# Berry v. Smith

> District Court, M.D. Florida · July 31, 2025

URL: https://www.frixlaw.com/law-library/cases/11112437

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11112437

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

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

=_ 9 =_

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11112437. Public record. Not legal advice.