstructed his questioning of the bank’s attorney and Plaintiff was

escorted out. Id. ¶¶ 62–65. Thus, Plaintiff lost the property. Id. ¶ 65. Holder scheduled

a Case Management Conference (“CMC”) in the Spinnaker property case for February

17, and Plaintiff received notice of the CMC at his Spinnaker address. Id. ¶¶ 66–68.

Plaintiff believed the order was unusual because the Second DCA had stayed the case,

but attended to protect his interest in the Spinnaker property. Id. ¶¶ 68–78.

Case Management Conference

Plaintiff arrived late to the CMC, which he claims began without him. Judge

Holder told the other attorneys present that he had checked the appellate court docket

repeatedly to see what had been done as related to Plaintiff’s “motion to review,” and

that the case had essentially been stayed. Id. ¶ 70. He accused Plaintiff of indicating in

a sworn filing that he did not own any property in the United States. Id. ¶ 71. Plaintiff

disputes having made any such filing. Id. ¶¶ 72–73.2 Holder told Plaintiff that he had

arguably committed perjury and that the matter had been referred to Detective

Michael Victor of the Tampa Police Department for further investigation. Id. ¶¶ 74–

75. Holder limited Plaintiff’s ability to question the other attorneys at the hearing and

stated that the purpose of the hearing was to investigate certain allegations related to

the case. Id. ¶¶ 77–80.

Interview, Warrant, and Arrest

After the CMC, Plaintiff learned that Detective Victor visited the Tuscanny

property to speak with the tenants. Id. ¶ 81. Plaintiff repeatedly reached out to Victor

and the Tampa Police Department about the investigation, to no avail. Id. ¶¶ 82–86.

2 Although Plaintiff disputes having made such a filing, he attaches to his Fourth Amended

Complaint an “Application for Determination of Civil Indigent Status,” dated January 31,

2017, in which he attested to owning no property or real estate. Doc. 72-1 at 204–205.

The tenants stopped speaking with Plaintiff after Victor and HCSO Deputy McDarby

visited the property. Id. ¶ 87. Plaintiff claims that he decided not to return to Tuscanny,

fearing further retaliation, and never spoke to or met Victor. Id. ¶¶ 88–89. On March

17, 2017, HCSO deputies forcefully removed Plaintiff from his Spinnaker property,

despite Plaintiff’s proof of ownership. Id. ¶¶ 91–95. On March 20, 2017, Plaintiff filed

a separate lawsuit in this District, in response to the eviction, against several banks and

Holder. Id. ¶ 101.

Perjury Proceeding and Dismissal

On May 26, Detective Victor filed a Criminal Report Affidavit (“CRA”) against

Plaintiff. Id. ¶ 103. In June, the State Attorney’s Office charged Plaintiff with Perjury

under Florida Statute 837.02(1), on the grounds that he made a false statement under

oath. Id. ¶¶ 104–106. On June 27, 2017, Plaintiff turned himself in at the Hillsborough

County Jail. He was released shortly after on a surety bond. Id. ¶ 108. After a number

of proceedings were held in that case and Plaintiff filed discovery motions, the charges

against him were dismissed on January 28, 2018. Id. ¶¶ 140–144. Plaintiff claims that

as a result of Defendants’ actions, he lost four legally acquired properties, potential

residual income, and his primary home. Id. ¶¶ 145–152.

a. Procedural Background

Plaintiff filed his initial complaint on January 14, 2022. Doc. 1. On May 3, he

filed an Amended Complaint. Doc. 16. On August 15, Plaintiff filed an unopposed

motion for leave to amend his complaint (Doc. 24), which was granted on September

20. Doc. 45. On October 17, Plaintiff filed a Third Amended Complaint, followed by

two unopposed Motions for Leave to Amend Complaint (Docs. 64, 65). The Court

granted his request to file another amended complaint. Doc. 71. On November 30,

2022, Plaintiff filed his Fourth Amended Complaint, the operative Complaint here.

Doc. 72.

b. Plaintiff’s Claims and Defendants’ Motions

Across twenty-one counts, Plaintiff asserts state and federal claims against seven

Defendants.3 His claims include 14th Amendment conspiracy under 42 U.S.C. § 1985

(Count 1); 14th Amendment conspiracy to commit false arrest under 42 U.S.C. § 1985

(Counts 2–6); “False Arrest (4th Amendment Violation)” (Counts 7–8); Monell Claims

against the City of Tampa under 42 U.S.C. § 1983 (Count 9); 4th, 5th, and 14th

Amendment Violations for Failure to Adequately Train and Failure to Intervene under

42 U.S.C. § 1983 against Sheriff Chad Chronister (Count 10); Fourth Amendment

Claims for Malicious Prosecution (Counts 11–15); negligent supervision (Counts 16

and 18); respondeat superior (Count 17); state law malicious prosecution (Count 19);

intentional infliction of emotional distress (Count 20); and indemnification (Count

21).

Defendants move to dismiss on the grounds that certain Defendants are

immune from suit, certain claims are time-barred, and Plaintiff fails to state a claim in

the remaining counts. The Court finds as follows: (1) the false arrest claims are time-

3 In addition to the named Defendants, Plaintiff sues “John Does I-X, Individually and in

their Official Capacities.”

barred; (2) Defendant Holder is protected by judicial immunity against Plaintiff’s

claims; and (3) the remaining counts fail to state a claim. Plaintiff will be given one

final opportunity to amend the claims in Counts 1, 9, 10, 11–15, 16, 18, 19, and 20.4

II. LEGAL STANDARD

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

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

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

conclusions and formulaic recitations of the elements of a cause of action are not

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

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

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

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

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

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

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

stated as a “factual allegation” in the complaint. Id. Although a pro se litigant’s

pleadings are held to a less stringent standard, they must still meet minimal pleading

4 In the event that Plaintiff chooses to amend his Complaint for a fifth time, and in light of the

fact that Plaintiff includes—as an exhibit—the filing that led to the perjury investigation his

claims are based on (Doc. 72-1 at 204–205), the Court reminds him of Federal Rule of Civil

Procedure 11, which provides that by signing papers or motions filed with the Court, a pro se

party “certifies that to the best of [his] knowledge, information, and belief . . . [the filing] is

not being presented for any improper purpose . . . the factual contentions have evidentiary

support . . . and denials of factual contentions are warranted on the evidence or . . . are

reasonably based on belief or a lack of information.” Fed. R. Civ. P. 11(b).

standards. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Olsen v. Lane, 832 F.Supp.

1525, 1527 (M.D. Fla. 1993).

III. DISCUSSION

A. Shotgun Pleading

As a threshold matter, Defendant Sheriff Chronister argues that the complaint

is an impermissible shotgun pleading because it is full of conclusory, vague, and

immaterial facts unrelated to any cause of action and that it fails to give adequate

notice of Plaintiff’s claims against him. Doc. 80 at 23–24. Although the operative

complaint is indeed conclusory, vague, and unnecessarily lengthy, the Court will not

dismiss it as a shotgun pleading because it sufficiently puts Defendants on notice of

the claims against them. Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1323

(11th Cir. 2015) (“The unifying characteristic of all types of shotgun pleadings is that

they fail to one degree or another, and in one way or another, to give the defendants

adequate notice of the claims against them and the grounds upon which each claim

rests.”).

B. Judicial Immunity

Defendant (and former Judge) Gregory Holder is named in Counts One, Two,

Eight, Fifteen, Nineteen, and Twenty. He presided over Hillsborough Circuit Court

Case No. 15-CA-71, which involved one of Plaintiff’s quitclaimed properties. Doc. 72

¶¶ 40, 61–80. Plaintiff alleges that Holder conspired to have him falsely arrested and

prosecuted for perjury. Id. at 2–3. Holder argues that judicial immunity bars Plaintiff’s

claims because they are premised on acts that fell within his judicial capacity and are

normally performed by judges in court. Doc. 83 at 4–6. Plaintiff responds that

immunity should not be granted because the claims against Judge Holder are not in

his judicial capacity, and he acted outside his judicial capacity when he referred the

alleged perjury to law enforcement. Doc. 87 at 2–6.

Judges are entitled to absolute judicial immunity from damages for acts taken

in their judicial capacity unless they acted in the “clear absence of all jurisdiction.”

Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (citations omitted). In Stump v.

Sparkman, 435 U.S. 349, 356–62, the Supreme Court recognized a two-part test to be

used in determining whether a judge is absolutely immune from potential civil liability.

The reviewing court must ask whether the judge was acting in a judicial capacity while

dealing with Plaintiff, and whether the judge acted in the “clear absence of all

jurisdiction.” Id. at 356–57, 360. Only in circumstances where a judge acted in the

“clear absence of all jurisdiction” or dealt with Plaintiff in a non-judicial capacity can

the judge face civil liability for actions taken. See id. at 356–62. This immunity applies

even when the judge's acts are in error, malicious, or were in excess of his or her

jurisdiction. Id. at 356–57.

The various claims against Holder stem from two acts: his referral of Plaintiff

to law enforcement and questioning of Plaintiff during the CMC. Doc. 72 ¶¶ 40–80,

208–217. First, the Court agrees with Defendant that Holder acted in his judicial

capacity when he referred Plaintiff’s case to law enforcement for investigation and

questioned Plaintiff in court. In making this determination, the Court considers

whether the challenged actions: (1) were part of the ordinary judicial function; (2)

occurred in chambers or in court; (3) involved a case pending before the judge; and (4)

arose out of a visit to a judge in the judge's official capacity. Sibley v. Lando, 437 F.3d

1067, 1070 (11th Cir. 2005). The first act here, questioning a litigant during a case

management conference, is an everyday part of the ordinary judicial function,

occurred in court, involved a case pending before the judge, and arose out of a visit to

Holder in his official judicial capacity. The second—referring a possible instance of

perjury to law enforcement—involved a case Holder presided over. Plaintiff’s assertion

that Holder lacked jurisdiction over the foreclosure matter when he made the

investigative referral is insufficient to render the action outside Holder’s judicial

capacity, even assuming Plaintiff is correct on the jurisdictional point. See Bolin, 225

F.3d at 1239 (explaining that a judge acts within the judicial capacity even if the act is

in excess of jurisdiction so long as that excess does not amount to the “‘clear absence

of all jurisdiction’” (quoting Stump, 435 U.S. at 356–57).

The second prong asks whether the judge acted in the clear absence of his

jurisdiction. In answering that question, courts “construe the scope of the judge’s

jurisdiction in an extremely broad fashion.” Kalmanson v. Lockett, 848 So. 2d 374, 379

(Fla. 5th DCA 2003). Plaintiff argues that because the foreclosure case was before the

Second District Court of Appeal when Holder called Michael Victor, the investigative

referral was “entirely outside his jurisdiction as a judge.” Doc. 87 at 4. Again, the

Court disagrees. Construing the scope of Judge Holder’s jurisdiction in an “extremely

broad fashion,” neither questioning a litigant at a case management conference nor

making an investigative referral to law enforcement were acts taken in the “complete

absence of all jurisdiction.” See Mireles v. Waco, 502 U.S. 9, 12 (1991). Because Holder

is immune from Plaintiff’s claims, amendment would be futile, and Plaintiff’s claims

against Holder in Counts One, Two, Eight, Fifteen, Nineteen, and Twenty are

dismissed with prejudice. See William B. Cashion Nevada Spendthrift Tr. v. Vance, 552

Fed. Appx. 884, 885 (11th Cir. 2014) (per curiam) (affirming dismissal with prejudice

of § 1983 claim based on judicial immunity).

C. Statute of Limitations

False Arrest

Counts Three through Six are claims against Victor, Kennedy, McDarby, and

John Does I–X for conspiracy to falsely arrest Plaintiff pursuant to 42 U.S.C. § 1985.

Count Seven is a claim for false arrest in violation of the Fourth Amendment under 42

U.S.C. § 1983 against Victor and Kennedy. Plaintiff states that he turned himself in to

jail pursuant to an arrest warrant on June 27, 2017. Doc. 72 ¶ 108. Defendants argue

that Plaintiff’s false-arrest claims accrued that day and must have been filed by June

27, 2021. Doc. 79 at 22; Doc. 80 at 22. Doc. 82 at 7–8; Doc. 83 at 7. Plaintiff responds

generally (and without citing to law) that his claims were timely filed. See Docs. 86–

90.

Claims brought under § 1985 are measured by the personal injury limitations of

the state. Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996). In Florida, there is a four-

year personal injury statute of limitations. Chappell v. Rich, 340 F.3d 1279, 1283 (11th

Cir. 2003); Fla. Stat. § 95.11(3). A cause of action for false arrest accrues as soon as

the arrest occurs. Wallace v. Kato, 549 U.S. 384, 387–388 (2007). Here, Plaintiff turned

himself in to jail pursuant to the warrant on June 27, 2017—meaning that he had until

June 27, 2021, to bring an action. Doc. 72 ¶ 108. He did not file the instant case until

January 14, 2022, more than six months after the statute of limitations expired. See

Doc. 1. As Defendants point out, Florida Statute § 95.051 allows for tolling of a statute

of limitations in certain situations. However, Plaintiff makes no tolling argument, nor

do his claims obviously fall under any statutory exception. Therefore, it is apparent

from the face of the complaint that the claim is time-barred, and Counts Two through

Six are due to be dismissed under Fed. R. Civ. P. 12(b)(6). Garcia v. Chiquita Brands

Int'l, Inc., 48 F.4th 1202, 1220 (11th Cir. 2022).

Count Seven is a claim for false arrest under the Fourth Amendment and 42

U.S.C. § 1983. Doc. 72 at 44. Again, no statute of limitations is specifically prescribed.

Therefore, the applicable statute of limitations for causes of action that arise pursuant

to a § 1983 claim is that of the forum state. Powell v. Thomas, 634 F.3d 1300, 1303 (11th

Cir. 2011). Florida law requires that actions for assault, battery, false arrest, malicious

prosecution, malicious interference, false imprisonment, and any other intentional tort

be filed within four years. Jones v. Collier County Sheriff's Dept., No. 95-232-CIV-FTM-

17D, 1996 WL 172989, at *3 (M.D. Fla. Apr. 9, 1996).

While the Court gives some leniency to a pro se party in their pleadings, the

“statute of limitations established by Florida Statute §95.11(3) presents an absolute

bar” to a cause of action. Id. Here, Plaintiff’s Complaint was filed over six months after

the limitations period expired. Thus, it is apparent from the face of the Complaint that

his false arrest claims are time-barred, and the Court will grant Defendants’ motion

under Fed. R. Civ. P. 12(b)(6). Gonsalvez v Celebrity Cruises, Inc, 750 F. 3d 1195, 1197

(11th Cir. 2013). Because amendment would be futile, these claims are dismissed with

prejudice.

Finally, Count One is a 42 U.S.C. § 1985 claim against all Defendants for 14th

Amendment Conspiracy. Doc. 72 at 32. To the extent this claim is based on a theory

of false arrest, it too is time-barred and due to be dismissed with prejudice (Id. ¶¶ 162–

171). Count One will be considered separately to the extent it is based on a theory of

malicious prosecution.

Kennedy

Kennedy argues that Counts One, Four, Seven, Twelve, Nineteen and Twenty

are barred by the statute of limitations and must be dismissed with prejudice because

he was only named in an amended complaint after the statute of limitations had

expired. Doc. 82 at 1. Plaintiff disagrees, arguing that Kennedy was named in the

original complaint and that counsel waived service on “readmitting him.” Doc. 86 at

9. The Court disagrees with Kennedy’s argument for dismissal based on the statute of

limitations. “A dismissal for failure to state a claim on statute of limitations grounds

is appropriate only if it is apparent from the face of the complaint that the claim is

time-barred.” United States ex rel. Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1085

(11th Cir. 2018) (marks and citation omitted). Defendant argues that Plaintiff “did not

originally name Patrick Kennedy as a Defendant in the January 2022 complaint.”

Doc. 82 at 8. This is incorrect, as the initial complaint in fact named Kennedy. See

Doc. 1. Thus, it is not apparent from the face of the complaint that the claims against

him are barred. See Fed. R. Civ. P. 3 (“a civil action is commenced by filing a

complaint with the court”).

D. Qualified Immunity

Deputy McDarby5

Deputy McDarby seeks dismissal of Counts One, Five, and Thirteen based on

qualified immunity. Doc. 79 at 17–19. He argues that Plaintiff has failed to sufficiently

allege a constitutional violation of clearly established law. Id. Plaintiff disagrees. Doc.

88 at 4. However, he does not specifically respond to Defendant’s arguments on either

prong of the qualified immunity analysis.

Qualified immunity is a defense to federal claims only. D’Aguanno v. Gallagher,

50 F.3d 877, 879 (11th Cir. 1995). “Qualified immunity protects police officers from

suit in their individual capacities for discretionary actions performed in the course of

their duties.” Carter v. Butts Cnty., 821 F.3d 1310, 1318 (11th Cir. 2010). The Supreme

Court has “‘repeatedly . . . stressed the importance of resolving immunity questions at

5 To the extent Plaintiff sues Deputy McDarby in his official capacity (Doc. 72 ¶ 24), any such

claims are due to be dismissed as redundant, considering that Plaintiff also sues the Sheriff in

his official capacity in this action. Bailey v. Town of Lady Lake, Fla., No. 5:05-CV464-WTH-

GRJ, 2006 WL 2048250, at *3 (M.D. Fla. July 20, 2006) (“[W]hen a suit is filed against both

a governmental entity and the entity's officers and employees in their official capacities, it is

appropriate for the Court to dismiss the named individual defendants in their official

capacities as ‘redundant and possibly confusing to the jury.’”) (citing Busby v. City of Orlando,

931 F.2d 764, 776 (11th Cir. 1991)

the earliest possible stage in litigation.’” Pearson v. Callahan, 555 U.S. 223, 232 (2009)

(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)). As such, a court may

grant a motion to dismiss on qualified immunity grounds where the complaint fails to

allege the violation of a clearly established constitutional right. Corbitt v. Vickers, 929

F.3d 1304, 1311 (11th Cir. 2019).

To receive qualified immunity, “an official must first establish that he was

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

occurred.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (internal

quotation marks omitted). “A governmental official acts within his discretionary

authority if his actions were (1) undertaken pursuant to the performance of his duties;

and (2) within the scope of his authority.” Mikko v. City of Atlanta, 857 F.3d 1136, 1144

(11th Cir. 2017). If a defendant establishes that he was acting within discretionary

authority, “the burden shifts to the plaintiff to show that qualified immunity is not

appropriate,” Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015) (internal

quotation marks omitted), which requires the plaintiff to establish that qualified

immunity is inappropriate by showing that “(1) the facts alleged make out a violation

of a constitutional right and (2) the constitutional right was clearly established at the

time of the alleged misconduct,” Gates v. Khokhar, 884 F.3d 1290, 1297 (11th Cir.

2018). Qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Here, there is

no dispute that Deputy McDarby was acting within his discretionary authority as a

law enforcement officer at the time of the acts in question.

As to Counts One and Thirteen6, Plaintiff fails to sufficiently allege that

McDarby violated a clearly established constitutional right. Plaintiff alleges that

McDarby was contacted by Det. Victor to interview a witness. McDarby interviewed

the witness and then wrote a report. Doc. 72 ¶¶ 87–88, 300. Plaintiff does not cite any

case law that would apply to the facts of this case and thus notify McDarby that his

actions would violate Plaintiff’s constitutional rights. Further, Plaintiff does not allege

facts from which it can be said that McDarby’s conduct was so egregious as to violate

his constitutional rights. Nor are there any broad statements of principle or law that

would give McDarby fair notice that his actions would violate a clearly established

constitutional right. Plaintiff fails to show that under “clearly established” law,

McDarby’s actions amounted to a constitutional violation. See Spivey v. Elliott, 41 F.3d

1497, 1499 (11th Cir. 1995). The claims against McDarby will thus be dismissed.

Considering Plaintiff’s pro se status and request for leave to amend in the event his

Complaint is dismissed (Doc. 88 at 5), he will be given one final opportunity to replead

the claims in Count One and Count Thirteen against McDarby, if he so chooses.

D. Fictitious Defendants

In Count Ten, Plaintiff alleges that unnamed Sheriff’s Office employees

furthered the conspiracy against him. Doc. 72 ¶¶ 262–274. Defendant Sheriff argues

that Plaintiff fails to state a cause of action against those unnamed employees and

failed to perfect a fictious party filing. Doc. 80 at 17. Furthermore, the Sheriff argues

6 As discussed, supra, Count Five is dismissed as it is time-barred.

that Plaintiff’s attempts to substantiate his allegations by mentioning unspecified acts

on unspecified dates by unnamed Defendants provides no support for his claims. Id.

Plaintiff does not respond to these arguments. See Doc. 90.

As a general matter, fictitious-party pleading is not permitted in federal court.

Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010); see Williams v. DeKalb Cnty.

Jail, 638 F. App'x 976, 976–77 (11th Cir. 2016) (holding that the district court did not

err in dismissing a complaint for failure to state a claim because the complaint failed

to name an actionable party). An exception to this rule exists where “the plaintiff's

description of the defendant is so specific as to be ‘at the very worst, surplusage.’”

Richardson, 598 F.3d at 738 (quoting Dean v. Barber, 951 F.2d 1210, 1215–16 (11th Cir.

1992)). Relatedly, plaintiffs have been allowed to “use fictitious names to indicate real

defendants” where it appeared that discovery would “likely uncover the defendants’

actual names.” Daleo v. Polk Cnty. Sheriff, No. 8:11-cv-2521-JSM-TBM, 2012 WL

1805501, at *5 (M.D. Fla. May 17, 2012). In Daleo, the plaintiff named “Unnamed

Polk County Deputies” as defendants, and the Court found that discovery would likely

uncover these defendants’ names where the amended complaint contained the address

of the plaintiff's home, where the alleged violations occurred, and the date of the police

encounter. Id. at *1, *5.

Here, Plaintiff merely contends that John Does 1–10 are “currently unknown

and fictitiously named defendants” about whom “Plaintiff obtained information

during his lower-court proceedings.” Doc. 82 ¶ 25. Plaintiff provides no specific

information, and whether discovery will likely uncover the names of these parties is

unclear. Thus, all claims against the “John Doe” Defendants will be dismissed without

prejudice.

E. Failure to State a Claim

Count One

Plaintiff sues Holder, Victor, Kennedy, McDarby, and John Does I-X under 42

U.S.C. § 1985 for conspiring to accuse him of making a false statement and have him

arrested. Doc. 72 ¶ 162. Defendants argue that Count One fails to state a plausible

claim for conspiracy on several grounds. Doc. 79 at 6–8; Doc. 82 at 8–10; Doc. 83 at

8. Of the remaining Defendants, Kennedy argues that there are no factual allegations

that he spoke to Holder, and no facts to demonstrate a conspiracy between him and

Holder. Doc. 82 at 9. Both Victor and Kennedy argue that the complaint lacks any

allegations regarding a conspiracy to violate Plaintiff’s rights. Id. at 13. Furthermore,

they argue Plaintiff presents nothing more than conclusory statements regarding the

alleged conspiracy. Id. Plaintiff responds that his conspiracy claims should not be

dismissed because Defendants misrepresent the facts and have refused to provide him

with information underlying the state court perjury case. Doc. 86 at 7–15.

To the extent this claim is premised on false arrest, it is dismissed with prejudice

as time-barred. See the discussion, supra, at pages 10–12. However, Doss also claims

that Defendants conspired to maliciously prosecute him. Id. ¶ 170. Thus, the Court

analyzes whether the allegations related to malicious prosecution are sufficient to

survive dismissal. Because Plaintiff fails to plausibly allege a conspiracy as to any of

the Defendants, Count One is due to be dismissed.

The elements of a section 1985 conspiracy are: (1) a conspiracy; (2) for the

purpose of depriving either directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and immunities under the laws; and

(3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his

person or property or deprived of any right or privilege of a citizen of the United States.

Cook v. Randolph County, Georgia, 573 F.3d 1143, 1156 (11th Cir. 2009). A complaint

containing conclusory, vague, and general allegations of conspiracy will be dismissed

as insufficient. Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990); Kearson v.

Southern Bell Telephone & Telegraph Co., 763 F.2d 405, 407 (11th Cir. 1985). The

complaint must demonstrate that the conspiratorial acts intruded upon Plaintiff's

federal rights, and that Defendants reached an agreement or understanding to commit

the acts. Bendiburg, 909 F.2d at 468; see also Strength v. Hubert, 854 F.2d 421, 425 (11th

Cir.1988); Fullman v. Graddick, 739 F.2d 553, 556–57 (11th Cir.1984).

The claims against Victor and Kennedy fall far short of a plausible conspiracy

claim. The Complaint alleges that Kennedy and Victor spoke on the telephone, and

that Kennedy acted as the notary for Victor’s probable cause attestation on the CRA.

Doc. 72 ¶ 86, Doc. 72-1 at 195. However, there are no allegations regarding the

substance of the conspiracy or which of Plaintiff’s rights were violated. Instead,

Plaintiff provides conclusory, vague, and general allegations. For example, the bulk of

his allegations regarding Victor are that his investigation was deficient and excluded

exculpatory information that would have demonstrated Plaintiff did not own the

properties he was accused of owning. Doc. 72 ¶¶ 195, 197, 207. However, the

Complaint’s specific factual allegations: that Victor went to the Tuscanny property to

speak with tenants, never attended the perjury proceedings, and failed to interview or

reach out to Plaintiff (Id. ¶¶ 81, 82, 87) do not lend support to Plaintiff’s claims.

Plaintiff’s allegations that Victor, Kennedy, and the other Defendants conspired to

maliciously prosecute him are conclusory, vague, and general. Thus, they are

insufficient to state a claim. Bendiburg, 909 F.2d at 468; Fullman, 739 F.2d at 556–57

Defendant is also correct that Plaintiff’s assertion that Kennedy and Victor

conspired together because Victor was “[u]nder Kennedy’s direct supervision” is

barred by the doctrine of intracorporate conspiracy. This doctrine stems from basic

agency principles that “attribute the acts of agents of a corporation to the corporation,

so that all of their acts are considered to be those of a single legal actor” and applies to

public and governmental entities, such as police departments. Dickerson v. Alachua Cnty.

Comm'n, 200 F.3d 761, 767 (11th Cir. 2000). This claim is dismissed without

prejudice.7

Count Nine

In Count Nine, Plaintiff brings claims under 42 U.S.C. § 1983 and Monell

against the City of Tampa, alleging that the City’s policies, customs, and practices

resulted in the violation of his constitutional rights. Doc. 72 ¶¶ 218–260. The City

argues that Plaintiff fails to state a claim because he: (1) fails to allege a pattern that

7 Additionally, for the same reason that the official capacity claims against Deputy McDarby

were dismissed, (supra, at 14) the claims against Officers Kennedy and Victor in their official

capacities will be dismissed as redundant since the City of Tampa is also named in this suit.

Bailey, 2006 WL 2048250 at *3.

put the City on notice of constitutional violations; (2) alternatively, fails to

demonstrate that the City had such notice based on a theory of obvious need; and (3)

fails to allege plausible facts that would allow the Court to infer that the city is liable

for the alleged misconduct. Doc. 81 at 5–9. Plaintiff responds that the City knew Victor

spent excessive time investigating him, instead of his primary assignment, and that he

has set out several examples of the City’s history of violating constitutional rights. See

Doc. 89.

To state a Section 1983 claim against a municipality, a plaintiff must allege that

his constitutional injury was caused by the execution of a government entity's official

custom or policy. Sheffield v. City of Sarasota, No. 8:15-cv-319-JSM-TBM, 2015 WL

1346421, at *6 (M.D. Fla. Mar. 24, 2015) (citing Monell v. Dep't of Soc. Servs. of N.Y.,

436 U.S. 658, 694 (1978)). “But a municipal employer is not vicariously liable under

Section 1983 for injuries caused solely by its employees.” Id. (citing Monell, 436 U.S.

at 691–94; McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)). “A plaintiff can

only impose Section 1983 liability on a municipality if the plaintiff can show (1) that

her constitutional rights were violated, (2) that the municipality had a custom or policy

that constituted deliberate indifference to that right, and (3) that the policy or custom

caused the constitutional violation.” Id. (citing McDowell, 392 F.3d at 1289).

Plaintiff alleges that incidents from 1973, 1980, and 1983 demonstrate a pattern

sufficient to put the City on notice of constitutional violations. Doc. 72 ¶¶ 244, 247,

248. However, the Court agrees with Defendant that these three isolated incidents are

insufficient to establish a pattern. Depew v. City of St. Mary’s Ga, 787 F.2d 1496, 1499

(11th Cir. 1986). Even if these three incidents could establish a pattern, they are not

substantially similar to the facts at hand, and thus cannot form the basis for a Monell

claim. Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005). The first

incident took place nearly 50 years ago, when a grand jury proceeding led to a finding

that Tampa Police Officers provided false information to secure search warrants with

the Chief of Police’s knowledge. Doc. 72 ¶¶ 244–246. The second incident (from the

mid-1980s) involved a police officer who was prosecuted for conspiracy and

misconduct for coaching a confidential informant to lie. Id. ¶ 247. In the third incident,

four TPD officers conspired to arrest and wrongfully convict a man for murder and

rape. Id. ¶ 248. Additionally, Plaintiff mentions a 2020 incident in which an individual

protesting her brother’s killing by a police officer was arrested. Id. ¶¶ 249–250. None

of these cases involve an investigation related to a court proceeding, nor are any of

them otherwise substantially similar to the facts here. Thus, Plaintiff fails to plausibly

allege that the City had prior notice of a constitutional issue.

As Plaintiff fails to allege a pattern of incidents prior to 2017, he must

demonstrate that the city had notice of unconstitutional conduct on a theory of obvious

need. This method of proving “patently obvious” failure to train encompasses a

“narrow range of circumstances where the consequences of the failure to equip law

enforcement with the specific tools to handle recurring situations, would be highly

predictable.” Board of County Commissioners v. Brown, 520 U.S. 397, 409 (1997).

Training officers on how to properly conduct perjury investigations does not fit within

the “limited circumstances” in which this theory applies, and Plaintiff thus fails to state

a plausible Monell claim for failure to train or supervise against the city. See e.g., Gold

v. City of Miami, 151 F. 3d 1346, 1352 (11th Cir. 1998) (holding that training officers

to use handcuffs is not an obvious training need). This count is dismissed without

prejudice.

Count Ten

Sheriff Chronister

Pursuant to 42 U.S.C. § 1983, Count Ten alleges that the Sheriff failed to

adequately train his officers and intervene to stop the misconduct of McDarby and the

John Doe employees in violation of the Fourth, Fifth, and Fourteenth Amendments.

Doc. 72 ¶ 263. The Sheriff argues that Plaintiff fails to sufficiently allege a connection

between office customs, policies, or procedures and any constitutional violations, and

that his unsupported conclusory allegations, factual deductions, and legal conclusions

are facially insufficient. Doc. 80 at 6–10. Plaintiff disagrees and argues that he will be

able to deduce more evidence and establish causal evidence through discovery. Doc.

90 at 3–4.

A plaintiff may bring a § 1983 claim against a municipal defendant for

deprivation of a federal right pursuant to an official policy, practice, or custom.

Riebsame v. Prince, 267 F.Supp.2d 1225, 1233 (M.D. Fla. 2003). However, beyond

simply alleging that such a policy exists, he must also allege that a course of action was

“consciously chosen” or “officially sanctioned or ordered.” Id. Thus, inadequate law

enforcement training “may serve as the basis for § 1983 liability only where the failure

to train amounts to deliberate indifference to the rights of persons with whom the

police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). To

establish a municipality's “deliberate indifference,” a plaintiff must put forward some

evidence that the municipality was aware of the need to train or supervise its

employees in a particular area. Gold, 151 F.3d at 1350–51.

Establishing notice of a need to train or supervise is difficult. Am. Fed'n of Lab.

& Cong. of Indus. Organizations v. City of Miami, FL, 637 F.3d 1178, 1189 (11th Cir. 2011)

A plaintiff may demonstrate notice by showing a “widespread pattern of prior abuse”

or even a single earlier constitutional violation. Gold, 151 F.3d at 1351. But he must

also demonstrate that constitutional violations were likely to recur without training.

Id. at 1352 n.12. In some cases, the need for training is so obvious that deliberate

indifference can be established even without an earlier violation or pattern of abuse.

Brown, 520 U.S. at 409. Still, it must have been obvious that the municipality's failure

to train or supervise its employees would result in a constitutional violation. Id. In

addition to notice, a plaintiff must also establish that the city “made a deliberate

choice” not to train its employees. Gold, 151 F.3d at 1350.

Here, Plaintiff argues that the Sheriff had notice because his Deputies arrested

Plaintiff in 2015 and 2017. Doc. 72 ¶¶ 264–265. Plaintiff does not give any detail

regarding the 2015 arrest, but states the 2017 arrest was based on a traffic violation. Id.

¶ 267. These incidents, taken as true, fail to establish a pattern of similar conduct

sufficient to put the Sheriff on notice of the misconduct alleged in this case. Plaintiff

has not plausibly alleged that the Sheriff had fair warning or notice that Deputy

McDarby’s interview and written report would constitute a pattern of unconstitutional

conduct. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Furthermore, Plaintiff’s unsupported

conclusory allegations, unwarranted factual deductions, and legal conclusions are

insufficient to state a claim. Plaintiff fails to allege prior sufficiently similar civil rights

violations, let alone “obvious, flagrant, rampant” violations that would have put the

Sheriff on notice of the need for correction. Holloman v. Harland, 370 F.3d 1252, 1294

(11th Cir. 2004). On these grounds, Count Ten will be dismissed without prejudice.

Fourth Amendment Malicious Prosecution

Counts Eleven, Twelve, Thirteen, Fourteen, and Fifteen are Fourth

Amendment malicious prosecution claims against Victor, Kennedy, McDarby, John

Does I-X, and Holder. Doc. 72 at 65–78. Defendants argue that Plaintiff fails to allege

that they were the legal cause of the original proceeding or that there was an absence

of probable cause. Doc. 79 at 10–13; Doc. 82 at 11–13.

To establish his claim, Plaintiff must both allege that Defendants violated his

Fourth Amendment right to be free from unreasonable seizures and that the elements

of the common law tort of malicious prosecution were met. Wood v. Kesler, 323 F.3d

872, 881 (11th Cir. 2002). Under Florida law, a cause of action for malicious

prosecution consists of the following six elements: that (1) an original criminal or civil

judicial proceeding against the plaintiff was commenced or continued; (2) the

defendant was the legal cause of the proceeding against the plaintiff; (3) the

termination of the proceeding constituted a bona fide termination in favor of the

plaintiff; (4) there was an absence of probable cause for the proceeding; (5) there was

malice on the part of the defendant, and (6) the plaintiff suffered damage as a result of

the proceeding. Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1354 (Fla. 1994); see also

DeMartini v Town of Gulf Stream, 942 F.3d 1277, 1309 (11th Cir. 2019).

Counts Eleven through Fifteen will be dismissed because Plaintiff fails to

plausibly allege facts to support that the proceeding against him lacked probable cause.

Although Plaintiff alleges repeatedly that the proceedings against him were instituted

“absent probable cause,” these allegations are nothing more than legal conclusions

that the Court is not required to accept as true, even at this stage. Iqbal, 556 U.S. at

677–78.

A defendant can establish probable cause by showing that it had “a reasonable

belief, based on the facts and circumstances known to [it], in the validity of the

claim[s].” DeMartini, 942 F.3d at 1301 (quoting Mee Indus. v. Dow Chem. Co., 608 F.3d

1202, 1211, 1218 (11th Cir. 2010). Whether probable cause exists is generally

determined based on the facts known at the time the underlying action was initiated,

not some later point in time. See United States v. Irurzun, 631 F.2d 60, 62 (5th Cir. 1980).

Thus, to state a plausible claim for malicious prosecution, Plaintiff must

plausibly allege that Defendants lacked probable cause to bring the perjury claims

against him. Instead, Plaintiff merely recites the chronology of events (which ended

with the charges being dismissed) and adds conclusory claims of conspiracy and an

absence of probable cause. In order for his malicious prosecution claim to survive

dismissal, however, Plaintiff must meet minimal pleading standards and provide

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

that is plausible on its face.” Iqbal, 556 U.S. at 677–78 (quoting Twombly, 550 U.S. at

570). The Fourth Amended Complaint, as it stands, does not. For example, Count

Eleven states that the Defendants “acting in concert, reached an agreement to falsely

accuse Plaintiff of making a false statement . . . to have him arrested without probable

cause, maliciously prosecuted, and potentially imprisoned for up to five years if

convicted.” Doc. 72 ¶ 275. These are legal conclusions that the Court is not required

to accept as true. Thus, the Court will allow Plaintiff to amend these counts, if he so

chooses, to allege a factual basis for the absence of probable cause and include

sufficient allegations to support the Complaint’s legal conclusions. See Wittenberg v.

Judd, No. 8:17-CV-467-RAL-AEP, 2017 WL 1399817, at *5 (M.D. Fla. Apr. 19,

2017).

Count Sixteen

Count Sixteen is a state law negligent supervision claim against Sheriff

Chronister in his official capacity. Doc. 72 at 82. Sheriff Chronister argues that his

office is entitled to sovereign immunity, and that neither he nor McDarby owed

Plaintiff a duty. Doc. 80 at 19. Even if the Court were to find that he owed a duty of

care to Plaintiff, the Sheriff argues that the challenged acts were “discretionary” and

thus cannot lead to governmental liability. Id. at 20. Finally, he argues that Plaintiff’s

remaining claims are conclusory and lack sufficient factual detail to survive the motion

to dismiss. Id. at 21–22. Plaintiff responds that his Complaint states plausible claims

for relief, but fails to respond to the Sheriff’s specific arguments. See Doc. 90.

Sovereign immunity “protects the state from burdensome [lawsuits that]

interfere [] [with] the performance of its governmental functions and preserves its

control over state funds, property and instrumentalities.” Davis v. State, Dep't of Corr.,

460 So. 2d 452, 461 (Fla. Dist. Ct. App. 1984) (Ervin, C.J., dissenting). “In Florida,

sovereign immunity is the rule, rather than the exception.” Pan-Am Tobacco Corp. v.

Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984). However, the Florida legislature has waived

sovereign immunity from tort suits to the extent set out in Fla. Stat. § 768.28. This

waiver extends to any state “agencies or subdivisions.” Cauley v. City of Jacksonville, 403

So. 2d 379, 384 (Fla. 1981).

The Sheriff’s office is thus entitled to sovereign immunity against Plaintiff's tort

claims subject to applying § 768.28. When a Florida governmental entity is sued for

negligence, a court first determines whether, pursuant to § 768.28, a private person

would have a duty of care and be similarly liable to the Plaintiff. Lewis v. St. Petersburg,

260 F.3d 1260, 1262 (11th Cir. 2001). Whether a defendant owes a plaintiff a duty of

care is a question of law for the trial court, and Courts have typically found four

grounds to find such a duty: (1) legislation; (2) case law; (3) judicial precedent; or (4)

a duty arising from the general facts of the case. See, e.g., Clay Elec. Coop., Inc. v. Johnson,

873 So.2d 1182, 1185 (Fla. 2003). Sheriff Chronister argues that Plaintiff does not

establish that he or McDarby owed him a duty of care. He contends that McDarby’s

witness interview and report of that interview do not establish a duty of care, and that

Florida Courts have found that the statutory waiver of sovereign immunity does not

create a cause of action for allegedly “negligent police work.” Doc. 80 at 19. Plaintiff’s

response simply states that “Chronister and the others had a duty not to violate

Plaintiff’s fundamental rights.” Doc. 90 at 2.

To the contrary, based on the law and allegations in the complaint, the Court

finds that Plaintiff was not owed a duty of care, and his claim thus fails. Plaintiff’s

Complaint and his Response to the Motion to Dismiss fail to cite to legislation, case

law, or any other authority that would support a finding that the Sheriff owed Plaintiff

a duty of care, as opposed to the duty owed to the public at large, based on the facts of

this case. Plaintiff claims that the Sheriff’s failure to train HCSO employees resulted

in his unlawful arrest, the fabrication of evidence to justify his arrest, and the failure to

disclose exculpatory information. Doc. 72 at 82. However, Plaintiff fails to cite any

grounds for his argument that the Sheriff owed him a duty of care, and the general

facts of the case are not enough to establish that a duty existed. 8 Additionally,

Defendant is correct that there is no common law duty for either a private person or a

governmental entity to prevent the misconduct of third persons. Trianon Park Condo.

Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985). Therefore, Count Sixteen

fails to state a plausible claim for relief.

Moreover, even if a duty of care existed, the challenged act of failure to train,

which Plaintiff appears to allege, is discretionary, and the Sheriff cannot be held liable.

An act is discretionary when it: (1) involves a basic government policy, program or

objective; (2) is essential to the realization or accomplishment of that policy, program,

or objective; (3) requires the basic policy evaluations, judgments, and expertise on the

8 See Clay Elec. Co-op., Inc, 873 So. 2d 1182, 1185 (Fla. 2003) (finding that a duty arose “from

the general facts of the case” where the parties relied on an alleged contract between the

parties to establish a legal duty).

part of the governmental agency involved; and (4) the agency involved possesses the

requisite constitutional, statutory, or lawful authority and duty to do or make the

challenged act, omission, or decision. Trianon Park, 468 So. 2d at 918. Plaintiff

contends that the Sheriff failed to train the deputies. The development of policies and

procedures related to the training of officers is a discretionary, planning-level function,

that is immune from suit. The only factual allegations against McDarby are that he

conducted an interview at the request of Detective Victor and drafted a report. Doc.

72 ¶¶ 5, 87, 364–365. Plaintiff fails to provide any coherent counterargument, and the

remainder of his allegations in this count are conclusory. Thus, this count will be

dismissed. Further, it will be dismissed with prejudice. Leave to amend is not needed

when it would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Here, further

amendment of the claim would be futile because Plaintiff was not owed a duty of care.9

Count Seventeen

Count Seventeen is a “State Law Claim for Respondeat Superior”

Against the City. Doc. 72 at 84. Plaintiff alleges the City failed to train and discipline

its employees on truthfully representing the facts of an interaction with an arrestee,

disclosure of evidence, and reliance on statements by incentivized informants. Id. ¶

333. The City argues that this count should be dismissed because the concept of

9 In this Count, Plaintiff also requests punitive damages in the amount of $100,000 against the

Sheriff. Doc. 72 at 84. However, Plaintiff’s request for punitive damages against the Sheriff is

improper, and due to be stricken, because punitive damages are not allowed against a

government entity. Colvin v. McDougall, 62 F.3d 1316, 1319 (11th Cir. 1995) (holding that a

Plaintiff may not receive a punitive damages award against a Florida Sheriff’s Department);