subjecting municipalities and local government units to suit under § 1983 where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers”
How later courts described this case
- subjecting municipalities and local government units to suit under § 1983 where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers”
- “[I]ssues not briefed on appeal by a pro se litigant are deemed abandoned.”
- laying out the elements of defamation under Florida law
- stating that, to hold a non-arresting officer liable for providing false information in a warrant affidavit, a plaintiff must show (1) there was “an intentional or reckless misstatement or omission”; and (2
Written by the judges who cited it.
The opinion
Case: 18-13594 Date Filed: 08/21/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13594
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cv-00087-MW-GRJ
KENNETH FERNANDEZ JOHNSON, JR.,
Plaintiff-Appellant,
versus
SADIE DARNELL,
Sheriff,
DANIEL ORLANDO CRUZ,
Deputy Sheriff,
VICTOR PINO-DIAZ,
Deputy Sheriff,
ALACHUA COUNTY,
Government Entity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 21, 2019)
Case: 18-13594 Date Filed: 08/21/2019 Page: 2 of 6
Before MARTIN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM:
Kenneth Fernandez Johnson, Jr., appeals the district court’s dismissal of his
pro se second amended complaint alleging constitutional violations against
Alachua County Sheriff’s Deputies Daniel Orlando Cruz and Victor Pino-Diaz, in
their individual and official capacities, and Alachua County Sheriff Sadie Darnell,
in her official capacity, under 42 U.S.C. § 1983. In addition to concluding that
Johnson’s second amended complaint failed to state a claim on which relief could
be granted, the district court concluded Deputies Cruz and Pino-Diaz were entitled
to qualified immunity as to the claims brought against them in their individual
capacities.
On appeal, Johnson argues that the district court erred in dismissing his
complaint because his allegations were sufficient to state a claim for false arrest,
false imprisonment, due process violations, fabrication of evidence, failure to
intervene, malicious prosecution, and defamation, as well as a Monell 1 claim
against Darnell. After review, 2 we affirm.
1
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (subjecting municipalities and
local government units to suit under § 1983 where “the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers”).
2
We review de novo a district court’s ruling on a Rule 12(b)(6) motion to dismiss,
accepting all factual allegations as true and viewing the facts in the light most favorable to the
plaintiff. Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
2
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I. BACKGROUND
Johnson’s claims all ultimately stem from his arrest for fleeing or attempting
to elude law enforcement. Briefly, the second amended complaint—along with
various public court filings of which the district court took judicial notice—
establish that Deputy Cruz was on foot patrol when he observed a white Toyota
Camry fail to come to a complete stop. He conducted a traffic stop, during which
the driver, while ostensibly removing his license from his wallet, drove the vehicle
away from Deputy Cruz before abandoning it. Upon searching the vehicle,
officers discovered a Florida Driver’s License with Johnson’s name on it. Two
officers also identified Johnson, from his license picture, as the driver, based on
their contact with him during the traffic stop.
Johnson eventually was charged, via an Information, with fleeing or
attempting to elude, and an arrest warrant was issued for his arrest. Subsequent to
Johnson’s arrest, the State of Florida entered a nolle prosequi after determining
that Johnson did not commit the charges as alleged, presumably because they
determined he had not been the driver of the vehicle.
II. DISCUSSION
As an initial matter, Johnson has waived and abandoned any challenge to the
district court’s ruling that Deputies Cruz and Pino-Diaz were entitled to qualified
immunity, as he failed to make any argument regarding this point in either his
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objections to the magistrate judge’s report and recommendation (R&R), or his
brief on appeal. See 11th Cir. R. 3-1 (“A party failing to object to a magistrate
judge’s findings or recommendations contained in a[n] [R&R] . . . waives the right
to challenge on appeal the district court’s order based on unobjected-to factual and
legal conclusions. . . .”); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(“[I]ssues not briefed on appeal by a pro se litigant are deemed abandoned.”).
Because the district court’s ruling as to qualified immunity is sufficient to support
the dismissal of the claims brought against Deputies Cruz and Pino-Diaz in their
individual capacities, we need not address these claims further.
As to the claim against Deputies Cruz and Pino-Diaz in their official
capacities, we agree with the district court that Johnson’s second amended
complaint failed to state a claim as to any of the causes of action he identified.
With the exception of his claims for malicious prosecution and defamation, all of
Johnson’s claims against Cruz and Pino-Diaz challenge his arrest for fleeing or
attempting to elude law enforcement. Johnson essentially challenged the
legitimacy of the warrant issued for his arrest, alleging Cruz and Pino-Diaz falsely
identified him, fabricated evidence and statements, and did not conduct a full
investigation. He did not, however, specifically allege what evidence was
fabricated. These vague and conclusory allegations are insufficient to plausibly
raise a constitutional challenge to his arrest. See Bell Atl. Corp. v. Twombly, 550
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U.S. 544, 555 (2007) (noting that, while a complaint does not need detailed factual
allegations, one that merely provides “a formulaic recitation of the elements of a
cause of action” is inadequate); Paez v. Mulvey, 915 F.3d 1276, 1286 (11th Cir.
2019) (stating that, to hold a non-arresting officer liable for providing false
information in a warrant affidavit, a plaintiff must show (1) there was “an
intentional or reckless misstatement or omission”; and (2) “probable cause would
be negated if the offending statement was removed or the omitted information
included”).
As to Johnson’s claim for malicious prosecution, he failed to allege facts that
would plausibly suggest Cruz or Pino-Diaz were the legal cause of the proceeding
against him. Specifically, as noted above, he failed to allege any facts concerning
the substance of the evidence or statements Cruz or Pino-Diaz fabricated. See
Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004) (stating that, to
establish a federal malicious-prosecution claim, a plaintiff must prove, among
other things, the elements of the common-law tort of malicious prosecution, which
include showing the defendant was the legal cause of the original proceeding).
As to Johnson’s claim for defamation, he alleged only that Cruz and Pino-
Diaz’s unspecified fabrications in the warrant application resulted in his name and
picture being posted on Alachua County’s Most Wanted list. But a valid claim for
defamation under Florida law would need to allege that the defendants themselves
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were responsible for publishing the defamatory material—here the Most Wanted
list—not that something they did indirectly led to the publication of that material.
See Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (laying out the elements
of defamation under Florida law).
Finally, Johnson similarly failed to state a plausible Monell claim. To state a
Monell claim, 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.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
Because, as discussed above, Johnson has not plausibly alleged that Cruz or Pino-
Diaz violated his constitutional rights, he necessarily cannot establish the first
element of a Monell claim. Moreover, his allegations that Cruz and Pino-Diaz
acted according to a policy or custom of deliberate indifference to constitutional
rights are too conclusory to plausibly state a claim. See Twombly, 550 U.S. at 555.
III. CONCLUSION
For the reasons discussed above, we affirm the district court’s dismissal of
Johnson’s second amended complaint for failure to state a claim.
AFFIRMED.
6