Athanas

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ELLIS ATHANAS,

Plaintiff,

v. Case No.: 2:25-cv-822-SPC-KRH

OFFICER ALEJANDRO PEREZ, a

Lee County Sheriff Deputy, in his

individual capacity,

Defendant.

OPINION AND ORDER

Before the Court is Defendant Deputy Alejandro Perez’s motion to

dismiss. (Doc. 18). Plaintiff Ellis Athanas responded (Doc. 23), and Deputy

Perez replied. (Doc. 31). For the below reasons, the Court grants the motion.

Background

This is civil rights action based on Deputy Perez’s warrantless entry into

Plaintiff’s home.1 Shortly after midnight on April 25, 2025, a resident at 6030

Jonathan’s Bay Circle in Fort Myers, Florida, called 911. The caller told the

1 The Court “accept[s] the allegations in the complaint as true and constru[es] them in the

light most favorable to” Plaintiff. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir.

2009). In support of his motion, Deputy Perez provides audio and body-worn camera footage

of the events alleged in Plaintiff’s complaint. (Docs. 18-1, 18-2, 18-3, 20). The Court may

consider these exhibits at the motion to dismiss stage. See, e.g., Swinford v. Santos, 121 F.4th

179, 186–88 (11th Cir. 2024) (finding that a district court properly considered “the

defendants’ body camera footage when ruling on the motion to dismiss”), cert. denied, 146 S.

Ct. 204 (2025).

dispatcher that “[s]omebody has broken into my neighbor’s house” and that she

heard noise coming from her neighbor’s house.2 (Doc. 18-1 at 0:10–0:18). The

caller lived in unit 401 and stated that the noise was coming from “whoever is

in the upstairs -- I don’t know whether it’s 402 or 400. Probably 402.” (Id. at

0:34–0:52). The caller said her neighbors were on vacation, and no one was

supposed to be home. (Id. at 0:55–1:02). The dispatcher attempted to confirm

whether the unit above 401 was the source of the noise the caller heard. The

caller answered, “[y]eah, well next to it, I guess. I don’t know if it’s upstairs or

downstairs.” (Id. 1:07–1:18). The dispatcher assured her that an officer would

come to the area. (Id. at 1:18–1:30).

Shortly after 12:30 a.m., Deputy Perez arrived at the location traced from

the 911 call. He walked toward a house with an open garage door, and a white

vehicle was backed into the garage. (Doc. 18-2 at 0:31–0:41). The number

“6030” appeared prominently above the garage, but the unit number was not

visible. (Id. at 0:44). Deputy Perez shone his flashlight into the garage and

approached a door leading to the interior of the house. (Id. at 0:50–59). He

tried the doorknob and found the door unlocked. (Id. at 1:00–1:10). Deputy

Perez did not enter the home, turned around, and reported his observations to

2 Deputy Perez filed the physical flash drives of the audio and video exhibits with the Court.

(Doc. 20). For ease of reference, the Court refers to the exhibits by their corresponding cover

pages included with Defendant’s motion. (Docs. 18-1, 18-2, 18-3).

dispatch. (Id. at 1:11–1:25). He walked around to the front door of the house

and observed that it was unlocked as well. (Id. at 1:40–1:55). No unit number

is visible by the front door in the video.

Deputy Perez opened the front door and shone his flashlight inside,

revealing a staircase leading up to what appeared to be a unit. (Doc. 18-2 at

1:58). While still standing outside the front door, Deputy Perez shouted,

“Sheriff’s Office!” (Id. at 1:55–1:58). After waiting about fifteen seconds with

no response, he again shouted, “Sheriff’s Office, anybody here make yourself

known!” (Id. at 1:58–2:17). No response came again, so Deputy Perez rang the

doorbell. (Id. at 2:18–2:24). He waited by the open front door for about thirty

seconds but received no response from anyone inside the house. (Id. at 2:25–

3:12).

Deputy Perez closed the front door and walked around to the back of the

house. (Id. at 3:13–4:00). He approached a porch and found the sliding glass

door leading inside locked.3 (Id. at 4:00–4:16). He returned to the front of the

garage and ran the white car’s license plate. (Id. at 5:25–5:50). He then waited

for backup to arrive while monitoring the two unlocked doors for further

activity. (Id. at 5:50–14:24). Once Sergeant Scowden arrived, Deputy Perez

3 Plaintiff later told Deputy Perez that the back porch is not part of his unit. (Doc. 18-2 at

21:20–21:30).

recounted his observations, and both officers then walked toward the front

door.4

Deputy Perez opened the unlocked front door. As he stepped inside, he

shouted, “Sheriff’s Office, anybody here make yourself known!” (Doc. 18-2 at

14:45–14:51). Sergeant Scowden followed behind Deputy Perez. Before going

up the staircase, Deputy Perez announced “Sheriff’s Office” again. (Id. at

14:51–14:56). This time, an unknown person (Plaintiff) responded “what?”

from upstairs, and Perez announced, “Sheriff’s Office” again in response. (Id.

at 14:58–15:00). Deputy Perez quickly followed up by stating, “You’re not in

trouble, who’s here?” (Id. at 15:00–15:03). Plaintiff asked, “what’s going on?”

(Id. at 15:03–15:05). Deputy Perez, still at the bottom of the staircase, asked

the unknown person to “come out slowly.”5 (Id. at 15:06–15:07). Plaintiff

identified himself by his first name and explained that he lived in the unit with

his two daughters. (Id. at 15:07–15:16). Deputy Perez informed Plaintiff that

someone reported a break-in and that he and Sergeant Scowden “gotta figure

out what’s going on.” (Id. at 15:18–15:22).

4 Deputy Perez also attaches Sergeant Scowden’s body camera footage to the motion to

dismiss. (Doc. 18-3). The Court agrees with Deputy Perez that the footage from the two

body-worn cameras are substantially similar. (Doc. 18 at 5 n.2).

5 Plaintiff’s counsel contends that the officers “interrogated [Plaintiff] at gun point.” (Doc. 23

at 3). The videos contradict that statement. While it appears both officers drew their

firearms as they entered the home (Doc. 18-3 at 0:49–1:15), neither video shows that they

pointed guns at Plaintiff during the encounter. In fact, the three men engaged in a calm

discussion immediately after Plaintiff made his presence known. The Court rejects counsel’s

rank distortion of the facts.

At Sergeant Scowden’s direction, Plaintiff came downstairs to discuss

the situation. Sergeant Scowden asked Plaintiff whether he had any

identification to confirm that he lived at the home. (Doc. 18-2 at 15:35–15:38).

Plaintiff responded, “sure do . . . let me go get it, or come with me.” (Id. at

15:35–15:41). The three of them went upstairs and continued the discussion.

After Plaintiff gave the officers his ID, they confirmed that he had rented

the white car in the garage from a car rental company. (Id. at 16:15–16:54).

Plaintiff said that his neighbors “next door . . . down below” were gone. (Id. at

17:58–18:03). Deputy Perez informed Plaintiff that the address reported by

the 911 caller matched the number “6030” above the open garage door. (Id. at

17:43–18:12). Plaintiff asked to clarify, “6030 what unit? . . . [because] this is

502.” (Id. at 18:13–18:20). The officers went outside to find the caller, during

which time Plaintiff explained that all the units on the street are designated

“6030.” (Id. at 19:00–19:25). Deputy Perez clarified again that he investigated

Plaintiff’s unit because the address 6030 matched what the caller said, the

garage door was left open, and the doors were unlocked. (Id. at 18:38–20:15).

With Plaintiff’s assistance, the officers located the caller’s unit (id. at

24:02–24:29), which was on the bottom floor of the house next to the one

containing Plaintiff’s unit. The officers spoke with the caller about her report.

(Id. at 24:50–26:00). They then checked the neighboring upstairs unit and

found the front door dead-bolted. (Id. at 26:00–26:32). The neighbor answered

the door, stated she lives in the unit, and that the caller has made similar

complaints to the sheriff’s office about twenty times. (Id. at 27:17–28:00).

Deputy Perez returned to the caller’s unit to explain the situation. (Id. at

28:00–29:10). After doing so, the officers left the scene.

Plaintiff sues Deputy Perez under 42 U.S.C. § 1983 for entering his home

without a warrant.6 Deputy Perez moves to dismiss the complaint, arguing the

claim is barred by qualified immunity.

Legal Standard

To survive a Rule 12(b)(6) motion, a complaint must allege “sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Bare “labels and

conclusions, and a formulaic recitation of the elements of a cause of action,” are

not enough. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A district

court should dismiss a claim when a party does not plead facts that make the

claim facially plausible. See id. at 570. A claim is facially plausible when a

court can draw a reasonable inference, based on the facts pled, that the

opposing party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678.

This plausibility standard requires “more than a sheer possibility that a

6 Plaintiff also sued Sergeant Scowden but dismissed that claim without prejudice. (Doc. 16).

defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557

(internal quotation marks omitted)).

The Court may consider the audio and video exhibits Deputy Perez

attaches to his motion. See supra, 1 n.1; see also Quinette v. Reed, 805 F. App’x

696, 700 (11th Cir. 2020) (finding that video footage may be considered in

ruling on a motion to dismiss based on the incorporation by reference doctrine).

Where a video in evidence “obviously contradicts [a plaintiff’s] version of the

facts, [a court] accept[s] the video’s depiction instead of [the plaintiff’s]

account.” Id.

Analysis

Deputy Perez argues that Plaintiff’s Section 1983 claim is barred by

qualified immunity. For the reasons below, the Court agrees.

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In order to receive qualified

immunity, the public official must first prove that he was acting within the

scope of his discretionary authority when the allegedly wrongful acts occurred.”

Carruth v. Bentley, 942 F.3d 1047, 1054 (11th Cir. 2019) (internal quotation

marks and citation omitted). “When a court concludes the defendant was

engaged in a discretionary function, ‘the burden shifts to the plaintiff to show

that the defendant is not entitled to qualified immunity.’” Hill v. Cundiff, 797

F.3d 948, 978 (11th Cir. 2015) (quoting Holloman ex rel. Holloman v. Harland,

370 F.3d 1252, 1264 (11th Cir. 2004)).

Deputy Perez acted within the scope of his discretionary authority as a

police officer. See, e.g., Nigro v. Carrasquillo, 152 F. Supp. 3d 1364, 1368 (S.D.

Fla. 2015) (“Investigating crimes, conducting searches, and making arrests are

legitimate job-related functions within the discretionary authority of police

officers.” (quotation omitted)). Therefore, Plaintiff must show that qualified

immunity is inapplicable.

“To overcome qualified immunity, the plaintiff must show both that (1)

the defendant violated a constitutional right, and (2) this right was clearly

established at the time of the alleged violation.”7 Crider v. Williams, No. 21-

13797, 2022 WL 3867541, at *5 (11th Cir. Aug. 30, 2022) (citing Khoury v.

Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1126 (11th Cir. 2021)). Plaintiff fails

to satisfy both prongs of the analysis.

First, Deputy Perez’s actions did not violate the Fourth Amendment.

While police officers ordinarily need a warrant to enter a home, see Payton v.

New York, 445 U.S. 573, 586 (1980), that rule is “subject to several exceptions.”

7 The Court has discretion to analyze the second step of the qualified immunity analysis first.

See Pearson, 555 U.S. at 239.

Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Pertinent here, “[o]ne such

exception is that the police may enter a private premises and conduct a search

if ‘exigent circumstances’ mandate immediate action.” United States v.

Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002) (citation omitted). Exigent

circumstances exist “when there is compelling need for official action and no

time to secure a warrant.” Id. (internal citation and quotation omitted).

“[I]f police have probable cause to suspect a residential burglary—

whether they believe the crime is currently afoot or has recently concluded—

they may, without further justification, conduct a brief warrantless search of

the home to look for suspects and potential victims.” Montanez v. Carvajal,

889 F.3d 1202, 1208–09 (11th Cir. 2018). “Probable cause requires only a

probability . . . of criminal activity, not an actual showing of such activity.”

Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009) (quotation omitted); see

also Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (“Probable cause

does not require overwhelmingly convincing evidence, but only ‘reasonably

trustworthy information.’”) (quoting Marx v. Gumbinner, 905 F.2d 1503, 1506

(11th Cir. 1990)).

Deputy Perez had probable cause to suspect a burglary at Plaintiff’s unit.

The officers received a 911 call after midnight from a resident reporting that

someone had broken into her neighbor’s house. While the caller sounded

certain a crime was being committed, she gave an uncertain description of the

unit’s location. (Doc. 18-1 at 0:34–1:18). Deputy Perez arrived at the location

traced from the 911 call shortly after the call came in. He observed the number

“6030” above an open garage door, which matched the address the caller

provided. No other garage doors in the vicinity were open, and the numbers of

the respective units were not visible at any point in the body camera footage.

The interior garage door and the front door were unlocked. Deputy Perez

loudly announced his presence twice at the front door and rang the doorbell

with no response. He then discovered that the car in the garage was a rental.

Deputy Perez explained at the scene that the officers saw the number “6030,”

and an open garage door, and observed unlocked doors, “so that’s the first

house we’re gonna check.” (Id. at 19:23–19:32). These facts collectively

support a reasonable “probability” of a burglary either in progress or that

recently concluded. See Case, 555 F.3d at 1327.

Plaintiff offers a scattershot of arguments suggesting that Deputy Perez

lacked probable cause to suspect that a burglary was occurring or had occurred

at his unit. (Doc. 23). Plaintiff’s arguments merit little analysis, but the Court

does address one point. Plaintiff argues that Deputy Perez’s decision to wait

several minutes for Sergeant Scowden to arrive before entering the home

demonstrates a lack of exigency. (Id. at 14). Hardly. Deputy Perez’s decision

to monitor the house and wait for back-up before potentially entering a

dangerous situation is not unreasonable. If anything, it shows that Deputy

Perez truly suspected a burglary and chose to wait for back-up rather than

charging into an unknown situation alone. Cf. Montanez, 889 F.3d at 1209

(noting “a police officer who happens upon a suspected burglary . . . will rarely

know (or have any real way of knowing)” all the relevant facts in the moment).

Even assuming Plaintiff had alleged a constitutional violation, he fails

to establish that the right was clearly established. “In determining [if] a right

is clearly established, the . . . dispositive inquiry is whether it would be clear

to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1102 (11th

Cir. 2014) (quotation omitted). Courts may not “define clearly established law

at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)

(citations omitted); see also City of San Francisco v. Sheehan, 575 U.S. 600, 613

(2015) (“Qualified immunity is no immunity at all if ‘clearly established’ law

can simply be defined as the right to be free from unreasonable searches and

seizures.”).

Plaintiff fails to establish that Deputy Perez violated clearly established

law. As Montanez makes clear, distinguishing cases that authorize

warrantless entries is insufficient to show a defendant violated clearly

established law holding that a warrantless entry was improper. See 889 F.3d

at 1212 n.7. Plaintiff provides no authority finding a Fourth Amendment

violation based on a similar set of facts. So, Deputy Perez is entitled to

qualified immunity on that basis as well.

It is unfortunate that Deputy Perez woke Plaintiff late at night for what

was ultimately a false alarm. But rather than simply pick up and move on,

Plaintiff quite literally “made a federal case out of” the events. Kantrow v.

Celebrity Cruises Inc., 533 F. Supp. 3d 1208, 1222 (S.D. Fla. 2021) (cleaned up).

While it is his right to file suit, his claim is barred by qualified immunity.

Accordingly, it is

ORDERED:

1. Defendant Deputy Alejandro Perez’s motion to dismiss (Doc. 18) is

GRANTED.

2. Plaintiff's Complaint (Doc. 1) is DISMISSED with prejudice.

3. The Clerk is DIRECTED to terminate all deadlines, deny any

pending motions as moot, enter judgment for Defendant, and close

the case.

DONE and ORDERED in Fort Myers, Florida on June 25, 2026.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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