The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GREGG MARCELLUS HARDEN,
Plaintiff,
v. Case No: 2:25-cv-01036-JES-KHR
DEPUTY S. ABREU, Badge No.
22137, in his individual
capacity, and CARMINE
MARCENO, in his official
capacity as SHERIFF OF LEE
COUNTY, FLORIDA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of Defendants’
Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc. #35)
filed on February 27, 2026. Plaintiff filed no response, even
after the Court directed him to do so. (Doc. #44.) Accordingly,
the Court will rule on the motion without the benefit of a
response. For the reasons set forth below, Defendants’ motion is
granted in part and denied in part.
I.
A. Motion to Dismiss Standard
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). As the Eleventh Circuit has recently summarized:
When reviewing a motion to dismiss, we accept the
plaintiff's allegations as true and construe them in the
light most favorable to the plaintiff. 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. A claim is facially
plausible if the plaintiff pleads factual content that
allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. This
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. When
making the determination of whether a complaint states
a plausible claim, we draw on our judicial experience
and common sense.
. . .
We use a two-step process to determine whether a
claim survives Rule 12(b)(6) scrutiny. At the outset, we
determine what must be pled for each cause of action. .
. . Then, we consider the well-pleaded factual
allegations ... to determine whether they plausibly
suggest an entitlement to relief.
Caterpillar Fin. Servs. Corp. v. Venequip Mach. Sales Corp., 147
F.4th 1341, 1346–47 (11th Cir. 2025)(citations and internal
punctuation omitted).
Pro se pleadings are held to a less stringent standard than
counseled pleadings and, therefore, are liberally construed.
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014).
Nevertheless, this liberal construction does not entitle a court
to serve as de facto counsel to a pro se party or rewrite deficient
pleadings. See id. at 1168-69. Pro se litigants, however, are
still required to conform to procedural rules. See Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007); Goldsboro v. Ivey, No.
25-11394, 2026 WL 507421, at *3 (11th Cir. Feb. 24, 2026).
B. The Court Will Consider the Body-Camera Footage
In deciding a motion to dismiss, district courts generally
must limit their consideration to the pleadings and any exhibits
attached to the pleadings. Grossman v. Nationsbank, N.A., 225
F.3d 1228, 1231 (11th Cir. 2000). Where the Court considers
evidence outside the complaint, the motion to dismiss must be
converted into a motion for summary judgment, unless the evidence
can be considered under the incorporation-by-reference doctrine or
judicial notice. Baker v. City of Madison, 67 F.4th 1268, 1276–
77 (11th Cir. 2023)(quotations omitted).
The incorporation-by-reference doctrine permits a court to
properly consider documents not referred to or attached to a
complaint “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). “[W]here [the] video is clear and obviously
contradicts the plaintiff's alleged facts, we accept the video's
depiction instead of the complaint's account, and [we] view the
facts in the light depicted by the video.” Baker, 67 F.4th at
1277–78 (citation omitted). On the other hand, the Court “must
construe all ambiguities in the video footage in favor of the
plaintiff.” Id. at 1277.
Defendants filed four body-camera videos from the November 2,
2025 incident. (Doc. #25, Exhs. A-D.) Exhibits A and B are Deputy
Steven Abreu’s (“Deputy Abreu”) and Deputy Fratianni’s body-camera
footage from the initial traffic stop, respectively.1 Exhibit C
is Deputy Abreu’s body-camera footage from Emergency Medical
Services (“EMS”) arriving at the Edison Mall parking lot and
Harden’s treatment at the hospital. Exhibit D is Deputy Abreu’s
body-camera footage of Harden’s arrival to the jail.
The videos depict the events central to Plaintiff’s claims —
Deputy Abreu’s refusal to call EMS after learning of Harden’s
injury and failure to provide appropriate accommodations — and
Plaintiff has not shown any of the videos have been altered. The
Court further finds the trustworthiness of the recordings is not
in question. See Johnson, 107 F.4th at 1301. Accordingly, the
Court will consider the videos under the incorporation-by-
1 Deputy Fratianni is not a defendant in the instant case.
reference doctrine. See Swinford v. Santos, 121 F.4th 179, 188
(11th Cir. 2024).
II.
On November 2, 2025, around 9:24 P.M., Deputies Abreu and
Fratianni initiated a traffic stop. Deputy Abreu approached the
driver’s side, where a woman was sitting, and Deputy Fratianni
approached the passenger’s side, where Harden was sitting in the
backseat. (Exh. A at 00:00-00:28; Exh. B at 00:00-00:28.) Deputy
Abreu accused Harden and the female driver of switching seats which
they initially denied.2 (Exh. A at 00:30-00:39; Exh. B at 00:30-
00:35.) Deputy Fratianni ordered Harden to exit the vehicle which
prompted Harden to inform Deputy Fratianni of his broken leg.3
(Exh. A at 00:39; Exh. B at 00:35-00:47; Doc. #18, ¶ 10.)
After patting Harden down, Deputy Fratianni told Harden to
“go hobble over” to the sidewalk. (Exh. B at 00:50-00:54.) Harden
requested his cane before doing so, but the deputies were unable
to locate the cane and the female driver said she “guess[ed] he
2 Defendants state Harden was driving, however, at this stage the Court
must treat all well-plead allegations in the Second Amended Complaint
(“SAC”) as true. The videos do not clearly contradict Harden’s
allegations as no video shows Harden driving and Harden continued to
deny driving. See Baker, 67 F.4th at 1277.
3 When Harden informed Deputy Fratianni, Deputy Abreu was on the driver’s
side of the vehicle where the driver pointed out Harden’s leg was
swollen.
left it at the house.” (Exh. A at 01:01-01:19; Exh. B at 00:51-
01:11.) Harden then hopped to the nearby sidewalk and sat down as
instructed. (Exh. B at 01:12-01:21.)
Deputy Fratianni questioned Harden about Harden’s lack of
shoes — as the deputies found shoes on the driver’s side
floorboard, supporting their suspicion Harden changed seats with
the female driver. (Exh. B at 01:52-01:56.) Harden claimed he
could not wear shoes because his “leg [was] broke”4 and claimed
the shoes belonged to the female driver who was still wearing her
own shoes. (Id.) Deputy Abreu then ordered the female driver to
sit next to Harden and obtained the female’s driver’s license and
Harden’s name, before searching the vehicle since it smelled of
marijuana. (Exh. B at 02:20-02:38.)
Deputy Abreu’s search and background check lasted
approximately twenty minutes while Harden sat on the sidewalk.5
Once Deputy Abreu discovered a warrant for Harden’s arrest, Deputy
Abreu placed him in handcuffs and escorted Harden, with the
assistance of Deputy Fratianni, to Deputy Abreu’s vehicle. (Exh.
4 At this point, Harden has said three times that his leg was broken.
5 Throughout the interaction, the deputies regularly turned off the audio
recording. See Exh. A at 16:21-21:37, 21:45-23:47, 27:17-38:33, 40:43-
46:40; Exh. B at 16:36-17:00, 21:43-23:28, 30:03-30:10, 30:24-32:27,
35:35-38:37, 39:47-39:50; 40:37-40:51. Therefore, the Court cannot say
with certainty that Harden never requested medical attention for his
broken leg during these times.
A at 24:00-24:30; Exh. B at 23:49-24:21.) Harden warned the
deputies that he “can’t walk fast, sir. I can’t do that.” (Exh.
A at 24:25-24:30; Exh. B at 24:20-24:21.) Once Harden made it to
Deputy Abreu’s vehicle about a minute later, Deputy Abreu searched
Harden before placing him in the backseat.6 (Exh. A at 25:14-
25:44; Exh. B at 20:20-25:25.)
Twelve minutes go by where Deputy Abreu was in and out of his
vehicle before Deputy Abreu read Harden his Miranda rights.7 (Exh.
A at 38:40-38:43.) Harden initially agreed to speak with Deputy
Abreu, and continued denying switching seats, but invoked his right
to remain silent and stated “let’s go to jail bro.” (Exh. A at
38:43-40:34.)
Rather than take Harden to jail immediately, Deputy Abreu,
for some unknown reason, appears to have sat in the parking lot of
the Edison Mall for at least an hour, if not two hours.8 (Exh. C
at 00:00-00:10.) After Harden’s repeated requests, Deputy Abreu
6 Harden again complained that he could not place weight on his broken
leg, to which Deputy Fratianni offered support by saying “I’ll hold you
on this side.” (Exh. A at 25:15-25:25; Exh. B at 25:14-25:18.)
7 During these twelve minutes, the deputies regularly muted their audio.
See supra note 5.
8 The Court makes this inference based upon the time-stamps at the time
of the arrest — 9:48pm — and the time EMS arrived in the Edison Mall
parking lot — 11:41pm. (Exh. A at 23:56; Exh. C at 00:00.) Further,
in the video, Harden yells Deputy Abreu had been “sitting here for a
whole hour bruh” where Harden was “askin’ for EMS for a whole hour.”
(Exh. C at 3:10-3:17, 3:20-3:25.)
requested EMS, who arrived and looked at Harden’s foot. (Id. at
00:00-00:15.) EMS began to unload the gurney to transport Harden
to the hospital, but Deputy Abreu transported Harden to the
hospital instead. (Id. at 8:20-13:05.)
Harden arrived at the hospital approximately six minutes
later, around midnight. (Id. at 18:50-19:00.) Deputy Abreu
brought Harden inside via a wheelchair. (Id. at 20:50-21:30.)
After two hours in the hospital, Harden was diagnosed with four
healing fractures — in his heel, tibia, fibula, and ankle.9 (Id.
at 1:30:40-1:31:35.) Once Harden’s leg was placed in a cast, he
was transported to the jail and taken inside via a wheelchair.
(Exh. D at 00:00-01:12.)
Harden now brings federal and state claims against Sheriff
Carmine Marceno (“Sheriff Marceno”) in his official capacity and
Deputy Abreu.
III.
A. Count I — Harden Is Disabled Under the Americans with
Disabilities Act
Harden alleges Sheriff Marceno violated Title II of the
Americans with Disabilities Act (“ADA”) by: (1) requiring Harden
9 The events within the hospital are not relevant for the purposes of
the instant motion, other than that Harden received treatment for the
injury. Accordingly, the Court will not discuss those additional facts.
to walk on his broken leg; (2) delaying EMS attention; and (3)
failing to provide safe transport or stabilization. (Doc. #18, ¶¶
32-38.) Sheriff Marceno argues Harden fails to state a disability
discrimination claim. (Doc. #35, p. 11.) Specifically, Sheriff
Marceno argues Harden’s broken leg is not a disability since it is
a short-term, temporary restriction and Harden did not allege
sufficient facts that his injury substantially limited any of his
major life activities.10 (Id. at pp. 12-14.) Neither argument is
persuasive to the Court.
Title II of the ADA prohibits a “public entity” from
discriminating against “a qualified individual with a disability.”
42 U.S.C. § 12132. To state a Title II claim, a plaintiff must
show that: (1) he is a qualified individual with a disability; (2)
he was excluded from participation in or denied the benefits of a
public entity’s services, program, or activities, or otherwise
discriminated against by the public entity; and (3) the exclusion,
denial of benefit, or discrimination was because of the plaintiff’s
disability. See Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083
(11th Cir. 2007)(citing Shotz v. Cates, 256 F.3d 1077, 1079 (11th
Cir. 2001)). A qualified individual is “an individual with a
10 Sheriff Marceno only challenged the first element of Harden’s ADA
claim, so the Court makes no comment as to the sufficiency of the
allegations for the second and third elements.
disability who, with or without reasonable modifications . . . or
the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity.” See 42 U.S.C. § 12131(2).
A “disability” includes a “physical or mental impairment that
substantially limits one or more major life activities of such
individual.”11 See id. § 12102(1)(A). A “physical or mental
impairment” is “[a]ny physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more
body systems, such as neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory,
hemic, lymphatic, skin, and endocrine . . ..” 29 C.F.R. §
1630.2(h).
Sheriff Marceno’s argument that Harden is not disabled
assumes Harden brings a “regarded as” claim. This assumption is
incorrect. After Congress passed the ADA Amendments Act of 2008
(“ADAAA”), the Equal Employment Opportunity Commission (“EEOC”)
11 Disability also includes “a record of such an impairment” or “being
regarded as having such an impairment (as described in paragraph (3)).”
42 U.S.C. § 12102(1)(B)-(C). These, however, are not relevant to the
instant motion.
amended its regulations to broadly construe “substantially limits”
in favor of expansive coverage. See id. § 1630.2(j)(1)(i). The
regulations clarified that “[t]he six-month ‘transitory’ part of
the ‘transitory and minor’ exception to ‘regarded as’ coverage in
§ 1630.15(f) does not apply to the definition of ‘disability’ under
paragraph[] (g)(1)(i)(the ‘actual disability’ prong). . . .” See
id. § 1630.2(j)(1)(ix). Since Harden alleges a claim under the
”actual disability” prong, a short-term, temporary restriction
will not prevent him from being “disabled.”12
Similarly, Sheriff Marceno’s argument that Harden fails to
allege sufficient facts showing how Harden’s injury substantially
limits a major life activity is unavailing. Major life activities
include, among other things, walking and standing. See 42 U.S.C.
§ 12102(2)(A). Harden sufficiently alleges facts that his
disability substantially limits his walking and standing. The SAC
alleges Harden could not place weight on his leg and the body-
cameras show Harden hopping, limping, and requiring assistance to
walk to Deputy Abreu’s vehicle. Though a modest extent of facts,
12 While Harden alleges he had a “medically documented disability,” this
allegation relies upon the diagnosis obtained after Harden was taken to
the hospital for evaluation. Therefore, Harden cannot present a “record
of” disability claim.
they are sufficient for the instant motion.13 Accordingly, the
Motion to Dismiss is denied as to Count I.
B. Count II — Deputy Abreu Is Not Entitled to Qualified
Immunity at this Stage in the Proceedings
Next, Harden asserts Deputy Abreu was deliberately
indifferent to his serious medical need by: (1) requiring Harden
to exit the car and walk without support; (2) denying or delaying
EMS evaluation; (3) failing to provide reasonable assistance or
stabilization during transport; (4) forcing Harden to put weight
on his injured leg; and (5) failing to allow EMS to transport
Harden to the hospital. (Doc. #18, ¶¶ 42-43.) Deputy Abreu
contends he is entitled to qualified immunity. (Doc. #35, p. 15.)
(1) Qualified Immunity Principles
The qualified immunity principles are well-established.
Qualified immunity protects government officials from civil
litigation and liability for torts committed while performing
discretionary duties unless the conduct violates a clearly
established statutory or constitutional right of which a
reasonable person would have known. Gervin v. Florence, 139 F.4th
13 While Sheriff Marceno points to Harden’s alleged ability to drive and
walk without a cane as well as Harden’s lack of shoes, these are not the
smoking gun he believes them to be. First, since the videos do not
clearly contradict the SAC, the Court must accept Harden’s allegation
that he was a passenger, not the driver. Second, Harden’s use of a cane
and lack of shoes are irrelevant because his physical injury still
substantially limited his ability to walk and stand.
1236, 1260 (11th Cir. 2025); Huggins v. Sch. Dist. of Manatee
Cnty., 151 F.4th 1268, 1278 (11th Cir. 2025).
Courts employ a burden-shifting analysis to determine whether
official conduct is protected by qualified immunity. Huggins, 151
F.4th at 1278. First, the official must prove he was acting within
the scope of his discretionary authority when the alleged wrongful
act occurred. Id.; DeMarcus v. Univ. of S. Ala., 133 F.4th 1305,
1317 (11th Cir. 2025). The actions must have been undertaken
pursuant to the official’s duties and within the scope of his
authority.14 Huggins, 151 F.4th at 1278. A district court looks
to the general nature of defendant's action, temporarily
disregarding the alleged illegality of that act. Nute v. White,
152 F.4th 1311, 1317 (11th Cir. 2025).
Second, if the official makes the required showing, the burden
shifts to plaintiff to show that: (1) the conduct violated his
statutory or constitutional right; and (2) the right was clearly
established at the time of the challenged conduct. Watkins v.
Davis, 156 F.4th 1084, 1097 (11th Cir. 2025). For the law to be
14 Here, it is undisputed Deputy Abreu acted within the scope of his
discretionary authority. Harden alleges Deputy Abreu “act[ed] under
color of state law” and Deputy Abreu performed his duties as a deputy
when initiating a traffic stop and arresting Harden. (Doc. #18, ¶ 5.)
Therefore, the Court will only consider whether Deputy Abreu violated a
constitutional right and whether such right was clearly established at
the time.
clearly established, “pre-existing law must dictate, that is,
truly compel (not just suggest or allow or raise a question about),
the conclusion for every like-situated, reasonable government
agent that what defendant is doing violates federal law in the
circumstances.” King v. Pridmore, 961 F.3d 1135, 1145 (11th Cir.
2020)(quoting Hudson v. Hall, 231 F.3d 1289, 1294 (11th. Cir.
2000)). Generally, “a police officer is entitled to qualified
immunity if a reasonable police officer could have believed his or
her actions were lawful in light of clearly established law and
the information possessed by the officer at the time the conduct
occurred.” Watkins, 156 F.4th at 1097.
Plaintiff can show the law was “clearly established” in any
of three ways: (1) identifying a qualifying case with
indistinguishable facts;15 (2) relying on a broader, clearly
established principle that should control the novel facts at hand;
or (3) showing that the officers’ conduct was so egregious that a
constitutional right was clearly violated, even in the total
absence of case law. See Andre v. Clayton Cnty., 148 F.4th 1282,
15 A plaintiff may only rely upon binding decisions of (1) the Supreme
Court of the United States; (2) the United States Court of Appeals for
the Eleventh Circuit; and (3) the highest court of the pertinent state,
here the Florida Supreme Court. Gervin, 139 F.4th at 1264; Wate v.
Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016).
1298 (11th Cir. 2025); Aguirre v. Seminole Cnty., 158 F.4th 1276,
1296-97 (11th Cir. 2025).
Qualified immunity is a question of law which may be asserted
in a Rule 12(b)(6) motion to dismiss. See Smith ex rel. Smith v.
Siegelman, 322 F.3d 1290, 1294 (11th Cir. 2003). “When a defendant
moves to dismiss a complaint on qualified-immunity grounds, ‘the
district court must dismiss any claims that fail to allege a
violation of clearly established law.’” Andre, 148 F.4th at 1291
(quoting Ingram v. Kubik, 30 F.4th 1241, 1250 (11th Cir. 2022),
abrogated on other grounds by, Case v. Montana, 607 U.S. 107
(2026)(holding the probable-cause decisions do not apply to
“emergency-aid situations”)).
(2) Harden Plausibly Alleges a Violation of His
Constitutional Right
As a pre-trial detainee, Harden’s rights exist under the due
process clause of the Fourteenth Amendment. See Christmas v.
Nabors, 76 F.4th 1320, 1331 (11th Cir. 2023). Regardless, Harden’s
claim is still subject to the same scrutiny as under the Eighth
Amendment. See id. (citing Hamm v. DeKalb Cnty., 774 F.2d 1567,
1574 (11th Cir. 1985)). Accordingly, to state a deliberate
indifference to a serious medical need claim, a plaintiff must
show: (1) a serious medical need; (2) the defendant’s deliberate
indifference to that need; and (3) causation. See id. at 1335
(citing Taylor v. Hughes, 920 F.3d 729, 732-33 (11th Cir. 2019)).
Deputy Abreu argues Harden failed to allege both a serious medical
need and that Deputy Abreu was deliberately indifferent to this
need.
(a) Harden’s Broken Leg Is a Serious Medical Need
A serious medical need is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.” See Farrow v. West, 320 F.3d 1235, 1243 (11th
Cir. 2003)(quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994), abrogated on other grounds by, Hope
v. Pelzer, 536 U.S. 730 (2002)). In either case, the medical need
still must be “one that, if left unattended, ‘pos[es] a substantial
risk of serious harm.’” See id. (quoting Taylor v. Adams, 221
F.3d 1254, 1258 (11th Cir. 2000)(alteration in original)).
Harden plausibly alleges he had a serious medical need because
he states he suffered from a broken bone. See Harris v. Coweta
Cnty., 21 F.3d 388, 394 (11th Cir. 1994)(stating that a “few hours’
delay in receiving medical care . . . for broken bones . . . may
constitute deliberate indifference); Brown v. Hughes, 894 F.2d
1533, 1538 (11th Cir. 1990)(citing Hughes v. Noble, 295 F.2d 495
(5th Cir. 1961)16)(stating a broken bone is a constitutionally
cognizable injury and can serve as basis for deliberate
indifference claim); Clark v. Sheffield, 807 F. App’x 910, 915
(11th Cir. 2020)(stating the Eleventh Circuit has found pain caused
by a broken foot is a serious medical need). While the allegations
may be barebones, they are sufficient for purposes of the instant
motion.
(b) Under the Alleged Facts, Deputy Abreu Acted
with Deliberate Indifference
Harden, however, still must allege facts showing Deputy Abreu
acted with deliberate indifference. To prove an official acted
with deliberate indifference, a plaintiff must show the official
“acted with subjective recklessness as used in the criminal law.”
See Wade v. McDade, 106 F.4th 1251, 1262 (11th Cir. 2024)(en
banc)(citation and quotation marks omitted). This requires that
“the defendant was actually, subjectively aware that his own
conduct caused a substantial risk of serious harm to the
plaintiff.” See id. The official, however, cannot be found liable
“if he responded reasonably to that risk” even if the official
knew of a substantial risk to a detainee’s health or safety. See
16 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en
banc), the Eleventh Circuit adopted as binding precedent all the
decisions the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
id. (quoting Farmer v. Brennan, 511 U.S. 834, 844-45 (1994)). A
plaintiff may also prove deliberate indifference where officials
“delay treatment for life-threatening emergencies, [and] also in
‘situations where it is apparent that delay would detrimentally
exacerbate the medical problem.’” See Nealy v. Masters, 2025 WL
3297835, at *2 (11th Cir. Nov. 26, 2025)(quoting Hill, 40 F.3d at
1187, abrogated on other grounds by, Hope, 536 U.S. 730).
Harden plausibly alleges Deputy Abreu’s delay in treatment
constituted deliberate indifference. Deputy Abreu had subjective
knowledge of the risk given Harden’s repeated requests for medical
attention, visible swollen foot, limping and hopping, inability to
place weight on his foot, and repeated winces in pain. Even with
this knowledge Deputy Abreu sat in the Edison Mall parking lot for
at least an hour after arresting Harden and failed to call or seek
medical attention for approximately two hours after arresting
Harden. These facts support an inference that the unexplained
delay in care is a situation “where it is apparent that delay would
detrimentally exacerbate the medical problem.” See Nealy, 2025 WL
3297835, at *2 (quoting Hill, 40 F.3d at 1187, abrogated on other
grounds by, Hope, 536 U.S. 730). Accordingly, the facts plausibly
allege Deputy Abreu violated a constitutional right.
(3) The Right Was Clearly Established
Deputy Abreu next argues that “there is no clearly established
law that Abreu should have summoned EMS or take Mr. Harden to the
hospital as soon as he encountered him, and Mr. Harden mentioned
he had a broken leg.” (Doc. #35, p. 21.) Though Deputy Abreu is
partially correct, his argument misses the mark. The conduct at
issue is not his refusal to immediately call EMS, but his alleged
deliberate, unexplained delay in obtaining care for approximately
two hours.
There is no question that an officer’s deliberate
indifference to a pre-trial detainee’s medical needs violates a
constitutional right. See Wade, 106 F.4th at 1255; see, e.g.,
Christmas, 76 F.4th at 1335 (“[P]retrial detainees ‘have a right
to receive medical treatment for their illnesses and injuries.”);
Hughes, 920 F.3d at 732-33 (stating the same proposition); Mann v.
Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009)(same);
Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007)(same);
Thomas v. Town of Davie, 847 F.2d 771, 772 (11th Cir. 1988)(same);
Harris, 21 F.3d at 393 (citing Mandel v. Doe, 888 F.2d 783, 788
(11th Cir. 1989))(same); Hill, 40 F.3d at 1186-87 (citing Estelle,
429 U.S. at 103)(same); Brown, 894 F.2d at 1537 (citing Estelle,
429 U.S. at 104)(same). The contours of what constitutes
deliberate indifference, however, have been clarified over the
decades since Estelle. Particularly relevant here is the delay in
treatment of serious and painful injuries. See Brown, 894 F.2d at
1537; Harris, 21 F.3d at 393 (citing Washington v. Dugger, 860
F.2d 1018, 1021 (11th Cir. 1988)). To preclude qualified immunity,
the pre-existing law must give officials a sense of the amount of
time that constitutes actionable delay. The pre-existing law was
sufficiently clear in this case.
Whether the delay in care constitutes deliberate indifference
depends on the nature of the medical need and reason for the delay.
Where faced with emergency medical needs — e.g., broken bones and
bleeding cuts — just a few hours’ delay may constitute deliberate
indifference. See Brown, 894 F.2d at 1538. On the other hand,
injuries of a lesser degree of immediacy — e.g., rash,
constipation, significant weight loss, loss of amniotic fluid —
that are serious, obvious medical needs may still give rise to
deliberate indifference with longer delays. See Goebert, 510 F.3d
at 1317-19; Fikes v. Abernathy, 793 F. App’x 913, 924 (11th Cir.
2019); Carswell v. Bay Cnty., 854 F.2d 454, 456-57 (11th Cir.
1988). Deliberate indifference can be inferred from an unexplained
delay in treating a known or obvious medical condition. Brown,
894 F.2d at 1538.
With these contours in mind, a reasonable deputy with Deputy
Abreu’s information would be able to understand whether his actions
were lawful. Deputy Abreu — as alleged in the SAC — was fully
aware of Harden’s broken leg after Harden informed Deputy Abreu
and he saw the leg’s visible swelling. Despite this knowledge,
Deputy Abreu opted to detain Harden for approximately two hours —
at least one of which was spent sitting in the Edison Mall parking
lot — before summoning EMS. No alleged facts explain the reason
for the delay. A reasonable deputy could not reasonably consider
this inaction lawful. Accordingly, Deputy Abreu is not entitled
to qualified immunity at this stage in the proceedings and the
motion is denied as to count II.17
C. Counts III & IV – Harden Fails to Allege a Custom or
Practice
Sheriff Marceno argues Counts III and IV must be dismissed
because: (1) there is no underlying constitutional violation by
Deputy Abreu; and (2) Harden fails to allege facts to show a
widespread practice or custom. (Doc. #35, pp. 21-22.) Since the
Court concluded there are sufficient facts to plausibly alleged
Deputy Abreu violated Harden’s constitutional right, the Court
will only analyze whether Harden sufficiently alleges a custom or
practice. The Court finds he has not done so.
17 Of course, simply because Deputy Abreu is not entitled to qualified
immunity at the motion to dismiss stage does not mean he is liable.
A municipality cannot be held vicariously liable for the
constitutional violations of its employees. See Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 691 (1978). The government as an
entity may be responsible, however, “when execution of a
government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” See id. at 694. To impose such
liability, a plaintiff must show that: (1) his constitutional
rights were violated; (2) the municipality had a custom or policy
that constituted deliberate indifference to that constitutional
right; and (3) the policy or custom caused the violation. See
Underwood v. City of Bessemer, 11 F.4th 1317, 1333 (11th Cir.
2021)(quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004)).
Liability may be based on an official policy or “a practice
or custom that is so pervasive, as to be the functional equivalent
of a policy adopted by the final policymaker.” Khoury v. Miami-
Dade Cnty. Sch. Bd., 4 F.4th 1118, 1131 (11th Cir. 2021)(quoting
Church v. City of Huntsville, 30 F.3d 1332, 1342-43 (11th Cir.
1994)). “[A] policy is a decision that is officially adopted by
the municipality or created by an official of such rank that he or
she could be said to be acting on behalf of the municipality,”
while a “custom is an unwritten practice that is applied
consistently enough to have the same effect as a policy with the
force of law.” See Goebert, 510 F.3d at 1332 (citations omitted).
When a plaintiff alleges a failure to train, they must allege
facts showing the failure to train “evidences a deliberate
indifference” to the municipality’s inhabitants’ rights. See
Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1293 (11th Cir.
2009)(citation omitted). There must be “some evidence that the
municipality knew of a need to train and/or supervise in a
particular area and the municipality made a deliberate choice not
to take any action.” Id. A plaintiff can show this in two ways.
First, there exists “[a] pattern of similar constitutional
violations by untrained employees . . ..” See Connick v. Thompson,
563 U.S. 51, 62 (2011). Second, even without prior events, the
plaintiff can establish deliberate indifference “if the likelihood
for constitutional violation is so high that the need for training
would be obvious.” See Lewis, 561 F.3d at 1293. Harden fails to
allege sufficient facts showing either.
Beginning with Harden’s allegations of a widespread practice,
Harden relies upon two factual allegations: (1) Lee County
Sheriff’s Office deputies “routinely encounter detainees with
visible injuries or mobility impairments;” and (2) a prior incident
in King v. Lee County, Case No. 2:24-cv-375-JLB-KCD. (Doc. #18,
¶¶ 19, 57.) Neither allegation is sufficient to establish a
widespread practice. Harden’s first allegation that deputies
“routinely encounter detainees” is conclusory. See Twombly, 550
U.S. at 555 (holding that threadbare recitals of the elements,
supported by conclusory statements, are insufficient to state a
claim). It provides no allegations on the who, what, when, or
where and therefore cannot support his claim. Harden’s reliance
on King also fails because the violations in King relate to an
unlawful seizure and excessive force after the plaintiff was taken
into custody pursuant to the Baker Act, rather than deliberate
indifference to a serious medical need. See King, No. 2:24-cv-
375-JLB-KCD, 2025 WL 676224, at *18 (M.D. Fla. Mar. 3, 2025). The
only remaining allegations concern his own experience and are
therefore insufficient to establish a policy or custom. See Craig
v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011)(quoting City
of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)).
Harden’s allegation that the likelihood for constitutional
violation is so high is similarly lacking. Cases concerning a
high likelihood of a constitutional violation are “a narrow range
of circumstances [where] a violation of federal rights may be a
highly predictable consequence” of a failure to provide adequate
training. See Lewis, 561 F.3d at 1293 (quoting Bd. of Cnty.
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)); see
also City of Canton v. Harris, 489 U.S. 378, 390 n.10
(1989)(noting, in dictum, as an example the situation where city
policymakers knew of the need to train officers in the
constitutional limitations on the use of deadly force because the
city knows to a “moral certainty that their police officers will
be required to arrest fleeing felons[, and] armed its officers
with firearms, in part to allow them to accomplish this task.”).
The instant case does not rise to this level as alleged because
any failure to train deputies to provide medical care does not
present a highly predictable risk of constitutional violations
that would be “obvious in the abstract.” See Bd. of Cnty. Comm’rs,
520 U.S. at 410. Accordingly, Harden has failed to allege
sufficient facts and Counts III and IV are dismissed without
prejudice.
D. Count V – Harden Failed to Plead Compliance with Condition
Precedents but Sufficiently Alleges Willful and Wanton
Conduct
Harden asserts a negligence claim against Sheriff Marceno and
Deputy Abreu. Sheriff Marceno argues that Harden’s claim must be
dismissed for failure to comply with the condition precedent of
Florida Statutes section 768.26(6). Deputy Abreu argues Harden’s
claim must be dismissed because he has not pled sufficient facts
to overcome his entitlement to statutory immunity. The Court
addresses each in turn.
To state a claim for negligence, a plaintiff must allege: (1)
a duty; (2) breach of that duty; (3) causation; and (4) damages.
See Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1339 (11th Cir.
2012). Prior to bringing a claim against the state or one of its
agencies or subdivisions, however, a plaintiff must provide pre-
suit notice pursuant to Florida Statutes section 768.28(6). See
Fla. Stat. § 768.28(6). Additionally, where an officer is sued,
they may not be personally liable in tort for “any act, event, or
omission of action in the scope of her or his employment or
function, unless such officer . . . acted in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.” See id. §
768.28(9)(a).
Here, Harden failed to plead compliance with the condition
precedent to bringing the negligence claim against Sheriff Marceno
in his official capacity. Though Harden is only required to
generally plead compliance, the SAC has no allegations about either
providing the pre-suit notice or complying with all conditions
precedent. (Doc. #18.) Without such allegations, Harden fails to
overcome Sheriff Marceno’s immunity. See Turner v. Homestead
Police Dep’t, 828 F. App’x 541, 545-46 (11th Cir. 2020)(citing
Fla. Stat. § 768.28(6)); Barreto-Baerga v. Osceola Cnty., No. 6:25-
cv-98-PGB-LHP, 2026 WL 851667, at *7 (M.D. Fla. Mar. 29, 2026).
Accordingly, Count V is dismissed without prejudice as to Sheriff
Marceno.
Harden, however, alleges sufficient facts to overcome Deputy
Abreu’s entitlement to immunity pursuant to section 768.28(9)(a).18
To overcome the entitlement to immunity, Harden must show that
Deputy Abreu acted either in “bad faith,” “with malicious purpose,”
or “in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.” See Fla. Stat. § 768.28(9)(a).
The first two exceptions, “in bad faith” and “with malicious
purpose,” are “synonymous with each other under Florida law” and
are equivalent to the “actual malice standard.” See Coleman v.
Hillsborough Cnty., 41 F.4th 1319, 1325 (11th Cir. 2022)(quoting
Peterson v. Pollack, 290 So. 3d 102, 109 (Fla. 4th DCA 2020)).
The third exception will strip officers of their immunity where
their conduct is “wanton and willful.” “Wanton means ‘with a
conscious and intentional indifference to consequences with the
knowledge that damage is likely to be done to persons or property’”
and “[w]illful means ‘intentionally, knowingly and purposely.’”
See id. “Together those terms describe ‘conduct much more
18 Since Abreu dedicates a portion of his SAC to “Willful Misconduct,”
the Court will analyze those factual allegations in relation to whether
Deputy Abreu is entitled to immunity. (Doc. #18, ¶¶ 29-31; 71-76.)
While the Court dismisses Count VI as an independent cause of action,
it still liberally construes Harden’s pleading.
reprehensible and unacceptable than mere intentional conduct.’”
Id.
The Court need only discuss the third exception as Harden
pleads sufficient facts to show Deputy Abreu acted in a manner
exhibiting wanton and willful disregard of human rights, safety,
or property. As discussed above, Deputy Abreu is alleged to have
deliberately disregarded Harden’s serious medical need by delaying
medical care for approximately two hours. See supra Section
III.B.2. This is sufficient to permit a reasonable inference that
Deputy Abreu acted “with a conscious and intentional indifference
to consequences with the knowledge that damage is likely to be
done to” Harden. See Coleman, 41 F.4th at 1325. Further, a
reasonable inference can be drawn that Deputy Abreu acted willfully
because he waited approximately two hours after arresting Harden
before calling EMS. Accordingly, Deputy Abreu is not entitled to
statutory immunity for purposes of the instant motion.
E. Count VI – Willful and Wanton Misconduct Is Not an
Independent Cause of Action
Finally, Harden brings a “Willful Misconduct” claim under
Florida Statutes section 768.28(9)(a). Deputy Abreu contends this
is just an additional claim of negligence; however, the Court
cannot tell what Harden’s cause of action is.
Harden cites Florida Statutes Section 768.28(9)(a) as the
basis for the cause of action, however the statute only deals with
sovereign immunity as it relates to underlying tort claims. See
Fla. Stat. § 768.28(9)(a). The Court cannot find any caselaw where
the statute was found to create an independent cause of action.
See, e.g., Plowright v. Miami Dade Cnty., 102 F.4th 1358 (11th
Cir. 2024)(discussing the application of statutory immunity to an
intentional infliction of emotional distress claim); Weiland v.
Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1330 (11th Cir.
2015)(discussing the application of statutory immunity to
intentional infliction of emotional distress and malicious
prosecution claims); Castro-Reyes v. City of Opa-Locka, 166 F.4th
886, 903 (11th Cir. 2026)(discussing the application of statutory
immunity to assault and battery claims); Aguirre, 158 F.4th at
1310 (discussing the application of statutory immunity to an
intentional infliction of emotional distress claim). Since Harden
fails to identify an underlying tort, Count VI currently fails to
state a claim. Accordingly, the Motion to Dismiss will be granted
as to Count VI.
For the reasons set forth in this order, the motion to dismiss
will be granted in part and denied in part.
Accordingly, it is now
ORDERED:
(1) Defendants’ Motion to Dismiss Plaintiff’s Second Amended
Complaint (Doc. #35) is GRANTED IN PART AND DENIED IN
PART as follows:
(a) Defendants’ Motion to Dismiss Counts I-II is
DENIED.
(©) Counts III-IV are DISMISSED without prejudice.
(c) Count V is DISMISSED without prejudice as to
Sheriff Carmine Marceno in his official capacity.
Defendants’ Motion to Dismiss Count V as to Deputy
Abreu is DENIED.
(d) Count VI is DISMISSED without prejudice.
(2) The Clerk shall withhold the entry of Judgment until the
conclusion of the case.
DONE AND ORDERED at Fort Myers, Florida, this 8th day of
June 2026,
adi E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
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