Clarke

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

STEPHANIE CLARKE, as

Personal Representative for the

ESTATE OF ELROY CLARKE

Plaintiff,

v. Case No: 2:25-cv-376-SPC-KRH

BILL PRUMMELL, JR., in his

Official Capacity as SHERIFF

OF CHARLOTE COUNTY

FLORIDA, and Chalotte County

Deputies for the Charlotte

County Sheriff’s Office BRAD

STENDER, MITCHELL

PALMER, and ALEXANDER

MAGOON, in their Individual

Capacities;1

Defendants.

OPINION AND ORDER

Before the Court is Defendants’ motion to dismiss. (Doc. 52). Plaintiff

Stephanie Clarke, as Personal Representative for the Estate of Elroy Clarke,

opposes. (Doc. 58). For the below reasons, Defendants’ motion is granted.

1 The Court strikes the reference to “their Official” capacity in the case caption since the

allegations in the Second Amended Complaint are against the deputies in their individual

capacities only (Doc. 49 ¶¶ 29, 117, 137).

BACKGROUND

This case arises out of the death of Elroy Clarke. Since both the Court

and the parties are intimately aware of the facts, the Court will limit the

background to an overview and incorporate the detailed factual background

from the previous order (Doc. 46). See Clarke v. Prummell, No. 2:25-cv-00376-

JES-DNF, 2026 WL 874145, at *3–8 (M.D. Fla. Mar. 31, 2026).2

On October 23, 2024, Clarke called 911 to have Troy Johnson, an

individual who was working on Clarke’s home, removed for “disturbing the

peace.” (Ex. A at 1:40–4:40). Once Deputies Brad Stender and Mitchell Palmer

arrived, Clarke approached them claiming Johnson was unstable and

disturbing the peace. (Ex. B at 0:55-1:00). Deputy Palmer asked Clarke if

either were armed, to which Clarke confirmed they were not—although Clarke

claimed to be “the weapon.” (Ex. B at 1:43–1:51).

Deputies Palmer and Stender then split up to assess the situation, where

Deputy Stender eventually learned of and confirmed a warrant for Clarke’s

2 The undersigned was reassigned to the case after the Honorable John E. Steele passed

away. In drafting this Order, the Court reviewed Judge Steele’s Order (Doc. 46), the Second

Amended Complaint (Doc. 49), the body-worn cameras of Deputies Brad Stender, Mitchell

Palmer, and Alexander Magoon—Exhibits B, C, and D, respectively—and the 911 call—

Exhibit A. (Doc. 22; Doc. 57).

arrest for failure to appear for a trespass.3 (Ex. B at 2:10–21:01). Once Deputy

Stender told Clarke about the warrant, things went awry.

Clarke claimed he was not Elroy Clarke but was Ben Dey. (Ex. B at

20:35–21:01). Unconvinced, Deputy Stender stated he knew who Clarke was

but Clarke, with a raised voice, called Deputy Stender’s proof “bullshit.” (Id.

at 21:01–21:12). After a brief back and forth, Deputy Stender told Clarke he

would be tased if he did not comply, but Clarke refused and said he does not

take orders from anyone. (Id. at 21:12–22:03). Clarke continued to argue with

the deputies about his identity before Deputy Stender fired his first taser

cartridge at Clarke. (Id. at 22:03–24:10). Within a few seconds, Clarke

removed the taser wires from his body, a move he repeated on the second set

of taser wires Deputy Stender fired. (Id. at 24:11–24:19). Appearing unfazed

by the taser, Clarke refused to comply. (Id. at 24:20–24:23).

When the taser failed, Deputy Stender used his pepper spray—

ultimately hitting Clarke’s eyes, which Clarke simply wiped off. (Id. at 24:25–

24:29). Ignoring the continued demands to get on the ground, Clarke turned

his back to Deputy Stender. (Id. at 24:35–24:37). Deputy Stender used that

opportunity to try to tackle Clarke, but failed, as Clarke turned around, pushed

Deputy Stender off him, and yelled “get the fuck off me. Don’t touch me.” (Id.

3 According to Plaintiff, it was apparent that Clarke was also not in the right state of mind

and experiencing a mental health crisis throughout the encounter.

at 24:39–24:41). Clarke then said that if the deputies touched him, they would

“see something they didn’t want to see,” and that they should not touch him

for “their safety and [Clarke’s].” (Id. at 24:45–24:55). The deputies continued

ordering Clarke to get on the ground and to put his hands behind his back for

roughly another four minutes, but Clarke refused. (Id. at 24:55–29:36; Ex. C.

at 26:10–29:36).

About this time, Deputy Alexander Magoon arrived at the scene. (Ex. D

at 8:22; Ex. B at 29:50–29:56). Within a few seconds of getting out of his car,

Deputy Magoon tased Clarke twice while yelling for him to “get on the ground.”

(Ex. B at 29:56–30:00; Ex. D. at 8:28–8:40). Ultimately, the deputies managed

to get Clarke on the ground after Deputy Magoon’s second firing of his taser.

(Ex. D at 8:35–8:40).

While Clarke was on the ground, Deputy Magoon drive-stunned4 Clarke

for over 30 seconds. (Id. at 8:40–9:03; Doc. 49 ¶ 9). Clarke, however, was able

to roll the deputies off him and stand up before Deputy Magoon briefly pushed

Clarke to the ground, though Clarke quickly got up again. (Ex. B at 30:15–

30:30; Ex. D. at 9:03–9:10). Deputy Stender then struck Clarke’s right knee

with his baton, but Clarke remained unfazed before repeating that he was Ben

Dey and calling the deputies incompetent. (Ex. B at 30:36–30:50). Clark

4 A drive stun is a technique where an energy weapon (like a taser) is pressed directly against

a person's body or clothing and discharged without firing dart probes.

refused to get on the ground and Deputy Magoon threatened Clarke with lethal

force. (Ex. D at 9:10–9:13). The deputies continued to demand that Clarke get

on the ground, but Clarke refused and again asked them to leave, since this

was a civil matter. (Id. at 9:13–10:45).

All the deputies said they did not want to hurt Clarke before Deputy

Magoon again told Clarke to “get on the ground.” (Ex. B at 32:00–32:06; Ex. C

at 32:07–32:25; Ex. D at 10:50–11:10). Deputy Stender then grabbed a

beanbag shotgun from a vehicle as Deputies Palmer and Magoon continued

giving orders. (Ex. B at 34:15–34:18; Ex. C at 34:10–34:37). After Deputy

Stender returned with the beanbag shotgun, Clarke offered to get on the

ground if they provided him with water; all deputies responded that Clarke

would get water after he complied with their orders. (Ex. C at 34:39–34:58;

Ex. D at 14:00–14:16).

Once again, Clarke refused to get on the ground. Deputy Stender, with

the beanbag shotgun in hand, told Clarke that he would get shot if he

continued not to comply, but Clarke refused and claimed not to be Elroy. (Ex.

B at 35:50–36:11). Deputy Stender announced “less lethal” three times before

firing the first beanbag round. (Id. at 36:40–36:41). Clarke then yelled that

he did not “know if [he] could contain it,” as the deputies kept telling Clarke to

get on the ground. (Id. at 36:42). Deputy Stender then fired the second

beanbag round. (Id. at 36:45–36:49).

Still standing, Clarke brought his fists in front of him, and Deputy

Stender fired the third beanbag round. (Id. at 36:52–36:53). Clarke then

charged the deputies, and Deputy Magoon fired five or six rounds from his

firearm. (Ex. D at 15:25–15:28). Clarke reached out towards Deputy Magoon,

who stumbled backward and fired another six rounds. (Id. at 15:28–15:29).

Clarke took a few more steps before falling to the ground, and Deputy Stender

fired one round as Clarke attempted to stand up. (Ex. B at 36:57–36:58).

Clarke then lay on the ground. (Id. at 37:10–37:14). Deputy Stender

placed Clarke in handcuffs, and backup arrived less than a minute after the

first shot was fired. (Id. at 37:15–37:40). Deputies rendered aid, but Clarke

ultimately died from his gunshot wounds. (Doc. 49 ¶ 19).

LEGAL 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).

To survive a motion to dismiss, a complaint needs sufficient factual

allegations, accepted as true, to show the claim is plausible on its face.

Caterpillar Fin. Servs. Corp. v. Venequip Mach. Sales Corp., 147 F.4th 1341,

1346 (11th Cir. 2025). To be facially plausible, the plaintiff must plead facts

that permit a reasonable inference that the defendant is liable for the

misconduct alleged. Id. at 1347. Courts draw on their judicial experience and

common sense to determine whether a complaint states a plausible claim. Id.

The Court conducts a two-step process for a motion to dismiss. First, it

determines what must be pled for each cause of action. Id. Next, the Court

considers whether the well-pleaded factual allegations plausibly suggest an

entitlement to relief. Id.

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). When

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). The incorporation-by-reference doctrine also permits a

court to consider body camera footage. See Baker, 67 F.4th at 1277. “[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.

DISCUSSION

Plaintiff filed a five-count Second Amended Complaint (Doc. 49) alleging:

(1) Excessive Force in Violation of the Fourth Amendment against Deputy

Stender and Deputy Magoon; (2) Failure to Intervene in Violation of the Fourth

Amendment against Deputy Palmer; (3) Equal Protection Violation against

Deputies Stender, Magoon, and Palmer; (4) Monell Claim for Unconstitutional

Policies, Customs, Training, Supervision, and Use of Excessive Force against

Sheriff Bill Prummell in his official capacity; and (5) Wrongful Death against

Sheriff Prummell in his official capacity.

The Second Amended Complaint explicitly cites the deputies’ body-worn

camera footage but does not cite the 911 call. (Doc. 49). The 911 call (Doc. 57)

was refiled with the Court, where the Defendants provided the entire recording

rather than an edited portion (Doc. 54). Given Plaintiff does not challenge the

authenticity of either, the Court is satisfied that it can consider the body-

camera footage and 911 call in ruling on Defendants’ motion to dismiss.

Defendants seek to dismiss all claims for various reasons. The Court

begins with the three claims against the individual defendants, then addresses

the two claims against Sheriff Prummell in his official capacity.

A. Count I

Count I challenges the manner of Clarke’s arrest. In the Second

Amended Complaint, Plaintiff alleges that Deputy Stender’s use of his taser,

bean bag shotgun, and pistol as well as Deputy Magoon’s use of his taser,

threats of lethal force, and pistol, all constitute excessive force. (Doc. 49 ¶¶

31–115). Plaintiff appears to have abandoned any allegations that Deputy

Stender’s use of pepper spray, use of his baton, and attempted tackle were

excessive force, so those will not be analyzed below. Both deputies argue they

are entitled to qualified immunity because the facts alleged do not constitute

excessive force, and, even if the force was excessive, Clarke’s constitutional

right was not clearly established at that time. (Doc. 52 at 11–20). The Court

agrees with the deputies and finds they are entitled to qualified immunity.

To avoid repetitive analysis, the Court is persuaded by and adopts Judge

Steele’s previous finding that Deputies Stender and Magoon acted within the

scope of their discretionary duty throughout the encounter. See Clarke, 2026

WL 874145, at *9–10. Therefore, the only remaining question is whether the

deputies’ force was excessive and whether Clarke’s right was clearly

established at the time of the incident.

1. Excessive Force

An excessive force claim arising out of an arrest is governed by the

Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989); Settle v.

Collier, 160 F.4th 1282, 1288 (11th Cir. 2025) (citation omitted). The

touchstone of the Fourth Amendment is reasonableness, measured in objective

terms. See Barnes v. Felix, 605 U.S. 73, 79 (2025) (citing Brigham City v.

Stuart, 547 U.S. 398, 403 (2006)). The ultimate question is “whether the force

deployed was justified from ‘the perspective of a reasonable officer on the

scene,’” considering the individual and governmental interests at stake. Id.

(citations omitted).

The reasonableness inquiry analyzes the “totality of the

circumstances[,]” paying “careful attention to the facts and circumstances

relating to the incident, as then known to the officer.” Id. at 80; see also

Graham, 490 U.S. at 395–97 (“An officer’s evil intentions will not make a

Fourth Amendment violation out of an objectively reasonable use of force; nor

will an officer’s good intentions make an objectively unreasonable use of force

constitutional.”); Jones v. Ceinski, 136 F.4th 1057, 1062 (11th Cir. 2025)

(quoting Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d 1347, 1354 (11th

Cir. 2015)) (“We do not consider whether an officer acted in good faith or

sadistically and maliciously.”). The courts, however, must be careful not to

analyze with 20/20 hindsight vision because deputies are often required to

make split-second judgments in tense, uncertain, and rapidly evolving

circumstances. See Plumhoff v. Rickard, 572 U.S. 765, 775 (2014).

The Court uses a two-step process to determine whether Deputies

Stender and Magoon’s use of force was excessive. Charles v. Johnson, 18 F.4th

686, 699 (11th Cir. 2021). First, the Court determines “whether the specific

kind of force is categorically unconstitutional,” and if not, the Court weighs the

Graham factors to determine whether the amount of force used was excessive.

Johnson, 107 F.4th at 1302 (citations omitted). The following non-exhaustive

factors are relevant to the Court’s analyses: (1) the severity of the crime at

issue; (2) whether the suspect poses an immediate threat to the safety of the

officers or others; (3) whether the suspect is actively resisting arrest or

attempting to flee; (4) the need for the application of force; (5) the relationship

between the need and the amount of force used; (6) the extent of the injury

inflicted; (7) an officer’s language during the event;5 (8) any effort made by the

officer to temper or limit the amount of force; (9) the severity of the security

problem at issue; (10) the threat reasonably perceived by the officer; and (11)

whether the officer gave warnings and tried to control the situation.6 See

5 But “words alone [cannot] make . . . an otherwise proper[ ]” use of force “unconstitutional

under the Fourth Amendment.” Jones v. Ceinski, 136 F.4th 1057, 1062 (11th Cir. 2025)

(citation omitted).

6 The Court refers to these factors generically as the Graham factors, though many are from

cases after Graham.

Graham, 490 U.S. at 396; Jones, 136 F.4th at 1062; Jones v. Fransen, 857 F.3d

843, 852 (11th Cir. 2017).

Given the significant overlap in facts, the Court adopts Judge Steele’s

finding on the first step of the analysis and limits its analysis for the second

step to the new factual allegations in Count I. See Clarke, 2026 WL 874145, at

* 14–19.

Only three specific instances require detailed discussion within the new

factual allegations. First, the Court finds that Deputy Magoon’s use of his

taser against Clarke was not unreasonable under the totality of the

circumstances because Clarke both passively—by refusing to comply with the

deputies’ orders—and actively—by ripping previous taser wires out and

pushing Deputy Stender—resisted arrest. See Hoyt v. Cooks, 672 F.3d 972,

979–80 (11th Cir. 2012) (holding that officers were entitled to qualified

immunity when the suspect refused to comply with officers and resisted arrest

while being drive-stunned).

Second, Clarke’s contingent offer to get on the ground did not render any

force used excessive because by the time Clarke offered to do so, the deputies

had spent approximately 14 minutes attempting to arrest Clarke and had

given at least 30 commands to no avail. In light of Clarke’s insistent refusal

to comply, the Court finds that a reasonable officer at the scene could have

concluded that Clarke did not intend to surrender. See Crenshaw v. Lister, 556

F.3d 1283, 1293 (11th Cir. 2009) (stating an officer could question the sincerity

of the suspect’s attempt to surrender when the suspect had shown no intention

of surrendering throughout the encounter).

Finally, the Court finds that Plaintiff’s allegation that Deputy Stender

fired a single shot after Clarke was incapacitated on the ground is inconsistent

with the body-camera footage. Baker, 67 F.4th at 1277–78 (stating the Court

must accept the depiction of the footage where it clearly contradicts the factual

allegations). Instead, the body-camera footage shows Clarke attempting to

stand back up and follow through on his actions as Deputy Stender fired one

round. (Ex. B at 36:57–36:58). The law does not require the deputies to wait

and hope for the best in tense and dangerous situations, as here. See Jean-

Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). Rather, it allows law

enforcement to make snap judgment decisions on whether a reasonable officer

could conclude there was probable cause that the suspect posed a threat of

serious harm to the officers, which existed here. The deputies were unable to

incapacitate Clarke even after they used six types of non-lethal force over the

course of 16 minutes and provided over 60 commands that Clarke refused to

comply with. Paired with Clarke’s charge towards the deputies with his fists

up at chest level, Clarke reaching out towards Deputy Magoon after five or six

rounds were fired, and Clarke’s attempt to stand back up after approximately

14 rounds were fired, it is clear Deputy Stender’s use of force was not excessive.

Cf. Perez v. Suszcynski, 809 F.3d 1213, 1219 (11th Cir. 2016) (holding the

shooting of a subdued and compliant individual was excessive).

Ultimately, the calculus remains unchanged. The Mental Health Unit’s

availability, Charlotte County Sheriff’s Office Use of Force Policy (among other

statutory citations by Plaintiff), and Clarke’s late offer to get on the ground are

not enough to plausibly suggest any force used was excessive. The

circumstances remain that Clarke passively and actively resisted arrest,7 acted

belligerently, and continued to move towards Deputy Magoon even after five

or six rounds were fired. Therefore, neither Deputies Stender’s nor Magoon’s

use of force was excessive under the circumstances.

2. Clearly Established Right

Even assuming Deputies Stender and Magoon violated Clarke’s

constitutional rights, Plaintiff must also show the constitutional right was

clearly established. A right is clearly established when “controlling law gave

the official ‘fair warning’ that his conduct violated that right.” See Jones, 136

F.4th at 1065. Plaintiff may do this by identifying “materially similar case[s],

appealing to a broader, clearly established principle that should control the

novel facts at hand, or establishing that the challenged conduct so obviously

violates the Constitution that prior case law is unnecessary to clarify its

7 Plaintiff disputes that Clarke pushed Deputy Stender off him, however, the body-worn

camera footage is unambiguous. (Ex. C. at 24:19–24:30).

lawlessness.” Id. (internal quotation marks omitted); see also Priester v. City

of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000). Here, Plaintiff relies on

all three methods.

(a) Materially Similar Cases

Plaintiff argues that five Eleventh Circuit cases provided Deputies

Stender and Magoon with fair warning that their conduct violated Clarke’s

constitutional rights. (Doc. 58 at 8–11). Deputies Stender and Magoon,

however, contend that none of the cases are materially similar to the instant

facts. (Doc. 61 at 3–7). The Court agrees and addresses each case in turn.

First, Plaintiff relies on Helm v. Rainbow City, 989 F.3d 1265 (11th Cir.

2021), for the proposition that Magoon’s prolonged drive-stuns of Clarke

violated a clearly established right. Helm, however, is materially

distinguishable. First, Helm involved a teenage female who was suffering from

grand mal seizures and was “fully secured” and “completely restrained.” Id. at

1274. Here, Clarke was a 40-year-old large man who was neither fully secured

nor completely restrained. Second, the teenage female in Helm did not resist

or disobey the officer, act belligerently, or yell at the officers, nor was she

suspected of a crime —unlike Clarke. Id. at 1274–75. So Helm is not a

materially similar case.

Second, Plaintiff cites Fils v. City of Aventura, 647 F.3d 1272 (11th Cir.

2011), to support the proposition that the deputies’ use of a taser on a suspect

who posed no immediate threat and offered only passive resistance constitutes

excessive force. Again, Fils is materially distinguishable. The plaintiff in Fils

was tased without warning after putting his hands up simply because he made

a comment in a private conversation that the officer did not appreciate. Id. at

1288–89. Further, the plaintiff in Fils did not disobey any orders of the officer,

did not resist arrest, nor did he attempt to free himself from the officer’s control

once he was on the ground. Id. at 1289. The facts are significantly different

in this lawsuit. Thus, Fils is not a materially similar case.

Third, Plaintiff cites Perez, 809 F.3d 1213, for the proposition that

shooting an unarmed suspect violates clearly established Fourth Amendment

law. Yet again, Perez is materially distinguishable. In Perez, the plaintiff had

not committed any crime and remained compliant after being restrained on the

ground with his hands behind his back. Id. at 1217. After an officer removed

the plaintiff’s gun and threw it about ten feet away, an officer shot the plaintiff

twice in the back where one witness described it as “execution-style.” Id. The

facts of Perez are a far cry from this case, as Clarke was suspected of a crime—

even if just a minor offense—refused to comply with officers' commands,

actively resisted arrest, yelled at officers, and was not subdued. As such, Perez

is not a materially similar case.

Finally, Plaintiff cites Teel v. Lozada, 826 F. App’x 880 (11th Cir. 2020),

and Clawson v. Rigney, 777 F. App’x 381 (11th Cir. 2019), in support of denying

qualified immunity. These cases, however, are not “controlling law” because

they are not published opinions. See Bonilla v. Baker Concrete Const., Inc., 487

F.3d 1340, 1345 n.7 (11th Cir. 2007) (“Unpublished opinions are not controlling

authority and are persuasive only insofar as their legal analysis warrants.”).

Unpublished opinions are indeed persuasive but cannot support a denial of

qualified immunity since they lack any precedential value. J.W. ex rel. Tammy

Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1260 n.1 (11th Cir. 2018)

(citations omitted).

Without any materially similar cases, the Court next considers whether

a broad, clearly established principle existed at the time of the incident.

(b) Broad, Clearly Established Principle

Next, Plaintiff argues that even without materially similar cases, “a

broader principle controls: officers must de-escalate and adjust force downward

when confronting a mentally unstable, unarmed, non-violent individual

suspected of only a minor offense, particularly where safer alternatives

(backup, communication, Mental Health Unit) are available.” (Doc. 58 at 11).

Under this standard, “the principle must be established with obvious clarity

by the case law so that it would have been apparent to every reasonable officer

that his conduct was unlawful.” See Jones, 136 F.4th at 1066 (quoting Terrell

v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012)). The cases cited by Plaintiff do

not provide such a broad, clearly established principle.

As an initial matter, Plaintiff cites Guptill v. City of Chattanooga, 160

F.4th 768, 779 (6th Cir. 2025), and Teel, 826 F. App’x 880, in support of her

argument that a broad clearly established principle exists. (Doc. 58 at 11). But

these cases are not controlling law in the Eleventh Circuit. See Birmingham

Bd. of Educ., 904 F.3d at 1260 n.1. Accordingly, neither case gave the deputies

fair warning of a broad, clearly established principle.

Next, neither Barnes v. Felix, 605 U.S. 73, nor Graham v. Connor, 490

U.S. 386, fares any better. In Barnes, the U.S. Supreme Court rejected the

Fifth Circuit’s “moment of threat” inquiry in light of its prior rulings applying

the “totality of circumstances.” Id. at 80. Nowhere in Barnes is there any

suggestion that a police officer is required to de-escalate and adjust force

downward when confronting a mentally unstable, unarmed, non-violent

individual. Similarly, Graham simply dealt with tethering excessive force

claims to a reasonableness analysis rather than dealing with any mentally

unstable individual. Id. at 395–96. As such, neither provided fair notice to the

officers of the principle offered by Plaintiff.

Next, though United States v. Brown, 934 F.3d 1278 (11th Cir. 2019),

discusses looking to use of force policies, this is still not enough to put the

deputies on notice of the alleged wrongfulness of their actions. As the Eleventh

Circuit noted, simply because an officer violates a police department’s policies

on the use of force, it “would not by itself establish that his actions amounted

to excessive force.” Id. Further, no broad, general policy from this case relates

to de-escalating force against a mentally unstable individual.

The most relevant case Plaintiff cited is Mercado v. City of Orlando, 407

F.3d 1152 (11th Cir. 2005). Mercado, however, largely stands for the broad,

clearly established principle that using deadly force in a situation requiring

less-than-lethal force, is inappropriate, a principle that is inapplicable here.

Id. at 1160. Clarke was moving towards the deputies and reached out towards

Deputy Magoon even after enduring six types of non-lethal uses of force and

after he had five or six rounds fired at him. A reasonable officer could

reasonably believe Clarke posed some risk to the lives of the deputies.

As a result, Plaintiff has failed to establish a broad, clearly established

principle that gave the deputies fair warning their actions were

unconstitutional.

(c) Obvious Clarity

Plaintiff lastly argues that “the deputies’ conduct was so obviously

unconstitutional that prior case law was unnecessary.” (Doc. 58 at 12). Under

the narrow “obvious clarity” exception, courts look “to the officer’s conduct and

inquires whether that conduct lies so obviously at the very core of what the

Fourth Amendment prohibits that the unlawfulness of the conduct was readily

apparent to [the officer], notwithstanding the lack of fact-specific case law.”

Helm, 989 F.3d at 1276 (alteration in original) (internal quotation marks

omitted) (quoting Fils, 647 F.3d at 1291).

This case, however, does not fall under the obvious clarity exception. The

deputies gradually increased the use of force because Clarke was not subdued,

was actively resisting arrest, and had disobeyed at least 60 commands. None

of the force used by Deputies Stender and Magoon, though it resulted in

Clarke’s death, was so patently excessive that “no reasonable officer could have

believed that [his] actions were legal.” Lee v. Ferraro, 284 F.3d 1188, 1199

(11th Cir. 2002).

Since Plaintiff failed to show that Deputies Stender and Magoon violated

a clearly established right at the time of the alleged violation, they are entitled

to qualified immunity. Accordingly, Count I is dismissed with prejudice.

B. Count II

In Count II (Doc. 49 ¶¶ 116–33), Plaintiff alleges Deputy Palmer violated

the Fourth Amendment by failing to intervene in Deputy Magoon’s excessive

use of force. The Court need not detail the allegations as without any

underlying excessive force claim, there is no requirement to intervene.

“The principle that an officer must intervene when he or she witnesses

unconstitutional force has been clearly established in this Circuit for decades.”

Helm, 989 F.3d at 1272. “[A]n officer who is present at the scene and fails to

take reasonable steps to protect the victim of another officer’s use of excessive

force[] can be held liable for his nonfeasance.” Nute v. White, 152 F.4th 1311,

1319 (11th Cir. 2025) (quoting Velazquez v. City of Hialeah, 484 F.3d 1340.

1341 (11th Cir. 2007)).

Since neither Deputy Magoon’s nor Deputy Stender’s use of force was

excessive force, Deputy Palmer had no obligation to intervene. See Williams

v. Radford, 64 F.4th 1185, 1199 (11th Cir. 2023) (“Of course, a failure-to-

intervene claim requires an underlying constitutional violation.”); Sebastian v.

Ortiz, 918 F.3d 1301, 1312 (11th Cir. 2019) (“Plainly, an officer cannot be liable

for failing to stop or intervene when there was no constitutional violation being

committed.”); Crenshaw, 556 F.3d at 1294 (finding no obligation to intervene if

the other officer’s force is not excessive). As a result, the Court dismisses Count

II with prejudice.

C. Count III

Plaintiff alleges Deputies Stender, Magoon, and Palmer violated

Clarke’s Fourteenth Amendment Equal Protection right to be free from

discriminatory intent when he was “treated differently than other similarly

situated white individuals[.]” (Doc. 49 ¶¶ 138–43). More specifically, Deputies

Stender, Magoon, and Palmer were motivated by Clarke’s race, political

beliefs,8 and mental health condition to escalate the use of force against Clarke,

which ultimately resulted in Clarke’s death. (Id. ¶¶ 140, 142). Defendants,

however, argue that Plaintiff has again failed to allege a similarly situated

individual who was treated differently. (Doc. 52 at 21–22). The Court agrees

with Defendants.

The Equal Protection Clause of the Fourteenth Amendment provides

that no state shall “deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1, cl. 4. This is “essentially

a direction that all persons similarly situated should be treated alike,” and

“simply keeps governmental decisionmakers from treating differently persons

who are in all relevant respects alike.” Adams ex rel. Kasper v. Sch. Bd. of St.

Johns Cnty., 57 F.4th 791, 800–01 (11th Cir. 2022) (citations omitted). In

short, “[t]he Equal Protection Clause requires that the government treat

similarly situated persons in a similar manner.” Gary v. City of Warner

Robins, 311 F.3d 1334, 1337 (11th Cir. 2002). To prevail on an equal protection

claim, a plaintiff must show that they were treated differently from other

similarly situated individuals. “[D]ifferent treatment of dissimilarly situated

persons does not violate the equal protection clause.” E&T Realty v.

Strickland, 830 F.2d 1107, 1109 (11th Cir. 1987).

8 Clarke is a sovereign citizen. A sovereign citizen is an individual who believes they are not

subject to government authority. See Gravatt v. United States, 100 Fed. Cl. 279, 282 (2011).

As the Court noted, conclusory statements are insufficient to show a

similarly situated individual was treated differently than Clarke, and this

remains the case. See Clarke, 2026 WL 874145, at *22; see also McCants v.

City of Mobile, 752 F. App’x 744, 749 (11th Cir. 2018) (dismissing an equal

protection claim against a police officer where plaintiff failed to allege that a

white driver was not asked for their license and insurance or any other

similarly situated individual). Plaintiff only alleges that “Clarke was treated

differently than other similarly situated white civilians because of his race and

political beliefs.” (Doc. 49 ¶¶ 111, 139). Without anything more, Plaintiff has

failed to plausibly state an equal protection claim, and the Court dismisses

Count III with prejudice.

D. Count IV

Sheriff Prummell argues that the Second Amended Complaint fails to

state a claim under Monell because: (1) there was no underlying constitutional

violation; (2) Plaintiff failed to allege sufficient facts to establish a practice of

repeated constitutional violations to impose liability; and (3) the Second

Amended Complaint only offers Clarke’s own experience. (Doc. 52 at 22–24).

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)).

Here, as discussed above, none of the deputies inflicted any

constitutional harm. Accordingly, Sheriff Prummell, in his official capacity as

Sheriff, cannot be held liable under Monell. “Monell and its progeny do not

‘authorize[] the award of damages against a municipal [entity] based on the

actions of one of its officers when in fact . . . the officer inflicted no

constitutional harm.’” See Andre v. Clayton Cnty., 148 F.4th 1282, 1298 (11th

Cir. 2025). Accordingly, the Court dismisses Count IV with prejudice.

E. Count V

Finally, Sheriff Prummell argues Count V must be dismissed because

Deputies Stender and Magoon’s use of force was objectively reasonable,

Deputies Stender and Magoon acted within the course and scope of their

employment, and because there is no general duty to train or supervise

deputies in any particular way. (Doc. 52 at 24–25).

Florida’s Wrongful Death Act allows for recovery when the death of a

person is caused by negligence or a “wrongful act,” which includes the use of

excessive force by a police officer. Fla. Stat. § 768.19 (2026). Plaintiff alleges

three wrongful acts: (1) battery; (2) negligent hiring; and (3) failure to train.

(Doc. 49 ¶¶ 169–91). Each wrongful act, however, requires an underlying

tortious action by the deputies. See City of Miami v. Sanders, 672 So. 2d 46,

48 (Fla. Dist. Ct. App. 1996) (analyzing a police officer’s use of force under the

reasonableness standard in determining whether the officer committed

battery); Tallahassee Furniture Co., Inc. v. Harrison, 583 So. 2d 744, 750 (Fla.

Dist. Ct. App. 1991) (requiring an employee to commit a willful tort before

liability can attach for negligent hiring); cf. Acts Ret. Life Cmtys. Inc. v. Est. of

Zimmer, 206 So. 3d 112, 115 (Fla. Dist. Ct. App. 2016) (stating that the

underlying action of an employee must itself be a tort for liability to attach in

failure to train); Winters v. Ranum, 730 F. App’x 826, 830–31 (11th Cir. 2018)

(stating that where an officer used reasonable force in an arrest there is no

negligent training claim).

Since neither Deputy Stender nor Deputy Magoon committed any

underlying wrongful act—as detailed in the above counts—all of Plaintiff’s

theories fail to state a claim. Accordingly, the Court dismisses Count V with

prejudice.

Accordingly, it is now

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 52) is GRANTED.

2. The Second Amended Complaint is DISMISSED with prejudice.

3. The Clerk is DIRECTED to enter judgment in Defendants’ favor,

deny all pending motions as moot, terminate all deadlines, and close

the case.

DONE AND ORDERED in Fort Myers, Florida, on September 4, 2026.

UNITED STATES DISTRICT JUDGE

Copies: Parties of record