Lott

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

RASHAD MARQUISE LOTT,

Plaintiff, Case No. 5:26-CV-28-KCD-PRL

v.

CITY OF OCALA; OFFICER JOHN

McCURDY, INDIVIDUALLY;

CORPORAL MICHAEL

COUGHLIN, INDIVIDUALLY;

OFFICER KRISTA McCOLLUM,

INDIVIDUALLY; SERGEANT

DAVID MOOREHEAD,

INDIVIDUALLY; CHIEF MIKE

BALKEN, INDIVIDUALLY;

DEPUTY CHIEF LOUIS BIONDI,

INDIVIDUALLY; CAPTAIN

DUSTIN KUENTJES,

INDIVIDUALLY; FLG CHICKEN,

LLC, d/b/a KFC; YUM! BRANDS,

INC.; & MAYOR BEN MARCIANO,

INDIVIDUALLY,

Defendants,

/

ORDER

This is a civil rights case stemming from a fast-food run gone awry.

After pulling up to a KFC drive-through window, Plaintiff Rashad Marquise

Lott received neither the two sodas he had ordered nor much sympathy.

Management told him to move away from the window, and when he refused,

they called police. Lott was arrested for trespassing and resisting without

violence. After those charges were dismissed, he brought this civil rights

action against several defendants.

Pertinent here, he sues the City of Ocala, its Mayor, Defendant Ben

Marciano, and several of police officers. These Defendants now move to

dismiss the complaint (Doc. 19) and Lott has responded (Doc. 36), making

this matter ripe.1 As explained below, Defendants’ Motion is GRANTED in

part and DENIED in part.

I. Background

Here are the relevant facts taken from the operative complaint, which

at this stage must be taken as true. Lott placed a prepaid “order for pickup”

at an Ocala KFC restaurant. (Doc. 11 ¶¶ 22, 37.) After pulling up to the

drive-through window, Lott found his order two sodas short and remained at

the window for the missing drinks. (Id. ¶ 38.)

The restaurant’s staff didn’t like this. They “demanded” he “move away

from the window” and the manager threatened police involvement if Lott

didn’t move. (Id. ¶¶ 39-40.) Sure enough, the police were called. Defendant

Officer John McCurdy arrived on scene and urged Lott to leave. (Id. ¶¶ 41-

44.). Defendant Corporal Michael Coughlin joined in and told Lott that if he

1 Unless otherwise indicated, all internal quotation marks, citations, case history, and

alterations have been omitted in this and later citations.

didn’t “leave immediately” he’d be dragged out of his car and taken to jail.

(Id. ¶ 45.).

Lott wasn’t budging. (Id. ¶¶ 44-46.) The officers consequently removed

him from his car and arrested him for trespassing and resisting without

violence. (Id. ¶ 46; Doc. 11-4 at 5.) Though these charges were later dropped,

Lott didn’t let things go. (Doc. 11 ¶ 68.) He criticized the Ocala Police

Department and the City of Ocala on its public social-media account and was

later blocked from the forum. (Id. ¶¶ 74, 76.)

He now brings a wide-ranging civil rights action. As relevant here, he

brings a Monell claim against the City of Ocala and a First Amendment claim

against Mayor Marciano in his individual capacity. (Id. ¶¶ 102-06, 116-21.)

He seeks to hold Officer McCurdy and Corporal Coughlin liable for excessive

force, malicious prosecution, and a Fourteenth Amendment violation. (Id. ¶¶

85-89, 90-101.). He also sues Defendants Captain Dustin Kuentjes, Deputy

Chief Louis Biondi, and Chief Mike Balken for supervisory liability. (Id. ¶¶

107-10.) And, along with Defendant Officer Krista McCollum, he seems to

blame each law-enforcement defendant for his allegedly unreasonable

seizure. (Id. ¶¶ 78-84.)

Defendants have moved to dismiss these claims under Fed. R. Civ. P.

12(b)(6).

II. Legal Standard

To survive a motion to dismiss, “a complaint must contain sufficient

facts, accepted as true, to state a facially plausible claim for relief.” Galette v.

Goodell, No. 23-10896, 2023 WL 7391697, at *3 (11th Cir. Nov. 8, 2023). “A

claim is facially plausible if it pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

When reviewing a motion to dismiss, courts must accept all factual

allegations in the complaint as true and view the facts in the light most

favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). “[A]

plaintiff's obligation to provide the grounds of his entitlement to relief

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). “[C]onclusory allegations, unwarranted factual deductions or

legal conclusions masquerading as facts will not prevent dismissal.” Davila v.

Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

III. Discussion

While Defendants seek the complete dismissal of Lott’s claims, their

motion gets them only halfway there. For organizational purposes, the Court

divides its discussion into three parts. Part A tackles a few threshold issues.

Part B deals with the claims deserving of dismissal. And Part C discusses the

claims that still stand.

A.

i. Defendants’ Motion is Not Untimely

At the outset, Lott insists that this motion was filed twenty-two days

after each law-enforcement defendant was served. In his view, this means

that the motion is untimely as to Officer McCurdy, Corporal Coughlin, Officer

McCollum, Sergeant Moorehead, Captain Kuentjes, Deputy Chief Biondi, and

Chief Balken.

To be sure, defendants must answer complaints within twenty-one days

of service. Fed R. Civ. P. 12(a)(1)(A)(i). But Lott hasn’t shown that service

was perfected on any of these defendants. He instead relies on return-of-

service forms which show that non-party Sergeant Scott Rowe was served.

(Doc. 15; Doc. 16.) It’s Lott’s burden to show service of process was perfected

here. Yearicks v. Miami-Dade Cnty., No. 24-20854-CIV, 2025 WL 732931, at

*4 (S.D. Fla. Feb. 10, 2025). Yet he offers nothing suggesting that Sergeant

Rowe was authorized to accept service on anyone’s behalf.

It is not apparent that service was perfected on any of the law

enforcement defendants. See Gaston v. City of Leesburg, No. 5:22-CV-409-

WFJ-PRL, 2024 WL 4040830, at *1-2 (M.D. Fla. Sept. 4, 2024) (finding no

proper service of process where Marshal left summons and complaint with

Police Department’s Record Supervisor instead of individual defendants);

Halbig v. Lake Cnty., Fla., No. 5:22-CV-106-JA-PRL, 2022 WL 17542863, at

*1 (M.D. Fla. May 25, 2022) (no proper service of where documents delivered

to Sherriff’s Office Legal Department employee, who was “not authorized to

accept service of process on behalf of the individual defendants”); Martin v.

Salvatierra, 233 F.R.D. 630, 631-32 (S.D. Fla. 2005) (finding no proper service

on police officer defendant where summons and complaint was left “with an

individual at [defendant’s] place of employment” and noting that “[a]lthough

service of process on police officers may be difficult, [Plaintiff] must still

properly serve each defendant”). Given this, the motion to dismiss is not

untimely. Tomko v. United States, No. 6:24-CV-1943-PGB-RMN, 2025 WL

4095846, at *1 (M.D. Fla. Feb. 5, 2025).

ii. The Complaint Is Not So Vague as to Warrant Dismissal

Defendants dub Lott’s complaint a shotgun pleading and contend it is

too vague to tell who is being sued for what. True, each count “realleges and

incorporates” every prior paragraph—which is classic shotgun-pleading stuff.

(Doc. 11 ¶ 85, 90, 96, 102, 107, 111, 116); e.g., Weiland v. Palm Beach Cnty.

Sheriff's Off., 792 F.3d 1313, 1321 (11th Cir. 2015). But this isn’t necessarily

fatal. The hallmark “of all types of shotgun pleadings is that they fail to one

degree or another, and in one way of another, to give defendants adequate

notice of the claims against them and the grounds upon which each claim

rests.” Weiland, 793 F.3d at 1321.

Yet Defendants shouldn’t really have that problem here. Most counts

specifically identify which defendant they are targeting. (Doc. 11 ¶¶ 83, 86,

91, 98, 103, 108, 109, 113, 118-19.) And the only one that doesn’t still

identifies which specific subset of defendants it is directed towards. (Id. ¶ 79.)

While Lott could have crafted a cleaner complaint, it is not so messy that one

can’t decipher who is being blamed for what. It follows that the complaint

need not be dismissed on shotgun-pleading grounds. See Pinson v. JPMorgan

Chase Bank, Nat'l Ass'n, 942 F.3d 1200, 1208 (11th Cir. 2019); Amin v.

Mercedes-Benz USA, LLC, 349 F. Supp. 3d 1338, 1351 (N.D. Ga. 2018);

Abrams v. CIBA Specialty Chemicals Corp., No. CIV.A. 08-0068WSB, 2008

WL 4183344, at *5 (S.D. Ala. Sept. 10, 2008).

iii. Qualified Immunity

Defendants raise qualified immunity almost as an afterthought. They

seem to say that they are shielded from Lott’s claims since arguable probable

cause existed for his arrest. Yet they blow right past their initial burden.

While “qualified immunity provides government officials with a

formidable shield [from liability], their entitlement to raise that shield is not

automatic.” Est. of Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir.

2018). The government official raising this defense thus carries the initial

burden of showing he acted within the scope of his discretionary authority.

Huggins v. Sch. Dist. of Manatee Cnty., 151 F.4th 1268, 1278 (11th Cir. 2025).

Only then does the onus fall on the plaintiff to show “(1) the defendant

violated a constitutional right, and (2) that constitutional right was “clearly

established” at the time of the defendant's actions.” Brooks v. Miller, 78 F.4th

1267, 1280 (11th Cir. 2023).

Defendants completely ignore this first step. They make no mention of

it in their motion. And they thus fail to satisfy their initial burden. Sheets v.

Charlotte Cnty., No. 2:24-CV-958-JES-KCD, 2025 WL 1644084, at *4 (M.D.

Fla. June 10, 2025). Curiously, this would’ve been a breeze given the

complaint’s allegations. See Deppe v. Sovinski, No. 25-10646, 2025 WL

3688109, at *2 (11th Cir. Dec. 19, 2025); Buttrey v. City of Winter Haven, No.

8:25-CV-02161-SDM-SPF, 2026 WL 2128560, at *1 (M.D. Fla. July 24, 2026);

Berry v. Smith, No. 2:25-CV-299-JES-NPM, 2025 WL 2193497 (M.D. Fla.

July 31, 2025) (concluding officer acted within discretionary authority where

plaintiff alleged her to have acted under color of law during challenged

conduct); Purcell v. City of Fort Lauderdale, 753 F. Supp. 3d 1308, 1327 (S.D.

Fla. 2024) (finding the plaintiff conceded the defendants acted within their

discretionary authority where it was alleged “that at all material times, the

Officers were duly authorized agents of the City, acting under color of law”).

Yet Defendants leave this low-hanging fruit unpicked. Accordingly, their

qualified immunity defense cannot be determined at this stage. Sheets, 2025

WL 1644084, at *5.

B.

With that out the way, the Court turns to the claims destined for

dismissal. As explained below, Lott’s false arrest and malicious prosecution

claims fail since his own complaint alleges probable cause. His excessive-force

claim makes the fatal mistake of alleging no actual injury. And his

Fourteenth Amendment claim pleads an unworkable theory. The Court

addresses each claim in turn.

i. The False Arrest and Malicious Prosecution Claims

The Fourth Amendment grants individuals the “right to be free from

unreasonable searches and seizures.” An arrest counts as a seizure. Skop v.

City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007). “The

‘reasonableness’ of a seizure” depends on whether there was probable cause.

Case v. Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009).

“Probable cause exists when” police know “facts and circumstances . . .

sufficient to warrant a reasonable belief that the suspect had committed or

was committing a crime.” United States v. Gonzalez, 969 F.2d 999, 1002 (11th

Cir. 1992). Its existence “is an absolute bar to a Section 1983 claim alleging

false arrest.” Phillips v. Fla. Fish And Wildlife Conservation Comm'n, 325 F.

App'x 864, 865 (11th Cir. 2009). And “[b]y the same token, the existence of

probable cause defeats a § 1983 malicious prosecution claim.” Stefani v. City

of Grovetown, 780 F. App'x 842, 847 (11th Cir. 2019).

Defendants correctly contend that there was probable cause to arrest

Lott for trespassing. Lott’s own complaint indicates that police believed KFC

staff wanted him to leave. It concedes that they asked him to leave. And it

admits that he refused to leave. (Doc. 11 ¶ 46.) That’s enough for a

trespassing arrest. See Watkins v. Broward Sheriff Off., 824 F. App'x 865, 868

(11th Cir. 2020); Rogers v. City of Stuart Police Dep't., No. 20-14044-CV, 2020

WL 5947425 (S.D. Fla. Sept. 4, 2020); W.J. v. State, 18 So. 3d 1259, 1260 (Fla.

Dist. Ct. App. 2009). That charges were later dopped “is of no consequence in

determining the validity of the arrest itself.” Rogers, at *3. So against this

backdrop, Lott’s own allegations defeat his false arrest and malicious

prosecution claims. See Davis v. Distephano, No. 25-11743, 2026 WL 811557,

at *5 (11th Cir. Mar. 24, 2026) (“[B]ecause probable cause supported his

seizure, Davis cannot prove essential elements of his claims for false arrest

[or] malicious prosecution.”); Wilson v. Rubiel, No. 2:26-CV-01836-SPC-NPM,

2026 WL 2052173, at *2 (M.D. Fla. July 16, 2026); Edwards v. Roberts, No.

3:25-CV-1272-WWB-PDB, 2026 WL 785113, at *2 (M.D. Fla. Mar. 20, 2026).

ii. The Excessive Force Claim

“Even when an officer has probable cause for an arrest, the manner in

which a search or seizure is conducted must” still “comply with the Fourth

Amendment.” Richmond v. Badia, 47 F.4th 1172, 1180 (11th Cir. 2022).

While “the right to arrest” unavoidably entails the right to use force, the force

used cannot be excessive. Id. At the same time, “the application of de minimis

force, without more, will not support a claim for excessive force in violation of

the Fourth Amendment.” Saunders v. Duke, 766 F.3d 1262, 1269 (11th Cir.

2014).

According to Defendants, Lott’s allegations fit into this latter category.

The Court agrees. While Lott claims his arrest caused him physical pain and

emotional distress, he alleges no actual injury. “[T]he failure to allege any

injury indicates that the force was not so excessive as” to have violated the

Fourth Amendment. Johnson v. McLaughlin, No. 5:13-CV-366 MTT, 2014

WL 7662517, at *3 (M.D. Ga. Dec. 9, 2014). On the facts pled, Defendants

force looks to have been more de minimis than excessive. See Henderson v.

Philman, No. 4:06-CV-00511-MP-AK, 2008 WL 5263557, at *4 (N.D. Fla. Dec.

17, 2008); see also Murray v. Givens, No. 617CV01195KOBJHE, 2018 WL

3463309, at *3 (N.D. Ala. May 14, 2018) (excessive force claim insufficiently

pled where no injury resulted from warden’s alleged pushing of plaintiff into

microwave). Lott thus fails to plead a plausible excessive-force claim. See

O'Connor v. Carnahan, No. 3:09CV224/WS/EMT, 2012 WL 2201522, at *13

(N.D. Fla. Mar. 27, 2012) (“[A] push or shove that causes pain and

necessitates no or merely minor medical treatment is not a constitutional

violation[.]”).

iii. The Fourteenth Amendment Claim

As best the Court can tell, Lott seems to bring a fabrication-of-evidence

claim under the Fourteenth Amendment. He alleges that Officer McCurdy

and Corporal Coughlin improperly prepared his trespass warning after he

had already been arrested. (Doc. 11 ¶¶ 97, 99.) And he says the use of such

“materially unreliable” evidence to justify his arrest violated his due process

rights. (Id. ¶ 100.)

As Defendants argue, this claim should have been pled under the

Fourth—not Fourteenth—Amendment. See Thornton v. Limestone Cnty. Bd.

of Educ., No. 5:25-CV-00205-HNJ, 2026 WL 353623, at *6 (N.D. Ala. Feb. 9,

2026). (“[P]retrial deprivations of liberty based on fabricated evidence

certainly give rise to a Fourth Amendment claim.”). “[I]n the Eleventh

Circuit, a fabrication-of-evidence claim is really just a species of malicious

prosecution.” Duarte v. Rivera, No. 2:25-CV-408-SPC-DNF, 2026 WL 124304,

at *7 (M.D. Fla. Jan. 16, 2026). “And, under the Fourteenth Amendment,

there is no substantive due process right to be free from malicious

prosecution without probable cause.” Rehberg v. Paulk, 611 F.3d 828, 853

(11th Cir. 2010). Lott’s theory is thus unworkable and this claim is therefore

dismissed. See Franklin v. Bryan, No. 4:24-CV-00186, 2025 WL 2772489, at

*8 (S.D. Ga. Sept. 29, 2025); Lavassani v. City of Canton, Ga., 760 F. Supp. 2d

1346, 1363 (N.D. Ga. 2010).

C.

Now for the remaining claims. Lott’s First Amendment, Monell, and

supervisory-liability claims are all still on the board. And because Defendants

do not meaningfully challenge any of these counts, that is where they’ll stay.

i. The First Amendment Claim

After criticizing the City and its police department, Lott alleges he got

blocked from its public social media account. (Doc. 11 ¶¶ 117-19.) He labels

that platform a limited public forum and claims he experienced both

viewpoint discrimination and retaliatory exclusion. (Id. ¶ 116-20.)

Defendants want this claim dismissed without offering any substantive

argument. They merely parrot the pleading standard for retaliation claims

(while ignoring the viewpoint-discrimination theory altogether) before stating

simply that the claim should be dismissed.

Defendants’ cursory treatment won’t carry the day. “It is not the role of

the Court to make arguments for the parties but to consider and decide the

specific arguments made by the[m].” Monroe Cnty. Employees’ Ret. Sys. v. S.

Co., 333 F. Supp. 3d 1315, 1322 (N.D. Ga. 2018). Accordingly, Lott’s First

Amendment claim survives for the moment. See Perry v. Caleb's Club, LLC,

No. 609CV853ORL35DAB, 2010 WL 11507330, at *3 (M.D. Fla. Feb. 1, 2010);

Fontainebleau Fla. Hotel, LLC v. Botach, No. 1:25-CV-20251-KMM, 2025 WL

3282568, at *4 (S.D. Fla. Sept. 16, 2025); Baker v. Warner/Chappell Music,

Inc., No. 14-22403-CIV, 2017 WL 4310750, at *14 (S.D. Fla. Sept. 28, 2017)

(“Because the Crane Defendants did not raise this specific argument in their

motion to dismiss, the Court retains this count against them.”).

ii. The Monell and Supervisory Liability Claims

Lott’s Monell claim is premised on two theories. He first claims the City

maintained a policy, custom, or practice of constitutional violations. (Doc. 11

¶ 103.) He also alleges that the City failed to train its officers regarding

trespass arrests. (Id. ¶ 104.)

As pled, these theories leave a lot to be desired. See Weiland, 792 F.3d

at 1328-29 (affirming dismissal of failure-to-train count premised on single

incident and no pattern of similar constitutional violations); McDowell v.

Brown, 392 F.3d 1283, 1290 (11th Cir. 2004) (“In order for a plaintiff to

demonstrate a policy or custom, it is “generally necessary to show a

persistent and wide-spread practice.”); Wade v. City of Miami Beach, 565 F.

Supp. 3d 1248, 1262 (S.D. Fla. 2021). Yet Defendants don’t point out precisely

what’s missing. They simply offer background principles on Monell liability

before requesting dismissal. For the same reasons as above, this claim

survives.

Defendants’ challenge to Lott’s supervisory-liability claim fares no

better. After briefly describing the few instances where such liability exists,

they abruptly declare that “no situation is present here.” (Doc. 19 at 21.)

Though flattered Defendants think the Court capable of filling in the blanks,

it’d rather not. See, e.g., Maryam v. Sky Chefs, Inc., No. 1:23-CV-914-SDG-

JKL, 2024 WL 6081942, at *2 (N.D. Ga. Sept. 25, 2024) (“While Defendant

may have winning arguments as to each objection, the Court will not make

Defendant's argument for it.”); Imiracle (Hk) Ltd. v. Shireen Inc., No. 2:22-

CV-807-JLB-NPM, 2023 WL 12204845, at *3 (M.D. Fla. Aug. 7, 2023); E A

Tapping Servs., LLC v. CDM Constructors Inc., No. 6:19-CV-1190-CEM-LRH,

2021 WL 1985338, at *9 (M.D. Fla. Feb. 23, 2021) (“Defendant cites no legal

authority, nor does it explain why this means that Plaintiff's FDUTPA claim

fails. Such an unsupported and cursory argument is insufficient to meet

Defendant's burden, and the Court will not make arguments for it.”).

Accordingly, Lott’s Monell and supervisory-liability claims will remain.

IV. Conclusion

In sum, Lott’s own complaint shows that probable cause existed and

thus defeats his false arrest and malicious prosecution claims. His excessive

force claim is missing key details. And his Fourteenth Amendment claim is

not cognizable. Defendants’ Motion to Dismiss (Doc. 19) is therefore

GRANTED in part and Counts 1 through 4 are DISMISSED without

prejudice to Lott filing an amended complaint within Fourteen (14) days

of this Order. The Motion is otherwise DENIED in part as it relates to the

Counts Five, Six, and Eight.

ORDERED in Fort Myers, Florida on August 25, 2026.

Kyle C. Dudek

United States District Judge

16