Boe v. Garcia

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-10057-MOORE/Elfenbein

BENJAMIN BOE,

Plaintiff,

v.

OFFICER JULIAN GARCIA, et al.,

Defendants.

_________________________________________/

REPORT AND RECOMMENDATION

THIS CAUSE is before the Court on pro se Plaintiff Benjamin Boe’s Complaint

(“Complaint”), ECF No. [1]; his Motion for Leave to Proceed in forma pauperis (“IFP Motion”),

ECF No. [3]; his Motion for Leave to Proceed under Pseudonym and for a Protective Order

(“Motion to Proceed Under Pseudonym”), ECF No. [4]; his Motion for Referral to Volunteer

Attorney Program (“Motion for Referral to VAP”), ECF No. [5]; and his Motion for Update, ECF

No. [8]. The Honorable K. Michael Moore has referred this case to me “to take all necessary and

proper action as required by law regarding all pre-trial, non-dispositive matters and for a Report

and Recommendation on any dispositive matters.” ECF No. [7].

Because Plaintiff has not paid the Court’s filing fee, the screening provisions of 28 U.S.C.

§ 1915(e) apply.1 Under that statute, a court must dismiss the case if the court “at any time . . .

1 Though the plain language of the statute appears to make its provision applicable only to prisoners, “[t]he

screening process under 28 U.S.C. § 1915 applies to non-prisoner pro se litigants who are proceeding in

forma pauperis.” Fletcher v. President of Albert Einstein Med. Ctr., No. 15-24355-CIV, 2016 WL

11547296, at *1 (S.D. Fla. Feb. 10, 2016), R. & R. approved, No. 15-24355-CIV, 2016 WL 11547297 (S.D.

Fla. Apr. 5, 2016); see also Neitzke v. Williams, 490 U.S. 319, 329 (1989) (noting “Congress’ over-arching

goal in enacting the in forma pauperis statute” was “to assure equality of consideration for all litigants”

(quotation marks omitted)); Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (finding no error in the

determines that . . . the action or appeal . . . is frivolous or malicious,” “fails to state a claim on

which relief may be granted,” or “seeks monetary relief against a defendant who is immune from

such relief.” 28 U.S.C. § 1915(e)(2). After reviewing the pleadings, record, and relevant law, I

recommend the Complaint, ECF No. [1], be DISMISSED WITHOUT PREJUDICE pursuant

§ 1915(e)(2)(ii). I also recommend the IFP Motion, ECF No. [3]; the Motion to Proceed Under

Pseudonym, ECF No. [4]; the Motion for Referral to VAP, ECF No. [5]; and the Motion for

Update, ECF No. [8], all be DENIED as moot.

I. BACKGROUND

In the Complaint, Plaintiff sues seven defendants: (1) Officer Julian Garcia (“Garcia”) of

the “Islamorada Police Department”2; (2) Deputy Wardell Hanna (“Hanna”) of the Monroe County

Sheriff’s Office; (3) Sergeant Edward Askins (“Askins”) of the Islamorada Police Department; (4)

Brittany Brown (“Brown”), Records Supervisor of the Monroe County Sheriff’s Office; (5) an

Unknown FOIA Officer/Records Clerk with the Islamorada Police Department; (6) the Village of

Islamorada; and (7) the Monroe County Sheriff’s Office. See ECF No. [1] at 1–2. Plaintiff alleges3

district court’s dismissal of a non-prisoner’s complaint under § 1915(e)(2)(B)(ii)); Moon v. Newsome, 863

F.2d 835, 837 (11th Cir. 1989) (“Reasonable access to the courts is provided to indigent claimants by the

in forma pauperis (IFP) statute, 28 U.S.C. sec. 1915 et seq., which allows commencement of suits without

payment of fees and court costs by a person who makes an affidavit that he is unable to pay the costs.”).

2 Plaintiff alleges some defendant officers work for the “Islamorada Police Department,” but no such entity

exists. Instead, “[p]olice services to Islamorada Village of Islands are provided by contract through” the

“Sheriff of Monroe County, Florida.” Sheriff, Islamorada Village of Islands,

https://www.islamorada.fl.us/325/Sheriff (last visited Aug. 13, 2024); see also Islamorada, Fla., Village

Code ch. 1, § 1-2 (“[T]he term ‘police’ shall mean the Monroe County Sheriff’s Office serving as the

Village police.”).

3 When screening a complaint under § 1915(e), the Court “must accept the plaintiff’s allegations as true but

need not accept legal conclusions.” White v. Lemma, 947 F.3d 1373, 1380 (11th Cir. 2020); see also Jones

v. Bock, 549 U.S. 199, 215 (2007) (noting, in the context of § 1915(e), that a “complaint is subject to

dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to

relief”). With that context, the Court lays out the screening facts without repeating the “Plaintiff alleges”

lead-in language.

he “recorded the following interaction”: Defendant Garcia “falsely detained” him and a companion

he calls Jane Doe, during which time Garcia issued Doe a citation for running a stop sign. See

ECF No. [1] at 4. Garcia did not wear a nametag identifying himself as an officer and refused to

identify himself by name or badge number despite being asked. See ECF No. [1] at 4. When the

traffic stop concluded, Garcia told Plaintiff and Doe they were “good to go” and got back in his

squad car. See ECF No. [1] at 4. Plaintiff then got out of his car, and Garcia used his car’s PA

system to tell Plaintiff to get back inside it. See ECF No. [1] at 4.

Afterward, Doe parked about forty feet behind Garcia’s squad car and called 911 to report

Garcia either for “impersonating an officer” or for refusing to identify himself against department

policy. See ECF No. [1] at 4. Garcia then got out of his car, approached Plaintiff’s car with his

gun aimed at Plaintiff, banged his gun against the passenger window, yanked the door open, and

pointed his gun at both Plaintiff and Doe. See ECF No. [1] at 4. At some point, Garcia switched

to his taser and aimed that at Plaintiff even though Plaintiff was “unarmed and peaceful.” See ECF

No. [1] at 4. Plaintiff and Doe asked if they were “under arrest or being detained,” but Garcia was

“unresponsive.” See ECF No. [1] at 4. Plaintiff and Doe “feared for their lives.” See ECF No.

[1] at 4. But Garcia “illegally detained” Plaintiff and Doe “with his gun drawn even though” they

were not threatening, they had no weapon, and the traffic stop had ended. See ECF No. [1] at 4.

Garcia also “retaliated against” them “for exercising their rights of freedom of speech and

petitioning the government/calling the police” on him. See ECF No. [1] at 4.

Defendant Hanna arrived “[m]inutes later,” at which point Plaintiff exited his car and

“stood outside the passenger door recording.” See ECF No. [1] at 4. Neither officer told Plaintiff

to stay in his car or that he was being arrested or detained, but Hanna “illegally detained” Plaintiff

by locking him in a squad car and “later lied” about it by claiming he detained Plaintiff for not

following lawful orders. See ECF No. [1] at 4. Hanna handcuffed Plaintiff too tightly, which

caused wrist pain and visual red marks over the 30 minutes he was in Hanna’s squad car. See ECF

No. [1] at 4. Hanna also refused to identify himself or give his badge number despite Plaintiff

repeatedly asking him for that information; instead, Hanna “retaliat[ed] against” him for exercising

his rights by keeping him detained unlawfully.” See ECF No. [1] at 4–5.

About 25 minutes later, Defendant Askins arrived at the scene and spoke to Garcia and

Hanna privately. See ECF No. [1] at 5. Garcia and Hanna “confirmed” that Plaintiff had done

“nothing,” “had broken no laws,” and “was peaceful,” but Askins “continued to keep” him

detained in a squad car. See ECF No. [1] at 5. When Askins asked for Plaintiff’s “legal name,”

he asked “what crime he was suspected of committing and refused to” give it. See ECF No. [1] at

5. Askins replied, “Oh you want to be like that,” “slammed the squad car door” in Plaintiff’s face,

and “made the decision to keep” him “detained for longer as an unlawful retaliatory punishment.”

See ECF No. [1] at 5. Askins also took Plaintiff’s phone and told him, “You will comply.” See

ECF No. [1] at 5.

While Plaintiff was handcuffed in the squad car, Askins, Hanna, and Garcia “privately

conversed and conspired.” See ECF No. [1] at 5. After that conversation, Hanna and Garcia finally

identified themselves to Plaintiff. See ECF No. [1] at 5. Between 15 and 30 minutes after Askins

arrived, he released Plaintiff from the squad car. See ECF No. [1] at 5. But he “covered up each

of the officer[’s] misconduct by not allowing” Plaintiff to “file a complaint.” See ECF No. [1] at

5. Askins did so — and “further[ed]” the officers’ “conspiracy to violate” Plaintiff’s “civil rights”

— by falsely claiming he needed Plaintiff’s legal name to file a complaint, when “department

policy” permits “anonymous complaints.” See ECF No. [1] at 5. Askins then “falsified his police

report” by writing that Plaintiff “didn’t want to file a complaint even though” he has “video of

attempting to file a complaint.” See ECF No. [1] at 5.

Less than a week later, Plaintiff and Doe “filed Litigation Holds” demanding that “all

related records be retained and not destroyed.” See ECF No. [1] at 5. They also made Freedom

of Information Act (“FOIA”) requests for the officers’ body and dash camera videos. See ECF

No. [1] at 5. Officer Brittany Brown “originally” told them “she had several body camera and

dash videos,” but those videos later “conveniently ‘malfunctioned’ before” Plaintiff “could obtain

them. See ECF No. [1] at 5. “In furtherance of the officer’s conspiracy to violate” Plaintiff’s “civil

rights,” Brown and the Unknown FOIA Officer “aided in covering up the officer’s misconduct by

destroying video evidence.” See ECF No. [1] at 5. Hanna “also intentionally destroyed both his

dash camera and body worn camera to cover up police misconduct.” See ECF No. [1] at 5.

Finally, the Village of Islamorada and the Monroe County Sheriff’s Office have the

“following practices, policies and customs: arbitrary use of excessive force against civilians; a

code of silence in which police officers fail to report police misconduct; preparing false and

incomplete police reports, and/or not preparing police reports, to cover up police misconduct

including but not limited to unconstitutional searches and seizures; [f]alsely detaining, filing false

charges and pursuing baseless prosecutions in order to protect police officers from claims of

improper conduct and avoid liability; failing to adequately train, supervise and discipline police

officers in the categories and fields of police work addressed above; failing to adequately

investigate citizen complaints against police officers; and failing to adequately discipline police

officers for misconduct.” See ECF No. [1] at 6. “The actions of the officer Defendants . . . were

done pursuant to, and as a result of,” these “de facto practices, policies and customs,” which the

Village of Islamorada and the Monroe County Sheriff’s Office had “actual knowledge of.” See

ECF No. [1] at 6. The “municipal policy-makers of the Village of Islamorada and” the Monroe

County Sheriff’s Office “acted with deliberate indifference in maintaining, overlooking and

preserving” these “unconstitutional practices, policies and customs.” See ECF No. [1] at 6.

Plaintiff’s allegations are difficult to parse into legal claims, but throughout the Complaint

Plaintiff drops in many legal terms and phrases of art, including: “Excessive Force,” “Battery,”

“Assault,” “Unlawful Retaliation,” “Illegal Search of Vehicle,” “False Imprisonment,” “Failure to

Intervene,” “Unlawful Imprisonment,” “Retaliation,” “Conspiracy to violate Constitutional

Rights,” “Unreasonable/Illegal Search,” “Spoliation of Evidence,” “Destruction of Evidence,”

“Intentional Infliction of Emotional Distress,” and “Monell claim.” See ECF No. [1] at 4–6.

Plaintiff also asserts that the individual Defendants’ “misconduct” was “extreme,” “outrageous,”

and “undertaken with malice, willfulness, and reckless indifference” to his rights and that, as a

“proximate result of Defendants’ wrongful acts,” he “suffered damages, including severe

emotional distress and anguish.” See ECF No. [1] at 4–6. And that because the Village of

Islamorada and the Monroe County Sheriff’s Office “failed to act to remedy a pattern of abuse so

widespread it amounts to a custom or policy,” those entities are “the moving force behind

Plaintiff’s deprivation of rights.” See ECF No. [1] at 6.

II. LEGAL STANDARDS

Because Plaintiff has not paid the Court’s filing fee, the screening provisions of 28 U.S.C.

§ 1915(e) apply. See Fletcher, 2016 WL 11547296, at *1; Troville, 303 F.3d at 1260; Moon, 863

F.2d at 837. That statute requires the Court to dismiss his case if it is “frivolous or malicious,” 28

U.S.C. § 1915(e)(2)(i); “fails to state a claim on which relief may be granted,” id. § 1915(e)(2)(ii);

or “seeks monetary relief against a defendant who is immune from such relief,” id.

§ 1915(e)(2)(iii). The Court is mindful that “[p]ro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.” Hughes v. Lott,

350 F.3d 1157, 1160 (11th Cir. 2003). “Still, once a pro se IFP litigant is in court, he is subject to

the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon, 863

F.2d at 837.

A claim is frivolous if it “realistically has no better than a slight chance of success” or

“lacks an arguable basis” in law or “in fact, for example, [by] asserting fantastic facts.” Clark v.

State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 n.1 (11th Cir. 1990); see also Neitzke, 490

U.S. at 327–28 (explaining that under § 1915 a claim is frivolous if it is “based on an indisputably

meritless legal theory,” like when it asserts “claims against which it is clear that the defendants are

immune from suit and claims of infringement of a legal interest which clearly does not exist,” or

on “factual contentions” that “are clearly baseless,” like those that include “delusional scenarios”);

cf. Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (noting that “wildly implausible

allegations in the complaint should not be taken to be true”).

To state a claim for relief, a pleading “must contain” three substantive parts: (1) “a short

and plain statement of the grounds for the court’s jurisdiction,” (2) “a short and plain statement of

the claim showing that the pleader is entitled to relief,” and (3) “a demand for the relief sought.”

See Fed. R. Civ. P. 8(a). Along with that substance, a pleading must also conform to certain format

requirements. See Fed. R. Civ. P. 10. Relevant here, a complaint “must state its claims . . . in

numbered paragraphs, each limited as far as practicable to a single set of circumstances.” See Fed.

R. Civ. P. 10(b). Those substance and format requirements are aimed at ensuring that a complaint

contains “sufficient factual matter, accepted as true,” see Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009), to both “state a claim to relief that is plausible on its face” and “give the defendant fair

notice of what the claim is and the grounds upon which it rests,” see Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555, 570 (2007) (alteration adopted, quotation marks omitted).

“[D]istrict courts have the power and the duty to define the issues at the earliest stages of

litigation,” which includes the responsibility of dismissing or requiring a party to correct shotgun

pleadings. See Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th

Cir. 1998).4 The Eleventh Circuit has identified at least four different types of shotgun pleadings,

including complaints that fail to “separat[e] into a different count each cause of action or claim for

relief” and complaints that “assert[] multiple claims against multiple defendants without specifying

which of the defendants are responsible for which acts or omissions, or which of the defendants

the claim is brought against.” Weiland, 792 F.3d at 1323 (footnotes omitted). It has also

“condemned shotgun pleadings time and again” because they “exact an intolerable toll on the trial

court’s docket, lead to unnecessary and unchannelled discovery, and impose unwarranted expense

on the litigants, the court and the court’s parajudicial personnel and resources.” Jackson v. Bank

of Am., N.A., 898 F.3d 1348, 1356–57 (11th Cir. 2018) (citation omitted); Anderson v. Dist. Bd. of

Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996) (“Experience teaches that, unless

cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial

court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the

court’s ability to administer justice.”).

Given the havoc they wreak, the Eleventh Circuit has specifically instructed district courts

not to tolerate shotgun pleadings because “[t]olerating such behavior constitutes toleration of

obstruction of justice.” Jackson, 898 F.3d at 1357 (footnote omitted); see also Cramer v. Florida,

117 F.3d 1258, 1263 (11th Cir. 1997) (“[S]hotgun complaints . . . are altogether unacceptable.”).

4 A shotgun pleading is one that “fail[s] 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.”

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015); see also Sledge v.

Goodyear Dunlop Tires N. Am., Ltd., 275 F.3d 1014, 1018 n.8 (11th Cir. 2001) (“The failure of the plaintiff

to identify his claims with sufficient clarity to enable the defendant to frame a responsi[ve] pleading

constitutes shotgun pleading.”).

It has made clear that a district court that receives a shotgun pleading, at minimum, “must intervene

sua sponte and order a repleader.” See Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001),

abrogated on other grounds by, Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008). And

if the claims of a complaint “are so poorly pleaded that” it is “virtually impossible to know which

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

(emphasis and quotation marks omitted), a district court “retains authority to dismiss a shotgun

pleading on that basis alone,” see Jackson, 898 F.3d at 1357.

“Capacity to sue or be sued is determined . . . for an individual who is not acting in a

representative capacity, by the law of the individual’s domicile.” Fed. R. Civ. P. 17(b)(1). For

parties who are not individuals acting in a representative capacity and that are not corporations,

see Fed. R. Civ. P. 17(b)(1)–(2), capacity to sue or be sued is determined “by the law of the state

where the court is located,” see Fed. R. Civ. P. 17(b)(3). Under Florida law, counties,

municipalities, and their officers are not absolutely immune from suit.5 See, e.g., Brown v. Jenne,

941 So. 2d 447, 451 (Fla. 4th DCA 2006) (“[C]ounties and thus their employees may not claim

sovereign immunity to a section 1983 claim.”); S. All. Corp. v. City of Winter Haven, 505 So. 2d

489, 493 (Fla. 2d DCA 1987) (“[U]nder § 1983, a municipality has no immunity from damages

5 Instead, a plaintiff can “recover damages in tort for money damages against” counties and municipalities

“for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission

of any employee of the agency or subdivision while acting within the scope of the employee’s office or

employment under circumstances in which the state or such agency or subdivision, if a private person,

would be liable to the claimant.” Fla. Stat. § 768.28(1), (2); see also Cauley v. City of Jacksonville, 403

So. 2d 379, 387 (Fla. 1981) (noting that “section 768.28 imposes a $50,000/$100,000 ceiling on tort

recovery against” counties and municipalities). And a plaintiff can recover from a county or municipal law

enforcement officer if the officer “acted in bad faith or with malicious purpose or in a manner exhibiting

wanton and willful disregard of human rights, safety, or property.” See Fla. Stat. § 768.28(9)(a). Similarly,

under federal law, counties and municipalities are “responsible under § 1983” for monetary damages when

“execution of [their] policy or custom . . . inflicts the injury” to the plaintiff, see Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 694 (1978), and officers sued in their individual capacities are

liable under § 1983 for monetary damages when their conduct “violate[s] clearly established statutory or

constitutional rights of which a reasonable person would have known,” see Pearson v. Callahan, 555 U.S.

223, 231 (2009) (quotation marks omitted).

flowing from its unconstitutional acts and may not assert the good faith of its officers or agents as

a defense to liability under § 1983.” (citation omitted)). Officers sued in their official capacities,

however, cannot be personally liable for money damages because “a suit against a defendant in his

official capacity is, in actuality, a suit against the governmental entity which employs him” and

“local government units can be sued directly.” Gualtieri v. Bogle, 343 So. 3d 1267, 1271 (Fla. 2d

DCA 2022) (alteration adopted, quotation marks omitted); see also Fla. Stat. § 768.28(9)(a).

III. DISCUSSION

Section 1915(e)(2) requires the Court to dismiss Plaintiff’s case if it is “frivolous or

malicious,” 28 U.S.C. § 1915(e)(2)(i); “fails to state a claim on which relief may be granted,” id.

§ 1915(e)(2)(ii); or “seeks monetary relief against a defendant who is immune from such relief,”

id. § 1915(e)(2)(iii).

As an initial matter, Plaintiff’s lawsuit does not seek monetary relief against a defendant

who is immune from that relief. Defendants are a municipality, Fla. Dep’t of Revenue v. City of

Gainesville, 918 So. 2d 250, 269 n.14 (Fla. 2005) (noting the Village of Islamorada is a

municipality), a county entity, see Beard v. Hambrick, 396 So. 2d 708, 711 (Fla. 1981) (finding a

sheriff is a county official); Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092,

1115 (11th Cir. 2005) (noting when the “defendant is the county sheriff, the suit is effectively an

action against the governmental entity he represents—in this case, Monroe County”), and

municipal or county officers. None of those entities or individuals is absolutely immune from suit.

See Brown, 941 So. 2d at 451; S. All. Corp., 505 So. 2d at 493; Gualtieri, 343 So. 3d at 1271; Fla.

Stat. § 768.28 (1), (2), (9)(a). As a result, Plaintiff’s lawsuit is not subject to dismissal under

§ 1915(e)(2)(iii).

Nor is Plaintiff’s lawsuit frivolous. It is not “based on an indisputably meritless legal

theory” because, as just explained, Plaintiff does not assert claims against which Defendants are

absolutely immune from suit. See Neitzke, 490 U.S. at 327. He also does not assert “claims of

infringement of a legal interest which clearly does not exist.” See id. Regardless of whether

Plaintiff can prove the claims he asserts—or even state a claim as required under Rule 12(b)(6) as

discussed below—the legal interests he describes certainly exist. See ECF No. [1] at 4–6 (liberally

construed, describing rights to be free from excessive force, retaliation, illegal search, false

imprisonment, and battery). Finally, it is not based on “factual contentions” that “are clearly

baseless.” See Neitzke, 490 U.S. at 327. The facts Plaintiff alleges against Defendants — that

they, among other things, aimed a gun at him while he was unarmed and peaceful, detained him

in tight handcuffs though he had not committed a crime, and destroyed video evidence that would

have proven his claims — are not “delusional,” id. at 328; “fantastic,” Clark, 915 F.2d at 640 n.1;

or “wildly implausible,” Miller, 541 F.3d at 1100. Thus, Plaintiff’s lawsuit is likewise not subject

to dismissal under § 1915(e)(2)(i).

Where Plaintiff’s Complaint falters, however, is under § 1915(e)(2)(ii), which requires him

to state a claim on which relief may be granted. Every complaint, whether filed by a pro se party

or an attorney, must comply with the Federal Rules of Civil Procedure. See Moon, 863 F.2d at

837. That means Plaintiff’s Complaint must conform with Rule 8, which requires him to give a

short and plain statement of his claims showing he is entitled to relief, see Fed. R. Civ. P. 8(a), and

with Rule 10, which requires him to state those claims in a series of numbered paragraphs and to

limit each paragraph to a single set of circumstances, see Fed. R. Civ. P. 10(b). He has not done

so.

Instead, Plaintiff’s Complaint is one long narrative spanning three pages and several time

periods. See ECF No. [1] at 4–6. While the Complaint is separated into paragraphs, they are

neither numbered nor limited to single set of circumstances — they interweave details about the

traffic stop, a later FOIA request, the alleged motivations and mindsets of the individual

Defendants, the alleged policies and practices of the institutional Defendants, and Plaintiff’s

alleged resultant injuries. See ECF No. [1] at 4–6. And while the Complaint uses legal buzzwords

that could be causes of action, it does not sufficiently link those potential causes of action to a

particular Defendant or Defendants. See ECF No. [1] at 4–6. In those ways, the Complaint is a

shotgun pleading twice over: it fails to separate into a different count each cause of action or claim

for relief, and it asserts multiple claims against multiple Defendants without specifying which

Defendant or Defendants each claim is brought against. See Weiland, 792 F.3d at 1323.

Because Plaintiff does not properly separate and direct his claims, Defendants do not have

fair notice of the claims against them. See Twombly, 550 U.S. at 555, 570. This is a problem

particularly as it relates to the officer Defendants — Plaintiff does not specify whether he is suing

them in their official or individual capacities, see ECF No. [1] at 4–6, so they do not know whether

they might be personally liable for any money judgment rendered against them or not, see Pearson,

555 U.S. 223 at 231; Gualtieri, 343 So. 3d at 1271; Fla. Stat. § 768.28(9)(a). Plaintiff also does

not specify whether he brings his claims under federal or state law, see ECF No. [1] at 4–6, a detail

that affects both the elements he must prove to obtain relief and the relief to which he may be

entitled, see Fla. Stat. § 768.28(1), (2), 9(a); Monell, 436 U.S. at 694; Pearson, 555 U.S. at 231;

Cauley, 403 So. 2d at 387.

Although the Court must read Plaintiff’s pro se Complaint liberally, see Hughes, 350 F.3d

at 1160, the Court is not required to serve as Plaintiff’s “lawyer in rewriting” it, see Jackson, 898

F.3d at 1357. Indeed, the Eleventh Circuit has made abundantly clear district courts must not

tolerate shotgun pleadings and instead must require the plaintiff to correct the pleading’s

deficiencies, such as by dismissing it without prejudice, see id., or by “order[ing] a repleader,” see

Byrne, 261 F.3d at 1133. These actions both fulfill the district court’s “duty to define the issues at

the earliest stages of litigation,” see Johnson Enters., 162 F.3d at 1290, and ensure discovery is

controlled and the docket is manageable, see Anderson, 77 F.3d at 367.

In sum, Plaintiff’s Complaint should be dismissed without prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(ii) for failing to state a claim on which relief may be granted.

IV. CONCLUSION

For the above reasons, I respectfully RECOMMEND that:

1. Plaintiff’s pro se complaint, ECF No. [1], be DISMISSED WITHOUT PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(ii).

2. Plaintiff’s Motion for Leave to Proceed in forma pauperis, ECF No. [3], be DENIED

AS MOOT.

3. Plaintiff’s Motion for Leave to Proceed under Pseudonym and for a Protective Order,

ECF No. [4], be DENIED AS MOOT.

4. Plaintiff’s Motion for Referral to Volunteer Attorney Program, ECF No. [5], be

DENIED AS MOOT.

5. Plaintiff’s Motion for Update, ECF No. [8], be DENIED AS MOOT.

Pursuant to Local Magistrate Rule 4(b), the parties have fourteen (14) days from the date of

being served with a copy of this Report and Recommendation within which to file written objections,

if any, with the Honorable K. Michael Moore, United States District Judge. Failure to timely file

objections shall bar the parties from a de novo determination by the District Judge of an issue covered

in the Report and shall bar the parties from attacking on appeal unobjected-to factual and legal

conclusions contained in this Report, except on grounds of plain error if necessary in the interest of

justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885

CASE NO. 24-CV-10057-MOORE/Elfenbein

F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.

RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on August 13, 2024.

, fo a

I) ly —

MARTY FUL@UEIRA ELFENBEIN

UNITED STATES MAGISTRATE JUDGE

ce:

All Counsel of Record

Benjamin Boe

2714 Dougall Road

Joliet, IL 60433

PROSE

14