Barnes v. Defelice

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

HORACE BARNES,

Plaintiff,

v. CASE NO. 8:24-cv-3000-WFJ-SPF

MAJOR ERIC DEFELICE, OFFICER

JOE LTEIF, OFFICER ROBERT MOHR,

and OFFICER MARUS PEUCORCNIK,

Defendants.

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REPORT AND RECOMMENDATION

Before the Court is Plaintiff’s Affidavit of Indigency, construed by the Court as a

motion to proceed in forma pauperis (Doc. 2). Upon review of Plaintiff’s Complaint (Doc.

1) and his request to proceed in forma pauperis (Doc. 2), it is recommended that Plaintiff’s

request be denied and the Complaint dismissed.

I. BACKGROUND

Plaintiff initiated this case with a Form Pro Se 15, Complaint for Violation of Civil

Rights (Doc. 1). Plaintiff purports to bring a Bivens action1 against Defendants, all officers

of the Tampa Police Department, pursuant to 42 U.S.C. § 1983 for violating Plaintiff’s

1 In Bivens, the Supreme Court established that victims of a constitutional violation by a

federal official may obtain relief against that official in federal court despite the absence of

any statute conferring such right. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.

388 (1971). Such action is brought pursuant to 28 U.S.C. § 1331 and the applicable

provisions of the United States Constitution. “The effect of Bivens was, in essence, to

create a remedy against federal officers, acting under color of federal law, that was

analogous to the section 1983 action against state officials.” Dean v. Gladney, 621 F.2d

1331, 1336 (5th Cir. 1980).

constitutional rights during his December 26, 2020 arrest. Plaintiff states that on

December 26, 2020, he was arrested, called a racial slur, and had $5,000.00 stolen from

his vehicle during the arrest (Doc. 1 at 5). Plaintiff claims that these actions violated the

Fourteenth Amendment to the U.S. Constitution as well as “statutes regulating police

conduct” and asks the Court to award him money damages and requests the body camera

footage from his arrest and the related search of his vehicle (Id.).

II. LEGAL STANDARDS

Under 28 U.S.C. § 1915, the Court may, upon a finding of indigency, authorize

the commencement of an action without requiring the prepayment of fees or security

therefor. 28 U.S.C. § 1915(a)(1). When an application to proceed in forma pauperis is filed,

the court must review the case and dismiss it sua sponte if the court determines the action

is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-

(iii). The phrase “fails to state a claim upon which relief may be granted” has the same

meaning as the nearly identical phrase in Federal Rule of Civil Procedure 12(b)(6). See

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (“The language of section

1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6), and we

will apply Rule 12(b)(6) standards in reviewing dismissals under section

1915(e)(2)(B)(ii).”); Azar v. Nat'l City Bank, 382 F. App’x 880, 884 (11th Cir. 2010).

The pleadings of a pro se litigant are held to a less stringent standard than those

drafted by an attorney and must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520

(1972); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). But a court

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does not have “license . . . to rewrite an otherwise deficient pleading [by a pro se litigant]

in order to sustain an action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359,

1369 (11th Cir. 1998), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Where a district court determines from the face of the complaint that the factual

allegations are baseless or the legal theories are without merit, the court may conclude a

case has little or no chance of success and dismiss the complaint before service of process.

Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).

Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he

pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Rule 10(b) further provides that “[a] party must state its claims or defenses in

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

Fed. R. Civ. P. 10(b).

III. ANALYSIS

According to Plaintiff’s in forma pauperis motion, he has no income, no

employment, and no assets (Doc. 2). Plaintiff has demonstrated he cannot pay the filing

fee and is financially eligible to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1).

Nonetheless, the undersigned recommends Plaintiff’s complaint be dismissed because it

fails to state a claim and fails to comply with the Federal Rules of Civil Procedure.

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a. Failure to State a Claim

i. Bivens

Plaintiff purports to bring a Bivens claim against Defendants in their individual

capacities for violating his constitutional rights as well as unnamed statutes regulating

police conduct. A Bivens claim against officers of the Tampa Police Department is

improper. In Bivens, the Supreme Court held that “there exists an implied private right of

action for damages against federal officers for violating a citizen’s constitutional rights.”

Taylor v. Pekerol, 760 F. App’x 647, 652 (11th Cir. 2019) (per curiam) (citing Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 66 (2001)). In light of this authority, Plaintiff’s Bivens claim

against officers of the Tampa Police Department—a local police department—fails. See

Groover v. Israel, No. 15-61902-Civ-BLOOM, 2015 WL 13310464, at *3 (S.D. Fla. Sept.

14, 2015) (“Because the United States, federal entities, and local government employees

are not subject to suit under Bivens, any Bivens claim should be dismissed with prejudice

as to [the County Sheriff] and the United States Bureau of Prisons.”).

ii. 1983

Even assuming Plaintiff brought an action pursuant to 42 U.S.C. § 1983, his claim

would fail. To state a claim under § 1983, Plaintiff must allege that some person, acting

under color of state law, deprived him of “rights, privileges, or immunities secured by the

Constitution and Laws of the United States.” 42 U.S.C. § 1983; Bannum, Inc. v. City of Ft.

Lauderdale, 901 F.2d 989, 996–97 (11th Cir. 1990). Here, while Plaintiff alleges a violation

of his Fourteenth Amendment rights, he fails to articulate (1) which right guaranteed by

the Fourteenth Amendment was violated, and (2) how that right was violated. “[S]imply

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identifying the Fourteenth Amendment is insufficient.” Simms v. Juliano, No. 6:23-cv-881-

CEH-LHP, 2023 WL 11257270, at *2 (M.D. Fla. July 5, 2023).

As set forth above, Plaintiff alleges that $5,000.00 was stolen from his vehicle

during his arrest and as a result, his Fourteenth Amendment rights were violated. The

Due Process Clause of the Fourteenth Amendment provides that a state shall not “deprive

any person of life, liberty or property, without due process of law.” U.S. Const. amend.

XIV, § 1. This clause provides individuals two separate forms of constitutional protection:

substantive due process and procedural due process. Littlejohn v. Sch. Bd. of Leon Cty., Fla.,

132 F.4th 1232, 1239 (11th Cir. 2025). “The substantive component of the Due Process

Clause ‘protects individual liberty against certain government actions regardless of the

fairness of the procedures used to implement them.’” Hoefling v. City of Miami, 811 F.3d

1271, 1282 (11th Cir. 2016) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115,

125 (1992)). The procedural component of the Due Process Clause, on the other hand, is

“meant to protect persons not from the deprivation, but from the mistaken or unjustified

deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). A

violation of either of these protections may form the basis for a § 1983 claim. Cf. Zinermon

v. Burch, 494 U.S. 113, 125 (1990). Because Plaintiff’s complaint fails to clarify the theory

under which he intends to assert his claims, the Court will address each theory in turn.

1. Substantive Due Process

To the extent Plaintiff intends to claim that Defendants violated his substantive

due process rights, he would need to allege “(1) a deprivation of a constitutionally

protected interest, and (2) that the deprivation was the result of an abuse of governmental

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power sufficient to raise an ordinary tort to the stature of a constitutional

violation.” Hoefling, 811 F.3d at 1282 (citation and internal quotation marks omitted).

Property rights, however, “are not created by the Constitution. Rather, they are created

and their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law—rules or understandings that secure certain benefits

and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S.

564, 577 (1972). In other words, property rights are state-created rights that are not

entitled to substantive due process protection. Greenbriar Vill., L.L.C. v. Mt. Brook City, 345

F.3d 1258, 1263 (11th Cir. 2003); DeKalb Stone, Inc. v. Cty. of DeKalb, 106 F.3d 956, 959–

60 & n.6 (11th Cir. 1997). Accordingly, Plaintiff does not raise a viable substantive due

process claim.

2. Procedural Due Process

To the extent Plaintiff intends to claim that Defendants violated his procedural due

process rights, Plaintiff would need to allege facts showing “(1) a deprivation of a

constitutionally-protected liberty or property interest; (2) state action; and (3)

constitutionally-inadequate process.” Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir.

2006). Here, Plaintiff has failed to allege an inadequate process. “It is the state’s failure

to provide adequate procedures to remedy the otherwise procedurally flawed deprivation

of a protected interest that gives rise to a federal procedural due process claim. This rule

(that a section 1983 claim is not stated unless inadequate state procedures exist to remedy

an alleged procedural deprivation) recognizes that the state must have the opportunity to

‘remedy the procedural failings of its subdivisions and agencies in the appropriate fora—

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agencies, review boards, and state courts’ before being subjected to a claim alleging

a procedural due process violation.” Cotton v. Jackson, 216 F.3d 1328, 1330–31 (11th Cir.

2000); see also Hudson v. Palmer, 468 U.S. 517, 532–33 (1984) (holding that post-deprivation

procedures satisfy procedural due process requirements where “a loss of property is

occasioned by a random, unauthorized act by a state employee, rather than by an

established state procedure,” because in such cases it would be “not only impracticable,

but impossible, to provide a meaningful hearing before the deprivation”) (citations

omitted). “This directive is not an exhaustion requirement. Instead, this directive is a

recognition that procedural due process violations do not even exist unless no adequate

state remedies are available.” Cotton, 216 F.3d at 1331 n.2. Plaintiff does not allege that

adequate state remedies to rectify the alleged theft of his property are not available.

Accordingly, Plaintiff does not raise a viable procedural due process claim.

b. Pleading

In addition to the substantive issues outlined above, Plaintiff’s complaint is also

due to be dismissed for failure to comply with the Federal Rules of Civil Procedure.

Plaintiff has not plead the alleged facts or causes of action in separately numbered

paragraphs.2 Instead, his claims and supporting allegations appear scattered throughout

his complaint, including in his attachments. The consequence is that his complaint does

not constitute the type of “short and plain statement” required by Rule 8 and leaves the

reader “guess[ing] at precisely what [he is] claiming.” Holbrook v. Castle Key Ins. Co., 405

2 Indeed, Plaintiff did not even list the “statute regulating police conduct” that Defendants

allegedly violated (Doc. 1 at 5).

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F. App’x 459, 460 (11th Cir. 2010) (per curiam) (quoting Byrne v. Nezhat, 261 F.3d 1075,

1128 (11th Cir. 2001)). Compounding this problem is the fact Plaintiff has named 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 v. Palm Beach

Cty. Sheriff's Off., 792 F.3d 1313, 1323 (11th Cir. 2015).

That Plaintiff is proceeding pro se does not excuse his failure to comply with the

basic pleading requirements set forth in Rules 8 and 10. McNeil v. United States, 508 U.S.

106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil

litigation should be interpreted so as to excuse mistakes by those who proceed without

counsel.”); Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (per curium) (noting

that, while “[a] pro se pleading is held to a less stringent standard than a pleading drafted

by an attorney[, it] must still suggest that there is at least some factual support for a claim”)

(citation omitted).

The undersigned recommends that Plaintiff’s complaint be dismissed without

prejudice. It is further recommended that Plaintiff be allowed to file an amended

complaint, which should set forth – in a single document – the basis for the Court’s

jurisdiction and the factual allegations establishing a claim for relief in this forum. See

Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (“Ordinarily, a party must be

given at least one opportunity to amend before the district court dismisses the

complaint.”).

Accordingly, it is RECOMMENDED:

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1. Plaintiffs Application to Proceed Im Forma Pauperis (Doc. 2) be denied

without prejudice.

2. Plaintiffs Complaint (Doc. 1) be dismissed without prejudice and with

leave to amend.

3. Plaintiff be allowed to file an amended complaint that sets forth factual

allegations establishing a claim for relief and to file a renewed request to proceed in forma

pauperis.”

4, Plaintiff be advised that failure to file an amended complaint may result in

dismissal of this case with prejudice and without further notice.

IT IS SO REPORTED in Tampa, Florida, on May 16, 2025.

: ~L—

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

> Plaintiff is encouraged to consult the “Litigants Without Lawyer” guidelines on the

Court’s website, located at http:// wow frig -uscourts.gov/ litigants-without-lawyers.

NOTICE TO PARTIES

Within fourteen days after being served with a copy of this Report and

Recommendation, any party may serve and file written objections to the proposed findings

and recommendations or request an extension of time to do so. 28 U.S.C. § 636(b)(1);

11th Cir. R. 3-1. Failure of any party to timely object in accordance with the provisions

of § 636(b)(1) waives that party’s right to challenge on appeal the district court’s order

based on the unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1.

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