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Townsend v. Guity

United States District Court, M.D. Florida, Tampa Division

May 26, 2017

DARRY TOWNSEND, pro se Plaintiff,


          Charlene Edwards Honeywell, Judge

         This matter comes before the Court on Defendants' Motion to Dismiss (Doc. 20), Plaintiff's response in opposition (Doc. 24), and Plaintiff's Additional Amended Complaint Responding to the Motion to Dismiss against Officer Kendrick, Officer Cardin, and the Lakeland Police Department and [sic] Its Official Capacity (the “Additional Amended Complaint”) (Doc. 30). Upon review and consideration, the Court concludes that the Motion to Dismiss should be granted with leave to amend.[1]

         I. STATEMENT OF FACTS [2]

         On or about May 3, 2012, Plaintiff Darry Townsend (“Townsend”), who is proceeding pro se, was a passenger in a vehicle operated by Ervin L. Moye (“Moye”). Doc. 9 ¶ 5. Defendants Ian Kendrick (“Kendrick”), Michael Cardin (“Cardin”) and Patricio Guity (“Guity”) (collectively the “Officers”) are officers with the Lakeland Police Department. Id. at ¶ 3. They stopped Moye for a traffic violation. Id. at ¶ 6. The Officers detained Moye for driving with a suspended license. Id. Townsend and Moye were cooperative and compliant with the Officers' instructions and requests. Id. at ¶ 7. Officer Guity ordered Townsend out of the vehicle. Id. at ¶ 8. Officer Guity proceeded to pat-down Townsend in search of weapons and did not allow any time for Townsend to refuse. Id.

         Townsend sues the Officers in their individual and official capacities, as well as the Lakeland Police Department. Townsend alleges this pat-down was a violation of the Fourth Amendment because the Officers did not have probable cause to search him given that he was quiet and cooperative during the traffic stop. Id. at ¶ 11. He alleges that he has suffered mental pain and suffering, psychological injuries and loss of the capacity for the enjoyment of life. Id. at ¶ 12.


         To survive a motion to dismiss, a pleading must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a “factual allegation” in the complaint. Id.

         Moreover, when a successful affirmative defense, such as statute of limitations, appears on the face of a complaint, dismissal for failure to state a claim is also warranted. Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 920-21, 166 L.Ed.2d 798 (2007); La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (“[A] Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate only if it is ‘apparent from the face of the complaint' that the claim is time-barred.”).

         Pleadings from pro se litigants are held to a less stringent standard than pleadings drafted by attorneys. Tannenbaum v. United States¸148 F.3d 1262, 1263 (11th Cir. 1998). However, they still must meet minimal pleading standards. Pugh v. Farmers Home Admin., 846 F.Supp. 60, 61 (M.D. Fla. 1994).


         The Officers and the Lakeland Police Department move for dismissal on several grounds. Officer Kendrick and Officer Cardin move to dismiss the claims against them because the factual allegations do not suggest that they were involved in the pat-down which is the sole basis for the alleged constitutional violation.[3] The Officers also seek dismissal against them in their official capacities because the allegations do not suggest a custom or policy that led to the alleged constitutional violation. And the Lakeland Police Department (“LPD”) argues that since it is not a legal entity subject to suit, the Court must dismiss all claims against it. The Defendants recognize that while the Plaintiff has not expressly filed suit under 42 U.S.C § 1983, his claims all fall under that statute. See Doc. 20 at 4, n.1.

         A. Individual Claims against Officers Kendrick and Cardin

         Townsend makes no factual allegations that Officer Kendrick or Officer Cardin engaged in the pat-down procedure that led to the alleged constitutional violation. Townsend merely alleges that they were involved in the original traffic stop. The legality of the traffic stop itself is not in question within the Amended Complaint. And Townsend admits that Officer Kendrick was not implicated in the search. Doc. 24 at ¶ 3 (citing Doc. 20 at ¶ 3). Because government officials cannot be held liable under a theory of respondent superior, a plaintiff must plead that each government official, through his own actions, violated the plaintiff's constitutional rights. See, e.g., Iqbal, 556 U.S. at 676. As such, even given the less stringent pleading standards for a pro se litigant, Officers Kendrick and Cardin should be dismissed from this suit for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

         B. Claims against the ...

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