Dunning

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

WALTER T. DUNNING,

Plaintiffs,

v. Case No: 2:25-cv-385-JES-NPM

OFFICER ARTURO GONZALES,

individual capacity, and

OFFICER AARON STACK, in his

individual capacity,

Defendants.

OPINION AND ORDER

This matter comes before the Court on defendants’ Motion to

Dismiss Plaintiff’s First Amended Complaint (Doc. #20) filed on

December 10, 2025. Plaintiff filed a Motion to Oppose Any

Dismissals (Doc. #21) on December 22, 2025, construed as a

response. Plaintiff also filed a Supplemental Motion to Oppose

the Dismissal (Doc. #22) and a Motion to Amend on the Grounds of

the “Change in the U.S. Constitutional Treat[ies] with the Court

Decision in Violation of the Fifth and Eighth Fourteenth and the

Fourt Amendment of the U.S. State and Federal Constitution” (Doc.

#23). The Court will allow the amendment to the extent that the

Court will consider the additional bases for the Section 1983

claim. For the reasons stated below, the motion to dismiss is

granted.

I.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff. Erickson v. Pardus,

551 U.S. 89 (2007). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678. “Factual allegations that are

merely consistent with a defendant’s liability fall short of being

facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (citations omitted). Stated a different

way; after ignoring conclusory allegations, the Court assumes any

remaining factual allegations are true and determines “whether

those factual allegations ‘plausibly give rise to an entitlement

to relief.’” Ingram v. Kubik, 30 F.4th 1241, 1255 (11th Cir. 2022)

(citation omitted).

A pleading drafted by a party proceeding unrepresented (pro

se) is held to a less stringent standard than one drafted by an

attorney, and the Court will construe the documents filed as a

complaint and amended complaint liberally. Jones v. Fla. Parole

Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015). However, the Court’s

“‘duty to liberally construe a plaintiff's complaint in the face

of a motion to dismiss is not the equivalent of a duty to re-write

it for the plaintiff.’” Snow v. DirecTV, Inc., 450 F.3d 1314, 1320

(11th Cir. 2006) (citation omitted).

When reviewing a motion to dismiss, “a court may properly

consider a document not referred to or attached to a complaint

under the incorporation-by-reference doctrine if the document 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). See also Swinford

v. Santos, 121 F.4th 179, 188 (11th Cir. 2024) (allowing

consideration of body camera footage when ruling on a motion to

dismiss), cert. denied, 146 S. Ct. 204 (2025).

II.

Viewing the allegations in the Amended Complaint (Doc. #17)

in a light most favorable to plaintiff, on February 23, 2023, at

approximately 6:49 am, Sgt. Gonzales observed plaintiff at the

RaceTrac on 2335 Cleveland Avenue, Fort Myers, Florida. Sgt.

Gonzales was familiar with plaintiff from previous encounters.

After querying information from Fort Myers Police Department

(FMPD) and failing to identify that a trespassing ban had been

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lifted , Sgt. Gonzales and Officer Stack arrested plaintiff for

trespassing. Officer Stack placed plaintiff in handcuffs and

discovered an orange pill bottle with no label in his front pocket

after a search. Plaintiff alleges that his movement was restricted

within the area, the search was illegal because the trespassing

ban had been lifted in 2018, and he was falsely imprisoned without

legal authority or justification, causing financial hardship and

separation from his family.

In the supplemental response, plaintiff submitted the

Arrest/Notice to Appear and Probable Cause Statement (Doc. #22-

1.) The Probable Cause Statement summarizes the events as follows:

On February 23, 2023, at approximately 6:49

am, while on uniform marked patrol within the

city of Fort Myers, Florida, Officer Stack was

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While plaintiff states that court records evidencing that

the trespass order are attached, plaintiff failed to attach any

such documents to the Complaint or the Amended Complaint.

dispatched to 2335 Cleveland Avenue (RaceTrac)

to back up Sgt. Gonzalez on a trespass call.

Upon arrival on scene, Officer Stack observed

that Sgt. Gonzalez was out with a male

subject, later identified as Walter Dunning

(B/M DOB 4-2-1942). Sgt. Gonzalez advised that

he was at the RaceTrac to use the restroom,

when he observed Dunning on the property. Sgt.

Gonzalez was familiar Dunning through previous

professional encounters, and upon querying his

information through the Fort Myers Police

Department Records Management System (RMS),

discovered that Dunning had been trespassed

from the property []. Officer Stack

subsequently placed Dunning in department-

issued wrist restraints and placed him under

arrest.

Upon a search incident to arrest, Officer

Stack discovered an orange pill bottle with no

label of any kind in Dunning’s front pants

pocket. Officer Stack and Sgt, Gonzalez

observed that this pill bottle had a white

residue inside that did not appear consistent

with any prescription medication that would

have been in the bottle. Officer Stack

utilized a department-issued Sirchie cocaine

wipe to swab the inside of the pill bottle.

Upon exposure to the inside of the bottle, the

Sirchie wipe immediately turned blue in color,

indicating a positive reaction for the

presence of cocaine. Officer stack took

photographs of the pill bottle and the Sirchie

wipe, which were uploaded to evidence.com via

the Axon Capture app.

Based on the totality of circumstances,

Officer Stack finds probable cause to charge

Dunning with the following offenses:

Offense 1: TRESPASSING • PROPERTY NOT

STRUCTURE OR CONVEY 810.09(2a)

Offense 2: DRUG EQUIP.POSSESS • AND OR USE

893.147(1)

Dunning was subsequently transported to the

Lee County Jail for booking and lodging

without incident.

The pill bottle found on Dunning was submitted

into the custody of the Fort Myers Police

Department Evidence Division, where it was

submitted for latent print analysis.

Dunning was issued an updated trespass warning

from 2335 Cleveland Avenue (RaceTrac).

Dunning’s bicycle was released into the

custody of Dunning's friend Donald Ellis (B/M

DOB 3-18-1966), with permission from Dunning.

This incident was recorded by officers'

department-issued body-worn cameras, as well

as by in car camera.

(Doc. #22-1, p. 3.)

III.

Section 1983 provides a private cause of action against any

person who, under color of state law, deprives a person of “any

rights, privileges, or immunities secured by the Constitution and

laws” of the United States. 42 U.S.C. § 1983. To state a claim

for relief, a plaintiff “‘must establish that they were deprived

of a right secured by the Constitution or laws of the United

States, and that the alleged deprivation was committed under color

of state law.’” Focus on the Family v. Pinellas Suncoast Transit

Auth., 344 F.3d 1263, 1277 (11th Cir. 2003) (citation omitted).

“‘A constitutional claim brought pursuant to § 1983 must begin

with the identification of a specific constitutional right that

has allegedly been infringed.’” DeMartini v. Town of Gulf Stream,

942 F.3d 1277, 1288 (11th Cir. 2019) (quoting Paez v. Mulvey, 915

F.3d 1276, 1285 (11th Cir. 2019)). Read liberally, Plaintiff

asserts claims under the Fourth, Fifth, possibly the Eighth, and

Fourteenth Amendments for claims of false arrest, false

imprisonment, and an illegal search incident to arrest.

(1) False Arrest and False Imprisonment

False arrest and false imprisonment are overlapping torts

which both concern detention without legal process. Wallace v.

Kato, 549 U.S. 384, 388-89 (2007); Williams v. Aguirre, 965 F.3d

1147, 1158 (11th Cir. 2020). Both the arrest and the detention of

a person constitute a “seizure” under the Fourth Amendment.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (arrest); Manuel v.

City of Joliet, 580 U.S. 357, 366-67 (2017) (detention beyond start

of legal process). Under the Fourth Amendment, the reasonableness

of such a seizure is “‘determined by the presence or absence of

probable cause.’” Baxter v. Roberts, 54 F.4th 1241, 1265 (11th

Cir. 2022) (quoting Skop v. City of Atlanta, 485 F.3d 1130, 1137

(11th Cir. 2007)). “[T]he correct legal standard to evaluate

whether an officer had probable cause to seize a suspect is to

‘ask whether a reasonable officer could conclude that there was a

substantial chance of criminal activity.’” Washington v. Howard,

25 F.4th 891, 902 (11th Cir. 2022) (quoting Dist. of Columbia v.

Wesby, 583 U.S. 48, 61 (2018)). See also Ingram v. Kubik, 30 F.4th

1241, 1250 (11th Cir. 2022) (“substantial chance” “of dangerous

behavior”).

(a) False Arrest

“To succeed on a false arrest claim, a plaintiff must

establish (1) a lack of probable cause and (2) an arrest. An

arrest—the quintessential seizure of a person—occurs when the

government applies physical force to seize a person or asserts

lawful authority to which the subject accedes.” Richmond v. Badia,

47 F.4th 1172, 1180 (11th Cir. 2022) (citation omitted). “A

warrantless arrest without probable cause violates the Fourth

Amendment and forms a basis for a section 1983 claim.” Baxter, 54

F.4th at 1265 (citation omitted).

(b) False Imprisonment

“A false imprisonment claim under § 1983 requires meeting the

common law elements of false imprisonment and establishing that

the imprisonment was a due process violation under the Fourteenth

Amendment.” Helm v. Rainbow City, Ala., 989 F.3d 1265, 1278 (11th

Cir. 2021) (citing Campbell v. Johnson, 586 F.3d 835, 840 (11th

Cir. 2009)). “The elements of common law false imprisonment are

an intent to confine, an act resulting in confinement, and the

victim's awareness of confinement.” Campbell, 586 F.3d at 840

(citation omitted). “[I]n order to establish a due process

violation, a plaintiff must show that the officer acted with

deliberate indifference, i.e., demonstrating that the officer ‘had

subjective knowledge of a risk of serious harm and disregarded

that risk by actions beyond mere negligence.’” Helm, 989 F.3d at

1278-79 (quoting Campbell at 840). “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) (citation omitted). A claim of false imprisonment under

§ 1983, however, is defeated if the officer has probable cause to

arrest. Case v. Eslinger, 555 F.3d 1317, 1330 (11th Cir. 2009).

(2) Search Incident to Arrest

A “search incident to a lawful arrest is a traditional

exception to the warrant requirement of the Fourth Amendment.”

United States v. Robinson, 414 U.S. 218, 224 (1973). Once a

“seizure” is found to be constitutional, “as the Supreme Court has

long held,” officers are permitted to search the person “incident

to a lawful arrest.” Scott v. City of Miami, 139 F.4th 1267, 1278

(11th Cir. 2025) (collecting cases).

(3) Qualified Immunity

“‘Qualified immunity offers complete protection for

government officials sued in their individual capacities if their

conduct ‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Castro-Reyes v. City of Opa-Locka, 166 F.4th 886, 896

(11th Cir. 2026) (citation omitted). Officers who act within their

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discretionary authority are “entitled to qualified immunity under

§ 1983 unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct

was ‘clearly established at the time.’” District of Columbia v.

Wesby, 583 U.S. 48, 62-63 (2018) (citation omitted). See also

Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021) (Plaintiff

“must allege facts establishing both.”) (citation omitted)).

“A Government official’s conduct violates clearly established

law when, at the time of the challenged conduct, ‘the contours of

a right are sufficiently clear’ that every ‘reasonable official

would have understood that what he is doing violates that right.’”

al-Kidd, 563 U.S. at 741 (citation omitted). “In other words,

‘existing precedent must have placed the statutory or

constitutional question beyond debate.’ [] This doctrine ‘gives

government officials breathing room to make reasonable but

mistaken judgments’, and ‘protects all but the plainly incompetent

or those who knowingly violate the law.’” Carroll v. Carman, 574

U.S. 13, 16 (2014) (per curiam) (internal citations omitted).

Plaintiff can show that a particular constitutional right is

clearly established by: (1) showing that a materially similar case

has already been decided by an appropriate court; (2) showing that

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It is undisputed that defendants were acting within their

discretionary authority as officers of the Fort Myers Police

Department.

a broader, clearly established principle should control the novel

facts of a particular case; or (3) establishing that the conduct

so obviously violates the Constitution that prior case law is

unnecessary. Davis v. Waller, 44 F.4th 1305, 1312–13 (11th Cir.

2022). “[E]ach defendant is entitled to an independent qualified-

immunity analysis as it relates to his or her actions and

omissions.” Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018).

The defense of qualified immunity may be raised and considered

on a motion to dismiss. St. George v. Pinellas Cnty., 285 F.3d

1334, 1337 (11th Cir. 2002). “The motion to dismiss will be

granted if the complaint fails to allege the violation of a clearly

established constitutional right. [] Whether the complaint alleges

such a violation is a question of law that we review de novo,

accepting the facts alleged in the complaint as true and drawing

all reasonable inferences in the plaintiff's favor. [] The scope

of the review must be limited to the four corners of the

complaint.” Id. (internal citations omitted).

An officer is entitled to qualified immunity “where the

officer had ‘arguable probable cause,’ that is, where ‘reasonable

officers in the same circumstances and possessing the same

knowledge as the Defendants could have believed that probable cause

existed to arrest’ the plaintiffs.” Wilkerson v. Seymour, 736

F.3d 974, 977–78 (11th Cir. 2013) (citation omitted). “Arguable

probable cause is a lower standard than actual probable cause, and

only requires that under all of the facts and circumstances, an

officer reasonably could, not necessarily would, have believed

that probable cause was present.” Betterson v. Town of Cutler

Bay, No. 25-11638, 2026 WL 322952, at *7 (11th Cir. Feb. 6, 2026)

(citing Fish v. Brown, 838 F.3d 1153, 1167 (11th Cir. 2016)).

IV.

In this case, plaintiff alleges that Sgt. Gonzalez ran his

name and discovered that plaintiff had been trespassed from the

property. Based on this information, Officer Stack determined

that plaintiff could be charged for trespass on property other

than a structure or conveyance because “[i]f the offender defies

an order to leave, personally communicated to the offender by the

owner of the premises or by an authorized person … the offender

commits a misdemeanor of the first degree….” Fla. Stat. §

810.09(2)(a). While plaintiff states that the previous trespass

order had been rescinded, there was no allegation that such

information was known to the arresting officers at the time of the

arrest. Based on the information available at the time to a

reasonable officer, Sgt. Gonzalez had probable cause to place

plaintiff under arrest and therefore there was no violation of a

federal statutory or constitutional right.

“Since the custodial arrest of a suspect based on probable

cause is a reasonable intrusion under the Fourth Amendment, a

search incident to the arrest requires no additional

justification.” United States v. Goddard, 312 F.3d 1360, 1364

(11th Cir. 2002) (citing Robinson 414 U.S. at 235). The search of

plaintiff incident to the arrest led to the additional charge of

the use or possession of drug paraphernalia, a misdemeanor of the

first degree under Fla. Stat. § 893.147(1). This determination

came after a positive reaction for the presence of cocaine on a

pill bottle in plaintiff’s possession. Plaintiff was transported

to jail without incident and booked. Having found probable cause

for the arrest before the search, the search was not a violation

of a federal statutory or constitutional right.

Both counts were nolle prosequi because the State Attorney’s

Office noted insufficient evidence to prove possession of

paraphernalia beyond a reasonable doubt and “Valid-Documentation

Issue Corrected”. (Doc. #22-1.) Thef ultimate disposition of the

charges has no bearing on whether an officer reasonably believed

that probable cause was present at the time. No cause of action

is stated in the Amended Complaint and the Court finds that

plaintiff cannot state a claim against the officers because they

at least had arguable probable cause for the arrest and detention

as well as the search incident to arrest. Both defendants are

entitled to qualified immunity because plaintiff cannot show a

violation of a federal statutory or constitutional right or that

any alleged unlawfulness was ‘clearly established at the time.’

Accordingly, it is now

ORDERED :

1. Plaintiff’s Motion to Amend on the Grounds of the “Change

in the U.S. Constitutional Treat[ies] with the Court

Decision in Violation of the Fifth and Eighth Fourteenth

and the Fourth Amendment of the U.S. State and Federal

Constitution” (Doc. #23) is GRANTED to the extent that the

Court considered other bases for relief.

2. Defendants’ Motion to Dismiss Plaintiff’s First Amended

Complaint (Doc. #20) is GRANTED for the reasons stated

above.

3. The First Amended Complaint is dismissed with prejudice.

4. The Clerk shall enter judgment accordingly, terminate all

deadlines, and close the file.

DONE AND ORDERED at Fort Myers, Florida, this 30th day of

April 2026.

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

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