United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendant Michael
Perry's Amended Motion to Dismiss Plaintiff's Amended
Complaint (Doc. #29) and defendant City of Fort Myers'
Motion to Dismiss Plaintiff's Amended Complaint (Doc.
#3), both filed on January 4, 2019. In response, plaintiff
filed a Motion to Respond Defendant's Michael Perry
Motion to Dismiss (Doc. #32) on January 8, 2019, and a Motion
to Respond Defendant's City of Fort Myers Motion to
Dismiss (Doc. #33). For the reasons set forth below,
defendant Perry's motion is granted, defendant City of
Fort Myers' motion is denied in part and granted in part,
and plaintiff is granted leave to file an amended complaint.
Federal Rule of Civil Procedure 8(a), a Complaint must
contain a “short and plain statement of the grounds for
the court's jurisdiction”, and a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). This
obligation “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To
survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a
right to relief above the speculative level.”
Id. at 555. See also Edwards v. Prime Inc.,
602 F.3d 1276, 1291 (11th Cir. 2010). This requires
“more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth, ” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus,
the Court engages in a two- step approach: “When there
are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one
drafted by an attorney, and the Court will construe the
documents filed as a complaint and amended complaint
liberally. Jones v. Fla. Parole Comm'n, 787 F.3d
1105, 1107 (11th Cir. 2015).
Amended Complaint (Doc. #15), plaintiff Mamberto Real (Real
or plaintiff) alleges that on or about Christmas Day 2016, he
lost his apartment because he lost his job. Plaintiff became
homeless, and was living in his car before being admitted at
Shelter Bob James Triage. Plaintiff was discharged from the
shelter on February 10, 2017, but remained in the
shelter's parking lot sleeping in his car at night.
February 15, 2017, at approximately 12:40 a.m., defendant
Michael Perry (Perry), a Police Officer with the City of Fort
Myers, approached plaintiff's car, shined a flashlight
into his car, and stated “Hey you they do not want you
here, I already know you have driver license, you have five
(5) seconds to leave or I am going to shoot you
NIGGER.” (Doc. #15, ¶ 10.) Perry started counting,
and when he reached five he removed his firearm from its
holster and pointed it at plaintiff's face. At that
moment, Officer Adam J. Miller intervened and placed his body
between the gun and plaintiff. Plaintiff showed that his
hands were empty; plaintiff asserts he had no weapons in the
car, and was not a physical threat to the officer. Plaintiff
left the parking lot on his own, without injury or arrest.
Perry was exonerated of any wrongdoing after an
Amended Complaint alleges three claims against Officer Perry:
A violation of due process for his reckless indifference to
plaintiff's rights by intentionally displaying a weapon
in plaintiff's face when he posed no threat (Count One);
excessive force in violation of his Fourth Amendment rights
despite plaintiff not actively resisting arrest or attempting
to evade arrest (Count Two); and violation of his equal
protection rights because he was treated in a discriminatory
fashion when compared to a similarly situated Caucasian
(Count Three). Count Four is brought against the City of Fort
Myers for having a custom, policy, and practice of ignoring
and failing to discipline misconduct of deputies when they
unreasonably violate constitutional rights by excessive
force, covering up wrongdoing, and by discriminating.
Plaintiff alleges that the actions of Perry were sanctioned
by the City of Fort Myers by failing to adequately supervise
and train officers. All counts are brought pursuant to 42
U.S.C. § 1983.
alleges that defendant Michael Perry violated his due process
rights, acted unreasonably with excessive force, and violated
plaintiff's equal protection rights. Defendant argues
that plaintiff has failed to state any claim against him and
that he is entitled to qualified immunity. “In any
§ 1983 case, we must begin our analysis by identifying
“the precise constitutional violation” the
defendant has allegedly committed. Franklin v.
Curry, 738 F.3d 1246, 1250 (11th Cir. 2013) (per
curiam).” Alcocer v. Mills, 906 F.3d 944, 952
(11th Cir. 2018).
Supreme Court has rejected the “notion that all
excessive force claims brought under § 1983 are governed
by a single generic standard.” Graham v.
Connor, 490 U.S. 386, 393 (1989) (“Today we . . .
hold that all claims that law enforcement officers have used
excessive force . . . in the course of an arrest,
investigatory stop, or other ‘seizure' of a free
citizen should be analyzed under the Fourth Amendment and its
‘reasonableness' standard, rather than under a
‘substantive due process' approach.”) Rather,
“[i]n addressing an excessive force claim brought under
§ 1983, analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged
application of force.” Graham, 490 U.S. at 394
(citation omitted). “Graham simply requires
that if a constitutional claim is covered by a ...