Garcia v. Mendes

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 2:19-CV-14390-ROSENBERG/MAYNARD

RONALD R. GARCIA,

Plaintiff,

v.

JORGE MENDES, et al.,

Defendants.

_____________________________________/

ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND

This case comes before the Court for a screening of Plaintiff’s pro se Amended Complaint.

DE 5; see 28 U.S.C. § 1915(e)(2). The Court previously granted Plaintiff’s Motion for Leave to

Proceed In Forma Pauperis and dismissed the original Complaint without prejudice for failure to

state a claim on which relief could be granted. DE 4. Plaintiff raises claims relating to two

incidents with law enforcement in the Amended Complaint. See DE 5.

I. Incident #1

With respect to Incident #1, Plaintiff brings a claim of use of excessive force during his

July 28, 2018 arrest. Id. at 1-2. He alleges that Deputies Tucker and Osteen of the St. Lucie

County Sheriff’s Office approached him due to a trespassing complaint, that he stood up from his

chair, and that the Deputies immediately threw him to the ground, punched him in the face, and

kicked him in the ribs, fracturing his cheekbone and cracking his ribs. Id. at 1. He further alleges

that, after being arrested, his hands were tightly handcuffed for over nine hours, causing them to

become purple and numb. Id. He was booked on a charge of resisting arrest without violence and

later pled guilty.1 Id. at 1-2.

Plaintiff has pled a plausible excessive-force claim against Deputies Tucker and Osteen.

See Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (stating that the viability of a claim

of excessive force during an arrest depends on whether the force used was objectively reasonable

and providing factors by which to evaluate objective reasonableness); see also Trujillo v. Florida,

481 F. App’x 598, 599 (11th Cir. 2012) (stating that the plausibility pleading standard applies

when a court is screening an in forma pauperis complaint under 28 U.S.C. § 1915(e)(2) for failure

to state a claim on which relief may be granted).

Plaintiff also brings his excessive-force claim against the St. Lucie County Sheriff’s Office,

but he has not pled a plausible claim against the Sheriff’s Office. The Sheriff’s Office is a

municipal body that cannot be held liable for a civil rights violation under 42 U.S.C. § 1983 based

on a theory of respondeat superior or vicarious liability. See City of Canton v. Harris, 489 U.S.

378, 385 (1989) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). To impose liability

on a municipality under § 1983 for injuries that employees caused, a plaintiff must show that his

constitutional right was violated, that the municipality had a custom or policy that constituted

deliberate indifference to the constitutional right, and that the custom or policy caused the

constitutional violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). The plaintiff

must identify “either (1) an officially promulgated county policy or (2) an unofficial custom or

practice of the county shown through the repeated acts of a final policymaker for the county.”

Grech v. Clayton Cty., 335 F.3d 1326, 1329-30 (11th Cir. 2003) (stating that, under either avenue,

1 To the extent that Plaintiff also raises a false-arrest claim with respect to Incident #1, his eventual plea establishes

probable cause for his arrest and defeats a false-arrest claim. See Stephens v. DeGiovanni, 852 F.3d 1298, 1319-20

(11th Cir. 2017).

the plaintiff must show that the municipality “has authority and responsibility over the

governmental function in issue” and “must identify those officials who speak with final

policymaking authority for [the municipality] concerning the act alleged to have caused the

particular constitutional violation in issue”). The Amended Complaint does not contain any

allegations that the St. Lucie County Sheriff’s Office had a custom or policy that caused excessive

force to be used against Plaintiff. See DE 5 at 1-2. Thus, the Amended Complaint fails to state a

plausible claim against the Sheriff’s Office.

The original Complaint did not include a claim relating to Incident #1, and, therefore, the

Amended Complaint presents the first time that Plaintiff is raising his excessive-force claim

regarding his July 28, 2018 arrest. The Court concludes that permitting him to amend his

excessive-force claim against the St. Lucie County Sheriff’s Office may not be futile. See Bryant

v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (explaining that a plaintiff generally must be

given at least one chance to amend a complaint before an action is dismissed with prejudice when

a more carefully drafted complaint might state a claim for relief). And, as explained above, he has

raised a plausible excessive-force claim against Deputies Tucker and Osteen.

The Amended Complaint suffers from further pleading deficiencies because it does not

comply with the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure.

Therefore, Plaintiff must replead his excessive-force claim against the St. Lucie County Sheriff’s

Office and Deputies Osteen and Tucker in a Second Amended Complaint. He shall title the

pleading “Second Amended Complaint.” He shall comply with the pleading requirements of Rules

8 and 10 of the Federal Rules of Civil Procedure. Specifically, the Second Amended Complaint

shall include a caption as required by Rule 10(a). See Fed. R. Civ. P. 10(a) (requiring every

pleading to have a caption with the court’s name, the pleading’s title, the court file number, and

the names of all of the parties). Plaintiff shall make his allegations in separately numbered

paragraphs and shall list each legal claim against each defendant in a separate count as required by

Rule 10(b). See Fed. R. Civ. P. 10(b) (requiring a party to state claims “in numbered paragraphs,

each limited as far as practicable to a single set of circumstances” and to state claims in separate

counts if doing so promotes clarity). He shall include all of the factual allegations supporting his

excessive-force claims in the Second Amended Complaint and may not incorporate prior pleadings

by reference. The Court will not consider allegations not included within the Second Amended

Complaint when conducting a further screening. Plaintiff’s excessive-force claim related to his

July 28, 2018 arrest is dismissed without prejudice and with leave to amend.

II. Incident #2

Plaintiff brings a false-arrest claim with respect to Incident #2, the incident that was the

subject of the original Complaint. DE 5 at 3; see also DE 1. He alleged in the Complaint that a

woman who was unknown to him “kept walking” into his home and that, on August 15, 2019, she

called law enforcement. DE 1 at 6. When law enforcement arrived at the home, officers arrested

him for battery, reporting that he had “put [his] finger on [the woman’s] shoulder.” Id. at 6-7. The

battery charge eventually was dismissed. Id. at 7.

In the prior Order dismissing the Complaint, the Court explained that Plaintiff failed to

state a plausible false-arrest claim because he failed to make allegations showing that the officers

lacked probable cause to arrest him for battery for touching the woman. See DE 4 at 4-5; see also

Fla. Stat. § 784.03(1)(a)(1) (defining battery to include actually and intentionally touching or

striking another person against the will of the other); Kingsland v. City of Miami, 382 F.3d 1220,

1226 (11th Cir. 2004) (stating that the existence of probable cause at the time of arrest “constitutes

an absolute bar to a section 1983 action for false arrest”).

The Amended Complaint suffers from the same pleading deficiency.2 Plaintiff does not

deny touching the woman. See DE 5 at 3. He instead contends that he could have used greater

force—even deadly force—to protect his home against the woman, who was an intruder. Id.

Despite whether he was legally entitled to use force to protect his home, his allegations show that

there was confusion at the time of the incident about whether he owned the home. See DE 1 at 6

(stating that Plaintiff “was getting the title” to prove to law enforcement that he owned the home);

see also DE 5 at 3 (stating that, when Plaintiff was released from jail following his false arrest, he

was not permitted to enter the home and later “lost” the home). The Court also takes judicial notice

of the Complaint that Plaintiff filed in Garcia v. Schutter, 2:19-cv-14326 (S.D. Fla.), DE 1, in

which he raised a dispute over the ownership of the home. See Fed. R. Evid. 201(b) (permitting a

court to take judicial notice of a fact that is not subject to reasonable dispute because it can be

accurately and readily determined from accurate sources); Universal Express, Inc. v. United States

Sec. & Exch. Comm’n, 177 F. App’x 52, 53-54 (11th Cir. 2006) (stating that a court may take

judicial notice of public records, including court filings, on a motion to dismiss without converting

the motion into a summary judgment motion).

Given the allegations indicating that there was a dispute at the time over the ownership of

the home, and given that Plaintiff has not denied touching the woman, the allegations fail to show

that law enforcement lacked probable cause to arrest him for battery. See Kingsland, 382 F.3d at

1226 (stating that probable cause exists “when the facts and circumstances within the officer’s

knowledge, of which he or she has reasonably trustworthy information, could cause a prudent

person to believe, under the circumstances shown, that the suspect has committed, is committing,

or is about to commit an offense” (quotation marks omitted)). Thus, he still has not pled a plausible

2 Plaintiff incorporates the Complaint into the Amended Complaint by relying on allegations that he made in the

Complaint. The Amended Complaint is not a stand-alone document.

false-arrest claim. As the Court gave him a prior opportunity to plead a plausible false-arrest claim

relating to the August 15, 2019 incident, and he did not correct his pleading deficiencies, the Court

concludes that permitting a further amendment of this claim would be futile. See Bryant, 252 F.3d

1163 (stating that a plaintiff need not be given a further chance to amend a complaint where

amendment would be futile). Plaintiffs false-arrest claim related to the August 15, 2019 incident

is dismissed with prejudice.*

For the foregoing reasons, itis ORDERED AND ADJUDGED that:

1. The Amended Complaint [DE 5] is DISMISSED. Plaintiff’s excessive-force claim

related to the July 28, 2018 incident is DISMISSED WITHOUT PREJUDICE AND

WITH LEAVE TO AMEND. His false-arrest claim related to the August 15, 2019

incident is DISMISSED WITH PREJUDICE.

2. Plaintiff shall file a Second Amended Complaint repleading his excessive-force claim

by no later than February 11, 2020. The Second Amended Complaint shall comply

with the instructions given in this Order. Plaintiff’s failure to file a Second Amended

Complaint by February 11 will result in the closure of this case without further notice.

DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 29th day of

January, 2020. a fo,

A. SCRA,

ROBIN L. ROSENBERG CG.

UNITED STATES DISTRICT JUD

Copy furnished to pro se Plaintiff

3 To the extent that Plaintiff contends that the woman committed a crime but was not arrested, he lacks standing to

sue for the criminal prosecution of another. See Smith v. Shook, 237 F.3d 1322, 1324 (11th Cir. 2001) (stating that a

“private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another” (quotation marks

omitted)).