LUCIA

v.

GUALTIERI

This matter is before the Court on “Defendant’s, Bob Gualtieri in his Official Capacity as Sheriff of Pinellas County Florida, Motion to Stay and/or Motion to Dismiss Plaintiff’s Complaint and Incorporated Memorandum of Law,” filed on November 12, 2020. (Doc. 7). Plaintiff has not filed a response. Upon review of the motion, court file, and record, the Court finds as follows: Background¹ Plaintiff Dominik Lucia alleges that during the course of executing an arrest warrant on him, officers employed by the Pinellas County Sheriff’s Office, without identifying themselves, grabbed him from behind and attempted to force him to the

Motion to Stay Section 768.28, F.S., provides that for suits against a state agency, the submission of a claim to the agency and the agency’s denial of the claim are conditions precedent to filing suit, unless six months have elapsed since the submission with no action on the claim by the agency. See § 768.28(6)(a), (d), F.S. Plaintiff’s complaint alleges that Plaintiff timely submitted a notice of claim and that Defendant rejected the claim. Defendant’s motion argues that Plaintiff provided the notice of claim on June 18, 2020, that the Sheriff’s Office did not, in fact, deny the claim, and that Plaintiff’s lawsuit is therefore premature. Plaintiff filed suit on October 5, 2020, which is less than six months from the date Defendant asserts he provided the notice of claim. Therefore, it does appear the suit was filed prematurely. Defendant, however, is not entitled to a stay. At the time Defendant filed his motion on November 12, 2020, six months had not yet elapsed from the notice of claim. More than six months have passed at this point, however, and nothing in the record indicates that Defendant has taken action on Plaintiff’s claim. The motion to stay is therefore due to be denied as moot. See

Hattaway v. McMillian, 903 F. 2d 1440, 1445-47 (11th Cir. 1990) (holding that arguments based on filing suit before the expiration of the six-month statutory period are rendered moot once that time period has elapsed); Lundgren v. McDaniel, 814 F. 2d 600, 606 (11th. Cir. 1987) (district court acted within its discretion in allowing amended complaint, rather than dismissing, when six months had elapsed following the plaintiff’s submission of statutory notice of claim). In the event

Plaintiff files an amended complaint, Plaintiff should plead facts regarding the status of the statutory notice of claim. Motion to Dismiss Shotgun Pleading Defendant argues that the complaint should be dismissed as a shotgun pleading. A shotgun pleading is one where “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief” and the defendant therefore cannot be “expected to frame a responsive pleading.” See Anderson v. Dist. Bd. Of Trustees of Cent. Fla. Cmty. College, 77 F. 3d 364, 366 (11th Cir. 1996). The Eleventh Circuit has identified four primary types of shotgun pleadings: (1) Complaints containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint; (2) Complaints that do not commit the mortal sin of re-alleging all preceding counts but are guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;

(3) Complaints that commit the sin of not separating into a different count each cause of action or claim for relief; and

(4) Complaints that assert multiple claims against multiple defendants without specifying which of the defendants are responsible for which actions or omissions, or which of the defendants the claim is brought against.

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F. 3d 1313, 1322-23 (11th Cir. 2015). A district court must generally permit a plaintiff at least one opportunity to amend a shotgun complaint’s deficiencies before dismissing the complaint with prejudice. Vibe Micro, Inc. v. Shabanets, 878 F. 3d 1291, 1295 (11th Cir. 2018). The complaint incorporates into Count II every preceding allegation, including those of Count I. The complaint therefore constitutes a shotgun pleading and is due to be dismissed without prejudice. Fourteenth Amendment Defendant next argues that Count I fails to state a claim under the Fourteenth Amendment. A claim under the Fourteenth Amendment for the use of excessive force will not lie unless the plaintiff was a pretrial detainee. Nicholes v. Jano, No. 8:18-cv-774-T-60AEP, 2020 WL 2615529, at *4 (M.D. Fla. May 22, 2020); C.P. by and Through Perez v. Collier Cty., 145 F. Supp. 3d 1085, 1091-92 (M.D. Fla. 2015). Here, Plaintiff alleges the use of excessive force during the course of his arrest. Because Plaintiff was not a pretrial detainee when the arrest occurred, Count I fails to state a claim that Plaintiff’s Fourteenth Amendment rights were violated and is due to be dismissed. The Court declines to address the other arguments raised in Defendant’s motion at this time, but Defendant may raise them, if appropriate, if Plaintiff files an amended complaint. The complaint will be dismissed without prejudice with leave to amend. Accordingly, it is ORDERED, ADJUDGED, and DECREED: 1. “Defendant’s, Bob Gualtieri in his Official Capacity as Sheriff of Pinellas

County Florida, Motion to Stay and/or Motion to Dismiss Plaintiff’s Complaint and Incorporated Memorandum of Law” (Doc. 7), is GRANTED IN PART and DENIED IN PART. 2. To the extent the motion seeks a stay of this action it is DENIED AS

MOOT.

3. To the extent the motion seeks dismissal of the complaint, it is

GRANTED.

4. The complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff may file an amended complaint on or before February 24, 2021. Failure to file an amended complaint by the deadline will result in this Order becoming a final judgment. See Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F. 3d 707, 719-20 (11th Cir. 2020). DONE and ORDERED in Chambers in Tampa, Florida, this 3°¢ of February, 2021.

| [ee

TOM BARBER

UNITED STATES DISTRICT JUDGE