PYATT JR

v.

GIMENEZ

THIS CAUSE is before the Court upon Defendant Mayor Carlos A. Gimenez’s (“Mayor Gimenez”) Motion to Dismiss, ECF No. (“Mayor’s Motion”), and Defendants Alexander D. Casas (“Chief Casas”), Alfred Torres (“Sgt. Torres”), and Allen Lowe’s (“Sgt. Lowe”)¹ Motion to Dismiss, ECF No. (“Officers’ Motion”) (collectively, “Motions”).

Pro se Plaintiff filed a response to the Mayor’s Motion, ECF No. (“Mayor’s Response”), and a response to the Officers’ Motion, ECF No. (“Officers’ Response”).

Mayor Gimenez filed a reply in support of his motion, ECF No. (“Mayor’s Reply”), and Officer Defendants filed a reply in support of their motion, ECF No. (“Officers’ Reply”).

The Court has reviewed the Motions, the supporting and opposing submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, Mayor Gimenez’s Motion is granted in part and denied in part, and the Officers’ Motion is granted in part and denied in part.

I. BACKGROUND

According to the Complaint, ECF No. (the “Complaint”), Plaintiff is an alumnus of Florida International University (“FIU”). Id. at ¶ 4. While somewhat difficult to follow, he appears to allege that in October 2016, he was charged with assault with a deadly weapon arising from a physical altercation that occurred at FIU. Id. at ¶ 18. Plaintiff asserts that he and a roommate called the police to report that an individual named Donnavin Bulgin was in their dorm room, id. at ¶ 19, and that, after waiting for the police to arrive, Plaintiff was detained “without being asked any questions” and was then suspended by FIU for one year. Id. at ¶¶ 20-22. Plaintiff alleges that all charges have been dropped against him. Id. at ¶ 26.2 Following his arrest and suspension, in December 2018, Plaintiff was given a trespass warning after being found sleeping in the FIU Green Library on a Sunday morning. Id. at ¶ 8. He was instructed to return in January to lift the trespass warning. Id. at ¶ 9.

On January³, 2019, he went to the FIU police department but claims that he was “arrested without probable cause” by Sgt. Lowe for resisting arrest without violence. Id. at ¶ 10. One week later, he returned to the police department where he met with “a group of officers” and was advised to set up a call with the Chief of Police. Id. at ¶ 11. According to Plaintiff, he then spoke with Chief Casas and “was advised that if [he] got accepted into the FIU graduate program that [Chief Casas] would lift the trespass.” Id. at ¶ 12. He further adds that he was directed to “follow the same procedure as advised in the trespass warning for policy on how to enter the campus.” Id. In February 2019, Plaintiff obtained an escort to enter campus for purposes of meeting with an FIU business graduate advisor, but he was reportedly told by Sgt. Torres not to come back to

Fourth, the false imprisonment claim fails because Plaintiff did not allege that his due process rights under the Fourteenth Amendment were violated, and the false imprisonment and false arrest claims are essentially duplicative counts. Id. at 2-3.

Fifth, Chief Casas cannot be sued for supervisory liability in light of probable cause for Plaintiff’s arrests and given the paucity of allegations implicating him in the alleged misconduct. Id. at 3. And sixth, they maintain that they are entitled to qualified immunity for any alleged constitutional violation. Id. In this respect, they argue that the “law was not clearly established providing under the circumstances that any of the Defendants’ actions were unconstitutional. None . . . had fair warning that their conduct violated any of the Plaintiff’s rights. Plaintiff had been repeatedly warned to not return or remain on FIU property, at a minimum, because of the trespass warning provided in 2018. Even if the Defendants mistakenly relied on knowledge from 2016 related to the Plaintiff’s prior arrest, suspension, and removal from FIU property, it was reasonable for the officers to arrest him based on university safety concerns.” Id. (internal citations omitted).

In response, Plaintiff argues that probable cause is lacking and that he was kicked out of the FIU library while homeless and in a “state of shock” due to a “sudden change in his life” for which he “had no plan.” ECF No. at 1-2. He maintains that he subsequently visited the campus “under the direct orders of the officer who issued the trespass warning.” Id. at 2. See also id. at 8.

Plaintiff contends that his arrests were the product of racist actions by the police, id. at 4, 6, and that qualified immunity does not apply. Id. at 4, 9. He asserts that he sues Chief Casas under a theory of direct liability based on the March 2019 arrest, id. at 5, 8, and he was falsely imprisoned and had his Fourteenth Amendment rights violated by Sgts. Lowe and Torres, id. at 8. He contends that amendment is not futile, and he concedes that the Complaint is a shotgun pleading and “can and should be amended to correct the shotgun pleadings for the purpose of clarity as justice so requires this to be so.” Id. at 7-9. In reply, the Officer Defendants argue that Plaintiff’s response improperly attempts to amend the Complaint with allegations not included in the Complaint, arguable probable cause existed for Plaintiff’s arrests, Plaintiff fails to establish that qualified immunity does not bar claims against them, Chief Casas cannot be sued under a direct liability theory, and the Complaint is a shotgun pleading requiring dismissal. See generally ECF No. . The Motions, accordingly, are ripe for consideration.

II. LEGAL STANDARD

A. Motion to Dismiss

A pleading in a civil action 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). Although a complaint “does not need detailed factual allegations,” it must provide “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); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v.

S. Everglades Restoration Alliance, 304

F. 3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009).

However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F. 3d 1342, 1352 (11th Cir. 2006).

Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605 F. 3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F. 3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Techs., Inc., 433 F. 3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F. 3d 1125, 1135 (11th Cir. 2002)).

B. Pro se Litigants

“Pro 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, however, does not confer on pro se litigants “a right to receive special advantages not bestowed on other litigants. [The pro se litigant] must, for example, abide by local rules governing the proper form of pleadings.” Procup v. Strickland, 760 F. 2d 1107, 1115 (11th Cir. 1985).

Further, courts cannot serve as de facto counsel for a party and cannot rewrite a deficient pleading for the sake of sustaining an action. Jarzynka v. St. Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1264 (S.D. Fla. 2004).

The Court cannot simply “fill in the blanks” to infer a claim, Brinson v. Colon, 2012 WL 1028878, at *1 (S.D. Ga. Mar. 26, 2012), as “it is not the Court’s duty to search through a plaintiff’s filings to find or construct a pleading that satisfies Rule 8,” Sanders v. United States, 2009 WL 1241636, at *3 (N.D. Ga. Jan. 22, 2009); see Bivens v. Roberts, 2009 WL 411527, at *3 (S.D. Ga. Feb. 18, 2009) (“[J]udges must not raise issues and arguments on plaintiffs’ behalf, but may only construe pleadings liberally given the linguistic imprecision that untrained legal minds sometimes employ.” (citing Miller v. Donald, 541 F. 3d 1091, 1100 (11th Cir. 2008))).

In determining whether a pro se litigant has stated a claim, “the court ought not penalize the litigant for linguistic imprecision in the more plausible allegations,” while keeping in mind that “wildly implausible allegations in the complaint should not be taken to be true.” Miller, 541 F. 3d at 1100.

III. DISCUSSION

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a “short and plain statement of the claim” that shows that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The failure to identify claims with sufficient clarity to enable the defendant to frame a responsive pleading constitutes a “shotgun pleading” that violates Rule 8(a)(2). Byrne v. Nezhat, 261 F. 3d 1075, 1129–30 (11th Cir. 2001). The Eleventh Circuit Court of Appeals has identified four categories of shotgun pleadings, stating [t]hough the groupings cannot be too finely drawn, we have identified four rough types or categories of shotgun pleadings. The most common type—by a long shot—is a complaint 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. The next most common type, at least as far as our published opinions on the subject reflect, is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief.

Fourth, and finally, there is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against. The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F. 3d 1313, 1321–23 (11th Cir. 2015). Shotgun pleadings fail to make the connection between “the substantive count and the factual predicates . . . [such that] courts cannot perform their gatekeeping function with regard to the averments of [the claim].” Wagner v.

First Horizon Pharm. Corp., 464 F. 3d 1273, 1279–80 (11th Cir. 2006).

Courts in this district and the Eleventh Circuit have warned litigants that shotgun pleadings tend to “impede the orderly, efficient and economic disposition of disputes as well as the court’s overall ability to administer justice.” Degirmenci v. Sapphire-Fort Lauderdale, LLLP, 693 F. Supp. 2d 1325, 1336 (S.D. Fla. 2010) (citing Byrne, 261 F. 3d at 1128–31 (11th Cir. 2001)); see also Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F. 3d 1293, 1296 n.10 (11th Cir. 2002) (expounding the various ways in which shotgun pleadings harm the courts and other litigants). “Generally, when ‘a more carefully drafted complaint’ might state a claim, the plaintiff must be given a chance to amend before dismissal.” Hollis v.

W. Acad. Charter,

Inc., 782 F. App’x 951, 955 (11th Cir. 2019) (quoting Bryant v. Dupree, 252 F. 3d 1161, 1163 (11th Cir. 2001)). “However, the district court need not provide such an opportunity where the plaintiff has repeatedly failed to cure deficiencies in his complaint through previous amendments or where amendment would be futile.” Id. (quoting Bryant, 252 F. 3d at 1163). Here, all parties agree, and the Court similarly finds, that the Complaint in its current form operates as a shotgun pleading. Plaintiff, in fact, asserts that amendment is warranted to bring “clarity” to the allegations he raises. See ECF Nos. at 3; at 7-8. In this respect, the instant Complaint suffers from the second and fourth “sins” of asserting multiple claims against multiple defendants without specifying which of the defendants is responsible for which acts or omissions and of alleging conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. To start, the Complaint brings claims against “Defendant” in each of the three counts even though there are four listed Defendants. Thus, on this basis alone, it is uncertain as to what claims are asserted against which Defendants. Second, Mayor Gimenez is not listed in any of the allegations apart from paragraph⁵, and the grounds for liability against him are unexpressed. Even in paragraph⁵, it is unclear if Mayor Gimenez is sued in his individual or official capacity or how he (or potentially Miami-Dade County) had any involvement in this case and what his role was.

Third, the Complaint is unclear under what theory of liability Chief Casas is sued and what facts support such liability. To the extent a supervisory liability claim is raised, Plaintiff needs to properly allege such a claim.

Fourth, the Complaint alleges that Plaintiff was issued a trespass warning following his December 2018 incident, but the descriptions of the January and March 2019 arrests do not explain why those arrests were unlawful beyond stating that they were done “without probable cause.” Thus, at present, the alleged nature of those incidents does not sufficiently support claims for false arrest or false imprisonment. Fifth, and relatedly, Plaintiff fails to allege how Count II is materially different than Count I, and therefore not duplicative. Sixth, it is unclear if Count III, which the Court assumes is brought under § 1983, is predicated on malicious prosecution for the 2016 arrest and prosecution (which allegedly resulted in dropped charges) or for the 2019 arrests and charges brought against Plaintiff. Moreover, the Complaint does not allege, in any event, how there was a bona fide termination of the original criminal proceeding in his favor.⁶

Nonetheless, in the interests of fairness and efficiency, the Court concludes that Plaintiff shall be given an opportunity to cure the alleged pleading errors to set forth actionable claims. Going forward, Plaintiff must be cognizant that the Court is not required to allow repeated opportunities to cure deficiencies where amendment is futile. See, e.g., Marshall v. Aryan Unlimited Staffing Sol./Faneuil Inc./MacAndrews Holding, 599 F. App’x 896, 899 (11th

Cir. 2015) (affirming denial of leave to amend pro se complaint that would not have cured deficiencies).

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motions, ECF Nos. and , are GRANTED IN PART AND DENIED IN PART. Plaintiff shall file an amended complaint consistent with this Order by July 28, 2020.

3:13CV366/MCR/EMT, 2014 WL 103232, at *6 (N.D. Fla. Jan. 10, 2014) (determining that allegations were insufficient to state a § 1983 malicious prosecution claim, in part, because “filing a nolle prosequi . . . is insufficient to show that the termination of that proceeding constituted a bona fide termination in Plaintiff’s favor”). Thus, Count III must be based on either the 2016 incident or the March 2019 arrest and related criminal action. Case No. 1:20-cv-20827-BLOOM/Louis

DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of July, 2020.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record Joe Nathan Pyatt Jr 820 85th St Apt⁴ Miami Beach, FL 33141 Email: joe.nathan.pyattjr@ gmail.com