Rosado v. Nichols et al

Filing 20

ORDER TO AMEND directing plaintiff to amend within 14 days of this Order to proceed, in compliance with the directives of the Order. The Clerk shall provide plaintiff a copy of the standard civil rights complaint form for incarcerated plaintiffs. Signed by Judge John E. Steele on 4/25/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RANDAL ROSADO,
Plaintiff,
v.

Case No: 2:17-cv-195-FtM-99MRM

ROBERT NICHOLS, ROBERT DENIS
FOLEY, III , Lee County State
Attorney, LEE COUNTY STATE
ATTORNEY,
CHARLES
J.F.
SCHREIBER, JR. , THOMAS S.
REESE, JOHN E. DURYEA, JR. ,
ST. LUCIE COUNTY SHERIFF’S
OFFICE,
ANDREW
BOLONKA,
INDIAN
RIVER
COUNTY
SHERIFF’S
OFFICE,
SCOTT
PROUDY, ST. LUCIE COUNTY
STATE ATTORNEY,
EDWARD W.
ARENS, FLORIDA OFFICE OF
FINANCIAL
REGULATION,
SABRINA LOLO, and FORT MYERS
BROADCASTING COMPANY,
Defendants.
ORDER TO AMEND
This matter comes before the Court upon civil rights complaint
filed by Randal Rosado (“Plaintiff”), an inmate at the Lee County
Jail in Fort Myers, Florida (Doc. 1, filed February 2, 2017).
Plaintiff initially filed his action in the Southern District of
Florida, and it was transferred to this Court on April 12, 2017
(Doc. 13).

Because Plaintiff proceeds in forma pauperis, this

Court

review

must

his

complaint

to

determine

whether

it

is

frivolous, malicious, or fails to state a claim upon which relief
may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
Because Plaintiff did not file his complaint on the proper
civil rights complaint form, and because he has not adequately
stated any constitutional claims, Plaintiff will be required to
file an amended complaint should he wish to proceed with this
action.
I.

Complaint

Plaintiff asserts that, based upon information received from
an informant, Defendant Lee County State Attorney, Defendant Robert
Nichols, and Defendant Robert Foley began investigating Plaintiff,
which lead to his arrest in New York on June 28, 2016 (Doc. 1 at
¶ 24).

Plaintiff asserts that his phones were unlawfully tapped

and that his residence in New York was unlawfully searched. Id. at
¶¶ 25-26.

He asserts that Defendants Nichols and Foley used

information

obtained

from

the

allegedly

unlawful

searches

to

slander Plaintiff’s reputation to Attorney Joshua Hauserman. Id.
at ¶ 27.

Plaintiff asserts that he was arrested and charged with

fifteen felony counts as a result of the unlawful searches.
at ¶ 29.

Id.

Thereafter, he was charged with nine additional counts

in St. Lucie County, Florida. Id. at ¶ 30.
Plaintiff asserts that Defendant State Attorney Schreiber
slandered him in a verified complaint that was filed in the Second
Judicial Circuit for Leon County, Florida (Doc. 1 at ¶ 32).

- 2 -

Defendant

Reese

further

slandered

Petitioner

by

restating

allegations from the verified complaint. Id. at ¶ 36.

Plaintiff

asserts that various news outlets published defamatory reports of
his arrest.

Id. at ¶ 37-46.

Plaintiff asserts that he has suffered mental anguish and
embarrassment as a result of the defendants’ actions (Doc. 1 at ¶
47).

He raises claims under 42 U.S.C. § 1983, 18 U.S.C. §§ 241

and 242, and 28 U.S.C. § 4101.

He seeks compensatory damages,

punitive damages, and other relief (Doc. 1 at 10).
II.
A

federal

district

Legal Standards
court

is

required

to

review

a

civil

complaint filed in forma pauperis and dismiss any such complaint
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915.

The mandatory language

of 28 U.S.C. § 1915 applies to all proceedings in forma pauperis.
Section 1915 provides:
Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court
shall dismiss the case at any time if the court
determines that(A)

the allegation of poverty is untrue;
or

(B)

the action or appeal(i)

is
frivolous
malicious;

(ii)

fails to state a claim on
which
relief
may
be
granted; or

- 3 -

or

(iii)

seeks
monetary
relief
against a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2).
A

complaint

may

be

dismissed

as

frivolous

under

§

1915(e)(2)(B)(i) where it lacks an arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A claim is

frivolous as a matter of law where, inter alia, the defendants are
immune from suit or the claim seeks to enforce a right that clearly
does not exist. Id. at 327.

In making the above determinations,

all factual allegations in the complaint must be viewed as true.
Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).
In the case of a pro se action, the Court should construe the
complaint

more

liberally

than

it

would

pleadings

lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).

drafted

by

Nevertheless, pro

se litigants are not exempt from complying with the requirements
of the Federal Rules of Civil Procedure, including Rule 8(a)(2)’s
pleading standard. GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d
1359, 1369 (11th Cir. 1998) (“Yet even in the case of pro se
litigants this leniency does not give a court license to serve as
de facto counsel for a party, or to rewrite an otherwise deficient
pleading in order to sustain an action[.]” (internal citations
omitted)), overruled on other grounds as recognized in Randall v.
Scott, 610 F.3d 701, 706 (11th Cir. 2010); see also Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989) (stating that pro se litigants

- 4 -

are “subject to the relevant law and rules of court, including the
Federal Rules of Civil Procedure”).
III. Analysis
Title 42 U.S.C. § 1983 imposes liability on one who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws[.]” 42 U.S.C.
§ 1983.

To articulate a claim under § 1983, a plaintiff must

allege that: (1) a defendant deprived him of a right secured under
the Constitution or federal law; and (2) such deprivation occurred
under color of state law. Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998).

In addition, where a plaintiff seeks to

impose liability on one who is not an active participant in the
alleged constitutional deprivation, that plaintiff must allege and
establish an affirmative causal connection between the defendant’s
conduct and the constitutional deprivation. Williams v. Bennett,
689 F.2d 1370, 1380–1381 (11th Cir. 1982).
a.

Plaintiff cannot receive compensatory or punitive
damages in this action for the embarrassment of a
wrongful arrest

Plaintiff seeks monetary and punitive damages against the
defendants (Doc. 1 at 10).

Plaintiff was confined at the Lee

County Jail when he filed this action.

However, the Prison

Litigation Reform Act provides that “[n]o Federal civil action may
be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered

- 5 -

while in custody without a prior showing of physical injury.” 42
U.S.C. § 1997e(e).

The Eleventh Circuit has interpreted this

provision to mean that the PLRA forbids the litigation, during a
prisoner

plaintiff's

period

of

incarceration,

of

a

lawsuit

challenging a prior arrest and seeking damages for emotional injury
therefrom,

with

no

allegation

of

physical

injury.

Napier

v.

Preslicka, 314 F.3d 528, 532 (11th Cir. 2002) (“The embarrassment
or emotional harm caused by [a] mistaken arrest occur[s], at the
earlier, when [the plaintiff is] arrested—or, using the Miranda
construct, at the moment that a reasonable person in his situation
would feel unable to leave. Because the harm complained of by
Napier occurred while he was in custody, the PLRA applies to his
claim[.]”).

Likewise,

Plaintiff

seeks

damages

for

the

embarrassment caused by his wrongful arrest; however, these damages
accrued, at the earliest, the moment he was arrested.
The Eleventh Circuit has addressed the implications of §
1997e(e) and concluded that “the phrase ‘Federal civil action’
means

all

federal

claims,

including

constitutional

claims.”

Napier, 314 F. 3d at 532 (11th Cir. 2002) (citing Harris v. Garner,
216 F.3d 970, 984–85 (11th Cir. 2000) (en banc)).

The instant §

1983 action is a “Federal civil action” under this definition.
Further, it is undisputed that Plaintiff filed his complaint while
imprisoned, and that his Fourth Amendment claims fall under the
purview of § 1997e(e). See Heck v. Humphrey, 512 U.S. 477, 487 n.7

- 6 -

(1994) (“In order to recover compensatory damages . . . the § 1983
plaintiff must prove not only that the search was unlawful, but
that it caused him actual, compensable injury, . . . which, we
hold today, does not encompass the “injury” of being convicted and
imprisoned[.]”).

Plaintiff seeks damages for the distress and

mental injuries he suffered as a result of the defendants’ conduct
in effectuating his arrest.
injury.

However, he alleges no physical

Accordingly, Plaintiff’s claims for compensatory and

punitive damages due to the mental anguish caused by a wrongful
arrest

must

be

dismissed

with

prejudice.

28

U.S.C.

§

1915(e)(2)(B)(ii). 1
b.

Plaintiff cannot petition this Court
criminal proceedings against any party

to

initiate

Plaintiff attempts to raise claims under 18 U.S.C. §§ 241 and
242 (Doc. 1 at 8-9).

These are criminal statutes that do not give

1

If Plaintiff can demonstrate a constitutional injury
associated with the allegedly wrongful arrest and seeks only
nominal damages of one dollar, he is not barred under § 1997e(e).
See Hughes v. Lott, 350 F.3d 1157 (11th Cir. 2003) (concluding
that § 1997e(e) does not bar suits by prisoners who have not
alleged a physical injury if they seek nominal damages—generally
of one dollar); Nix v. Carter, Case No. 5:10–cv–256 (CAR), 2013 WL
432566, at *2 (M.D. Ga. Feb. 1, 2013) (“Nominal damages are
appropriate if a plaintiff establishes a violation of a fundamental
constitutional right, even if he cannot prove actual injury
sufficient to entitle him to compensatory damages.”) (citing
Hughes, 350 F.3d at 1162); Carey v. Piphus, 435 U.S. 247, 266-67
(1978) (if plaintiffs were entitled to nominal damages, the damages
should not exceed one dollar); Kyle v. Patterson, 196 F.3d 695,
697 (7th Cir. 1999) (“[N]ominal damages, of which $1 is the norm,
are an appropriate means of vindicating rights whose deprivation
has not caused actual, provable injury.”).

- 7 -

rise to a private right of action. See, e.g., Kelly v. Rockefeller,
69 F. App'x 414, 415–16 (10th Cir. 2003) (no private right of
action under §§ 241 or 245); Aldabe v. Aldabe, 616 F.2d 1089, 1092
(9th Cir. 1980) (no private right of action under §§ 241 and 242).
“It is well established that private citizens can neither bring a
direct criminal action against another person nor can they petition
the federal courts to compel the criminal prosecution of another
person.” Ellen v. Stamm, 951 F.2d 359 (9th Cir. 1991); Leeke v.
Timmerman, 454 U.S. 83, 86–87 (1981) (“a private citizen lacks a
judicially

cognizable

interest

nonprosecution of another”).

in

the

prosecution

or

Accordingly, any claims raised under

18 U.S.C. §§ 241 or 242 are dismissed with prejudice. 28 U.S.C. §
1915(e)(2)(B)(ii).
c.

Plaintiff cannot sue the St. Lucie County Sheriff’s
Office or the Indian River County Sheriff’s Office under
42 U.S.C. § 1983

The St. Lucie County Sheriff’s Office and the Indian River
County Sheriff’s Office are not legal entities capable of being
sued. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). 2

To

the extent that a plaintiff seeks to assess liability against a

2

The Court notes that a suit against the Indian River
Sheriff’s Office is properly brought in the District Court for the
Southern District of Florida. However, because the claims against
this entity are improper and because Plaintiff is directed to omit
this entity from any amended complaint, the Court will not transfer
the instant claims against the Indian River Sheriff’s Department
to the Southern District of Florida.

- 8 -

governmental entity in Florida, he is required to bring an action
against the name of the individual who holds the office responsible
for the individual's alleged wrong-doing.

Even if the Court

liberally construes the complaint as properly naming the Sheriffs
of the counties (as opposed to the Sheriff's Offices), these
defendants

must

still

be

dismissed.

It

is

clear

from

the

allegations in the complaint that the Sheriffs did not in any way
directly participate in the alleged constitutional violations.
Plaintiff attempts to attribute liability against the Sheriffs (or
the Sheriff’s Offices) solely on the basis of their supervisory
positions,

and

that,

without

more,

does

not

subject

them

to

liability. Mondell v. Dept. of Soc. Servs., 436 U.S. 658, 690–692
(1978); McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004); LaMarca
v.

Turner,

995

F.2d

1526,

1538

(11th

Cir.

1993).

Nor

does

Plaintiff's complaint contain any allegations of a policy, custom
or

practice

that

was

the

“moving

force”

behind

the

alleged

misconduct so as to render the Sheriffs liable in their official
capacities.

Board of County Comm'rs v. Brown, 520 U.S. 397 (1997);

see also Jones v. Cannon, 174 F.3d 1271, 1292 (11th Cir. 1999);
Tennant v. State, 111 F. Supp. 2d 1326 (S.D. Fla. 2000).
Accordingly, all claims against the St. Lucie County Sheriff’s
Office and the Indian River County Sheriff’s Office are dismissed.
Likewise, Plaintiff has not stated a claims against the Sheriffs
of St. Lucie County or Indian River County.

- 9 -

d.

Plaintiff cannot sue the state prosecutors for their
actions while performing prosecutorial duties

The United States Supreme Court has held that a prosecutor is
absolutely immune from a § 1983 suit for damages while acting
within the scope of his or her prosecutorial duties. Imbler v.
Pachtman, 424 U.S. 409, 425 (1976).

The Supreme Court pointed out

that without absolute immunity, such actions “could be expected
with some frequency, for a defendant often will transform his
resentment at being prosecuted into the attribution of improper
and malicious actions to the State's advocate.” Id. at 425.

“[I]f

the prosecutor could be made to answer in court each time such a
person charged him with wrongdoing, his energy and attention would
be directed from the pressing duty of enforcing the criminal law.”
Id.

The Imbler Court recognized that a prosecutor’s immunity

extends to actions preliminary to the initiation of a prosecution
as well as actions apart from the courtroom:
A prosecuting attorney is required constantly,
in the course of his duty as such, to make
decisions on a wide variety of sensitive
issues. These include questions of whether to
present a case to a grand jury, whether to
file an information, whether and when to
prosecute, whether to dismiss an indictment
against particular defendants, which witnesses
to call, and what other evidence to present.
Preparation both for the initiation of the
criminal process and for a trial, may require
the obtaining, reviewing, and evaluating of
evidence.

- 10 -

Imbler, 424 U.S. at 431.

The Supreme Court emphasized that it is

the interest in protecting the functioning of the prosecutor's
office, not its occupant, which is of primary importance. In
Imbler,

the

Court

did

not

define

the

outer

limits

of

the

prosecutor's absolute immunity, but it did recognize that some
official activities would not be encompassed, such as “those
aspects of the prosecutor's responsibility that cast him in the
role of an administrator or investigative officer rather than an
advocate.” Id. at 430–31.

In Kalina v. Fletcher, 522 U.S. 118

(1997), the Supreme Court held that a prosecutor's actions in
preparing charging documents, such as an information and a motion
for an arrest warrant, were protected by absolute immunity.
Because

Plaintiff’s

complaint

is

generally

rambling

and

incoherent, it is impossible for this Court to discern precisely
what

unconstitutional

actions

the

prosecuting

attorneys

are

alleged to have taken other than to prosecute Plaintiff based on
information provided by a confidential informant.

To the extent

Plaintiff raises claims relating to any of the prosecutors’ actions
surrounding the initiation of criminal charges against him or
otherwise

performing

traditional

prosecutorial

claims are dismissed with prejudice.

functions,

the

See Rivera v. Leal, 359 F.3d

1350, 1353 (11th Cir. 2004) (“A prosecutor is entitled to absolute
immunity for all actions he takes while performing his function as
an advocate for the government.”).

- 11 -

d.

Plaintiff’s claims for defamation are barred by Heck v.
Humphrey 3

Plaintiff

appears

to

attempt

to

raise

defamation

claims

against numerous state attorneys and media outlets based upon the
charges filed against him and the media’s reporting of those
charges.

Under Heck v. Humphrey, if a judgment in favor of

Plaintiff on his § 1983 complaint “would necessarily imply the
invalidity of his conviction or sentence,” the district court must
dismiss the complaint unless “the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.” 512 U.S.
at

487.

Plaintiff’s

conviction

or

sentence

invalidated because he is a pretrial detainee.

has

not

been

However, the rule

of Heck v. Humphrey “applies not only to convicted persons but
also to plaintiffs . . . who as yet only face prosecution.” Wiley
v. City of Chicago, 361 F.3d 994, 996(7th Cir. 2004) (citing
Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir. 1998)). In other

3

Plaintiff asserts that he brings defamation claims pursuant
to 28 U.S.C. § 4101 (Doc. 1 at 9).
This statute does not set
forth a cause of action. Rather, § 4101 defines “defamation” in
terms of HR 2765, the “Speech Act” (28 U.S.C. §§ 4101-4105), which
protects a citizen from a foreign defamation judgment unless: (1)
the judgment satisfies First Amendment protections; and (2) the
foreign court that entered the judgment had jurisdiction that
comports with American due process requirements. Plaintiff does
not attempt to enforce a foreign judgment, and any cause of action
purportedly based on § 4101 is dismissed with prejudice. However,
the Court will briefly discuss any potential state-law defamation
claims that Plaintiff may attempt to raise. Siegert v. Gilley, 500
U.S. 226, 233(1991) (“Defamation, by itself, is a tort actionable
under the laws of most States, but not a constitutional
deprivation.”).

- 12 -

words, where charges are outstanding against a plaintiff and his
constitutional claims would necessarily imply the invalidity of a
potential conviction, the action is barred under Heck.
In order to prevail on a defamation claim, Plaintiff would
have to prove that the statements at issue made by the defendants
were untrue. See Delmonico v. Traynor, 116 So. 3d 1205, 1220 (Fla.
2013) (in order to support a defamation claim, the plaintiff must
establish that the defamatory statements were false and uttered
with

express

malice).

Viewing

all

of

the

allegations

in

Plaintiff’s complaint as true, a judgment in his favor on the
defamation claims would necessarily imply that his arrest was
invalid

and

Accordingly,

that
the

the

charges

claims

are

against

barred

by

him

must

Heck

v.

be

dropped.

Humphrey,

and

Plaintiff’s defamation claims are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
e.

Plaintiff’s construed claims for malicious prosecution
are premature

As noted, Plaintiff’s complaint makes conclusory assertions
that his civil rights were violated without providing sufficient
factual detail to state a claim.

Generally, Plaintiff appears to

attempt an attack on the state’s criminal charges against him
through this civil action without even stating the specific claims
he attempts to bring.

To the extent Plaintiff wishes to bring a

malicious prosecution claim, it is premature.

- 13 -

A federal malicious prosecution claim under § 1983 has three
components.

First, a plaintiff must allege the elements of a

state common law malicious prosecution claim. Second, a plaintiff
must allege a violation of his Fourth Amendment right to be free
from unreasonable seizures. Third, a plaintiff must allege that
the unlawful seizure was in relation to the prosecution. Eloy v.
Guillot, 289 F. App’x 339, 345 (11th Cir. 2008).
Under Florida law, a plaintiff must establish six elements in
order to support a malicious prosecution claim: (1) an original
judicial proceeding against the present plaintiff was commenced or
continued; (2) the present defendant was the legal cause of the
original proceeding; (3) the termination of the original proceeding
constituted a bona fide termination of that proceeding in favor of
the present plaintiff; (4) there was an absence of probable cause
for the original proceeding; (5) there was malice on the part of
the present defendant; and (6) the plaintiff suffered damages as
a result of the original proceeding. Kingsland v. City of Miami,
382 F.3d 1220, 1234 (11th Cir. 2004) (citing Durkin v. Davis, 814
So. 2d 1246, 1248 (Fla. 2d DCA 2002)).
In the instant case, there has been no bona fide termination
of the proceedings in Plaintiff’s favor; therefore, Plaintiff’s

- 14 -

malicious

prosecution

claims

are

dismissed.

28

U.S.C.

§

1915(e)(2)(B)(ii). 4
f.

Plaintiff’s amended complaint must
Federal Rules of Civil Procedure

comply

with

the

Plaintiff may file an amended complaint seeking only nominal
damages of one dollar if he believes he can state a claim against
the defendants that complies with this Order.

As directed on the

instructions for filing a civil rights complaint by prisoners
accompanying the Civil Rights Complaint Form, Plaintiff must place
his full name in the style of the case on the first page of the
Civil Rights Complaint Form. Plaintiff should also write his
current address and provide the full name and current address for
each defendant on page three and page four, if necessary, on the
Complaint. Plaintiff must state what rights under the Constitution,
laws, or treaties of the United States have been violated in the
section entitled “Statement of Claim.” It is improper for Plaintiff
to merely list constitutional rights or federal rights. Plaintiff
must provide support in the statement of facts for the claimed
violations.
A plaintiff may set forth only related claims in one civil
rights complaint. Pursuant to Federal Rule of Civil Procedure

4

Because a Fourth Amendment claim is not always precluded by
Heck v. Humphrey, and because the claims are dismissed as
premature, the Court will not discuss whether Plaintiff’s malicious
prosecution claims are also barred under Heck.

- 15 -

20(a), a plaintiff may not join unrelated claims and various
defendants unless the claims arise “out of the same transaction,
occurrence, or series of transactions or occurrences and if any
question of law or fact common to all defendants will arise in the
action.” Id.

As recognized by the Eleventh Circuit, “a claim

arises out of the same transaction or occurrence if there is a
logical relationship between the claims.” Construct Aggregates,
Ltd. v. Forest Commodities Corp., 147 F. 3d 1334, 1337 (11th Cir.
1998).

Moreover, as the Seventh Circuit stated in George v. Smith,

507 F.3d 605, 607 (7th Cir. 2007), “[u]nrelated claims against
different defendants belong in different suits, not only to prevent
the sort of morass that a [multi]-claim, [multi]-defendant suit
produced but also to ensure that prisoners pay the required filing
fees. . . . A buckshot complaint that would be rejected if filed
by a free person-say, a suit complaining that A defrauded [him],
B defamed him, C punched him, D failed to pay a debt, and E
infringed his copyright, all in different transactions-should be
rejected if filed by a prisoner.” See also Smith v. Conner, Case
No. 8:12-cv-52-T-30AEP, 2012 WL 1676643 *1 (M.D. Fla. May 14, 2012)
(citing George, 507 F.3d at 607, in a case where a prisoner
plaintiff’s

complaint

raised

unrelated

claims

ranging

from

unreasonable search and seizure to an interference with access to
court).

Thus, Plaintiff may file multiple claims in his amended

complaint only if the claims are directly related to the same basic

- 16 -

issue or incident. Claims that are unrelated must be raised in
separate actions.
In filing an amended complaint, Plaintiff shall not set forth
the “facts” in a narrative chronology, but instead put the facts
in sequentially numbered paragraphs. Rule 10, Federal Rules of
Civil Procedure, requires that all averments of the claim “shall
be made in numbered paragraphs” and limited to “a statement of a
single set of circumstances.” Id. Additionally, Rule 8 requires
that pleadings include a short and plain statement of facts showing
that the pleader is entitled to relief. Id. In filing his Amended
Complaint, Plaintiff is required to comply with these minimal
pleading standards.
Plaintiff must name as defendants only those persons who are
responsible for the particular alleged constitutional violations.
Further, Plaintiff should clearly describe how each named defendant
is involved in the alleged constitutional violation(s) in the body
of the complaint.

Although the complaint need not set forth

detailed factual allegations, a plaintiff is required to provide
more than mere “labels and conclusions” and the factual allegations
“must be enough to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Indeed, the factual allegations must be sufficient “to state a
claim to relief that is plausible on its face.” Id. at 570.

Mere

conclusory statements in support of a threadbare recital of the

- 17 -

elements of a cause of action will not suffice. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The law requires something more “than an
unadorned the-defendant-unlawfully-harmed-me accusation.” Id.
Plaintiff

is

reminded

that

it

is

well

established

that

government agents are “shielded from liability for civil damages
if their actions did not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). When considering a
plaintiff’s

claim

against

a

government

actor

in

his

or

her

individual capacity, the Court generally first determines whether
plaintiff’s

allegations,

if

true,

establish

a

constitutional

violation. Hope, 536 U.S. at 736. To state a plausible claim for
relief, the facts alleged by the Plaintiff must contain sufficient
allegations

to

show

that

the

individual

defendant

personally

participated in the alleged constitutional violation. See, e.g.,
Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003). Indeed,
there is no vicarious liability for constitutional claims against
individual government actors: “[E]ach Government official, his or
her title notwithstanding, is only liable for his or her own
misconduct.” Iqbal, 556 U.S. at 677.
Plaintiff

should

not

include

argument

in

his

amended

complaint. Citations of case law and statutes generally are not
appropriate in a complaint, but rather are included at later stages

- 18 -

of litigation, including a motion to dismiss, motion for summary
judgment, or at the time of trial. Importantly, Plaintiff should
not

attempt

to

use

legal

jargon

in

his

fact

section—it

is

unnecessary; nor should he assert all capital letters in portions
of the fact section.
Finally, Plaintiff should note that an amended complaint
supersedes the filing of the initial complaint and becomes the
operative pleading. Krinks v. SunTrust Banks, Inc., 654 F.3d 1194,
1201 (11th Cir. 2011).

Thus, Plaintiff’s amended complaint must

be complete, including all related claims he wishes to raise, and
must

not

refer

to

the

initial

complaint.

Additionally,

any

affidavits, supporting documents, and/or supplements should be
included with the amended complaint and marked as exhibits.
Accordingly, within FOURTEEN (14) DAYS from the date on this
Order, should he wish to do so, Plaintiff may file an amended
complaint that comports with the strictures of this Order. The
complaint must be captioned “Amended Complaint,” and bear the same
docket

number

as

this

Order.

After

completing

his

amended

complaint, Plaintiff must mail it to the Court with a copy for
each defendant.

Plaintiff is advised that the amended complaint

will completely replace the original complaint and will be subject
to review under 28 U.S.C. § 1915(e)(2)(B).

If Plaintiff does not

file an amended complaint within this time period or if the amended
complaint does not comply with this Order, the amended complaint

- 19 -

will be dismissed without prejudice and the case will be closed.
The Clerk of Court is directed to provide Plaintiff with a copy of
the

standard

civil

rights

complaint

form

for

incarcerated

plaintiffs.
DONE and ORDERED in Fort Myers, Florida on this
of April, 2017.

SA: OrlP-4
Copies: Randal Rosado
Encl: Civil Rights Complaint Packet

- 20 -

25th

day