Johnson v. Broward County Sheriff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-62291-CIV-ALTMAN/Hunt

TIMOTHY LEE JOHNSON,

Plaintiff,

v.

BROWARD COUNTY SHERIFF

SCOTT ISRAEL, DEPUTY JUSTIN

AUGUSTUS, and DEPUTY

TIMOTHY METZ,

Defendants.

____________________________/

ORDER

THE DEFENDANTS have filed a Renewed Motion to Dismiss (“MTD”) [ECF No. 37].1

The Plaintiff, who is pro se, responded (“MTD Response”) [ECF No. 45], and the Defendants did

not reply. The Honorable Kathleen M. Williams, United States District Judge, referred the MTD

to Magistrate Judge Alicia O. Valle for a Report & Recommendation (“R&R”) [ECF No. 39].

While the MTD was pending before the Magistrate Judge, Judge Williams transferred the case to

this Court [ECF No. 46]. After the Magistrate Judge issued her R&R [ECF No. 47], both parties

objected. See Pl. Objections [ECF No. 49]; Def. Objections [ECF No. 48]. The Court has

conducted a de novo review of those portions of the R&R to which the parties have objected2 and

now ADOPTS the R&R IN FULL.

1 Although the Defendants filed their MTD in November 2018, they failed to mail a copy of it to

the Plaintiff until February 11, 2019. See Notice of Compliance [ECF No. 42].

2 See FED. R. CIV. P. 72(b)(3) (“Resolving Objections. The district judge must determine de novo

any part of the magistrate judge’s disposition that has been properly objected to. The district judge

may accept, reject, or modify the recommended disposition; receive further evidence; or return the

matter to the magistrate judge with instructions.”).

BACKGROUND

The Plaintiff, Timothy Lee Johnson, filed his Amended Complaint3 on October 29, 2018.

See Am. Compl. [ECF No. 33]. In it, he alleges that, on November 22, 2013, while he was driving

a “truck with dark tinted windows,” two Broward County Sheriff’s Office (“BSO”) Deputies—

Defendants Justin Augustus and Timothy Metz—followed him into the “parking area of his

residence.” Am. Compl. ¶¶ 8-9. After Johnson pulled over, the Deputies walked up to Johnson’s

car and “demand[ed] him to provide” his driver’s license, registration, and insurance card. Id. ¶ 9.

When Johnson asked the Deputies why they had stopped him, the Deputies “displayed displeasure”

and said, “in harsh terms,” “don’t you ask me no questions[,] just do as you are told.” Id. ¶ 10. But,

instead of complying with this directive, Johnson asked whether he was being arrested and, if so,

why. Id. Deputy Metz “express[ed] extreme anger and/or frustration” at Johnson’s questions and

answered that Johnson was “not under arrest yet.” Id. ¶ 11 (emphasis in original).

Johnson then told the Deputies that he wanted to call his attorney. Id. ¶ 12. In response,

Deputy Augustus walked to the front passenger door of Johnson’s truck, reached over an unnamed

passenger, and “abruptly snatched” the phone from Johnson’s hand, causing the phone to break.

Id. Without any further warning, Deputy Augustus informed Johnson that he was under arrest,

pulled Johnson from the vehicle, placed him against the truck’s bumper, handcuffed him, and

ordered the unnamed passenger to step out of the truck. Id. ¶¶ 12-13. The Deputies then searched

Johnson’s truck “against his protests,” placed him in a police vehicle, and drove him to the North

Broward County Detention Facility. Id. ¶¶ 13-14. At the Detention Facility, Johnson was

3 The Court granted Johnson leave to amend his original complaint both to identify the previously-

unnamed deputies and to attach police reports that included the deputies’ names and badge

numbers. See August 14, 2018 Order [ECF No. 29]. In all other respects, though, the operative

Amended Complaint is virtually identical to Johnson’s original complaint.

questioned and ordered to change into “prison garments.” Id. ¶ 15. But, when the “Lieutenant-in-

charge” heard that Johnson was diabetic, he ordered his officers to “get this man out of my jail

now.” Id. ¶ 16.

BSO officials returned Johnson’s clothing to him and drove him back to the parking lot

where he had been arrested. Id. ¶¶ 17-18. At this point, Johnson says, he discovered that, while he

was at the Detention Facility, the “defendants” had seized his car and “placed it in police custody

for further unlawful searching.” Id. ¶ 19. Johnson was charged with “Side Wind/Rest Sunscreen

[too dark]” and “Resisting/Obstructing Justice Without Violence.” Id. ¶ 18. But, after an initial

appearance, the state judge dismissed all charges “with no discussion.” Id.

Based on these allegations, Johnson advances three causes of action against the

Defendants. See generally Am. Compl. In Counts I and II, Johnson alleges that Deputies Augustus

and Metz, respectively, deprived him of his right to be free from “unreasonable restraints,”

“unreasonable searches and seizures of his property,” and “unreasonable, unlawful arrest . . .

without probable cause.’” Am. Compl. ¶ 20 (Augustus) & ¶ 21 (Metz). In Count III, Johnson avers

that Sheriff Israel knew his agents were “stopping pedestrians and/or citizens . . . for the sole

purpose of violating the rights of those individuals in an attempt to discover evidence of a crime.”

Id. ¶ 22.4 All three counts assert claims against the Defendants in both their individual and official

capacities.

The Defendants have moved to dismiss the Amended Complaint with prejudice. See

generally MTD.

4 On January 11, 2019, Governor DeSantis formally suspended Sheriff Israel via Executive

Order 19-14. See Fla. Exec. Order No. 19-14 (Jan. 11, 2019), https://www.flgov.com/wp-

content/uploads/2019/01/EO-19-14.pdf.

THE LAW

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (alteration added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Pleadings must contain “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation

omitted). Indeed, “only a complaint that states a plausible claim for relief survives a motion to

dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this “plausibility

standard,” a plaintiff must “plead[] factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678 (alteration added)

(citing Twombly, 550 U.S. at 556). “The mere possibility the defendant acted unlawfully is

insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261

(11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012).

On a motion to dismiss, the Court must construe the complaint in the light most favorable

to the plaintiff and must accept the plaintiff’s factual allegations as true. See Brooks v. Blue Cross

& Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc.,

835 F.2d 270, 272 (11th Cir. 1988)). Unsupported factual allegations and legal conclusions,

however, receive no such deference. See Iqbal, 556 U.S. at 679 (“While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.”).

The Court must interpret the pro se complaint liberally, see Sause v. Bauer, 138 S. Ct.

2561, 2563 (2018), because pro se pleadings are held to “less stringent standards than those drafted

by an attorney,” R&R at 4 (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007); cf. Coffield v.

Broward Cnty. Jail, No. 17-CV-61366, 2017 WL 3600942, at *4 (S.D. Fla. July 21, 2017), report

and recommendation adopted sub nom. Coffield v. Broward Cnty. Main Jail, 2017 WL 3623677

(S.D. Fla. Aug. 22, 2017). But the Court may not “serve as de facto counsel or [] rewrite an

otherwise deficient pleading in order to sustain an action.” Shuler v. Ingram & Assocs., 441 F.

App’x 712, 716 n.3 (11th Cir. 2011).

ANALYSIS

I. Shotgun Pleading

As a preliminary matter, the Court agrees with the R&R’s conclusion—to which neither

party objects—that the Amended Complaint is not a shotgun pleading. See R&R at 6-7. While the

Amended Complaint “could have been more artfully drafted,” it does not contain “extraneous

allegations in the individual counts” that would confuse or otherwise unduly burden the

Defendants’ preparation of their defenses. R&R at 6-8 (citing Weiland v. Palm Beach Cnty.

Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015)).

II. Qualified Immunity

“Qualified immunity protects government officials performing discretionary functions

‘from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’” Priester v.

City of Riviera Bch., Fla., 208 F.3d. 919, 925 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). In this way, the defense of qualified immunity “balances two important

interests—the need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). To qualify for the immunity,

a government official must show that the challenged actions were committed within the scope of

his discretionary authority. See Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004).

If he can do so, “the burden shifts to the plaintiff to show that qualified immunity is not

appropriate.” Lee, 284 F.3d at 1194.

To overcome the qualified immunity defense, a plaintiff must demonstrate that the official

deprived him of a constitutional right that was “clearly established” when the alleged offense

occurred. See Saucier v. Katz, 533 U.S. 194, 201 (2001). This requirement “ensure[s] that before

they are subjected to suit, officers are on notice their conduct is unlawful.” Id. at 206. For purposes

of qualified immunity in this District, only decisions of the United States Supreme Court, the

Eleventh Circuit Court of Appeals, and the Supreme Court of Florida constitute “clearly

established” law. See McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).

The R&R helpfully categorized Johnson’s allegations into three distinct claims:

(i) an unlawful stop of his truck, see [ECF No. 33 ¶¶ 8-10] (alleging that the

Deputies followed Plaintiff’s truck, which had dark tinted windows, and demanded

to see Plaintiff’s driver’s license, registration, and insurance); (ii) an unlawful

arrest, see id. ¶¶ 20-21 (alleging that the Deputies’ actions were “a violation of

plaintiff’s rights under the Florida and Federal Constitutions against the

unreasonable and unlawful arrest, search, and seizure of personal property without

probably cause”); and (iii) an unlawful search and seizure of his truck, see id. ¶¶

13, 19, 20-21 (alleging that the Deputies “seized [Plaintiff’s] vehicle,” and “placed

it in police custody, for further unlawful searching”).

R&R at 10. With this framework in mind, the Court now turns to Johnson’s central claim: that the

stop, the arrest, and the two searches of his truck violated “clearly established statutory or

constitutional rights of which a reasonable person would have known.” Priester, 208 F.3d. at 925

(citation omitted).

A. Discretionary Authority

This Court agrees with the R&R’s threshold conclusion that the Deputies’ acts

“undoubtedly fall within [their] discretionary authority.” R&R at 10 (citing Sevostiyanova v. Cobb

Cnty., 484 F. App’x 355, 357 (11th Cir. 2012) (noting that a police officer acts within his

discretionary authority when he arrests someone); Arizona v. Gant, 556 U.S. 332, 339 (2009)

(acknowledging that, in certain circumstances, an officer may conduct a warrantless search of a

vehicle incident to a lawful arrest)).5 Johnson must therefore show that the Defendants’ conduct

violated “clearly established” law.

B. The Truck Stop

In his Amended Complaint, Johnson concedes that he was driving a truck with “dark tinted

windows,” see Am. Compl. ¶ 8—which, if true, would violate Florida’s State Uniform Traffic

Control laws. Indeed, Florida law specifically prohibits “sunscreening or other product that makes

a car window nontransparent, increases its reflectivity, reduces its light transmittance, or which

alters the windows’ color . . . [a] violation of this section is a noncriminal traffic infraction,

punishable as a nonmoving violation as provided in chapter 318.” Fla. Stat. § 316.2953. Taking

the Amended Complaint’s factual averments as true, therefore, the Deputies had “arguable

probable cause” to stop Johnson’s truck. See Perry v. Greene Cnty., Ga., 392 F. App’x 761, 764

(11th Cir. 2010) (officers had “arguable probable cause”—and were thus entitled to qualified

immunity—when they stopped the plaintiff for driving with an obscured license plate, which, if

true, would have violated Georgia law); see also Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th

Cir. 2003) (“Arguable probable cause exists where reasonable officers in the same circumstances

and possessing the same knowledge as the Defendant could have believed that probable cause

existed.”); Vaughan v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003) (in determining whether the

5 Johnson suggests, without citation to any authority, that the “officers did not have discretionary

authority to arrest the plaintiff[] where no crime had been committed.” Pl. Objections at 8. But this

is not the law. The officers’ discretionary authority simply refers to the “job-related powers and

responsibilities that the public official has in the general fulfillment of his official duties.”

O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004).

officers had “arguable probable cause,” courts ask only “whether the officer’s actions are

objectively reasonable in light of the facts confronting the officer, regardless of the officer’s

underlying intent or motivation”). Because a “non-criminal traffic infraction can provide a basis

to perform a lawful traffic stop,” Johnson’s concession that he was driving a truck with “dark tinted

windows” eviscerates his claim that the stop violated his “clearly established” constitutional rights.

See Harris v. Rambosk, No. 2:18-CV-17-FTM-29MRM, 2019 WL 5722080, at *13 (M.D. Fla.

Nov. 5, 2019) (because a “non-criminal traffic infraction provides basis to perform a lawful traffic

stop,” officer’s observation of vehicle in non-compliance with Florida’s traffic statute provides

probable cause to initiate a traffic stop).

In his Objections, Johnson notes that “dark tinted windows” are not illegal and argues that

the Deputies used the dark tint of his windows as a pretext for an otherwise-improper stop. Pl.

Objections at 4. In support, Johnson points out that the Deputies never “mentioned” or measured

his windows’ Visible Light Transmission percentage. Id. But Johnson misunderstands the doctrine

of “arguable probable cause.” Under that doctrine, whether Johnson’s tints were in fact illegal—

or whether the Deputies subjectively believed them to be illegal—is irrelevant. Instead, the Court

asks only whether it was “objectively reasonable” for the Deputies to stop Johnson’s truck because

of its “dark tinted” windows—“regardless of the officer’s underlying intent or motivation.”

Vaughan v. Cox, 343 F.3d at 1332. And, because Johnson admits that his car had “dark tinted

windows,” he fails to state a plausible § 1983 claim for the Deputies’ initial decision to stop him.

That said, a pro se plaintiff “must be given at least one chance to amend the complaint

before the district court dismisses the action with prejudice.” Bank v. Pitt, 928 F.2d 1108, 1112

(11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541,

542 (11th Cir. 2002) (en banc); Phillips v. City of W. Palm Beach, No. 18-CV-80172, 2018 WL

3586179, at *4 (S.D. Fla. July 26, 2018) (dismissal with prejudice unwarranted where the court

had never before ruled on the sufficiency of the plaintiff’s claims). Applying this standard here,

the Court DISMISSES without prejudice the allegations in Counts I and II relating to the traffic

stop.

C. The Unlawful Arrest

Johnson next challenges the Deputies’ decision to arrest him. In Florida, “[w]hoever

shall resist, obstruct, or oppose any officer . . . in the lawful execution of legal process or in the

lawful execution of any legal duty, without offering or doing violence to the person of the officer,

shall be guilty of a misdemeanor of the first degree . . .” Fla. Stat. § 843.02. “If an officer

has probable cause to believe that an individual has committed even a very minor criminal offense

in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Lee v.

Ferraro, 284 F.3d 1188, 1194-95 (11th Cir. 2002).

By his own admission, Johnson never complied with the Deputies’ commands. He did not,

for instance, produce his driver’s license, disclose his registration, or turn over his insurance

documents—despite the Deputies’ clear instructions. See Am. Compl. ¶¶ 9-12. Instead, he: (1)

“inquired of Defendant Augustus as to the reasoning for the stop”; (2) after being admonished to

“do as you are told,” “persiste[d]” by asking “whether I am being detained or under arrest for

something, and if so, what?”; and, (3) after being told that he was not under arrest, said that he

wanted to call his attorney. Id. In short, Johnson unambiguously failed to comply with the

Deputies’ commands. And, as Judge Valle explained, “a reasonable officer in the Deputies’

position could have believed that Plaintiff’s continued inquiry in seeming defiance of the officer’s

instruction to produce documents and remain quiet constituted resisting or obstructing justice, a

first-degree misdemeanor under Florida law.” R&R at 13 (citing Fla. Stat. § 843.02 (providing that

whoever resists, obstructs, or opposes an officer shall be guilty of a first-degree misdemeanor)).

As the Eleventh Circuit has explained, an officer is entitled to qualified immunity if, in

similar circumstances, a reasonable officer could have believed that there was probable cause to

make the arrest. See Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir. 1993) (officer was

entitled to qualified immunity because he had “arguable probable cause” to arrest plaintiff who

kept talking after he was instructed to be quiet); accord Redlich v. Leen, No. 16-CIV-20001, 2016

WL 3670575, at *12 (S.D. Fla. May 20, 2016) (plaintiff’s failure to comply with officer’s request

to produce license after traffic stop gave officers probable cause to arrest for violation of Fla. Stat.

§ 843.02); Ryder v. Andrews, No. 615CV204ORL22TBS, 2016 WL 9503729, at *6 (M.D. Fla.

June 22, 2016) (officer had probable cause to arrest plaintiff for violation of Fla. Stat. § 843.02

where, “instead of simply providing his license and registration,” plaintiff repeatedly asked officer

why he was stopped); see also Am. Dental Ass’n, 605 F.3d at 1290 (court may look to obvious

alternative explanations for police conduct).6

In his Objections, Johnson contends that he should have been permitted to question the

officers after they stopped him. See Pl. Objections at 4. In Johnson’s view, because he had not yet

been arrested “at that point,” he had “every right to ask whether he was under arrest.” Id. And,

Johnson adds, the Deputies violated his First and Fourteenth Amendment rights when they arrested

him for asking why he had been stopped. Id.

Here, again, Johnson misstates the law. He was, to be sure, permitted to ask the Deputies

why they had stopped him. But he was not permitted to ignore their command to produce his

6 Nor is there anything even remotely unconstitutional about a state law that authorizes an officer—

like the Deputies here—to arrest a man who, during a valid traffic stop, failed to provide his name

or identification. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 188-89 (2004) (state law

authorizing officers to request name or identification during valid traffic stops, and

to arrest persons who fail to comply with those requests, consistent with Fourth Amendment).

license, his registration, and his insurance card. And, notably, the Amended Complaint never

suggests that he ever complied—or made any attempt to comply—with any of these directives.

Nor does Johnson seek leave to amend his allegations to include any such compliance. And courts

in this Circuit have roundly rejected Johnson’s argument that, armed with probable cause, the

Deputies’ decision to arrest him abridged his First Amendment right to ask about the reason for

his detention. See Lee, 284 F.3d. at 1194-95; Ryder, 2016 WL 9503729 at *6. More importantly,

the Supreme Court has now squarely held that, to assert a First Amendment retaliatory arrest claim,

a plaintiff must first plead and establish the absence of probable cause. Nieves v. Bartlett, 139 S.

Ct. 1715, 1724 (2019) (“The plaintiff pressing a retaliatory arrest claim must plead and prove the

absence of probable cause for the arrest.”).

Because, in sum, the Amended Complaint’s allegations support the Deputies’ view that

they had “arguable probable cause” to arrest Johnson, the Deputies are entitled to qualified

immunity, and Johnson’s claims in Counts I and II that the arrest was unconstitutional are

DISMISSED without prejudice.

D. The Search and Seizure of Johnson’s Truck

Finally, Johnson alleges that the Deputies searched his car illegally on two separate

occasions: once when he was arrested and a second time after the truck was impounded. See Am.

Compl. ¶¶ 13, 19, 20-21.

“An officer conducting a search is entitled to qualified immunity where clearly established

law does not show that the search violated the Fourth Amendment.” Pearson, 555 U.S. 223, 243-

244 (2009). Generally speaking, officers may conduct a warrantless search of a vehicle only when

one of the following “exceptions” to the warrant requirement exists: (1) the incident-to-arrest

exception; (2) the automobile exception; or (3) the “inventory” exception. See U.S. v. Alston, 598

F. App’x 730, 733 (11th Cir. 2015). The automobile exception allows law enforcement to search

a car if it “is readily mobile and probable cause exists to believe it contains contraband . . . .”

United States v. Baldwin, 774 F.3d 711, 720 (11th Cir. 2014). As Judge Valle notes, this exception

does not apply here. R&R at n.7. And the Defendants do not challenge this finding. The Court will

therefore address the two searches—the initial search at the scene and the impounded search at the

police department—under the specific exception that, in the Defendants’ view, applies to each

search.

i. The Search at the Scene: The Incident-to-Arrest Exception

The police may search a vehicle “incident to a recent occupant’s arrest only when the

arrestee is unsecured and within reaching distance of the passenger compartment at the time of the

search.” Gant, 556 U.S. at 343. According to the Amended Complaint, the initial search occurred

after Johnson was arrested and handcuffed—and while he was seated on the bumper of his truck.

See Am. Compl. ¶ 13. Johnson’s unnamed passenger was, the Amended Complaint avers, likewise

secured and outside the truck when the search occurred. Id. Reasonably read, then, when the

Deputies first searched the truck, both of its occupants were secure and at a safe distance from the

truck’s passenger compartment. The Deputies, moreover, ultimately cited Johnson for having

“Side Wind/Rest Sunscreen [too dark]” and charged him with “Resisting/Obstructing Justice

Without Violence.” See Am. Compl. ¶ 18. As Judge Valle correctly noted, it would have been

“unreasonable [for the Deputies] to conclude that evidence relevant to either of these charges might

be found in the truck.” R&R at 15. Because a search of the truck under these circumstances would

violate “clearly established” law—as enunciated by the Supreme Court in Gant—the Deputies are

not entitled to qualified immunity for this initial search at the scene.

The Deputies challenge this conclusion under what they describe as a fourth exception to

the warrant requirement—the kind of “Terry protective sweep” envisioned in Michigan v. Long,

463 U.S. 1032 (1983)—which, they say, justified the initial search at issue here. See Def.

Objections at 3-6. In Long, the Supreme Court held that the Fourth Amendment “permits an officer

to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual,

whether or not the arrestee, is dangerous and might access the vehicle to ‘gain immediate control

of weapons.’” Gant, 556 U.S. at 346 (quoting Long, 463 U.S. at 1049)). In addition, as the Gant

Court explained, “there may be still other circumstances in which safety or evidentiary interests

would justify a search.” Id. (citing Maryland v. Buie, 494 U.S. 325, 334 (1990) (holding that,

incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in

which he reasonably suspects a dangerous person may be hiding)). “These exceptions together

ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered

during the arrest of a vehicle's recent occupant justify a search.” Id.

The Amended Complaint is admittedly less-than-clear on whether the unnamed passenger

was arrested, whether he was considered a suspect, and whether he was secured when the Deputies

conducted their search. See Def. Objections at 3-6. But, for several reasons, Long does not help

the Deputies here. First, Long contemplated only searches of the “passenger compartment of an

automobile.” Long, 463 U.S. at 1048. Here, however, a fair reading of the Amended Complaint

suggests that the Deputies searched the entire vehicle. See Am. Compl. ¶ 13 (“Defendants

Augustus (CN 14942) and Metf [sic] (CN 11626) performed an unlawful search of plaintiff’s

vehicle against his protests.”). Second, the Long exception is triggered only when the officers have

reason to believe that “an individual, whether or not the arrestee, is dangerous.” Gant, 556 U.S. at

346 (quoting Long, 463 U.S. at 1049). While the Deputies had probable cause to arrest Johnson

for non-compliance with their instructions, there is nothing in the Amended Complaint—or in the

record—to support the Defendants’ view that either Johnson or his passenger was “dangerous.”

Indeed, the Deputies do not appear to have treated the unnamed passenger as a suspect and, it

seems, never arrested him—undermining their contention that they reasonably feared he might

“become hostile and aggressive towards the Deputies” after Johnson was secured. Def. Objections

at 6. Third, the Long exception hinges to a substantial degree on the capacity of the individual to

“access the vehicle to ‘gain immediate control of weapons.’” Long, 463 U.S. at 1049. In Long, for

instance, the officers had already “observed a large hunting knife on the floorboard of the [open]

driver’s side of the car”—an observation that led them to “search for other weapons.” Id. at 1036

(citation omitted). But the Amended Complaint never suggests that the Deputies observed any

kind of weapon in plain view. Nor does it give any other reason to believe that a search of the truck

might uncover such a weapon. Long, in short, does not help the Deputies here.

The Defendants are therefore not entitled to qualified immunity for the initial search of the

truck. For this reason, their Motion to Dismiss Counts I and II of the Amended Complaint, as they

relate to that search, is DENIED.

ii. The Second Search: The Inventory Search Exception

Johnson also alleges that, to further the “scheme” to violate his constitutional rights, the

Deputies “seized his vehicle [and] . . . it placed in police custody for further unlawful searching.”

Am. Compl. ¶ 19. Johnson does not explain how he came to discover this information, but the

allegations of his Amended Complaint suggest that his truck was first impounded and later

subjected to an inventory search. Id.

Inventory searches are permissible under the Fourth Amendment if they: (1) protect the

owner’s property while it remains in police custody; (2) protect the police against claims or

disputes over lost or stolen property; or (3) protect the police from potential danger. United States

v. Handy, 592 F. App’x 893, 906 (11th Cir. 2015). But the Defendants bear the burden of

establishing that the exception applies. Id. And the validity of an inventory search “depends on the

legality of the decision to impound the vehicle.” Id. at 907. While that decision is discretionary, it

“must be made according to standard criteria and on the basis of something other than suspicion

of evidence of criminal activity.” Id. at 906. The purpose of objective criteria is to “limit officer

discretion in the decision to impound a vehicle . . . so that cars [are] impounded and searched only

if called for by the police department’s standard operating procedures . . . and not to discover

evidence.” United States v. Skinner, 957 F. Supp. 228, 232 (M.D. Ga. 1997).

As Judge Valle noted, there is no evidence at this stage of the case that might explain why

Johnson’s truck was impounded and searched. R&R at 16. Nor at this point—and without

reviewing the Defendants’ policies on vehicle searches and impoundments—can the Court say

whether the Defendants’ decision to impound the truck and inventory its contents was reasonable

within the strictures of the Fourth Amendment. And, since the Amended Complaint avers that the

traffic stop occurred at Johnson’s home, see Am. Compl. ¶¶ 8-9, there is no plausible argument

that, by not impounding the truck, the Deputies would have brought about some public safety

concern. See Pl. Objections at 6-7.

The Defendants object to this portion of the R&R on three grounds. First, they say, Johnson

“never asserts that a search actually took place, or specifically, that the Deputies themselves

conducted a search of his vehicle . . .” Id. at 8. But the Amended Complaint unambiguously alleges

that, “[u]pon [] returning [] to his residence, the plaintiff discovered that the defendants [had] . . .

seized his vehicle . . . for further unlawful searching.” Am. Compl. ¶ 19. And the Court must, at

this early stage, accept the Amended Complaint’s well-pled allegations as true. See Brooks, 116

F.3d at 1369. Second, citing Handy, the Deputies argue that their “decision to impound and the

method chosen for implementing that decision were, under all the circumstances, within the realm

of reason.” Def. Objections at 10. (quoting Handy, 592 F. App’x at 906). But, as the R&R explains,

Handy requires the Deputies to defend their decision by pointing to one of three well-established

inventory-search justifications. R&R at 15. And, putting aside their conclusory assertions about

the reasonableness of their decision, the Deputies have not shown that they inventoried the truck

for any of these three permissible purposes. They have not, in short, explained why Johnson’s

car—which, according to the Amended Complaint, was parked on Johnson’s own property—had

to be impounded and searched to protect (1) Johnson’s valuables; (2) the police from claims of

theft; or (3) the police from some public danger. Handy, 592 F. App’x at 906. This failure is fatal

to their second objection. Third, and relatedly, the Deputies contend that, because Johnson “has

not alleged that his vehicle was in a location that did not impede traffic or threaten public safety,”

their decision to impound was per se reasonable. See Def. Objections at 10. But, again, the

Amended Complaint alleges that the entire “incident” occurred within the “parking area” of

Johnson’s “residence.” Am. Compl. ¶ 9. And, in adjudicating a motion to dismiss, the Court must

accept the Amended Complaint’s well-pled allegations as true. See Brooks, 116 F.3d at 1369.

The Defendants, in sum, are not entitled to qualified immunity for the inventory search of

the truck. For this reason, their Motion to Dismiss Counts I and II of the Amended Complaint, as

they relate to that second search, is DENIED.

iii. A Final Word on The Searches

Although the Court has denied the Defendants’ request for qualified immunity on the two

searches, the Court acknowledges the Defendants’ frustration with the sparsity of the Amended

Complaint’s allegations—particularly as they relate to those two incidents. Because he will have

an opportunity to file a Second Amended Complaint, the Court admonishes Johnson to use that

pleading to describe with greater specificity the circumstances of each search, including: (1)

whether he was handcuffed or otherwise secured when the Deputies began their initial search; (2)

where precisely he was seated when the search occurred; (3) whether the unnamed passenger was

similarly handcuffed or secured during the search; (4) where the unnamed passenger was seated

when the search occurred; (5) Johnson’s relationship with the unnamed passenger; (6) whether the

unnamed passenger was ever detained, arrested, or considered a suspect; (7) whether, during the

initial search, the Deputies searched the whole truck or only its passenger compartment; (8) how

he learned about the inventory search; and (9) any other information he might have about why his

truck was impounded and inventoried. The Court hereby warns Johnson that his failure to fill in

these salient details may result in the dismissal of these allegations.

E. The Official Capacity Claims Against the Defendants

Johnson levies claims against all three Defendants in their official capacities. See Am.

Compl. ¶¶ 2 (Israel), 3 (Augustus), 4 (Metz). But § 1983 suits against public officials in their

official capacities are simply suits against the municipal entities those public officials represent.

See McMillian v. Monroe Cnty., 520 U.S. 781, 785 n. 2 (1997). And, as the Supreme Court has

explained, “a municipality cannot be held liable solely because it employs a tortfeasor—or, in

other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”

Monell v. Dep’t Soc. Servs., 436 U.S. 658, 691 (1978). “Instead, it is 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 that the government as an entity

is responsible under § 1983.” Id. at 694 (cleaned up).

Johnson never alleges that the two Deputies formulated an unconstitutional policy—or

advanced an unconstitutional custom or practice—on the BSO’s behalf. Nor does he suggest that

they had the authority to do so. In this respect, Johnson appears to assert his Monell claim only

against Sheriff Israel. Accordingly, Johnson’s official capacity claims against the Deputies are

DISMISSED without prejudice.

Johnson likewise does not allege that Sheriff Israel formulated an official unconstitutional

policy. Rather, in making an unofficial custom claim, he says the Sheriff “[knew] of the history of

[the police force’s] abuses, in terms of his agent’s unlawful acts of stopping pedestrians and/or

citizens, either walking and/or driving . . . for the sole purpose of violating the rights of those

individuals, [which] makes [Sheriff Israel] liable for the acts of his agents . . .” Am. Compl. ¶ 22.

In support, Johnson “summarily” describes three lawsuits he claims have been filed in the Southern

District of Florida against Sheriff Israel for “false arrest.” Am. Compl. at 16. From these three

lawsuits, Johnson infers that Sheriff Israel has a “de facto” policy of covering up police misconduct

by failing to investigate that misconduct properly. Id. But these unsubstantiated lawsuits do

nothing to advance Johnson’s Monell claim: the first was dismissed because of the plaintiff’s

failure to respond to court orders; the second settled mid-trial—without any admission of liability

by the Sheriff; and the third resulted in a verdict for the defendant-officer who, the jury found, had

probable cause to arrest the plaintiff. See R&R at n.11. Not one of these cases, then, evinces any

kind of unofficial policy or custom by either Sheriff Israel or the BSO of “stopping pedestrians

and/or citizens, either walking and/or driving . . . for the sole purpose of violating the rights of

those individuals . . . .” Am. Compl. ¶ 22.

That leaves only Johnson’s single, isolated “allegation[] of an unlawful stop, arrest, seizure,

and searches of property by the Deputies” in this case—which, as Judge Valle correctly noted, is

“insufficient to show the type of persistent and widespread policy necessary to confer municipal

liability on the Broward Sheriff’s Office through Defendant Sheriff Israel.” R&R at 20-21; see

Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986) (random acts or

isolated incidents are generally insufficient to establish a Monell custom or practice).

Johnson’s Objections do nothing to change this result. To begin with, most of his

Objections do little more than repeat the same arguments he raised in his MTD Response. In this

way, they are procedurally improper. See Holland v. Colvin, No. 4:14-CV-194-VEH, 2015 WL

1245189, at *3 (N.D. Ala. Mar. 18, 2015) (in objecting to an R&R, a party may not simply restate

the same arguments it presented to the magistrate judge) (citing VanDiver v. Martin, 304 F. Supp.

2d 934, 937-938 (E.D. Mich. 2004) (“A general objection, or one that merely restates the

arguments previously presented[,] is not sufficient to alert the court to alleged errors on the part of

the magistrate judge. An objection that does nothing more than state a disagreement with a

magistrate’s suggested resolution, or simply summarizes what has been presented before, is not an

“objection” as that term is used in this context.”)). In any event, the Court finds wholly

unpersuasive Johnson’s remaining Objection—that his allegations concerning the mere filing of

three false-arrest lawsuits against Sheriff Israel, standing alone, suffice to establish an unofficial,

widespread, and unconstitutional policy of effectuating false arrests. After all, only two of these

lawsuits actually asserted a false arrest claim. And not one resulted in any determination of

illegality or wrongdoing. A lawsuit is an accusation—nothing more.

Johnson’s official capacity claim against Sheriff Israel is therefore DISMISSED without

prejudice.

F. Count III: The Individual Capacity Claim Against Sheriff Israel

In Count III of his Amended Complaint, Johnson asserts a § 1983 claim against Sheriff

Israel in his individual capacity. But 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) (quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir.1994)). “The standard by

which a supervisor is held liable in her individual capacity for the actions of a subordinate is

extremely rigorous.” Braddy v. Florida Dep't of Labor & Employment Sec., 133 F.3d 797, 802

(11th Cir.1998). Supervisors “can be held liable under § 1983 when a reasonable person in the

supervisor’s position would have known that his conduct infringed the constitutional rights of the

plaintiffs, and his conduct was causally related to the constitutional violation committed by his

subordinate.” Greason v. Kemp, 891 F.2d 829, 836 (11th Cir.1990) (citations and footnote

omitted). “Supervisory liability under § 1983 occurs either when the supervisor personally

participates in the alleged constitutional violation or when there is a causal connection between

actions of the supervising official and the alleged constitutional violation.” Braddy, 133 F.3d at

802 (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990)).

This causal connection may 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,” id., or when the supervisor’s “custom or policy . . . resulted in deliberate indifference to

constitutional rights,” Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir.1991). “The deprivations

that constitute widespread abuse sufficient to notify the supervising official must be obvious,

flagrant, rampant and of continued duration, rather than isolated occurrences.” Brown, 906 F.2d at

671 (citations omitted). “A causal connection can also be established by facts which 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.” Gonzalez, 325 F.3d at

1235 (citing Post, 7 F.3d at 1561).

Johnson makes none of these allegations here—at least not plausibly. In particular, he never

suggests that Sheriff Israel was personally involved in the incidents of November 22, 2013, or that

he “directed the [Deputies] to act unlawfully.” Id. And, because he has pled no other instances of

similar police misconduct, he has not established “a history of widespread abuse” that might “put[]

the responsible supervisor on notice of the need to correct the alleged deprivation.” Braddy, 133

F.3d at 802. Nor, lastly, has he shown any “custom or policy [that] resulted in deliberate

indifference to constitutional rights.” Rivas, 940 F.2d at 1495. For all these reasons, Johnson’s

individual capacity claim against Sheriff Israel is DISMISSED without prejudice.

G. Johnson’s Claim for Punitive Damages Against the Deputies

Finally, Johnson seeks $1 million in punitive damages against each deputy. See Am.

Compl. at 19. While punitive damages are not available for official capacity claims under § 1983,

they are available for individual capacity claims. See R&R at 24-25 (citing cases). But, to prevail

on his claim for punitive damages, Johnson will have to establish the Defendants’ “malicious

intent, evil motive, or reckless or callous disregard for the rights and safety of others.” Def.

Objections at 11 (citing H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1089 (11th Cir. 1986)). As the

R&R wisely concluded, it would be premature to strike Johnson’s punitive damages claim so early

in the case—in particular because of the scarce record evidence on the two searches and the reality

that it “remains uncertain whether any claims against the Deputies in their individual capacities

would ultimately survive.” R&R at 25.

***

Having carefully reviewed the record, the Court hereby

ORDERS AND ADJUDGES that Judge Valle’s R&R [ECF No. 47] is ADOPTED IN

FULL. The Defendants’ Motion to Dismiss [ECF No. 37] is GRANTED in part and DENIED

in part as follows:

1. Johnson’s Monell claims against the Defendants in their official capacities are

DISMISSED without prejudice.

2. Johnson’s claims that the Deputies, in their individual capacities, unconstitutionally

stopped and arrested him, as alleged in Counts I and II of the Amended Complaint, are

DISMISSED without prejudice.

3. Johnson’s claims that the Deputies, in their individual capacities, unconstitutionally

searched his truck, as alleged in Counts I and II of the Amended Complaint, shall

REMAIN. That said, in his Second Amended Complaint, Johnson must plead

additional facts as discussed in this Order regarding the contours of the two searches.

4. Johnson’s claims against Sheriff Israel in his individual capacity are DISMISSED

without prejudice.

5. Johnson’s claims for punitive damages against the Defendants in their official

capacities are STRICKEN.

6. Johnson’s claim for punitive damages against the Deputies in their individual capacities

shall REMAIN.

7. Johnson shall file a Second Amended Complaint within 21 days of this Order. That

Second Amended Complaint shall address the substantive deficiencies discussed in

both the R&R and this Order. Johnson’s failure to file a Second Amended Complaint

by March 25, 2020 will result in dismissal of this case with prejudice. Moreover,

Johnson will not be given another bite at the apple. If, on a subsequent motion to

dismiss, the Court dismisses Johnson’s claims again, that dismissal will be with

prejudice.

DONE AND ORDERED in Fort Lauderdale, Florida, this 4th day of March 2020.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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