Garcia v. Ptak

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RICHARD SALINO GARCIA,

Plaintiff,

v. Case No. 8:23-cv-406-CEH-SPF

OFFICER M. PTAK, et al.,

Defendants.

_______________________________/

ORDER

Plaintiff filed his amended complaint under 42 U.S.C. § 1983 (Doc. 5) in which

he alleges Deputies Ptak, Smith, and McCallister arrested him without probable cause

and used excessive force during the arrest in violation of his rights under the Fourth

and Fourteenth Amendments to the United States Constitution. As relief, Plaintiff

seeks monetary damages and criminal charges against the Defendants.

DISCUSSION

After a review of the amended complaint in accord with 28 U.S.C. § 1915A, the

Court concludes that the amended complaint must be dismissed without prejudice to

Plaintiff filing a second amended complaint because he has failed to state a claim upon

which relief may be granted against Defendants in their official capacities.1 To the

1 Plaintiff sues Defendants in both their individual and official capacities (Doc. 5 at pp. 2-3).

Plaintiff has sufficiently pled individual liability against Defendants.

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extent Plaintiff sues Defendants in their official capacities, the action is considered a

suit against the local government entity they represent, see Owens v. Fulton County, 877

F.2d 947, 951 n.5 (11th Cir. 1989), here the Pasco County Sheriff. See Kentucky v.

Graham, 473 U.S. 159, 165-66 (1985); Jones v. Cannon, 174 F.3d 1271, 1293 n. 15 (11th

Cir. 1999). “A governmental entity is not liable under [§] 1983, merely as a matter of

respondeat superior, for constitutional injuries inflicted by its employees.” See Brown

v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999) (citation omitted). Rather, a

governmental entity may be liable under § 1983 only “when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell

v. Department of Social Services, 436 U.S. 658, 694 (1978) (holding that liability of

municipalities and other governmental entities under § 1983 is limited to instances of

official policy or custom).

To attribute liability to Defendants in their official capacities under §1983,

Plaintiff must demonstrate that the Sheriff’s Office had an official policy or custom

that was “the moving force of the constitutional violation.” Vineyard v. County of

Murray, Ga., 990 F.2d 1207, 1211 (1993) (quoting Polk County v. Dodson, 454 U.S. 312,

326 (1981)). Here, the amended complaint fails to allege facts sufficient to show the

existence of a policy or custom that caused the alleged violation of Plaintiff’s

constitutional rights. Therefore, the amended complaint fails to state a claim upon

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which relief may be granted against Defendants in their official capacities.

Finally, this Court has no authority to direct state officials to bring criminal

charges against Defendants. See Otero v. U.S. Attorney Gen., 832 F.2d 141, 141 (11th

Cir. 1987). Thus, this claim for relief is dismissed.

Accordingly:

1. The amended complaint (Doc. 5) is DISMISSED for failure to state a claim

upon which relief may be granted against Defendants in their official capacities. The

dismissal is without prejudice to Plaintiff filing a second amended complaint within

30 days from this Order. Plaintiff must use the form provided to him by the Clerk and

write “Second Amended Complaint” on the form. Failure to timely file a second

amended complaint may result in dismissal of this action without further notice.

2. The Clerk of the Court is directed to send a copy of the Court’s form for

initiating a civil rights action to Plaintiff with his copy of this Order.

ORDERED in Tampa, Florida, on April 12, 2023.

Chaene Cdhwardsa Mo TDA pl yell

Charlene Edwards Honeywell

United States District Judge

Copy to: Plaintiff, pro se