Sullenberger v. City of Coral Gables

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-cv-21830-ALTMAN/Reid

SIMON GERALD SULLENBERGER,

Plaintiff,

v.

THE CITY OF CORAL GABLES, et al.,

Defendants.

______________________________________/

ORDER

On the night of December 2, 2017, two City of Coral Gables police officers responded to a

burglar alarm at the home of our Plaintiff, Simon Gerald Sullenberger. Instead of finding a burglar,

the officers found Sullenberger standing in his yard and holding his lawfully owned shotgun. After a

standoff and altercation, the officers tased and handcuffed Sullenberger.

The State Attorney’s Office brought (and would eventually drop) criminal charges against

Sullenberger, who responded by suing the City (and the officers who arrested him) in state court. But,

after having litigated that Florida case for two-and-a-half years, Sullenberger abandoned it and brought

this new action here—in federal court. Before us now is Sullenberger’s Second Amended Complaint

(the “SAC”) [ECF No. 34], which the Defendants have moved to dismiss, see Defendants’ Motion to

Dismiss Sullenberger’s Second Amended Complaint (the “MTD”) [ECF No. 45]. After careful review,

we GRANT the MTD, DISMISS Sullenberger’s claims under 42 U.S.C § 1985 with prejudice,

DISMISS his claims under 42 U.S.C. § 1983 without prejudice, and DECLINE to exercise our

supplemental jurisdiction over his state-law claims.

THE FACTUAL AND PROCEDURAL HISTORY

On the evening of December 2, 2017, Sullenberger’s home security alarm went off, apparently

by mistake. See SAC ¶ 7. Officers Natalie Flores and Jecabseel Nuñez of the Coral Gables Police

Department arrived at Sullenberger’s home thirty minutes later. See id. ¶¶ 7, 15–16. According to

Sullenberger, the officers “appeared out of nowhere, dressed in dark clothing.” Id. ¶ 7. By then,

Sullenberger was in his front yard holding a shotgun. See CCTV footage at 19:55:08.1 Officer Nuñez

approached Sullenberger with his service weapon drawn—alongside Sullenberger’s neighbor, Dr. Luis

Santamaria, who seemed intent on trying to defuse the situation.2 Id. at 19:55:20.

While speaking to (and gesticulating at) the two approaching men, Sullenberger—shotgun still

clutched in his left hand—slowly backed away. See id. at 19:55:20–25. Although the CCTV footage has

no sound, it’s clear from the men’s body language and affect that they weren’t discussing the weather:

Again, Sullenberger was brandishing a shotgun, which he refused to put down, while vigorously

pointing at Officer Nuñez; Officer Nuñez, in turn, was aiming his pistol at Sullenberger while

appearing to shout back at him; and Dr. Santamaria, for his part, was looking back and forth nervously

at the other two while speaking and motioning with his arms in an apparent effort to deescalate the

situation. See id. at 19:55:20–35. Sullenberger eventually moved back across the yard towards Officer

Nuñez and Dr. Santamaria before finally dropping his shotgun, which Officer Flores secured. See id.

1 Both Sullenberger and the Defendants rely on the same CCTV footage. The Defendants filed a

Motion for Conventional Filing of Video Footage [ECF No. 46], which we granted, see January 24,

2023, Paperless Order [ECF No. 47]. Since both parties rely on it, we’ve watched it ourselves and will

cite it throughout this Order. Cf. Baker v. City of Madison, Ala., 67 F.4th 1268, 1276 (11th Cir. 2023)

(“Under the incorporation-by-reference doctrine, a court may consider evidence attached to a motion

to dismiss without converting the motion into one for summary judgment if (1) ‘the plaintiff refers to

certain documents in the complaint,’ (2) those documents are ‘central to the plaintiff’s claim,’ and (3)

the documents’ contents are undisputed. . . . Evidence is ‘undisputed’ in this context if its authenticity

is unchallenged.” (quoting Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002))); see also McDowell v.

Gonzalez, 424 F. Supp. 3d 1214, 1223 (S.D. Fla. 2019) (Bloom, J.), aff’d, 820 F. App’x 989 (11th Cir.

2020) (finding that the incorporation-by-reference doctrine applies to video evidence—including body

camera footage—where, as here, both parties referred to it in their motion-to-dismiss briefing).

2 Throughout this interaction, Dr. Santamaria was also on Sullenberger’s property. See CCTV footage

at 19:55:10–56:54. Although the CCTV footage doesn’t include audio, Santamaria appears to be

pleading with Sullenberger. See id. at 19:55:12–56:30. When the officers eventually took Sullenberger

down, Santamaria was also part of the fray—trying (it seems) to break things up. Id. at 19:56:32–50.

at 19:55:32–56:06.

With the shotgun out of the way, Officer Nuñez holstered his own gun, approached

Sullenberger slowly, and then placed his hand on Sullenberger’s outstretched wrist. See id. at 19:56:11–

16. A few seconds later, with the two men still talking to one another, Sullenberger removed his arm

from Officer Nuñez’s grip and backed away from him. See id. at 19:56:24–28. When Officer Nuñez

took a step towards Sullenberger, it appears—though we can’t say with complete certainty—that

Sullenberger threw a punch at Officer Nuñez. See id. at 19:56:31.3 The two men then began to stand-

up wrestling—with Santamaria trying to break them up—and, for a second or two, Sullenberger

managed to get Officer Nuñez in a kind of bear hug from behind. See id. at 19:56:31–34. Officer Nuñez

quickly broke loose, however, and he and Sullenberger (with Santamaria beside them) crashed around

the yard for several more seconds before falling over a low border wall, where Officer Flores tased

Sullenberger. See id. at 19:56:34–46.4 With Sullenberger finally subdued, the officers arrested him. See

id. ¶ 24 (“As a result of the false arrest, the Defendants took Sullenberger into Custody and unjustly

deprived him of his liberty.”).

All in all, the video shows two officers who demonstrated remarkable restraint in the

circumstances. Indeed, given his egregious conduct, Sullenberger is lucky to be alive.5 The State

Attorney’s Office eventually charged Sullenberger with two counts of resisting an officer with violence

and with a firearm, two counts of aggravated battery on a law enforcement officer, and two counts of

3 Sullenberger clearly (and suddenly) launched his arm forward, and Officer Nuñez staggered

backwards. See id. at 19:56:31. Whether the strike Sullenberger offered was a punch or a slap or a push,

we can’t really say.

4 According to Sullenberger, he “was calmly standing, not resisting [when] Officer Flores shot him

with her Taser.” SAC ¶ 18. Although the CCTV footage doesn’t show us exactly what Sullenberger

was doing in the moments before Officer Flores tased him, “calmly standing” and “not resisting” are

about the furthest things from it. See CCTV footage at 19:56:31–46.

5 Officer Jorge Puga—who would eventually be “assigned as ‘Lead Investigator’”—didn’t arrive on

the scene until after the arrest. SAC ¶ 14.

attempted murder of a law enforcement officer in the second degree. See Arrest Affidavit [ECF No.

1-3] at 2.6 But—after roughly three years of pursuing this prosecution—the State dropped all criminal

charges against Sullenberger on December 14, 2020. See SAC ¶ 5.

On November 8, 2019—one year before Sullenberger’s criminal charges were dropped and

two years after his arrest—Sullenberger sued the City and Officers Flores, Nuñez, and Puga in

Florida’s Eleventh Judicial Circuit in and for Miami-Dade County.7 In that state-court civil case,

Sullenberger asserted counts of assault-and-battery against Officers Flores and Nuñez, false

imprisonment against all Defendants, and negligence against the City. See generally Initial State Court

Complaint [State Docket Entry (“DE”) No. 1]. The Defendants filed separate motions to dismiss,

which the state court granted in part and denied in part. See State-Court Order on Defendants’ Motions

to Dismiss [State DE No. 35].8 Specifically, the state court dismissed without prejudice the assault-

and-battery claims against Officers Flores and Nuñez and the negligence claim against the City. Id. at

2–3. But it denied the motions to dismiss the false-imprisonment claim against all Defendants. Id. at

2.

Sullenberger responded with his first amended state-court complaint, asserting only9 assault-

6 We don’t know how long Sullenberger was detained because he never tells us. See SAC; see also

Response.

7 This is case number 2019-033136-CA-01, and the filings are publicly available at

www2.miamidadeclerk.gov. In resolving a motion to dismiss, we may take judicial notice of state-court

proceedings and pleadings. See Talley v. Columbus, Ga. Hous. Auth., 402 F. App’x 463, 465 n.4 (11th Cir.

2010) (“Although the district court was ruling on a motion to dismiss, the court properly examined

extrinsic documents detailing [the plaintiff’s] previous state and federal court cases[.]”); see also Cave v.

Stone, 2021 WL 4427451, at *1 (S.D. Fla. Sept. 27, 2021) (Altman, J.) (“Even if the Motion [to Dismiss]

hadn’t advanced a factual challenge under Rule 12(b)(1), though, we’d likely take judicial notice of

these extrinsic documents anyway. Federal Rule of Evidence 201 permits a federal court to take judicial

notice of state-court records because, generally, those records ‘can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.’” (quoting FED. R. EVID.

201(b))). And we do so here.

8 This Order has also been filed as an exhibit on our docket. See [ECF No. 45-2].

9 Sullenberger ultimately dropped his negligence claim against the City. See First Amended State Court

Complaint [State DE No. 38].

and-battery charges against Officers Flores and Nuñez and a false-imprisonment claim against all four

Defendants. See First Amended State-Court Complaint [State DE No. 38]. The state court dismissed

the assault-and-battery claims without prejudice for failure “to allege facts giving rise to independent

torts” and dismissed10 the false-imprisonment claim as to the officers (but not as to the City). See State-

Court Order on Defendants’ Motion to Dismiss Amended Complaint [State DE No. 54].11

On September 10, 2021, Sullenberger filed his second (and final) amended state-court

complaint. See Second Amended State-Court Complaint [State DE No. 55]. In it, he asserted assault-

and-battery claims against Officers Flores and Nuñez and a false-imprisonment claim against the City.

See generally ibid.12 The City denied all liability on the false-imprisonment claim, see generally City’s Answer

and Affirmative Defenses [State DE No. 57], and Officers Flores and Nuñez sought dismissal of the

assault-and-battery claims, see generally Defendant Officers’ Motion to Dismiss the Second Amended

State-Court Complaint [State DE No. 58].

On June 15, 2022, while the state-court case was pending, Sullenberger filed this federal lawsuit

pro se. See Initial Complaint [ECF No. 1]. In this federal case, Sullenberger sued Officers Puga, Flores,

and Nuñez—as well as the City—under 42 U.S.C. § 1983, alleging a “violation of his Fourth

Amendment right to be free of unlawful seizures.” Id. ¶ 29. As redress, he sought compensatory

damages for “actions taken by Defendants, including: Unlawful and humiliating arrest, assault, battery,

false imprisonment, and negligence.” Id. ¶ 30. He also requested punitive damages against the City for

“recklessly disregarding [his] Constitutional right to be free of unlawful seizures.” Id. ¶ 31. After

Officer Puga filed a Motion to Dismiss [ECF No. 10], Sullenberger filed his First Amended Complaint

10 The state court didn’t say whether this dismissal was with or without prejudice. See State-Court

Order on Defendants’ Motion to Dismiss Amended Complaint [State DE No. 54].

11 This is [ECF No. 45-3] on our docket.

12 For whatever reason, Sullenberger didn’t sue Officer Puga this time. See Second Amended State-

Court Complaint [State DE No. 55] at 1.

[ECF No. 12], asserting claims under § 1983 against all four Defendants for violating both his “Fourth

Amendment right to be free of unlawful seizures” and his right to “due process under the Fourteenth

Amendment.” First Amended Complaint ¶ 33. He also asserted state-law claims for unlawful arrest,

assault, battery, false imprisonment, and negligence. Ibid.

On October 18, 2022, the state court discovered this new federal proceeding and dismissed

Sullenberger’s Second Amended State-Court Complaint. See generally Order of Dismissal [State DE

No. 86].13 According to the state court:

Plaintiff filed a Notice of Removal to United States District Court and attached a copy

of First Amended Complaint filed in the Southern District of Florida. Plaintiff did not

attach a Civil Cover Sheet indicating that this State Case had been removed to federal

court. . . . Plaintiff stated on the record that it is his intention to dismiss this action and

proceed in federal court. . . . Based upon the Plaintiff’s notice of removal and Plaintiff’s

stated intention to dismiss this action and proceed in federal court, this case is hereby

dismissed.

Id. ¶¶ 3, 5, 7.14

Back in federal court, all four Defendants filed a Joint Second Motion to Dismiss [ECF No.

26]. Sullenberger filed a Motion for Leave to File a Second Amended Complaint [ECF No. 31], which

we granted, see December 6, 2022, Paperless Order [ECF No. 32]. In doing so, however, we warned

Sullenberger that “[n]o further amendments [beyond the Second Amended Complaint] will be

permitted.” Ibid.

13 This is [ECF No. 45-4] on our docket.

14 It’s hornbook law that a plaintiff cannot remove a case from state to federal court. See 28 U.S.C. §

1441(a) (“[A]ny civil action brought in a State court of which the district courts of the United States

have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the

United States[.]” (emphasis added)); see also Rigaud v. Broward Gen. Med. Ctr., 346 F. App’x 453, 454

(11th Cir. 2009) (affirming a district court’s conclusion that “a plaintiff . . . could not remove her own

action” (per curiam)). We don’t know why the state-court judge didn’t mention this. Either way, this

issue isn’t relevant to our analysis because Sullenberger’s claims fail for more obvious reasons. If

Sullenberger files a new action in state court or a third amended complaint here in federal court—and

should the Defendants (again) assert their statute-of-limitations and res-judicata defenses, see MTD at

7–12, 21–22—a deeper dive into this irregular pleading maneuver may be warranted.

Sullenberger filed this (now operative) SAC two days later. In it, Sullenberger advances the

following state-law claims: assault against Flores and Nuñez (Count I), see SAC ¶ 17; battery against

Flores and Nuñez (Count II), see id. ¶¶ 18–22; false imprisonment against all Defendants (Count III),

see id. ¶¶ 23–29; and malicious prosecution against a non-party, the State Attorney’s Office (Count V),

see id. ¶¶ 37–41. As for his federal claims, he’s shoehorned all of them into Count IV, which he’s

unhelpfully titled “Section 1983, 1985.” See id. ¶¶ 30–36. The gist of Count IV seems to be that the

Defendants (1) conspired to write a false arrest report to justify Sullenberger’s arrest; (2) “deliberately

and maliciously” brought and maintained an unlawful prosecution against him; and (3) harassed

Sullenberger and his family “by revving their engines in front of [Sullenberger’s] house in the middle

of the night, flooding [the] house with their spotlights, parking on [Sullenberger’s] street, and installing

cameras on [the nearby] stop sign.” Ibid. The Defendants now ask us to dismiss all five counts with

prejudice. See MTD at 6.15

THE LAW

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

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

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this

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

reasonable inference that the defendant is liable for the misconduct alleged.” Ibid. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ibid. (quoting Twombly, 550 U.S. at

555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will

15 The MTD is ripe for adjudication. See Plaintiff’s Memorandum of Law in Opposition to Defendants’

Motion to Dismiss Second Amended Complaint (the “Response”) [ECF No. 65]; see also Defendants’

Reply in Support of Their Motion to Dismiss Plaintiff’s Second Amended Complaint (the “Reply”)

[ECF No. 66].

reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10

(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual

allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

Of course, “pro se [filings], however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.” Erikson v. Pardus, 551 U.S. 89, 94 (2007); see also Saunders v.

Duke, 766 F.3d 1262, 1266 (11th Cir. 2014) (“We also construe the complaint liberally because it was

filed pro se.”); cf. FED. R. CIV. P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”).

Still, while we treat pro se litigants with some leniency, “this leniency does not give a court license to

serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an

action.” Schwarz v. Ga. Composite Med. Bd., 2021 WL 4519893, at *2 (11th. Cir 2021) (cleaned up).

Notably, the requirement that “a complaint must contain sufficient facts, accepted as true, to state a

claim for relief that is plausible on its face . . . also applies to pro se complaints.” Wells v. Miller, 652 F.

App’x 874, 875 (11th Cir. 2016); see also Saunders, 766 F.3d at 1266 (recognizing that Twombly and Iqbal

apply to pro se complaints).

ANALYSIS

I. Sullenberger’s Federal Claims

As we’ve said, Sullenberger has jammed his various federal claims into Count IV—which, as

a result, is a classic shotgun pleading. For three reasons, though, these claims also fail on the merits.

First, § 1985 isn’t applicable to our case. Second, the officers enjoy qualified immunity against

Sullenberger’s § 1983 claims. Third, Sullenberger hasn’t done nearly enough to state viable § 1983

claims against the City for malicious prosecution or false arrest.16

A. Count IV is a shotgun pleading.

Sullenberger awkwardly—and impermissibly—jams his federal claims together into one count

(Count IV). To comply with federal pleading standards, a complaint “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).

Plaintiffs must also “state [their] claims . . . in numbered paragraphs, each limited as far as practicable

to a single set of circumstances.” FED. R. CIV. P. 10(b). “Complaints that violate either Rule 8(a)(2) or

Rule 10(b), or both, are often disparagingly referred to as ‘shotgun pleadings.’” Weiland v. Palm Beach

Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). And “[c]ourts in the Eleventh Circuit have

16 Some of Sullenberger’s federal claims may also be barred by Florida’s statute of limitations,

but we won’t resolve that issue here. “Claims under § 1983 and § 1985 are governed by the statute of

limitations for personal injury actions in the state in which the cause of action arose.” Villalona v.

Holiday Inn Express & Suites, 824 F. App’x 942, 946 (11th Cir. 2020) (per curiam). In Florida, that

period is four years. See FLA. STAT. § 95.11(3)(n) (setting a four-year statute of limitations for “[a]n

action for assault, battery, false arrest, malicious prosecution, malicious interference, false

imprisonment, or any other intentional tort”). But, while state law governs the length of the statute of

limitations, “[f]ederal law governs when a federal civil rights claim accrues.” Karantsalis v. City of Miami

Springs, Fla., 17 F.4th 1316, 1322 (11th Cir. 2021). And, under federal law, a civil-rights cause of action

accrues “when ‘the plaintiff has a complete and present cause of action’ and ‘can file suit and obtain

relief.’” Villalona, 824 F. App’x at 946 (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)).

“In order ‘to determine the beginning of the limitations period for a warrantless false arrest, a

court must determine when the plaintiff’s false imprisonment came to an end.’” White v. Hiers, 652 F.

App’x 784, 786 (11th Cir. 2016) (quoting Wallace, 549 U.S. at 389 (cleaned up)); see also Hayward v. Lee

Cnty. Sheriff’s Off., 2017 WL 6550866, at *2 (M.D. Fla. Oct. 30, 2017) (“The statute of limitations begins

to run for a federal false arrest claim when the false imprisonment comes to an end.”). For

Sullenberger, that came sometime after his December 2, 2017, arrest. But a malicious-prosecution

cause of action “accrues when the prosecution against the plaintiff terminates in his favor.” Laskar v.

Hurd, 972 F.3d 1278, 1285 (11th Cir. 2020). The State didn’t drop all charges against Sullenberger until

December 14, 2020. See SAC ¶ 5.

When we add four years to each of those dates, we find that his §§ 1983 and 1985 claims for

malicious prosecution are timely because their four-year limitations periods expired after June 15, 2022

(the day Sullenberger filed this action in federal court). On the other hand, his §§ 1983 and 1985 claims

for false arrest are untimely because their four-year windows closed before June 15, 2022. Even as to

these latter claims, however, Sullenberger might be able to show that this federal action relates back to

his state-court suit (or that equitable tolling applies)—in which case his false-arrest claims may also be

timely. Again, these are questions we won’t resolve today.

little tolerance for [them].” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294–95 (11th Cir. 2018). As

the Eleventh Circuit has explained, a complaint is a shotgun pleading if it:

(1) contains multiple counts where each count adopts the allegations of all preceding

counts; (2) is replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action; (3) fails to separate into a different count

each cause of action; or (4) asserts multiple claims against multiple defendants without

specifying which defendant is responsible for which act.

Embree v. Wyndham Worldwide Corp., 779 F. App’x 658, 662 (11th Cir. 2019). Shotgun pleadings share

two characteristics: First, they “fail to one degree or another, and in one way or another, to give the

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

Dorman v. Palm Beach Cnty., 2020 WL 2078527, at *1 (S.D. Fla. Apr. 30, 2020) (Altman, J.) (quoting

Weiland, 792 F.3d at 1323). Second, they “waste scarce judicial resources, inexorably broaden the scope

of discovery, wreak havoc on appellate court dockets, and undermine the public’s respect for the

courts.” Ibid. (quoting Vibe Micro, 878 F.3d at 1295 (cleaned up)).

Count IV of the SAC violates the third and fourth Embree categories. As to the third category,

Sullenberger “fails to separate into a different count each cause of action.” Embree, 779 F. App’x at

662. Even the title of Count IV alone—“Section 1983, 1985”—reveals that Sullenberger is advancing

multiple causes of action in one count. SAC at 10. And then, within the body of Count IV,

Sullenberger proceeds to allege: (1) that the Defendants “conspired and proceeded in reckless disregard

of the truth to write a false arrest report to justify the unlawful arrest of Sullenberger to avoid a civil suit,”

id. ¶ 30 (emphasis added); (2) that the “Defendants without a doubt knew, or have reason to know,

they materially misled a magistrate and prosecution based on a dishonest, falsified probable cause,” ibid.

(emphasis added); (3) that the Defendants had the “willful intent to make the affidavit misleading to

cause a malicious prosecution and harm to the Plaintiff,” id. ¶ 31; and (4) that “CGPD Officers Gangstalked

our home in an attempt to intimidate our family and instill fear by revving their engines in front of

our house in the middle of the night, flooding our house with their spotlights, parking on our street,

and installing cameras on our stop sign,” id. ¶ 33. Here, in one count, Sullenberger seems to be

advancing claims of false arrest, malicious prosecution, some kind of pervasive harassment, and

conspiracy—all under the auspices of §§ 1983 and 1985. In short, Sullenberger has—in Count IV—

committed the “sin of not separating into a different count each cause of action or claim for relief.”

Weiland, 792 F.3d at 1323.

Count IV also violates the fourth Embree category by “assert[ing] multiple claims against

multiple defendants without specifying which defendant is responsible for which act.” Embree, 779 F.

App’x at 662. In Count IV, Sullenberger alleges that “[the City,] the aforementioned officers[,] and

their Command staff conspired and proceeded in reckless disregard of the truth to write a false arrest

report.” SAC ¶ 30. Sullenberger has thus identified four different Defendants—and a non-party (the

command staff), whoever or whatever that is. And how exactly these individuals and entities so

conspired is more or less left to the imagination.17 We therefore have no idea which Defendants

“conspired and proceeded in a reckless disregard of the truth to write a false arrest report,” who

“Gangstalked” the Sullenberger home, and who “had an opportunity to correct their actions” but

instead “chose[ ] to deliberately and maliciously continue their pursuit of causing harm to

Sullenberger.” Id. ¶¶ 30, 33–34. That, of course, makes it “virtually impossible to know which

allegations of fact are intended to support which claim(s) for relief.” Weiland, 792 F.3d at 1325 (quoting

Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).

While we could end our analysis of Count IV here, we do have an obligation to construe the

SAC liberally. See Saunders, 766 F.3d at 1266 (“We also construe the complaint liberally because it was

filed pro se.”). So, we’ll disentangle Count IV and try our best to deduce what exactly Sullenberger is

claiming here. As we’ve said, Count IV alleges that “[t]he City of Coral Gables the aforementioned

17 Sullenberger does offer detailed, concrete allegations against Officer Puga. See SAC ¶ 32.

officers and their Command staff conspired and proceeded in reckless disregard of the truth to write a

false arrest report to justify the unlawful arrest of Sullenberger to avoid a civil suit. . . . [T]hey materially

misled a magistrate and prosecution based on a dishonest, falsified probable cause . . . . Confident their lies

would go overlooked and having the willful intent to make the affidavit misleading to cause a malicious

prosecution and harm to Plaintiff.” SAC ¶¶ 30–31. We therefore read Count IV as advancing—against

all Defendants—(1) § 1983 claims for false arrest and malicious prosecution, and (2) § 1985 claims for

conspiracy to arrest Sullenberger falsely and conspiracy to carry out a malicious prosecution.18 As we’ll

see, however, these claims fail on the merits.

B. § 1985 doesn’t apply here.

Sullenberger fails to state a claim under § 1985. As a threshold matter, he doesn’t specify which

of § 1985’s three subsections he’s proceeding under, see generally SAC ¶¶ 30–36—thus leaving us in the

uncomfortable position of guessing at his intentions. But, because the SAC “contains no allegations

about a conspiracy to prevent an officer from performing his duties,” Sullenberger “states no claim

for relief under section 1985(1).” Lumpkin v. Atty Gen., Fla., 703 F. App’x 715, 717 (11th Cir. 2017)

(per curiam). Nor does Sullenberger state a “claim for relief under the first portion of section 1985(2),

which applies only to conspiracies alleged to have deterred testimony in federal court.” Ibid. Instead,

18 As we’ve mentioned, Count IV also claims that “CGPD Officers Gangstalked our home in an

attempt to intimidate our family and instill fear by revving their engines in front of our house in the

middle of the night, flooding our house with their spotlights, parking on our street, and installing

cameras on our stop sign.” SAC ¶ 33. But this conduct—revving engines, shining spotlights, parking

cars, or installing cameras in public places—doesn’t amount to any constitutional violation we’re aware

of. It thus cannot support Sullenberger’s claims under §§ 1983 or 1985. See infra at 15–16 (discussing

the elements of § 1983); see also infra at 13–14 (summarizing the elements of § 1985).

Sullenberger must be invoking either the second half of § 1985(2)19 or the entirety of § 1985(3),20 or

both. But even these subsections provide him no relief.

“The Ku Klux Klan Act of 1871 gave rise to 42 U.S.C. §§ 1985 and 1986, still in effect today.

Section 1985 provides a federal civil cause of action against persons who conspire to deprive a person

of federally protected civil rights.” William M. Carter, Jr., The Anti-Klan Act in the Twenty-First Century,

136 HARV. L. REV. F. 251 (2023). To prevail on a § 1985(2) claim, a plaintiff must prove “the following

elements: (1) a conspiracy; (2) for the purpose of impeding, hindering, obstructing or defeating the

due course of justice in a state or territory, (3) with the purposeful, discriminatory intent of denying a citizen the

equal protection of the laws, (4) under color of state law or authority.” Shahawy v. Lee, 1996 WL 33663633,

at *16 n.32 (M.D. Fla. Dec. 13, 1996) (Nimmons, J.) (emphasis added). And “[t]he elements of a cause

of action under § 1985(3) are: (1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any

19 This second portion of § 1985(2) states:

[I]f two or more persons conspire for the purpose of impeding, hindering, obstructing,

or defeating, in any manner, the due course of justice in any State or Territory, with

intent to deny to any citizen the equal protection of the laws, or to injure him or his

property for lawfully enforcing, or attempting to enforce, the right of any person, or

class of persons, to the equal protection of the laws . . . the party so injured may have

an action for the recovery of damages occasioned by such injury or deprivation, against

any one or more of the conspirators.

20 In relevant part, § 1985(3) provides:

If two or more persons in any State or Territory conspire or go in disguise on the

highway or on the premises of another, for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal protection of the laws, or of

equal privileges and immunities under the laws; or for the purpose of preventing or

hindering the constituted authorities of any State or Territory from giving or securing

to all persons within such State or Territory the equal protection of the laws; . . . in any

case of conspiracy set forth in this section, if one or more persons engaged therein do,

or cause to be done, any act in furtherance of the object of such conspiracy, whereby

another is injured in his person or property, or deprived of having and exercising any

right or privilege of a citizen of the United States, the party so injured or deprived may

have an action for the recovery of damages occasioned by such injury or deprivation,

against any one or more of the conspirators.

person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and

(3) an act in furtherance of the conspiracy, (4) whereby a person is either injured in his person or

property or deprived of any right or privilege of a citizen of the United States.” Trawinski v. United

Techs., 313 F.3d 1295, 1299 (11th Cir. 2002) (emphasis added). To satisfy the third element of § 1985(2)

“requires an allegation of class-based animus.” Chavis v. Clayton Cnty. Sch. Dist., 300 F.3d 1288, 1292

(11th Cir. 2002). The second element of § 1985(3) likewise requires an allegation that the plaintiff “is

a protected person or class or that he was the subject of class-based animus.” Overcash v. Shelnutt, 753

F. App’x 741, 746 (11th Cir. 2018); see also Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (“The language

[from § 1985(3)] requiring intent to deprive of equal protection, or equal privileges and immunities,

means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory

animus behind conspirators’ action.”).

“Two types of classes come within § 1985(3)’s protection: (1) classes having common

characteristics of an inherent nature—i.e., those kinds of classes offered special protection under the

Equal Protection Clause, and (2) classes that Congress was trying to protect when it enacted the Ku

Klux Klan Act.” Brown v. Anderson, 2023 WL 1102568, at *3 (11th Cir. Jan. 30, 2023) (quoting Childree

v. UAP/GA AG Chem., Inc., 92 F.3d 1140, 1147 (11th Cir. 1996)). While it’s theoretically possible for

a white male (like Sullenberger) to fit himself into one of these classes, Sullenberger has made no effort

to do so here. See generally SAC ¶¶ 30–36. Because Sullenberger “has failed to allege the existence of a

‘racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’

action,’ he has stated no claim for relief under section 1985(3).” Lumpkin, 703 F. App’x at 717 (quoting

Childree, 92 F.3d at 1147). “For the same reason,” Sullenberger “states no claim for relief under the

second portion of section 1985(2), which also applies only if the conspirators act ‘with intent to deny

to any citizen the equal protection of the laws,’ or to injure a person who seeks to enforce ‘equal

protection of the laws.’” Ibid. (quoting 42 U.S.C. § 1985(2)).

We therefore DISMISS Sullenberger’s § 1985 claims with prejudice. In doing so, we

recognize our obligation to grant Sullenberger (a pro se plaintiff) “at least one chance to amend the

complaint before [dismissing] the action with prejudice.” Silberman v. Miami Dade Transit, 927 F.3d

1123, 1132 (11th Cir. 2019). But we’ve already done that. See December 6, 2022, Paperless Order

(granting Sullenberger leave to file the SAC). In any event, we needn’t grant Sullenberger leave to

amend where “further amendment would be futile.” Silberman, 927 F.3d at 1133 (cleaned up). And,

given the facts of this case—in which Sullenberger has never suggested that he was targeted because he

was a white male (or for any other class- or race-based reason)—we don’t think Sullenberger could

ever state a plausible § 1985 claim. In dismissing this claim with prejudice, we note (too) that we’ve

already warned Sullenberger that “[n]o further amendments [beyond the SAC] will be permitted.”

December 6, 2022, Paperless Order [ECF No. 32].

C. The officers are immune from Sullenberger’s § 1983 claims.

“Section 1983 provides a federal cause of action for persons subjected to the deprivation of

‘rights, privileges, or immunities secured by the Constitution and laws’ by persons acting ‘under color

of any statute, ordinance, regulation, custom, or usage, of any State[.]’” Shepherd v. Wilson, 663 F. App’x

813, 817 (11th Cir. 2016) (per curiam) (quoting 42 U.S.C. § 1983). Sullenberger contends that the

Defendants deprived him of his Fourth Amendment rights when they falsely arrested—and then

maliciously prosecuted—him. See SAC ¶ 3 (“State and federal law enforcement officers may be sued

for violating a person’s Fourth Amendment rights under either section 1983 or Bivens.”); see also id. ¶

30 (“The [City] the aforementioned Officers and their Command Staff conspired and proceeded in

reckless disregard of the truth to write a false arrest report to justify the unlawful arrest of Sullenberger

to avoid a civil suit.”); id. ¶ 32 (“Officer Puga was instructed to write his arrest affidavit without

performing an investigation.”); id. ¶ 35 (“The Defendant[s] wrote their arrest affidavit with the intent

to lie . . . . The reports contained false information[.]”). The Defendants counter that Sullenberger’s

federal claims should be dismissed because the officers are entitled to qualified immunity. See MTD at

7–9, 13–19, and 26–29. We agree.

“Qualified immunity protects government officials performing discretionary functions ‘from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Priester v. City of Riviera Beach,

208 F.3d 919, 925 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In this way,

the defense of qualified immunity “balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009). “To invoke the defense of qualified immunity, a government official must have been acting

within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Spencer v.

Benison, 5 F.4th 1222, 1230 (11th Cir. 2021). If the government official was acting within the scope of

his discretionary authority, “the burden shifts to the plaintiff to show that the official’s conduct (1)

violated federal law (2) that was clearly established at the relevant time.” Ibid. To qualify as clearly

established, a legal principle “must be established with obvious clarity by the case law so that every

objectively reasonable government official facing the circumstances would know that the official’s

conduct did violate federal law when the official acted.” Bradley v. Benton, 10 F.4th 1232, 1242 (11th

Cir. 2021) (quoting Waldron v. Spicher, 954 F.3d 1297, 1305 (11th Cir. 2020)). “Put another way, the

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.” Eloy v. Guillot, 289 F. App’x 339, 346 (11th Cir. 2008)

(cleaned up). In our District, only the “decisions of the United States Supreme Court, the United

States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state (here,

the Supreme Court of Florida) can clearly establish the law.” McClish v. Nugent, 483 F.3d 1231, 1237

(11th Cir. 2007). In sum, “the doctrine of qualified immunity protects ‘all but the plainly incompetent

or those who knowingly violate the law.’” Mitchell v. Peoples, 10 F.4th 1226, 1229 (11th Cir. 2021)

(quoting Dist. of Columbia v. Wesby, 583 U.S. 48, 63 (2018)).

There’s no doubt that the officers were acting within their discretionary authority when they

responded to Sullenberger’s home and (later) arrested him.21 See, e.g., Peters v. Caldwell, 2012 WL

13020713, at *8 (N.D. Ga. Sept. 10, 2012) (Murphy, J.) (“Here, Defendant officers were acting within

their discretionary authority in responding to an alarm [that had been] set off[.]”); Turk v. Crytzer, 2021

WL 4478616, at *8 (M.D. Fla. Sept. 30, 2021) (Honeywell, J.) (same); see also McDowell v. Gonzalez, 820

F. App’x 989, 991 (11th Cir. 2020) (“A police officer generally acts within the scope of his discretionary

authority when making an arrest.”). “Qualified immunity will shield [police officers] from a claim of

false arrest without probable cause if there was arguable probable cause, i.e., if a reasonable police

officer, knowing what [the Defendants] knew, could have believed there was probable cause for the

warrantless arrest.” Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999). And “[t]he 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 v. Howard, 25 F.4th 891, 902 (11th Cir. 2022). The scope or degree of that criminal activity

is irrelevant because, “[i]f an officer has probable cause to believe that an individual has committed

21 Sullenberger’s allegations about the three officers are consistent with our conclusion that they were

acting within their discretionary authority. See SAC ¶ 15 (“Officer Flores . . . was employed and acting

in her capacity as a recently hired Police Officer under the authority of the Coral Gables Police

Department [when she] assaulted, unlawfully arrested Sullenberger at his home, and conspired with

command staff to fabricate a false arrest report[.]”); see also id. ¶ 16 (“Officer Nuñez . . . was employed

and acting in his capacity as a Police Officer under the authority of the Coral Gables Police

Department [when he] assaulted, unlawfully arrested Sullenberger at his home, and conspired with

command staff to fabricate a false arrest report[.]”); id. ¶ 14 (“Officer Puga . . . was employed and

acting in his capacity as a recently hired Police Officer under the authority of the Coral Gables Police

Department[.]”).

even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment,

arrest the offender.” Lorenzo v. City of Tampa, 259 F. App’x 239, 241 (11th Cir. 2007) (quoting Atwater

v. City of Lago Vista, 532 U.S. 318, 354 (2001)). Notably, “[p]robable cause for an arrest may be found

if there is probable cause to believe any crime was committed, whether or not there is probable cause

for the crime the arresting officer actually believed had been committed.” Manners v. Cannella, 891 F.3d

959, 969 (11th Cir. 2018) (emphasis added). In other words, “[t]he validity of an arrest does not turn

on the offense announced by the officer at the time of the arrest.” Bailey v. Bd. of Cnty. Com’rs of Alachua

Cnty. Fla., 956 F.2d 1112, 1119 n.4 (11th Cir. 1992).

Taking Sullenberger’s allegations together with what we see in the CCTV footage, our officers

had (at the very least) arguable probable cause to arrest Sullenberger. First, they had a legitimate law

enforcement reason to respond to Sullenberger’s house: the activated security alarm. See SAC ¶ 7

(“Defendant[s] arrived at [Sullenberger’s] home almost 30 minutes after an accidental audible

alarm[.]”). Second, when they arrived, the officers found Sullenberger outside the home holding a

shotgun. See CCTV footage at 19:55:02. Third, the officers had no way of knowing whether

Sullenberger was a lawful resident of the home (or a burglar), whether he lawfully owned the weapon

he was brandishing, or what his intentions with that weapon were. Fourth, Sullenberger refused to drop

the weapon for nearly a whole minute after the officers arrived—even though Officer Nuñez was

approaching him with his gun drawn and clearly ordering him to comply with his commands. See id.

at 19:55:02–53. Fifth, Sullenberger unquestionably resisted the officers when they tried to detain him

by refusing to surrender himself, removing his arm from Officer Nuñez’s grip, punching (or striking)

Officer Nuñez, wrapping his arms around Officer Nuñez in a bear hug, and evading the officers in

the moments before he was tased. See id. at 19:55:53–56:46. Taken together, that’s plenty of probable

cause—and certainly arguable probable cause—to justify an arrest for two separate crimes:

brandishing the shotgun and resisting arrest.22 See Davis v. City of Apopka, 78 F.4th 1326, 1334–35 (11th

Cir. 2023) (noting that probable cause depends on the “totality of the circumstances” and adding that

a “substantial chance [of criminal activity] is all that is required, ‘not an actual showing of such activity’”

(quoting Wesby, 583 U.S. at 57)).

For the crime of brandishing a shotgun, the Eleventh Circuit’s decision in Pierre v. City of

Miramar, Fla., Inc., 537 F. App’x 821 (11th Cir. 2013), supports our conclusion that the officers had

(arguable) probable cause to arrest Sullenberger. After hearing “banging on the front door of his

home,” the owner in that case searched his yard for burglars while holding a baseball bat and a shotgun.

Id. at 823. During that search, the owner discussed the banging with his neighbor, who said he would

call the police. Ibid. The owner reentered his house—and, a short while later, several police officers

arrived. Ibid. Those officers interviewed the neighbor and eventually phoned the homeowner, ordering

him to come out of his house with his hands up. Ibid. When the owner complied, the officers searched

his house and found the shotgun. Ibid. Even though the homeowner told the officers that he owned

the shotgun, id. at 826, they arrested him and (later) charged him with (1) the reckless display of a

weapon, in violation of FLA. STAT. § 790.053, and (2) openly carrying a weapon, in violation of FLA.

STAT. § 790.10, id. at 823. The homeowner later sued the officers and the city, asserting § 1983 claims

for false arrest and false imprisonment. Id. at 825–26. The district court granted the defendants’

22 Sullenberger disagrees with this characterization of the available facts. See SAC ¶ 23 (stating in Count

III that the Defendants “falsely arrested Sullenberger without probable cause or legal justification”).

Normally, in adjudicating a motion to dismiss, we would “accept all factual allegations in a complaint

as true and take them in the light most favorable to plaintiff.” Dusek, 832 F.3d at 1246. “But where a

video is clear and obviously contradicts the plaintiff’s alleged facts, we accept the video’s depiction

instead of the complaint’s account.” Baker, 67 F.4th at 1277–78 (cleaned up); see also Scott v. Harris, 550

U.S. 372, 380 (2007) (noting—albeit in the summary-judgment context—that, “[w]hen opposing

parties tell two different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts”). In our case, the

video—especially when taken together with Sullenberger’s allegations—shows that the officers had

arguable probable cause to arrest him.

motion to dismiss under FED. R. CIV. P. 12(b)(6), id. at 825–26, and the Eleventh Circuit affirmed, id.

at 826. “Based on the facts known to Defendant Officers at the time of [the homeowner’s] arrest,”

the Eleventh Circuit explained, “probable cause existed to suspect that [he] was guilty of violating

FLA. STAT. § 790.053 [openly carrying a weapon]. Thus, [the homeowner] cannot state a claim for

relief under section 1983 that is plausible on its face.” Ibid.

For three reasons, our facts present an even stronger case of qualified immunity. One, Pierre

never actually brandished the firearm in the officers’ presence—which means both that they never saw

him publicly displaying the weapon and that they were never endangered by it. Our officers, of course,

approached a dark scene in the middle of the night with an unknown man who continued to hold a

shotgun for nearly a minute after they arrived. Two, Pierre immediately complied with the officers’

commands, whereas Sullenberger (it’s clear from the video) refused to drop the shotgun for almost a

whole minute while Officer Nuñez approached him with his gun drawn. Three, Pierre (unlike

Sullenberger) never resisted the officers when they tried to arrest him.23

Our case is also more straightforward than the facts Judge Gayles (of our Court) confronted

in Forrest v. Pustizzi, 2017 WL 2472537 (S.D. Fla. June 7, 2017) (Gayles, J.). In that case, police officers

responded to the report of a “potential domestic violence incident.” Id. at *4. When they arrived at

the home, the officers told the man at the door that “a woman had been heard crying out for help.”

Ibid. When the man turned to tell two women to come downstairs, the officers noticed that he “had

been holding a gun behind his back.” Ibid. “The Officers then demanded that [he] drop the gun,” but

“he did not immediately surrender the gun” and instead “turned to put the gun on the stairs.” Ibid.

23 We recognize that Sullenberger wasn’t charged with violating FLA. STAT. § 790.053 (openly carrying

a weapon). But Pierre makes clear that he easily could have been, and (as we’ve said) “[p]robable cause

for an arrest may be found if there is probable cause to believe any crime was committed, whether or

not there is probable cause for the crime the arresting officer actually believed had been committed.”

Manners, 891 F.3d at 969 (emphasis added).

(cleaned up). Judge Gayles rightly found that “[a] reasonable officer under these circumstances,

possessing the knowledge that [the officers] possessed at the time, could believe that probable cause

existed to arrest [the man] for resisting an officer without violence. That [the man] alleges that he

intended to place the gun on the stairs is immaterial; all that is critical is the Officers’ knowledge at the

time and whether that knowledge gave the Officers arguable probable cause to arrest.” Ibid. (emphasis

in original).

Our officers, as we’ve said, are on even firmer ground. For one thing, unlike the man in

Forrest—who, by calling out to the women upstairs, appeared to be lawfully in the home—Sullenberger

was standing and holding a shotgun in the middle of the night in the front yard of a house whose

alarm had just been set off. From the officers’ perspective, in other words, there was no way to know—

as there was in Forrest—whether the man they were confronting was the homeowner (or the burglar).

For another, the man in Forrest immediately complied with the officers’ commands by turning around

and placing the gun on the staircase. Sullenberger, as we’ve seen, held onto the shotgun for nearly a

whole minute while Officer Nuñez approached with his gun drawn. Finally, unlike Sullenberger,

there’s no indication that the man in Forrest resisted arrest, struck the arresting officer, or placed the

officer in a bear hug.

The officers thus had arguable probable cause to arrest Sullenberger for openly carrying a

shotgun.24

24 By way of comparison, our case differs in salient ways from Mann v. Joseph, 805 F. App’x 779 (11th

Cir. 2020) (per curiam), where the police were conducting a criminal investigation in a woman’s

apartment when her boyfriend arrived with his holstered (and lawfully owned) handgun. Id. at 781.

Because the plaintiff in that case neither brandished his weapon nor resisted the officers, the district

court found—and the Eleventh Circuit agreed—that the officers lacked arguable probable cause to

arrest him. See ibid. (noting that, because the plaintiff “immediately complied with the officers’ orders to

surrender his gun and lay on the ground[,] . . . [t]he officers . . . could not have reasonably thought

that [the man’s] compliance constituted obstruction” (emphasis added & cleaned up). Those are just

not our facts. As we’ve said, Officer Nuñez—his service weapon drawn—engaged Sullenberger for

nearly a whole minute before Sullenberger finally relinquished his (brandished) shotgun. And, when

As we’ve indicated, however, the officers also had arguable probable cause to arrest

Sullenberger for resisting arrest. “In Florida, an individual commits the offense of resisting an officer

without violence when they ‘resist, obstruct, or oppose any [law enforcement] officer . . . in the lawful

execution of any legal duty, without offering or doing violence to the person of the officer.’” Harris v.

Wingo, 845 F. App’x 892, 896 (11th Cir. 2021) (quoting FLA. STAT. § 843.02).25 “[T]o support a

conviction for obstruction without violence, the State must prove: (1) the officer was engaged in the

lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a

combination thereof, constituted obstruction or resistance of that lawful duty.’” Ibid. (quoting C.E.L.

v. State, 24 So. 3d 1181, 1185–86 (Fla. 2009)). Indeed, a defendant can even be lawfully arrested for

fleeing an initially unlawful arrest. See United States v. Bailey, 691 F.2d 1009, 1018–19 (11th Cir. 1982)

(holding that a defendant had “no right to flee and to strike [a federal agent] in an effort to escape

[that agent’s] attempts to recapture him” after an initially unlawful detention and concluding that the

agent could “thus . . . validly arrest [the defendant]”).

On this issue, the Eleventh Circuit’s decision in Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir.

2008), is instructive. The officers in that case—responding to a disturbance at a Ritz Carlton hotel—

“were lawfully executing their legal duty by informing [a rowdy and disruptive New Year’s Eve reveler]

that he was no longer allowed to be on the Ritz’s property, escorting him out, and giving him a trespass

warning.” Id. at 1071. “As [the reveler] and the deputies were entering the stairwell [to leave], [the

Officer Nuñez moved in to arrest him, Sullenberger—far from peacefully submitting—resisted arrest

by moving away from the officer, pulling his hand out of the officer’s grip, striking the officer, placing

the officer in a bear hug, and then grappling or wrestling with the officer. Mann thus cannot guide us

here.

25 We recognize that Sullenberger was charged with—among other things—violating FLA. STAT. §

843.01 (“resisting officer with violence to his person”), see Arrest Affidavit [ECF No. 1-3] at 2

(emphasis added), and not FLA. STAT. § 843.02 (resisting an officer without violence). But (again)

“[p]robable cause for an arrest may be found if there is probable cause to believe any crime was

committed, whether or not there is probable cause for the crime the arresting officer actually believed

had been committed.” Manners, 891 F.3d at 969 (emphasis added).

reveler] lurched forward[ and] pulled his arm partially free of [the officer’s] grip.” Id. at 1064 (cleaned

up). The officer pushed the reveler and—with the help of his partner—“attempt[ed] to handcuff” the

man. Ibid. A “struggl[e]” ensued, which ended only after the officers tased the reveler. Ibid. Although

the reveler was “tried for resisting an officer with violence,” he ultimately pled “no contest to resisting

without violence.” Ibid. (emphasis added). After his plea, the reveler sued the officers under § 1983,

asserting—among other things26—claims of excessive force. Id. at 1061–62. The district court granted

summary judgment to the officers, id. at 1065, and the Eleventh Circuit affirmed, id. at 1073. Along

the way, the Eleventh Circuit found that “the deputies had probable cause to arrest [the reveler] for

resisting arrest without violence” because he had “disobeyed a command by members of law

enforcement to sit while they executed their lawful duties.” Id. at 1072. Our case is very similar. Like

the reveler who “lurched forward” and “pulled his arm partially free of [the officer’s] grip,” id. at 1064,

Sullenberger pulled his arm away from Officer Nuñez’s grip, struck the officer, put the officer in a

bear hug, and then grappled with the officer before the two men fell over a low wall. The holding in

Zivojinovich thus supports our officers’ request for qualified immunity here.

The Eleventh Circuit came to the same conclusion in Post v. City of Fort Lauderdale, 7 F.3d 1552

(11th Cir. 1993)—a case involving a police code team visit to a “crowded” restaurant the officers

suspected of violating the city’s maximum-capacity ordinances. Id. at 1558–59 When they arrived at

the restaurant, the officers confronted the manager (whom they believed had “recently resisted arrest

with violence”). Id. at 1559. This time, the manager kept “talking after [one of the officers] told him

to be quiet.” Ibid. When the officers informed the manager that he was under arrest, the manager

“raised his hands.” Ibid. As in our case, the state brought criminal charges against the manager—

though, as here, those charges were ultimately dropped. Id. at 1556. The manager then sued the officers

26 The reveler also brought claims against the Ritz and its manager, but those claims aren’t relevant to

our case. See Zivojinovich, 525 F.3d at 1065.

under § 1983, asserting claims of—among other things—false arrest and excessive force. Id. at 1555–

56. The district court denied the defendants’ request—at summary judgment—for qualified immunity,

but the Eleventh Circuit reversed. See ibid. In the Circuit’s view, because a “reasonable officer . . . could

have believed [the manager’s] repeated comment in seeming defiance of a police instruction indicated

that [he] was interfering or about to interfere with the code team”—and since a “reasonable officer .

. . could have interpreted [the manager’s unprompted] raising of hands as resistance”—the officers

had “probable cause to arrest.” Id. at 1559. Our case (again) is very similar. Far more than the manager

who “raised his hands,” id. at 1559, Sullenberger pulled his arm away from Officer Nuñez before

striking him, putting him in a bear hug, and wrestling with him. Post thus likewise supports our

conclusion that the officers had arguable probable cause to arrest Sullenberger for resisting arrest

without violence.

We’re guided, lastly, by Andrade v. Sheriff of Lee Cnty., Fla., 2023 WL 6389812 (11th Cir. Sept.

29, 2023). Police officers in that case responded to a local beach after they learned that a man had

groped a woman there. Id. at *1. As the officers went to arrest the man, his female “acquaintance”

(not the woman who had been groped) “followed the arresting officers to their patrol vehicle.” Ibid.

The acquaintance “approached the vehicle while the officers placed [the man] in the back seat, yelling

at the officers.” Ibid. “The officers ordered [her] to back away,” which she did—only to “return[ ] to

the vehicle and again yell[ ] at the officers.” Ibid. “The officers again ordered [the acquaintance] to

back away,” which she did. Ibid. But, by then, other individuals were involved, and a “scuffle

ensued”—a scuffle the acquaintance did not initiate. Ibid. One of the officers “secured [the

acquaintance] on the ground with his knee and hand, stood her up, and handcuffed her.” Ibid. The

acquaintance was charged with “resisting a police officer without violence.” Ibid. The acquaintance

later sued the officers under § 1983 and state law, asserting claims of false arrest, false imprisonment,

excessive force, malicious prosecution, and battery (among others). Ibid. “The district court granted

summary judgment for the officers on all the claims.” Ibid. Although the woman didn’t appeal the

court’s denial of her § 1983 claims, she did appeal—among other things—the court’s ruling on her

state-law, false-arrest claim. Ibid. But the Eleventh Circuit affirmed, finding—based on video

footage—that the officers had probable cause to arrest the acquaintance because “they were engaged

in the lawful execution of their legal duty by arresting [the alleged groper], transporting him to the

patrol car, securing the area for their investigation, and ordering [the acquaintance] to back away from

the car. And [the acquaintance], by combination of her words and conduct, obstructed and resisted

that lawful duty when she defied that order.” Id. at *4. Even more so than in Andrade, where the

woman’s initial disobedience resulted in a scuffle, Sullenberger caused the altercation in our case by

refusing to submit to the officer, pulling his hand from the officer’s grip, striking the officer, putting

him in a bear hug, and then wrestling with him. Andrade, then, likewise supports our officers here.

In each of these cases, as here, the defendants “obstructed and resisted” law enforcement

officers who were engaged in the lawful execution of their legal duties through words or conduct.

And, in each of these cases, the Eleventh Circuit granted the officers immunity from suit because,

based on that resistance, the officers had arguable probable cause to arrest the defendants. So too

here. Because our officers had arguable probable cause to arrest Sullenberger both for brandishing the

shotgun and (separately) for resisting arrest without violence, they didn’t violate his Fourth

Amendment right to be free from unreasonable seizures. See Baxter v. Roberts, III, 54 F.4th 1241, 1265

(11th Cir. 2022) (“[A] warrantless arrest without probable cause violates the Fourth Amendment and

forms a basis for a section 1983 claim.” (quoting Carter v. Butts Cnty., 821 F.3d 1310, 1319 (11th Cir.

2016) (cleaned up & emphasis added))).

For similar reasons, the officers also enjoy qualified immunity against Sullenberger’s § 1983

claim for malicious prosecution. “In order to prove a § 1983 claim for malicious prosecution, the

plaintiff must establish a violation of his Fourth Amendment right to be free from unreasonable

seizures and the elements of the common law tort of malicious prosecution, which under Florida law,

requires the plaintiff to establish that the officers lacked probable cause to initiate the proceeding.”

Lomax v. Diaz, 390 F. App’x 900, 901 (11th Cir. 2010) (per curiam). As we just discussed, however,

the officers did have probable cause—or, at the very least, arguable probable cause. As a result,

Sullenberger’s malicious-prosecution claim necessarily fails. See ibid. (“Accordingly, if an arrest is

supported by probable cause, a plaintiff cannot maintain a § 1983 malicious prosecution claim.”); see

also Paez v. Mulvey, 915 F.3d 1276, 1290 (11th Cir. 2019) (finding that, because the underlying “arrests

were not unreasonable and did not violate the Fourth Amendment . . . , [the defendant officers] were

entitled to qualified immunity on each of the § 1983 malicious prosecution claims”).

Since we’ve already granted Sullenberger leave to amend this claim once before, see December

6, 2022, Paperless Order [ECF No. 32], we needn’t give him any more chances, see Woldeab v. Dekalb

Cnty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018) (“Where a more carefully drafted complaint

might state a claim, a [pro se] plaintiff must be given at least one chance to amend the complaint before

the district court dismisses the action with prejudice.” (cleaned up)). This is especially so because we’ve

warned Sullenberger that “[n]o further amendments [beyond the SAC] will be permitted.” December

6, 2022, Paperless Order. Plus, as we’ve explained, the CCTV footage—coupled with Sullenberger’s

own allegations—support the officers’ view that they had probable cause to arrest him. In these

circumstances—remember, this is Sullenberger’s sixth27 attempt at stating a viable claim against these

officers—we’re confident that any further amendment would be futile. See L.S. ex rel. Hernandez v.

Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020) (“Although a district court ‘should freely give leave [to

amend] when justice so requires,’ it may deny leave, sua sponte or on motion, if amendment would be

27 See Initial State Court Complaint [State D.E. No. 1]; see also First Amended State Court Complaint

[State D.E. No. 38]; Second Amended State Court Complaint [State D.E. No. 55]; Initial Complaint

[ECF No. 1]; First Amended Complaint [ECF No. 12]; SAC.

futile. Leave to amend would be futile if an amended complaint would still fail at the motion-to-

dismiss or summary judgment stage.” (quoting FED. R. CIV. P. 15(a)(2) (cleaned up))); see also Jemison

v. Mitchell, 380 F. App’x 904, 907 (11th Cir. 2010) (“When it appears that a pro se plaintiff’s complaint,

if more carefully drafted, might state a claim, the district court should give the pro se plaintiff an

opportunity to amend his complaint instead of dismissing it with prejudice. Dismissal with prejudice

is proper, however, . . . if a more carefully drafted complaint could not state a valid claim.” (cleaned

up)). But, because this is the first time we’ve addressed Sullenberger’s claims on the merits, we

DISMISS his § 1983 claims against the officers without prejudice.

D. Sullenberger has failed to state a viable § 1983 claim against the City.

Sullenberger’s § 1983 false-arrest and malicious-prosecution claims against the City fare no

better. “[A] municipality can be found liable under § 1983 only where the municipality itself causes the

constitutional violation at issue.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); see also Phillips

v. City of West Palm Beach, 2018 WL 3586179, at *9 (S.D. Fla. July 26, 2018) (Bloom, J.) (“We have

consistently refused to hold municipalities liable [for § 1983 claims] under a theory of respondeat

superior.” (quoting Bd. of Cnty. Comm’r of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997))). To

establish this causal connection, Sullenberger must allege that the City has a “policy or custom that

caused his injury.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (cleaned up). “A policy

is a ‘decision that is officially adopted by the law enforcement agency, or created by an official of such

a rank that he or she could be said to be acting on behalf of the law enforcement agency.’” Myrick v.

Fulton Cnty., Ga., 69 F.4th 1277, 1299 (11th Cir. 2023) (quoting Christmas v. Harris Cnty., Ga., 51 F.4th

1348, 1356 (11th Cir. 2022)). And “[a] custom is an unwritten practice that is applied consistently

enough to have the same effect as a policy with the force of law.” Ibid. (quoting Christmas, 51 F.4th at

1356).

Sullenberger has identified no such policies, see generally SAC, and the closest he comes to

challenging an unconstitutional custom is his allegation that “CGPD failed to train de-escalating

techniques, failed to discipline officers, failed to supervise investigations, and condon[ed] the use of

excessive force and unlawful arrest[.]” SAC ¶ 13. That isn’t nearly enough. For one thing, on his claim

that the City failed to train or supervise its officers, Sullenberger has a high bar to clear. See Anderson

v. Fulton Cnty. Gov’t, 485 F. App’x 394, 396 (11th Cir. 2012) (per curiam) (“A municipality’s culpability

for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.”); see also

Mindler v. Clayton Cnty., Ga., 831 F. Supp. 856, 861 (N.D. Ga. 1993) (Carnes, J.) (“As the Eleventh

Circuit Court of Appeals has observed, when interrelated claims of failure to train and failure to

supervise and provide corrective training are raised, the court should focus on the element common

to both claims: the alleged failure to train.” (citing Kerr v. City of West Palm Beach, 875 F.2d 1546, 1555

(11th Cir. 1989))). “[T]he inadequacy of police training may serve as the basis for § 1983 liability only

where the failure to train amounts to deliberate indifference to the rights of persons with whom the police

come into contact.” Gold, 151 F.3d at 1350 (emphasis added) (quoting City of Canton, 489 U.S. at 388).

And, “[i]n order to establish a municipality’s deliberate indifference, . . . ‘a plaintiff must present some

evidence that the municipality knew of a need to train and/or supervise in a particular area and the

municipality made a deliberate choice not to take any action.’” Carter v. Columbus Consol. Gov’t, 559 F.

App’x 880, 881 (11th Cir. 2014) (per curiam) (emphasis in original) (quoting Gold, 151 F.3d at 1350).

Sullenberger has made no such showing here. See generally SAC. He, in fact, never alleges that the City

knew of the need to train in any specific area—and he never says that the City was deliberately

indifferent to that need. For another, Sullenberger’s allegation that the City “failed to discipline officers

[and] condon[ed] the use of excessive force and unlawful arrest,” SAC ¶ 13—two sides of the same

coin—comes up short because he has “not alleged any sort of departmental history of abuse that

would have put” the City “on alert.” Nunnelee v. Morgan, 550 F. App’x 716, 718 (11th Cir. 2013) (per

curiam).28

Sullenberger’s § 1983 claims against the City also fail because he hasn’t identified any other

civil rights violations by the City beyond his arrest and prosecution.29 See SAC ¶ 6 (“Nature of Case:

Plaintiff . . . is suing under Sections 1983 and 1985. Where the [City] and [the Defendant officers]

unreasonably invaded and violated Sullenberger’s constitutional and federal rights.” (emphasis added)).

And it’s well-settled that a plaintiff cannot establish an illegal policy or custom based only on the

unconstitutional conduct the government officials directed at him. See Craig v. Floyd Cnty., Ga., 643

F.3d 1306, 1310 (11th Cir. 2011) (“Proof of a single incident of unconstitutional activity is not

sufficient to impose liability against a municipality. A pattern of similar constitutional violations is

ordinarily necessary.” (cleaned up)); see also Marantes v. Miami-Dade Cnty., 649 F. App’x 665, 672 (11th

28 True, “[u]nder certain circumstances, municipal liability may also be based on a single decision by a

municipal official with final policymaking authority.” Davis, 78 F.4th at 1352 n.7. But Sullenberger has

offered no such allegations here. See generally SAC.

29 Sullenberger does mention that the officers “proceeded to arrest [his] neighbor Luis

Santamaria, hours later, in his home, warrantless, dragging him out of bed and charging him with a

misdemeanor.” SAC ¶ 8. But Santamaria’s arrest was inextricably intertwined with Sullenberger’s. See

Initial Complaint ¶¶ 4, 10, 11 (noting that Sullenberger and Santamaria had been interacting on the

night of December 2, 2017, and explaining that the latter was on the former’s property when the

officers arrived); see also id. ¶ 24 (“Approximately 4 hours after the initial incident, Sergeant Ike with

the Coral Gables Police ordered the arrest of my neighbor Luis Santamaria while in his bed. A 65 year

old dentist and charged him with interfering. This action removed him as a witness in my criminal

case. His charges were dropped soon after when he accepted a deal that he would not sue.”). So, it’s

not evidence of a “longstanding and widespread practice.” Craig v. Floyd Cnty., 643 F.3d 1306, 1310

(11th Cir. 2011).

In any event, Santamaria’s arrest doesn’t resemble Sullenberger’s at all. Remember that the

crux of the unconstitutional custom Sullenberger is complaining about is the City’s (alleged) failure to

train its officers against the excessive use of force—or to discipline them when they do use force. See

SAC ¶ 13. But he never alleges that the officers used excessive force against Santamaria. See SAC ¶ 24.

The Santamaria arrest thus doesn’t get Sullenberger any closer to “establish[ing] a pattern of

substantially similar constitutional violations[.]” Landau v. City of Daytona Beach, 2023 WL 6622208, at

*17 (11th Cir. Oct. 11, 2023) (per curiam) (emphasis added).

Cir. 2016) (per curiam) (“To establish the existence of a custom, the plaintiff must show a

‘longstanding and widespread practice.’” (quoting Craig, 643 F.3d at 1310)).

Still, because Sullenberger might be able to allege that “the inadequacy of [the City’s] police

training . . . amounts to deliberate indifference to the rights of persons with whom the police come into

contact,” Gold, 151 F.3d at 1350 (citation omitted), an amendment here might not be futile. We

therefore DISMISS Sullenberger’s § 1983 claims against the City without prejudice.

II. Sullenberger’s State-Law Claims

Although Sullenberger has asserted several state-law claims (Counts I–III and V), his “federal

claims are the only mechanism by which we [can] exercise original jurisdiction over this case.” Floyd v.

Broward Cnty. Sheriff’s Dep’t, 2019 WL 4059759, at *4 (S.D. Fla. Aug. 28, 2019) (Altman, J.). And a

district court may decline to exercise supplemental jurisdiction over a state-law claim where “the

district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

“Where § 1367(c) applies, considerations of judicial economy, convenience, fairness, and comity may

influence the court’s discretion to exercise supplemental jurisdiction.” Baggett v. First Nat’l Bank of

Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997); see also United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 726–27 (1966) (outlining these factors). The power to hear cases via pendent jurisdiction “need

not be exercised in every case in which it is found to exist.” Gibbs, 383 U.S. at 726. As the Supreme

Court has said, supplemental jurisdiction “is a doctrine of discretion, not of plaintiff’s right.” Ibid.

“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a

jurisdictional sense, the state claims should be dismissed as well.” Ibid.; accord Vibe Micro, 878 F.3d at

1296 (“When all federal claims are dismissed before trial, a district court should typically dismiss the

pend[e]nt state claims as well.”). Given the failure of Sullenberger’s federal claims, we’ll follow the

Supreme Court’s admonition and decline to exercise our supplemental jurisdiction over Sullenberger’s

state-law claims (Counts I–III and V) here.30 Of course, Sullenberger may refile these state-law

claims—either in state court or in his third amended complaint here. See Vibe Micro, 878 F.3d at 1296

(“[T]o whatever extent that the [complaint] include[d] state law claims, the [district court’s] dismissal

should have been without prejudice as to refiling in state court.”).

* * *

To recap: We’ve dismissed all of Sullenberger’s federal claims31—though we’ll give him one

final chance to state viable § 1983 claims against the officers and the City. We’ve also elected not to

exercise our supplemental jurisdiction over Sullenberger’s state-law claims until he can prove that his

federal claims have merit. Sullenberger may therefore file ONE FINAL amended complaint by

February 23, 2024, in which he may assert § 1983 claims against the officers and the City. He may

also advance whatever non-frivolous, state-law claims he thinks he still has. But Sullenberger will be

30 Exercising supplemental jurisdiction over these state-law claims would be particularly inappropriate

here—where the Defendants have moved to dismiss them on purely state-law grounds. See MTD at

12 (arguing that Sullenberger’s state claims are barred by Florida’s statute of limitations); id. at 19–21

(arguing that Counts I and II should be dismissed because Sullenberger failed to state claims for assault

or battery under Florida law); id. at 22–23 (same, but for Count III’s false-imprisonment claim); id. at

24 (same, but for the malicious-prosecution claim in Count V); id. at 24–26 (arguing that the officers

are entitled to statutory immunity under Florida law). For reasons of fairness and comity, these

exclusively state-law questions should be handled by a state-court judge (which is how they were being

handled for nearly three years before Sullenberger abandoned that suit and filed his complaint here in

federal court).

31 We note that Sullenberger “[d]emands punitive damages in the amount of $29,012,542.40,” SAC ¶

49, and “[r]equests [apparently additional] punitive damages the Court may deem proper and just,” id.

¶ 52. But punitive damages are not available in claims against municipalities under § 1983. See City of

Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (“[W]e hold that a municipality is immune from

punitive damages under 42 U.S.C. § 1983.”); see also Truesdell v. Thomas, 889 F.3d 719, 724–25 (11th Cir.

2018) (noting that under § 1983—“which is silent about damages”—“the common law tradition of

not assessing punitive damages against municipalities” applies). And the standard for securing punitive

damages against individual police officers under § 1983 is quite high. See Pounds v. Dieguez, 850 F. App’x

738, 742 (11th Cir. 2021) (“Punitive damages may be awarded under § 1983 ‘when the defendant’s

conduct is shown to be motivated by evil motive or intent, or when it involves callous or reckless

indifference to the federally protected rights of others.’” (quoting Smith v. Wade, 461 U.S. 30, 56

(1983))). So, Sullenberger will only be able to seek punitive damages in his third amended complaint

if he can make a particularly compelling showing—under § 1983 or state law—in his claims against

the individual officers.

given no more chances. If we dismiss his third amended complaint, we 7// dismiss 1t with prejudice.

DONE AND ORDERED in the Southern District of Florida on January 23, 2024.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

ce: counsel of record

Simon Gerald Sullenberger, pro se

32