Berry v. Smith

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SHAWN MICHAEL BERRY,

Plaintiff,

v. Case No: 2:25-cv-299-JES-NPM

OFFICER TAYLOR SMITH,

Official Capacity, and CITY

OF PUNTA GORDA, Official

Capacity,

Defendants.

OPINION AND ORDER

This matter comes before the Court on the Motion to Dismiss

(Doc. #17) filed on June 23, 2025, by Defendants Officer Taylor

Smith (“Officer Smith”) and City of Punta Gorda (the “City”)

(collectively, “Defendants”). Plaintiff Shawn Michael Berry

(“Berry”) filed a Response in Opposition (Doc. #20) on July 12,

2025.

For the reasons given below, the motion is GRANTED.

I.

When analyzing a Rule 12(b)(6) motion, a court accepts all

factual allegations in the complaint as true and takes them in the

light most favorable to the plaintiff. Erickson v. Pardus, 551

U.S. 89 (2007). “Legal conclusions without adequate factual

support are entitled to no assumption of truth.” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

The Amended Complaint (Doc. #14) alleges the following: The

City enacted City Ordinance Chapter 26, Section 11.5(z) (the

“Ordinance”), which, inter alia, prohibited the public display of

obscene signs. The City Attorney warned that the Ordinance “was

likely unconstitutional, particularly as applied to protected

political speech in traditional public forums.” (Id. at 5, 8.)

On May 3, 2022, Berry and others protested the Ordinance on

a public sidewalk in Punta Gorda. They held signs saying: “WE THE

PEOPLE SAY FUCK THE BLUE LINE,” “FUCK BIDEN,” and “I HEART

CUMMING.”1 Berry’s sign said: “PUNTA GORDA FUCKING FIRST

AMENDMENT.” Officer Smith approached Berry and cited him under

the Ordinance (Citation No. 205346). (Id. at 7.)

Berry contested the citation (Case No. CE#22-00082544). At

some point later, during unrelated litigation, the Ordinance was

found unconstitutional. On October 12, 2022, the City voluntarily

dismissed the citation and civil proceeding against Berry. Even

so, Berry claims that the “proceeding . . . imposed mandatory

appearances and threats of increasing penalties, which . . .

amounted to a seizure pursuant to legal process within the meaning

of Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020).” (Id.)

From those allegations, Berry brings the following claims,

1 Berry claims that “CUMMING” was a reference to “Smith v.

Cummings.” (Doc. #14, p. 7.) Construing his complaint liberally,

the Court will assume that he means Smith v. City of Cumming, 212

F.3d 1332 (11th Cir. 2000).

seeking: (1) punitive damages against Officer Smith in her

individual capacity and for malicious prosecution by the City; and

(2) declaratory and injunctive relief mandating the City to (a)

“implement and maintain mandatory training for all city code

enforcement officers, police officers, and relevant municipal

employees on the constitutional rights of individuals . . . with

competency testing required for continued enforcement authority,”

and (b) refrain “from enforcing or defending Chapter 26, Section

11.5(z) or any similar ordinance” (Doc. #14, p. 9.)

II.

Defendants raise four grounds for their motion to dismiss:

(1) the malicious prosecution claim fails as Berry was not seized

pursuant to legal process; (2) punitive damages cannot be recovered

against the City in this Section 1983 action; (3) the requests for

injunctive and declaratory relief are moot; and (4) the claims

against Officer Smith fail due to qualified immunity. (Doc. #17,

p. 2.) The first three points are addressed together, then the

Court turns to the qualified immunity issue.

A. Undisputed Arguments

Berry’s Response (Doc. #20) is entirely unresponsive to the

motion. Only one and a half pages of the thirteen-page response

even mention an argument raised by Defendants: qualified immunity.

(Id. at 6–7.) And as discussed below, see Sec. II.B, that portion

of the response is so poor that it does little to no work. The

rest of Berry’s response focuses on irrelevant points that have

not been raised, such as Monell and individual liability (id. at

2–6), general free speech principles (id. at 8–9), and various

abstention doctrines (id. 9–11.) As a result, Defendants’

challenges to Berry’s malicious prosecution claim,2 punitive damag-

es request,3 and injunctive and declaratory relief requests4 are

effectively undisputed.

Moreover, by failing to respond to Defendants’ arguments,

2 Defendants assert that Berry’s malicious prosecution claim

fails as he has not alleged, and cannot allege, seizure “pursuant

to legal process.” (Doc. #17, p. 4–5) (citing Williams, 965 F.3d

at 1157; Kinsland v. City of Miami, 382 F.3d 1220, 1235 (11th Cir.

2004)). Berry suggests that the “mandatory appearances” in his

civil enforcement proceeding constitute a “seizure pursuant to

legal process.” The Court is not convinced. As in Hoffman v.

Smith, No. 2_24-cv-111-SPC-KCD, 2024 WL 5111681, at *1 n.2 (M.D.

Fa. Dec. 13, 2004), it is “unclear if [Berry] attended these

proceedings,” and “[r]egardless, a mere court appearance does not

amount to a seizure pursuant to legal process.” Id. (citing Lyon

v. Borders, No. 8:20-cv-438-SDM-PRL, 2022 WL 2032927 *1 (M.D. Fla.

March 30, 2022)).

3 Defendants assert that Berry’s request for punitive damages

against the City fails as such damages are not available against

a municipality in a Section 1983 action. (Doc. #17, p. 7) (citing

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 261 n.21

(1981)). That is correct. But see Young Apts., Inc. v. Town of

Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir. 2008).

4 Defendants assert that Berry’s declaratory and injunctive

relief requests are moot, as the Ordinance “no longer exists,” and

as the “case” against him has been dismissed. (Doc. #17, pp. 7–

8.) The Court agrees that the requests pertaining to the Ordinance

are moot. Moreover, Berry’s allegations provide no basis for

determining that the staggeringly overbroad mandatory training

regime he seeks is appropriate or necessary. See S.E.C. v. Goble,

682 F.3d 934, 949 (11th Cir. 2012) (expressing “skepticism of [the]

validity” of “obey-the-law” injunctions) (collecting cases).

Berry has abandoned these claims, which itself suffices for

dismissal. Arrington v. Wells Fargo, 842 F. App’x 307, 311 (11th

Cir. 2020) (affirming district court, which found that “by failing

to respond to [defendant]’s substantive arguments, the [pro se

plaintiffs] effectively abandoned their claims.”); Tolbert v.

Monsanto Co., 625 F. App’x 982, 986 (11th Cir. 2015) (affirming

district court which dismissed case and “noted” plaintiffs’

“fail[ure] to respond to the equity and estoppel arguments raised

by corporate [defendants] in their motion to dismiss”); Holland v.

Dep’t of Health & Hum. Servs., 51 F. Supp. 3d 1357, 1376 (N.D. Ga.

2014) (granting motion to dismiss plaintiff’s punitive damages

claim, since by failing to “respond to [d]efendant’s argument,”

plaintiff “abandoned” that claim) (collecting cases).

Thus, Berry’s malicious prosecution claim, request for

punitive damages against the City, and requests for declaratory

and injunctive relief are due to be dismissed.

B. Qualified Immunity

The general principles of qualified immunity are well-

established. Qualified immunity shields government officials from

liability for torts committed in the course of discretionary

duties, unless the conduct violates clearly established statutory

or constitutional rights which would have been known to a

reasonable person. Gervin v. Florence, No. 23-11452, 2025 WL

1618289, at *16 (11th Cir. June 9, 2025). The government official

must first prove she was acting in the scope of discretionary

authority when the alleged wrongful act occurred. DeMarcus v.

Univ. of S. Alabama, 133 F.4th 1305, 1317 (11th Cir. 2025). If

she succeeds on that first step, the burden shifts to the plaintiff

to show a violation of clearly established statutory or

constitutional rights. Id.

There are several limitations on how a plaintiff may satisfy

that burden. Gervin, at *17. Only three methods are available:

(1) caselaw with indistinguishable facts; (2) a principle within

the Constitution, statute, or caselaw; or (3) conduct so egregious

that a constitutional right was clearly violated, even in the total

absence of caselaw. Id.; Lewis v. City of W. Palm Beach, 561 F.3d

1288, 1291–92 (11th Cir. 2009). See also Wate v. Kubler, 839 F.3d

1012, 1018 (11th Cir. 2016); Gilmore v. Georgia Dep’t of Corr.,

No. 23-10343, 2025 WL 1911728, at *12 (11th Cir. July 11, 2025).

In addition, the plaintiff must rely on law already established at

the time of the alleged conduct. Gervin, at *17. “[P]re-existing

law must dictate, that is, truly compel . . . the conclusion for

every like-situated, reasonable government agent that what

defendant is doing violates federal law in the circumstances.”

King v. Pridmore, 961 F.3d 1135, 1145 (11th Cir. 2020).

Here, Berry alleges that Officer Smith was “acting under color

of law” when she issued the citation charging him with violating

the Ordinance. (Doc. #14, p. 4.); (Doc. #17, p. 9); Wood v.

Kesler, 323 F.3d 872, 875 (11th Cir. 2003) (explaining that when

an officer issued a “citation . . . charg[ing] [plaintiff] with

speeding,” it was “clear that [the officer] was acting within the

course and scope of his discretionary authority”); Alston v. City

of Darien, No. CV 216-66, 2017 WL 5560278, at *5 (S.D. Ga. Nov.

17, 2017) (“Case law tends to confirm that officers have discretion

to determine whether to issue a citation”), aff’d, 750 F. App’x

825 (11th Cir. 2018). Thus, Officer Smith was acting within her

discretionary authority as a law enforcement officer during the

entire encounter with Berry.5

The burden now shifts to Berry to show that “qualified

immunity is not appropriate.” DeMarcus, 133 F.4th at 1317.

However, Berry runs afoul of the limitation regarding the three

methods available to meet his burden. As to the first method, he

cites no cases with indistinguishable facts. Gervin, at *17;

Lewis, 561 F.3d at 1291–92. Construing Berry’s complaint

liberally, at best, he relies on the second method — a principle

within the Constitution, statute, or caselaw. However, the

principle he invokes6 is too broad and general to put a reasonable

5 See Corbin v. Prummell, No. 2:22-CV-394-JES-KCD, 2025 WL

1802406, at *5 (M.D. Fla. July 1, 2025) (finding that defendant

“established that he was acting within his discretionary

authority” when plaintiff admitted that defendant “was ‘an on-duty

law enforcement officer acting under color of law’ when he arrested

[plaintiff]”).

6 “[R]etaliation against protected speech, content-based

regulation, and viewpoint discrimination are at the [] core of the

officer on notice that her conduct in the particular circumstances

is prohibited. DeMarcus, 2025 WL 1076822, at *8 (quoting Baxter

v. Roberts, 54 F.4th 1241, 1268 (11th Cir. 2022)). As to the third

method, there are no allegations of “extreme circumstances” or

“particularly egregious facts”7 that would notify any reasonable

officer that her actions “offended the Constitution.” DeMarcus,

2025 WL 1076822, at *9. The conduct alleged here “isn’t in that

universe.” Id.

Moreover, to the extent that Berry asserts that the

unconstitutionality of the Ordinance suffices to show that

qualified immunity is inappropriate, he runs afoul of other

limitations. He cites no binding or persuasive decisions

pertaining or related to the Ordinance. Wate, 839 F.3d at 1018;

Gilmore, 2025 WL 1911728, at *12. He also cites no relevant “pre-

existing” legal authorities. King, 961 F.3d at 1145. As Officer

Smith correctly notes, Berry alleges that the Ordinance was only

rights secured by the First Amendment.” (Doc. #20, p. 7.) That

argument invites the Court to “err[]” by “relying on [a] general

proposition that it is clearly established that [violating core

First Amendment rights is] unconstitutional.” Corbitt v. Vickers,

929 F.3d 1304, 1316 (11th Cir. 2019). It is thus rejected.

7 See Corbin, 2025 WL 1802406, at *7 (explaining that the third

method of overcoming the burden of qualified immunity has only

“applied in situations when an inmate has been left for days in a

cell covered in feces, when an inmate has been handcuffed to a

post for seven hours in the hot sun without access to a bathroom

or much water, and when an arrestee was slammed into a car after

already being handcuffed and controlled.”).

found unconstitutional after he was cited. (Doc. #17, p. 10

(citing Doc. #14, p. 7) (“[T]he City . . . voluntarily dismissed

both the citation and the enforcement action, following litigation

where the same ordinance was found unconstitutional”); Michigan v.

DeFillippo, 433 U.S. 31, 38 (1979) (“Police are charged to enforce

laws until . . . they are declared unconstitutional. The enactment

of a law forecloses speculation by enforcement officers concerning

its constitutionality”). Finally, Berry asserts that the

Ordinance’s pre-existing unconstitutionality was established by

“public debate, media coverage, and repeated citizen warnings.”

(Doc. #20, p. 7.) Those are not legal authorities.

Accordingly, it is now

ORDERED :

1. Defendants Officer Taylor Smith and the City of Punta Gorda’s

Motion to Dismiss (Doc. #17) is GRANTED.

2. Plaintiff Shawn Michael Berry may file an amended complaint

no later than twenty-one days after the issuance of this

Opinion and Order.

DONE AND ORDERED at Fort Myers, Florida, this 31st day of

July 2025.

if an OL

: | hy >» ZAK Loeb

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Parties of record

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