United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell, Judge
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.
STATEMENT OF FACTS 
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.
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.
STANDARD OF REVIEW
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.
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.”).
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).
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. 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.
Individual Claims against Officers Kendrick and
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).
Claims against the ...