PEREZ

v.

ANDERSON

I. Status

Plaintiff David Perez, an inmate of the Florida penal system, initiated this action on July 25, 2019, under the mailbox rule, by filing a pro se Civil Rights Complaint (Doc. 1). He filed an Amended Complaint on November 18, 2019. In the Amended Complaint,¹ Perez asserts claims pursuant to 42 U.S.C. § 1983 against the following Defendants: (1) Justin C. Anderson; (2) Matthew Bellamy; (3) Jonas Carballosa; (4) Craig Maguire; (5) Joseph D. McGinnis; and (6) Richard M. Thurmond. He states that Defendants violated his federal constitutional right when they used excessive force against him during his arrest on February², 2017. As relief, he requests monetary damages. This matter is before the Court on Defendants Anderson, Maguire, and McGinnis’ Motion to Dismiss (Motion; Doc. 29) and Defendant Bellamy’s Motion to Dismiss (Bellamy

Motions are ripe for review. II. Plaintiff’s Allegations² Perez asserts that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they used excessive force against him during his February², 2017 arrest in St. Augustine, Florida. Complaint at 3, 5. As to the underlying facts, he avers that Defendant Thurmond “pointed his firearm” at Perez, handcuffed him, punched Perez’s ribs, and used the butt of the gun to hit Perez’s face. Id. at 5. He also states that Defendant Carballosa hit Perez in the ribs and left ear. According to Perez, other Defendants “used physical force” upon him, causing him to be hospitalized. Id.

III. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F. 3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable

inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F. 3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F. 3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 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[.]” Twombly, 550 U.S. at 555 (internal quotations omitted); see also

Jackson, 372 F. 3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]” which simply “are not entitled to [an] assumption of truth.” Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face[.]’” Id. at 678 (quoting Twombly, 550 U.S. at 570). And, while “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed,” Tannenbaum v. United States, 148 F. 3d 1262, 1263 (11th Cir. 1998), “‘this leniency does not give the court a license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading in order to sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837, 839 (11th Cir. 2011)3 (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F. 3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part on other grounds as recognized in Randall, 610 F. 3d at 706).

IV. Discussion

In the Complaint, Perez asserts that other Defendants “used physical force upon [him] that caused hospitalization.” Complaint at 5. In the Motions,⁴ Defendants request dismissal of Perez’s claims against them because Perez fails to state plausible Fourth Amendment claims against them. See Motion at 2-3; Bellamy Motion at 2-3. They state that Perez “is silent” as to how Defendants Anderson, Maguire, McGinnis, and Bellamy violated his federal constitutional rights. Motion at 2; Bellamy Motion at 2. In his Response, Perez asserts that he intended “to explain in detail how each defendant acted under color of law in a later proceeding via ore [t]enus.” Response at 1; see Complaint at 5 (“to be argue[d] oral tenus”). He elaborates in his Response, stating that Bellamy,

2. The Clerk shall terminate Justin C. Anderson, Craig Maguire, Joseph D. McGinnis, and Matthew Bellamy as Defendants in the case. 3. The Court will issue a separate order setting deadlines for discovery and the filing of dispositive motions. DONE AND ORDERED at Jacksonville, Florida, this 14th day of October, 2020.

es Mal Hee United States District Judge sc 10/13 C: David Perez, FDOC #X67412 Counsel of Record