United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of defendant City of
Fort Myers and defendant Michael Perry’s Motions to
Dismiss Plaintiff's Second Amended Complaint (Docs. ##
60, 61) filed on August 27, 2019. Plaintiff filed a Motion to
Respond Defendant’s Michael Perry Motion to Dismiss
(Doc. #62) on August 29, 2019, and a Motion to Respond
Defendant’s City of Fort Myers Motion to Dismiss (Doc.
#63) on September 3, 2019. For the reasons stated below, the
motions are due to be granted.
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)
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).
August 1, 2019, the Court dismissed plaintiff’s Amended
Complaint without prejudice to filing a Second Amended
Complaint to the extent that plaintiff could state a
plausible claim. (Doc. #55.) The Second Amended Complaint
(Doc. #59) asserts the following facts: On or about December
25, 2016, plaintiff lost his apartment after losing his job.
Plaintiff became homeless and living in his car so he was
admitted at Shelter Bob James Triage in Fort Myers, Florida.
Plaintiff was discharged from the shelter on or about
February 10, 2017, but remained homeless so he spent his
nights in his car in the parking lot of the shelter.
February 15, 2017, around 12:40 am, Officer Michael Perry
approached plaintiff’s car with a flashlight
illuminating the interior of the car without an introduction.
Officer Perry 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. #59, p. 5.) Officer Perry started
counting to 5, and when he reached 5, Officer Perry removed
his firearm from its holster and pointed it at
plaintiff’s face. At that moment, another officer,
Officer Adam J. Miller, intervened by placing his body
between the gun and plaintiff. Plaintiff alleges that Officer
Miller saved his life. Plaintiff showed that his hands were
empty, he had no weapons in the car, and plaintiff states
that he presented no physical threat to the Officers.
Plaintiff states that Officer Miller has since passed, but
Officer Brittany Morris was also on the scene with knowledge
of the events. Plaintiff left the parking lot without
physical injury or arrest. The same day, around 8:00 am,
plaintiff filed a complaint against Officer Perry at the Fort
Myers Police Department. The investigation was opened,
however Officer Perry’s body camera was broken and
there was no recording and Officer Perry was exonerated of
Count One, plaintiff alleges excessive force against Officer
Perry. Plaintiff alleges that he was not actively resisting
arrest or attempting to evade arrest. Plaintiff was looking
for the key to the car to leave the parking lot and was not
near Officer Perry. Plaintiff states that he had not
committed any illegal acts, and he was not a suspect for any
crime. Officer Perry knew that the 911 phone call came from
the shelter, and Officer Perry was informed by the shelter
that plaintiff had a valid driver license. Officer Perry knew
that plaintiff was homeless and sleeping in his car, and that
the shelter’s administrative staff wanted plaintiff
removed from the parking lot. The shelter did not warn or
tell plaintiff to leave the parking lot. Plaintiff alleges
that Officer Perry’s conduct of displaying a firearm
showed a disregard of the risk of harm, and violated his
constitutional rights because Officer Perry had no probably
cause for arrest.
Count Two, plaintiff alleges that the City of Fort Myers has
a custom, policy, and practice of ignoring and failing to
discipline misconduct of officers when they use unreasonable
excessive force. Plaintiff alleges that Officer Perry’s
acts and omissions were carried out under the policies and
practices of the City of Fort Myers Police Department, and
the City encouraged or condoned his unconstitutional acts.
Court previously set forth the applicable standard when
reviewing a Fourteenth Amendment excessive force claim. (Doc.
#55, p. 6.) The only additional and relevant facts added in
the Second Amended Complaint are that Officer Perry’s
camera was broken and an additional witness was present at
the scene. The previous finding still applies:
“Applying the Johnson factors, drawing the weapon
in such a manner when plaintiff was not touched, arrested, or
injured was not the application of excessive force. While
plaintiff’s vehicle was stopped prior to the
officer’s arrival, the officer knew plaintiff was not
authorized to be in the parking lot and properly directed
plaintiff to exit the vehicle as a matter of course.”
(Id., p. 8.) Plaintiff’s Second Amended
Complaint suffers from the same deficiencies in that it fails
to allege a constitutional violation. For the same reason,
i.e., the lack of a constitutional violation, the Count
against the City of Fort Myers must also fail. See
Doc. #55, p. 11 (Noting that the “City cannot be
vicariously liable for the conduct of its officer if that
conduct did not violate the law.”).
Court finds that allowing further amendments will not alter
the result in this case, and plaintiff is unable to state a
plausible claim against the Officer and the City of Fort
Myers. Therefore, the ...