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Real v. Perry

United States District Court, M.D. Florida, Fort Myers Division

August 1, 2019

MICHAEL PERRY, individual capacity and CITY OF FORT MYERS, official capacity, Defendants.



         This 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.


         Under 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, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In 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.

         A 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).


         In the 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.

         On 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 investigation.

         The 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.[1]


         Plaintiff 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).

         A. Excessive Force

         The 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 ...

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