Valsaint v. City of Miami Beach, Florida

United Statfoesr tDhies trict Court

Southern District of Florida

Alberonick Valsaint, Plaintiff, )

)

v. )

Civil Action No. 21-24143-Civ-Scola

)

City of Miami Beach, Florida and )

others, Defendants. )

Order on Motions to Dismiss

Plaintiff Alberonick Valsaint seeks to recover damages from the City of

Miami Beach and three named police officers—Gustavo Blacio, David Cajuso, and

Orlando Sosa Jr. (collectively, the “Officers”)—and one unidentified officer—“John

Doe”—for violations of his constitutional rights that he says occurred when he

was wrongfully detained, or perhaps arrested, on one occasion, in 2017, and

wrongfully arrested, on another, in 2018. (Am. Compl. (“Compl.”), ECF No. 38.) In

his ten-count complaint, Valsaint alleges liability under 42 U.S.C. § 1983 for

violations of his fourth, eighth, and fourteenth amendment rights, along with

municipal liability against the City. The City and the Officers have filed motions to

dismiss. (City’s Mot., ECF No. 41; Officers’ Mot., ECF No. 42.) In those motions,

the Defendants argue that Valsaint has failed to set forth facts establishing any

actual underlying constitutional violations. Further, the City separately argues

that Valsaint has also failed to properly allege municipal liability under § 1983.

The Officers additionally maintain, in their motion, that even if a constitutional

violation is set forth in the complaint, the officers are nonetheless entitled to

qualified immunity. Valsaint has filed a unified response, opposing both motions

(Pl.’s Resp., ECF No. 44) and the City and the Officers have, separately, replied

(City’s Reply, ECF No. 45; Officers’ Reply, ECF No. 42). After review, the Court

agrees with the Officers that the counts based on Valsaint’s arrest, in October

2018, should be dismissed for failing to state a claim. It also appears, though,

that the claims Valsaint bases on the September 2017 incident, involving only

Blacio and the John Doe officer, are time barred. Finally, even if the claims

against the John Doe officer are not time barred, it appears those claims should,

in any event, be dismissed because that officer has yet to be identified and,

therefore, has never been served. On the other hand, the Court agrees with the

City that the sole count in the complaint against it, for municipal liability is

wholly lacking and should be dismissed for failing to state a claim. In sum, then,

the Court grants, in part, and defers ruling on, in part, the Officers’ motion to

dismiss (ECF No. 42) and grants, in its entirety, the City’s motion to dismiss

(ECF No. 41). As to the remaining claims, the Court orders Valsaint to show

cause, on or before November 10, 2022, why they too should not be dismissed.

1. Background

Valsaint describes two incidents involving the Officers in his complaint: one

that occurred in September 2017 and another in October 2018. During the first

incident, Valsaint, who describes himself as homeless, Haitian American, and

Black (e.g., Compl. ¶¶ 75, 86), was sitting near the corner of Lincoln Road and

Pennsylvania Avenue one night, in September 2017 (id. ¶ 21). He had his

backpack on his lap and describes himself as being quiet and peaceful when two

officers—Blacio and the John Doe officer—approached him from behind. (Id.)

Valsaint describes the officers as approaching him aggressively, yelling at him to

turn around. (Id.) As Valsaint turned, he saw that the John Doe officer had his

gun pointed at him. (Id. ¶ 22.) That officer circled Valsaint, at gunpoint, and

shouted at him to open his backpack while asking him what type of weapon he

was carrying. (Id. ¶ 24.) During the interaction, Blacio stood by, smiling. (Id.)

Valsaint informed the two officers he did not have a weapon in his bag,

opening his bag and emptying its contents to show them. (Id. ¶¶ 27–28.) Valsaint

also complied with Blacio’s demand to show his identification, providing him with

his Florida license. (Id. ¶¶ 28–29.) Blacio also asked Valsaint where he was from

and whether he was Haitian, questioning Valsaint about whether he was legally

in the United States. (Id. ¶ 30.) Upon Blacio’s questioning Valsaint about his

occupation and why he was “out here,” Valsaint explained he was a student,

studying computer technology and that he “was just sitting down.” (Id.) At the

same time, there was a white man, across the street sleeping, whom the officers

left alone. (Id. ¶ 31.) When Valsaint queried the officers about why they were

harassing him and not the sleeping white man, Blacio told him not to worry about

the white man, telling Valsaint, “you are the one we need – you are the one that

we want.” (Id.)

After a short conversation over his radio, Blacio was told to let Valsaint go.

(Id. ¶ 32.) At this point, the John Doe officer lowered his gun and Blacio handed

Valsaint his license back, along with a small, yellow piece paper, telling Valsaint

to go to social services. In all, the interaction lasted between twenty-five and

thirty minutes. (Id. ¶ 33.)

Over a year later, in October 2018, Valsaint was in the vicinity again, this

time “sitting on the ground, lying against a wall near the back alley of a

building”—a clothing store—“on Lincoln Road.” (Id. ¶ 37; Arrest Aff.,2 Ex. A, City’s

1 The Court accepts the complaint’s factual allegations, as set forth below, as true for the purposes

of evaluating the motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d

1364, 1369 (11th Cir. 1997).

2 The City attached the “Complaint/Arrest Affidavit” from the October 2018 incident to its motion

to dismiss. (ECF No. 41-1.) Valsaint references or quotes from this report, signed by both Blacio

and Sosa, multiple times in his complaint. (E.g., Compl. ¶¶ 18, 45, 60, 81, 1st 89 (the complaint

includes duplicates of paragraphs 89 through 95 so the Court differentiates them by indicating

Mot., ECF No. 41-1.) Valsaint had his sneakers behind his back, for support, with

his socks tucked inside of them. (Compl. ¶ 37.) When Blacio and Cajuso, while on

a “quality of life” detail, encountered Valsaint, it was just before 4:00 am. (Id. ¶¶

39, 59; Arrest Aff. at 1.) Without even allowing him to put his shoes on, Blacio

ordered Valsaint to stand and put his hands behind his back so that Blacio could

cuff him, arresting him for trespassing after a warning. (Compl. ¶¶ 40, 81; Arrest

Aff. at 1.) Blacio patted Valsaint down and walked him to a transport van, all

while he remained shoeless. (Compl. ¶ 41.) Because the cuffs were so tight, they

left Valsaint with bruises and marks. (Id. ¶ 43.) Valsaint also says someone, he

doesn’t specify whom, asked him questions about either his race or national

origin. (Id. ¶ 42.)

The business where Valsaint was arrested, and other businesses in the

City, have agreements with the City to arrest people on their properties who are

trespassing. (Id. ¶¶ 60, 1st 89, 2nd 94, 166; Arrest Aff. at 1.) Valsaint alleges these

agreements are pretextual and target homeless people and minorities who are

really doing nothing more than “performing harmless, inoffensive life-sustaining

conduct in public.” (E.g., Compl. ¶¶ 60, 1st 89, 2nd 94, 166.) In the arrest affidavit,

Blacio described an “ongoing problem” at the location where he arrested Valsaint.

(Arrest Aff. at 1.) Blacio also noted that the business, closed at the time, had

“clearly posted” “no trespassing” signs, with letters that are two inches high. (Id.)

Blacio further explained, in the affidavit, that “the business has a trespass

authorization letter on file with the Miami Beach Police Department authorizing

any police officer . . . to arrest if compliance,” presumably with the no-trespassing

signs, “is not met.” (Id.)

Valsaint filed a formal complaint with the City’s internal-affairs department,

in August 2020, but no investigation was initiated nor were Blacio, Cajuso, or

Sosa ever reprimanded. (Compl. ¶¶ 56, 63–64.) Valsaint then initiated this

lawsuit, on November 24, 2021, complaining that the Defendants’ conduct was

unlawful and that he was targeted because of his race, national origin, and

homeless status.

2. Legal Standard

A court considering a motion to dismiss must accept all the complaint’s

allegations as true, construing them in the light most favorable to the

claims, based on the constitutionality of his arrest in October 2018. Finally, none of the parties

dispute the authenticity of the report. Accordingly, the Court considers this document, in

evaluating the parties’ motions to dismiss, without converting the motions into motions for

summary judgment. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (finding that a

“court may consider a document attached to a motion to dismiss without converting the motion

into one for summary judgment if the attached document is (1) central to the plaintiff's claim and

(2) undisputed”).

plaintiff. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).

Although a pleading need only contain a short and plain statement of the claim

showing that the pleader is entitled to relief, a plaintiff must nevertheless

articulate “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “But where the well-pleaded

facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not shown—that the pleader is

entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A court must

dismiss a plaintiff's claims if she fails to nudge her “claims across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570.

3. Analysis

A. Statute of Limitations

Counts one through nine are lodged against the officer defendants; count

ten, against the City. Counts one through three target just Blacio and are all

based on both the 2017 as well as the 2018 incidents. Counts four through six

are aimed only at the John Doe officer and are based solely on the 2017 incident.

Counts seven through nine, in turn, are maintained against Cajuso and Sosa,

together, and relate only to the 2018 incident. Finally, count ten, against the City,

is premised on both incidents.

While § 1983 does not provide for a statute of limitations, it has been

established that “[a]ll constitutional claims brought under § 1983 are tort actions,

subject to the statute of limitations governing personal injury actions in the state

where the § 1983 action has been brought.” Sneed v. Pan Am. Hosp., 370 F. App’x

47, 49 (11th Cir.2010) (cleaned up). The applicable statute of limitations in

Florida provides for a four-year limitations period. Fla. Stat. § 95.11(3)(p)

(2011); see also Sneed, 370 F. App’x at 47 (stating same). When a statute-of-

limitations defense “is apparent from the face of the complaint or the court’s

records, courts need not wait and see if the defense will be asserted in a defensive

pleading.” Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 641 (11th

Cir. 1990).

From the face of the complaint, it appears Valsaint’s claims, to the extent

they are based on the 2017 interaction with Blacio and the John Doe officer, are

time barred: that incident took place on September 18, 2017, but Valsaint did not

file his complaint until November 24, 2021—over four years later. Because this

issue was raised for the first time only in reply to Valsaint’s opposition, however,

the Court will afford Valsaint the opportunity to rebut this affirmative defense if

he can, in good faith, do so. In the meantime, however, to avoid a dismissal on

the merits regarding the claims based on the 2017 event, the Court will confine

its substantive analysis to those claims that are premised solely on the 2018

incident.

B. The Officers

Valsaint’s claims, in relation to his arrest on October 25, 2018, against

Blacio, Cajuso, and Sosa are all premised on their violations of the Fourth,

Eighth, and Fourteenth Amendments. Valsaint argues his Fourth Amendment

rights were violated because all three officers “arrested Plaintiff without warning

and without probable cause.” (Pl.’s Resp. at 4.) As to his Eighth Amendment

claims, Valsaint maintains he can sustain his claim that he was subjected to

cruel and unusual punishment despite failing to allege any post-conviction

wrongful conduct. And, Valsaint maintains his Fourteenth Amendment claims

cannot be dismissed because he has alleged facts sufficient to show that he was

treated differently from similarly situated, non-minority individuals and that he

was singled out because of his race, nation of origin, and homeless status. As to

all three constitutional bases, the Court finds Valsaint’s claims do not survive

dismissal.

As an initial matter, “[t]he doctrine of qualified immunity protects

government officials 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.” Pearson v. Callahan, 555 U.S. 223, 231,

129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009). “To receive qualified immunity, the

public official must first prove that he was acting within the scope of his

discretionary authority when the allegedly wrongful acts occurred.” Wood v.

Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (cleaned up). “Once the defendant

establishes that he was acting within his discretionary authority, the burden

shifts to the plaintiff to show that qualified immunity is not appropriate.” Id.

(cleaned up). “Officers who act within their discretionary authority are entitled to

qualified immunity under § 1983 unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct was clearly

established at the time.” Williams v. Aguirre, 965 F.3d 1147, 1156 (11th Cir.

2020) (cleaned up). As to the second prong, “[t]he Supreme Court has emphasized

that determining whether a constitutional right was clearly established must be

undertaken in light of the specific context of the case, not as a broad general

proposition.” Battiste v. Sheriff of Broward Cnty., 261 F. App'x 199, 202 (11th Cir.

2008) (cleaned up). This inquiry turns on whether a plaintiff can establish that “it

would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted, and whether the state of the law gave the officer fair

warning that his actions were unconstitutional.” Id. (cleaned up); see also

Murdock v. Cobb Cnty., Ga., No. 1:12-CV-01743-RWS, 2013 WL 2155465, at *9

(N.D. Ga. May 17, 2013) (“Plaintiffs bear the burden of establishing that the

constitutional right at issue was clearly established at the time of the violation.”).

There is no dispute here that the Officers were all acting within their

discretionary authority. Accordingly, then, the Court evaluates whether Valsaint

has shown qualified immunity should not attach. In doing so, it is within the

Court’s discretion, in light of the circumstances of the case, to determine which of

the two prongs of the qualified immunity analysis to address first as to each

claim. Pearson, 555 U.S. at 236.

As to Cajuso and Sosa, the Court finds Valsaint’s allegations fail as to all

three counts against them both. Other than conclusory statements, Valsaint fails

to set forth facts that support these officers’ involvement in any of the alleged

constitutional violations. As to the encounter in October 2018, Cajuso’s alleged

involvement was minimal, establishing only his presence at the scene and his role

in transporting Valsaint to the police department. Sosa’s involvement was even

more tangential, having simply “signed off” on Blacio’s arrest affidavit. Valsaint’s

speculation, in both his complaint and his opposition brief, that Cajuso

participated “in a collaborative approach with Officer Blacio” in arresting Valsaint

is insufficient to state a § 1983 claim against Cajuso. (See, e.g., Pl.’s Resp. at 10

n. 2; Compl. ¶¶ 39, 150, 152.) Similarly, Valsaint’s allegations that Cajuso and

Sosa both knew there was no probable cause for his arrest are devoid of any

factual underpinnings. Finally, Valsaint’s argument that Sosa’s liability stems

from his supervisory position also misses the mark. Importantly, “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). Instead, for supervisory liability to

attach, either the supervisor must personally participate in the alleged

constitutional violation or there must be a causal connection between the actions

of that supervisor and the alleged constitutional deprivation. Id. Valsaint has not

alleged facts establishing either. Based on the dearth of relevant facts, the Court

dismisses counts seven through nine—directed only at Cajuso and Sosa—in their

entireties.

Valsaint’s allegations against Blacio, on the other hand, are more

substantial but still fail to overcome Blacio’s qualified immunity, as explained in

more detail, below.

(1) Valsaint fails to show that Blacio is not shielded by qualified immunity

as to his claims for cruel and unusual punishment under the Eighth

Amendment or excessive force under the Fourth Amendment.

Valsaint’s allegations, in count two, that Blacio subjected him to cruel and

unusual punishment, miss the mark. As an initial matter, the Court notes

Valsaint has captioned this count as arising under the Eighth Amendment. But,

as the Officers point out, the Eighth Amendment “applies only to confinement

that occurs subsequent to and as a consequence of a person’s lawful conviction of

a crime.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572 (11th Cir. 1985).

“Conditions of confinement imposed prior to conviction,” conversely, “are limited

claims of mistreatment, or excessive force, during the course of an arrest, “should

be analyzed under the Fourth Amendment and its reasonableness standard,

rather than under a substantive due process approach.” Graham v. Connor, 490

U.S. 386, 395 (1989). Because the purported abuses Valsaint claims to have

suffered occurred prior to his acquiring pretrial-detainee status, and certainly

prior to any confinement as a result of a conviction, the Court construes his

allegations, under count two, as a claim of excessive force arising under the

Fourth Amendment, as opposed to the Eighth Amendment, as he has captioned

it.

“To establish a Fourth Amendment claim for excessive force, a plaintiff

must allege (1) that a seizure occurred and (2) that the force used to effect the

seizure was unreasonable.” Corbitt v. Vickers, 929 F.3d 1304, 1315 (11th Cir.

2019) (cleaned up). Ordinarily, “a Fourth Amendment violation depends

upon intentional action on the part of the officer.” Id. at 1317 (emphasis in

original). That is, “the focus of the Fourth Amendment analysis is on the misuse

of power, not the accidental effects of otherwise lawful government conduct.” Id.

at 1320 (cleaned up).

While there is no dispute that Valsaint has set forth facts establishing that

a seizure occurred, the Court finds allegations as to the second element

thoroughly lacking. The only facts that Valsaint alleges that even remotely touch

on his excessive-use-of-force claim are (1) Blacio cuffed him and made him walk

to the transport van in his bare feet; (2) Valsaint could barely fit in the transport

van due to other arrestees; (3) Blacio ignored Valsaint’s complaint that the

handcuffs were too tight; (4) the handcuffs left “bruises and marks”; and (5) the

transport van did not take Valsaint directly to the station but instead continued

driving around the City. Valsaint fails to convince that these allegations amount

to the violation of a clearly established constitutional right: at most Valsaint has

shown he suffered de minimis injuries as a result of an otherwise unremarkable

arrest that reveals no evidence of a concrete intent to harm.

Valsaint’s reliance on Pottinger v. City of Miami is misplaced. 810 F. Supp.

1551 (S.D. Fla. 1992). In that case, in relevant part, the plaintiff class members—

all homeless—challenged an ordinance that, as applied to them, “punish[ed] them

for something for which they may not be convicted under the eighth

amendment—sleeping, eating and other innocent conduct.” Id. at 1565. Pottinger

is inapplicable for many reasons, not the least of which is that the ordinance at

issue here targets trespassing on private property, as opposed to loitering on

public property. Accordingly, to the extent Valsaint claims that his

“circumstances are identical to th[e] plaintiffs in Pottinger,” he is wrong.

Furthermore, the part of Pottinger that Valsaint relies on is directed towards the

Eighth Amendment, not the Fourth Amendment.

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Clause.

Valsaint’s allegations regarding the Equal Protection Clause are also

lacking. According to Valsaint, he was targeted for arrest because of his race,

national origin, and homelessness status. (E.g., Compl. ¶ 99.)

To the extent Valsaint’s claim hinges on his belonging to a protected class,

he must set forth facts establishing that “individuals of a different race [or

nationality] could have been . . . arrested for the same crime, but were not.”

Urbanique Prod. v. City of Montgomery, 428 F. Supp. 2d 1193, 1224 (M.D. Ala.

2006). Or, to the extent Valsaint’s equal-protection count hinges on a “class of

one” claim, he “must show that (1) he has been intentionally treated differently

from others similarly situated, and (2) there is no rational basis for the difference

in treatment.” Watkins v. Cent. Broward Reg’l Park, 799 F. App’x 659, 664 (11th

Cir. 2020). As to Blacio’s 2018 encounter with Valsaint, the complaint is replete

with generalities and unsupported conclusions of disparate treatment, but is

wholly devoid of any facts that could come even close to establishing an equal-

protection claim: Valsaint fails to alleges facts establishing either Blacio’s racial

animus or discriminatory conduct. Accordingly, the Court finds Blacio shielded

by qualified immunity in the face of Valsaint’s claim for violations of his equal-

protection rights, at least as relates to the 2018 incident.

(3) Valsaint fails to show that Blacio is not shielded by qualified immunity

as to his Fourth Amendment false arrest claim.

As to the October 2018 incident, Valsaint maintains he was subjected to

arrest without probable cause. He says Blacio’s charge of trespassing on private

property, after a warning, was mere pretext, and that, in actuality, Valsaint was

merely sitting down, peacefully, in a public place, when he was unlawfully

arrested. (Compl. ¶¶ 79, 81.) The Court finds Valsaint’s showing lacking and

inadequate to overcome Blacio’s qualified immunity regarding Valsaint’s

unlawful-arrest claim.

In a wrongful-arrest claim, an officer will be shielded from liability “if there

was arguable probable cause, i.e., if a reasonable police officer, knowing what [the

defendant officer] knew, could have believed there was probable cause for the

warrantless arrest.” Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999).

Here, Valsaint alleges he was sitting or lying against a wall, barefoot, near the

back alley of a building on Lincoln Road. (Compl. ¶ 37.) According to the arrest

affidavit, which the Court considers in evaluating the motion-to-dismiss briefing

(as explained above, in note 1), the encounter occurred at 3:52 in the morning,

when the business inside the building was closed. (Arrest Aff. at 1.) The affidavit

also describes a “clearly posted . . . ‘NO TRESPASSING’ sign,” with two-inch high

lettering. (Id.) Continuing, the affidavit explains that the business has a “trespass

authorization letter on file with the Miami Beach police department authorizing

any police officer . . . to arrest if compliance is not met.” (Id.) Although Valsaint

does not dispute the affidavit’s description of where he was, he insists that the

area was public, not private, space. (E.g., Compl. ¶ 38.) Valsaint also does not

dispute the affidavit’s description of the no-trespassing sign, but nonetheless

maintains Blacio arrested him “without any verbal or written warnings” (id. ¶ 40)

and argues in briefing that “there was no conspicuous trespass sign for [him] to

heed.” (Pl.’s Resp. at 11 (emphasis added).) Importantly, Valsaint acknowledges at

least some signage in the area but simply notes that it is not in compliance with

Florida law because the sign did not specify the name of the business that owned

the property or that the actual spot where Valsaint was located was in a “trespass

zone.” (Pl.’s Resp. at 12.)

Notably, missing from the complaint, and even Valsaint’s response brief,

are any facts that would show Blacio lacked arguable probable cause to arrest

Valsaint. Reading the facts in the light most favorable to Valsaint, Blacio

encountered Valsaint, barefoot and lying against a wall, in an alley behind

Lincoln Road in Miami Beach, at nearly four o’clock in the morning. Blacio

perceived what he described as a “clearly posted” no-trespassing sign that he

believed was associated with the building and the area where Valsaint was

located. Blacio also was aware of a letter the business had on file that he believed

authorized him to arrest anyone who was not in compliance with the sign’s

warning. Even if the spot where Valsaint was lying was actually public property;

and even if the sign was not actually conspicuous or in compliance with the

Florida statute sections he cites, Valsaint fails to show that a reasonable police

officer, knowing what Blacio knew, could not have believed there was probable

cause to make the arrest. That is, even though Blacio may have been mistaken,

Valsaint alleges no facts, as opposed to his conjecture about Blacio’s true

motives, that Blacio acted unreasonably in effecting the arrest. Accordingly,

Blacio is entitled to be shielded from Valsaint’s unlawful arrest claim, as to the

2018 incident, set forth in count one.

C. The City

In count ten, Valsaint seeks to hold the City liable for his wrongful

detention, arrest, and treatment by the Officers. He argues that the City has

“continuously affirmed or willfully ignored” its officers’ constitutional violations.

In support, he points to what he describes as the City’s “official” quality-of-life

policy and the “pre-textual agreements” the City has with local businesses to

arrest trespassers. (Pl.’s Resp. at 44.) And while he concedes he has not alleged a

pattern of events establishing the City’s deliberate indifference through an

unofficial policy, he argues he has identified a need to train that is so plainly

obvious that he need not set forth such a pattern in this case. The Court

disagrees.

“[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1)

that his constitutional rights were violated; (2) that the municipality had a

custom or policy that constituted deliberate indifference to that constitutional

right; and (3) that the policy or custom caused the violation.” McDowell v. Brown,

392 F.3d 1283, 1289 (11th Cir. 2004). To establish such a policy, a plaintiff must

“identify either (1) an officially promulgated [municipal] policy or (2) an unofficial

custom or practice . . . shown through the repeated acts of a final policymaker for

the [municipality].” Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir.

2003).

Valsaint fails to allege facts from which the Court could infer a municipal

custom or policy that constituted deliberate indifference to the violation of his

constitutional rights. Instead, he relies on purely conclusory and unsupported

generalities, referencing things like the City’s “long history of arresting and/or

rounding up individuals . . . who are not engaging criminal activity” (Compl. ¶

50); officers, including the Defendants, who “target and harass peaceful, law

abiding individuals” (id. ¶ 51); the City’s failure to implement or enforce “polices,

procedures and training that complied with industry standards and the law to

ensure that the civil rights of individuals were not violated by law enforcement

officers” (id. ¶52); the City’s knowledge that its “officers routinely arrested and

targeted minorit[ies] and [the] homeless,” making unlawful stops and arrests (id.

¶¶ 53–54); deficiencies in training regarding “racial profiling, equal protection,

and non-discrimination” (id. ¶ 57); a “custom, pattern, practice, or policy that the

City and MBPD . . . follow[ed] to target minorities and [the] homeless . . . who are

publicly performing harmless, inoffensive life-sustaining conduct” (id. ¶ 58); and

pretextual “‘quality of life’ details” and agreements with businesses which were

used to unlawfully arrest homeless people who were not engaged in any criminal

activity (id. ¶¶ 59–60). To begin with, these allegations, either alone or together,

do not come anywhere near qualifying as “an official promulgated policy.” See

Perez v. Metro. Dade Cnty., No. 06-20341-CIV, 2006 WL 4056997, at *2 (S.D. Fla.

Apr. 28, 2006) (Moreno, J.) (“[T]he simple mention of ‘policy and/or custom’ is not

enough, for a plaintiff must do something more than simply allege that such an

official policy exists.”) (cleaned up).

Nor do they constitute facts showing an unofficial custom or policy. To

proceed on the basis of an unofficial custom or policy, Valsaint must allege facts

demonstrating “repeated acts of a final policymaker for the [municipality].” Grech,

335 F.3d at 1329. The alleged acts must establish “a widespread practice that,

although not authorized by written law or express municipal policy, is so

permanent and well settled as to constitute a custom or usage with the force of

law.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991)

(cleaned up). Valsaint does not dispute that his complaint fails to set forth

repeated acts that would establish a widespread practice. Nor does he disagree

that he has failed to identify a final policymaker: indeed, his complaint does not

make a single reference to any policymaking authority who “openly or tacitly

approved of the alleged actions of the police officers, much less final

policymakers.” Sanchez v. Miami-Dade Cnty., No. 06-21717-CIV, 2007 WL

1746190, at *3 (S.D. Fla. Mar. 28, 2007) (King, J.).

Instead, Valsaint points to caselaw that he says allows him to proceed with

his claim against the City “without proof of a pre-existing pattern of violations.”

Connick v. Thompson, 563 U.S. 51, 64 (2011). This kind of “single-incident

liability” was first conceived of by the United States Supreme Court in Canton v.

Harris where the Court posed the hypothetical example of a city that arms its

police force with guns and sends them out into the public to capture fleeing

felons without training as to the constitutional bounds of using deadly force. 489

U.S. 378, 390 n. 10 (1989). Through that example, the Court has come to

recognize that, “in a narrow range of circumstances,” a city’s failure to train

“could be so patently obvious that a city could be liable under § 1983 without

proof of a pre-existing pattern of violations.” Connick, 563 U.S. at 63–4. The Court

is not convinced: Valsaint fails to explain how the hypothetical failure to train

officers regarding the constitutional bounds of the use-of-deadly force is

analogous to the facts here. Instead, Valsaint simply assumes that, because the

City’s officers purportedly targeted and detained Valsaint just based on his

homelessness status, race, and nation of origin, they must not have been

properly trained. (Compl. ¶¶ 187–88.) Valsaint then extrapolates, without any

connecting facts, that because the Defendant Officers were not properly trained,

the City has failed to adequately train any of its officers. (Id. ¶ 190–91.) Notably,

Valsaint focuses on the adequacy of the City’s training of its officers, as opposed

to a lack of training at all. This readily distinguishes Valsaint’s case from the

circumstances envisioned in Canton. See Rebalko v. Coral Springs, 552 F. Supp.

3d 1285, 1326 (S.D. Fla. Nov. 3, 2020) (Altman, J.) (recognizing “the ‘so obvious’

path is generally reserved for those cases in which the government actor was

provided no training whatsoever”) (cleaned up) (emphasis in original). Additionally,

Valsaint fails to set forth any facts explaining exactly “how or why the City’s

training was insufficient—an omission that renders [his] failure-to-train claim

conclusory and, in material respects, implausible.” Id.

In sum, Valsaint has failed to allege sufficient facts to survive dismissal on

his Monell claim.

4. Conclusion

As set forth above, the Court grants, in part, and defers ruling on, in

part, the Officers’ motion to dismiss (ECF Nos. 42) and grants, in its entirety,

the City’s motion to dismiss (ECF No. 41). The dismissed claims, against the City

(count ten) and against the Officers as to the 2018 incident (part of counts one,

two, and three, plus counts seven, eight, and nine, in their entireties), are

dismissed with prejudice, based on Valsaint’s failure to state a claim.

Additionally, the Court denies Valsaint’s cursory request for leave to amend his

complaint, inserted as an afterthought, in the last sentence of his eighteen-page

response to the Defendants’ motions (Pl.’s Resp. at 18): the request is

procedurally defective and lacking in substantive support. See Newton v. Duke

Energy Florida, LLC, 895 F.3d 1270, 1277 (11th Cir. 2018) (“[W]here a request for

leave to file an amended complaint simply is imbedded within an opposition

memorandum, the issue has not been raised properly.”); Avena v. Imperial Salon

& Spa, Inc., 740 F. App’x 679, 683 (11th Cir. 2018) (“[W]le’ve rejected the idea that

a party can await a ruling on a motion to dismiss before filing a motion for leave

to amend.”) (noting also that “a motion for leave to amend should either set forth

the substance of the proposed amendment or attach a copy of the proposed

amendment”) (cleaned up). Further, Valsaint has already amended his complaint

once, with the assistance of counsel, and, in any event, the deadline to amend the

pleadings has long since passed.

As to the statute of limitations issues, the Court orders Valsaint to show

cause, on or before November 14, 2022, why the remaining claims, associated

with the 2017 event, should not be dismissed as time barred. To the extent

Valsaint seeks, in good faith, to pursue those claims, he must then also show

cause, by the same date, why his claims against the John Doe officer should not

also be dismissed: Valsaint has failed to identify or even describe this fictitious

defendant nor, obviously, has this defendant been served, with the time to do so

having long since passed.

In the meantime, the Court stays the remaining deadlines in this case,

directing the Clerk to administratively close this case. Accordingly, the Court

denies as moot (ECF No. 52) the Officers’ unopposed motion for an extension of

various pretrial deadlines and to reset the trial date. If any of the remaining

claims are determined to survive dismissal, the Court will reopen this case and

enter an amended scheduling order.

Done and ordered, in chambers at Miami, Florida, on November 2, 2022.

{= N. Scola, Jr.

United States District Judge