Smith v. Slimak

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-22990-CIV-ALTONAGA/Reid

SAMUEL LEE SMITH, JR.,

Plaintiff,

v.

MARK H. SLIMAK, et al.,

Defendants.

___________________________/

ORDER

THIS CAUSE came before the Court upon Defendants, Mark H. Slimak and Miami-Dade

County’s Joint Motion to Dismiss Second Amended Complaint [ECF No. 43], filed on December

11, 2024. Pro se Plaintiff, Samuel Lee Smith, Jr. filed a Response [ECF No. 49], to which

Defendants filed a Reply [ECF No. 50]. The Court has carefully considered the record, the parties’

written submissions, and applicable law. For the following reasons, the Motion is granted in part

and denied in part.

I. BACKGROUND

This action arises from a series of alleged incidents between Plaintiff and Defendant Mark

Slimak, a police officer with the Miami-Dade Police Department. (See generally Second Am.

Compl. (“SAC”) [ECF No. 26]).1 Plaintiff contends the first incident occurred on December 31,

2021, when Slimak approached Plaintiff without reason and asked Plaintiff to identify himself.

1 Despite its label, Plaintiff’s “Second Amended Complaint” [ECF No. 26], filed on October 30, 2024, is

actually his third amended complaint and the fourth iteration overall. (See Compl. for Violation of Civil

Rights [ECF No. 1]; Am. Compl. [ECF No. 11]; Am. Compl. [ECF No. 16]). For clarity, and to be

consistent with the parties’ filings, the Court refers to the operative amended complaint filed on October

30, 2024 as the “SAC.”

(See id. ¶ 16). When Plaintiff refused to provide identification, Slimak “forcefully detained”

Plaintiff, placed him in handcuffs, threatened to send him to jail, and refused to allow him to leave

for an unstated amount of time. (Id. ¶¶ 16–17).

In another incident, Slimak stared2 at Plaintiff “menacing[ly]” and “threatening[ly]” in a

store parking lot, on an unspecified date. (Id. ¶ 19 (alterations added)). Then, on December 14,

2023, Slimak nearly hit Plaintiff with his car while Plaintiff was out jogging. (See id. ¶ 14).3 After

this encounter, Slimak threatened to arrest Plaintiff and commanded him to stand on the sidewalk.

(See id. ¶ 15).

Plaintiff also generally alleges that Slimak has stalked him and threatened him with arrest,

incarceration, and violence. (See id. ¶ 13). Plaintiff purports to have video and audio recordings

of Slimak’s behavior but neither specifies what these recordings capture nor provides them with

the SAC. (See id. ¶ 20). He states that the alleged incidents have left him in fear for his life and

safety. (See id. ¶ 22).

Plaintiff brings claims against Slimak, in his personal capacity, and against Miami-Dade

County. (See id. ¶¶ 9–10, 24–56). Plaintiff’s claims against Slimak are for: (1) unlawful arrest

and false imprisonment under 42 U.S.C. section 1983; (2) unnecessary and excessive use of force

under section 1983; and (3) intentional infliction of emotional distress, presumably under Florida

state law. (See id. ¶¶ 24–38). He also sues Miami-Dade County, labeling one count “Federal Civil

Rights Violations” and titling another “Respondeat Superior[.]” (Id. ¶¶ 39–56 (alteration added)).

2 The Court considers Plaintiff’s use of “started” in the SAC a typographical error for the intended word,

“stared.” (SAC ¶ 19).

3 Plaintiff does not indicate whether this near collision was purposeful or accidental. (See id. ¶ 14).

In response, Defendants bring the present Motion, seeking the dismissal of the SAC in full for

failure to state claims upon which relief can be granted. (See generally Mot.; Reply).

II. LEGAL STANDARD

“To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)], a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added; quoting

Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard “does not require

‘detailed factual allegations,’ . . . it demands more than an unadorned, the-defendant[s]-unlawfully-

harmed-me accusation.” Id. (alterations added; quoting Twombly, 550 U.S. at 555).

Pleadings must contain “more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (alteration added;

citation omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to

dismiss.” Iqbal, 556 U.S. at 679 (alteration added; citing Twombly, 550 U.S. at 556). To meet

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

the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Id. at 678

(alterations added; citing Twombly, 550 U.S. at 556). “The mere possibility the defendant[s] acted

unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F.3d

1252, 1261 (11th Cir. 2009) (alteration added; citation omitted; abrogated on other grounds by

Mohamad v. Palestinian Auth., 566 U.S. 449 (2012)).

III. DISCUSSION

Defendants argue the SAC should be dismissed because (1) Plaintiff’s section 1983 claims

fail to state that Slimak violated a constitutional right, which is required to overcome Slimak’s

qualified immunity defense (see Mot. 3–7);4 (2) Slimak is statutorily protected from Plaintiff’s

intentional-infliction-of-emotional-distress (“IIED”) claim under Section 768.28(9)(a), Florida

Statutes (see Mot. 9–11); (3) Plaintiff’s IIED claim also fails to include facts meeting the required

elements of the claim (see id. 11–12); and, finally, (4) Plaintiff fails to articulate a viable theory of

liability against Miami-Dade County (see id. 12–16).

In considering the Motion to Dismiss, the Court first addresses the claims against Slimak,

personally; and then, the two counts against Miami-Dade County. The Court finds that only Count

I against Slimak states a plausible claim for relief. The other four claims are dismissed.

A. Count I: Unlawful Arrest/False Imprisonment under 42 U.S.C. Section 1983

(Against Slimak)

Plaintiff alleges constitutional violations by Slimak under 42 U.S.C. section 1983 for

unlawful arrest and false imprisonment. (See SAC ¶¶ 24–28). Defendants argue Plaintiff’s claim

of unlawful arrest or false imprisonment against Slimak in his personal capacity should be

dismissed because Plaintiff fails to allege facts that state a constitutional violation required to

overcome Slimak’s qualified immunity as a police officer. (See Mot. 3–7). The Court disagrees;

Plaintiff’s allegations, taken as true, show that Slimak violated Plaintiff’s clearly established

Fourth Amendment right to be free from unreasonable seizure.

Defendants assert that qualified immunity renders Slimak personally immune from suits

against him for actions undertaken in his job as a police officer. (See id. 5); see also Fleming v.

Barber, 383 F. App’x 894, 896 (11th Cir. 2010) (noting “[q]ualified immunity protects government

officials performing discretionary functions from suits in their individual capacities unless their

conduct violates clearly established statutory or constitutional rights of which a reasonable person

4 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers

of all court filings.

would have known” (alteration added; quotation marks and citation omitted)). Because

Defendants raise the qualified immunity defense, the Court “must exercise its discretion in a way

that protects the substance of the qualified immunity defense . . . so that officials are not subjected

to unnecessary and burdensome discovery or trial proceedings.’” Id. (alterations added; quoting

Crawford–El v. Britton, 523 U.S. 574 (1998); other citation omitted).

“To receive qualified immunity, a public official must first prove that he was acting within

the scope of his discretionary authority when the allegedly wrongful acts occurred.” De Veloz v.

Miami-Dade Cnty., 756 F. App’x 869, 876 (11th Cir. 2018) (citation omitted). Plaintiff does not

contest that Slimak was acting in his official capacity as a police officer when the alleged conduct

occurred. (See SAC ¶ 52 (“At all times relevant . . . [Slimak] was an . . . employee of the Miami[-

]Dade Police Department . . . and was within the scope of employment when he committed the

conduct described [in the SAC]” (alterations added)). As a result, Plaintiff bears the burden of

showing that Slimak is not entitled to qualified immunity. See De Veloz, 756 F. App’x at 876

(citation omitted).

To show that Slimak is not entitled to qualified immunity, Plaintiff must plead facts that,

when taken as true, establish that: (1) Slimak violated Plaintiff’s constitutional right(s), and (2) the

“right was clearly established at the time of the alleged violation.” Id. (citation and quotation

marks omitted). Plaintiff alleges three specific incidents in the SAC: (1) the December 31, 2021

incident where Slimak “forcefully detained” Plaintiff in handcuffs for an unstated amount of time

and threatened to send him to jail (SAC ¶¶ 16–17); (2) the undated instance where Slimak stared

at Plaintiff in a menacing and threatening manner while Plaintiff attempted to enter a store (see id.

¶ 19); and (3) the December 14, 2023 incident when Slimak commanded Plaintiff to stand on the

sidewalk and threatened to arrest Plaintiff after nearly hitting Plaintiff with his police vehicle (see

id. ¶¶ 14–15).5

Incidents (2) and (3) amount to no more than yelling at and staring at Plaintiff.6 The

Eleventh Circuit has held that mere verbal abuse, including threats, cannot amount to a

constitutional violation. See Oliver, 2019 WL 1254844, at *4 (quoting Hernandez, 281 F. App’x

at 866). Therefore, the operative question is whether Plaintiff’s allegations concerning the

December 31, 2021 incident, taken as true, plausibly show that Slimak violated one or more of

Plaintiff’s clearly established constitutional rights.

As an initial matter, the Court construes Count I — which is labeled “Unlawful Arrest/

False Imprisonment” — as a claim that Slimak violated Plaintiff’s Fourth Amendment right to be

free from “unreasonable searches and seizures[.]” U.S. Const. amend. IV (alteration added). The

substance of Plaintiff’s claim in Count I sounds in unlawful seizure. (See SAC ¶¶ 24–28). Plaintiff

asserts that a stop occurred during which Slimak temporarily detained Plaintiff in handcuffs. (See

id. ¶¶ 16–17). Plaintiff also alleges Slimak did not have “reasonable suspicion” to detain him and

calls the incident a “detainment[.]” (Id. ¶ 25 (alteration added)). The Court, mindful of the need

to construe pro se filings liberally and empowered to “look beyond the labels used in a pro se

party’s complaint[,]” thus interprets Plaintiff’s unlawful arrest claim/false imprisonment claim as

5 Outside of these three specific instances, Plaintiff also broadly asserts that Slimak has stalked him and

threatened him with “arrest, incarceration, and [] physical violence since 2021.” (SAC ¶ 13 (alteration

added)). Plaintiff provides no supporting facts explaining this general allegation. (See id.). Mere

conclusory statements, lacking in any supporting facts, “are not entitled to the assumption of truth.” Iqbal,

556 U.S. at 664. The Court, therefore, does not consider this generalized allegation in analyzing whether

Plaintiff pleads a constitutional violation in either Count I or Count II.

6 Again, the Court interprets paragraph 19 of the SAC as alleging that Slimak stared at Plaintiff. (See SAC

¶ 19). Even if Plaintiff intended the phrase “started at” to be slang for “yelled at,” this interpretation would

still fail to show a constitutional violation. See Oliver v. Calderon, No. 17-cv-1792, 2019 WL 1254844, at

*4 (M.D. Fla. Mar. 19, 2019) (quoting Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir.

2008)).

a more general claim of unlawful seizure. Torres v. Miami-Dade Cnty., 734 F. App’x 688, 691

(11th Cir. 2018) (alteration added; citation omitted); see also Jenkins v. Davis, No. 11-cv-307,

2011 WL 4550168, at *1 n.1 (M.D. Ala. Sept. 2, 2011) (liberally construing a pro se plaintiff’s

filing in a similar manner), report and recommendation adopted, 2011 WL 4550161 (M.D. Ala.

Oct. 3, 2011).7

Defendants do not contest that Slimak’s actions, as alleged in the SAC, constituted a

seizure. (See Mot. 6; see also SAC ¶¶ 16–17). Rather, Defendants’ only argument that Plaintiff

fails to state a constitutional violation in Count I sufficient to overcome Slimak’s qualified

immunity defense is that Plaintiff does not allege the seizure was “extended” or “unreasonably

long.” (Mot. 6). Yet, Plaintiff brings this claim because Slimak allegedly detained him without

probable cause or reasonable suspicion. (See SAC ¶¶ 16–17, 25–26). It is well-settled that even

a temporary investigatory stop and detention without reasonable suspicion or probable cause

violates the Fourth Amendment. See Jeancharles v. Augustus, No. 13-60723-Civ, 2014 WL

4824371, at *4 (S.D. Fla. Sept. 26, 2014) (“The law is clearly established that, in the absence of

reasonable suspicion . . . a police officer who detains a person to determine his identity violates

the person’s Fourth Amendment right to be free from unlawful seizures.” (alteration added;

citation omitted)).

The SAC describes the following events leading up to Slimak handcuffing Plaintiff: (1)

Slimak approached Plaintiff without reason as Plaintiff left the store, asking for his identification;

(2) Plaintiff refused to provide identification until Slimak stated the reason for stopping him, and;

7 Plaintiff claims that Slimak violated the Fourth and Fourteenth Amendments of the U.S. Constitution by

detaining him without reasonable suspicion or probable cause. (See SAC 4). Yet Plaintiff’s allegations —

that Slimak detained him without probable cause or reasonable suspicion — do not state a cognizable

violation of the Fourteenth Amendment. See Martin v. City of Tampa, No. 07-cv-136, 2007 WL 1231837,

at *4 (M.D. Fla. Apr. 26, 2007) (holding the same). The Court therefore limits its analysis to the Fourth

Amendment.

(3) Slimak placed Plaintiff in handcuffs and did not allow him to leave for an unstated amount of

time. (See SAC ¶¶ 16–17). None of these allegations, accepted as true, supports the conclusion

that Slimak arguably possessed reasonable suspicion for even temporarily detaining Plaintiff.

Plaintiff therefore sufficiently alleges a constitutional violation, even without stating the length of

his detention.

Next, to overcome Slimak’s qualified immunity defense, the Court must analyze whether

the constitutional right was clearly established at the time of the incident. De Veloz, 756 F. App’x

at 876 (citation and quotation marks omitted). “‘Clearly established’ means that, at the time of the

officer’s conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand

that what he is doing’ is unlawful.” D.C. v. Wesby, 583 U.S. 48, 63 (2018) (citations omitted).

Undoubtedly, at the time of the December 31, 2021 incident, it was clearly established that an

officer violates the Fourth Amendment by seizing an individual without reasonable suspicion or

probable cause solely to obtain the individual’s identification. See, e.g., Jeancharles, 2014 WL

4824371, at *4. And Plaintiff repeatedly cites to and quotes from the Fourth Amendment, securing

that right. (See SAC ¶¶ 25–26). Therefore, the alleged constitutional violation was well-

established at the time of the incident.

While Slimak may claim he possessed reasonable suspicion to detain Plaintiff, the Court

must — at the motion to dismiss stage — accept “the factual allegations in the complaint as true

and [draw] all reasonable inferences in the plaintiff’s favor.” Gonzalez v. Reno, 325 F.3d 1228,

1233 (11th Cir. 2003) (alteration added; citation omitted). In this instance, Plaintiff’s allegations

suffice to state a violation of a well-established constitutional right.

B. Count II: Unnecessary/Excessive Use of Force under 42 U.S.C. Section 1983

(Against Slimak)

Plaintiff next brings a claim in Count II against Slimak for unnecessary or excessive force

under section 1983. Here, Defendants are correct that Plaintiff fails to state a constitutional

violation, and Slimak is protected by qualified immunity. (See Mot. 3–9).

As in Count I, the Court focuses on the December 31, 2021 incident — the only incident

in which Slimak physically interacted with Plaintiff. (See generally SAC). Plaintiff alleges

Slimak’s use of unnecessary or excessive force occurred in the course of his work as a police

officer. (See id. ¶ 52). Therefore, to overcome Slimak’s argument that he is protected against the

excessive-force claim by qualified immunity, Plaintiff must articulate that Slimak violated a well-

established constitutional right in applying unnecessary or excessive force against him. See De

Veloz, 756 F. App’x at 876.

Courts use three factors to assess whether force was excessive: “(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).

In this instance, Plaintiff fails to state any facts indicating that Slimak used excessive force

against him outside of baldly alleging that Slimak “forcefully detained” him on December 31,

2021. (SAC ¶ 16). Plaintiff does not allege how Slimak asserted force, where on his person Slimak

asserted force, or the severity with which Slimak applied force. (See generally id.). While the

Court must take all factual allegations in the SAC as true, the Court is “not bound to accept as true

a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation marks

omitted; citing Twombly, 550 U.S. 556 (2007)).8 Importantly, Plaintiff’s sparse allegations leave

the Court unable to evaluate whether a reasonable officer at the scene would have believed the

level of force necessary in the situation. See Saunders v. Duke, 766 F.3d 1262, 1267 (11th Cir.

2014) (articulating the standard for establishing a constitutional violation grounded in excessive

use of force (citations omitted)). Consequently, Count II against Slimak is dismissed.

C. Count III: Intentional Infliction of Emotional Distress (Against Slimak)

Plaintiff asserts a final claim against Slimak for IIED.9 Defendants argue that Plaintiff fails

to state facts in his SAC that, when accepted as true, show the elements of an IIED claim, (see

Mot. 11–12); and Plaintiff fails to allege facts to overcome Slimak’s protection from state tort suits

under Section 768.28(9)(a), Florida Statutes (see Mot. 9–11). Defendants are correct; Plaintiff’s

factually bare IIED claim must be dismissed.

Under Florida law, the elements of an IIED claim are:

(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his

behavior when he knew or should have know that emotional distress would likely

result;

(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and

to be regarded as odious and utterly intolerable in a civilized community;

(3) the conduct caused emotional distress; and

(4) the emotional distress was severe.

8 The Court notes that even supposing Plaintiff had attempted to assert a separate excessive force claim on

the ground that any use of force in effectuating a seizure without probable cause is a constitutional violation,

such a claim would be subsumed into the unlawful arrest/false imprisonment claim. See Richmond, 47

F.4th at 1180–81 (distinguishing artificial excessive force claims — arising from any use of force during

an arrest lacking probable cause — from genuine excessive force claims, and noting the former are

subsumed by false arrest claims arising out of the same incident).

9 Plaintiff does not explain whether he attempts to bring the claim under section 1983 or state law. (See

SAC 6). In any event, IIED claims are not viable under section 1983. See Rubin v. City of Miami Beach,

No. 19-20520-Civ, 2019 WL 11470833, at *4 (S.D. Fla. Feb. 12, 2019) (citations omitted). The Court

understands Plaintiff to be bringing this claim under Florida state law. See Alba v. Montford, 517 F.3d

1249, 1252 (11th Cir. 2008) (requiring courts to liberally construe pro se pleadings (citation omitted)).

Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949, 954–55 (Fla. 3d DCA 2017) (citation

omitted).

Plaintiff does not allege facts allowing the Court to evaluate Slimak’s intentionality or

recklessness. (See SAC ¶¶ 13–22). Plaintiff also makes no attempt to allege facts speaking to the

“outrageous” nature of Slimak’s alleged conduct. (See generally id.); cf. Kantrow v. Celebrity

Cruises, Inc., 510 F. Supp. 3d 1311, 1324 (S.D. Fla. 2020) (collecting cases holding that even a

showing of malice or aggravation may fall short of the outrageous conduct required for a successful

Florida IIED claim). Plaintiff further fails to allege facts outside of bare legal conclusions that

speak to the severity of his own distress. (See generally id.).

Further still, even if Plaintiff articulated facts sufficient to state a viable IIED claim, Slimak

would be immune to that claim under Section 768.28(9)(a), Florida Statutes. See id. Section

768.28(9)(a) prevents government officials from being named as party defendants or being

personally liable in any action stemming from injuries “suffered as a result of any act. . . in the

[official’s] scope of . . . employment” unless the official “acted in bad faith or with malicious

purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or

property.” Id. (alterations added). Plaintiff makes no attempt to state facts showing bad faith,

malicious purpose, or wanton and willful behavior. (See generally SAC).

D. Counts IV and VI: Violation of Federal Civil Rights and Respondeat Superior

(Against Miami-Dade County)10

Defendants argue that the two claims against Miami-Dade County should be dismissed

because Plaintiff fails to present any facts that, if taken as true, would establish the County’s

liability for Slimak’s alleged actions. (See Mot. 13–16). The Court agrees.

Plaintiff sues for violations of his rights based upon Slimak’s actions. (See SAC ¶¶ 12–

23). As Defendants correctly note, a municipality may be liable for its employees’ actions only if

a plaintiff suffered injury because of an official policy of the municipality. (See Mot. 13 (citing

Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978); quotation marks and additional citations

omitted))); see also Brown v. City of Hialeah, 30 F.3d 1433, 1438 (11th Cir. 1994) (“A plaintiff

seeking to impose liability on a municipality for injuries its employees or agents have inflicted

must show that the plaintiff suffered injuries inflicted pursuant to an official government policy or

custom.” (citation omitted)). Additionally, to allege an official policy, a plaintiff must plead

“either [] an officially promulgated county policy or [] an unofficial custom or practice of the

county shown through the repeated acts of a final policymaker for the county.” Grech v. Clayton

Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (alterations added; citations omitted).

Because Plaintiff does not point to an officially circulated Miami-Dade County policy, he

would need to plead the existence of repeated acts by a Miami-Dade County policymaker to

establish an unofficial policy or custom. See id. Yet, while Plaintiff uses the words “custom” and

“policy” throughout the SAC (see SAC ¶¶ 43–45, 46–48), the only real act he alleges by the County

is a singular act of omission: that the County “took no action or conducted [no] investigation” into

Plaintiff’s single complaint against Slimak (id. ¶ 23 (alteration added)). Of course, a singular

instance does not a custom or policy make. See Depew v. City of St. Marys, 787 F.2d 1496, 1499

10 In the SAC, Plaintiff labels his fifth-listed claim as “Count VI”. (See SAC ¶¶ 51–56).

(11th Cir. 1986) (explaining that “random acts or isolated incidents[,]” standing alone, are

insufficient to establish a custom or policy (alteration added; citation omitted)).

Outside of this singular instance, Plaintiff cites no other action or omission by Miami-Dade

County that would create a “widespread practice . . . so permanent and well settled as to . . . [have]

the force of law.” Wade v. City of Miami Beach, 565 F. Supp. 3d 1248, 1251 (S.D. Fla. 2021)

(alteration adopted; alteration added; quoting Brown v. City of Fort Lauderdale, 923 F.2d 1474,

1481 (11th Cir. 1991) (additional citation omitted)). Therefore, Plaintiff fails to state a policy or

custom, and Plaintiff’s claim against Miami-Dade County in Count IV fails.

Plaintiff attempts to plead in Count VI that Miami-Dade County is vicariously liable for

Slimak’s actions simply because Slimak was acting in the scope of his employment during the

alleged incidents. (See SAC ¶¶ 51–56). This, too, fails. Again, Defendants are correct that “a

municipality cannot be held liable under [section] 1983 on a respondeat superior theory.” (Mot.

13 (alteration added; quoting Monell, 436 U.S. at 691; additional citations omitted)); see also

Misquith v. Palm Beach Cnty. Health Care Dist., No. 20-cv-81123, 2021 WL 8055475, at *9 (S.D.

Fla. Sept. 29, 2021) (“A municipal entity cannot be found liable on a respondeat superior theory.”

(citation omitted)), report and recommendation adopted sub nom. Misquith v. Borrego, 2022 WL

782545 (S.D. Fla. Mar. 15, 2022), aff’d, No. 22-11194, 2023 WL 2156635 (11th Cir. Feb. 22,

2023). In other words, Plaintiff’s claim that the government is responsible for the alleged injurious

actions of its employee merely because it employed him is not sufficient for liability to attach.

CASE NO. 24-22990-CIV-ALTONAGA/Reid

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED as follows:

1. Defendants, Mark H. Slimak and Miami-Dade County’s Joint Motion to Dismiss

Second Amended Complaint [ECF No. 43] is GRANTED in part and DENIED in part. Counts

II-VI are DISMISSED. Miami-Dade County is dismissed from the action. Count I against Slimak

remains.

2. The remaining parties are directed to prepare and file a joint scheduling report, as

required by Local Rule 16.1, by February 10, 2025.

DONE AND ORDERED in Miami, Florida, this 29th day of January, 2025.

oc dix. VA. hinape

CECILIA M. ALTONAG

CHIEF UNITED STATES DISTRICT JUDGE

ce: counsel of record

Plaintiff, pro se

14