Fleming

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MICHAEL-ZAHIR DAVID

FLEMING,

Plaintiff,

v. Case No.: 2:25-cv-1154-SPC-NPM

COLLIER COUNTY SHERIFF’S

OFFICE, OFFICER TRISTAN

ALLEN, OFFICER TIMOTHY

HERRERA, SERGEANT FOSTER,

SHERIFF KEVIN RAMBOSK,

Defendants.

OPINION AND ORDER

Before the Court are two Motions to Dismiss: one filed by Defendant

Sheriff Kevin Rambosk (Doc. 17) and another filed by Defendants Officer

Tristan Allen, Officer Timothy Herrera, and Sergeant Foster (collectively,

“Officers”) (Doc. 25). Pro se Plaintiff Michael-Zahir David Fleming1 responded

to both motions. (Docs. 23, 27). For the below reasons, the Court grants the

motions.

1 In a separate action, the Court identified Plaintiff as a “sovereign citizen” in denying him

leave to proceed in forma pauperis and dismissing his complaint as frivolous under § 1915

review. See Fleming v. Fla., No. 2:23-CV-1092-JES-NPM, 2025 WL 1332824, at *1 (M.D. Fla.

Mar. 14, 2025), report and recommendation adopted sub nom. 2025 WL 979386 (Apr. 2,

2025). The claims and Defendants here are eerily similar to the ones previously dismissed

as frivolous.

Background2

This is a civil rights action under 42 U.S.C. § 1983. (Doc. 13). The facts

are straightforward, and the Court only discusses those necessary to resolve

the motions. Plaintiff alleges that in July 2022, he parked his car in a Dunkin

Donuts parking lot. Officers Allen and Herera arrived and positioned their

vehicle such that Plaintiff could not leave. Without indicating they suspected

Plaintiff of any criminal activity, they demanded Plaintiff provide his driver’s

license. Plaintiff questioned the basis for the stop and refused to comply.

Officer Allen then arrested Plaintiff.

In executing the arrest, Officer Allen applied the handcuffs too tight,

causing pain and numbness in Plaintiff’s wrists and hands. Although Plaintiff

complained, the handcuffs were never loosened. Plaintiff also advised Officer

Allen of a pre-existing nerve condition in his groin area. Even so, Officer Allen

conducted a “firm and intrusive” pat-down search, which exacerbated his groin

injury. Plaintiff was then placed into the patrol vehicle—with the windows up,

the air conditioning off, the temperature outside around 90 degrees—for

roughly thirty minutes. Plaintiff, who has asthma, experienced respiratory

distress due to the heat.

2 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).

Plaintiff brings a litany of claims under § 1983 as well as a state-law

intentional infliction of emotional distress (“IIED”) claim. (Doc. 13). Sheriff

Rambosk moves to dismiss the § 1983 claims against him, arguing Plaintiff

fails to adequately allege a policy or custom. He also moves to dismiss the IIED

claim and argues the second amended complaint is a shotgun pleading. (Doc.

17). The Officers also argue the second amended complaint is a shotgun

pleading, that they are entitled to qualified immunity on Plaintiff’s excessive-

force claim, and that Plaintiff fails to state an IIED claim. (Doc. 25).

Legal Standard

To survive a Federal Rule of Civil Procedure 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,” do not suffice. 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

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

(internal quotation marks omitted)).

Analysis

The Court begins by addressing the shotgun pleading argument. The

Court then turns to the § 1983 claims against Sheriff Rambosk, followed by the

excessive force claim against Officers Allen and Herrera. Then the IIED claim.

I. Shotgun Pleading

Defendants argue Plaintiff’s second amended complaint is a shotgun

pleading. Federal Rule of Civil Procedure 8 requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). Shotgun pleadings violate this rule “by fail[ing] . . . to give the

defendant adequate notice of the claims against them and the grounds upon

which each claim rests.” Weiland v. Palm City Beach Cnty. Sheriff’s Office, 792

F.3d 1313, 1321–23 (11th Cir. 2015) (defining the four types of shotgun

pleadings). “A complaint that fails to articulate claims with sufficient clarity

to allow the defendant to frame a responsive pleading constitutes a ‘shotgun

pleading.’” Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 277

(11th Cir. 2008). “Courts in the Eleventh Circuit have little tolerance for

shotgun pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th

Cir. 2018).

Defendants maintain Plaintiff’s second amended complaint is the second

type of shotgun pleading—that it is “replete with conclusory, vague, and

immaterial facts not obviously connected to any particular cause of action.”

Weiland, 792 F.3d at 1322. The Court disagrees. Although Plaintiff’s second

amended complaint includes the occasional irrelevant or vague allegation, they

do not render the pleading so deficient that Defendants cannot formulate a

response. See Turner v. Shearon, No. 2:24-CV-299-MHT-KFP, 2025 WL

2966875, at *2 (M.D. Ala. Oct. 21, 2025) (“Certainly, Plaintiff’s pleading lacks

some clarity, but it does not lack the level of factual clarity completely

preventing Defendants from formulating a response to it.”).

Defendants also argue the pleading is the fourth type of shotgun

pleading—that it asserts “multiple claims against multiple defendants without

specifying which of the defendants are responsible for which acts or omissions,

or which of the defendants the claim is brought against.” Weiland, 792 F.3d at

1323. The Court agrees, primarily because Plaintiff routinely uses passive

voice, making it impossible to know which Defendant purportedly committed

the wrongdoing. See Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg

Corp., 305 F.3d 1293, 1297 (11th Cir. 2002) (finding shotgun pleading because

of the plaintiff’s use of passive voice in the complaint). For instance, Plaintiff

alleges he “was placed in the rear seat of the patrol vehicle, which remained

parked” in the hot conditions. (Doc. 13 ¶ 21). It is unclear who placed Plaintiff

in the vehicle and, thus, who is responsible for the purported misconduct. This

is just one example, as Plaintiff repeatedly deploys the passive voice

throughout the pleading. Adding to the confusion, Sergeant Foster is a named

Defendant, yet Plaintiff does not allege any conduct by him. As such, the

second amended complaint is a shotgun pleading, and the Court dismisses it

without prejudice.3

II. Section 1983 Claims against Sheriff Rambosk

Plaintiff brings several claims against Sheriff Rambosk in his official

capacity: Fourteenth Amendment due process violation under Monell v. Dep’t

of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978) (count III), failure

to train and supervise under Monell (count V), Eighth Amendment excessive

fines (count VI), and Fourteenth Amendment equal protection violation (count

VII). Each claim fails.

“To impose Monell liability, a plaintiff must show: (1) that his

constitutional rights were violated; (2) that the municipality had a custom or

policy that constituted deliberate indifference to that constitutional right; and

(3) that the policy or custom caused the violation.” Underwood v. City of

Bessemer, 11 F.4th 1317, 1333 (11th Cir. 2021) (citation omitted). As to the

second element, all Plaintiff musters are broad allegations that “Defendant

Rambosk maintained policies and customs of inadequate training and

supervision regarding constitutional stops, arrests, force, and fee collection”

3 In non-merits dismissals on shotgun pleading grounds, the Eleventh Circuit requires

district courts to allow a litigant one chance to remedy such deficiencies. See, e.g., Wagner v.

First Horizon Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir. 2006). This is Plaintiff’s chance.

(Doc. 13 ¶ 76), and that “Defendant Rambosk’s policies and customs, including

revenue-driven detention, were the moving force behind the violations.” (Id.

¶ 69). Such allegations are insufficient.

“Simply alleging a policy or custom exists is not enough to satisfy Rule

8(a)(2) and the requisite pleading standards.” Huntley v. Chronister, No. 8:25-

CV-1318-MSS-CPT, 2026 WL 2253796, at *2 (M.D. Fla. Aug. 5, 2026) (citation

omitted). Indeed, “[d]istrict courts have repeatedly rejected the attempts of

plaintiffs to merely allege policies and procedures without factual allegations

and dismissed complaints that use this tactic to establish municipal liability.”

Id. (citation omitted). Such is the case here.

To be sure, Plaintiff does not designate counts VI and VII as Monell

claims. But these claims are dismissed either way because “[i]t is well

established in this Circuit that supervisory officials are not liable under § 1983

for the unconstitutional acts of their subordinates on the basis of respondeat

superior or vicarious liability.” Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1047

(11th Cir. 2014). And Plaintiff alleges no individual conduct by Sheriff

Rambosk. The Court thus dismisses counts III, V, VI, and VII without

prejudice.

III. Section 1983 Excessive Force Claim against Officers Allen and

Herrera (count II)

Plaintiff alleges that Officers Allen and Herrera used excessive force by

applying overly tight handcuffs, conducting an intrusive pat-down despite

knowledge of Plaintiff’s pre-existing groin injury, and confining Plaintiff in

extreme heat without ventilation. (Doc. 13 ¶ 64). Officers Allen and Herrera

invoke qualified immunity. (Doc. 25).

“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.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant

officer operated within the scope of his discretionary authority, the plaintiff

bears the burden of “demonstrat[ing] that qualified immunity is not

appropriate.” Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir.

2006) (quoting Lumley v. City of Dade City, 327 F.3d 1186, 1194 (11th Cir.

2003)).

The parties do not dispute that Officers Allen and Herrera acted within

the scope of their discretionary authority. So Plaintiff bears the burden of

proving “both (1) that the officers ‘violated a statutory or constitutional right’

and (2) ‘that the right was clearly established at the time of the challenged

conduct.’” Acosta v. Miami-Dade Cnty., 97 F.4th 1233, 1239 (11th Cir. 2024)

(quoting Mikko v. City of Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017)).

Plaintiff fails to satisfy this burden.

Plaintiff produces no authority suggesting Officers Allen and Herrera

violated a clearly established constitutional right. He only argues that “the

Eleventh Circuit has long recognized that gratuitous force against a person

who is secured, not resisting, and posing a threat may violate clearly

established law” with citation to two cases. (Doc. 27 at 12). But his citation to

a broad rule in this context is insufficient. See Mullenix v. Luna, 577 U.S. 7,

12 (2015) (explaining “the dispositive question is whether the violative nature

of particular conduct is clearly established” particularly in the Fourth

Amendment excessive force context (emphasis added)); Sheets v. Prummell,

No. 2:24-CV-943-SPC-NPM, 2025 WL 712805, at *4 (M.D. Fla. Mar. 5, 2025)

(finding the plaintiff failed to satisfy his burden with citation “only to two bare

caselaw quotes” without explaining how they apply). Because Plaintiff

provides no authority suggesting the specific force employed by Officers Allen

and Herrera violated the Constitution,4 he fails to satisfy his burden.

4 In fact, Plaintiff does not allege any force by Officer Hererra. Rather, he alleges that only

Officer Allen handcuffed him and conducted the pat down. (Doc. 13 ¶¶ 18–21). He then

passively alleges he “was placed in the rear seat of the patrol vehicle.” (Id. ¶ 22). He never

specifies who placed him in the vehicle.

Nor can he. The relevant authority suggests Officers Allen and Herrera’s

use of force was not excessive. Regarding the handcuffs, the Eleventh Circuit

instructs: “only the most exceptional circumstances will permit an excessive

force claim on the basis of handcuffing alone.” Sebastian v. Ortiz, 918 F.3d

1301, 1312 (11th Cir. 2019). As such, courts “have repeatedly held that painful

handcuffing alone doesn’t constitute excessive force.” Huebner v. Bradshaw,

935 F.3d 1183, 1191 (11th Cir. 2019) (finding no excessive force when the

female plaintiff complained the handcuffs were too tight, the officer replied

they were “man handcuffs” and tightened them again, the plaintiff was left

handcuffed in the patrol car for as long as two hours, and the crime she

committed was minor). Plaintiff fails to show this case involves the “most

exceptional circumstances.” Sebastian, 918 F.3d at 1312; see also Tasis v.

Marceno, No. 2:24-CV-930-SPC-KCD, 2025 WL 1167822, at *3–4 (M.D. Fla.

Apr. 22, 2025) (dismissing excessive force claim based on handcuffing).

As for Plaintiff’s claim that the pat down was excessive, his own

allegations suggest otherwise. He alleges only that Officer Allen “conducted a

firm and intrusive pat-down search[.]” (Doc. 13 ¶ 21). But a pat down of the

groin is by its very nature intrusive. And a “firm” pat down hardly suggests it

was excessive. To the contrary, this use of force was de minimis.

Plaintiff relies only on his allegation that the pat-down aggravated his

pre-existing groin injury. “What would ordinarily be considered reasonable

force does not become excessive force when the force aggravates (however

severely) a pre-existing condition the extent of which was unknown to the

officer at the time.” Rodriguez v. Farrell, 280 F.3d 1341, 1353 (11th Cir. 2002).

Although Plaintiff alleges Officer Allen knew of his pre-existing groin

condition, he cites no authority supporting the inverse of the Rodriguez rule.

Put differently, he fails to show it is clearly established that an officer’s use of

de minimis force becomes excessive merely because it aggravated a known pre-

existing condition. Indeed, Plaintiff never alleges Officer Allen “target his pre-

existing conditions to cause gratuitous pain.” Tasis, 2025 WL 1167822, at *4.

As for Plaintiff’s hot-car claim, the Eleventh Circuit has explicitly

recognized this area of the law is not clearly established. See Crocker v. Beatty,

995 F.3d 1232, 1252 (11th Cir. 2021) (noting “the law on [a detainee left in a

hot car] is not at all clearly established”). Much like here, Crocker found no

excessive force when the plaintiff was left in a patrol vehicle, with no air

condition, in 84-degree temperature, for between 22 and 30 minutes. Id. at

1238. The court explained, “it’s hard to imagine how we could find a

constitutional violation here without making a federal case of just about every

‘hot car’ incident in Alabama, Florida, and Georgia, which we (once again)

decline to do.” Id. at 1251–52.

Because Plaintiff failed to show Officers Allen and Herrera violated a

clearly establish constitutional right, they are entitled to qualified immunity.

The Court dismisses count II with prejudice.

IV. IIED claim (count X)

Last is Plaintiff’s IIED claim against Defendants. Sheriff Rambosk

argues he is entitled to sovereign immunity (Doc. 17), and the Officers argue

Plaintiff fails to state a claim (Doc. 25). Because Plaintiff fails to state a claim,

the Court does not reach the sovereign immunity issue.

“To state a valid claim for intentional infliction of emotional distress

under Florida law, a plaintiff must plausibly allege the following elements: (1)

the defendant’s conduct was intentional or reckless; (2) the conduct was

outrageous, beyond all bounds of decency, and odious and utterly intolerable

in a civilized community; (3) the conduct caused emotional distress; and (4) the

emotional distress was severe.” Plowright v. Miami Dade Cnty., 102 F.4th

1358, 1367–68 (11th Cir. 2024) (citation omitted). Liability attaches “only

where the conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Id. at 1368

(citation omitted). In Florida, whether conduct is outrageous enough to

support an IIED claim is a question of law. Id. But “the standard for

outrageous conduct is particularly high in Florida.” Id. (quoting Clemente v.

Horne, 707 So. 2d 865, 867 (Fla. Dist. Ct. App. 1998)).

Plaintiff’s claim falls well short of the high threshold. He essentially

argues that being detained, arrested, subjected to de minimis force, and forced

to pay a couple hundred dollars in fines constitutes outrageous conduct. But

the purported emotional distress arising from these incidents is far from being

of “such a substantial quality or enduring quality that no reasonable person in

a civilized society should be expected to endure it.” Kim v. Jung Hyun Chang,

249 So. 3d 1300, 1305 (Fla. Dist. Ct. App. 2018) (citation omitted); see also

Corbin v. Prummell, 655 F. Supp. 3d 1143, 1166 (M.D. Fla. 2023) (finding

conduct by officers more severe than that alleged here did not state an IIED

claim). To the contrary, individuals are subjected to this same treatment daily.

The Court thus dismisses count X with prejudice.

V. Additional Matter

One final point. Plaintiff names the Collier County Sheriff’s Office as a

defendant. But the Sheriff’s Office is not a proper party to this action. See,

e.g., Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (“Sheriff’s

departments and police departments are not usually considered legal entities

subject to suit.” (citations omitted)); Taylor v. Hall, No. 5:25-CV-19-WFJ-PRL,

2025 WL 326678, at *3 (M.D. Fla. Jan. 29, 2025) (dismissing the plaintiff’s

claims against Citrus County Sheriff’s Department because “it is not a legal

entity subject to suit”). So the Collier County Sheriffs Office is dismissed with

prejudice.

Accordingly, it is now

ORDERED:

1. Defendants’ Motions to Dismiss (Docs. 17, 25) are GRANTED.

2. The second amended complaint is DISMISSED without prejudice

as an impermissible shotgun pleading.

3. Counts II and X are DISMISSED with prejudice.

4. The Collier County Sheriff's Office is DISMISSED with prejudice.

The Clerk is DIRECTED to terminate the Collier County Sheriffs

Office as a defendant.

5. On or before August 28, 2026, Plaintiff must file a Third Amended

Complaint. Failure to do so will result in this case’s dismissal without

further notice.

DONE and ORDERED in Fort Myers, Florida on August 14, 2026.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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