# Barnes v. Defelice

> District Court, M.D. Florida · May 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11071775

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
/

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11071775. Public record. Not legal advice.