Henderson v. Milillo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSHUA DOUGLAS HENDERSON,

Plaintiff,

v. Case No. 8:23-cv-00763-TPB-CPT

NICHOLAS MILILLO, et. al,

Defendants.

/

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

This matter is before the Court on “Defendants’ Motion to Dismiss and

Memorandum of Law,” filed on October 6, 2023, by Defendants Nicholas Milillo,

Christopher Fowler, and Michael Beaver. (Doc. 30). Plaintiff Joshua Douglas

Henderson filed a response in opposition. (Doc. 33). After reviewing the motion,

response, court file, and the record, the Court finds as follows:

Background1

Plaintiff Joshua Douglas Henderson was charged with one count of first-degree

murder after he was accused of shooting his ex-girlfriend Shyanne Turner in the head

on August 13, 2021.2 See State of Florida v. Joshua Douglas Henderson, No. 21-0620-

1 The Court accepts as true the facts alleged in Henderson’s complaint for purposes of ruling

on the pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen

ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint.”). The Court is not required to accept as true any legal

conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

2 Henderson claims that he was charged and acquitted of the crime of attempted murder of a

law enforcement officer after he was accused of attempting to drown a police officer in a pond

while the officer tried to apprehend him. However, it appears that he did not go to trial on

that charge and was not “acquitted.” Rather, the State decided to proceed with indictment

only on the first-degree murder charge – the attempted murder of a law enforcement charge

CF (Fla. 6th Jud. Cir.). On June 5, 2024, following a jury trial, Henderson was found

guilty of murder in the first degree, and he was sentenced to a minimum mandatory of

life in prison, without the possibility of parole. Henderson is currently appealing his

judgment and sentence.

Henderson filed a civil rights complaint under 42 U.S.C. § 1983. In his

complaint, he asserts claims for false arrest and excessive force in violation of the

Fourth and Fourteenth Amendments and Article One, Sections 2, 9, and 12 of the

Florida Constitution.3 Henderson alleges that, on August 31, 2021, at approximately

7:04 p.m., he was minding his own business behind 1763 Carlyle Street in Clearwater,

Florida. According to Henderson, he was simply “looking over the pond” when “officers

came screaming with guns drawn.” According to Henderson, he fell into the pond as

he reacted to a dog charging at him. The officers jumped into the pond “and started

punching [him] and twisting [his] wrist and arms as [he] was trying to tread water

because [he] couldn’t feel the bottom.” Henderson claims that he wasn’t fighting or

resisting, and he “heard [someone] say, ‘I am going to kill your black ass’” as his “face

was getting pushed under water.”

Henderson “somehow ended up out of the water” and “they ripped [his] black

shoes off and searched [his] pants.” Henderson states that “everything happened so

fast.” “[He] was put in a police car – cuffs super tight.” He “swallowed so much water

remained under investigation.

3 Henderson also filed a document “seeking relief for civil rights violations,” which was

docketed as a supplement to his complaint. (Doc. 17). However, the alleged civil rights

violations are related to the conditions of his confinement, do not name any defendants, and

appear unrelated to the claims in this case. The Court notes that Henderson already filed a

case seeking relief for civil rights violations related to the conditions of his confinement. See

Henderson v. Gualtieri, 8:23-cv-1907-MSS-CPT (M.D. Fla.).

in his mouth and nose [he] believe[s] he started seeing things.” Defendants brought

him to the police station where they read him his rights “after a good two hours of

sittin[g] in the room.” They told him that they were “charging him with another

crime.” They took him to the county jail where he was charged with two crimes, the

first was “dismissed due to lack of probable cause,” but Henderson remained in the

county jail on the other crime.

In explaining how Defendants acted under color of law, Henderson claims that

Milillo “repeatedly” punched him in the face during the arrest. Fowler “twisted and

broke his hand while he was not resisting” and “placed cuffs on [him] so tight that it

pinched a nerve in [his] writing hand.” He claims that “all three officers . . .

committed perjury [in] the arrest affidavit” and Sgt. Beaver “committed perjury by

writing a false report and then changing his story in court . . . .”

Henderson claims that he suffered a broken hand, pinched nerve in his wrist,

parasites growing in his nose from the pond water, mental anguish, and post

traumatic stress disorder. He requests compensatory damages, punitive damages, and

court costs.4

Legal Standard

Defendants move under Federal Rules of Civil Procedure 12(b)(6) to dismiss the

complaint for failure to state a claim. Federal Rule of Civil Procedure 8(a) requires

4 Additionally, Henderson requests damages for causes of action not sufficiently alleged in his

complaint. For instance, he requests damages for slander and for damaging his future

business relationships. He further requests relief for illegal arrest, perjury, assault, battery,

malicious prosecution, malicious interference, false imprisonment, or any other intentional

tort. The requests for damages related to those claims are denied and any intended causes of

action related to the damages requested are dismissed without prejudice for failure to state a

claim. See (Doc. 4 at 5).

that a complaint contain “a short and plain statement of the claim showing the

[plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand

“detailed factual allegations,” it does require “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). In order to survive a motion to dismiss, factual

allegations must be sufficient “to state a claim to relief that is plausible on its

face.” Id. at 570.

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D.

Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court

“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in

the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal

sufficiency, and is not a procedure for resolving factual questions or addressing the

merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-

cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).

As Henderson in this case proceeds pro se, the Court more liberally construes

the pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018). However, a pro

se plaintiff must still conform to procedural rules, and the Court does not have “license

to act as de facto counsel” on behalf of a pro se plaintiff. United States v. Padgett, 917

F.3d 1312, 1317 (11th Cir. 2019).

Analysis

Shotgun Pleading

Defendants argue that the complaint should be dismissed for procedural defects

because the complaint constitutes a shotgun pleading. Specifically, Defendants argue

that Henderson’s complaint is a shotgun pleading because the complaint does not

separate the false arrest and excessive force claims in separate counts and does not

plead separate counts for the alleged violations of the Fourth and Fourteenth

Amendments.

Complaints that violate the pleading requirements of Federal Rules of Civil

Procedure 8(a)(2) or 10(b) “are often disparagingly referred to as ‘shotgun pleadings.’ ”

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015).

Shotgun pleadings fail to articulate claims with sufficient clarity to allow Defendants

to frame a responsive pleading. Id. at 1323 (explaining that a shotgun pleading is any

pleading which “fail[s] to one degree or another . . . to give the defendants adequate

notice of the claims against them and the grounds upon which each claim rests”).

The complaint constitutes a shotgun pleading due to the improper mixing of

claims. The motion is therefore granted as to this ground, and the complaint is

dismissed without prejudice as a shotgun pleading.

Fourteenth Amendment Claims

Defendants argue that Henderson cannot state a cause of action under the

Fourteenth Amendment. Pretrial detainees enjoy the protection afforded by the Due

Process Clause of the Fourteenth Amendment, which ensures that no state shall

“deprive any person of life, liberty or property, without due process of law.” U.S.

Const. amend. XIV.

To the extent that Henderson alleges his Fourteenth Amendment rights were

violated during his arrest, the Court finds that he cannot state a claim for relief

because he was not a pretrial detainee at the time the arrest occurred. See, e.g., C.P.

by and through Perez v. Collier Cty., 145 F. Supp. 3d 1085, 1091-92 (M.D. Fla. 2015)

(dismissing Fourteenth Amendment claim where allegations of excessive force solely

related to excessive force used during arrest of the plaintiff). While Henderson alleges

a violation of the Fourteenth Amendment in addition to the Fourth Amendment for

false arrest and excessive force, he has not alleged any facts that would provide him

any protection beyond that afforded to him by the Fourth Amendment. See Albright v.

Oliver, 510 U.S. 266, 274, (1994) (stating that the Fourth Amendment was drafted to

address the matter of pretrial deprivations of liberty). Therefore, Henderson’s

Fourteenth Amendment claims based on his arrest are dismissed, without leave to

amend.

Official Capacity Claims

Henderson’s complaint alleges violations of his civil rights against Defendants

in both their individual capacities and their official capacities. Defendants argue that

Henderson’s official capacity claims must be dismissed for failure to state a claim.

A claim against a defendant in his official capacity is a suit against the entity of

which the named defendant is an agent. See Kentucky v. Graham, 473 U.S. 159, 165-

66 (1985). To attribute liability to a defendant in their official capacity under § 1983,

Henderson must allege that “the moving force of the constitutional violation” was an

official policy or custom. Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1211

(1993) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)). Henderson alleges

no such policy or custom in the complaint. Consequently, the official capacity claims

are dismissed without prejudice, with leave to amend. Should Henderson wish to

pursue official capacity claims against each defendant, those claims must be set out in

separate counts from any individual capacity claims.

Failure to State a Claim

False Arrest

Defendants argue that Henderson cannot state a viable false arrest claim

because the existence of probable cause for an arrest constitutes an absolute bar to

both state and § 1983 claims alleging false arrest. Specifically, Defendants contend

that investigation of the incident revealed probable cause for Henderson’s arrest for

murder and attempted murder, and that the state court found probable cause to

support the charges against Henderson.5

“Probable cause renders a seizure pursuant to legal process reasonable under

the Fourth Amendment.” Washington v. Howard, 25 F.4th 891, 898 (11th Cir. 2022)

(citing Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010)). “Consequently,

5 Defendants cite to the several documents to support their motion, including an arrest

affidavit. “[A] court may consider an affidavit for an arrest warrant, the resulting arrest

warrant, and other matters of public record—even if they are not attached to a complaint—

without converting a Rule 12(b)(6) motion to one for summary judgment.” Mathis v. Eslinger,

No. 3:19-CV-274-J-39JRK, 2020 WL 12432735, at *5 (M.D. Fla. Aug. 5, 2020), report and

recommendation adopted, No. 3:19-CV-274-J-39JRK, 2020 WL 12432732 (M.D. Fla. Sept. 15,

2020), aff’d, No. 20-13761, 2022 WL 16849124 (11th Cir. Nov. 10, 2022) (citation omitted).

Thus, the Court may take judicial notice of these public records without converting the motion

to dismiss into a motion for summary judgment. However, because Henderson disputes the

veracity of the arrest affidavits in his complaint, the Court relies only on the statements in the

arrest affidavit that are not specifically disputed by the allegations in Henderson’s complaint.

See Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir. 2014) (citations omitted).

‘the presence of probable cause defeats’ a claim that an individual was seized pursuant

to legal process in violation of the Fourth Amendment.” Id. (quoting Black v.

Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016)). “[P]robable cause constitutes an

absolute bar to both state and § 1983 claims alleging false arrest.” Lorenzo v. City of

Tampa, 259 F. App’x 239, 241 (11th Cir. 2007) (quoting Rankin v. Evans, 133 F.3d

1425, 1435 (11th Cir. 1998)).

“The correct legal standard to evaluate whether an officer had probable cause to

seize a suspect is to ‘ask whether a reasonable officer could conclude . . . that there was

a substantial chance of criminal activity.’” Washington, 25 F.4th at 902 (citing District

of Columbia v. Wesby, 583 U.S. 48, 61 (2018)). “A substantial chance is all that is

required, not an actual showing of such activity.” Davis v. City of Apopka, 78 F.4th

1326, 1334-35 (11th Cir. 2023), cert. denied sub nom. Davis v. City of Apopka, Fla., 144

S. Ct. 2528 (2024).

In this case, Henderson did not include a copy of the arrest affidavits as part of

the complaint. However, in describing how the Defendants acted under color of law in

the complaint, Henderson stated “all three officers . . . committed perjury [in] the

arrest affidavit” and Sgt. Beaver “committed perjury by writing a false report and then

changing his story in court . . . .” These statements are too general and conclusory for

the Court to know which specific statements in the affidavit Henderson alleges are

false. See Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 515 (11th Cir. 2019).

Therefore, the Court relies only on the statements in the arrest affidavit that are not

specifically disputed by the allegations in Henderson’s complaint. These include the

facts occurring before and after Henderson’s arrest.

The affidavit in support of the charge of attempted murder of a law enforcement

officer states that:

AT APPROXIMATELY 7:00 PM, CLEARWATER POLICE OFFICERS

FOWLER AND MILILLO ALONG WITH THE VICTIM (DEPUTY

JULIET) WHO IS A PSCO K-9 DEPUTY WERE ALERTED BY

NEARBY RESIDENT THAT THE DEF WAS BEHIND 1763

CARLISLE ST. UPON THE VICTIM AND CLEARWATER OFFICERS

APPROACHING THE LAKE, THE VICTIM OBSERVED THE DEF

INSIDE THE WATER AND ENTERED THE WATER TO

APPREHEND THE DEF FOR FIRST DEGREE MURDER OF

SHYANNE TURNER . . . .6

The affidavit in support of the charge of murder in the first degree states that:

THE VICTIM WAS DRIVING 2020 NISSAN SENTRA, 4-DOOR,

BEARING FL TAG XXXXX WHILE TRAVELING EAST ON OTTEN

ST TOWARDS WESTON DR WHILE THE DEF WAS SEATED IN

THE FRONT PASSENGER SEAT. THE DEF THEN USED CAL .380

SEMI-AUTO RUGER HANDGUN AND SHOT THE VICTIM IN THE

HEAD ONE TIME. THE DEF THEN POSITIONED THE VICTIM ON

THE FRONT PASSENGER SIDE OF THE VEHICLE WHILE THE

DEF TRANSITIONED INTO THE DRIVER SEAT AT WHICH TIME

THE DEF DROVE TO 1713 TOWNSEND WHERE HE ABANDONED

THE NISSAN SENTRA WITH THE DECEASED VICTIM STILL

INSIDE. THE DEF THEN FLED FROM THE VEHICLE ON FOOT

AND WAS LOCATED AFTER FOOT PURSUIT WITH LAW

ENFORCEMENT. THE MURDER OF THE VICTIM WAS

WITNESSED BY PEDESTRIAN WHO WAS NEXT TO THE VEHICLE.

POST MIRANDA, THE DEF STATED HE AND THE VICTIM HAVE

BEEN IN DATING RELATIONSHIP FOR APPROXIMATELY SEVEN

MONTHS. THE DEF ADMITTED THAT THE VICTIM WAS DRIVING

THE NISSAN SENTRA THAT WAS RENTED IN HIS NAME AND HE

WAS IN THE FRONT PASSENGER SEAT. THE DEF STATED HE

USED CAL .380 HANDGUN TO SHOOT THE VICTIM ONE TIME IN

THE HEAD.

6 The affidavit in support of the charge of attempted murder of a law enforcement officer also

states that “ONCE IN THE WATER, THE DEF GRABBED THE COLLAR PORTION OF THE

VICTIM[’]S [PCSO K-9 DEPUTY JULIET’S] OUTER BALLISTIC VEST AND ATTEMPTED

TO REPEATEDLY SUBMERGE HER UNDER THE WATER. CLEARWATER OFFICER

MILILLO WAS ABLE TO ASSIST THE VICTIM IN APPREHENDING THE DEF AND EXIT

THE WATER.” As noted above, the Court cannot consider these facts at this stage of the

proceedings since Henderson’s allegations are in dispute with this statement. Thus, the Court

does not rely on these statements from the arrest affidavit.

Based on the facts alleged by Henderson, a reasonable officer could conclude

that Henderson was engaged in criminal activity. Officers were searching for

Henderson because he was a suspect in a murder that happened earlier in the day. A

resident alerted the officers that Henderson was behind 1763 Carlisle Street. When

officers approached, Henderson “fell into the pond as [he] reacted to the dog charging

[him].” A reasonable officer could conclude that “there was a substantial chance of

criminal activity’” given the earlier murder, and that Henderson was attempting to

evade arrest when Henderson entered the water. See Washington, 25 F.4th at 902

(citation omitted). Therefore, given the nature of the crime committed and based on

the facts alleged in Henderson’s complaint, Defendants had probable cause to detain

and arrest him.7

Henderson states that probable cause did not exist because the first charge

(attempted murder of a law enforcement officer) was dismissed.8 However, the

existence of probable cause is not negated even if the charges are ultimately

dismissed. See Harris v. Hixon, 102 F.4th 1120, 1126 (11th Cir. 2024) (citing Davis, 78

F.4th at 1326 (“After all, probable cause can survive an acquittal.”); Baker v.

McCollan, 443 U.S. 137, 145 (1979) (“The Constitution does not guarantee that only

the guilty will be arrested.”); Gates v. Khokhar, 884 F.3d 1290, 1298 (11th Cir. 2018)

7 Insofar as Henderson is alleging that he was falsely arrested because the arrest was

warrantless, “an arrest conducted in a public place must be supported by probable cause, but

it does not require a warrant.” McClish v. Nugent, 483 F.3d 1231, 1238 (11th Cir. 2007).

8 The indictment notes that “[C]ount 1 Attempted Murder on LEO has been renumbered to

Count 2 and is still under investigation and is being left open at this time by the State

Attorney’s Office.”

(same)). “Probable cause is not a high bar.” Id. at 1126 (quoting Wesby, 583 U.S. at

57).

Assuming that Henderson’s allegations are true, the Court finds that the

officers had probable cause to arrest Henderson. As such, Henderson has failed to

establish that the Defendants violated his Fourth Amendment rights as a matter of

law, and Defendants’ motion to dismiss is granted as to this ground. Amendment

would be futile under the facts as alleged by Henderson. Thus, Henderson’s false

arrest claims are dismissed with prejudice, without leave to amend.

Excessive Force

Defendants argue that Henderson cannot state an excessive force claim because

the officers did not use excessive force in carrying out the arrest where the allegations

of the complaint demonstrate that Henderson was actually resisting. Further,

Defendants argue that “all of the hallmarks required for the reasonable use of force

were present” based on the factors used in evaluating an excessive force claim.

The Fourth Amendment encompasses “the right to be free from the use of

excessive force in the course of an arrest.” Johnson v. City of Miami Beach, 18 F.4th

1267, 1272 (11th Cir. 2021) (citation omitted). “[T]he Supreme Court has ‘recognized

that the right to make an arrest or investigatory stop necessarily carries with it the

right to use some degree of physical coercion or threat thereof to effect it.’” Crenshaw

v. Lister, 556 F.3d 1283, 1290 (11th Cir. 2009) (citing Graham v. Connor, 490 U.S. 386,

396 (1989)). “Not every push or shove violates the Fourth Amendment. Johnson, 18

F.4th at 1272. “The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments – in circumstances

that are tense, uncertain, and rapidly evolving – about the amount of force that is

necessary in a particular situation.” Connor, 490 U.S. at 396-97.

Whether the amount of force employed by officers is excessive “depends on the

facts and circumstances of each particular case, including a non-exhaustive list of

factors, such as (1) the severity of the crime at issue; (2) whether the suspect poses an

immediate threat to the safety of the officers or others; and (3) whether he is actively

resisting arrest or attempting to evade arrest by flight.” Johnson, 18 F.4th at 1272

(citations and quotations omitted). Courts also consider the need for the application of

force, the relationship between the necessity of force and the amount of force used, and

the extent of the injuries inflicted. Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d

1347, 1353 (11th Cir. 2015) (citation omitted).

“[G]ratuitous force against a suspect who is secure, not resisting, and not a

safety threat to the officer or other officers” violates the Fourth Amendment. Johnson,

18 F.4th at 1272 (holding officer used excessive force when he entered the holding cell

and forcibly struck Johnson, who was then secure, not resisting, and not a safety

threat to any officers). However, “it may be reasonable for an officer to use force

against a suspect who is resisting and not subdued.” Id. at 1272-73 (citations

omitted); see Godman v. City of Largo, Fla., No. 8:08-CV-00333JDWTBM, 2009 WL

1651524, at *7 (M.D. Fla. June 10, 2009) (noting that although the officers attempt to

restrain the plaintiff in handcuffs resulted in a fractured arm, “it did not violate her

constitutional right to be free from excessive force during the course of an arrest”);

Mobley, 783 F.3d at 1355 (concluding officers’ use of force in striking, kicking, and

tasing suspect was not excessive where the suspect, though pinned on the ground, was

“refusing to surrender his hands to be cuffed”); Crosby v. Monroe Cnty., 394 F.3d 1328,

1334-35 (11th Cir. 2004) (concluding the officer’s pushing suspect’s face down with his

foot in order to handcuff the suspect was not excessive force where the suspect, though

lying flat and immobile, “was able to wrestle his hand loose and push [the officer’s]

foot away ”)).

First, considering the force employed in the pond, based on the facts alleged by

Henderson, the Court finds that the use of force was warranted. Defendants were

pursuing a suspect for the serious crime of murder in the first degree by use of a

handgun. The suspect fled by car after the shooting, abandoned the car, and then fled

on foot. A nearby resident alerted Defendants to Henderson’s location. Since a

handgun was used in the earlier murder, Henderson was likely armed and could pose

a threat to the safety of the public and the officers. Henderson admits to entering the

pond, which could be seen by a reasonable officer as an attempt to flee from or to evade

arrest. In addition, while Henderson claims he was not resisting, he admits that he

was treading water when officers entered the water and tried to arrest him.9 Based on

these movements, a reasonable officer could conclude that he was resisting at that

time. It was necessary for the officers to retrieve Henderson from the water, search

him, and secure him with handcuffs. Therefore, the use of force in the water was

warranted.

9 By definition, treading water requires the movement of the arms and the legs to float upright

in a vertical position. See Cambridge Advanced Learner’s Dictionary & Thesaurus, Cambridge

University Press, https://dictionary.cambridge.org/us/Dictionary/English

/tread-water (last visited Sept. 26, 2024).

Moreover, Henderson has failed to allege sufficient facts to demonstrate that

Defendants used excessive or gratuitous force after he was secured and handcuffed.

Beyond generally tight handcuffs, it is not clear what force Henderson alleges was

excessive or gratuitous. The Court will grant leave to amend as to any force employed

after Henderson was handcuffed, to the extent that he may do so in good faith.

Defendants’ motion to dismiss on Henderson’s claim of excessive force is granted as set

forth herein, with leave to amend only as to force employed after the handcuffing.10

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

1. “Defendants’ Motion to Dismiss and Memorandum of Law” (Doc. 30) is

GRANTED to the extent that Henderson’s complaint is DISMISSED, with

leave to amend as set forth herein. The motion is otherwise DENIED

WITHOUT PREJUDICE.

2. Henderson may file an amended complaint no later than October 30, 2024,

on the standard form. He must label the form “Amended Complaint,” must

write “Case Number 8:23-cv-763-TPB-CPT” on the form and must assert all

claims that he intends to raise on the form. He must not refer to the earlier

dismissed complaint.

3. The Clerk is DIRECTED to enclose a copy of the standard form for a federal

civil rights complaint with this Order.

10 Defendants also generally assert that they are entitled to qualified immunity on all counts,

but they indicate that they “cannot, in good faith, clearly articulate their right to qualified

immunity in this motion given the incoherent form and content of Henderson’s pleading.”

Because the Court is permitting Henderson to file an amended complaint, Defendants may

assert qualified immunity if Henderson does so.

HENDERSON’S FAILURE TO COMPLY WITH THIS ORDER WILL RESULT IN

THE DISMISSAL OF THIS ACTION WITHOUT FURTHER NOTICE.

DONE and ORDERED in Chambers in Tampa, Florida, on this 30th day of

September, 2024.

TOM BARBER

UNITED STATES DISTRICT JUDGE

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