Real v. The City of Fort Myers et al

Filing 36

ORDER denying without prejudice 25 Defendant Michael Perry's Motion to Dismiss; denying without prejudice 26 Defendant City of Fort Myers' Motion to Dismiss Amended Complaints. Defendants must respond to the Second Amended Complaint on or before April 25, 2018. Signed by Judge Sheri Polster Chappell on 4/11/2018. (LMF)

Download PDF
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION MAMBERTO REAL, Plaintiff, v. Case No: 2:17-cv-117-FtM-38CM THE CITY OF FORT MYERS, MICHEL PERRY and MICHAEL PERRY, Defendants. / OPINION AND ORDER1 Pending before the Court is Defendant Officer Michael Perry’s Motion to Dismiss (Doc. 25) and Defendant City of Fort Myers’ Motion to Dismiss Amended Complaints (Doc. 26). Plaintiff Mamberto Real, appearing pro se, has not opposed the motions and the time to do so has expired. This is a civil rights action under 42 U.S.C. § 1983. Real sues the City and Officer Perry2 for constitutional violations because of a late-night encounter between him and the Officer. A homeless Real was sleeping in his car in a local company’s parking lot. Officer Perry allegedly approached Real’s car with a flashlight, “and without any protocolary [sic] introduction, the Officer stated, ‘They do not want you here, I already know you have 1 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court. The operative pleading names both “Michel Perry” and “Michael Perry” as defendants. (Doc. 14). Based on Officer Perry’s motion, it appears that Real is suing only him and merely offered different spellings for the Officer’s first name. 2 driver license; you have five seconds to leave, or I am going to shoot you NIGGER.’” (Doc. 14 at ¶ 8). Officer Perry counted to five and allegedly pointed his gun at Real, who left the parking lot without any physical injury. (Id.). Real filed this suit about a week later. (Doc. 1). A year and two tries later, United States Magistrate Judge Carol Mirando allowed Real to proceed in forma pauperis. (Doc. 13). In doing so, the Magistrate Judge reviewed the amended complaint in which Real asserted only Fourteenth Amendment equal protection and due process claims against Officer Perry. (Doc. 11). The due process claim was found to be plausible and the sole basis for granting IFP relief. Yet, the Magistrate Judge allowed Real to file a second amended complaint that re-alleged his equal protection claim. (Doc. 13 at 8). The Magistrate Judge told Real that if he did not file a second amended complaint, the amended complaint would be the operative pleading. Real elected to file a Second Amended Complaint. (Doc. 14). Not only did he reallege the equal protection claim, but he also added Fourth and Eighth Amendment claims and added the City as a defendant. (Id.). According to Real, Officer Perry violated his Fourth and Eighth Amendment rights because the Officer pointing his gun at him was excessive force and cruel and unusual punishment. (Id. at ¶¶ 13-14). Real also alleges that Officer Perry violated his equal protection rights because he is African-American (and Hispanic) and Officer Perry would have treated a white person in his “social situation” more favorably. (Id. at ¶ 15). Officer Perry also violated, in Real’s view, the due process clause because he “pointed a gun upon Plaintiff’s face arbitrarily, without any justifiable legal defense to do so.” (Id. at ¶ 16). And Real alleges the City violated his constitutional 2 rights through “an official policy, custom, or usage.” (Id. at ¶ 20). Allowing Real to replead a second amended complaint while granting him IFP has created a procedural hiccup. And to complicate matters, Officer Perry and the City have filed separate motions to dismiss that are directed at the amended complaint – not the Second Amended Complaint. (Doc. 25; Doc. 26). Their focus on the amended complaint suggests they were not served with the operative pleading. And the record does not clarify this added service issue. While the case’s procedural posture is muddied and the record hazy, it is clear that this case has to get back on track. Real initiated this case more than one year ago and Defendants still appear to be unclear on what document is the operative pleading. Because the City’s and Officer Perry’s motions to dismiss do not address the Second Amended Complaint, the Court denies the motions without prejudice and permits them to file renewed responses to the Second Amended Complaint.3 Accordingly, it is now ORDERED: (1) Defendant Michael Perry’s Motion to Dismiss (Doc. 25) is DENIED without prejudice. (2) Defendant City of Fort Myers’ Motion to Dismiss Amended Complaints (Doc. 26) is DENIED without prejudice. (3) Defendants must respond to the Second Amended Complaint on or before April 25, 2018. 3 In filing motions before this Court, Defendants are reminded that they cannot state empty legal conclusions and declare victory. Nor can they expect the Court to fill in the missing analysis and legal authority that may support their conclusory positions. 3 DONE and ORDERED in Fort Myers, Florida this 11th day of April 2018. Copies: Magistrate Judge Carol Mirando All Parties of Record 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?