# Cannon v. City of Port St. Lucie

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

URL: https://www.frixlaw.com/law-library/cases/11113188

## Case

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

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT PIERCE DIVISION

CASE NO. 24-14235-CIV-CANNON/McCabe
EDDIE M. CANNON,

Plaintiff,
v.

CITY OF PORT ST. LUCIE, et al.,

Defendants.
_______________________________/
ORDER ACCEPTING MAGISTRATE JUDGE’S
REPORTS AND RECOMMENDATIONS [ECF Nos. 61, 63]

THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss Plaintiff’s
Second Amended Complaint (the “Motion”) [ECF No. 29], and Plaintiff’s Motion for Default
Judgment Against Defendant Dayana Cannon (the “Default Motion”) [ECF No. 47]. Both motions
were referred to Magistrate Judge Ryon M. McCabe for reports and recommendations [ECF No.
55]. On June 24, 2025, Magistrate Judge McCabe issued Reports on both motions recommending
the following:
(1) Defendants’ Motion be granted in part and denied in part, dismissing with prejudice
Plaintiff’s federal claims (Counts I and III) and remanding the remaining state claims
(Counts II and IV through VI) [ECF No. 61]; and
(2) Plaintiff’s Default Motion (alleging a state law malicious prosecution claim against
Defendant Dayana Cannon, Count VI) be denied as moot without prejudice, to be
renewed in state court in light of the recommendation that Plaintiff’s state claims
should be remanded to state court [ECF No. 63].
Plaintiff filed objections to the Report on Defendant’s Motion [ECF No. 64] but did not file
objections to the Report on his Default Motion and the time to do so has expired.1
The Court has reviewed both Reports [ECF Nos. 61, 63], Plaintiff’s Objections [ECF No.
64], and the full record. Upon review, the Court finds both Reports to be sound and well-reasoned.
Accordingly, for the reasons set forth below, both Reports [ECF Nos. 61, 63] are ACCEPTED.
Defendants’ Motion [ECF No. 29] is GRANTED IN PART AND DENIED IN PART in
accordance with this Order. Counts I and III of Plaintiff’s Second Amended Complaint

[ECF No. 11] are DISMISSED WITH PREJUDICE. The Court declines to exercise
supplemental jurisdiction over Counts II, IV, V, and VI, and this case is REMANDED to the
Circuit Court of the Nineteenth Judicial Circuit in and for St. Lucie County, Florida. Plaintiff’s
Motion for Default Judgment Against Defendant Dayana Cannon [ECF No. 47] is DENIED AS
MOOT without prejudice to renew in state court. The Clerk is directed to CLOSE the case.
RELEVANT BACKGROUND2
In this civil rights action, Plaintiff sues his ex-wife, the City of Port St. Lucie, and a City
police officer, alleging malicious prosecution for the theft of $158 worth of water [ECF No. 11].
Plaintiff is a Port St. Lucie resident who, at all relevant times, was embroiled in an acrimonious
divorce from Defendant Dayana Cannon (the “Ex-Wife”) [ECF No. 11 ¶¶ 10, 17]. Plaintiff alleges

that, in an effort to gain an upper hand in the divorce, Ex-Wife filed a false police report against
Plaintiff in March of 2022 [ECF No. 11 ¶ 10, 13–14, 17]. The report alleged that Plaintiff stole

1 Defendants did not object to either Report or file a response to Plaintiff’s objections, and the time
to make either such filing has expired. See Fed. R. Civ. P. 72(b)(2).

2 These facts are taken from Plaintiff’s Second Amended Complaint [ECF No. 11] and are accepted
as true for purposes of this Order. As discussed below, under the incorporation by reference
doctrine, the Court also considers video footage filed by Defendants in connection with their
Motion.
water from Ex-Wife by turning on the faucet at her business and allowing it to run freely for nearly
20 hours, resulting in a $158 water bill [ECF No. 11 ¶¶ 12, 18].
Defendant Officer Nichols took the report on behalf of the Port St. Lucie Police
Department, relying upon the details relayed to him by Ex-Wife [ECF No. 11 ¶ 12]. In addition
to the Ex-Wife’s account, the police report referenced surveillance video footage of the incident
and reported that both Ex-Wife and Officer Nichols recognized Plaintiff as the man in the video
footage [ECF No. 11 ¶ 20–21]. The Court has reviewed the surveillance video footage, and it

shows that a man drove to the business, double-parked his vehicle in front of an exterior water
spigot, exited the vehicle, turned on the spigot, and then drove away, leaving the water to flow
continuously into the parking lot.3
Based on Ex-Wife’s statements and the video footage, Officer Nichols obtained an arrest
warrant for Plaintiff on charges of first-degree petit theft [ECF No. 11 ¶¶ 29, 31]. On March 29,
2022, multiple police officers employed by the City arrested Plaintiff at his home pursuant to the
outstanding arrest warrant [ECF No. 11 ¶¶ 29–31]. During the arrest, Plaintiff attempted to
explain, to no avail, that he co-owned the subject property [ECF No. 11 ¶ 33]. The State Attorney’s
Office subsequently filed a “No Information,” dropping the charges [ECF No. 11 ¶ 40].
Based on these events, Plaintiff sued his Ex-Wife, Officer Nichols, and the City in state

court, alleging numerous claims, including violations of 42 U.S.C. § 1983 [ECF No. 1-1 p. 12–

3 With leave of Court, Defendants filed the video footage as part of the pending Motion [ECF Nos.
31, 52]. Under the incorporation-by-reference doctrine, the Court “may properly consider a
document [or item of evidence] not referred to or attached to a complaint” when resolving a motion
to dismiss “if the document [or item] is (1) central to the plaintiff’s claims; and (2) undisputed,
meaning that its authenticity is not challenged.” Johnson v. City of Atlanta, 107 F.4th 1292, 1300
(11th Cir. 2024) (permitting consideration of bodycam footage at the motion to dismiss stage).
The Court agrees with the Report that both elements are satisfied here because (1) the video is
referenced in the Second Amended Complaint and plainly depicts the alleged theft—the
prosecution which forms the basis for Plaintiff’s claims; and (2) Plaintiff has confirmed that he
does not contest the authenticity of the video [see ECF No. 61 p. 2 n.1].
25]. Officer Nichols and the City thereafter removed the case to this Court based on federal
question jurisdiction [ECF No. 1]. Plaintiff subsequently filed the operative Second Amended
Complaint (the “Complaint”), alleging the following causes of action:
• Count I: Deprivation of rights under color of law in violation of 42 U.S.C.
§ 1983 against the City

• Count II: State law vicarious liability against the City
• Count III: Malicious prosecution in violation of 42 U.S.C. § 1983 against
Officer Nichols

• Count IV: Florida state law malicious prosecution against Officer Nichols
• Count V: Florida state law false arrest against Officer Nichols
• Count VI: Florida state law malicious prosecution against Ex-Wife Dayana
Cannon4

[ECF No. 11].

LEGAL STANDARD
To challenge the findings and recommendations of a magistrate judge, a party must file
specific written objections identifying the portions of the proposed findings and recommendation
to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822
(11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court
reviews de novo those portions of the report to which objection is made and may accept, reject, or
modify in whole or in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(1). To the extent a party fails to object to parts of the magistrate judge’s report,
the Court may accept the recommendation so long as there is no clear error on the face of the
record. Macort, 208 F. App’x at 784.

4 Defendant Dayana Cannon has failed to respond to the Complaint and remains in default
[ECF No. 36].
DISCUSSION
As previewed, the Report recommends that both of Plaintiff’s federal claims (Counts I and
III) be dismissed with prejudice and that the remaining state law claims be remanded to state court
[ECF No. 61]. Plaintiff raises several objections to the Report’s analysis of Counts I and III
[ECF No. 64]. For the reasons below, the Court finds these objections to be without merit. Like
the Report and Plaintiff’s objections, the Court begins with Court III.
I. Count III: Fourth Amendment § 1983 Claim for Malicious Prosecution against
Officer Nichols

The Report on Defendants’ Motion to Dismiss begins with Count III: the Fourth
Amendment claim filed pursuant to § 1983 for malicious prosecution against Officer Nichols
[ECF No. 61 pp. 4–9]. On that Count, the Report concludes that Officer Nichols is entitled to
qualified immunity because, based on the Ex-Wife’s allegations and the video footage, Officer
Nichols had arguable probable cause to arrest Plaintiff under the Florida Theft Statute Fla. Stat.
§ 812.014 [ECF No. 61 pp. 7–9]. Accordingly, the Report recommends that Count III be dismissed
with prejudice [ECF No. 61 p. 14]. Plaintiff raises several objections to the Report’s analysis of
Court III. But ultimately, the Court agrees with the Report’s assessment.
A. Qualified Immunity5
First, Plaintiff incorrectly argues that the Complaint contains sufficient allegations to
conclude that Officer Nichols arrested Plaintiff “without probable cause,” and therefore the Report
erred in recommending dismissal of the malicious prosecution claim in Count III [ECF No. 64
pp. 2–3]. In support of his belief that Officer Nichols lacked probable cause to arrest, Plaintiff

5 Plaintiff objects that a defense of “qualified immunity is inappropriate at the motion to dismiss
stage” [ECF No. 64 p. 6]. But the Eleventh Circuit has “repeatedly” held just the opposite,
explaining that “[a] district court must adjudicate a defense of qualified immunity at whatever
stage it is raised.” Miller v. Palm Beach Cnty. Sheriff’s Off., 129 F.4th 1329, 1333 (11th Cir. 2025)
(holding that district court erred by reserving ruling on qualified immunity until summary
judgment).
points to the allegations that he had a shared interest in the subject property; he accessed the
property in a non-criminal manner; the water bill was “incidental”; and “no intent to steal or
deprive another of a benefit was established” [ECF No. 64 pp. 2–3]. This objection fails. As a
preliminary point, the Report does not address whether Officer Nichols’s arrest of Plaintiff was
supported by actual probable cause because, as the Report correctly observes, an officer need only
have “arguable” probable cause to receive qualified immunity in the context of a § 1983 malicious
prosecution claim. See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1257 (11th Cir. 2010).

Judged against that standard, and based on a review of the allegations in the Complaint and the
incorporated video footage, the Court agrees with the Report that Officer Nichols had at least
arguable probable cause to arrest Plaintiff for knowingly depriving his Ex-Wife of a right to
property (the water), in violation of Fla. Stat. § 812.014. As the Report observes, the video shows
that Plaintiff drove to the business, double-parked his vehicle in front of the building’s exterior
water spigot, exited his vehicle, turned on the water spigot, and then drove away, leaving the water
to flow continuously into the parking lot. The Complaint further alleges that Ex-Wife showed the
footage to Officer Nichols, claimed that she owned the business, and that Plaintiff’s actions
resulted in a $158 water bill the following month [ECF No. 11 ¶¶ 18–20]. Based on those facts,
Officer Nichols had at least arguable probable cause to arrest Plaintiff for a violation of Florida’s

theft statute.
Second, Plaintiff contends that Officer Nichols unreasonably failed to verify the owner of
business and relied on the Ex-Wife’s account [ECF No. 64 pp. 1–6], making the Report’s
application of qualified immunity erroneous.6 Like the Report, the Court is not persuaded by
Plaintiff’s insistence that Officer Nichols needed to do more work before making his probable

6 Though packaged under four separate objection headings, substantively, these objections are
really one and the same [ECF No. 64 pp. 1–6 (objection headings A, D, F, and G)].
cause determination. An officer need not “explore or eliminate every theoretically plausible claim
of innocence” to have probable cause. Washington v. Rivera, 939 F.3d 1239, 1246 (11th Cir. 2019)
(quotation and internal citation omitted). “Nor does an officer’s failure to interview a suspect,
without more, undermine probable cause.” Hernandez v. Sheriff of Manatee Cnty., Fla., No. 24-
10011, 2025 WL 1927522, at *3 (11th Cir. July 14, 2025); see District of Columbia v. Wesby, 583
U.S. 48, 61 (2018) (“[P]robable cause does not require officers to rule out a suspect’s innocent
explanation[.]”). This is why, for example, the Eleventh Circuit determined in Kingsland v. City

of Miami, 382 F.3d 1220, 1224 (11th Cir. 2004), that factual issues prevented the grant of qualified
immunity on summary judgment—where officers “didn’t just fail to follow-up or even turn a blind
eye, they affirmatively misrepresented their intentions and came dangerously close—if they didn’t
go all the way—to manufacturing evidence.” Huebner v. Bradshaw, 935 F.3d 1183, 1190 (11th
Cir. 2019) (emphasis added) (distinguishing Kingsland); Hernandez, 2025 WL 1927522, at *3
(noting that “only an investigative defect—like when an officer ‘consciously and deliberately
d[oes] not make an effort to uncover reasonably discoverable, material information’—undermines
probable cause”) (quoting Kingsland, 382 F.3d at 1230). Compare that to the facts here, where
Plaintiff makes no allegation that Officer Nichols made affirmative misrepresentations or
consciously and deliberately ignored material facts. Nor has Plaintiff identified any caselaw

suggesting that Officer Nichols had an obligation under like circumstances to conduct further
investigation before making his probable cause determination. The arrest was supported by at
least arguable probable cause. Plaintiff’s objections on this point fail.
B. The Surveillance Video Footage
Plaintiff next says that the Report improperly weighed the evidence by relying on the video
footage, and that the Report further misstated the legal effect of the video [ECF No. 64 pp. 3–4].
Not so. First, Plaintiff is mistaken that “[c]ourts may consider video at the motion to dismiss stage
only where it ‘blatantly contradicts’ the plaintiff’s allegations” [ECF No. 64 p. 3]. There is no
such precondition to a court’s consideration of the information under the incorporation by
reference doctrine, although it is true that courts construe all ambiguities in video footage in favor
of a plaintiff’s account at the pleading stage. Baker v. City of Madison, Alabama, 67 F.4th 1268,
1277–1278 & n.3 (11th Cir. 2023). The Court is thus not prohibited from considering the video at
all under the incorporation by reference doctrine. Id. at 1277 n.3 (specifically rejecting argument
that ambiguities in video evidence and disagreements over a video’s content preclude

consideration of video by the court). Second, Plaintiff argues that the video does not fully establish
the necessary elements of Florida’s theft statute, Fla. Stat. § 812.014 [ECF No. 64 p. 4], but this
argument ignores the settled understanding that arguable probable cause does not require an officer
to definitively determine that all of the elements of a crime have been satisfied. See Brown v. City
of Huntsville, Ala., 608 F.3d 724, 735 (11th Cir. 2010) (“Showing arguable probable cause does
not, however, require proving every element of a crime.”); see also Von Stein v. Brescher, 904
F.2d 572, 579 (11th Cir. 1990). Moreover, the Report did not rely on the video footage to
definitively resolve the issues of Plaintiff’s intent or the property rights in the water. Rather, the
Report relied on the video—in conjunction with the Ex-Wife’s account as set forth in the
Complaint—to conclude that, even construing the facts in the light most favorable to Plaintiff,

Officer Nichols had arguable probable cause to believe Plaintiff committed theft of the water,
[ECF No. 61 pp. 3, 7–9]. That decision was and remains correct, for the reasons already
discussed.7
The federal malicious prosecution claim in Count III is due to be dismissed.

7 In a final, passing attempt to avoid any consideration of the video, Plaintiff says that “reliance on
video footage without context or authentication (e.g., timestamps, angles, who operated the
camera) is improper without discovery” [ECF No. 64 p. 4]. But as already noted, Plaintiff admits
the video is authentic. See supra p. 3 n.3.
II. Count I: Deprivation of Fourth Amendment rights in violation of 42 U.S.C. § 1983
against the City

The Report then turns to Count I, as does this Court: the Monell claim against the City
[ECF No. 61 pp. 9–13]. The Report concludes that Count I fails for two reasons. First, since
Officer Nichols is entitled to qualified immunity on Count III, Plaintiff has no plausible claim
against Officer Nichols for an underlying constitutional violation, and therefore Plaintiff has no
plausible Monell claim against the City stemming from that purported violation [ECF No. 61
p. 10]. Second, the Report concludes that, even without the qualified immunity defense as to
Nichols, the Complaint fails to allege sufficient facts to support a Monell claim [ECF No. 61
pp. 10–13]. Plaintiff takes issue with both of those determinations, claiming that (1) municipal
liability can still persist despite the application of qualified immunity as to Officer Nichols and
(2) the Complaint nonetheless sufficiently alleges Monell liability against the City, even setting
aside qualified immunity for Officer Nichols [ECF No. 64 pp. 6–7]. The Court agrees with the
Report.
First, contrary to Plaintiff’s arguments, the Report correctly dismissed Plaintiff’s Monell
claim against the City upon concluding that Officer Nichols is entitled to qualified immunity.
Plaintiff claims error in that decision, citing Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir.
1985), but Anderson does not help Plaintiff here. In Anderson, the plaintiff brought § 1983 claims
alleging that individual officers and the City of Atlanta deprived him of his right to life through
deliberate indifference to his serious medical needs, ultimately resulting in his death at the jail. Id.
at 686. After the jury found no liability on the claims as to the individual officers, the Eleventh
Circuit reasoned that the city still faced potential liability, because (1) the plaintiff traveled under

a theory that the deprivation of his constitutional rights was a result of jail understaffing and (2) the
trial record contained evidence of such understaffing. Id. at 686. In that specific context, the
Eleventh Circuit explained that it was consistent to impose liability on the city despite the absence
of individual liability as to the officers. Id. That unique situation does not map on to this case.
Indeed, Plaintiff’s Complaint rests on the alleged conduct of an individual officer allegedly
reaching an erroneous probable cause determination, without any City-specific allegations
independent of Officer Nichols’s conduct [ECF No. 11]. So Plaintiff’s reliance on Anderson is
misplaced. Moreover, nothing in Anderson detracts from the general rule—as correctly recognized
in the Report—that a city cannot be liable for the purported constitutional violation of its officers
when no such violation occurred. See Knight through Kerr v. Miami-Dade Cnty., 856 F.3d 795,

821 (11th Cir. 2017) (“There can be no policy-based liability or supervisory liability when there
is no underlying constitutional violation”); Andrews v. Marshall, 845 F. App’x 849, 855 (11th Cir.
2021) (finding Monell claim failed where claim was based on an alleged false arrest that was
supported by arguable probable cause). That is the case here; the Complaint targets the actions of
Officer Nichols alone, and in the absence of a Fourth Amendment constitutional violation by
Officer Nichols, “Plaintiff likewise has no plausible Monell claim against the City stemming from
that [alleged] violation” [ECF No. 61 p. 10 (emphasis added)]. The Court finds no basis to disturb
that conclusion.
Lastly, to the extent Plaintiff faults the Report for generally concluding that the Complaint
lacks sufficient allegations to support Monell liability [ECF No. 64 pp. 6–7], the Court concurs

with the Report’s analysis [ECF No. 61 pp. 10–14]. As the Report recognizes, “without notice of
a need to train or supervise in a particular area, a municipality is not liable as a matter of law for
any failure to train and supervise.” Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998);
see ECF No. 61 pp. 12–13 (citing Gold and Connick v. Thompson, 563 U.S. 51, 62 (2011)). There
are simply no facts in the Complaint suggesting such notice here. The best Plaintiff can muster is
a request to proceed to discovery so he can “determine whether other instances of misconduct
exist” [ECF No. 64 p. 7]. But adopting Plaintiff’s “less stringent standard of fault for a failure-to-
train [or supervise] claim would result in de facto respondeat superior liability on
municipalities . . . .” Connick, 563 U.S. at 62. The Court agrees with the Report that Count I is
due to be dismissed.
***
Finally, based on the Report’s conclusion that Plaintiff’s federal claims fail, the Report
recommends that the state law claims in Counts II, IV, V, and VI be remanded to state court
[ECF No. 61 pp. 13–14]. No party objects to that analysis. And upon review, the Court agrees

that remand is warranted.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Reports and Recommendations [ECF Nos. 61, 63] are ACCEPTED.
2. Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint [ECF No.
29] is GRANTED IN PART AND DENIED IN PART in accordance with this
Order.
a. Counts I and III of Plaintiff’s Second Amended Complaint [ECF No. 11
¶¶ 43–49, 61–66] are DISMISSED WITH PREJUDICE.8
b. The Motion is otherwise DENIED based on the Court’s remand. The Court

expresses no opinion about the merits of those claims.
3. This case is REMANDED to the Circuit Court of the Nineteenth Judicial Circuit
in and for St. Lucie County, Florida.

8 Plaintiff has not requested leave to amend or identified any specific, non-speculative allegations
he would add if granted further leave to amend. In any event, the Court agrees with the Report
that any further amendment would be futile given Plaintiff’s three opportunities to plead his claims
[ECF No. 1-1 p. 2 (noting initial amendment); ECF No. 1-1 p. 12 (Amended Complaint); ECF No.
11 (Second Amended Complaint)].
CASE NO. 24-14235-CIV-CANNON/McCabe
4. Plaintiffs Motion for Default Judgment Against Defendant Dayana Cannon
[ECF No. 47] is DENIED AS MOOT without prejudice to renew in state court.
5. The Clerk shall CLOSE this case.
ORDERED in Chambers at Fort Pierce, Florida, this 31st day of July 2025.

CZ, CANNON
UNITED STATES DISTRICT JUDGE
ce: counsel of record

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11113188. Public record. Not legal advice.