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Gary v. Fort Myers Police Department

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

December 31, 2019

DAVID GARY, Plaintiff,
v.
FORT MYERS POLICE DEPARTMENT, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on review of defendant's Motion to Dismiss (Doc. #14) filed on November 19, 2019. Plaintiff filed a letter response (Doc. #16) on December 16, 2019. For the reasons stated below, defendant will be dismissed.

         I.

         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).

         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).

         II.

         Plaintiff David Gary filed a Complaint (Doc. #1) against the Fort Myers Police Department with regard to a search conducted at plaintiff's residence on or about July 31, 2015. Plaintiff alleges that the search warrant was obtained under false pretenses because it falsely alleged that plaintiff's home was under suspicion of the sale of cocaine and possession of cocaine, and having paraphernalia related to the sale and possession of cocaine.

         Plaintiff states that the occupants did not provide consent for officers to enter the premises, or to search the premises. No cocaine or cocaine related substances were found during the search, but plaintiff was arrested for possession of synthetic marijuana that did not belong to him. The State Attorney's Office dismissed the charge on December 7, 2015.

         In Count I, plaintiff alleges that defendant lacked probable cause to search plaintiff's residence, or to seize items pursuant to the search. Plaintiff alleges that defendant has an unlawful and pervasive policy of ignoring the civil rights of residents, and that the policy was the moving force behind the actions committed against plaintiff. Plaintiff alleges a violation of his Fourth Amendment rights based on an unreasonable search and seizure, and resulting damages.

         In Count II, plaintiff alleges a violation of 42 U.S.C. § 1983 and the Fourteenth Amendment based on the same violation of the Fourth Amendment of the United States Constitution alleged in Count I.

         III.

         Defendant seeks to dismiss the Complaint arguing that plaintiff failed to properly serve defendant with personal process, plaintiff failed to comply with conditions precedent before filing suit against a municipality pursuant to Fla. Stat. § 768.28, and defendant is not a proper defendant because it is not a separate legal entity. Defendant also argues a failure to state a claim under Fed.R.Civ.P. 12(b)(6), and a failure to meet the minimum standards under Fed.R.Civ.P. 8 to state a plausible claim.

         A. Service of Process

         On July 5, 2019, the Magistrate Judge granted plaintiff's request to proceed in forma pauperis, and directed the Clerk to provide plaintiff a set of forms to prepare and return for service by the United States Marshal's Service. On August 2, 2019, the Clerk's Office noted that plaintiff returned incomplete service forms and they were returned to plaintiff for completion and signatures. On September 9, 2019, a Summons was issued, and the Clerk's Office noted receipt of completed forms. On September 19, 2019, the United States ...


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