AWOLOWO v. CARLISLE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

ALAGBARA A. AWOLOWO,

Plaintiff,

v. Case No. 1:24cv170-MW-HTC

KEITH CARLISLE, et al.,

Defendants.

__________________________/

ORDER and

REPORT AND RECOMMENDATION

Plaintiff Alagbara A. Awolowo, proceeding pro se and in forma pauperis, has

moved to file a second amended complaint, Doc. 7, and filed a copy of the proposed

second amended complaint, Doc. 8. Upon consideration, Awolowo’s motion to

amend will be granted. However, the undersigned finds the second amended

complaint should be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) because it

fails to state a claim on which relief may be granted, and Awolowo has failed to cure

the deficiencies identified in his prior complaints through amendment.

I. Procedural History

Awolowo initiated this action on October 4, 2024, by filing a civil rights

complaint under 42 U.S.C. § 1983 against Gainesville Police Department (“GPD”)

Officers Kelly Gaudet and Keith Carlisle relating to a traffic accident and his

subsequent arrest. Doc. 1. The Court screened the complaint under 28 U.S.C.

§ 1915 and, on October 21, 2024, issued a comprehensive 16-page order that

described the legal standards applicable to Awolowo’s claims and explained to him

that the complaint was deficient because it: (1) did not comply with the Federal Rules

of Civil Procedure, and (2) failed to state a claim on which relief may be granted.

Doc. 4. Among other things, the Court informed Awolowo that suing the GPD

officers in their official capacities was effectively a suit against the City of

Gainesville, but he had failed to state a claim against the City because he did not

allege a custom or policy of the City led to a violation of his constitutional rights.

Id. at 5. The Court ordered Awolowo to, within twenty-one days, file either a notice

of voluntary dismissal or an amended complaint that corrected the identified

deficiencies.

On November 14, 2024, Awolowo submitted an amended complaint. Doc. 5.

Despite the information provided in the October 21 Order, Awolowo once again

chose to sue the GPD officers in only their official capacities. Id. at 3. Accordingly,

on November 27, 2024, the undersigned issued a report recommending that

Awolowo’s claims be dismissed because he had not alleged facts to support a

municipal liability claim. Doc. 6.

On December 10, 2024, Awolowo filed a motion to file a second amended

complaint, Doc. 7, as well as a copy of the proposed second amended complaint,

Doc. 8. Awolowo asserts he erred by not suing the GPD officers in their individual

capacities and wants to add allegations relating to the City of Gainesville’s policies

or customs. Doc. 7. Thus, the undersigned vacated the November 27 Report and

Recommendation to consider Awolowo’s motion to amend. Doc. 9.

II. Motion to File a Second Amended Complaint

The Court will grant Awolowo’s motion to file a second amended complaint

because he is allowed to amend once as a matter of course under Rule 15. Rule 15

states “[a] party may amend its pleading once as a matter of course no later than: (A)

21 days after serving it, or (B) if the pleading is one to which a responsive pleading

is required, 21 days after service of a responsive pleading or 21 days after service of

a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1).

“In all other cases, a party may amend its pleading only with the opposing party’s

written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

Here, although Awolowo filed a first amended complaint on November 14,

2024, he did so at the direction of the Court, and some courts in this circuit have held

that a plaintiff does not lose his right under Rule 15 to amend his complaint as a

matter of course by filing an amended complaint ordered by the court. See Phillips

v. Scully, 2022 WL 19571320, at *3 (S.D. Ala. Dec. 20, 2022), report and

recommendation adopted, 2023 WL 3044606 (S.D. Ala. Apr. 21, 2023) (“Although

Phillips has already amended his complaint once, he did so at the Court’s direction.

… Consequently, he was not barred from filing a second amended complaint as a

matter of course.”); Renasant Bank, Inc. v. Smithgall, 2016 WL 164311, at *2 (N.D.

Ga. Jan. 13, 2016) (“Because the First Amended Complaint was not filed by the

Plaintiff as ‘a matter of course’ but upon the Order of the Court, the Court holds that

Plaintiff’s court-ordered First Amended Complaint did not qualify as Plaintiff’s

amendment allowed as a matter of course under Fed. R. Civ. P. 15.”). Thus, the

Court will grant Awolowo’s motion to amend and screen the second amended

complaint.

III. Second Amended Complaint

Awolowo’s second amended complaint names the City of Gainesville and

Officers Gaudet and Carlisle as Defendants. Doc. 8 at 1-3. Gaudet and Carlisle are

sued in both their individual and official capacities. Id. at 2. The second amended

complaint sets forth the following factual allegations.

Around 3:00 p.m. on October 31, 2020, Awolowo was involved in a car

accident in Gainesville, Florida. He “was not physically or mentally well or alert”

because he “was experiencing an adverse reaction to a prescribed medication,”

which caused “extreme heart palpitations,” and he suffered “injury from the

accident.” Awolowo tried unsuccessfully to get help from bystanders. He had

trouble breathing and fell to the ground, with his face covered in powder from the

airbag.

When Awolowo regained consciousness, he approached Officer Gaudet, told

her that he was the driver of the van involved in the accident, and asked her for help

and to take him to the hospital. Gaudet, however, told Awolowo to leave the scene.

Awolowo “grabbed the door of the van and tried to get into the van,” stating, “please

this is my van,” and “I can’t breathe.” “Weak and becoming increasingly confused,”

Awolowo complied with Gaudet’s command and “stumbled” across the street.

However, Awolowo fell to the ground after his “condition worsened and [he] became

delusional.”

Eventually, Awolowo stood up, took off his shirt, and tried “to get the attention

and help from passing cars before [he] felt [himself] drift in and out of a surreal

mental state[.]” Awolowo then encountered Officer Carlisle, who was picking up

money Awolowo had dropped in the street. Awolowo, who was now naked, told

Carlisle he had been robbed and raped. Carlisle asked, “where are you coming from,

and did you hit a car?”

Awolowo “continued to be incoherent” as Carlisle spoke with and questioned

him. Awolowo asked Carlisle “to please call someone” and Carlisle said he would

do so. Awolowo felt lightheaded, so he sat down, “trying to clear [his] head and

figure out if these guys were friend or foe.”

A second GPD officer arrived. Awolowo claims he “knew something was

going to happen” because he “saw it in [Carlisle’s] eyes.” Awolowo yelled “you all

gone kill me” and the next thing he remembers was that he was bleeding from his

head, had pain in his shoulder and legs, and had bruised ribs. He claims this was the

“result of the assault on [his] person by the police officers.” At some unspecified

point, dispatch informed Carlisle that Awolowo was the driver of the van involved

in the accident and asking for help; Carlisle responded, “ignore the witness, he is

messing it up for us.”

Awolowo also maintains Carlisle “decided to change the status of the accident

from a simple accident to a higher level” and classified Awolowo as a criminal rather

than a victim “after finding paperwork in [his] briefcase revealing that [he] was a

part of an active and well-known community based investigation of police

misconduct by a hand full of” GPD officers.

Awolowo claims that as he “stood buck naked … begging for help,” he was

arrested and charged with battery on a police officer, resisting arrest, theft, robbery,

reckless endangerment, wielding a firearm, hit and run, failing to help an injured

person after an accident, refusing to obey a command, and making an illegal lane

change. Awolowo asserts the GPD officers did not address his need for medical care,

and instead investigated the accident as a crime and focused their “efforts on finding

the ownership of the electronic equipment in [his] vehicle.” Awolowo also asserts

Officer Carlisle called someone and asked if Awolowo could be charged with

burglary.

Based on the foregoing, Awolowo alleges the Defendants violated his

constitutional rights. As a result, he seeks damages and injunctive relief. Doc. 8 at

15-17.

IV. Legal Standard

Because Awolowo is proceeding in forma pauperis, the Court must dismiss

his second amended complaint, or any portion thereof, if it determines it 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. See 28 U.S.C.

§ 1915(e)(2)(B). To state a claim, Awolowo must plead factual content which

allows the Court to draw the reasonable inference the Defendants are liable for the

misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must

liberally construe Awolowo’s pro se allegations, Haines v. Kerner, 404 U.S. 519,

520-21 (1972), but conclusory allegations and legal conclusions couched as factual

allegations are not entitled to a presumption of truth. Iqbal, 556 U.S. at 681;

Papasan v. Allain, 478 U.S. 265, 286 (1986).

V. Discussion

The undersigned finds Awolowo’s second amended complaint fails to state

any viable claim for relief. Indeed, as explained below, the claims continue to suffer

from the same deficiencies the Court identified in its October 21 Order. See Doc. 4.

Because Awolowo has been given multiple opportunities to state a claim and failed

to do so, this case should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii).

A. Claims Against Gaudet and Carlisle

Awolowo claims Gaudet and Carlisle violated his constitutional rights in

several ways, including by (1) maliciously prosecuting or falsely arresting him, (2)

engaging in a conspiracy to obstruct justice, (3) giving false testimony at trial, (4)

failing to provide him with medical attention, and (5) using excessive force against

him.1 For the reasons set forth below, Awolowo has failed to allege facts sufficient

to support any of these claims.

1 Awolowo also alleges Gaudet and Carlisle violated that part of Article 1, Section 17 of the Florida

Constitution prohibiting cruel and unusual punishment. Doc. 8 at 15. However, the prohibition

on cruel and unusual punishment is not applicable to Awolowo’s allegations because he was not

convicted at the time he interacted with the officers. See Cottrell v. Caldwell, 85 F.3d 1480, 1490

(11th Cir. 1996) (Eighth Amendment’s Cruel and Unusual Punishment Clause applies to claims

of mistreatment by convicted prisoners). Also, Awolowo has not identified an enabling statute

which allows him to seek damages for violations of the Florida Constitution. See Youngblood v.

Fla. Dep’t of Health, 224 F. App’x 909, 913 n.4 (11th Cir. 2007) (noting district court correctly

dismissed plaintiffs’ claims under the Florida Constitution to the extent they sought monetary

damages because plaintiffs cited no authority creating a civil cause of action for monetary relief)

(citation omitted); Cannon v. City of Sarasota, 2010 WL 962934, at *4 (M.D. Fla. Mar. 16, 2010)

(“The Florida Supreme Court has held that a claim for monetary damages cannot be maintained

for alleged violations of the Florida Constitution.”) (citations omitted). Similarly, Awolowo’s

claim that his constitutional rights were violated when the officers violated GPD policies fails as

a matter of law. See Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000) (“failure to follow

procedures does not, by itself, rise to the level of deliberate indifference because doing so is at

most a form of negligence”).

1. Awolowo cannot state a malicious prosecution or false arrest claim.2

Awolowo cannot state a claim for malicious prosecution or false arrest against

either Carlisle or Gaudet. First, to succeed on these claims, Awolowo must show the

officers arrested him without probable cause. See McCloud v. Fortune, 262 F. App’x

947, 949 (11th Cir. 2008) (stating that to establish a federal malicious prosecution

claim under § 1983 a plaintiff in Florida must prove, among other things, “there was

an absence of probable cause for the original proceeding”); Rankin v. Evans, 133

F.3d 1425, 1436 (11th Cir. 1998) (noting plaintiffs have the burden of demonstrating

the absence of probable cause to succeed on a false arrest claim under § 1983).

However, Awolowo cannot make such a showing because he was convicted of

charges stemming from the October 2020 accident.3 See Hall v. Smith, 170 F. App’x

105, 107 (11th Cir. 2006) (“[T]he judicially-recognized fact that Hall subsequently

2 Whether Awolowo was arrested at the scene of the accident without a warrant or later pursuant

to a warrant determines whether his claim is characterized as a malicious prosecution claim or a

false arrest claim. See Colon v. Smith, 2024 WL 3898011, at *7 (11th Cir. 2024) (“While Colon’s

warrantless arrest—a seizure without legal process—would support a false arrest claim, it cannot

support his malicious prosecution claims. … Instead, a malicious prosecution claim must be

premised on a seizure pursuant to legal process, such as a warrant-based arrest or a seizure

‘following an arraignment, indictment, or probable-cause hearing.’”) (citations omitted). But in

either scenario, Awolowo has failed to state a claim.

3 The undersigned takes judicial notice of the state court records in Awolowo’s criminal case. See

State v. Awolowo, Alachua Cnty. Circuit Court Case No. 2020 CF 3434. The records can be

viewed online at https://www.alachuaclerk.org/court_records/index.cfm?section=casehist. After

a jury trial, Awolowo was acquitted on two charges—leaving the scene of an accident involving

injury and willful or wanton reckless driving. But the jury found him guilty of resisting arrest

without violence and leaving the scene of an accident with property damage. See Awolowo v.

State, 389 So. 3d 788, 792 (Fla. 1st DCA 2024). Those records do not indicate Awolowo was

charged with theft, robbery, or wielding a firearm, as he claims.

pled no contest and was adjudged guilty demonstrates his detention was not

unreasonable or unlawful.”); see also Bristol v. Butts Cnty., Ga., 2024 WL 3558737,

at *9 (M.D. Ga. July 24, 2024) (“[A] conviction—whether by a jury or admission of

guilt—is a pretty strong (if not foolproof) indicator of probable cause.”).

Second, because Awolowo was convicted of charges stemming from the

October 2020 accident, any malicious prosecution or false arrest claim is barred by

Heck v. Humphrey, 512 U.S. 477, (1994).4 In Heck, the Supreme Court held:

[T]o recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a § 1983 plaintiff must

prove that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question

by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. §

2254.

512 U.S. at 486-87. Thus, a plaintiff may not obtain damages under

§ 1983 if a judgment in his favor “would necessarily imply the invalidity of his

conviction or sentence.” Id. at 487.

4 Although in Spencer v. Kemna, 523 U.S. 1, 21 (1998), Justice Souter suggested in a concurring

opinion an exception to the Heck bar may apply when a plaintiff is no longer in custody and habeas

relief is unavailable, “neither the Supreme Court nor [the Eleventh Circuit] has applied this

exception in a published opinion.” Butler v. Georgia, 2022 WL 17484910, at *4 (11th Cir. Dec.

7, 2022). And the Eleventh Circuit has applied Heck to plaintiffs who were not in custody in

several unpublished opinions. See, e.g., Reilly v. Herrera, 622 F. App’x 832 (11th Cir. 2015);

Vickers v. Donahue, 137 F. App’x 285, 289-90 (11th Cir. 2005). Thus, the undersigned finds Heck

is applicable to Awolowo’s claims.

Here, if Awolowo succeeded on a claim that Carlisle and Gaudet arrested him

without probable cause, it would undermine the validity of his convictions for

resisting arrest without violence and leaving the scene of an accident with property

damage.5 See Hoffman v. Beseler, 760 F. App’x 775, 778-79 (11th Cir. 2019)

(concluding that because plaintiff was convicted of a criminal offense, and she had

not shown that conviction was invalidated, Heck barred her malicious prosecution

and false arrest claims); Quinlan v. City of Pensacola, 449 F. App’x 867, 870 (11th

Cir. 2011) (concluding plaintiff’s § 1983 claims were barred by Heck because “a

finding that the officers did not have probable cause would imply the invalidity of

[plaintiff’s] conviction for resisting an officer without violence”). Thus, Awolowo’s

malicious prosecution and false arrest claims are subject to dismissal.

2. Awolowo cannot state a claim based on obstruction of justice.

Awolowo alleges Carlisle conspired with Gaudet to file false reports, withhold

evidence, and obstruct justice. Doc. 8 at 4. However, these allegations are too

conclusory to support a claim. Awolowo has pleaded no facts supporting the

existence of a conspiracy or indicating that Carlisle and Gaudet ever communicated

with each other. See Collins v. Bates, 2018 WL 5090845, at *7 (11th Cir. 2018)

(finding plaintiff’s “vague and conclusory allegation that all of the defendants

5 Thus, to the extent Awolowo suggests Officer Gaudet’s order to him to “leave the scene” shows

he is innocent of the leaving the scene of an accident charge, such a claim cannot proceed around

the Heck bar.

conspired against him was insufficient to establish the existence of a conspiracy for

purposes of establishing a §§ 1983, 1985, or 1986 violation”); Grider v. Cook, 522

F. App’x 544, 547 (11th Cir. 2013) (Plaintiff “provided nothing more than a ‘general

conclusory allegation of conspiracy’ which will not support such a claim.”); Bailey

v. Bd. of Cnty. Comm’rs of Alachua Cnty., Fla., 956 F.2d 1112, 1122 (11th Cir. 1992)

(“[T]he linchpin for conspiracy is agreement, which presupposes communication.”).

Even accepting Awolowo’s allegation that the officers withheld evidence as

true, “[f]abrication or concealment of evidence during an investigation does not itself

violate the Constitution.” Spence-Jones v. Rundle, 991 F. Supp. 2d 1221, 1240 (S.D.

Fla. 2013); see also Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000) (“The

manufacture of false evidence, ‘in and of itself,’ … does not impair anyone’s

constitutional right.”).6

3. Awolowo cannot state a claim based on false trial testimony.

Awolowo alleges Carlisle made two false statements at his criminal trial.

Awolowo asserts: (1) Carlisle testified he handcuffed Awolowo to keep him from

6 Furthermore, to the extent Awolowo is alleging Carlisle and Gaudet’s misconduct caused his

convictions, such claims are also Heck-barred. See Heck, 512 U.S. at 479, 490 (finding § 1983

action alleging prosecutors and investigator knowingly destroyed exculpatory evidence was barred

because it constituted challenge to legality of still outstanding conviction); Welsh v. Thorne, 2024

WL 1956145, at *1 (5th Cir. May 3, 2024) (finding if defendant’s allegedly false report directly

caused plaintiff’s continued confinement, claim was barred by Heck); Griffin v. Baltimore Police

Dep’t, 804 F.3d 692, 695 (4th Cir. 2015) (a § 1983 action based on Brady claims may not proceed

around the Heck bar); Simpson v. Rowan, 73 F.3d 134, 136 (7th Cir. 1995) (finding conspiracy to

obstruct justice claim barred by Heck).

running away, which contradicted another statement Carlisle made indicating he

handcuffed Awolowo for safety purposes; and (2) Carlisle falsely testified “he was

the first officer on the scene,” when Officer Gaudet “was actually the first officer to

engage [Awolowo].” Doc. 8 at 12.

However, Awolowo cannot state a claim based on Carlisle’s allegedly false

trial testimony because “[p]olice officers enjoy the same absolute immunity as lay

witnesses for their testimony at trial[.]” Jones v. Cannon, 174 F.3d 1271, 1281 (11th

Cir. 1999) (noting “[t]he penalty for false testimony … is the same for any witness,

that is, a potential prosecution for perjury”); see also Baker v. City of Hollywood,

391 F. App’x 819, 822 (11th Cir. 2010) (“witnesses are absolutely immune from

damages based on their testimony”). Thus, Awolowo’s allegations regarding

Carlisle’s trial testimony provide no basis for relief.7

4. Awolowo has failed to state a deliberate indifference claim.

Awolowo claims Gaudet and Carlisle displayed deliberate indifference to his

medical needs following the accident. Establishing liability on a deliberate

7 Furthermore, Awolowo’s false testimony allegations are contradicted by the trial transcript. First,

contrary to what Awolowo says, Carlisle testified at trial that he handcuffed Awolowo for safety

purposes. See Trial Transcript Day 1 (287:20-21) (“I securely detained him for his own safety.”).

Second, Carlisle testified that Gaudet was assigned to work the traffic accident and she arrived

there before him. See Trial Transcript Day 1 (265:20-21) (stating Gaudet “was assigned to the

traffic crash”); (266:15-21) (stating he was not the first officer on the scene and Gaudet arrived

before him). The transcript of Awolowo’s criminal trial can be viewed online at

https://www.alachuaclerk.org/court_records/index.cfm?section=casehist by searching for Alachua

Cnty. Circuit Court Case No. 2020 CF 3434 and opening the docket entries dated August 8, 2022

(Day 2 of Trial), and August 15, 2022 (Day 1 of Trial).

indifference claim involves two components. First, “the plaintiff must demonstrate,

as a threshold matter, that he suffered a deprivation that was, ‘objectively,

sufficiently serious.’” Wade v. McDade, 106 F.4th 1251, 1262 (11th Cir. 2024)

(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Second, “the plaintiff must

demonstrate that the defendant acted with ‘subjective recklessness as used in the

criminal law,’ and to do so he must show that the defendant was actually,

subjectively aware that his own conduct caused a substantial risk of serious harm to

the plaintiff—with the caveat … that even if the defendant ‘actually knew of a

substantial risk to inmate health or safety,’ he ‘cannot be found liable … if he

‘responded reasonably to the risk.’” Id. (quoting Farmer, 511 U.S. at 839, 844-45).

Here, Awolowo has not alleged facts to support the subjective component of

a deliberate indifference claim. Awolowo alleges only that he requested help from

Gaudet and Carlisle and relayed to Gaudet that he was having difficulty breathing.

Other than these subjective complaints, he does not allege he had any visible injuries

that would have been apparent to the officers. These facts are not sufficient to infer

that Gaudet and Carlisle knew that failing to immediately transport Awolowo to the

hospital or summon medical assistance for him caused a substantial risk of serious

harm.

Moreover, courts have found that not every delay in providing treatment

amounts to deliberate indifference.8 See Jackson v. Capraun, 534 F. App’x 854, 857

(11th Cir. 2013) (officer who filled out arrest report and assisted in arrest of two

other people after plaintiff told officer he needed medical care for acute back pain

did not exhibit deliberate indifference); Goree v. City of Atlanta, 276 F. App’x 919,

921-22 (11th Cir. 2008) (finding officers’ one hour and twenty minute delay in taking

arrestee to hospital after witnessing “the extent of his physical injuries, including

blood flowing from his eyes and mouth, limping, and grimaces of pain,” did not

amount to deliberate indifference). In addition, Awolowo does not allege any delay

in treatment affected him. See Pounds v. Dieguez, 850 F. App’x 738, 741 (11th Cir.

2021) (affirming sua sponte dismissal of deliberate indifference claim and noting

plaintiff “has not alleged that the delay in seeing a specialist has had a detrimental

effect on his health”); Taylor, 221 F.3d at 1259-60 (“delay of treatment for obviously

serious conditions” rises to level of deliberate indifference when “‘it is apparent that

delay would detrimentally exacerbate the medical problem,’ the delay does seriously

8 Awolowo has not alleged how much time elapsed between his first contact with officers and

when he received medical treatment. Nonetheless, Awolowo testified at his criminal trial that he

asked Carlisle to call an ambulance and Carlisle did so. See Trial Transcript Day 2 (27:9-11) (“I

remember … asking the officer can they take me to the hospital. The officer asked for, called for

EMS.”); (27:25 – 28:2) (“When I went over, I asked the officer can they call the ambulance. I

remember that and he called the ambulance.”). The video from Carlisle’s body camera was played

at trial and indicates Awolowo was not receptive to receiving treatment. See Trial Transcript Day

1 (293:17-19) (transcript of the recording from Carlisle’s body camera, wherein Awolowo states

“I don’t give a fuck about no damn ambulance. Fuck that motherfucking ambulance.”).

exacerbate the medical problem, and the delay is medically unjustified”) (citation

omitted). Based on the foregoing, Awolowo has failed to state a deliberate

indifference claim against either Gaudet or Carlisle.

5. Awolowo has failed to state an excessive force claim.

Awolowo also claims Carlisle used excessive force on him. In evaluating

whether a use of force is objectively reasonable under the Fourth Amendment, courts

consider: “(1) the severity of the crime at issue, (2) whether the suspect poses an

immediate threat to the safety of the officers or others, and (3) whether the suspect

is actively resisting arrest or attempting to evade arrest by flight.” Richmond v.

Badia, 47 F.4th 1172, 1182 (11th Cir. 2022) (citation omitted). Courts “also

consider the justification for the application of force, the relationship between the

justification and the amount of force used, and the extent of any injury inflicted.”

Id. (citation omitted).

Here, Awolowo’s allegations do not state an excessive force claim. He alleges

only that Carlisle and another officer were standing near him, and then the next thing

he remembers is he was bleeding from his head, had pain in his shoulder and legs,

and had bruised ribs. He claims these injuries were the result of an “assault” by the

officers, but the characterization of the officers’ conduct as an “assault” is not

supported by any facts. Awolowo does not describe what types of force the officers

used or which officer used what force. He also does not describe the circumstances

surrounding the use of force, such as whether or not he was complying the officers’

commands when force was used, and his conviction indicates he was resisting the

officers in some way.9 See Graham v. Connor, 490 U.S. 386, 396 (1989) (“the right

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

some degree of physical coercion or threat thereof to effect it”); Myers v. Bowman,

713 F.3d 1319, 1327 (11th Cir. 2013) (“some use of force by a police officer when

making a custodial arrest is necessary and altogether lawful, regardless of the

severity of the alleged offense”) (citation omitted).

Based on the foregoing, Awolowo’s allegations do not nudge his excessive

force claim against Carlisle across the line from conceivable to plausible. See Barr

v. Gee, 437 F. App’x 865, 877-78 (11th Cir. 2011) (affirming dismissal of excessive

force claim when plaintiff alleged officers “beat [him] into submission” because

assertion that force was “excessive” was conclusory and he “did not describe the

‘beating’ or otherwise allege facts permitting a plausible inference that the force [the

officers] used was unreasonable”); Mincey v. Starling, 2020 WL 3103978, at * (M.D.

Fla. June 11, 2020) (concluding plaintiff failed to state an excessive force claim and

9 Awolowo does not provide these details despite indicating his interaction with Carlisle was

captured by Carlisle’s body camera. See Doc. 8 at 11 (“The bodycam shows me asking … Carlisle

are you here to help me and are you really officers.”). Likewise, while Awolowo claims he was

hospitalized for seven days following the October 2020 incident and needed six months of

rehabilitation, Doc. 8 at 15, he does not specify whether the treatment he received was related to

the use of force, to the medical issue which preceded the accident, or to the injuries he sustained

in the accident. And the only injuries he connects to the use of force—a bleeding head, shoulder

and leg pain, and bruised ribs—are minimal.

noting “[t]hat Plaintiff was injured during the arrest does not permit the conclusion,

without supporting facts, that the officers used more force than was necessary under

the circumstances”).

B. Awolowo has not stated a claim against the City of Gainesville.

Awolowo also seeks to hold the City of Gainesville liable for violations of his

constitutional rights.10 To hold a governmental entity liable under § 1983, “‘a

plaintiff must show: (1) that his constitutional rights were violated; (2) that the

[entity] had a custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the policy or custom caused the violation.’”

Grochowski v. Clayton Cnty., 961 F.3d 1311, 1321 (11th Cir. 2020) (quoting

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).

As an initial matter, since Awolowo has not stated a claim against Gaudet and

Carlisle, there is no underlying constitutional violation for which the City could be

liable. See Knight ex rel. Kerr v. Miami-Dade Cnty., 856 F.3d 795, 821 (11th Cir.

2017) (“There can be no policy-based liability or supervisory liability when there is

10 The claims against Gaudet and Carlisle in their official capacities are duplicative of the claims

against the City of Gainesville and, thus, need not be addressed separately. See Busby v. City of

Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“In contrast to individual capacity suits, when an

officer is sued under Section 1983 in his or her official capacity, the suit is simply ‘another way of

pleading an action against an entity of which an officer is an agent.’ Such suits against municipal

officers are therefore, in actuality, suits directly against the city that the officer represents.”)

(quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)); see also Higdon v. Fulton Cnty., Ga.,

746 F. App’x 796, 799 (11th Cir. 2018) (“official-capacity claims against municipal officers should

be dismissed, as keeping the claims against both the municipality and the officers would be

redundant”).

no underlying constitutional violation.”). But even assuming Awolowo had alleged

an underlying violation, he has not identified a connection between any policy or

custom of the City and the officers’ actions.

Awolowo says the City of Gainesville has three different policies or customs

which are purportedly relevant to his claims.11 First, he says the City has a custom

of allowing “ghost stops,” in which GPD officers: (1) initiate traffic stops for

“vague” reasons such as an illegal lane change or failing to stop at a stop sign; (2)

claim they see something suspicious in the vehicle or smell marijuana to justify a

search of the vehicle and driver; and (3) fail to complete reports regarding the traffic

stop. Doc. 8 at 5.

While Awolowo claims he “can attest to how [this custom] directly pertains

to this case,” he never alleges how the custom is relevant to his claims. Id. Indeed,

the undersigned does not see how the “ghost stop” custom could be relevant because

11 Awolowo’s second amended complaint contains additional allegations regarding the City of

Gainesville. See e.g., Doc. 8 at 4 (The City “has created a society and adopted a culture that by

default gives birth to deliberate indifference, malicious prosecution, retaliation, and excessive

force[.]”). But those allegations are conclusory and insufficient to support a municipal liability

claim under §1983. See Holt v. Floyd Cnty., Ga., 747 F. App’x 832, 833 (11th Cir. 2019) (affirming

dismissal of § 1983 municipal liability claim where plaintiff “had pled only conclusory allegations

of a policy, practice or custom”); Hendrix v. Tucker, 535 F. App’x 803, 805 (11th Cir. 2013)

(allegation that there is “a long standing policy, practice, and custom of treating similarly situated

prisoners differently in this application of gain time” was vague, conclusory, and insufficient to

support supervisory liability); Grider, 522 F. App’x at 547-48 (affirming dismissal of municipal

liability claim when plaintiff “provided a formulaic recitation of a claim … by stating that

‘defendants’ conduct was the product of an official policy or unofficial custom,’ but he did not

provide any specific facts about any policy or custom that resulted in his alleged constitutional

deprivation”).

GPD officers did not pull Awolowo over for traffic violations; instead, GPD officers

responded to the scene of an accident. Thus, the “ghost stop” custom could not be

the moving force behind any potential violation of Awolowo’s constitutional rights

and it does not provide a basis to impose municipal liability on the City in this case.

See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997) (“[I]t

is not enough for a § 1983 plaintiff merely to identify conduct properly attributable

to the municipality. The plaintiff must also demonstrate that, through its deliberate

conduct, the municipality was the ‘moving force’ behind the injury alleged.”).

Second, Awolowo claims the City of Gainesville “has a long history of using

City budgets and state funding to finance projects that the City believes can produce

the most money for the City, while at the same time cutting budgets on projects that

protect the marginalized and disenfranchised, weak and vulnerable persons that are

protected under state and federal law.” Doc. 8 at 4. To support this claim, Awolowo

alleges that in 2013 the City of Gainesville diverted funding from a program he

developed to help at-risk youth to efforts to “combat[] gang activity in Gainesville.”

Doc. 8 at 6-7.

However, Awolowo has not alleged how this budget choice—which occurred

in 2013—has any connection to the constitutional violations he allegedly

experienced in October 2020. See McDowell, 392 F.3d at 1292 (“The County’s

liability cannot be dependent on the scant likelihood that its budget decisions would

trickle down the administrative facets and deprive a person of his constitutional

rights. Instead, liability must be premised on a finding that ‘this’ budget decision

was ‘highly likely to inflict the particular injury’ McDowell suffered.”). Nor does

he allege facts suggesting the City’s policymakers should have known that diverting

money from a program for at-risk youth to combatting gang activity would lead to

the constitutional violations alleged here. See id. (“McDowell cannot establish that

a reasonable member of the Board would conclude that the County’s budget

decisions would lead to events that occurred here.”).

Lastly, Awolowo alleges that between 2011 to 2013, he noticed “unmarked

Dodge Chargers” following his vehicle around the east side of Gainesville, an area

“historically underserved economically and socially.” Doc. 8 at 8. Awolowo

complained to the Internal Affairs division of the GPD about these vehicles and

asked why they “tail and harass” him. Id. In response, an officer said the City

“assigns officers to the east side territory that are from outside the community like

Jacksonville and Orlando not so out west.” Id.

Like Awolowo’s other allegations, these allegations are not sufficient to state

a claim for municipal liability. How the City assigned officers to particular areas in

2011 to 2013 has no discernible relationship to the constitutional violations

Awolowo allegedly experienced in October 2020.

Because Awolowo has not identified a policy or custom of the City of

Gainesville which led to a violation of his constitutional rights, he has not stated a

claim against the City.12 And the City is not liable for the allegedly unconstitutional

acts of its employees based on vicarious liability or respondeat superior. See Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978) (finding § 1983 “cannot be easily

read to impose liability vicariously on governing bodies solely on the basis of the

existence of an employer-employee relationship with a tortfeasor”); Brown v. City of

Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir. 1991) (“It is well established that a

municipality may be held liable under § 1983 only when the deprivation at issue was

undertaken pursuant to city ‘custom’ or ‘policy,’ and not simply on the basis of

respondeat superior.”).

VI. Conclusion

After Awolowo filed his original complaint, Doc. 1, the Court issued an order

on October 21, 2024, which described the legal standards applicable to his claims,

advised Awolowo the complaint failed to state a claim, and gave Awolowo an

opportunity to submit an amended complaint, Doc. 4. Awolowo then submitted an

amended complaint. Doc. 5. In the now vacated Report and Recommendation, the

12 Awolowo actually alleges Officers Gaudet and Carlisle failed to comply with GPD policy in

some respects. See Doc. 8 at 14 (alleging Gaudet and Carlisle violated GPD General Order 71.1).

These allegations undermine Awolowo’s municipal liability claim, as they indicate the officers

were not acting pursuant to a City policy and, thus, a City policy could not have been the moving

force behind any constitutional violation.

undersigned explained the amended complaint also failed to state a claim because it

did not show a custom or policy of the City of Gainesville led to a violation of

Awolowo’s constitutional rights. Doc. 6. Awolowo has now filed a second amended

complaint, but it continues to suffer from the same problems as the original and first

amended complaints. Because Awolowo has failed to cure the deficiencies

identified in the original and first amended complaints through amendment, this case

should be dismissed for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). See Brennan v. Comm’r, Ala. Dep’t of Corr., 626 F. App’x 939,

945-46 (11th Cir. 2015) (“A pro se litigant must be given at least one opportunity to

amend his complaint before the court dismisses the action with prejudice if it appears

that a more carefully drafted pleading would state a claim upon which relief could

be granted.”).

Accordingly, it is ORDERED:

1. Awolowo’s motion to file a second amended complaint, Doc. 7, is

GRANTED, and the second amended complaint, Doc. 8, is now the operative

pleading.

And it is RECOMMENDED:

1. That Awolowo’s second amended complaint be DISMISSED under 28

U.S.C. § 1915(e)(2)(B)(ii) due to his failure to state a claim on which relief may be

granted.

2. That the Clerk close the file.

At Pensacola, Florida, this 23rd day of December, 2024.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed within

fourteen (14) days of the date of the Report and Recommendation.  Any different

deadline that may appear on the electronic docket is for the court’s internal use only

and does not control.  An objecting party must serve a copy of its objections upon

all other parties.  A party who fails to object to the magistrate judge’s findings or

recommendations contained in a report and recommendation waives the right to

challenge on appeal the district court’s order based on the unobjected-to factual and

legal conclusions.  See 11th Cir. Rule 3-1.