# Dunning

> District Court, M.D. Florida · April 30, 2026

URL: https://www.frixlaw.com/law-library/cases/11367639

## Case

- **Full name:** Walter T. Dunning v. Officer Arturo Gonzales, individual capacity, and Officer Aaron Stack, in his individual capacity
- **Court:** District Court, M.D. Florida
- **Decided:** April 30, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11367639

## Opinion text

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
1
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

1
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
2
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

2
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:
Parties of record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11367639. Public record. Not legal advice.