# Holmes v. City of Clearwater

> District Court, M.D. Florida · February 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10115239

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 26, 2024
- **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/10115239

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOHN HOLMES, JR.,

Plaintiff,

v. Case No. 8:23-cv-1380-TPB-SPF

CITY OF CLEARWATER, et al.,

Defendants.
_____________________________________/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
TO DISMISS SECOND AMENDED COMPLAINT; and

ORDER DENYING AS MOOT PLAINTIFF’S “MOTION
FOR LEAVE TO FILE THIRD AMENDED COMPLAINT”

This matter is before the Court on “Defendants’ Motion to Dismiss Second Amended
Complaint and Incorporated Legal Memorandum,” filed on February 1, 2024. (Doc. 29).
On February 7, 2024, Plaintiff John Holmes, Jr. filed a response in opposition to the
motion, along with an affidavit and memorandum. (Docs. 30; 31; 32). On the same day,
Plaintiff also filed a motion seeking leave to file a third amended complaint, along with a
supporting memorandum. (Docs. 33; 34). After reviewing the motions, response, court
file, and the record, the Court finds as follows:
Background1

According to Plaintiff John Holmes, he was illegally arrested by officers with the
Clearwater Police Department on several occasions. Plaintiff claims that on October 14,
2020, Officer Shante Dean arrested him for possession of cocaine, but the charge was
subsequently dismissed by the State Attorney’s Office. He claims that on November 21,
2020, Officer Christian Zarra arrested him for possession of cocaine, but that charge was
also dismissed by the State Attorney’s Office. Finally, Plaintiff alleges that on August 22,
2020, Officer Jason Lambe arrested him for child neglect and grand theft motor vehicle,
but those charges were also dismissed by the State Attorney’s Office.
In his fourteen-count complaint, Plaintiff sues the City of Clearwater under 28
U.S.C. § 1983 for alleged constitutional violations. He also sues Officer Dean, Officer
Zarra, Officer Lambe, and Mayor Frank Hibbard in their individual capacities based on
their roles in the events.
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and
plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P.

8(a). While Rule 8(a) does not demand “detailed factual allegations,” it does require “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). In order to survive a

1 The Court accepts as true the facts alleged in the complaint for purposes of ruling on the
pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on
a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.”). The Court is not required to accept as true any legal
conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286 (1986).
motion to dismiss, factual allegations must be sufficient “to state a claim to relief that is
plausible on its face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D. Fla.
1995). Furthermore, when reviewing a complaint for facial sufficiency, a court “must
accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in the light
most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236

(1974)). “[A] motion to dismiss should concern only the complaint’s legal sufficiency, and
is not a procedure for resolving factual questions or addressing the merits of the
case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-cv-1264-T-26TGW,
2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).
As Plaintiff in this case is proceeding pro se, the Court more liberally construes the
pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018). However, a pro se
plaintiff must still conform with procedural rules and the Court does not have “license to
act as de facto counsel” on behalf of a pro se plaintiff. United States v. Padgett, 917 F.3d
1312, 1317 (11th Cir. 2019).

Analysis
Defendants seek to dismiss Plaintiff’s second amended complaint as a shotgun
pleading and for failure to state a claim. Although Defendants seek dismissal with
prejudice, the Court will grant leave to amend as to most of Plaintiff’s claims, as explained
below. Plaintiff is advised, however, that the Court is not likely to permit further
amendment.
Shotgun Pleading
Defendants first argue that the second amended complaint constitutes a shotgun
pleading. A shotgun pleading is one where “it is virtually impossible to know which
allegations of fact are intended to support which claim(s) for relief” and the defendant
therefore cannot be “expected to frame a responsive pleading.” See Anderson v. Dist. Bd.
Of Trustees of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th Cir. 1996). The Eleventh
Circuit has identified four primary types of shotgun pleadings, including:

(1) complaints containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count to
carry all that came before and the last count to be a combination of the
entire complaint;

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

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

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

See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015).
A district court must generally permit a plaintiff at least one opportunity to amend a
shotgun complaint’s deficiencies before dismissing the complaint with prejudice. Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018).
Plaintiff’s second amended complaint commits the “sin” of not separating each
cause of action or claim for relief into a different count. For instance, Plaintiff asserts
false arrest claims in Count I against the City of Clearwater, Christian Zarra (in his
individual capacity), Jason Lambe (in his individual capacity), and Shante Dean (in his
individual capacity). According to the facts, which were not specifically incorporated into
this count, the arrest conducted by Officer Dean occurred on October 14, 2020; the arrest
by Officer Zarra on November 21, 2020; and the arrest by Officer Lambe on August 22,
2021. Each of these arrests was based on separate conduct and resulted in different
charges. Other counts, such as Count II, contain the same defect – claims about three
distinct arrests, conducted by three different officers, are mixed into the same count of the
complaint. This improper mixing of claims makes it difficult for Defendants to respond

appropriately and present defenses, and for the Court to appropriately adjudicate this
case. In any amended complaint, Plaintiff should separate out his claims related to the
different arrests into separate counts against each defendant.
In addition, in several of his counts, Plaintiff combines Monell2 claims against the
City with claims seeking to impose liability on the individual officers and the mayor.
Because the pleading requirements are different for Monell claims and § 1983 claims
against individuals, and because there are different defenses available, the Court will
require any future amended complaint to separate Monell claims into distinct counts.
Because the second amended complaint constitutes a shotgun pleading, it is

dismissed. In an abundance of caution, the Court will grant leave to amend.
Failure to State a Claim
Monell Claims Against City
Plaintiff asserts several § 1983 claims against the City – false arrest (Count I), false
imprisonment (Count II), negligent retention (Count III), malicious prosecution (Count
IV), “reckless indifference” (Count V), negligent supervision (Count VI), excessive force

2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).
(Count VII), violation of § 838.022(a), F.S. (Count VIII), intentional infliction of emotional
distress (Count IX), deliberate indifference (Count X), ratification (Count XI), “Monell
claim” (Count XII), harassment (Count XIII), and failure to train (Count XIV). He
generally alleges that the City has a “custom” or “policy” of arresting Plaintiff for
possession of illegal substances without finding substances on his person, and that the
City is “the moving force” behind these constitutional violations.
Under Monell, “[l]ocal governing bodies . . . can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief . . . pursuant to a governmental ‘custom’ even
though such a custom has not received formal approval through the body’s official
decisionmaking channels.” Monell, 436 U.S. at 690-91. Municipalities can only be held
liable, however, where “action pursuant to official municipal policy of some nature caused
a constitutional tort;” a city cannot be liable under § 1983 on a respondeat superior theory
because it employs a tortfeasor. Id. at 691. “Supervisor liability arises only ‘when the
supervisor personally participates in the allege constitutional violation or when there is a
causal connection between the actions of the supervising official and the alleged
constitutional deprivation.’ ” Gross v. Jones, No. 3:18-cv-594-J-39-PDB, 2018 WL

2416236, at *4 (M.D. Fla. May 29, 2018) (quoting Mathews v. Crosby, 480 F.3d 1265, 1270
(11th Cir. 2007)).
Consequently, “to impose § 1983 liability on a local government body, a plaintiff
must show: (1) that his constitutional rights were violated; (2) that the entity had a
custom or policy that constituted deliberate indifference to that constitutional right; and
(3) that the policy or custom caused the violation.” Scott v. Miami-Dade Cty., No. 13-CIV-
23013-GAYLES, 2016 WL 9446132, at *3 (S.D. Fla. Dec. 13, 2016). “A plaintiff seeking to
impose Section 1983 liability on a municipality for the actions of a police officer must
identify an official policy or custom constituting the ‘moving force’ behind the
constitutional violation.” Artuble v. Colonial Bank Grp., Inc., No. 8:08-cv-179-T-23-MAP,
2008 WL 3411785, at *8 (M.D. Fla. Aug. 8, 2008) (citing Monell, 436 U.S. at 694; Gold v.
City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)).
To demonstrate a policy or custom, “it is generally necessary to show a persistent
and wide-spread practice; random acts or isolated incidents are insufficient.” Scott, 2016
WL 9446132 at *4. The requisite causal connection can be established “when a history of

widespread abuse puts the responsible supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th
Cir. 2003) (internal quotation omitted). “Alternatively, the causal connection may be
established when a supervisor’s custom or policy results in deliberate indifference to
constitutional rights or when facts support an inference that the supervisor directed the
subordinates to act unlawfully or knew the subordinates would act unlawfully and failed
to stop them from doing so.” Id. (internal quotation and citation omitted).
Plaintiff does not sufficiently identify any officially adopted or promulgated policy
that caused an alleged Fourth Amendment violation in this case, nor does he allege any

facts to support an inference that an official policy or custom caused a constitutional
violation. He appears to assert that the City had a “custom” or “policy” of arresting
Plaintiff himself, and he vaguely alleges that the “City” is the moving force behind the
alleged constitutional violations. By doing so, Plaintiff conflates the custom or policy
pleading requirement with the constitutional deprivation pleading requirement. His
allegations are not sufficient – a more general custom or policy of the City must be
asserted beyond arresting Plaintiff, along with a causal connection between the
specifically identified custom or policy and the alleged constitutional deprivation. The
Court notes that allegations that the officers were acting under the color of state law
and/or in compliance with the customs and policies of the City are not enough. See
Artuble, 2008 WL 3411785, at *8.
In addition, Plaintiff does not sufficiently identify any prior incidents that would be
sufficient to state a widespread policy or custom. Plaintiff takes issue with three distinct
incidents relating to himself in this case. But alleging only things that happened to him
cannot establish a pattern of violations that would give notice to a municipality of the

need to conform to constitutional dictates. See Knight through Kerr v. Miami-Dade Cty.,
856 F.3d 795, 820 (11th Cir. 2017). Although Plaintiff vaguely alludes to two prior
arrests outside of the incidents at issue in this case, without more factual detail, the Court
cannot conclude that these two prior arrests were anything other than isolated instances.
Furthermore, although there is no bright-line rule for establishing a widespread custom or
practice, it does not appear that two prior incidents, even if well-pleaded, would be
enough.3 See Phillips v. Hillsborough Cty., No. 8:22-cv-1473-CEH-JSS, 2022 WL 3161705,
at *2 (M.D. Fla. July 20, 2022), report and recommendation adopted, 2022 WL 5240783
(M.D. Fla. Oct. 6, 2022) (appeal pending); Wilson v. Cook County, 742 F.3d 775, 780 (7th

Cir. 2014) (citations omitted).
Consequently, the Court will dismiss all Monell claims against the City. In an
abundance of caution, the Court will grant leave to amend.

3 The allegations of the second amended complaint would not appear to support single-incident
liability. See Fuqua v. Hess, No. 3:16-cv-01510-HGD, 2017 WL 192760, at *6 (N.D. Ala. Jan.
18, 2017) (recognizing narrowness of single-incident exception and reluctance of Eleventh
Circuit to extend liability beyond the Supreme Court’s deadly force example).
Claims Against Mayor Hibbard
Plaintiff asserts several claims against Mayor Hibbard, in his individual capacity –
negligent retention (Count III), negligent supervision (Count VI), deliberate indifference
(Count X), and ratification (Count XI). “It is well-established in this Circuit that
supervisory officials are not liable under § 1983 for the unconstitutional acts of their
subordinates on the basis of respondeat superior or vicarious liability.” Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999) (internal quotation and citation omitted). Rather, to

establish a § 1983 claim against a supervisory official, a plaintiff must plead and prove
that the supervisor personally participated in the alleged unconstitutional conduct or that
there is a causal connection between the actions of the supervising official and the alleged
constitutional deprivation. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003). The
necessary causal connection can be established through a “history of widespread abuse
that puts the responsible supervisor on notice of the need to correct the alleged
deprivation.” Id. Alternatively, the causal connection may be established when the
supervisor’s “custom or policy … result[s] in deliberate indifference to constitutional
rights” or when facts support “an inference that the supervisor directed the subordinates

to act unlawfully or knew that the subordinates would act unlawfully and failed to stop
them from doing so.” Id. (internal quotation omitted).
Plaintiff does not allege that Mayor Hibbard personally participated in his arrests.
Nor does he plead any facts to show that Mayor Hibbard had a custom or policy of
requiring or ratifying unconstitutional arrests by the City’s officers, or that he directed the
City’s officers to act unlawfully.
Moreover, Plaintiff has alleged that the City is governed by a “Council/Manager
form of government with the City Council serving as the governing body.” Under this
form of government, the city manager – and not the mayor – is the final policy
decisionmaker for the City’s employment decisions as it would pertain to negligent hiring,
supervision, and retention claims. See, e.g., Triago v. City of Doral, No. 13-24086-CIV-
COOKE, 2015 WL 11202636, at *1 (S.D. Fla. Sept. 30, 2015), aff’d, 663 F. App’x 871 (11th
Cir. 2016); Burden v. City of Opa Locka, No. 11-22018-CIV, 2012 WL 4764592, at *3 (S.D.
Fla. Oct. 7, 2012).
Consequently, all claims against Mayor Hibbard are dismissed. In an abundance of

caution, the Court will grant leave to amend.
Counts I and II
In Count I, Plaintiff attempts to assert § 1983 false arrest claims against the City of
Clearwater, Officer Zarra, Officer Lambe, and Officer Dean. In Count II, Plaintiff
attempts to assert § 1983 false imprisonment claims against the same. It appears that the
false imprisonment claims are duplicative of the false arrest claims in this case. See
Rankin v. Evans, 133 F.3d 1425, 1430 n.5 (11th Cir. 1998) (treating claim alleging both
false arrest and false imprisonment as one for false arrest because under Florida law,
“false arrest and false imprisonment are different labels for the same cause of action”).

However, based on the limited factual assertions in the second amended complaint, it is
difficult to say with certainty. As such, the Court will grant leave to amend so that
Plaintiff may clarify whether his false imprisonment claims are based solely on the fact of
his arrests, or whether there are any additional circumstances that justify separate and
distinct causes of action. See Smart v. City of Miami, 107 F. Supp. 3d 1271, 1280 (S.D.
Fla. 2015).
In addition, to state both a false arrest and false imprisonment claim under the
Fourth Amendment, a plaintiff must allege facts that would establish he was arrested
without probable cause. See Rankin, 133 F.3d at 1436 (11th Cir. 1998) (“[P]robable cause
constitutes an absolute bar to both state and § 1983 claims alleging false arrest[.]”);
Smart, 107 F. Supp. 3d at 1280 (“Where the claim is based on an officer’s arrest and
detention of the plaintiff, probable cause negates a claim for false-imprisonment too.”)
(quoting Gomez v. Lozano, 839 F. Supp. 2d 1309, 1317 (S.D. Fla. 2012)).
Plaintiff alleges, in conclusory fashion, that the three arrests were “unreasonable,
warrantless, and made without probable cause.” But he does not allege the factual

circumstances of the arrests, other than identifying the arresting officer, the date of the
arrest, and the offense charged. Although he mentions that the charges were ultimately
dismissed by the Office of the State Attorney, that fact is irrelevant to the Court’s
analysis. See Hernandez v. Wells, No. 8:21-cv-1488-KKM-TGW, 2022 WL 1607190, at *5
(M.D. Fla. May 20, 2022) (holding the decision of the State Attorney’s Office to abandon a
charge to be immaterial for determining probable cause); L.S.T., Inc. v. Crow, 49 F.3d 679,
685 (11th Cir. 1995) (“The fact that all charges against the plaintiffs were eventually
dismissed for one reason or another is of no consequence to [the determination of probable
cause].”) (quotation omitted). Plaintiff does not provide any facts to support his

allegations that his arrests and criminal proceedings were improper.
Accordingly, Plaintiff fails to sufficiently state any false arrest or false
imprisonment claims. Plaintiff has been given leave to file an amended complaint, and he
may attempt to cure the defects identified by the Court as to Counts I and II, if he may do
so in good faith.
Count III
In Count III, Plaintiff attempts to assert a § 1983 negligent retention claim against
the City of Clearwater and Mayor Hibbard, in his individual capacity.4
“Under Florida law, negligent . . . retention occurs when, during the course of
employment, the employer becomes aware or should have become aware of problems with
an employee that indicated his unfitness, and the employer fails to take further action
such as investigation, discharge, or reassignment.” Poulin v. Bush, 650 F. Supp. 3d 1280,

1307 (M.D. Fla. Jan. 13, 2023) (quoting Muegge v. Heritage Oaks Golf & Country Club,
Inc., No. 8:05-cv-354-T-24-MAP, 2006 WL 1037096, at *8 (M.D. Fla. Apr. 19, 2006)). To
establish a § 1983 negligent retention claim, Plaintiff must establish the elements of
common law negligent retention, along with a policy or custom that caused the deprivation
of an individual’s civil rights. See Ashley v. City of Hialeah, No. 11-20490-CIV, 2011 WL
3236051, at *5 (S.D. Fla. July 28, 2011); Monell, 436 U.S. at 690.
Florida law limits the tort of negligent retention to an employee’s acts committed
outside the scope of employment. See Poulin, 650 F. Supp. 3d at 1307 (citing Buckler, 680
F. App’x 831, 834 (11th Cir. 2017)); Santillana v. Fla. State Court Sys., No. 6:09-cv-2095-

Orl-19KRS, 2010 WL 271433, at *11 (M.D. Fla. Jan 14, 2010) (citing Watson v. City of
Hialeah, 552 So. 2d 1146, 1148 (Fla. 3d DCA 1989)). Although Plaintiff does not
specifically allege whether the officers were acting within, or outside the scope of their
employment, it appears undisputed that they were acting within the scope of employment
(i.e., performing their job duties) during the times Plaintiff was arrested. It therefore

4 Although Defendants assert that “simple negligence” is not actionable under § 1983,
negligent training, negligent supervision, and negligent retention appear to be generally
cognizable federal claims, when adequately pleaded.
appears unlikely Plaintiff will be able to state any negligent retention claims against
either the City or Mayor Hibbard.
In addition, Plaintiff does not plead any facts to show that the City of Clearwater
should have been on notice as to any issues with any of the officers. The only specific facts
alleged as to a particular officer, Officer Lambe, occurred after the arrest that forms the
basis of Plaintiff’s claim, and Plaintiff actually pleads that Officer Lambe was discharged
(i.e., not retained) based on that conduct. It therefore appears that (1) the City could not

have been on notice of any issues pertaining to Officer Lambe at the time of the conduct at
issue since those issues arose after Plaintiff’s arrest, and (2) when the City did learn of
problems associated with Officer Lambe, it acted appropriately by discharging him.
Accordingly, Plaintiff fails to sufficiently state any negligent retention claims
against the City or Mayor Hibbard. Plaintiff has been given leave to file an amended
complaint, and he may attempt to cure the defects identified by the Court as to Count III,
if he may do so in good faith.
Count IV
In Count IV, Plaintiff attempts to assert a § 1983 malicious prosecution claim

against the City of Clearwater and Officer Dean, in his individual capacity.
To state a federal malicious prosecution claim, a plaintiff must allege: (1) the
elements of common law malicious prosecution; and (2) a Fourth Amendment seizure
violation. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004), abrogated on
other grounds by Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020)). As to the second
element, the Fourth Amendment seizure must occur after the judicial proceeding – a
plaintiff’s arrest cannot serve as the predicate deprivation because it occurred prior to the
time of arraignment. Id. at 1235. Therefore, when the only constitutional violations
alleged relate to the plaintiff’s seizure and warrantless arrest prior to the beginning of the
judicial proceeding, a malicious prosecution claim fails. Id.; C.P. by and through Perez v.
Collier Cty., 145 F. Supp 3d 1085, 1093 (M.D. Fla. 2015).
Plaintiff vaguely pleads that Officer Dean “personally participated and invoked the
malicious prosecution” and that he “improperly influenced the state attorney’s office to
prosecute [Plaintiff,]” but he does not plead any facts to support these allegations. He
does not identify any acts committed by Officer Dean that occurred after Plaintiff’s

arraignment.
Accordingly, Plaintiff fails to sufficiently state any malicious prosecution claims
against the City or Officer Dean. Plaintiff has been given leave to file an amended
complaint, and he may attempt to cure the defects identified by the Court as to Count IV,
if he may do so in good faith.
Count V
In Count V, Plaintiff attempts to assert a § 1983 “reckless indifference” claim
against the City of Clearwater for failing to train or discipline Officers Dean, Zarra, and
Lambe for Plaintiff’s arrests. This claim appears to be redundant and duplicative of

Plaintiff’s other more specific constitutional claims in the second amended complaint,
since he separately sets out negligent training, negligent supervision, and negligent
retention claims in other counts.
The Court will therefore dismiss Count V. In an abundance of caution, the Court
will grant leave to allow Plaintiff to assert a separate basis for “reckless indifference,” if he
may do so in good faith.
Count VI
In Count VI, Plaintiff attempts to assert a § 1983 negligent supervision claim
against the City of Clearwater and Mayor Hibbard, in his individual capacity. A failure to
supervise claim is similar to a failure to train claim. Borton v. City of Dothan, 734 F.
Supp. 2d 1237, 1257 (M.D. Ala. Aug. 24, 2010). To establish municipal liability, a plaintiff
must show that the failure to supervise is a widespread custom or policy “by
demonstrating that the city’s failure evidenced a deliberate indifference to the right[s] of

its inhabitants.” Id. (quoting Gold, 151 F. 3d at 1350). To prove deliberate indifference, a
plaintiff must demonstrate that the municipality knew of a need to supervise in a
particular area but made a deliberate choice to not take any action. Id. (citing Gold, 151
F.3d at 1350).
Plaintiff does not identify any specific deficiency in the City’s supervision of the
officers. See Heid v. Rutkoski, No. 6:20-cv-727-GKS-DCI, 2022 WL 1819096, at *5 (M.D.
Fla. Mar. 29, 2022). In addition, Plaintiff does not allege that the City was on notice of
any failure to supervise its officers, and he fails to identify any prior incidents outside of
those alleged in this case. See id. Vague references to unidentified failures, policies, and

customs are not enough to survive a motion to dismiss. Id.
Accordingly, Plaintiff fails to sufficiently state any negligent supervision claims
against the City or Mayor Hibbard. Plaintiff has been given leave to file an amended
complaint, and he may attempt to cure the defects identified by the Court as to Count VI,
if he may do so in good faith.
Count VII
In Count VII, Plaintiff attempts to assert a § 1983 excessive force claim against the
City of Clearwater and Officer Lambe, in his individual capacity.
Under the Fourth Amendment, an individual possesses the “right to be free from
the use of excessive force in the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197
(11th Cir. 2002). When considering whether the force used was reasonable, a court
balances “the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Graham v. Connor,
490 U.S. 386, 396 (1989) (internal quotation omitted).
To the extent Plaintiff alleges that any force used was illegal because the arrest

was illegal, his claim fails. In the Eleventh Circuit, “a claim that any force in an illegal
stop or arrest is excessive is subsumed into the illegal stop or arrest claim and is not a
discrete excessive force claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000)
(citations omitted). This portion of the claim is therefore subsumed into Count I.
To the extent Plaintiff alleges that the amount of force used during the course of his
arrest was excessive, he has not pled sufficient facts to support such an allegation.
Plaintiff alleges that Officer Lambe pointed a firearm at Plaintiff before removing Plaintiff
from his vehicle, “forcefully” placing him on his stomach on the ground, and handcuffing
Plaintiff ”tightly” behind his back. Plaintiff also alleges that he “lost the feeling” in his

left hand. These facts, without more, are insufficient to state an excessive force claim. See
Brooks v. Blevins, No. 4:19cv288-RH-MAF, 2020 WL 4283074, at * 2 (N.D. Fla. July 27,
2020) (“An allegation of tight handcuffing, without more, is insufficient to state a claim.”).
Accordingly, Plaintiff fails to sufficiently state any excessive force claims against
the City and Officer Lambe. Plaintiff has been given leave to file an amended complaint,
and he may attempt to cure the defects identified by the Court as to Count VII, if he can
do so in good faith.
Count VIII
In Count VIII, Plaintiff attempts to assert a § 1983 claim against the City and each
individual officer based on an alleged violation of § 838.022(1)(a), F.S., a Florida state
criminal statute.
“The violation of a state statute does not automatically give rise to a violation of
rights secured by the Constitution.” Crocker v. Hakes, 616 F.2d 237, 239 n.2 (5th Cir.
1980). Furthermore, “[a] cause of action exists under state law only when a particular

state’s statutory or common law so declares.” Wilson v. Harrell, 521 F. Supp. 3d 1165,
1168 (N.D. Fla. 2021) (citation omitted). No court has concluded that § 838.022(a) creates
a private cause of action. Id. “When state law does not clearly recognize a cause of action
on a particular theory, a claim brought on such a theory should be dismissed.” Id.
(citations omitted).
Consequently, Count VIII is dismissed with prejudice. The Court declines to grant
leave to amend because amendment would be futile. See id. Any future amended
complaints should not include this count.
Count IX

In Count IX, Plaintiff attempts to assert a § 1983 claim against the City of
Clearwater based on alleged intentional infliction of emotional distress. But “Section 1983
creates a private cause of action for deprivations of federal rights by persons acting under
color of state law.” Laster v. City of Tampa Police Dept., 575 F. App’x 869, 872 (11th Cir.
2014). Plaintiff does not cite to any federal laws or constitutional provisions to support
this claim. He cannot do so – an intentional infliction of emotional distress claim is not
viable under § 1983. See Rubin v. City of Miami Beach, No. 19-20520-CIV-
ALTONAGA/Goodman, 2019 WL 11470833, at *4 (S.D. Fla. Feb. 12, 2019) (“More
fundamentally, an intentional infliction of emotional distress claim under Section 1983 is
not a viable claim for relief.”). As such, his federal emotional distress claim is dismissed,
without leave to amend. Any future amended complaints should not include this count.
Moreover, even if Plaintiff were proceeding under a state law theory rather than §
1983, his claim would be insufficient. Under Florida law, to establish intentional infliction
of emotional distress, a plaintiff must plead and prove: “(1) deliberate or reckless infliction
of mental suffering; (2) by outrageous conduct; (3) which conduct must have caused the

suffering; and (4) the suffering must have been severe.” Hart v. United States, 894 F.2d
1539, 1548 (11th Cir. 1990). “Outrageous conduct is conduct which is so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized community.” Id. It is not
enough that the defendant may have been motivated by malice. Stires v. Carnival Corp.,
243 F. Supp. 2d 1313, 1319 (M.D. Fla. 2002).
Plaintiff vaguely alleges that he “suffers [e]xtreme [e]motional [d]istress” because
he fears for his life has nightmares, is angry, cries, is confused, and is being treated for
high blood pressure and post-traumatic stress. These allegations do not establish the

requisite severity to state a claim. Moreover, the few factual allegations of this count –
that Plaintiff was terminated as a volunteer with the Pinellas County Government and
was “seized and thrown behind bars” – similarly do not satisfy the requisite
outrageousness to state an emotional distress claim. “While being subject to false arrest is
embarrassing, it is not sufficiently extreme and outrageous absent some other grievous
conduct.” Frias v. Demings, 823 F. Supp. 2d 1279, 1289 (M.D. Fla. 2011).
Accordingly, Plaintiff fails to sufficiently state any emotional distress claims under
either federal or Florida law against the City. Plaintiff has been given leave to file an
amended complaint, and he may attempt to assert a state law emotional distress claim, if
he can do so in good faith.
Count X
In Count X, Plaintiff attempts to assert a § 1983 “deliberate indifference” claim
against the City of Clearwater and Mayor Hibbard, in his individual capacity. This claim
appears to be redundant and duplicative of Plaintiff’s other more specific constitutional
claims in the second amended complaint pertaining to false arrest, false imprisonment,

and excessive force.
The Court will therefore dismiss Count X. In an abundance of caution, the Court
will grant leave to amend to allow Plaintiff to assert a separate basis for “deliberate
indifference,” if he can do so in good faith.
Count XI
In Count XI, Plaintiff attempts to assert a § 1983 “ratification” claim against the
City of Clearwater and Mayor Hibbard, in his individual capacity. He appears to assert
that the officers, while acting under the color of state law, deprived him of a Fourth
Amendment right, and Mayor Hibbard subsequently ratified the conduct.

Plaintiff fails to adequately plead this claim. As discussed above, Plaintiff does not
clearly identify any constitutional violations or widespread customs or policies. Moreover,
this claim again appears to be duplicative of Plaintiff’s other, more specific claims in the
second amended complaint.
The Court will therefore dismiss Count XI. In an abundance of caution, the Court
will grant leave to amend to allow Plaintiff to assert a separate basis for “ratification,” if
he can do so in good faith.
Count XII
In Count XII, Plaintiff attempts to assert a §1983 claim against the City of
Clearwater based on an alleged pattern, practice, or custom of unlawful stop and frisks
and/or search and seizures.
This claim appears to be redundant and duplicative of Plaintiff’s other more specific
constitutional claims in the second amended complaint – he references failing to train,
supervise, or discipline. To the extent that this claim is duplicative and redundant of

Plaintiff’s more specific negligent training, negligent supervision, and negligent retention
claims, the Court is inclined to dismiss Count XII.
Plaintiff appears to allege that the City had a policy or custom of conducting illegal
stop and frisks or searches and seizures. But he also alleges that there was
custom of “unlawful arrests” and of “charging [Plaintiff] for possession of illegal
substances without finding any illegal substances.” This mixing of claims is confusing. In
addition, Plaintiff does not adequately allege that these policies were the moving force
behind violations of Plaintiff’s constitutional rights or that there was a widespread
practice or custom because he does not sufficiently allege the factual circumstances of his

arrests or any prior incidents outside of those alleged in this case.
The Court will therefore dismiss Count XII. In an abundance of caution, the Court
will grant leave to amend to allow Plaintiff to attempt to provide a separate basis for this
claim so that it is not duplicative of his other claims.
Count XIII
In Count XIII, Plaintiff attempts to assert a § 1983 “harassment” claim against the
City of Clearwater.
As previously noted, “[s]ection 1983 creates a private cause of action for
deprivations of federal rights by persons acting under color of state law.” Laster, 575 F.
App’x at 872. Plaintiff does not cite to any federal laws or constitutional provisions to
support this “harassment” claim. Therefore, this claim, as pleaded, does not appear
actionable under §1983.
In addition, this claim appears to be redundant and duplicative of Plaintiff’s other
more specific constitutional claims in the second amended complaint pertaining to false

arrest, false imprisonment, and excessive force.
The Court will therefore dismiss Count XIII. In an abundance of caution, the Court
will grant leave to amend to allow Plaintiff to assert a separate constitutional basis for
“harassment,” if he can do so in good faith.
Count XIV
In Count XIV, Plaintiff attempts to assert a § 1983 failure to train claim against
the City of Clearwater.
A municipality may be held liable under § 1983 based on a failure to train its police
officers. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). But it is only where the

failure to train reflects a “deliberate” or “conscious” choice by the municipality that a city
may be liable. Id. at 389. The United States Supreme Court has articulated that a
“municipality’s culpability for a deprivation of rights is at its most tenuous where a claim
turns on a failure to train” Connick v. Thompson, 563 U.S. 51, 61 (2011). “Failure to train
can amount to deliberate indifference when the need for more or different training is
obvious … and when the failure to train is likely to result in the violation of a
constitutional right.” Belcher v. City of Foley, 30 F.3d 1390, 1397-98 (11th Cir. 1994). “A
pattern of similar constitutional violations by untrained employees is ordinarily necessary
to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563 U.S.
at 62 (quoting Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)). “To
provide the notice of a need to train in a particular area that is necessary for deliberate
indifference, prior constitutional violations must be similar in nature to the one made the
basis of the suit.” Fuqua, 2017 WL 192760, at *5 (citing Weiland, 792 F.3d at 1328;
Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005)).
In the second amended complaint, Plaintiff does not specifically identify any

specific issues regarding the training – or lack of training – of the City’s police officers, or
any facts related to training. He also does not allege that the City was on notice of any
failure to train its officers, and he fails to identify any prior incidents outside of those
alleged in this case.
Accordingly, Plaintiff fails to sufficiently state any negligent training claim against
the City. Plaintiff has been given leave to file an amended complaint, and he may attempt
to cure the defects identified by the Court as to Count XIV, if he can do so in good faith.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

(1) “Defendants’ Motion to Dismiss Second Amended Complaint and Incorporated
Legal Memorandum” (Doc. 29) is GRANTED IN PART.
(2) Counts I, II, III, IV, V, VI, VII, IX, X, XI, XII, XIII, and XIV of the second
amended complaint (Doc. 28) are DISMISSED WITHOUT PREJUDICE, with
leave to amend.
(3) Count VIII is DISMISSED WITH PREJUDICE. Any future amended
complaints should not include this count.
(4) The motion is otherwise DENIED.
(5) Plaintiff is directed to file an amended complaint, if he may do so in good faith,
to cure the defects identified in this Order on or before March 19, 2024. Failure
to file an amended complaint as directed will result in this Order becoming a
final judgment. See Auto. Alignment & Body Serv., Inc. v. State Farm Mut.
Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020).
(6) In light of the Court’s ruling on the motion to dismiss, and the fact that the
Court is granting leave to amend, Plaintiff's “Motion for Leave to File Third
Amended Complaint” (Doc. 33) is DENIED AS MOOT.
DONE and ORDERED in Chambers, in Tampa, Florida, this 26th day of
February, 2024.

Nf
—~

-TOMBARBER i asssi(‘“‘;:
UNITED STATES DISTRICT JUDGE

Page 238 of 23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115239. Public record. Not legal advice.