United States District Court, N.D. Florida, Pensacola Division
ORDER AND REPORT AND RECOMMENDATION
THAI CANNON UNITED STATES MAGISTRATE JUDGE
proceeding pro se, filed this action under 42 U.S.C.
§ 1983 on or about November 30, 2018, alleging claims of
false arrest and malicious prosecution. ECF Doc. 1.
Initially, Plaintiff sued the Escambia County Sheriff's
Department and Escambia County. On January 9, 2019, the Court
entered an Order finding that Plaintiff's complaint
failed to state a claim for relief because the Sheriff's
Office is not a legal entity which can be sued and Plaintiff
failed to allege facts sufficient to support a claim of
supervisory liability as to the County. ECF Doc. 7. The Court
gave Plaintiff an opportunity to amend his complaint within
thirty (30) days. ECF Doc. 7.
two (2) extension requests and a show cause order, on April
9, 2019, Plaintiff filed a document, which was docketed as a
First Amended Complaint, but was simply a notice indicating
that the clerk had sent him the complaint form for a prisoner
rather than a non-prisoner. ECF Doc. 15. The Court thus gave
Plaintiff fourteen (14) days to file an amended complaint on
the proper forms. ECF Doc. 16. Over the next three months,
Plaintiff filed multiple deficient amended complaints, and,
on July 17, 2019, after screening the “fourth amended
complaint, ” the Court allowed Plaintiff another
opportunity to file a fifth amended complaint within thirty
(30) days or, if he could not do so in good faith, to file a
notice of voluntarily dismissal. ECF Doc. 20.
August 19, 2019, Plaintiff filed what he termed a fifth
amended complaint, but it really was just a request for
pre-suit discovery and for an extension of time to file the
amended complaint. ECF Doc. 21. On August 28, 2019, the Court
ordered Plaintiff to show cause, within fourteen (14) days,
why the case should not be dismissed for his failure to
prosecute or failure to comply with a Court order, thereby,
giving him another fourteen (14) days (and more
than eight (8) months after his initial complaint was
filed) to file a sufficient amended complaint.
ECF Doc. 22.
September 13, 2019, Plaintiff responded to the show cause
order with a document (ECF Doc. 23) titled “Motion To
Show Cause Motion Vacate and Correct Avoid, Illegal Order
Motion To Reinstate 4th Amended Complaint, ”
which does not comply with the Court's August 28, 2019
Order (ECF Doc. 22). Instead of filing an amended complaint,
which sufficiently states a cause of action against
Defendants, Plaintiff filed a motion seeking to vacate the
Court's order requiring him to file an amended complaint
and maintaining that his fourth amended complaint (ECF Doc.
19) was sufficient.
undersigned has reviewed the response and, for the reasons
set forth herein, as well as in the Court's July 17,
2019, order at ECF 20, respectfully recommends that
Plaintiff's claims against Defendants be dismissed for
failure to state a viable claim under 42 U.S.C. § 1983.
Additionally, the Court denies Plaintiff's motion to
vacate at ECF 23.
fourth amended complaint names three (3) Escambia County
Deputy Sheriffs as Defendants: Raul Mojica, Nicholas Scott
Mayo and Christian Allen Coad. ECF Doc. 19 at 1-2. The fourth
amended complaint sets forth the factual allegations which
follow, the truth of which are accepted for purposes of this
November 30, 2017, Plaintiff was standing in the parking lot
of a Whataburger restaurant in Pensacola, Florida.
Id. at 3. After seeing Defendants Mojica and Mayo
separately enter a parking lot, Plaintiff approached
Mojica's police cruiser. Id. Mojica exited his
vehicle, ordered Plaintiff to put his guitar on the pavement
and detained Plaintiff. Id. Plaintiff says Mojica
failed to identify himself or ask for Plaintiff's
identification; instead, Mojica began a pat-down search.
Id. When Plaintiff asked the reason for the search,
Mojica stated it had to do with stolen credit cards.
and Mojica then began discussing their uncertainty about who
had called to report Plaintiff. Id. at 3-4. Later,
Mayo, “without any further inquiry[, ] said the witness
[had] identified Plaintiff as the suspect and began reading
[Plaintiff his] Miranda Notice.” Id. at 4.
After Plaintiff asked if he was being arrested, Mojica
“announced that credit card fraud was a felony.”
Id. Plaintiff was then handcuffed and placed in
Mayo's vehicle. Id. Based on Mojica's
statement, and statements made by Mayo during the drive to
the sheriff's station, Plaintiff believed he had been
arrested for a felony involving the fraudulent use of credit
cards. Id. Mayo told Plaintiff “he could not
lower the charge to a misdemeanor because [Plaintiff] was
arrested based on Officer Nielson['s] report from
November 29, 2017 and that . . . report charged a felony
offense.” Id. Plaintiff, however, maintains he
was “not the suspect subject to the felony credit card
use and theft.” Id. at 5.
Mayo and Plaintiff arrived at the station, Mayo
“altogether omitted the (‘surplusage charge or
count') of felony fraudulent use of a credit card and its
customary citation authorizing its enforcement and
impermissibly then falsely arrest[ed] Plaintiff a second time
for a misdemeanor without notifying Plaintiff the felony
offense was dropped nor that he was being rearrested and
charged with a misdemeanor.” Id. Plaintiff
claims this “misled and embarrassed him to his
prejudice.” Id. at 6. Plaintiff further
alleges Mayo filed a defective information which omitted
Mojica's involvement with the arrest. Id.
on the foregoing, Plaintiff alleges: (1) unreasonable search
and seizure; (2) false arrest and imprisonment for felony
fraudulent use of credit cards; (3) false arrest and
imprisonment for misdemeanor fraudulent use of credit cards;
and (4) “lack of probable cause/lack of
jurisdiction.” Id. at 11. As relief, he seeks
monetary damages. Id.
Plaintiff did not include his arrest report with his fourth
amended complaint, the Court attached it to its July 17
order, and stated, “[t]he arrest report from that case,
signed by Defendant Mayo on November 30, 2017, indicates
probable cause existed to arrest Plaintiff for the
misdemeanor.” ECF 20 at 5. Specifically, in the arrest
report, the Defendant Mayo relayed that officers received
sworn statements from the victim and an employee of the
Family Dollar that Plaintiff attempted to use the
victim's credit card to purchase various items. ECF 20 at
11-12. The witness also indicated there is video surveillance
of the transaction. In Plaintiff's motion, he does not
dispute the allegations made in the arrest report.
in Plaintiff's motion to vacate (ECF Doc. 23), he
provides additional factual allegations regarding his claims
and describes the events leading up to his arrest as follows:
the victim left her purse on top of her car and drove off;
the purse fell from the car onto the ground; a man on a bike
initially picked up the purse (wallet); but left an ID card
and credit card, which fell out of the wallet, on the ground;
Plaintiff picked up the ID card and the credit card and used
the credit card. ECF Doc. 23 at 5-6. Plaintiff “had no
intent to defraud, ” but was merely checking to see ...