Henry

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

CASE NO. 23-14197-CIV-CANNON/McCabe

NELSON HENRY,

Plaintiff,

v.

JOSEPH IANNONE

and JAMES DEACETIS,

Defendants.

___________________________________________

ORDER ACCEPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION [ECF No. 341]

THIS CAUSE comes before the Court upon Magistrate Judge Ryon M. McCabe’s Report

and Recommendation (“Report”) on Defendants’ Motion for Summary Judgment (the “Motion”)

[ECF No. 341 (Report); ECF No. 304 (Motion)]. The Report recommends summary judgment in

favor of Defendants on all of Plaintiff’s remaining claims in the Second Amended Complaint

(“SAC”) [ECF No. 39]—namely, Plaintiff’s Fourth Amendment claims for malicious prosecution

and false arrest, and common law claims for malicious prosecution, false arrest, and intentional

infliction of emotional distress [ECF No. 341]. Plaintiff, proceeding pro se, filed timely Objections

to the Report [ECF No. 345].1

The Court has reviewed the Report [ECF No. 341], Plaintiff’s Objections [ECF No. 345],

Defendants’ Motion and all related filings [ECF Nos. 304–306, 331–333, 336], and the full

1 Plaintiff filed two identical versions of his Objections, one on December 8, 2025 [ECF No. 344]

and one on December 11, 2025 [ECF No. 345]. The Court cites the latter filing in this Order.

summary judgment record.2 For the reasons set forth below, the Report [ECF No. 341] is

ACCEPTED, and the Motion [ECF No. 304] is GRANTED.

RELEVANT PROCEDURAL HISTORY

This case is about a DUI arrest conducted by Officers Iannone and Deacetis of the City of

Port Saint Lucie when they encountered Plaintiff asleep in his parked car on the side of a highway

on January 17, 2021 [ECF No. 39]. Following his arrest, Plaintiff was detained for twelve months

awaiting trial, but state prosecutors ultimately dismissed the DUI case against Plaintiff following

a mistrial (due to juror unavailability and a later determination of double jeopardy preventing a

retrial) [ECF No. 39 ¶¶ 29, 37–38, 75, 93–97]. In July 2023, Plaintiff brought this suit against

Officers Iannone and Deacetis, the City of Port St. Lucie, and the City Manager alleging various

claims stemming from that arrest [ECF No. 1].

At issue now for summary judgment, following two amendments of Plaintiff’s Complaint

and an earlier order dismissing Plaintiff’s claims against the City and City Manager [ECF No. 58],

are the following claims against Officers Iannone and Deacetis: (1) malicious prosecution under

the Fourth Amendment and state common law (Counts I and II); (2) false arrest under the Fourth

2 The summary judgment record includes: Defendant Iannone’s Affidavits [ECF Nos. 304-1; 304-

5; ECF No. 333-1 pp. 12–14, 91–94, 117–118]; the maps of the scene of the arrest [ECF No. 304-

2; ECF No. 333-1 p. 95]; the field sobriety testing paperwork [ECF No. 304-3; ECF No. 333-1

p. 127]; the citations issued to Plaintiff [ECF Nos. 304-4; 304-7]; the incident investigation report

[ECF No. 304-5; ECF No. 333-1 pp. 108–116], Plaintiff’s prisoner intake information [ECF No.

304-8], the property inventories from Plaintiff’s arrest [ECF Nos. 304-14; 304-15; ECF No. 333-

1 pp. 97–100, 119]; Plaintiff’s affidavits detailing the facts of the arrest [ECF No. 304-16; ECF No.

333-1 pp. 1–7], the state-court filings pertaining to Plaintiff’s prosecution for his DUI offense

[ECF Nos. 304-9; 304-10; 304-11; ECF No. 333-1 pp. 78–80, 86–89]; the Operating Procedures

of the Port St. Lucie Police Department [ECF No. 333-1 pp. 20–28]; the various responses to

Plaintiff’s discovery requests [ECF No. 333-1 pp. 30–63, 101–107, 121–125, 129–133]; Plaintiff’s

booking photo [ECF No. 333-1 p. 64]; the internet articles describing officer misconduct submitted

by Plaintiff [ECF No. 333-1 pp. 65–71]; the criminal docket from Plaintiff’s state case [ECF No.

333-1 pp. 73–76]; the officers’ collective bargaining agreement with the City of Port St. Lucie

[ECF No. 333-1 pp. 81–84]; and the body cam footage from the arrest [ECF No. 304-6].

Amendment and state common law (Counts I and III); and (3) intentional infliction of emotional

distress (Count V) [ECF No. 39].3 The Report recommends judgment in favor of Defendants on

those claims, concluding that Defendants had at least arguable probable cause to arrest Plaintiff

for DUI and therefore are entitled to qualified immunity on Plaintiff’s federal claims, on the one

hand, and to state sovereign immunity under Fla. Stat. § 768.28(9)(a) for any alleged tortious

conduct performed within the scope of their employment, on the other [ECF No. 341]. Pertinent

to this conclusion is the video evidence of Plaintiff’s field sobriety tests performed on scene, which

blatantly contradicts Plaintiff’s account of the same and plainly shows that Plaintiff (1) failed to

follow instructions during the first phase of the field sobriety test; (2) swayed and stumbled

numerous times during the second and third phases of the field sobriety test; and (3) stated that he

had “[j]ust one” when asked how much he had to drink [ECF No. 304-6 at 0:57–1:05, 1:31, 3:20–

6:06, 6:09–6:17; ECF No. 39 ¶ 33; ECF No. 305 ¶ 19; ECF No. 332 ¶ 1].4

Plaintiff filed timely Objections to the Report [ECF No. 345]. In those Objections, Plaintiff

claims that the Report improperly resolves factual disputes at the summary judgment stage;

misapplies precedent in determining that the video of the police encounter “blatantly contradicts”

Plaintiff’s account of the interaction; erroneously concludes that officers had arguable probable

cause to arrest him; improperly dismisses Plaintiff’s purported Monell claim; misapplies the “bad

faith” exception to Florida’s sovereign immunity statute, Fla. Stat. § 768.28(9)(a); and otherwise

fails to address Plaintiff’s intentional infliction of emotional distress claim [ECF No. 345]. The

Report is ripe for adjudication [ECF Nos. 341, 345].

3 The Court dismissed Plaintiff’s initial complaint as a shotgun pleading [ECF Nos. 1, 5] and then

permitted two additional amendments: Plaintiff’s First Amended Complaint [ECF No. 7] and then

the operative SAC [ECF No. 39].

4 Although Plaintiff challenges the characterization of the video footage, he does not dispute the

authenticity of the footage or claim that it has been altered in any way. See Baker v. City of

Madison, Al., 67 F.4th 1268, 1277 (11th Cir. 2023).

RELEVANT FACTS

As necessary context to resolve Plaintiff’s Objections to the Report, the Court sets forth

the following facts as drawn from undisputed portions of the summary judgment record.5 As

always, summary judgment is appropriate only if “the movant shows that there is no genuine issue

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. Rule Civ.

Proc. 56(a). Wherever there is a factual dispute, the Court construes the record in the light most

favorable to Plaintiff. Tolan v. Cotton, 572 U.S. 650, 657 (2014). However, notwithstanding

Plaintiff’s version of events, when a video blatantly contradicts one version of the facts “so that

no reasonable jury could believe it, a court should not adopt that version of the facts for purposes

of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

At approximately 3 a.m. on January 17, 2021, Officer Iannone pulled behind Plaintiff’s

car, which was stopped on the side of Veterans Memorial Parkway in Port St. Lucie [ECF No. 306

¶¶ 4–5]. Officer Iannone approached the driver’s side window on foot and saw Plaintiff asleep in

the driver’s seat [ECF No. 305 ¶¶ 8, 10; ECF No. 332 ¶¶ 8, 10]. Officer Deacetis arrived shortly

thereafter [ECF No. 306 ¶ 8]. Officer Iannone then asked Plaintiff to get out of the vehicle to

participate in a roadside field sobriety test, to which Plaintiff agreed [ECF No. 305 ¶ 17; ECF No.

332 ¶ 17]. The field test is captured on police video, filed conventionally by Defendants

[ECF No. 316; ECF No. 304-6].

As depicted on the video, Officer Iannone first moves a pen back and forth in front of

Plaintiff’s face and instructs him to track the pen using only his eyes [ECF No. 305 ¶¶ 18, 20, 21;

ECF No. 332 ¶¶ 18, 20]. Plaintiff repeatedly fails to follow Officer Iannone’s instructions and

5 Unless otherwise noted, these undisputed facts are drawn from the Joint Statement of Undisputed

Facts [ECF No. 306] or from facts in Defendant’s Statement of Material Facts and supporting

exhibits [ECF No. 305] that are neither disputed nor rebutted by Plaintiff in his Response Statement

of Material Facts and supporting exhibits [ECF Nos. 331–332]. See Fed. R. Civ. P. 56(c), (e).

tracks the pen by turning his entire head rather than using only his eyes [ECF No. 304-6 at 0:57-

1:05, 1:31]. Next, Officer Iannone instructs Plaintiff to take nine steps in a straight line in a heel-

to-toe manner with his arms at his sides while counting the steps out loud [ECF No. 305 ¶¶ 18, 24;

ECF No. 332 ¶¶ 18, 24]. The video shows that Plaintiff repeatedly stumbles, sways, and extends

his arms for balance as he performs the exercise [ECF No. 304-6 at 3:20-4:39]. Third, Officer

Iannone instructs Plaintiff to stand on one leg and to hold the other leg six inches off the ground

with his toes pointed out [ECF No. 305 ¶¶ 18, 32; ECF No. 332 ¶¶ 18, 32, 33]. The video also

shows Plaintiff repeatedly swaying and touching his raised foot to the ground to maintain his

balance [ECF No. 304-6 at 4:43-6:06]. At the conclusion of the test, Officer Iannone asks Plaintiff,

“How much have you had to drink my man?” [ECF No. 304-6 at 6:09-6:17]. Plaintiff responds,

“Just one” [ECF No. 304-6 at 6:09-6:17]. Thereafter, Officers Iannone and Deacetis placed

Plaintiff under arrest for DUI [ECF No. 305 ¶ 43; ECF No. 332 ¶ 43]. Plaintiff remained detained

on the DUI charge pending trial until February 2022 [ECF No. 304-9]; the case was dismissed

after a mistrial in June 2022 [ECF No. 304-11].

LEGAL STANDARDS ON REFERRAL

To challenge the 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 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).

DISCUSSION

Upon de novo review of the Report and the full summary judgment record, the Court agrees

with the well-reasoned Report and rejects Plaintiff’s numerous objections, addressed in turn below

in the order in which they are presented.

A. The Report does not improperly resolve factual or credibility disputes at the

summary judgment stage.

In Plaintiff’s first Objection, Plaintiff challenges the Report for purportedly resolving

factual disputes and credibility questions at the summary judgment stage, in violation of Fed. R.

Civ. P. 56 and related Eleventh Circuit caselaw [ECF No. 345 pp. 3–4 (“The R&R repeatedly

accepts the officers’ version of events, including their alleged observations about Plaintiff’s

‘bloodshot eyes,’ ‘odor of alcohol,’ ‘slurred speech,’ ‘stumbling,’ and purported ‘refusal’ to submit

to chemical testing.”)]. This Objection lacks merit. As the face of the Report makes clear,

Magistrate Judge McCabe explicitly declined to weigh disputed evidence in reaching his

conclusion on arguable probable cause [ECF No. 341 p. 9 (“The Court declines to rely upon this

additional evidence, as Plaintiff disputes much of it, including the credibility of the officers’

personal observations.”)]. Indeed, Magistrate Judge McCabe based his probable cause analysis on

the undisputed facts that (1) the officers found Plaintiff asleep at the wheel of his vehicle, (2) he

admitted to having one drink, and (3) he performed poorly on the field sobriety exercises as clearly

displayed in the police footage [ECF No. 341 p. 14]. And, with regard to the field sobriety

exercises, Magistrate Judge McCabe focused on uncontroverted video evidence, ultimately

concluding (based on that uncontroverted evidence) that Defendants had arguable probable cause

to arrest Plaintiff under Florida’s driving under the influence statute [ECF No. 341 pp. 6–9]; see

Fla. Stat. § 316.193. Following de novo review of the video, that determination is entirely correct

and faithful to the summary judgment standard. Plaintiff’s first objection fails.

B. The Report properly applies the Supreme Court’s instruction in Scott v. Harris,

550 U.S. 372 (2007), to adopt the version of the facts plainly depicted in the video

of the field sobriety test over Plaintiff’s contradicted version.

Plaintiff next criticizes the Report for reportedly misapplying the Supreme Court’s decision

in Scott v. Harris, 550 U.S. 372 (2007), which holds that district courts should not adopt a party’s

version of events on summary judgment when a video blatantly contradicts that party’s account.

550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). In

Plaintiff’s view, the video does not show any evidence of intoxication and therefore does not

“blatantly contradict” his factual account of what happened [ECF No. 345 p. 5 (claiming that the

video does not show intoxication or impairment, slurred speech, bloodshot or watery eyes, etc.)].

This version of events regarding Plaintiff’s intoxication is plainly contradicted by the video

evidence of the field sobriety test, which conclusively shows Plaintiff swaying and stumbling

throughout the encounter as well as his inability to follow instructions throughout the testing

[ECF No. 304-6 at 0:57-1:05, 1:31, 3:20-6:06]. Additionally, Plaintiff’s arguments about the

visual adequacy of the video itself (as it pertains to whether it completely shows his head and/or

the location of his car) do not disturb the correct conclusion reached in the Report, which is that

Defendants had ample basis to arrest Plaintiff based on any number of behavioral red flags

undisputedly shown in the video, including his swaying, stumbling, and inability to follow

instructions during the sobriety testing [ECF No. 341 p. 10 (“The Court has reviewed the video

footage numerous times. The footage plainly and unambiguously shows that Plaintiff failed to

follow instructions during the first phase of the test and that he swayed and staggered during the

second and third phases of the test.” (citing ECF No. 304-6 at 0:57-1:05, 1:31, 3:20-6:06))].6

Plaintiff’s second Objection is overruled.

C. The Report correctly determines that Defendants had arguable probable cause to

arrest Plaintiff for DUI notwithstanding Plaintiff’s allegations of false statements

in the arrest affidavit.

Plaintiff’s third Objection to the Report is that Magistrate Judge McCabe supposedly erred

in failing to recognize that “fabricated evidence or false statements defeat qualified immunity”

[ECF No. 345 p. 6]. Pointing to Paez v. Mulvey, 915 F.3d 1276 (11th Cir. 2019), Plaintiff argues

that the Report treats the allegedly fabricated statements—such as the officers’ claims regarding

Plaintiff’s physical presentment and the location of his vehicle at the arrest—as “immaterial,”

which “directly contradicts Paez” [ECF No. 345 p. 6 (citing Paez, 915 F.3d at 1287)]. This

Objection also lacks merit. Paez directs courts, when confronted with assertions of alleged

misstatements or omissions in an officer’s affidavit (and in the context of qualified immunity), to

“examine the materiality of the information by inquiring whether probable cause would be negated

if the offending statement [i]s removed or the omitted information included.” 915 F.3d at 1287.

The Report is fully consistent with that decision. Indeed, as indicated in the quoted portion below,

the Report expressly declines to consider the alleged misstatements and reaches a conclusion of

arguable probable cause without regard to such alleged misstatements:

[E]ven after removal of the alleged misstatements [regarding direction of vehicle,

refusal to submit to a breath test, bloodshot/watery eyes, slurred speech, fumbling

with documents, and other persons’ presence during stop], the officers’ Affidavits

still demonstrate arguable probable cause for a DUI arrest based on the following

facts: (1) the officers found Plaintiff asleep at the wheel of his vehicle, (2) he

performed poorly on the field sobriety exercises, and (3) he admitted to having one

drink. (DE 304-1, DE 304-3).)

6 Plaintiff attempts to support this objection by citing seemingly hallucinated quotations from cases

such as Sims v. Metro. Dade Cnty., 972 F.2d 1230 (11th Cir. 1992), and Shaw v. City of Selma,

884 F.3d 1093 (11th Cir. 2018). For example, Plaintiff quotes from Sims v. Metro. Dade Cnty.,

asserting that “where the video does not clearly contradict the nonmovant’s story, the court must

accept the nonmovant’s version.” But Sims does not even cite or mention Scott v. Harris or its

progeny; nor does it discuss any video evidence; nor even the concept of probable cause.

[ECF No. 341 pp. 13–14]. Accordingly, contrary to Plaintiff’s suggestion, the Report is entirely

faithful to the arguable probable cause standard and to the procedure for assessing misstatements

as articulated in Paez [see ECF No. 245 p. 7].

D. The Report correctly concludes that any attempt to assert an official-capacity

claim against Defendants now fails as a matter of law on the facts alleged.

In Plaintiff’s fourth Objection, Plaintiff claims the Report improperly dismisses a Monell

claim which Plaintiff argues he pled in the SAC and briefed on summary judgment [ECF No. 345

pp. 7–8].7 The record shows otherwise. The SAC nowhere mentions Monell liability, containing

merely two repeated references to a “history and/or custom for falsifying Reports” [ECF No. 39

¶¶ 50, 91]. As the motion-to-dismiss briefing reveals, that is insufficient to give notice of a Monell

theory of liability, even granting Plaintiff’s pro se status [see ECF No. 41 p. 17 n.4]. In fact, the

Court dismissed all claims against the City in July 2024 for failure to comply with a pre-suit denial

requirement in Fla. Stat. § 768.28(6) [ECF No. 58]. It was only until June 2025, almost a year

after the Court’s termination of the City as a party to this case, that Plaintiff meaningfully began

suggesting that he had pled a Monell claim against the City [see, e.g., ECF No. 240 p. 2]. And

even then, the Court again clarified that the City was no longer a party to this action [ECF No. 241].

Regardless, to the extent the SAC can even be said to have pleaded a Monell claim against the City

of Port St. Lucie or Defendants in their official capacities, the fundamental point remains the same,

as stated in the Report: the SAC clearly lacks any plausible basis to state a claim of Monell liability

against the City based on a purported policy of “falsifying Reports” [see ECF No. 341 pp. 15–18].

Nothing in Plaintiff’s Objections disturbs the correctness of that conclusion or otherwise permits

7 A plaintiff bringing a Monell claim must show: (1) the violation of a constitutional right, (2) that

a municipality had a custom or policy of deliberate indifference to that right and (3) that the custom

or policy caused the violation. Rogers v. Sheriff of Santa Rosa Cnty., Fla., No. 21-13994, 2023

WL 2566087, at *6 (11th Cir. Mar. 20, 2023).

Plaintiff to insist upon a Monell claim that he never pleaded properly in this action. Plaintiff’s

Fourth Objection fails.

E. The Report correctly determines that Defendants are entitled to sovereign

immunity under Fla. Stat. § 768.28(9)(a).

Plaintiff’s fifth Objection to the Report is that Defendants’ alleged fabrication of facts to

justify probable cause for his arrest constitutes an exception to Florida’s sovereign immunity

statute, Fla. Stat. § 768.28(9)(a). Recall that § 768.28(9)(a) provides immunity to Defendants for

any alleged tortious conduct performed within the scope of their employment. Fla.

Stat. § 768.28(9)(a). Under an exception to that rule, however, if an officer “acted in bad faith or

with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights,

safety, or property,” then sovereign immunity will not attach. Id. Plaintiff argues that Magistrate

Judge McCabe ignored this statutory exception, basing his Report entirely on the fact that

Defendants “acted ‘within the scope’ of employment” [ECF No. 345 p. 9].

Yet again, Plaintiff misstates the Report. After concluding that Officers Iannone and

Deacetis were acting within the scope of their employment, Magistrate Judge McCabe “further”

finds that “the undisputed facts show that the officers did not act in ‘bad faith’ or with ‘malicious

purpose’ or in ‘a manner exhibiting wanton and willful disregard of human rights, safety, or

property’ for purposes of” Fla. Stat. § 768.28(9)(a) [ECF No. 341 pp. 14–15]. The Court agrees

with that determination; the officers had arguable probable cause to arrest Plaintiff for DUI, so no

reasonable juror could conclude that the officers’ conduct exhibited bad faith, malice, or wanton

and willful disregard for Plaintiff’s rights within the meaning of Fla. Stat. § 768.28(9)(a) [ECF No.

341 pp. 14–15]; Scott v. City of Miami, No. 21-CV-23995, 2023 WL 2621203, at *4 (S.D. Fla.

Mar. 21, 2023) (“[T]here is no evidence that the officers’ actions were done with malice or bad

faith because there was probable cause for the detention and arrest. Thus, Scott’s claim against the

CASE NO. 23-14197-CIV-CANNON/McCabe

City of Miami fails. Fla. Stat. § 768.28(9)(a).”), aff'd, 139 F.4th 1267 (11th Cir. 2025). This

Objection is due to be denied.

F. The Report properly addresses and dismisses Plaintiff’s claim for intentional

infliction of emotional distress.

Plaintiffs sixth Objection to the Report is that it fails to address his claim for intentional

infliction of emotional distress in Count V [ECF No. 345 pp. 9-10]. As explained, however,

Magistrate Judge McCabe concludes that Defendants are entitled to sovereign immunity for state-

law tort claims under Fla. Stat. $ 768.28(9)(a) [ECF No. 341 pp. 14-15]. There is no dispute that

Plaintiff’ s intentional infliction of emotional distress claim is a state law tort claim covered by Fla.

Stat. § 768.28(9)(a). Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1330 (11th Cir.

2015) (Fla. Stat. § 768.28(9)(a) ... bars claims for both intentional infliction of emotional distress

and malicious prosecution.”). Accordingly, Plaintiff’s last objection is overruled.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. The Report and Recommendation [ECF No. 341] is ACCEPTED.

2. Defendants’ Motion for Summary Judgment [ECF No. 304] is GRANTED.

3. Final Judgment to issue by separate order.

ORDERED in Chambers at Fort Pierce, Florida, this 27th day of January 2026.

UNITED STATES DISTRICT JUDGE

cc: Nelson Henry, Pro se

Okeechobee Correctional Institution

Inmate Mail/Parcels

3420 N.E. 168th Street

Okeechobee, Florida 34972

11