Watkins v. Sergeant M. Bigwood

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-cv-63035-BLOOM/Valle

ERIC WATKINS,

Plaintiff,

vs.

SERGEANT M. BIGWOOD, et al.,

Defendants.

__________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court upon Defendants’, Sergeant M. Bigwood (“Bigwood”),

Officer T. Yopps (“Yopps”), and Officer Samuel Ramos (“Ramos”) (collectively, “Defendants”),

Motion to Dismiss, ECF No. [40] (“Motion”). Plaintiff filed his Response, ECF No. [43]

(“Response”), to which Defendants filed their Reply, ECF No. [46] (“Reply”). The Court has

considered the Motion, the Response, the Reply, the record in this case, the applicable law, and is

otherwise fully advised. For the reasons set forth below, the Motion is denied. Plaintiff’s Motion

for Leave, ECF No. [47], to file a sur-reply is denied as moot.

I. BACKGROUND

On March 11, 2020, the Court granted in part and denied in part Defendants’ motion to

dismiss and motion for more definite statement. See ECF No. [30] (“Order”). Specifically, the

Court dismissed the official capacity claims against Defendants without prejudice and required

Plaintiff to file an amended complaint that comports with Rules 8 and 10, Fed. R. Civ. P. See id.

On March 19, 2020, Plaintiff filed the operative Amended Complaint, ECF No. [35]

(“Complaint”), in which he brings two counts against Defendants under 42 U.S.C. § 1983 based

on alleged First and Fourth Amendment violations. Unlike the original complaint, ECF No. [1],

the instant Complaint raises claims against Defendants only in their individual capacities. See ECF

No. [35] at ¶¶ 3-5.

This action arises out of Plaintiff’s involuntary detention for a mental health evaluation

after joggers in a public park complained to Defendants about Plaintiff’s alleged behavior—

brandishing a knife and shouting anti-gay slurs—while in the park. See generally ECF No. [35].

Plaintiff alleges that he is homeless and lives out of his car. Id. at ¶ 22. He alleges that on December

15, 2014, he was sitting outside his car in Mullins Park while preparing to make breakfast, and he

was singing an anti-gay reggae song.1 Id. at ¶¶ 10, 21. According to him, this had been his “routine

for more than a year prior.” Id. at ¶ 11. He was situated approximately 60 feet away from the

walkway where patrons walk or exercise. Id. at ¶ 10. He asserts that two joggers, Tanika Beckford

(“Beckford”) and Jermaine Jackson (“Jackson”), were offended by Plaintiff’s singing. Id. at ¶ 12.

He alleges that Jackson believed that Plaintiff was speaking to him, but he ignored Jackson and

continued to sing. Id. at ¶ 14. Jackson, in response, allegedly cursed at him and attempted to

physically attack Plaintiff but was restrained by Beckford, and they walked out of the park while

Plaintiff continued singing. Id. at ¶¶ 14-16, 21. According to Plaintiff, Beckford and Jackson told

him that they were going to call the police and have him arrested for singing the anti-gay song. Id.

at ¶ 17.

Sometime later, Officers Ramos and Manchula2 arrived on the scene. Ramos informed

Plaintiff that the police were called in response to a complaint that he was “in the park disturbing

the peace.” Id. at ¶ 18. Plaintiff alleges that, in a “calm cool and collected manner,” he informed

1 The song’s lyrics included references to shooting homosexuals, and it included derogatory terms

such as “faggot” and “batty boy.” See id. at ¶¶ 21, 26

2 Officer Manchula is not named as a defendant. Plaintiff alleges that he “had a history with”

Officer Manchula. See id. at ¶ 18.

Ramos that he was not creating a disturbance but that he was “merely singing a song Boom Bye

Bye in a faggot boy head and the two patrons got upset and started cursing” at him. Id. at ¶ 19.

Bigwood later arrived, and he informed Plaintiff that Beckford and Jackson had complained that

he had been making anti-gay slurs while waiving a knife in his hand. Id. at ¶ 20. Plaintiff told

Bigwood that he possessed two knives, which he uses to prepare his meals, but he denied having

the knives out while he was singing because he had yet to prepare breakfast. Id. at ¶¶ 22-24. In

response to Bigwood’s question about how Beckford would know that he had a knife, Plaintiff

informed him that everyday he is “in the park with [his] desk outside [his] car and that [he is] either

doing writing or preparing [his] meals.” Id. at ¶ 25.

After Bigwood had listened to Plaintiff sing the song and had spoken with Beckford and

Jackson, Bigwood reportedly informed Plaintiff that he believed Plaintiff needed a mental health

examination based upon the incident at hand and a previous incident eight months earlier in April

2014 at another park. Id. at ¶¶ 26-27. Plaintiff alleges that that previous incident involved “a park

manager wanting to officially trespass [Plaintiff] from the park” and that Officer Manchula had

been involved in that incident. Id. at ¶¶ 28-29. He also alleges that that incident did not involve

complaints from patrons that he was shouting anti-gay slurs. Id. at ¶ 43. After speaking with Officer

Manchula, Bigwood allegedly again told Plaintiff that he believed that he needed a mental

evaluation because of his “constant singing of the antigay song in parks” and because he believed

that Plaintiff had waived his knife at Beckford. Id. at ¶ 30. According to Plaintiff, Bigwood asked

him to voluntarily submit himself to a mental health examination, but he refused to go. Id. at ¶¶ 32-

33.

The Complaint asserts that Bigwood, in response, ordered Ramos and Yopps to arrest him,

and he was handcuffed, placed in a police car, had his phone confiscated,3 and was taken to a

“mental facility.” Id. at ¶¶ 34-35. Plaintiff alleges that he was not confrontational with the police,

and Beckford and Jackson’s reports to the police were unreliable and not provided in a sworn

affidavit. Id. at ¶¶ 36-37. According to Plaintiff, Beckford and Jackson made various false

statements to police, such as Plaintiff shouting anti-gay slurs at Jackson, appearing hostile and

preparing to physically engage Jackson, and stabbing the air toward Jackson with a knife. Id. at ¶¶

37, 39-40. He never told Bigwood that he hated homosexuals and never shouted anti-gay slurs. Id.

at ¶ 41.

Plaintiff’s behavior never varied from calm to angry, and he never expressed feelings of

conspiracy that random citizens and police were targeting him without cause, which Bigwood

reported. See id. at ¶ 42. He also never told Bigwood that he was “not Fucking going anywhere.”

Id. at ¶ 44. According to Plaintiff, prior to December 15, 2014, no mental health professional had

certified that he met the criteria for involuntary examination. Id. at ¶ 45. He further alleges that

during his conversation with Bigwood, he expressed that Bigwood’s decision to arrest him under

the Baker Act was a “conspiracy between Bigwood and the other officers, especially Manchula,

and the complainants, but specifically the officers because of Plaintiff’s past and present pending

lawsuits against Lauderhill police officers, especially Manchula who Plaintiff had a pending

lawsuit against,” and that the decision to arrest him was “to retaliate against Plaintiff to cause him

mental anguish and hardship and to disrupt and hinder Plaintiff from timely filing a response in

court in the case against Manchula[.]” Id. at ¶ 46.

Plaintiff alleges that as a result of being Baker Acted “coupled with the false statements in

3 Plaintiff alleges that he was video recording the entire incident on his cell phone, but that when

he was released from the medical facility, the video was deleted from his phone, and only Officers

Ramos and Manchula knew that he was recording the incident. Id. at ¶¶ 34, 38.

the arrest records,” he is seen as a “trouble maker and mental problem and case,” and he cannot

get employment. Id. at ¶ 50. The Complaint seeks $1,000,000.00 in compensatory damages from

each Defendant and $2,000,000.00 in punitive damages from each Defendant. Id. at ¶¶ 52-53.

Defendants now move to dismiss the Complaint with prejudice based on qualified

immunity. ECF No. [40]. They assert that regarding the Fourth Amendment claim (Count I), the

allegations demonstrate that they were acting within their discretionary authority, there are

insufficient factual allegations against Yopps and Ramos, and that the facts as pled do not show

that Bigwood involuntarily detained Plaintiff without probable cause. Id. at 2. Regarding the First

Amendment claim (Count II), Defendants assert that based on recent Eleventh Circuit precedent

involving Plaintiff in a different lawsuit, it was not clearly established law that it was not

appropriate to apprehend Plaintiff for singing the same anti-gay song at issue in this case. Id. (citing

Watkins v. Central Broward Regional Park, 799 F. App’x 659 (11th Cir. 2020) (“Watkins II”)).4

Plaintiff responds that Watkins I did not indicate whether the dismissal of the complaint

against the Lauderhill Police Department was with or without prejudice, and that Defendants

mischaracterize the Watkins I decision. ECF No. [43]. He further argues that Defendants are not

entitled to qualified immunity regarding either count under the factual allegations as pled in the

Complaint. Id. Additionally, he argues that he should be allowed to amend his complaint to assert

additional facts that he believes would further establish liability against Officers Yopps and

Ramos. Id.

In their Reply, Defendants argue that Plaintiff does not dispute that Defendants acted

within their discretionary authority, and that he fails to carry his burden to establish that qualified

4 The Eleventh Circuit’s decision affirming in part and reversing in part this Court’s initial sua

sponte dismissal order, see Watkins v. Bigwood, No. 19-10456, 2019 WL 6724401 (11th Cir. Dec.

19, 2019), is referred to as “Watkins I.”

immunity does not apply regarding either count. ECF No [46]. Additionally, Defendants assert

that Plaintiff relies on facts concerning Officers Ramos and Yopps that were not pled in the

Amended Complaint, and that it is improper to request leave to amend in a response to a motion

to dismiss. See id. at 2.

The Motion, accordingly, is ripe for consideration.

II. LEGAL STANDARDS

A. Motion to dismiss

A pleading in a civil action must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need

detailed factual allegations,” it must provide “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); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.

Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and

courts “are not bound to accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.

Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the

factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful

conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental

Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

A court considering a Rule 12(b) motion is generally limited to the facts contained in the

complaint and attached exhibits, including documents referred to in the complaint that are central

to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess,

Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four

corners of the complaint may still be considered if it is central to the plaintiff’s claims and is

undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.

2002)).

B. Pro se litigants

“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys

and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998). This leniency, however, does not confer on pro se litigants “a right to receive

special advantages not bestowed on other litigants. [The pro se litigant] must, for example, abide

by local rules governing the proper form of pleadings.” Procup v. Strickland, 760 F.2d 1107, 1115

(11th Cir. 1985). Further, courts cannot serve as de facto counsel for a party and cannot rewrite a

deficient pleading for the sake of sustaining an action. Jarzynka v. St. Thomas Univ. of Law, 310

F. Supp. 2d 1256, 1264 (S.D. Fla. 2004). The Court cannot simply “fill in the blanks” to infer a

claim, Brinson v. Colon, 2012 WL 1028878, at *1 (S.D. Ga. Mar. 26, 2012), as “it is not the Court’s

duty to search through a plaintiff’s filings to find or construct a pleading that satisfies Rule

8,” Sanders v. United States, 2009 WL 1241636, at *3 (N.D. Ga. Jan. 22, 2009); see Bivens v.

Roberts, 2009 WL 411527, at *3 (S.D. Ga. Feb. 18, 2009) (“[J]udges must not raise issues and

arguments on plaintiffs’ behalf, but may only construe pleadings liberally given the linguistic

imprecision that untrained legal minds sometimes employ.” (citing Miller v. Donald, 541 F.3d

1091, 1100 (11th Cir. 2008))). In determining whether a pro se litigant has stated a claim, “the

court ought not penalize the litigant for linguistic imprecision in the more plausible allegations,”

while keeping in mind that “wildly implausible allegations in the complaint should not be taken to

be true.” Miller, 541 F.3d at 1100.

III. DISCUSSION

Determining whether the Complaint should be dismissed raises the overarching issues as

to whether Defendants are entitled to qualified immunity under Count I and Count II. The Court

will address each issue in turn.

A. Qualified immunity defense generally

“Qualified immunity offers complete protection for government officials sued in their

individual capacities if their conduct ‘does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Kingsland v. City of Miami, 382 F.3d

1220, 1231 (11th Cir. 2004) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.

2002)); see also Storck v. City of Coral Springs, 354 F.3d 1307, 1313 (11th Cir. 2003). “The

purpose of this immunity is to allow government officials to carry out their discretionary duties

without the fear of personal liability or harassing litigation, protecting from suit all but the plainly

incompetent or one who is knowingly violating the federal law,” Wood v. Kesler, 323 F.3d 872,

877 (11th Cir. 2003) (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)).

The qualified immunity doctrine accordingly represents “a balance between the need for a remedy

to protect citizens’ rights and the need for government officials to perform their duties without the

fear of constant, baseless litigation.” Kingsland, 382 F.3d at 1231 (citation omitted). Accordingly,

“[q]ualified immunity is, as the term implies, qualified. It is not absolute.” Id. at 1233.

“Generally speaking, it is proper to grant a motion to dismiss on qualified immunity

grounds when the ‘complaint fails to allege the violation of a clearly established constitutional

right.’” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (quoting St. George v. Pinellas

Cty., 285 F.3d 1334, 1337 (11th Cir. 2002)). To prevail on a motion to dismiss based

on qualified immunity, “the public official must first prove that he was acting within the scope of

his discretionary authority when the allegedly unconstitutional acts took place.” Storck, 354 F.3d

at 1314 (citing Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)).

“A government official acts within his discretionary authority if his actions were (1)

undertaken pursuant to the performance of his duties; and (2) within the scope of his

authority.” Mikko v. City of Atlanta, Ga., 857 F.3d 1136, 1144 (11th Cir. 2017) (citing Lenz v.

Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995)). “In applying each prong of this test, [courts] look

to the general nature of the defendant’s action, temporarily putting aside the fact that it may have

been committed for an unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate circumstances.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). “In other words, ‘a court must ask

whether the act complained of, if done for a proper purpose, would be within, or reasonably related

to, the outer perimeter of an official’s discretionary duties.’” Mikko, 857 F.3d at 1144

(quoting Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998)). “Once the public

official has established that he was acting within the scope of his discretionary authority, the

burden shifts to the plaintiff to establish that qualified immunity does not apply.” Storck, 354 F.3d

at 1314 (citing Lee, 284 F.3d at 1194).

The United States Supreme Court has outlined a two-part test to determine whether a

plaintiff meets its burden on rebutting a qualified immunity defense: (1) “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated

a constitutional right?”; and (2) if a constitutional right would have been violated under the

plaintiff’s version of the facts, the court must then determine “whether the right was clearly

established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Moreover, courts “may consider these two prongs in either order; an official is entitled

to qualified immunity if the plaintiff fails to establish either.” Piazza v. Jefferson Cty., Ala., 923

F.3d 947, 951 (11th Cir. 2019) (citing Jacoby v. Baldwin Cty., 835 F.3d 1338, 1344 (11th Cir.

2016)).

“[O]nly Supreme Court cases, Eleventh Circuit caselaw, and [Florida] Supreme Court

caselaw can ‘clearly establish’ law in this circuit.” Thomas ex rel. Thomas v. Roberts, 323 F.3d

950, 955 (11th Cir. 2003) (citing Hamilton By & Through Hamilton v. Cannon, 80 F.3d 1525,

1532 n.1 (11th Cir. 1996)). The essence of this inquiry is the “public official’s objective

reasonableness, regardless of his underlying intent or motivation.” Kingsland, 382 F.3d at 1231-

32 (citing Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Lee,

284 F.3d at 1195). “To be clearly established, the contours of an asserted constitutional right ‘must

be sufficiently clear that a reasonable official would understand that what he is doing violates that

right.’” Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999) (quoting Anderson v. Creighton,

483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “[I]n the light of pre-existing law, the

unlawfulness must be apparent.” Anderson, 483 U.S. at 640, 107 S. Ct. 3034.

“Qualified immunity ‘gives ample room for mistaken judgments’ but does not protect ‘the plainly

incompetent or those who knowingly violate the law.’” Kingsland, 382 F.3d at 1231-32

(quoting Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

Nonetheless, “[t]he Supreme Court and [the Eleventh Circuit] have stated that a plaintiff

cannot strip a § 1983 defendant of his qualified immunity by citing to general rules or abstract

rights.” Jones, 174 F.3d at 1282 (citing Anderson, 483 U.S. at 639, 107 S. Ct. 3034); see Walker

v. Schwalbe, 112 F.3d 1127, 1132 (11th Cir. 1997) (“Plaintiffs may not discharge their burden [of

showing that a right is clearly established] by referring to general rules and abstract rights.”).

“Qualified immunity focuses on the actual, specific details of concrete cases.” Walker, 112 F.3d

at 1132. Indeed, “‘clearly established law’ should not be defined ‘at a high level of generality’”

but “must be ‘particularlized’ to the facts of the case” because otherwise “‘[p]laintiffs would be

able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply

by alleging violation of extremely abstract rights.’” White v. Pauly, 137 S. Ct. 548, 552 (2017)

(citations omitted).

Additionally, “[b]ecause § 1983 ‘requires proof of an affirmative causal connection

between the official’s acts or omissions and the alleged constitutional deprivation,’ each defendant

is entitled to an independent qualified-immunity analysis as it relates to his or her actions and

omissions.” Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018) (quoting Zatler v. Wainwright,

802 F.2d 397, 401 (11th Cir. 1986) (per curiam)). Thus, in conducting a § 1983 analysis, courts

must “evaluate a given defendant’s qualified-immunity claim, considering only the actions and

omissions in which that particular defendant engaged.” Id. Accordingly, the Court will

individually address each Defendant’s actions below.

B. Discretionary authority

As noted, Defendants carry the initial burden to demonstrate that they were acting within

the scope of their discretionary authority when the allegedly unconstitutional acts took place. This

inquiry is two-fold: “[w]e ask whether the government employee was (a) performing a legitimate

job-related function (that is, pursuing a job-related goal), and (b) through means that were within

his power to utilize.” Holloman ex rel. Holloman, 370 F.3d at 1265. Here, Defendants’ challenged

actions arise from their investigation of the alleged disturbance in the park stemming from

Plaintiff’s encounter with Beckford and Jackson, and Plaintiff’s subsequent involuntary detention.

Plaintiff alleges that Defendants were employed at the Lauderhill Police Department and

at “the time of the alleged claim” were “on duty” and acting in their “individual capacity[ies],”

and he came into contact with Defendants because “two patrons had called 911 and complained

that [he] was in the park disturbing the peace.” See ECF No. [35] at ¶¶ 3-5, 18. The Complaint’s

allegations show that Defendants became involved with Plaintiff in response to investigating

citizen complaints while they were on duty. The Complaint, accordingly, presents facts that satisfy

Defendants’ burden. See Navarro v. City of Riviera Beach, 192 F. Supp. 3d 1353, 1362 (S.D. Fla.

2016) (finding that it was “undisputed” that sheriff was acting in his discretionary capacity where

the complaint alleged that the sheriff was “at all times material . . . duly appointed and acting in

his individual capacity as Sheriff of the Palm Beach County Sheriff’s Office”); Gonzales v. Israel,

No. 15-CIV-60060, 2015 WL 1143116, at *7 (S.D. Fla. Mar. 13, 2015) (finding that the

discretionary authority prong was established where complaint alleged that the defendants were

“acting under color of state law” at all relevant times); Bozeman v. Pollock, No. 14-CIV-60493,

2015 WL 11197743, at *6 (S.D. Fla. Apr. 16, 2015) (stating that “[i]n this case, Pollock ‘responded

to a call on his police radio, investigated the scene, and made an arrest. Such actions clearly fall

within his discretionary authority as a law-enforcement officer’”). Plaintiff does not dispute that

Defendants acted within their discretionary authority. Therefore, Defendants have carried their

burden, and the burden now shifts to Plaintiff to establish that qualified immunity does not apply.

C. Qualified immunity – Fourth Amendment claim

The gist of Plaintiff’s Fourth Amendment violation claim in Count I is that he was

involuntarily detained under the Baker Act without probable cause. According to Plaintiff,

Defendants arrested him in “bad faith” because no mental health professional certified that he met

the criteria for involuntary examination, there was “no other valid or viable reasons to believe that

Plaintiff had a mental illness,” and none of the Defendants gave him a “conscientious explanation

and disclosure of the purpose of the examination, and there [was] no reliable evidence to support

that Plaintiff met the criteria for involuntary examination.” ECF No. [35] at ¶ 8.

Regarding this count, the Eleventh Circuit in Watkins I previously analyzed the initial

complaint’s Fourth Amendment claim as follows:

“[T]he existence of probable cause at the time of arrest is an absolute bar to a

subsequent constitutional challenge to the arrest” under both the First and Fourth

Amendments. Gates v. Khokhar, 884 F.3d 1290, 1297-98 (11th Cir. 2018).

“Probable cause exists where the facts within the collective knowledge of law

enforcement officials, derived from reasonably trustworthy information, are

sufficient to cause a person of reasonable caution to believe that a criminal offense

has been or is being committed.” Id. at 1298. Even absent actual probable cause, a

claim for false arrest is subject to dismissal if the police officer had “‘arguable’

probable cause to arrest the plaintiff.” Id. “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 to arrest.” Id.

(alteration omitted). “Whether an officer possesses probable cause or arguable

probable cause depends on the elements of the alleged crime and the operative fact

pattern.” Brown v. City of Huntsville, 608 F.3d 724, 735 (11th Cir. 2010).

Under Florida’s Baker Act, a person may be subjected involuntarily to a mental

health examination if “[t]here is a substantial likelihood that without care or

treatment the person will cause serious bodily harm to himself or herself or others

in the near future, as evidenced by recent behavior.” Fla. Stat. § 394.463(1)(b)(2)

(emphasis added). Police officers “shall take a person who appears to meet the

criteria for involuntary examination into custody and deliver the person” to an

appropriate mental health facility for examination. Id. § 394.463(2)(a)(2).

For Plaintiff to be detained lawfully under the Baker Act, probable cause must have

existed -- evidenced by Plaintiff’s recent behavior -- to believe that a “substantial

likelihood” existed that Plaintiff would cause “serious bodily harm” to himself or

to others in the near future. This standard is a high one: for example, a reasonable

belief about “some likelihood,” “might cause” “some kind of bodily harm,” “at

some point in the future” is not good enough for probable cause to deprive a person

of their freedom.

Under Plaintiff’s version of the facts -- which we now must accept as true and must

construe in Plaintiff’s favor at this early stage of the proceedings -- Plaintiff

remained at all pertinent times near his car, which was more than 60 feet away from

the area where people were walking and jogging. Plaintiff denies flatly that he acted

in an aggressive or hostile manner either toward Beck[ford] and Jackson or toward

Defendant Officers. Plaintiff also denies flatly ever holding or waving a knife on

the pertinent day. To the extent there existed a risk of a physical altercation,

Plaintiff says that Jackson was the aggressor and that Plaintiff simply ignored

Jackson.

Also according to the complaint, the officers saw nothing to the contrary on the day

of the arrest; Plaintiff says the officers claim that they saw him have moments of

anger after they confronted him, but he denies that. On top of that, the event at

another park about 8 months earlier is not referred to as one involving actual

violence -- even IF we accept that an older event that occurred 8 months previously

might be evidence of “recent behavior” for the Baker Act.

Based on the limited record before us on appeal, an objective officer could not have

concluded reasonably that a “substantial likelihood” existed that Plaintiff would

soon “cause serious bodily harm” to himself or to others. Nor can we say that

Plaintiff’s version of the facts is so implausible that he can state no claim for relief.

Because Plaintiff has alleged sufficient facts from which we may infer, for now at

least, that he was detained under the Baker Act without probable cause or even

arguable probable cause, the district court erred in dismissing Plaintiff’s claim

under the Fourth Amendment.

Watkins I, 797 F. App’x at 442–43. Although the underlying complaint at issue in Watkins I is no

longer operative, the instant Amended Complaint is substantially similar to the one under

consideration by the Eleventh Circuit. That panel vacated this Court’s dismissal of Plaintiff’s

claims against Defendants, in which the Court determined that Defendants were entitled to

qualified immunity upon the facts alleged in the initial complaint.

i. Officers Yopps and Ramos

Defendants Yopps and Ramos asserts that they are entitled to qualified immunity because

the Amended Complaint lacks specific factual allegations detailing their actions toward Plaintiff

except that they followed Bigwood’s order to arrest him. ECF No. [40] at 5-6. In their view,

Plaintiff provides no reason why these officers should not have followed Bigwood’s orders to

detain Plaintiff. Id. Yopps asserts that “[n]othing on the face of Plaintiff’s Complaint gives any

indication that [he] was in anyway involved in the investigation at issue or that [he] knew or should

have known that his conduct may allegedly violate Plaintiff’s constitutional rights.” Id. at 5

(emphasis in original). Yopps cites to two Eleventh Circuit decisions that affirmed qualified

immunity under a summary judgment setting where no record evidence showed that the officers

acted unreasonably in following their superiors’ orders nor why they should have questioned the

validity of that order. See id. (citing Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir. 1995) and Brent

v. Ashley, 247 F.3d 1294, 1306 (11th Cir. 2001)). Ramos asserts that the “same principle applies

to” him. Id. He acknowledges, however, that the Amended Complaint alleges that he made initial

contact with Plaintiff and handcuffed Plaintiff and transported him to a mental facility at

Bigwood’s direction, but he asserts that there is “once again no indication or allegations that [he]

knew or should have known that Sgt. Bigwood’s orders allegedly may have violated Plaintiff’s

constitutional rights (which they did not)).” Id.

Plaintiff, in response, concedes that he “could, and arguably should, have provided more

factual details as to Ramos’ and Yopps’ involvement in the incident.”5 ECF No. [43] at 2.

5 In the Response, Plaintiff supplies additional facts that, in his opinion, confirm that Officers

Yopps and Ramos violated his Fourth Amendment rights. See ECF No. [43] at 2-3. The Court will

not consider these newly asserted allegations when ruling on the instant Motion. See, e.g.,

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Marabella v. NCL

(Bahamas), Ltd., No. 19-CV-25185, 2020 WL 533987, at *1 n.1 (S.D. Fla. Feb. 3, 2020).

Regardless, he maintains that when the Complaint’s allegations are viewed in a light most

favorable to him, the allegations show that Ramos and Yopps acted unreasonably in following

Bigwood’s order, and that they knew or should have known that arresting him might result in a

constitutional violation. Id. In particular, he argues that all Defendants responded to the park to

investigate the 911 call, they were all present during the investigation, observed his behavior and

demeanor and heard his responses to Bigwood’s questioning, they knew that he disputed

Beckford’s and Jackson’s reports, and knew that he did not qualify for Baker Acting. Id. (citing

ECF No. [35] at ¶¶ 8-10, 18-34).6 Upon review and consideration, and in light of Watkins I, the

Court agrees with Plaintiff that he has stated a sufficient claim against Officers Yopps and Ramos

and that they are not entitled to qualified immunity at this time.

ii. Sgt. Bigwood

Defendant Bigwood asserts that he is entitled to qualified immunity regarding the Fourth

Amendment claim because he was authorized to take Plaintiff to an appropriate mental facility

pursuant to Fla. Stat. § 394.463(1). He adds that “[t]o defeat qualified immunity, [Plaintiff’s]

factual allegations must demonstrate that reasonable officers—possessing the same knowledge as

the defendants—could not have believed that [Plaintiff] appeared to meet the criteria for

involuntary examination.” ECF No. [40] at 6 (quoting Bright v. Thomas, 754 F. App’x 783, 786

(11th Cir. 2018)). He notes that police officers are entitled to rely on victim statements and

6 Plaintiff requests in his Response that, “if this [C]ourt finds that the facts are insufficient to sustain

a claim against Yopps and Ramos, he be allowed to amend his Complaint to more clearly state

facts regarding “Yopps and Ramos’ presence and observation of their and Bigwood’s investigation

of the 911 call that was headed by Bigwood[.]” ECF No. [43] at 9. The Court declines Plaintiff’s

invitation for leave to amend because it is procedurally improper. See Cita Tr. Co. AG v. Fifth

Third Bank, 879 F.3d 1151, 1157 (11th Cir. 2018). Further, the Court notes that it previously

explained to Plaintiff that requesting leave in this manner is improper when it rejected an identical

request in response to the previous motion to dismiss. See Watkins v. Bigwood, No. 18-CV-63035,

2020 WL 1166720, at *5 n.6 (S.D. Fla. Mar. 11, 2020).

eyewitness accounts, and that pursuant to Bright, 754 F. App’x 783, which he characterizes as

instructive, Bigwood’s actions were justifiable. Id. at 7. He further maintains that the Amended

Complaint fails to allege facts reflecting that his reliance on Beckford and Jackson’s reports was

unreasonable, id., Plaintiff in fact possessed two knives even though he denied waiving at knife,

id. at 8, and Plaintiff volunteered his prior trespass history to Bigwood for singing the anti-gay

song at another park. Id. In Bigwood’s view, Plaintiff “offers no sound explanation” for why

Bigwood’s decision to “credit the victims’ reports” “notwithstanding Plaintiff’s denials” was

unreasonable under the circumstances and based upon information known to Bigwood at the time.

ECF No. [46] at 3.

Plaintiff, in response, contends that Bright is materially distinguishable, Beckford’s report

that he was waiving a knife while singing was not corroborated, Bigwood requested Plaintiff to

sing the song for him because he wanted to hear the lyrics, Plaintiff only informed Bigwood about

the April 2014 incident at another park because Bigwood “had his facts wrong” as that incident

did not involve violence, and he only expressed his conspiracy beliefs that his detention was a

retaliatory arrest “after Bigwood decided to arrest him for the purpose of Baker Acting him because

[Bigwood] knows there was no probable cause to arrest or Baker Act him.” ECF No. [43] at 3-6.

In Bright, a pro se plaintiff sued several police officers under § 1983 for involuntarily

committing him for a psychiatric evaluation. 754 F. App’x at 784. According to the complaint,

after plaintiff complained about poor customer service at a restaurant, restaurant employees

assaulted him by throwing hot grease at his face and punching him. Id. He then called the police

to report the attack. Id. Upon arriving at the scene, the police heard different versions of events

from plaintiff and the employees, including the employees’ collective story that plaintiff was the

instigator and had hit two employees, and that the employees were defending themselves. Id.

Sometime thereafter, while the police were present, plaintiff grabbed one of the employees by the

waist, which prompted the officers to restrain plaintiff and take him to a nearby hospital under the

Baker Act, Fla. Stat. § 394.463. Id. Plaintiff, in response, filed his civil rights complaint.

The district court ruled that the police officers were entitled to qualified immunity on

plaintiff’s false arrest claim under § 1983. Id. at 785. On appeal, the Eleventh Circuit panel held

that based on the complaint’s factual allegations, the officers had arguable probable cause to detain

and commit plaintiff under the Baker Act. Id. at 786. In this respect, “[w]hether an officer possesses

probable cause or arguable probable cause depends on the elements of the alleged crime and the

operative fact pattern.” Id. As alleged in the complaint, the police were called in response to a

physical altercation, the officers observed plaintiff with blood in his mouth and he “either had just

grabbed, or was still grabbing,” one of the employees. Id. Further, the employees “in concert” told

the officers that plaintiff instigated the altercation by attacking them. Id. Upon this factual

sequence, the panel concluded that the district court’s ruling “was correct” because the officers

were told by “multiple alleged victims or eyewitnesses that [plaintiff] attacked” the employees,

and upon hearing the employees’ version of events and “observing the surrounding

circumstances,” they could have believed that plaintiff met the criteria for involuntary examination

and that he might cause serious bodily harm to himself or others. Id. at 787-87.

The plaintiff, moreover, alleged “no facts that were known to the officers to suggest that it

was objectively unreasonable for them to believe the” employees even though he alleged the

officers “knew” the employees “were lying and that the employees’ version of events was

‘impossible, ridiculous, or even ludicrous.’” Id. at 787. Indeed, the complaint failed to allege “facts

explaining how the officers knew the employees were lying or why the employees’ version of

events was implausible.” Id. Importantly, the panel noted that even if the employees’ statement

and accusations alone were insufficient to provide arguable probable cause, the officers observed

plaintiff in a physical altercation after arriving at the scene. Id. at 788. This fact, coupled with the

consistent version of events told to the officers by the employees, could have led the officers to

have believed that plaintiff met the requirements for involuntary commitment. Id. at 788.

Returning to the instant case, and upon careful review and consideration, the Court agrees

with Plaintiff that Bright is distinguishable. As previously noted in Watkins I, Plaintiff alleges that

he remained at all times near his car; he denies acting aggressively toward Beckford and Jackson

or Defendants; he denies holding or waiving a knife; he alleges that Jackson was the aggressor and

that he ignored him; and according to the Complaint, Defendants saw nothing to the contrary. 797

F. App’x at 442. Unlike Bright, there was no underlying physical altercation, and the officers did

not observe any conflict in progress or have an objective reason to believe that Plaintiff was

violent. The April 2014 incident at another park, moreover, involved the same song but it did not

involve another patron or concerns about Plaintiff engaging in violent conduct. ECF No. [35] at ¶

28. To be sure, Beckford reported that Plaintiff waived a knife. However, Plaintiff explained to

Defendants that he was homeless and living out of his car. He also denied having taken any knives

out as he had not prepared breakfast at the time of the incident. Id. at ¶¶ 22-24. No factual

allegations were presented to demonstrate otherwise, and no facts show that there was a substantial

likelihood that Plaintiff would cause harm to himself or to others. Thus, while Bigwood could

consider Beckford’s reports in his investigation, the allegations in the Complaint, taken as true,

show that the “surrounding circumstances” and information known to Bigwood did not warrant

Baker Acting Plaintiff based on the prior 2014 incident or his “constant singing” of the anti-gay

song.

In light of the factual allegations raised and against the backdrop of Watkins I, the Court

concludes that the Amended Complaint sufficiently alleges that an objective officer could not have

concluded reasonably that Plaintiff met the criteria for involuntary examination under the Baker

Act. Accordingly, Bigwood is not entitled to qualified immunity under Count I.

D. Qualified immunity – First Amendment claim

The crux of Plaintiff’s First Amendment claim in Count II is that Defendants violated his

right to free speech by Baker Acting him for his singing and in retaliation for his lawsuits against

Lauderhill police officers. He alleges that there was no “valid, viable or reliable reasons or

evidence to justify involuntary examination and Baker Acting.” ECF No. [35] at ¶ 9.

Regarding this count, the Eleventh Circuit in Watkins I previously analyzed the initial

complaint’s First Amendment claim as follows:

To state a claim for retaliation under the First Amendment, a plaintiff must show

that (1) he engaged in protected speech; (2) the defendant’s conduct adversely

affected his protected speech; and (3) a causal connection between the adverse

conduct and the protected speech. Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th

Cir. 2005). “A plaintiff suffers adverse action if the defendant’s allegedly

retaliatory conduct would likely deter a person of ordinary firmness from the

exercise of First Amendment rights.” Id. at 1254.

Under the circumstances alleged by Plaintiff, Plaintiff’s singing clearly constituted

protected speech. The “most basic” principle underlying the First Amendment’s

right to free speech is that the “government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content.” Brown v. Entm’t

Merchs. Ass’n, 564 U.S. 786, 790-91, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). The

Supreme Court has recognized few exceptions to this broad protection only for

“well-defined and narrowly limited classes of speech,” including obscenity (i.e.,

sexual content), incitement of violence, and fighting words. Id. at 791, 131 S.Ct.

2729.

The lyrics of the anti-gay song involved in this case -- as distasteful and offensive

as they likely are to many people -- seem to fall within no exception to the First

Amendment’s protection. Although the song included references to violence,

nothing in the assumed facts establishes that Plaintiff was seeking to or was likely

to incite imminent violence toward homosexuals. See Brandenburg v. Ohio, 395

U.S. 444, 448, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (“[T]he constitutional

guarantees of free speech and free press do not permit a State to forbid or proscribe

advocacy of the use of force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or

produce such action.”). Nor did the song – objectively viewed in the context of

Plaintiff’s version of the facts – fit the narrow constitutional exception for “fighting

words”: His merely singing in an out-of-doors, public place, a recognized song that

has been available to the public to hear otherwise in a variety of ways, more than

60 feet away from the pertinent walkway for passersby, and without addressing any

particular person would be protected speech. For background, see Cohen v. Cal.,

403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (describing “fighting words”

as “those personally abusive epithets which, when addressed to the ordinary citizen,

are, as a matter of common knowledge, inherently likely to provoke violent

reaction”; and concluding that the words “Fuck the Draft” written on a jacket

constituted no “fighting words” in part because the words were “clearly not

‘directed to the person of the hearer.’”).

About the second element, we have no trouble concluding that being taken into

custody for an involuntary mental examination is the kind of conduct that would

deter a person of ordinary firmness from exercising his rights under the First

Amendment. (The practice of treating people who hold unpopular views as

mentally ill is not uncommon in this world and can readily be frightening.) Plaintiff

has also alleged sufficient facts from which a factfinder could infer a causal

connection between Plaintiff’s singing and his detention. Among the reasons

Sergeant Bigwood gave for determining that Plaintiff needed a mental examination

included Plaintiff’s “constant singing of the anti-gay song in parks” and Officer

Manchula’s previous encounter with Plaintiff on 17 April 2014: an incident that

also involved Plaintiff’s singing of an anti-gay song. Plaintiff has thus alleged

sufficient facts to state a plausible claim for violation of his clear rights under the

First Amendment.

797 F. App’x at 443–44. Since that opinion was issued, the Eleventh Circuit has revisited

Plaintiff’s singing of the anti-gay song in the context of whether a park manager and park employee

were entitled to qualified immunity for an alleged First Amendment violation. See Watkins II, 799

F. App’x 659. Specifically, Plaintiff’s claims in Watkins II arose from two incidents, in May 2013

and April 2014, in which he was removed and subsequently banned from a park after loudly and

repeatedly singing the anti-gay song at issue in the present case. Id. at 662. In analyzing the First

Amendment claims, the court ruled as follows:

We next turn to the grant of summary judgment as to the First Amendment claims

against [park manager] Finch and [park employee] Wishnoff. The district court

concluded both Finch and Wishnoff were entitled to qualified immunity because

they were acting within their discretionary authority and did not violate any clearly

established constitutional right of which a reasonable person would have been

aware.

. . .

Here, the district court did not err in concluding that Finch and Wishnoff were

entitled to qualified immunity as to his First Amendment claims. Watkins does not

dispute that both Finch and Wishnoff were acting within the scope of their

discretionary authority when they acted to have him removed and banned from the

park. As a result, to overcome qualified immunity, Watkins bears the burden to

demonstrate that they violated a clearly established constitutional right. See Gaines,

871 F.3d at 1208.

Watkins has failed to meet this burden for two reasons. First, Finch offered an

alternative, lawful basis for the decision to remove and ban Watkins from the park;

one based on Watkins’s conduct rather than the content of the song he chose to

sing. In a sworn declaration, Finch stated he had received complaints from other

park patrons and employees that Watkins had been screaming, yelling, or ranting

at them, and he discussed those complaints with the other employees, including

Wishnoff. Watkins failed to offer contrary evidence creating an issue of material

fact as to this asserted basis for his removal, one that does not implicate his First

Amendment rights, clearly established or otherwise.

Second, even assuming the content of Watkins’s speech—and not his disorderly

conduct—was the basis for his removal, a reasonable official could have believed,

under the circumstances of this case, that Watkins’s speech constituted unprotected

intimidation. The First Amendment does not protect “true threats,” which are

“statements where the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular individual or group of

individuals.” See Virginia v. Black, 538 U.S. 343, 347–48, 359–60, 123 S.Ct. 1536,

155 L.Ed.2d 535 (2003) (noting the First Amendment does not protect “true

threats,” including acts of “[i]ntimidation” where the speaker intends to place the

listener in fear of bodily harm or death).

The lyrics Watkins was singing advocated violence against gay people, and

Watkins admitted that he sang that song to deter gay people from being around him.

Under these specific circumstances, and given the ambiguity as to whether

Watkins’s speech was indeed protected, we cannot say that “every objectively

reasonable government official facing the circumstances would know that the

official’s conduct did violate federal law when the official acted.” Vinyard, 311

F.3d at 1351; see also Pace v. Capobianco, 283 F.3d 1275, 1282–84 (11th Cir.

2002) (“[T]he preexisting law must give real notice of practical value to

governmental officials, considering the specific circumstances confronting them,

and not just talk of some generalized, abstract intellectual concept.”).

Accordingly, the district court properly granted summary judgment as to Watkins’s

First Amendment claims.

Id. at 665-67 (footnotes omitted).

In light of these two decisions, Defendants assert that Plaintiff cannot demonstrate that they

had “real notice of practical value” that detaining Plaintiff based on the anti-gay music would

violate clearly established law. ECF No. [40] at 9. They add that the Amended Complaint’s

allegations show that it “was not clearly established in December 2014 that Plaintiff’s detention

violated the First Amendment nor was it in retaliation for the content of Plaintiff’s speech.” Id. at

10. According to Defendants, Plaintiff’s denial that he had his knife out “is simply not credible,

based on the totality of the allegations.” Id. at 10. They conclude that Plaintiff’s “allegations about

the content of the song [he] was singing, coupled with the claims that the lyrics upset Beckford

and Jackson and their report that Plaintiff was simultaneously waiving a knife, clearly reflect that

a reasonable official could have believed that Plaintiff’s speech constituted unprotected

intimidation.” Id. at 11. Thus, they assert that Defendants are entitled to qualified immunity at this

stage on Count II. Id.

Upon review and consideration, the Court disagrees. In Watkins I, the Eleventh Circuit held

that “[u]nder the circumstances alleged by Plaintiff, Plaintiff’s singing clearly constituted

protected speech,” the lyrics “seem to fall within no exception to the First Amendment’s

protections,” and while the lyrics included violent references, “nothing in the assumed facts

establishes that Plaintiff was seeking to or was likely to incite imminent violence toward

homosexuals.” 797 F. App’x at 443. Indeed, the court noted that “merely singing in an out-of-

doors, public place, a recognized song that has been available to the public to hear . . . more than

60 feet away from the pertinent walkway for passersby, and without addressing any particular

person” did not constitute “fighting words.” Id. The court further explained that the prior

complaint’s allegations alleged sufficient facts for a factfinder to infer a causal connection between

Plaintiff’s singing and his detention. Id. at 444. The court also had “no trouble concluding” that

detaining a person for an involuntary mental examination would deter a person of ordinary fitness

from exercising his First Amendment rights. Id.

In Watkins II, by contrast, which involved a summary judgment posture, the record

established that Plaintiff was removed from the park because of disorderly conduct, including

“screaming, yelling, or ranting” at park patrons and employees, rather than the content of the song.

799 F. App’x at 666. Further, he was not involuntarily detained for a mental examination in that

incident. That court noted, additionally, that even if the content of his speech was the basis for his

removal in that case, under the “specific circumstances” of the case, a reasonable official could

have concluded that Plaintiff’s speech constituted “unprotected intimidation” as Plaintiff admitted

he sang the song to “deter gay people from being around him” and it was “ambig[uous] as to

whether Waktins’s speech was indeed protected[.]” Id. at 667.

Here, the factual record has not been developed. The Court, consequently, will not make

fact findings as to whether Plaintiff intended to engage in “unprotected intimidation” or whether

he waved a knife toward Beckford and Jackson during the incident, which allegations Plaintiff

denies. Plaintiff alleges that he was never violent or aggressive. He also alleges that he ignored

Jackson while he was singing his song, the song “was not directed at anyone” and “no one

complained or felt that it was directed at them.” Plaintiff denies that he told Bigwood that he hated

homosexuals. See ECF No. [35] at ¶¶ 14, 21, 24-25, 28, 32, 40, 41. Taking Plaintiff’s allegations

as true and construed in a light most favorable to him, the Court cannot conclude that qualified

immunity is appropriate.

Case No. 18-cv-63035-BLOOM/Valle

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED that

1. The Motion, ECF No. [40], is DENIED.

2. Plaintiff's Motion for Leave, ECF No. [47], is DENIED AS MOOT.

3. Defendants shall file their respective Answers to the Amended Complaint no later than

May 12, 2020.

DONE AND ORDERED in Chambers at Miami, Florida, on April 30, 2020.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Eric Watkins

7990 Hampton Blvd

Apt. 110

North Lauderdale, FL 33068

Email: kemet121671.ew@ gmail.com

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