# Kelly v. Bartow Police Department

> District Court, M.D. Florida · June 24, 2025

URL: https://www.frixlaw.com/law-library/cases/11083253

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 24, 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

ROBERT WILLIAM KELLY,

Plaintiff,

v. Case No: 8:23-cv-548-CEH-AAS

CITY OF BARTOW, FL,

Defendant.
___________________________________/
ORDER
This matter comes before the Court on Defendant City of Bartow’s Motion to
Dismiss Count III of Plaintiff’s Third Amended Complaint with Prejudice (Doc. 36).
In the motion, Defendant requests dismissal with prejudice of Plaintiff's § 1983 claim
against the City of Bartow because Plaintiff fails to plead a policy or custom that was
a moving force behind the alleged constitutional violation. The Court, having
considered the motion and being fully advised in the premises, will grant Defendant
City of Bartow's Motion to Dismiss Count III of Plaintiff's Third Amended Complaint,
dismiss the federal claim with prejudice, decline to exercise supplemental jurisdiction
over the remaining state law claims, and dismiss the state law claims without
prejudice.
I. BACKGROUND1

1 Unless otherwise stated, the following statement of facts is derived from the Third Amended
Complaint (Doc. 34), the allegations of which the Court must accept as true in ruling on the
instant Motion to Dismiss. Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality
On October 18, 2020, Plaintiff Robert Kelly (“Plaintiff”) was operating a motor
vehicle near the intersection of Highway 17 and Georgia Street in Bartow, Florida,
when Plaintiff observed an accident involving several vehicles that was impeding

traffic. Doc. 34 ¶ 8. As he approached the accident scene, numerous vehicles were
attempting to drive around the accident in haphazard fashion. Id. ¶ 9. Plaintiff slowed
his vehicle while attempting to go around the accident when Officer Riley approached
from the south, sped up behind Plaintiff’s vehicle and turned on his sirens and lights.
Id. ¶ 10. Startled, Plaintiff reflexively pushed on his gas pedal and then slammed on

his brakes causing his vehicle to lurch and stop. Id. Officer Riley turned his patrol car
around and pulled up behind Plaintiff’s vehicle. Id. Officer Riley exited his vehicle and
demanded Plaintiff exit his vehicle and perform field sobriety tests. Id. ¶ 13.
Plaintiff, who is 64 years old, suffers from osteoarthritis, psoriatic arthritis, and

severe neuropathy. Id. ¶ 12. When asked to perform a field sobriety test, Plaintiff
informed Officer Riley that his back issues due to his medical conditions prevented
him from performing physically demanding portions of the sobriety test. Id. ¶ 13.
Officer Riley did not have Plaintiff perform alternative tests such as “Finger to Nose”
or “Romberg Balance” in addition to or in lieu of the “Walk and Turn test” although

the National Highway Traffic Safety Administration (“NHTSA”) recommends the
former tests when dealing with a driver who is 65 years and older. Id. ¶ 14.

Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th Cir.
1983).
No empty containers of alcohol were found in Plaintiff’s vehicle, nor did Officer
Riley claim to smell the odor of alcohol. Id. ¶¶ 15, 16. Officer Riley knew that Plaintiff
was suffering from physical infirmities, and yet he failed to inquire of Plaintiff as to

prescribed medications. Id. ¶ 17. Although Plaintiff could not perform the “Walk and
Turn” tests, he did twice pass the horizontal gaze nystagmus test, which Plaintiff
alleges is indicative that he was not under the influence of any drugs or alcohol. Id. ¶
18.

Officer Riley arrested Plaintiff for driving under the influence in violation of
Florida Statute § 316.193(1). Id. ¶ 19. After his arrest, Plaintiff consented to a blood
alcohol test which resulted in a BAC of 0.00. Id. Defendant City of Bartow’s written
policies and procedures as set forth in the Bartow Police Department DUI Field Packet
(“BPDFP”) require officers to request urine samples upon a BAC below 0.08

notwithstanding whether the officer has reasonable cause to believe the person has
been driving under the influence of chemical or controlled substances. Id. ¶ 20. Plaintiff
consented to the urinalysis. Id. ¶ 21.
The Defendant did not release Plaintiff, but instead confined him to jail and
initiated criminal proceedings against him, although he consented to testing which

showed he was not under the influence of drugs or alcohol and his BAC was 0.00. Id.
¶ 22. Standardized NHTSA procedures and policies seek to ensure that correct
decisions are made regarding an arrest for driving under the influence by having
officers trained as Drug Recognition Experts (“DRE”) to avoid false arrests and
incarcerations. Id. ¶ 23. Defendant does not train or otherwise employ DREs. Id. On
March 23, 2021, the State of Florida filed a Nolle Prosequi, dismissing the charges
against Plaintiff for driving under the influence. Id. ¶ 24; Doc. 34-2.

II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a
“short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels,
conclusions and formulaic recitations of the elements of a cause of action are not

sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain
sufficient factual matter, which, if accepted as true, would “state a claim to relief that
is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citation omitted). The court, however, is not bound to accept as true a legal
conclusion stated as a “factual allegation” in the complaint. Id.
III. DISCUSSION
In his Third Amended Complaint, Plaintiff sues Defendant City of Bartow

alleging federal and state law claims. Defendant moves to dismiss the federal claim in
Count III. Doc. 36. Defendant notes that the Third Amended Complaint does not
allege the existence of a policy or custom that was a moving force behind the alleged
constitutional violation, but instead, alleges that the constitutional violations were the
result of Defendant’s failure to follow and properly train officers in accord with the
standards of the NHTSA. Id. (citing Doc. 34 ¶ 38). Defendant argues that Plaintiff’s
claim fails because he has not identified a custom or policy to give rise to Monell2

liability. A municipality's failure to train its employees in a relevant respect may be
actionable under § 1983, but “[o]nly where a failure to train reflects a ‘deliberate’ or
‘conscious’ choice by a municipality.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389
(1989).

In Count III, Plaintiff alleges that Defendant failed to follow and properly train
officers in accord with the standards of NHTSA. Doc. 34 ¶ 38. He further alleges
Defendant failed to provide any training related to recognizing how age and common
medical conditions can affect a person’s ability to perform certain field sobriety tests
and failed to train on how to distinguish between symptoms of medical conditions

versus signs of alcohol or drug impairment. Id. In his response, Plaintiff similarly
argues that Defendant “failed to train officers on how to recognize and account for
age-related and medical conditions that could affect a person’s ability to perform
standard sobriety tests.” Doc. 43 at 5. He also argues Defendant failed to employ or
train DREs. Id. at 6–7.

As observed by the Canton Court, “there are limited circumstances in which an
allegation of a ‘failure to train’ can be the basis for liability under § 1983.” Id. Canton,
489 U.S. at 387. A section 1983 plaintiff may impose Monell liability on a city arising

2 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
out of a failure to train, but “[o]nly where a municipality’s failure to train its employees
in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants
can such a shortcoming be properly thought of as a city ‘policy or custom’ that is

actionable under § 1983.” Id. at 389.
A plaintiff can establish deliberate indifference by demonstrating that the
municipality knew of a need for training or supervision but deliberately decided
against taking action. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Here,
although Plaintiff alleges, in conclusory fashion, that Defendant “has been deliberately

indifferent” to the need for training and supervision, Plaintiff does not allege the
existence of a pattern of similar constitutional violations by untrained employees,
which is typically necessary to demonstrate deliberate indifference for purposes of a
failure to train claim. See Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1328

(11th Cir. 2015) (citing Connick v. Thompson, 563 U.S. 51, 62 (2011)). In Weiland, the
Eleventh Circuit upheld dismissal of plaintiff’s failure-to-train claim where plaintiff
failed to allege a pattern of similar constitutional violations by untrained employees.
Id. at 1328–1329. And although the Weiland plaintiff alleged the Sheriff was “on
notice” of the need to promulgate policies pertaining to use of force when dealing with

mentally handicapped persons, no facts were alleged to support the conclusory
allegations of notice. Id. at 1329.
Similarly, Plaintiff’s failure-to-train allegations are insufficient. Plaintiff’s Third
Amended Complaint contains no factual allegations to reflect a pattern of similar
constitutional violations to alert the City of a need to train its officers to be DREs or
to recognize and account for age-related and medical conditions. Nor does Plaintiff
allege any facts in the complaint regarding notice. And his vague reference in his
response about an increasing population of elderly is too conclusory to factually

support evidence of notice. Plaintiff fails to state a claim based on a failure-to-train
theory.
In his response, Plaintiff also argues he has sufficiently pleaded a claim under
Section 1983 because the City’s policies failed to follow NHTSA standards, which
recommend alternative sobriety tests for individuals over 65 years old. Given that

Plaintiff’s Third Amended Complaint alleges that he was younger than 65 at the time
of the stop and his arrest, this argument is unpersuasive.
Lastly, Plaintiff argues that the City’s policy mandating urinalysis tests without
reasonable suspicion violated his Fourth Amendment rights. The Third Amended
Complaint alleges Defendant’s policies set forth in the BPDFP require officers to

request urine samples upon a BAC of .08 or lower, notwithstanding that an officer has
no reasonable cause to believe such person was driving while under the influence. Doc.
34 ¶ 20. While he alleges that he consented to the urinalysis, id. ¶ 21, he does not allege
the results of the urinalysis or when those results became available. Also, noticeably
absent are any factual allegations that the City’s policy was the moving force behind

the alleged constitutional violation. Canton, 489 U.S. at 379 (citing Monell, 436 U.S.
658). “A plaintiff must demonstrate that a municipal decision reflects deliberate
indifference to the risk that a violation of a particular constitutional or statutory right
will follow the decision.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S.
397, 411 (1997). Plaintiff alleges no facts to support that the City’s policy regarding
requiring urinalysis with a BAC at or below .08 was implemented with deliberate
indifference to a risk that constitutional violations will result.

In his response, Plaintiff requests that if the Court grants Defendant’s motion to
dismiss that he be permitted leave to amend to add any “magic words” necessary to
state a claim. The problem with Plaintiff’s allegations is not the absence of “magic
words.” Instead, it is the absence of facts to support the existence of a policy or custom
to support Monell liability. As this is Plaintiff’s Third Amended Complaint (and thus

his fourth attempt), the Court is not inclined to grant further amendment where
Plaintiff has not indicated he has any additional facts to allege. The Court concludes
that further amendment would be futile. Plaintiff’s federal claim in Count III is due to
be dismissed with prejudice.
Plaintiff’s remaining claims against the City of Bartow in Counts I (false arrest)

and II (false imprisonment) arise under Florida law. The resolution of those claims
will require analysis of Florida law. “[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will
point toward declining to exercise jurisdiction over the remaining state-law claims.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). This case has not gone to
trial and is not currently scheduled for trial. Therefore, the Court will decline to
exercise its supplemental jurisdiction over these remaining claims and they will be
dismissed.3 See 28 U.S.C. § 1367(c)(3) (“[D]istrict courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if . . . the district court has
dismissed all claims over which it has original jurisdiction.”); see Jordan v. Mosley, 298

F. App’x 803, 806 (11th Cir. 2008), citing Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–
89 (11th Cir. 2004) (the decision whether to exercise supplemental jurisdiction is
within the discretion of the district court and we have “encouraged district courts to
dismiss any remaining state claims when . . . the federal claims have been dismissed

prior to trial”). Accordingly, it is hereby
ORDERED:
1. Defendant City of Bartow’s Motion to Dismiss Count III of Plaintiff's
Third Amended Complaint with Prejudice (Doc. 36) is GRANTED.
2. Plaintiff’s federal claim against the City of Bartow in Count III of the

Third Amended Complaint is DISMISSED WITH PREJUDICE.
3. The federal claim having been dismissed, the Court declines to exercise
supplemental jurisdiction over the state law claims against City of Bartow in Counts I

3 Because this action was originally filed in federal court, as opposed to being removed to this
court, the state law claims will be dismissed without prejudice to Plaintiff pursuing his state
law claims in state court. “The period of limitations for any claim asserted under subsection
(a) [establishing supplemental jurisdiction] . . . shall be tolled while the claim is pending and
for a period of 30 days after it is dismissed unless State law provides for a longer tolling
period.” 28 U.S.C. § 1367(d). Section 1367(d) “protects plaintiffs who choose to assert
supplemental state-law claims in a federal action. If the court declines to exercise
supplemental jurisdiction over those claims, the plaintiff may assert them in a new action in
state court without fear of being barred by the statute of limitations. This obviously protects
plaintiff when state law might not have provided for tolling during the pendency of the federal-
court case.” 13D Charles Alan Wright et al., Federal Practice & Procedure § 3567.4, 458–59
(3d ed. 2008).
(False Arrest) and II (False Imprisonment) of the Third Amended Complaint. Counts
I and II are DISMISSED WITHOUT PREJUDICE.
4. The Clerk is directed to enter Judgment in favor of Defendant City of
Bartow and against Plaintiff Robert William Kelly, as to the federal claim in Count
III.
5. The Clerk is further directed to terminate any pending motions and
deadlines and close this case.
DONE AND ORDERED in Tampa, Florida on June 24, 2025.

Chakene g AJ ards Ho TO pt yell
Charlene Edwards Honeywell
United States District Judge

Copies to:
Counsel of Record
Unrepresented Parties, if any

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11083253. Public record. Not legal advice.