# Downing

> District Court, M.D. Florida · April 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11367163

## Case

- **Full name:** Tavern Downing v. Wal-Mart Stores East, LP, and The City of Winter Haven
- **Court:** District Court, M.D. Florida
- **Decided:** April 24, 2026
- **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

TAVERN DOWNING

Plaintiff,

v. Case No. 8:25-cv-2564-NHA

WAL-MART STORES EAST, LP, and
THE CITY OF WINTER HAVEN

Defendants.
/

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS

Defendants Wal-Mart Stores East, LP and the City of Winter Haven
move to dismiss the Second Amended Complaint. Doc. 48, 55. Plaintiff opposes
the motions. Docs. 52, 56. I grant the motions to the extent that I dismiss the
Second Amended Complaint. However, I offer Plaintiff a final opportunity to
amend.
I. Background
In his five-count1 Second Amended Complaint, Plaintiff sues Wal-Mart
and Winter Haven. Doc. 33.
Plaintiff alleges that, around August 12, 2025, while shopping in a Wal-
Mart store, he was seized by two Winter Haven police officers, “assisted by

1 Plaintiff’s Claims are numbered Count I, Count II, Count III, Count V, and
Count VI, but comprise only five claims.
Wal-Mart security personnel,” and taken to a back room. Doc. 33 ¶¶ 9, 10.
There, Plaintiff alleges, he was informed that he was “being detained for

threats and possible human sex trafficking,” interrogated, and kept for two
hours, before being released without charge. Id. ¶¶ 11-12, 14, 18.
Plaintiff alleges that, while he was being held, a shoplifting suspect
“under the influence of methamphetamine, hallucinating, and panicking,”

“stated that Plaintiff ‘looked familiar’ and ‘looked like one of the guys from
around the homeless shelter.’” Id. ¶¶ 12, 13. Plaintiff suggests it was
unreasonable to continue to detain Plaintiff based on this “equivocal”
statement by someone who was “visibly intoxicated and unreliable.” Id. ¶¶ 14,

19.
Additionally, Plaintiff alleges that a Winter Haven police officer
contacted Plaintiff’s wife and falsely informed her that Plaintiff was being
investigated for sex trafficking, which caused her to suffer “an acute emotional

breakdown, threaten[ ] Plaintiff’s life, and experience[ ] severe psychological
distress.” Id. ¶¶ 16, 17.
Plaintiff brings claims (1) against both defendants for false
imprisonment under state law, (2) against both defendants for aiding and

abetting false imprisonment under state law, (3) against both defendants for
violating his Fourth Amendment right against unreasonable seizure and
Fourteenth Amendment right to due process and equal protection, pursuant to
42 U.S.C. § 1983, (4) against Wal-Mart for negligence under state law, and
(5) against the City of Winter Haven for Monell liability relating to its officers’

false imprisonment, pursuant to 42 U.S.C. § 1983. Doc. 33.
Defendants move to dismiss the Second Amended Complaint, arguing
that it is a shotgun pleading. Doc. 48 pp. 3-4; Doc. 55 pp. 5-9. Specifically, they
allege that Plaintiff’s first, second, and third counts name both defendants but

fail to specify which defendant took what action supporting any count. Further,
Defendants assert that Plaintiff fails to state facts sufficient to support his
claims. Doc. 48 pp. 4-7; Doc. 55 pp. 9-16. Wal-Mart adds that it cannot be sued
under 42 U.S.C. § 1983 (Count III), because it is not a state actor. Doc. 48 pp.

5-6. Winter Haven argues that the law precludes Plaintiff’s requests for
punitive damages against a municipality. Doc. 55 pp. 16-17.
II. Motion to Dismiss Standard
The Federal Rules of Civil Procedure require that a complaint contain “a

short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not include “detailed
factual allegations” in the complaint, the requirement to demonstrate the
grounds for relief “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). In other words, Rule 8 requires “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, to survive a motion to
dismiss, a complaint “must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Id. (internal quotation
marks omitted). “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.

These standards suggest a two-pronged approach for courts evaluating
a motion to dismiss a complaint. See id. at 678–79; Am. Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010). First, a court should “eliminate
any allegations in the complaint that are merely legal conclusions.” Am. Dental

Ass’n, 605 F.3d at 1290. While a court must accept the factual allegations in
the complaint as true and construe them in the light most favorable to the
plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011), it need not
consider “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements,” Iqbal, 556 U.S. at 678. Nor should it consider
“a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.
265, 286 (1986). Second, “where there are well-pleaded factual allegations, [a
court should] assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Am. Dental Ass’n, 605 F.3d at
1290 (internal quotation marks omitted).
III. Analysis
a. Plaintiff’s complaint is a shotgun pleading.

Defendants first ask the Court to dismiss Plaintiff’s Second Amended
Complaint as a shotgun pleading. Doc. 48 p. 3; Doc. 55 pp. 5-9. Defendants
argue that the pleading improperly incorporates all facts into each count
without explaining which facts support which claim. They further argue that

the complaint fails to specify which Defendant took which actions, thereby
attempting to “hold both Defendants collectively responsible for each other’s
actions.” Doc. 55 p. 8.
There are four types of “shotgun pleadings:”

The most common type . . . is a complaint containing multiple
counts where each count adopts the allegations of all preceding
counts, causing each successive count to carry all that came before
and the last count to be a combination of the entire complaint. The
next most common type . . . is a complaint that . . . is . . . replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action. The third type . . .
[does] not separate[e] into a different count each cause of action or
claim for relief. Fourth, and finally, there is . . . asserting multiple
claims against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or which of
the defendants the claim is brought against. The unifying
characteristic of all types of shotgun pleadings is that they fail to
one degree or another, and in one way or another, to give the
defendants adequate notice of the claims against them and the
grounds upon which each claim rests.

Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1323 (11th Cir.
2015). The Eleventh Circuit has instructed that a district court “must
intervene . . . and order a replead[ing]” of a shotgun complaint, even if the
defendant does not move for a more definite statement. Byrne v. Nezhat, 261

F.3d 1075, 1133 (11th Cir. 2001), abrogated on other grounds as recognized by
Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1357 n.10 (11th Cir. 2018).
Defendants are correct that the Second Amended Complaint is a shotgun
pleading. The first three counts, which name both Defendants, fail to specify

which Defendant was responsible for which act(s) giving rise to the claim.
Count Three appears to allege two separate section 1983 claims (one based on
the Fourth Amendment and the other based on the Fourteenth). And, each
claim incorporates the entirety of the complaint’s Jurisdiction, Venue, Parties,

and Facts sections. Thus, while Plaintiff provides a general overview of the
facts at issue, the Court cannot decipher for all claims Plaintiff’s theory as to
which facts demonstrate each alleged legal violation. This deprives Defendants
of the ability to meaningfully identify their alleged wrongdoing and respond

with any appropriate defenses. The complaint, therefore, requires repleading.
In any repleading, Plaintiff should separate each violation of law into a
separate count. And, he should concisely state, for each count, exactly what
each Defendant did that violated the specific right or law at issue in that count.

Plaintiff should further explain which specific facts he contends comprise each
violation.
Plaintiff’s complaint requires dismissal, because it is shotgun pleading.
However, to guide any repleading, the Court discusses additional and

independent bases warranting dismissal of the complaint.
b. Plaintiff does not support his false imprisonment claims (Counts
I and II).

Defendants both argue that Plaintiff fails to plead facts sufficient to state
a false imprisonment claim (Count I) and, derivatively, an aiding-and-abetting
claim (Count II).2
To state a claim of false imprisonment, Plaintiff must plead facts
showing that he was “unlawfully detained and deprived of [his] liberty, against
[his] will, under circumstances that were unreasonable or unwarranted.”
Hendricks v. Sheriff, Collier Cnty., Fla, 492 Fed. Appx. 90, 94-95 (11th Cir.

2012) (citing Mathis v. Coats, 24 So.3d 1284, 1289 (Fla. 2d DCA 2010); Johns
Hopkins All Children's Hosp., Inc. v. Kowalski, 425 So. 3d 645, 661 (Fla. 2d
DCA 2025) (to state a claim for false imprisonment under Florida law, a
plaintiff must show: “(1) the unlawful detention and deprivation of liberty of a

person; (2) against that person's will; (3) without legal authority or ‘color of

2 Plaintiff does not cite any specific legal basis for Claims I and II. In
light of the fact that Plaintiff purports to separately plead Fourth Amendment
violations in Count III, the Court construes Counts I and II as attempting to
bring Florida common law claims for false imprisonment, and for aiding and
abetting the same.
authority’; and (4) which is unreasonable and unwarranted under the
circumstances.”).

Plaintiff states sufficient facts to show that he was detained for two
hours against his will (although, as stated above, he does not state who took
what actions to effect that 2-hour detention). However, the facts he alleges do
not demonstrate that the detention was unlawful or unwarranted.

The Second Amended Complaint asserts that it would have been
unreasonable to base Defendant’s two-hour detention on the equivocal facts of
someone who was visibly impaired. Doc. 33 ¶ 14. This may be true. However,
the pleading appears to allege that an unreliable witness statement was made

after Plaintiff had been detained and identified as a suspect in a sex-trafficking
investigation. See Doc. 33 ¶¶ 10-14. In other words, Plaintiff does not address
the basis for the initial seizure, who provided it, whether it was provided in
good faith, and whether it would have supported continued detention, nor does

Plaintiff assert the absence of any additional basis. And, while the allegedly
unreliable witness statement was not terribly incriminatory, nor did it
necessarily exculpate him, requiring his immediate release.
Without specific allegations addressing the basis of the initial arrest and

detention, or denying the existence thereof, Plaintiff has not stated facts that
establish the essential elements of a false imprisonment claim (Count I).
The failure to state a claim for false imprisonment is fatal to the related
aiding-and-abetting claim (Count II). To state such a claim, “[i]n Florida, a

plaintiff must allege: (1) an underlying violation on the part of the primary
wrongdoer; (2) knowledge of the underlying violation by the alleged aider and
[abettor]; and (3) the rendering of substantial assistance in committing the
wrongdoing by the alleged aider and abettor.” Lawrence v. Bank of Am., N.A.,

455 F. App’x 904, 906 (11th Cir. 2012) (citing ZP No. 54 Ltd. P’ship v. Fid. &
Deposit Co. of Md., 917 So.2d 368, 372 (Fla. 5th DCA 2005)). Because Plaintiff
does not sufficiently plead the underlying violation, the aiding-and-abetting
claim is likewise deficient.

Plaintiff does not plead facts sufficient to support Count I or Count II.
c. Plaintiff does not support his civil rights claim (Count III).
In Count III, Plaintiff sues both Defendants pursuant to 42 U.S.C. §
1983, for violating his Fourth and Fourteenth Amendment rights by detaining

him “without probable cause” and “motivated by discriminatory profiling.” Doc.
33 p. 5.
Initially, as mentioned above, to the extent Plaintiff wishes to bring
claims based on two constitutional violations, he must separate them into

distinct claims.
However, even construed as separate claims, Plaintiff’s 1983 claims
cannot go forward. “To state a claim under [§ 1983], ‘a plaintiff must allege
that (1) the defendant deprived him of a right secured under the United States
Constitution or federal law and (2) such deprivation occurred under color of

state law.’” Andre v. Clayton Cnty., Georgia, 148 F.4th 1282, 1291 (11th Cir.
2025) (quoting Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010)).
Plaintiff has not adequately pleaded violations of either of the constitutional
amendments he invokes, nor has he pleaded facts supporting his allegation

that Wal-Mart, a non-governmental party, acted under color of state law.
i. Fourteenth Amendment claim
First, Plaintiff has not adequately pleaded a violation of his rights under
the Fourteenth Amendment’s Equal Protection Clause. Plaintiff claims

Defendants were “motivated by discriminatory profiling.” Doc. 33 p. 5.
The Fourteenth Amendment’s Equal Protection Clause requires that
“all persons similarly situated should be treated alike.” City of Cleburne, Tex.
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Equal Protection challenges

are often brought against the very existence of a law, but “[t]he unequal
application of a facially neutral statute may [also] violate the Equal Protection
Clause.” WBY, Inc. v. City of Chamblee, Georgia, 155 F.4th 1242, 1264 (11th
Cir. 2025). Courts apply heightened levels of Equal Protection scrutiny to state

action that treats people differently based on “suspect classifications,” such as
race, national origin, and gender. City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 440 (1985).
Even without alleging that one of these suspect classifications was used,
however, a plaintiff can challenge a state action by bringing a “class of one”

equal protection claim. “A ‘class of one’ equal protection claim does not allege
discrimination against a protected class, but rather asserts that the plaintiff
‘has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Leib v.

Hillsborough Cnty. Pub. Transp. Commn., 558 F.3d 1301, 1306 (11th Cir. 2009)
(quoting Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1032
n. 1 (11th Cir.2008)).
Here, Plaintiff has not adequately alleged an Equal Protection claim,

because he does not explain, or provide facts supporting, the theory under
which he proceeds.
Perhaps Plaintiff means to plead discriminatory action based on a
protected class, given that Plaintiff mentions “discriminatory profiling” in

Count III. But Plaintiff does not specify in that count on what basis Defendants
allegedly discriminated against him. See Doc. 33 ¶¶ 29-32.
Elsewhere in the complaint, Plaintiff mentions “discrimination based on
race, class, or homelessness.” Doc. 33 ¶ 34. The Equal Protection Clause

“prohibits selective enforcement of the law based on considerations such as
race.” Whren v. U.S., 517 U.S. 806, 813 (1996). But, classifications based on
class or poverty are not suspect classifications. See Schultz v. Alabama, 42
F.4th 1298, 1323 (11th Cir. 2022) (“The Supreme Court has unambiguously
held that discrimination against the indigent, without more, does not implicate

a suspect classification. . .”) (citing Maher v. Roe, 432 U.S. 464, 471 (1977)).
Thus, if he means to show that Defendants treated him differently based on a
protected class, it appears Plaintiff must plead facts showing that the state
action complained of was motivated by racial discrimination. Andre, 148 F.4th

at 1305. But Plaintiff offers no facts at all to support a conclusion that
Defendants were motivated by racially discriminatory attitudes or intentions.
Thus, to the extent Count III includes a racial discrimination claim, Plaintiff’s
pleading does not support it. See id. at 1305-06 (affirming the dismissal of a

Fourteenth Amendment racial discrimination claim where plaintiffs failed to
allege that state actors were motivated by a discriminatory purpose).
Alternatively, if Plaintiff means to allege that Defendants violated his
equal protection rights by treating him differently based on his class, housed

status, or any other non-suspect classification, he must allege that he “has been
intentionally treated differently from others similarly situated and that there
is no rational basis for the difference in treatment.” Chabad Chayil, Inc. v. Sch.
Bd. of Miami-Dade Cnty., Fla., 48 F.4th 1222, 1233 (11th Cir. 2022) (discussing

a “class of one” equal protection claim at the pleading stage). In such “class of
one” equal protection claims, the complaint must include allegations that
others who are like the plaintiff in all relevant aspects were not treated as he
was. See Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1205 (11th Cir. 2007)
(“A ‘class of one’ plaintiff might fail to state a claim by omitting key factual

details in alleging that it is ‘similarly situated’ to another.”). And, a plaintiff
must affirmatively allege that the differing treatment he received had no
rational, non-discriminatory explanation. Chabad Chayil, 48 F.4th at 1233.
Here, to the extent Plaintiff alleges in Count III that he was subject to

discrimination for reasons other than a suspect classification, he has not met
either prong of the two requirements to plead such claims. Plaintiff identifies
no other similarly situated person who was not subject to detention and
interrogation, nor does he state, even in a conclusory manner, the Defendants

had no rational basis for their actions.
For these reasons, Plaintiff fails to state an equal protection claim.
ii. Fourth Amendment claim
Second, Plaintiff does not plead facts sufficient to state a section 1983

claim for false imprisonment or unreasonable seizure.
“Where a police officer lacks probable cause to make an arrest, the
arrestee has a claim under section 1983 for false imprisonment based on a
detention pursuant to that arrest.” Ortega v. Christian, 85 F.3d 1521, 1526

(11th Cir. 1996). “Probable cause exists when ‘a reasonable officer could
conclude that there is a substantial chance of criminal activity.’” Richmond v.
Badia, 47 F.4th 1172, 1180 (11th Cir. 2022) (alterations adopted)
(quoting Washington v. Howard, 25 F.4th 891, 902 (11th Cir. 2022)). “This
standard is met when ‘the facts and circumstances within the officer’s

knowledge, [based on] reasonably trustworthy information, would cause a
prudent person to believe, under the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.’” Rankin v.
Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (quoting Williamson v. Mills, 65

F.3d 155, 158 (11th Cir. 1995)). “An arresting officer is required to conduct a
reasonable investigation to establish probable cause. An officer, however, need
not take ‘every conceivable step . . . at whatever cost, to eliminate the
possibility of convicting an innocent person.’” Id. at 1435-36 (quoting Tillman

v. Coley, 886 F.2d 317, 321 (11th Cir. 1989)) (citations omitted).
Separately, “an officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot. While ‘reasonable

suspicion’ is a less demanding standard than probable cause and requires a
showing considerably less than preponderance of the evidence, the Fourth
Amendment requires at least a minimal level of objective justification for
making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citations

omitted).
Notably, probable cause and reasonable suspicion are both time-
sensitive inquiries. Probable cause “may . . . dissipate after an officer makes a
warrantless arrest” based on additional information that comes to
light. Barnett v. MacArthur, 956 F.3d 1291, 1297 (11th Cir. 2020). “The

Fourteenth Amendment Due Process Clause includes the ‘right to be free from
continued detention after it was or should have been known that the detainee
was entitled to release.’” Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir.
2009) (quoting Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir. 1993)).

And, “[w]hen dealing with limited seizures not subject to the probable-cause
requirement, a seizure that is reasonable at its inception may quickly become
unreasonable if it extends beyond its unique justification.” Croom v. Balkwill,
645 F.3d 1240, 1250 (11th Cir. 2011).

Probable cause and reasonable suspicion are also both fact-intensive
concepts highly sensitive to context. See Ornelas v. United States, 517 U.S. 690,
696 (1996) (“The principal components of a determination of reasonable
suspicion or probable cause will be the events which occurred leading up to the

stop or search, and then the decision whether these historical facts, viewed
from the standpoint of an objectively reasonable police officer, amount to
reasonable suspicion or to probable cause.”).
Here, Plaintiff appears to allege that he was subject to an “unreasonable

seizure,” that, to the extent he was arrested, it was “without probable cause,”
and that any probable cause dissipated long before he was released.
Considering that Plaintiff never alleges that he was formally arrested, his
claim could also be construed as an allegation that Defendants lacked even
reasonable suspicion to detain him.

But Plaintiff has not provided a sufficient basis of alleged facts to support
either version of a Fourth Amendment claim. The very fact that Plaintiff has
not made clear whether he alleges an unreasonable arrest without probable
cause, or an unreasonable seizure without reasonable suspicion, illustrates one

of the challenges in interpreting his pleading. Further, as discussed above, his
arrest or seizure may have been unreasonable if it were based solely on an
unreliable and equivocal witness statement. However, Plaintiff suggests that
the relevant statement was taken after his seizure. Because Plaintiff does not

address the initial cause of his detention––that is, “the events which occurred
leading up to the stop,” Ornelas, 517 U.S. at 696––he does not plead an
unreasonable seizure or false imprisonment claim against either Defendant.
iii. Under color of state law

Third, Count III fails to state a claim against Wal-Mart for the additional
reason that Wal-Mart is not a state actor.
“In order to prevail on a civil rights action under § 1983, a plaintiff must
show that he [ ] was deprived of a federal right by a person acting under color

of state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
“[T]he under-color-of-state-law element of § 1983 excludes from its reach
‘merely private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457
U.S. 991, 1002 (1982)). Courts use “three primary tests” to determine whether

the conduct of a private party can be considered state action: “(1) the public
function test; (2) the state compulsion test; and (3) the nexus/joint action test.”
Natl. Broad. Co., Inc. v. Commun. Workers of Am., AFL-CIO, 860 F.2d 1022,
1026 (11th Cir. 1988). If the Court determines that Defendants were not acting

under color of state law, the section 1983 claim must fail as a matter of law. 42
U.S.C. § 1983.
Here, Wal-Mart’s employees are not state employees or representatives,
and the Second Amended Complaint does not show that this is one of the “rare

circumstances” in which a private party can be considered a state actor. See
Doc. 3 pp. 8-9 (quoting Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)).
It does not suggest that Wal-Mart was performing a traditionally “public
function” nor that its conduct was a result of “state compulsion.” So, Plaintiff

must show that Wal-Mart undertook “joint action” with state actors. See Natl.
Broad. Co. 860 F.2d at 1026 (explaining the three ways to plead 1983 liability
against a private party). The “joint action” test––also referred to as the “nexus”
test––is “heavily fact specific,” and it can itself be further divided into three

categories of relationships: a “conspiracy” between private parties and state
actors, a “state-prompted partnership” between itself and a non-state entity,
or private party “individual-prompted use of state authority.” Charles v.
Johnson, 18 F.4th 686, 697 (11th Cir. 2021).

Generally, private security guards are not considered state actors when
they do not assert the authority of the state. Williams v. Town of White Hall,
Alabama, 450 F. Supp. 2d 1300, 1307-08 (M.D. Ala. 2006);
see also Desravines v. Orange Cnty. Sheriff's Off., No. 6:10-CV-1773-ORL, 2010

WL 5491235, at *5 (M.D. Fla. Dec. 15, 2010) (finding that a plaintiff failed to
allege sufficient facts to show that Wal-Mart security officers who “arrested”
and detained plaintiff were state actors subject to liability under section 1983),
report and recommendation adopted, No. 6:10-CV-1773-ORL-31, 2011 WL

13660 (M.D. Fla. Jan. 4, 2011); Harris v. Sec. Co. of 1370 Sixth Ave., No. 94
CIV. 2599 (JGK), 1996 WL 556927, at *2 (S.D.N.Y. Oct. 1, 1996) (“As a general
rule, it is well settled that the acts of a private security guard hired by a store
do not constitute state action under § 1983.”). And, “[a] private party does not

act under color of state law merely by calling upon official state authority when
he does not also join in the exercise thereof.” Dye v. Radcliff, 174 F. App'x 480,
483 (11th Cir. 2006).
As discussed above, Plaintiff does not explain what actions the Wal-Mart

employees––as opposed to the Winter Haven police officers––took, and thus
does not state facts demonstrating that their actions clothed them in the color
of state law. Count III, therefore, fails against Wal-Mart for this additional and
independent reason.

Plaintiff does not plead facts sufficient to demonstrate an unlawful
seizure or detention, or that Wal-Mart is subject to a section 1983 claim in this
context.
d. Plaintiff does not state a negligence claim (Count IV).

Count IV accuses Wal-Mart of negligence for its failure to adhere to “law
and internal policies,” including by, “Detaining customers without probable
cause; Profiling based on race, class, or homelessness; [and] Communicating
false information to third parties.”3 Wal-Mart argues that this claim must be

dismissed because it identifies no legally cognizable duty to Plaintiff.
To plead a claim of negligence under Florida law, a plaintiff “must allege
four elements: a duty, breach of that duty, causation, and damages.” Virgilio
v. Ryland Grp., Inc., 680 F.3d 1329, 1339 (11th Cir. 2012) (citing Curd v.

3 Plaintiff cites no Wal-Mart policy and lists no example of violating a
policy, so the Court does not analyze whether the store had any duty to
Plaintiff under its own policies. Even if he had identified a specific policy,
though, its relevance to the negligence inquiry would be limited. See Johnson
v. Wal-Mart Stores E., LP, 389 So. 3d 705, 712 (Fla. 5th DCA 2024)
(acknowledging that “internal policies might sometimes be relevant (and
therefore admissible) when a jury decides compliance with the proper standard
of care in a negligence case,” but noting that, “absent some evidence to
establish that the internal policies themselves, or some specific portion thereof,
represent only what is reasonably foreseeable and not what is merely possible,
a party's internal rule seems to be of little value to our legal duty analysis”),
review denied, No. SC2024-1108, 2024 WL 4370566 (Fla. Oct. 2, 2024).
Mosaic Fertilizer, L.L.C., 39 So.3d 1216, 1227 (Fla. 2010)). At the pleading
stage, it is most essential that a plaintiff allege the existence of a duty owed to

him by the defendant. See id. (“Establishing the existence of a duty under
Florida’s negligence law is a minimum threshold legal requirement that opens
the courthouse doors.”) (cleaned up) (quoting Williams v. Davis, 974 So.2d
1052, 1057 n. 2 (Fla. 2007)).

“Florida law recognizes the following four sources of duty: (1) statutes or
regulations; (2) common law interpretations of those statutes or regulations;
(3) other sources in the common law; and (4) the general facts of the case.”
Limones v. Sch. Dist. of Lee Cnty., 161 So. 3d 384, 389 (Fla. 2015). As to statute-

based duties, “A statute creates a duty of care upon one whose behavior is the
subject of the statute to a person who is in the class designed to be protected
by the statute, and such duty will support a finding of liability for negligence
when the injury suffered by a person in the protected class is that which the

statute was designed to prevent.” Burley v. Vill. S., Inc., 407 So. 3d 572, 577
(Fla. 3d DCA 2025) (alterations adopted) (quoting Palmer v. Shearson Lehman
Hutton, Inc., 622 So. 2d 1085, 1090 (Fla. 1st DCA 1993)).
Even assuming Wal-Mart had a duty to Plaintiff to refrain from:

(1) detaining him without probable cause, (2) not “profiling” him based on race,
class, or housing status, and (3) not communicating false information to third
parties, Plaintiff fails to plead facts showing that Wal-Mart breached those
duties.

As discussed above, Plaintiff identifies neither who detained him nor the
basis on which that person did so. He does not plead facts showing he was a
member of any protected class or that Wal-Mart employees took any adverse
actions against him on that basis. And he does not identify any Wal-Mart

employee’s false communications.
Thus, Plaintiff does not plead facts supporting his negligence claim
against Wal-Mart.
e. Plaintiff does not plead a Monell claim (Count V).

In Count V, Plaintiff seeks to hold Winter Haven accountable, pursuant
to Monell v. Department of Social Services, 436 U.S. 658 (1978), for its officers’
alleged false imprisonment.
To state a Section 1983 claim against a municipality, a plaintiff must

allege a specific policy, practice, or custom that was the moving force behind
the constitutional violation. Monell, 436 U.S. at 694. Absent a policy, a plaintiff
is required to allege a widespread custom or practice, and a single incident of
unconstitutional activity is insufficient. Craig v. Floyd Cnty., Ga., 643 F.3d

1306, 1311 (11th Cir. 2011).
First, this count fails, because Plaintiff did not plead facts showing the
underlying constitutional violation.
Second, even had he demonstrated the unconstitutional violation,
Plaintiff fails to plead facts showing that Winter Haven had a custom, policy,

or practice animating the violation. Plaintiff broadly alleges that Winter
Haven failed to train and supervise officers on lawful detention and probable
cause; enforce unidentified policies on confidential information; investigate
citizen complaints; and ratify citizen complaints. Doc. 33 p. 7.

But these conclusory allegations, without factual support, are not
enough. True, the Supreme Court has rejected the idea that there is any
“heightened pleading standard” for 1983 claims alleging municipal liability.
Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit,

507 U.S. 163, 164 (1993). But, in the wake of Twombly and Iqbal, such claims,
like all claims, “require[] more than labels and conclusions,” Twombly, 550 U.S.
at 555, and must be supported by more than “naked assertions devoid of
further factual enhancement,” Iqbal, 556 U.S. at 678 (cleaned up).

Applying these principles, a recent Eleventh Circuit opinion upheld a
district court’s dismissal of a plaintiff’s Monell claim against Miami Dade
County, because the plaintiff had only “alleged in conclusory fashion” the
existence of a pattern of similar constitutional violations, without providing

“any additional details [of] the circumstances of past incidents.” Plowright v.
Miami Dade Cnty., 102 F.4th 1358 (11th Cir. 2024). In Plowright, the plaintiff
alleged in his complaint “that the county ‘had a county wide custom of shooting
. . . dogs” and this custom was the moving force behind the shooting of the
plaintiff’s dog. Id. at 1361, 1370. Noting that the plaintiff’s “conclusory”

allegation did not, for example, provide enough detail about other instances to
show whether “the dogs in question posed an imminent threat,” the Eleventh
Circuit held that the plaintiff had “failed to allege facts plausibly indicating
that there was such a custom or, even if there was, that the custom constituted

deliberate indifference to his constitutional rights.” Id. at 1370 (alteration
adopted) (quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).
Here, Plaintiff’s allegations that Winter Haven has a routine or custom
of similar constitutional violations, and that Winter Haven has failed to train

its officers to refrain from such violations, are similarly conclusory and sparse.
Of course, at the pleading stage, Plaintiff need not provide proof of an
unconstitutional policy or custom to proceed with a Monell claim, but he does
need to provide “factual enhancement” for his claim, see Iqbal, 556 U.S. at 678,

such as references to specific instances of similar conduct by Winter Haven
officers. In the absence of any such examples, Plaintiff’s Monell claim does not
survive Winter Haven’s motion to dismiss. See Lordeus v. Miami-Dade Cnty.,
263 F. Supp. 3d 1307 (S.D. Fla. 2017) (dismissing, with leave to amend, a

plaintiff’s Monell claim which was based only on “a conclusory allegation that
the County ‘had a policy, custom or practice of allowing its police officers to use
excessive force . . .’”).
f. Plaintiff cannot seek punitive damages against Winter Haven.
Winter Haven moves to dismiss Plaintiff’s requests for punitive

damages against it. Plaintiff offers no argument to the contrary but asks that
the underlying claims not be dismissed. Doc. 56 p. 4.
As to Plaintiff’s federal claims against Winter Haven, “a municipality is
immune from punitive damages under 42 U.S.C. § 1983.” City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 271 (1981). As to his state claims, Florida
law makes cities liable “for tort claims in the same manner and to the same
extent as a private individual under like circumstances, but liability shall not
include punitive damages.” Fla. Stat. 768.28(5)(a).

Thus, any future repleading may not seek punitive damages against
Winter Haven.
IV. Conclusion
For the reasons stated above, Plaintiff’s Second Amended Complaint is

dismissed without prejudice. However, Plaintiff requests that he be given
leave to amend. Such leave should be freely given. See Foman v. Davis, 371
U.S. 178, 182 (1962).
Plaintiff shall have until May 11, 2026 to file a Third Amended

Complaint that remedies the problems identified in this order. Failure to
timely file a Third Amended Complaint, or to fix the errors identified here,
will likely result in dismissal of the case with prejudice.
To the extent Plaintiff has questions about this Order, he may find it
helpful to make an appointment with Federal Bar Association’s Legal
Information Program, which provides free consultations to people litigating
cases in federal court without lawyers. To set up an appointment, people can
visit the Clerk’s office, or call the office at 813-301-5400.
ORDERED on April 24, 2026.

Voll. HIRT ADAMS
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11367163. Public record. Not legal advice.