United States District Court, M.D. Florida, Tampa Division
RAYMOND E. JOHNSON, Plaintiff,
JOHN SCHWARZE, et al., Defendants.
D. WHITTEMORE United States District Judge
THE COURT are Defendants' motion to dismiss (Dkt. 16),
and Plaintiffs response (Dkt. 27). Upon consideration, the
motion is GRANTED in part and DENIED in part.
ALLEGATIONS OF THE COMPLAINT
4, 2014, Plaintiff was walking his dogs while pushing his
bicycle. He walked to an apartment building to help his
cousin who was moving into an apartment. A police officer
yelled to Plaintiff to "come down from up there."
Plaintiff came down from the apartment, got his bicycle, and
"started across the street." He noticed a police
car behind him as he was walking to his friend's, Will
Howard's, house. A police car was in Howard's
driveway. A policeman yelled "Hey Nigger, did you hear
me say stop!" Plaintiff replied "No sir. Let me
park my bicycle."
officer got out of his car, yelled "nigger get down,
" and shot Plaintiff with a taser. The officer
"reloaded the taser gun" while saying "he
won't go down." Plaintiff was already "down,
" and he was "moving uncontrollably" from
"the electricity from [the] taser." Officer
Schwarze jumped on Plaintiff and pulled his arm behind his
back "as far as he could take it." Officer Schwarze
reached into Plaintiffs pants pocket, then pulled his hand
out while saying "this is your powder cocaine."
Plaintiff said "no sir that is not mine. You had to put
it in my pocket." Officer Schwarze said "shut up
nigger you are going to jail. Not only that you are going to
prison nigger." After Plaintiff asked why he was being
arrested, Officer Schwarze said "battery on a law
officer nigger, possession of paraphernalia, not only that
bicycle infraction, bike without a light."
Plaintiff names Officers John Schwarze, Jared Joyner, and
Michael Waldron as Defendants. He contends that they
subjected him to cruel and unusual punishment in violation of
the Eighth Amendment, and violated his Fourth Amendment right
to be free from unreasonable searches and seizures. He seeks
monetary damages and an injunction "to prevent police
STANDARD OF REVIEW
move to dismiss Plaintiffs complaint pursuant to Rule
12(b)(6), Fed.R.Civ.P. Rule 12(b)(6) states that any
defendant may assert the defense of "failure to state a
claim upon which relief can be granted" to a claim for
relief. In deciding whether to grant a motion to dismiss on
this ground, a court must accept "the allegations in the
complaint as true and construe them in the light most
favorable to the nonmoving party." Starosta v. MBNA
America Bank N.A., 244 Fed.Appx. 939, 941 (11th Cir.
2007) (unpublished) (quoting from Manuel v. Convergys
Corp., 430 F.3d 1132, 1139 (11th Cir. 2005)). However,
"a plaintiffs obligation to provide the
'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions" Bell
Atlantic Corp. et al v. Twombly, 127 S.Ct. 1955, 1964-65
(2007) (alteration in original) (citations omitted).
"Factual allegations, must be enough to raise a right to
relief above the speculative level." Id.
the court must afford a pro se litigant wide leeway
in pleadings, a pro se litigant is nonetheless
required to satisfy necessary burdens in that he is "not
relieved of his obligation to allege sufficient facts to
support a cognizable legal claim, " and "to survive
a motion to dismiss, a Plaintiff must do more than merely
label his claims." Excess Risk Underwriters. Inc. v.
Lafayette Ins. Co., 208 F.Supp.2d 1310, 1313
(S.D. Fla. 2002). Dismissal is, therefore, permitted
"when on the basis of a dispositive issue of law, no
construction of the factual allegations will support the
cause of action." Glover v. Liggett Group.
Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (citing
Marshall City Bd. Of Educ. v. Marshall City Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).
SUMMARY OF THE ARGUMENTS
their motion to dismiss, Defendants contend that the
complaint should be dismissed because: 1) Defendant Schwarze
is entitled to qualified immunity, since he had arguable
probable cause to arrest Plaintiff; and 2) there are no
allegations pertaining to Defendants Joyner and
Watson. Plaintiff responds that Defendant Joyner
used a taser on Plaintiff during the arrest, and that either
Defendant Waldron or Defendant Schwarze jumped on Plaintiff
and planted cocaine in his pants pocket. And he argues that
Defendant Schwarze is not entitled to qualified immunity
because there was no probable cause to stop, search, and
arrest Plaintiff, the cocaine was "planted" on him,
and the force used was excessive.
response in opposition to the motion to dismiss alters the
facts alleged in his complaint. In the response (rather than
the complaint), he specifies the actions taken by each
Defendant. Therefore, he should be provided an opportunity to
submit an amended complaint which clearly alleges the facts
pertaining to the claims against each Defendant.
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009) ("A court's review on a motion to
dismiss is limited to the four corners of the
complaint.") (citation and internal quotation marks
extent Defendant Schwarze claims qualified immunity,
when that defense is raised on a motion to dismiss, the
motion "will be granted if the complaint fails to allege
the violation of a clearly established constitutional
right." Chesser v. Sparks,248 F.3d 1117, 1121
(11th Cir. 2001) (internal quotation marks and citation
omitted). Plaintiff asserts Fourth ...