United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge
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.
STATEMENT OF FACTS
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. 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.
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.
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.
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.
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.
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.
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. 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.
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);