# Watkins v. Officer David Session

> District Court, S.D. Florida · February 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10121605

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** February 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10121605

## How later opinions describe it (automated extraction)

- noting that the Eleventh Circuit “accord[s] district courts broad discretion over the management of pre-trial activities, including discovery and scheduling”
- noting the “broad discretion which is allowed a trial court to manage its own docket”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-60810-CIV-ALTMAN/Strauss

ERIC WATKINS,

Plaintiff,

v.

OFFICER DAVLIN SESSION, et al.,

Defendants.
________________________________/

ORDER GRANTING MOTION TO APPEAL

Our pro se Plaintiff, Eric Watkins, has filed a Motion for Permission to Appeal in Forma Pauperis
(the “Motion”) [ECF No. 220], challenging certain aspects of our Order Granting the Defendants’
Motion to Dismiss (the “Second MTD Order”) [ECF No. 216]. Because we find that one narrow
portion of his appeal may be taken in “good faith,” we now GRANT his Motion.
THE FACTS
In 2015, Watkins was arrested by two police officers who believed that he had urinated in a
public park. Watkins, claiming he did no such thing—but admitting that he had dumped out a bottle
of his own urine in that park—sued the arresting officers, their police chief, and the city they work
for, alleging a host of constitutional violations. After some protracted litigation—during which
Watkins filed three amended complaints1—we granted the Defendants’ Second Motion to Dismiss (the
“Second MTD”) [ECF No. 192] and dismissed Watkins’s Third Amended Complaint (the “TAC”)
with prejudice, see the Second MTD Order.2

1 See First Amended Complaint [ECF No. 47]; Second Amended Complaint [ECF No. 91]; Third
Amended Complaint [ECF No. 188].
2 We’d previously dismissed certain claims from Watkins’s Second Amended Complaint without
prejudice and with leave to amend. See Order Granting First Motion to Dismiss (the “First MTD
Watkins then filed both a Notice of Appeal [ECF No. 217] and this Motion, in which he
advances three arguments. First, he claims we erred in granting the MTD “on [our] subjective belief
finding that a one time dumping of urine from a bottle in a public park in a secluded and unpatroned
area could cause a reasonable officer in the defendants’ shoes to believe that plaintiff violated F.S.
877.03—disorderly conduct—and F.S. 823.01—nuisances[.]” Motion at 1 (errors in original).
According to Watkins, “none of these statutes nor any case law ever previously declared such conduct,

supra, a violation of these statutes and [ ] Plaintiff clearly demonstrated that such conduct, supra, does
not violate these statutes,” so “a reasonable officer in the defendants’ shoes could not have believed
that such conduct violated these Florida statutes.” Ibid. He concludes, then, that “no arguable probable
cause existed to arrest plaintiff.” Ibid. Second, he says that we erred when we dismissed with prejudice
Count V against the City and the Chief “on the finding that Plaintiff violated a court order when he
amended his complaint. It is Plaintiff’s claim that he did not violate any court order but complied with
the order when he amended his complaint where the court allowed Plaintiff to amend the order [sic].”
Motion at 4. Third, Watkins questions “[w]hether the court should have allowed Plaintiff to amend his
complaint where Plaintiff had at a very early stage had requested the amendment deadline be extended
and where the complaint was ripe for edification and amendment.” Ibid. (errors in original). The latter
two arguments are frivolous for reasons we’re about to explain. Watkins’s first contention, though,
isn’t (in our view) so patently frivolous as to be “not taken in good faith.” 28 U.S.C. § 1915(a)(3). We

thus GRANT the Motion and allow Watkins to proceed with his appeal in forma pauperis.

Order”) [ECF No. 186] at 19–23. We’d also dismissed with prejudice his claims against the Lauderhill
Police Department and the police chief in her official capacity. See id. at 23–24. In dismissing these two
defendants with prejudice, we explained that “Sheriff’s departments and police departments are not
usually considered legal entities subject to suit,” id. at 23 (quoting Dean v. Barber, 951 F.2d 1210, 1214
(11th Cir. 1992)), and that the “official-capacity claim against the Chief [was] duplicative of [Watkins’s]
claim against the City,” id. at 24.
THE LAW
Motions to proceed in forma pauperis (“IFP”) on appeal are governed by the strictures of 28
U.S.C. § 1915 and Rule 24 of the Federal Rules of Appellate Procedure. As relevant here, a proper
motion to proceed IFP on appeal requires (1) an affidavit that (2) shows in detail the party’s inability
to pay or to give security for fees and costs, (3) claims an entitlement to redress, and (4) lays out the
issues the party intends to present on appeal. See FED. R. APP. P. 24(a)(1).

But, as the Eleventh Circuit has explained, “the pauper’s affidavit should not be a broad
highway into the federal courts.” Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (cleaned up).
“Indigence does not create a constitutional right to the expenditure of public funds and the valuable
time of the courts in order to prosecute an action which is totally without merit.” Ibid. And “these
considerations counsel that the district court must have wide discretion in denying a motion to proceed
as a pauper when the complaint is frivolous.” Ibid.; see also 28 U.S.C. § 1915(e)(2) (“Notwithstanding
any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any
time if the court determines that— . . . (B) the action or appeal—(i) is frivolous or malicious[.]”).
“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not
taken in good faith.” 28 U.S.C. § 1915(a)(3); accord FED. R. APP. P. 24(a)(3)(A). “A party demonstrates
good faith by seeking appellate review of any issue that is not frivolous when examined under an
objective standard.” Ghee v. Retailers Nat’l Bank, 271 F. App’x 858, 859 (11th Cir. 2008) (citing Coppedge

v. United States, 369 U.S. 438, 445 (1962) (emphasis added)). “An issue is frivolous when it appears that
the legal theories are indisputably meritless. In other words, an IFP action is frivolous, and thus not
brought in good faith, if it is without arguable merit either in law or fact.” Ibid. (cleaned up).
“[A]rguable means capable of being convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir.
1991) (cleaned up).
ANALYSIS
Watkins has submitted an affidavit that (1) details his inability to pay the relevant docket fees,
(2) affirms his belief that he’s entitled to redress, and (3) presents the issues he intends to raise on
appeal. See generally Motion. While the second and third issues Watkins intends to present on appeal
are (in our view) frivolous, the first may not be. We’ll address them in reverse order.
First, we find Watkins’s suggestion that we “should have allowed [him] to amend his complaint

where [he] had at a very early stage had requested the amendment deadline be extended and where
the complaint was ripe for edification and amendment,” Motion at 4 (errors in original), utterly
baseless. As we’ve said, we gave Watkins permission to amend his complaint three times. See First
Amended Complaint [ECF No. 47]; Second Amended Complaint [ECF No. 91]; Third Amended
Complaint [ECF No. 188]. While the Federal Rules suggest that we “freely give leave when justice so
requires,” FED. R. CIV. P. 15(a)(2), no rule requires us to allow a fourth amendment—three-and-a-half
years into the litigation—that’s likely to be futile. “Leave to amend a complaint is futile when the
complaint as amended would still be properly dismissed or be immediately subject to summary
judgment for the defendant.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). And any
amendment would have been futile here because (as we explained in our prior order) Watkins’s arresting
officers were entitled to qualified immunity, see Second MTD Order at 8–17—which dooms his Monell
claim under any theory. That’s because a § 1983 plaintiff who pursues municipal liability under Monell

“must allege facts showing: ‘(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.’” Guerra v. Palm Beach Cnty. Sheriff’s Off., 657 F. App’x 886, 893
(11th Cir. 2016) (emphasis added) (quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).
Without a constitutional violation, then, Watkins could never successfully plead a Monell claim. And
Watkins cannot “convincingly argue” otherwise. Sun, 939 F.2d at 925.
Second, Watkins’s claim that he “did not violate any court order but complied with the order
when he amended his complaint,” Motion at 4, is frivolous. In our First MTD Order, we warned
Watkins that, “since he has ‘concluded’ his discovery—and given the assurance he gave the Court in
his Motion for Leave to Amend—he will not be permitted to add new counts or defendants. He may
simply take his best crack at properly alleging the counts he has already advanced against the
Defendants who now remain.” First MTD Order at 25. Despite this clear admonition, Watkins raised

an entirely new claim in his TAC: his final-policymaker Monell claim. Compare TAC ¶¶ 64–70 (asserting
a final-policymaker Monell claim), with SAC ¶¶ 16, 61–67 (setting forth a Monell claim under a failure-
to-train theory). In the Second MTD Order, we explained that, for two reasons, the final-policymaker
claim was a “new claim” Watkins wasn’t permitted to plead. One (we said), the elements of Watkins’s
new final-policymaker claim are materially different from the elements of the failure-to-train claim
he’d advanced before. As we wrote:
[H]is new final-policymaker claim requires proof of different elements—and is subject
to different defenses—than the old failure-to-train claim he now appears to have
abandoned. Compare Connick v. Thompson, 563 U.S. 51, 61 (2011) (“To satisfy the statute
[§ 1983], a municipality’s failure to train its employees in a relevant respect must
amount to deliberate indifference to the rights of persons with whom the untrained
employees come into contact.” (cleaned up)), and ibid. (“Deliberate indifference is a
stringent standard of fault, requiring proof that a municipal actor disregarded a known
or obvious consequence of his action.” (cleaned up)), with Grech v. Clayton Cnty., Ga.,
335 F.3d 1326, 1330 (11th Cir. 2003) (noting that, to state a final-policymaker claim,
“a plaintiff (1) must show that the local government entity, here the county, has
authority and responsibility over the governmental function in issue and (2) must
identify those officials who speak with final policymaking authority for that local
governmental entity concerning the act alleged to have caused the particular
constitutional violation in issue”).

Second MTD Order at 19. And Watkins does absolutely nothing—either in the MTD briefing or in
this Motion—to rebut our conclusion that failure-to-train and final-policymaker claims are, in fact,
two different claims. He’s thus forfeited any such argument. See United States v. Campbell, 26 F.4th 860,
873 (11th Cir. 2022) (“[F]ailure to raise an issue in an initial brief . . . should be treated as a forfeiture
of the issue, and therefore the issue may be raised by the court sua sponte [only] in extraordinary
circumstances.”); Sappupo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have
long held that an appellant abandons a claim when he either makes only passing references to it or
raises it in a perfunctory manner without supporting arguments and authority.”); Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite
authorities in support of an issue waives it.”); In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009)
(“Arguments not properly presented . . . are deemed waived.”).

This difference between the two claims brings us to the second problem with Watkins’s second
argument. As we explained in our Second MTD Order:
This new claim would thus require the parties to take a great deal of additional
discovery—something Watkins already assured us he wouldn’t need, see Motion for
Leave to Amend [ECF No. 86] at 2 (Watkins informing us that he’d ‘concluded’ his
‘discovery investigation’), and which we wouldn’t have allowed in any case, principally
because discovery closed more than two years ago, see Amended Order Setting Trial [ECF
No. 97] at 1 (closing discovery on August 10, 2020).

Second MTD Order at 20. Watkins hasn’t explained why he should’ve been permitted—more than
two years after the close of discovery and after four complaints and two motions to dismiss—to turn
back the clock and restart the whole discovery process. Nor could he have. “[D]istrict courts,” the
Eleventh Circuit has repeatedly said, “enjoy broad discretion in deciding how best to manage the cases
before them.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997); see also Johnson v.
Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001) (noting that the Eleventh Circuit
“accord[s] district courts broad discretion over the management of pre-trial activities, including
discovery and scheduling”); United States v. McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996) (noting the
“broad discretion which is allowed a trial court to manage its own docket”). In sum, Watkins’s claim
that he “did not violate any court order but complied with the order when he amended his complaint,”
Motion at 4, is “indisputably meritless,” Ghee, 271 F. App’x at 859—and thus cannot justify his IFP
appeal.
Third—and this is the one we cannot reject as frivolous—Watkins challenges our view that the
officers had arguable probable cause to arrest him. An officer has arguable probable cause when a
“reasonable officer in the same circumstances and possessing the same knowledge as the officer in
question could have reasonably believed that probable cause existed in the light of well-established
law.” Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997). “The existence of arguable probable
cause depends on the elements of the alleged crime and the operative fact pattern.” Longino v. Henry

Cnty., Ga., 791 F. App’x 828, 832 (11th Cir. 2019) (cleaned up). Whether an officer had “arguable
probable cause” depends on the totality of the circumstances. Cozzi v. City of Birmingham, 892 F.3d
1288, 1294 (11th Cir. 2018) (citing Dist. of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)). And, notably
for our purposes, “[t]he validity of an arrest does not turn on the offense announced by the officer at
the time of the arrest.” Second MTD Order at 10 (first quoting Bailey v. Bd. of Cnty. Comm’rs, 956 F.2d
1112, 1119 n.4 (11th Cir. 1992); and then citing United States v. Saunders, 476 F.2d 5, 7–8 (5th Cir. 1973)
(“Since the BNDD agents had probable cause to arrest appellant for marijuana possession, the arrest
and the incident search were valid, and the agents’ reliance on the harboring or concealing charge did
not affect this result.”)).
Our officers arrested Watkins on “a charge of exposure of sexual organs,” TAC ¶ 6, in
violation of Fla. Stat. § 800.03, TAC ¶ 55. As we explained in our First MTD Order, however, the
officers failed to articulate arguable probable cause to support that arrest because Ҥ 800.03 requires

some ‘lascivious’ conduct—which, in turn, means that a defendant doesn’t violate § 800.03 unless he
exposes himself with the intent to do something sexual,” First MTD Order at 12–13, and the law
counsels that “there’s nothing about urinating in public that’s innately sexual,” id. at 14. In the Second
MTD, by contrast, the Defendants pointed to two other statutes that, they said, justified the arrest in
this case. See Second MTD at 13 (“And even assuming Plaintiff’s story that he did not physically
urinate in public, but simply poured a bottle of expressed urine onto the ground . . . there was still at
least arguable probable cause for other crimes, including breach of the peace, pursuant to § 877.03, Fla.
Stat., and/or creating a public nuisance under § 823.01, Fla. Stat.”). In our Second MTD Order, we
agreed with the Defendants and held that “a reasonable officer in Session’s or Vogt’s shoes could’ve
believed that dumping one’s urine out in a public park is the sort of ‘act[ ] as [is] of a nature to . . .
outrage the sense of public decency[.]’” Second MTD Order at 15 (quoting FLA. STAT. § 877.03). We
also found “it reasonable for an officer to conclude that the particular nuisance Watkins admittedly

engaged in would—as the statute proscribes—‘tend to annoy the community.’” Id. at 15–16 (referring
to FLA. STAT. § 823.01).
Watkins now argues that “none of these statutes [§ 877.03 or § 823.01] nor any case law ever
previously declared such conduct [dumping out a bottle of urine in a public park] a violation of these
statutes and [ ] Plaintiff clearly demonstrated that such conduct, supra, does not violate these statutes,
supra. Hence a reasonable officer in the defendants’ shoes could not have believed that such conduct
violated these Florida statutes, supra. Hence no arguable probable cause existed to arrest plaintiff.”
Motion at 1. In Watkins’s view, then, we erred in dismissing his claims based “on [our] subjective
belief finding that a one time dumping of urine from a bottle in a public park in a secluded and
unpatroned area could cause a reasonable officer in the defendants’ shoes to believe that plaintiff
violated F.S. 877.03—disorderly conduct—and F.S. 823.01—nuisances[.]” Ibid.
Of course, Watkins has the standard exactly backwards. In the context of qualified immunity,

the question isn’t whether, at the time of the arrest, the law was clear that the officers could arrest the
plaintiff; the question, rather, is whether the plaintiff can show that the law clearly established they
couldn’t. See, e.g., Eloy v. Guillot, 289 F. App’x 339, 346 (11th Cir. 2008) (“[T]he defendant must have
fair notice of his conduct’s unconstitutionality which derives from one of the following sources: (1)
the obvious clarity of constitutional or statutory language; (2) broad holdings or statements of principle
in case law that are not tied to particularized facts; or (3) fact-specific judicial precedents that are not
fairly distinguishable.”); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) □□□□
interpreting the evidence in the light most favorable to the plaintiff, the court concludes that the
defendant was engaged in a discretionary function, then the burden shifts to the plaintiff to show that
the defendant is not entitled to qualified immunity.”). Still, we don’t think Watkins’s position—?7z.,
that a reasonable officer wouldnt have believed Watkins’s conduct violated either statute—is
“indisputably meritless.” Ghee, 271 F. App’x at 859. So, we'll allow him to proceed 7 forma pauperis on
appeal.
* * *
After careful review, therefore, we GRANT the Plaintiff's Motion for Permission to Appeal
in Forma Pauperis (ECP No. 220}.
DONE AND ORDERED in the Southern top 28, 2023.

ROYK.ALTMAN ———™
UNITED STATES DISTRICT JUDGE
cc: counsel of record
Eric Watkins, pro se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121605. Public record. Not legal advice.