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Nazer v. City of St. Petersburg

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

September 5, 2017

IZZAT NAZER, Plaintiff,
v.
CITY OF ST. PETERSBURG and FIVE BUCKS DRINKERY, LLC Defendants.

          ORDER

          Charlene Edwards Honeywell United States District Judge

         This cause comes before the Court upon Defendant Five Bucks Drinkery, LLC's Motion to Dismiss Plaintiff's Amended Complaint or, in the Alternative, Motion for More Definite Statement and Incorporated Memorandum of Law (Doc. 33), Defendant City of St. Petersburg's Motion to Dismiss Plaintiff's Amended Complaint or, in the Alternative, Motion for More Definite Statement and Incorporated Memorandum of Law (Doc. 36), and Plaintiff Izzat Nazer's (“Nazer”) responses thereto (Docs. 38, 39). The City of St. Petersburg (the “City”) moves to dismiss Counts 1 and 2, which allege claims against it under 42 U.S.C. § 1983 for failure to protect and police misconduct. Doc. 36. Five Bucks Drinkery, LLC (“Five Bucks”) moves to dismiss Counts 3 and 4 against it, which allege that it committed aggravated battery and a hate crime, for failure to state a claim. Doc. 33. Both Defendants alternatively move for a more definite statement. Docs. 33, 36. The Court, having considered the motions, responses thereto, and the Amended Complaint, and being fully advised in the premises, will grant the motions and dismiss the Amended Complaint in its entirety without prejudice.

         I. STATEMENT OF FACTS[1]

         Nazer's claims stem from an alleged verbal altercation between himself and a Five Bucks employee, Bradley Hegarty, and a subsequent physical altercation between Nazer and two unnamed security guards outside of Five Bucks after its closing on October 22, 2015. Doc. 29 ¶¶ 4, 9, 17-22. The altercations were witnessed by police officers, and resulted in Nazer being injured and arrested.[2] Id. Prior to the altercations, Nazer and three women were inside of Five Bucks. Id. ¶ 4. At closing time, the group was asked to leave, which they did, moving outside to the edge of the sidewalk to await the women's transportation. Id. ¶¶ 5-6. While Nazer was sitting with the women, Hegarty approached the group and yelled demeaning, vulgar, and degrading comments at Nazer in an apparent attempt to end Nazer's conversation with the women and prevent him from accompanying them home for the evening. Id. ¶¶ 7-10. While this verbal exchange was occurring, Nazer saw three police officers standing behind Hegarty, who did not intercede in the events. Id. ¶ 12. The situation escalated when Nazer swore at Hegerty, at which point the officers walked away. Id. ¶¶ 13-14.

         Soon after, the women's transportation home arrived and Nazer approached the women to say goodnight. Id. ¶ 16. At that point, an unidentified security guard verbally confronted Nazer, while another prepared to strike Nazer with his fist. Id. ¶ 17. Nazer protested the interference, claiming that he wanted only to say goodnight, but the security guards struck him, pinning him to the ground, with one guard holding his head, and the second repeatedly bashing Nazer on the back of his head with a sharp metal object, causing Nazer to bleed. Id. ¶¶ 18-20. Less than a minute later, police officers arrived and assisted one of the guards in pinning Nazer to the ground. Id. ¶ 21.

         Although the timing and order of events are unclear from the Amended Complaint, at some point Nazer was taken to the hospital and at some point he was handcuffed. Id. ¶ 22. Nazer was told he was under arrest, but when he asked why, the police simply advised that he would be told later. Id. ¶ 22. At some point later, Nazer opened his wallet and saw that the credit cards had been removed and randomly placed in different pockets of his backpack, which indicated to him that the police had searched his backpack. Id. ¶ 23.

         According to a police report, there were two video recordings of the events, one by a taxi driver, and a second by the Five Bucks security camera system. Id. ¶¶ 24-25. However, the officer stated he could not retrieve the Five Bucks recording because neither he nor Five Bucks knew how to operate the system. Id. ¶ 25. Additionally, the police officers questioned the security guards and retrieved brief statements from the three women at the scene. Id. ¶¶ 26, 27.

         Based on these allegations, Nazer filed a four-count Amended Complaint raising two claims against the City and two claims against Five Bucks. Doc. 29. Count I alleges that the City is liable under 42 U.S.C. § 1983 for the officers' failure to protect him during the incident. Id. ¶¶ 28-30. Count II alleges police misconduct and is “a tort claim for personal injury arising from negligence or otherwise.” Id. ¶ 31. The City moved to dismiss these claims under Federal Rule of Civil Procedure 12(b)(6), and alternatively moved for a more definite statement under Federal Rule of Civil Procedure 8. Doc. 36.

         Count III alleges aggravated battery against Five Bucks for the actions of the security guards. Doc. 29 ¶¶ 33-34. Count IV alleges that Five Bucks committed a hate crime against Nazer, who is Middle-Eastern. Id. ¶¶ 35-39. Five Bucks moved to dismiss these claims under Federal Rule of Civil Procedure 12(b)(6), and alternatively moved for a more definite statement under Federal Rule of Civil Procedure 8. Doc. 33.

         II. STANDARD OF REVIEW

         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. at 678 (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 labeled as a “factual allegation” in the complaint. Ashcroft v. Iqbal, 556 U.S. at 678. Therefore, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id.

         Additionally, to survive a motion to dismiss, the plaintiff must allege the claim in a legible manner with numbered paragraphs, incorporating by reference other parts of the pleading for clarity. Fed.R.Civ.P. 10. Failing to comply with these rules may result in a shotgun pleading. Four types of shotgun pleadings exist. Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321-22 (11th Cir. 2015). The first is a complaint that contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where all but the first count contain irrelevant information and/or legal claims. Id.; see also Thompson v. RelationServe Media, Inc., 610 F.3d 628, 650 n. 22 (11th Cir. 2010); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006). Another type of shotgun pleading is one that is “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.” Weiland, 792 F.3d at 1322. The third type is when the pleading groups several causes of action together, each with its own legal standard. See id.; see also Ledford v. Peeples, 605 F.3d 871, 892 (11th Cir. 2010). The final type of shotgun pleading is one where multiple claims are asserted “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.” Weiland, 792 F.3d at 1322. The court may require the plaintiff to submit a more definite statement pursuant to the Federal Rules of Civil Procedure if faced with a shotgun pleading. Anderson v. Dist. Bd. Of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 n.3 (11th Cir. 1996); Fed.R.Civ.P. 12(e).

         III. DISCUSSION

         A. Claims ...


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