The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MATTHEW D PERKINS,
Plaintiff,
v.
Case No. 6:24-cv-1109-CEM-RMN
KYLE N BYWATER; and
KISSIMMEE POLICE
DEPARTMENT,
Defendants.
REPORT AND RECOMMENDATION
Matthew D. Perkins, proceeding pro se, has filed a civil complaint
against Officer Kyle N. Bywater and the Kissimmee Police Department
(Dkt. 1), and a Motion to Process in forma pauperis (“IFP Motion,” Dkt. 2).
Considering the standards the Court must apply and the allegations in the
Complaint, I respectfully recommend denying the IFP Motion and dismissing
the Complaint with leave to file an amended complaint.
I. LEGAL STANDARDS
While reviewing the allegations in the Complaint and the IFP Motion,
the Court must consider the standards below.
A. Subject Matter Jurisdiction Standards
Federal courts have an independent duty to determine whether subject
matter jurisdiction exists. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). A
federal court may have jurisdiction under a specific statutory grant, federal
question jurisdiction under 28 U.S.C. § 1331, or diversity jurisdiction under 28
U.S.C. § 1332(a). Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th
Cir. 1997). Federal question jurisdiction under 28 U.S.C. § 1331 “aris[es] under
the Constitution, laws, or treaties of the United States.” Federal jurisdiction
pursuant to 28 U.S.C. § 1332 exists only when there is complete diversity
between the plaintiffs and defendants. Owen Equip. & Recreation Co. v.
Kroger, 437 U.S. 365, 373 (1978). To achieve “complete diversity,” no plaintiff
may be a citizen of the same state as any defendant. Id.
B. Pleading Standards
A complaint must state a claim for relief that includes (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[.]” Fed. R. Civ. P. 8(a). Each allegation must
be “simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
A complaint must allege facts, accepted as true, that state a claim “that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This
standard asks for less than a probability but “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id.
Complaints that fail to comply with procedural rules “are often
disparagingly referred to as ‘shotgun pleadings.’” Weiland v. Palm Beach Cnty.
Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). Examples of shotgun
pleadings include a complaint “replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of action” and a complaint
with “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.” Barmapov v. Amuial, 986 F.3d 1321,
1324–25 (11th Cir. 2021) (alteration in original). When faced with a shotgun
pleading, dismissal may be appropriate. Weiland, 792 F.3d at 1320.
C. Liberal Construction Standards
A court must construe a pleading drafted by a pro se litigant liberally
and hold the pleading to a less stringent standard than one drafted by a lawyer.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Liberal
construction does not mean forgiving noncompliance with procedural rules.
McNeil v. United States, 508 U.S. 106, 113 (1993).
D. In Forma Pauperis Standards
A court may authorize a plaintiff to initiate a lawsuit without prepaying
fees. 28 U.S.C. § 1915(a)(1). While a litigant need not show he is “absolutely
destitute,” he must show an inability “to pay for the court fees and costs, and
to support and provide necessities for himself and his dependents.” Martinez
v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
That said, the United States Supreme Court has observed that “a litigant
whose filing fees and court costs are assumed by the public . . . lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). Thus, before a plaintiff
may proceed in forma pauperis, a court must review the complaint to
determine whether it is “frivolous or malicious,” “fails to state a claim upon
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). If the complaint is
deficient, the Court is required to dismiss the lawsuit. Neitzke, 490 U.S. at 324.
II. ANALYSIS
I consider first if Plaintiff qualifies to proceed in forma pauperis. I then
consider the adequacy of Plaintiff’s Complaint.
A. Financial Information
When considering an IFP Motion, the Court must assess whether the
statements in the IFP application or accompanying declaration satisfy the
requirement of poverty. Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307
(11th Cir. 2004) (quoting Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976)).
The Court does this by comparing the applicant’s assets, income, and
liabilities. See, e.g., id. at 1307–08 (noting that “the district court was unable
to compare Martinez’s assets with her liabilities in order to determine whether
she satisfied the poverty requirement”). Based on the information provided in
the application, the Court determines that Plaintiff is unable to pay the costs
of this action pursuant to 28 U.S.C. § 1915(a). See Dkt. 2.
B. The Adequacy of the Complaint
Plaintiff brings claims against Defendants for offenses allegedly
committed during a traffic stop. Plaintiff alleges Defendant Bywater pulled
him over, ticketed him, and arrested him for improper display of plates, and
refusal to show identification. Dkt. 1 at 4. He also contends Defendants
violated 18 U.S.C. §§ 241 and 242, and the First, Fourth, and Sixth
Amendments of the United States Constitution. Id.; Dkt. 1-1. I consider each
set of claims in turn.
i. 18 U.S.C. §§ 241 and 242 Claims
Plaintiff first attempts to bring claims against Defendants pursuant to
18 U.S.C. § 241 and 18 U.S.C. § 242. These are criminal statutes and do not
give rise to a private cause of action. See Holt v. Baker, 710 F. App’x 422, 424
(11th Cir. 2017) (quoting Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir.
1960))). Plaintiff therefore cannot state a claim based on an alleged violation
of these statutes.
ii. First, Fourth, and Sixth Amendments to the United
States Constitution Claims
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that
(1) the defendant deprived him of a right secured under the United States
Constitution or federal law and (2) such deprivation occurred under color of
state law.” Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam) (citations omitted). “More than conclusory and vague allegations are
required to state a cause of action under 42 U.S.C. § 1983.” Hannah v. Union
Corr. Inst., No. 3:12-cv-436, 2012 WL 1413163, at *1 (M.D. Fla. Apr. 23, 2012)
(citing L.S.T., Inc., v. Crow, 49 F.3d 679, 684 (11th Cir. 1995) (per curiam);
Fullman v. Graddick, 739 F.2d 553, 556–57 (11th Cir. 1984)). “[I]n the absence
of a federal constitutional deprivation or violation of a federal right, Plaintiff
cannot sustain a cause of action against the Defendant under 42 U.S.C.
§ 1983.” Id.
A Section 1983 claim must also be well-pled, and so “[v]ague and
conclusory allegations lacking factual support cannot support a viable § 1983
cause of action.” Cedeno v. Gee, No. 8:10-cv-484, 2010 WL 1417273 (M.D. Fla.
Apr. 7, 2010). Though Plaintiff tries to allege violations of the First, Fourth,
and Sixth Amendments by Defendant Bywater—who, as a police officer, acts
under the color of state law—Plaintiff does not provide sufficient factual
support to establish how those constitutional rights were violated.
The Fourth Amendment guarantees that all individuals “will be secure
in their person . . . against unreasonable seizures.” U.S. Const. amend. IV. “A
traffic stop is a seizure within the meaning of the Fourth Amendment.”
Williams v. Miami-Dade Police Dep’t, 297 Fed. App’x 941, 944 (11th Cir. 2008)
(unpublished opinion) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). A
claim for false arrest falls within the rights protected by the Fourth
Amendment’s guarantee against unreasonable seizure and is cognizable under
Section 1983. See Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.1996) (“A
warrantless arrest without probable cause violates the Fourth Amendment
and forms a basis for a section 1983 claim.”) (citation omitted).
But this is so only if the individual is arrested without probable cause.
See Brescher v. Von Stein, 904 F.2d 572, 578 (11th Cir. 1990). Probable cause
is a nontechnical inquiry that deals with the factual and practical
considerations of everyday life on which reasonable and prudent people act.
Maryland v. Pringle, 540 U.S. 366, 370 (2003). It is a fluid concept that turns
on the assessment of probabilities in a particular context. Id. at 370–71.
Plaintiff has not alleged facts that, if taken as true, would establish that
Defendant Bywater did not have probable cause for the arrest. Plaintiff alleges
that he was pulled over, ticketed, and arrested for improper display of plates
and refusal to show identification. Dkt. 1 at 4. He does not provide factual
allegations that establish or suggest the traffic stop and his arrest were
improper. See id. He contends only that he did not have to show identification
and that his arrest was illegal. Id. More is needed to establish that Defendant
Bywater did not have probable cause for Plaintiff’s arrest.
The Eleventh Circuit recently addressed similar allegations in Johnson
v. Nocco, 91 F.4th 1114 (11th Cir. 2024). There, a Florida deputy sheriff
stopped a vehicle towing a trailer because the trailer’s license tag was
obscured. Id. at 1118 & fn.5 (citing Fla. Stat. § 316.605(1)). The driver turned
over his driver’s license and the vehicle’s registration when asked, but
Johnson, a passenger, refused to identify himself or provide identification. Id.
The officer arrested Johnson for resisting without violence. Id. Johnson sued
the officer in federal court, who then sought dismissal of Johnson’s claims
based on qualified immunity. Id. at 1118–19. The district court found that the
deputy was not entitled to qualify immunity. Id. at 1119–20.
On appeal, the Court concluded that the deputy lawfully stopped the
vehicle and detained its driver and passengers pending the deputy’s inquiry
into the vehicular violation. Johnson, 91 F.4th at 1121. Given this, the court
reasoned the deputy had a two-fold mission during the stop: (1) address the
traffic violation; and (2) attend to related safety concerns. Id. The Court then
explained that the deputy could lawfully make ordinary inquiries incident to a
traffic stop, such as requesting the driver produce his driver’s license and the
vehicle’s registration, for as long as is reasonably necessary without violating
the Fourth Amendment. Id. at 1121–22 (citing and quoting Rodriguez v. United
States, 575 U.S. 348, 355 (2015)).
Like the stop in Johnson, Defendant Bywater allegedly stopped
Plaintiff’s vehicle after observing a vehicular violation. And like the deputy in
Johnson, Defendant Bywater allegedly asked Plaintiff to produce his driver’s
license. Unlike the driver in Johnson, however, Plaintiff refused the officer’s
request. Because Defendant Bywater can make ordinary inquiries incident to
a lawful traffic stop, his request to Plaintiff does not, standing alone, violate
the Fourth Amendment. Johnson, 91 F.4th at 1121–22. Thus, absent more
detailed factual allegations about the stop and arrest, Plaintiff has failed to
state a Fourth Amendment claim under section 1983 based on the traffic stop
or his arrest.
So too for Plaintiff’s First and Sixth Amendment claims. The First
Amendment provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.” U.S.
Const. amend. I. Plaintiff has not identified which clause of the First
Amendment Defendant Bywater allegedly violated or provided any factual
allegations relating to the First Amendment. Thus, Plaintiff has failed to state
a claim under the First Amendment.
As to the Sixth Amendment, it provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
U.S. Const. amend. VI. Plaintiff has not identified which clause of the Sixth
Amendment Defendant Bywater allegedly violated or provided any factual
allegations relating to the Sixth Amendment. Thus, Plaintiff has failed to state
a claim under the Sixth Amendment.
In sum, Plaintiff has failed to state a claim for violations of the First,
Fourth, and Sixth Amendments under section 1983 based on the traffic stop
conducted by Defendant Bywater and Plaintiff’s subsequent arrest. As such, I
respectfully recommend the Complaint be dismissed without prejudice and
Plaintiff be given leave to amend.
III. CONCLUSION
Accordingly, I respectfully RECOMMEND:
1. Plaintiff’s Motion to Proceed in forma pauperis (Dkt. 2) be
DENIED;
2. Plaintiffs Complaint (Dkt.1) be DISMISSED without
prejudice; and
3. Plaintiff be GRANTED leave to file an amended complaint.
NOTICE TO PARTIES
“Within 14 days after being served with a copy of [a report and
recommendation], a party may serve and file specific written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “A party
may respond to another party’s objections within 14 days after being served
with a copy.” Jd. A party’s failure to serve and file specific objections to the
proposed findings and recommendations alters review by the district judge and
the United States Court of Appeals for the Eleventh Circuit, including waiver
of the right to challenge anything to which no specific objection was made. See
Fed. R. Civ. P. 72(b)(8); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1.
Entered in Orlando, Florida, on August 19, 2024.
edb yng
ROBERT M. NORWAY
United States Magistrate Judge
Copies to:
Hon. Carlos E. Mendoza
Matthew D Perkins
605 Jersey Avenue
Saint Cloud, Florida 34769
-1ll-