Shaw v. Scerbo et al

Filing 28

OPINION and ORDER granting 19 without prejudice Defendants' Motion to Dismiss. Plaintiff may file a second amended complaint within FOURTEEN days from the date of this ORDER. See ORDER for further details. Signed by Judge John E. Steele on 8/1/2022. (TLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM S. SHAW,
Plaintiff,
v.

Case No:

2:22-cv-00105-JES-NPM

C.J. SCERBO, JAMES IVERSON,
JIM FITZGERALD, and GILBERTO
FREITAS,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendants
C.J. Scerbo, James Iversen, Jim Fitzgerald, and Gilberto Freitas’1
Motion to Dismiss Plaintiff’s Amended Complaint (Doc. #19) filed
on May 3, 2022.

Defendants filed a Supplement to Motion to Dismiss

(Doc. #20) on May 4, 2022.

Plaintiff did not file a response, and

the time to do so has passed.

For the reasons set forth below,

the motion is granted without prejudice.
I.
This is a pro se action brought by plaintiff William S. Shaw
(Plaintiff) against several security officers that arose from
Plaintiff’s attempt to leave Healthpark Medical Center against

Defendants advise that previously named defendants Miguel
Olivencia and Brian Hornsby were not served with the original
complaint and have not made an appearance in this matter. (Doc.
#19, p. 1.) The Court also terminated Healthpark Medical Center as
a named defendant on April 15, 2022.
1

medical advice.
and

Order

On March 25, 2022, the Court issued an Opinion

dismissing

Plaintiff’s

original

Complaint

without

prejudice as a shotgun pleading, except claims pertaining to
Florida State criminal violations under § 784.011, § 784.03, §
787.02, and § 784.021 and HIPAA violations pursuant to 42 U.S.C.
§ 1320d-6, which were dismissed with prejudice for failure to state
a claim. (Doc. #9, pp. 7, 11-12.) The Court explained why the
initial Complaint was a shotgun pleading and directed Plaintiff to
additional resources for filing a complaint. (Id., pp. 7-8.)
Plaintiff was granted leave to amend his Complaint so he could fix
the deficiencies. (Id., p. 12.) On April 12, 2022, Plaintiff filed
an Amended Complaint. (Doc. #14.)
Like the original complaint, the Amended Complaint alleges
that he was a patient at Healthpark Medical Center (Healthpark) in
Lee County, Florida.

(Doc. #14, p. 1.) Defendants C.J. Scerbo,

James Iversen, Jim Fitzgerald, and Gilberto Freitas (collectively
Defendants) worked at Healthpark as security officers throughout
the duration of Plaintiff’s medical care. (Id.) Plaintiff alleges
that

the

Defendants

approached

him

in

an

aggressive

manner,

illegally detained him at Healthpark, sought to remove an internal
medical device from his body, placed his life in danger, and
unlawfully accessed and released his medical information to the
public. (Id., ¶¶ 1-9.) Plaintiff alleges that he suffered physical

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injuries and emotional stress and trauma as a result of the
Defendants’ actions. (Id., p. 2.)
Read liberally, the Amended Complaint alleges the following
claims2 against Defendants: (1) assault and battery; (2) unlawful
demand to remove an internal medical device; (3) false imprisonment
and false arrest; (4) negligence and breach of contract; and (5)
unlawful release of medical information. (Doc. #14, ¶¶ 1-9.)
Plaintiff seeks a total of $9 Million in damages. (Id., p. 2.)
Defendants urge the Court to dismiss Plaintiff’s Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
because it is a “classic rambling shotgun pleading” and fails to
state a claim upon which relief may be granted. (Doc. #19, pp. 26.)

The Court is persuaded by the second argument.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

In addition to the allegations against Defendants, the
Amended Complaint appears to set forth motions to suppress and
compel, and a request for legal representation pursuant to Fla.
Stat. § 27.40 (Doc. #14, ¶¶ 1-4.) To the extent Plaintiff intended
to file any such motion or request, a complaint is not the
appropriate vehicle for doing so. Rather, Plaintiff must comply
with Local Rule 3.01 when filing any motions, or he may go to
https://fedcourts.sharepoint.com/sites/FLMD/SitePages/Pro-BonoAttorneys.aspx for a list of attorneys who may be willing to assist
him with his case.
2

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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).
than

an

unadorned,

accusation.”

Ashcroft

This requires “more

the-defendant-unlawfully-harmed-me

v.

Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
A pro se amended complaint is to be liberally construed and
“held to less stringent standards than complaints drafted by
lawyers.”

Stephens v. DeGiovanni, 852 F.3d 1298, 1318 n.16 (11th

Cir. 2017).

Liberal construction means that a federal court

sometimes must "look beyond the labels used in a pro se party's
complaint

and

focus

on

the

content

and

substance

of

the

allegations" to determine if a cognizable remedy is available.
Torres v. Miami-Dade Cty., Fla., 734 F. App'x 688, 691 (11th Cir.
2018).

Yet, there are limits to the court’s flexibility as it

does not have the “license to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order to
sustain an action.”

Campbell v. Air Jamaica Ltd., 760 F.3d 1165,

1168-69 (11th Cir. 2014).

A pro se pleading “must suggest (even

if inartfully) that there is at least some factual support for a
claim; it is not enough just to invoke a legal theory devoid of

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any factual basis.”

Jones v. Fla. Parole Comm’n, 787 F.3d 1105,

1107 (11th Cir. 2015).
III.
The Court will address the merits of Defendants’ motion to
dismiss below.
A. Shotgun Pleading
Defendants

assert

that

the

Amended

Complaint

shotgun complaint which should be dismissed.

remains

a

A shotgun pleading

is "replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action. The unifying
characteristic of . . . shotgun pleadings is that they fail to one
degree

or

another,

and

in

one

way

or

another,

to

give

the

defendants adequate notice of the claims against them and the
grounds upon which each claim rests."

Weiland v. Palm Beach Cty.

Sheriff's Office, 792 F.3d 1313, 1322 (11th Cir. 2015).
Plaintiff appears to have attempted to correct at least some
of the deficiencies in the original Complaint.

The Amended

Complaint sets forth eight paragraphs which attempt to set forth
claims.

While the Amended Complaint is not a “shotgun” pleading,

its allegations are vague and insufficient, generally asserting
legal conclusions rather than facts.
violates

Rule 8 and

As discussed below, this

is insufficient to

enable Defendants to

properly frame a response. See LaCroix v. W. Dist. of Ky., 627 F.
App'x 816, 818 (11th Cir. 2015).

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B. Failure to State A Claim
Defendants argue that Plaintiff’s Amended Complaint should
also

be

dismissed

because

it

fails

to

sufficiently

allege

recognized causes of action or the necessary elements of each cause
of action for which relief may be granted. (Doc. #19, p. 4.)

The

Court agrees.
Although the Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to
plaintiff when considering a Rule 12(b)(6) motion to dismiss,
Erickson v. Pardus, 551 U.S. 89 (2007), “[l]egal conclusions
without adequate factual support are entitled to no assumption of
truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011)
(citations
consistent

omitted).
with

a

facially plausible.”

“Factual

defendant’s

allegations
liability

that

fall

are

short

of

merely
being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (citations omitted).
(1)

Assault and Battery

The Amended Complaint alleges that Plaintiff was assaulted
when security approached him in an aggressive manner “stepping 1
foot in my face terriffiyig [sic] me a [sic] as I believed they
were going to harm me.” (Doc. #14, ¶ 1.)

Plaintiff also alleges

that he was repeatedly and constantly assaulted and battered, but
he provides no factual support.

(Id., ¶¶ 2, 4.)

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“Under Florida law, assault and battery are two distinct
torts.” Bercini v. City of Orlando, No. 6:15-cv-1921-Orl-41TBS,
2016 U.S. Dist. LEXIS 195772, at *22 (M.D. Fla. Sep. 30, 2016)
“[A]n assault is defined as ‘an intentional, unlawful threat by
word or act to do violence to the person of another, coupled with
an apparent ability to do so, and doing some act which creates a
well-founded fear in such other person that such violence is
imminent.’" Watkins v. Johnson, 853 F. App'x 455, 461 (11th Cir.
2021) (quoting Fla. Stats. § 784.011(1)). "[A] battery consists of
the intentional infliction of a harmful or offensive contact upon
the person of another." Sullivan v. Atl. Fed. Sav. & Loan Ass'n,
454 So. 2d 52, 54 (Fla. 4th DCA 1984).
Taking the factual allegations in the Amended Complaint as
true, Plaintiff has failed to plausibly allege a claim for assault
or battery.

The Amended Complaint does not allege that any of the

Defendants made an intentional unlawful threat or intentionally
inflicted harmful or offensive contact upon Plaintiff.

Stating

that all defendants stepped within a foot in an aggressive manner
is

not

sufficient

Plaintiff

only

to

state

provides

a

legal

plausible

claim.

conclusions

with

Furthermore,
no

factual

allegations from which the Court could infer that Plaintiff was
assaulted or battered by Defendants. See Mamani, 654 F.3d 1148,
1153.

Defendants are entitled to dismissal of Plaintiff’s claims

for assault and battery under Rule 12(b)(6).

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(2)

Unlawful Demand To Remove An Internal Medical Device

The Amended Complaint alleges that the security officers made
multiple unlawful demands upon Plaintiff to allow them to remove
an internal medical device from his body without any doctor
ordering them to do so. (Doc. #14, ¶ 3.)

Defendants respond that

this claim should be dismissed because these allegations do not
state a recognized cause of action upon which relief may be
granted, nor do Defendants have the medical training or ability to
remove medical devices.

(Doc. #19, p. 4.)

Even liberally construing these allegations, a claim that the
Defendants sought to be allowed to remove a medical device from
Plaintiff’s body fails to state a plausible claim.

See Iqbal, 556

U.S. at 678-79. Defendants’ authority or training to remove an
internal

medical

device

has

no

particular

relevance.

Thus,

Plaintiff has failed to allege a cognizable claim upon which relief
may be granted, and Defendants’ motion is therefore granted as to
this claim.
(3)

False Imprisonment and False Arrest3

The Amended Complaint alleges that Plaintiff was falsely
imprisoned and arrested when “all security circle [sic] [him] so

The Amended Complaint alleges that the Lee County Sheriff’s
Office directly caused Plaintiff’s unlawful arrest and resulting
physical and emotional injuries. (Doc. #14, ¶ 8.) However, the
Lee County Sheriff’s Office is not named as a defendant in this
matter.
3

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tightly [he] could not move, refusing to allow [him] to leave for
1 hour and 43 min[utes].” (Doc. #14, ¶¶ 4, 7.) Defendants argue
that Plaintiff has failed to plead the required elements to state
a false imprisonment or false arrest cause of action, and therefore
they are entitled to dismissal of these claims. (Doc. #19, pp. 45.)
Under Florida law, "[f]alse imprisonment is the unlawful
restraint of a person against his will, the gist of which action
is the unlawful detention of the plaintiff and deprivation of his
liberty." Archer v. City of Winter Haven, 846 F. App'x 759, 763
(11th Cir. 2021) (quoting Johnson v. Weiner, 155 Fla. 169, 19 So.
2d 699, 700 (Fla. 1944)). False arrest and false imprisonment
constitute interrelated causes of actions. Mathis v. Coats, 24 So.
3d

1284,

1289

(Fla.

Dist.

Ct.

App.

2010).

However,

"false

imprisonment is a broader common law tort[,] [and] false arrest is
only one of several methods of committing false imprisonment." Id.
For a false arrest or false imprisonment claim under Florida
law, Plaintiff must plead and ultimately prove four elements: "1)
the unlawful detention and deprivation of liberty of a person 2)
against that person's will 3) without legal authority or 'color of
authority' and 4) which is unreasonable and unwarranted under the
circumstances." Florez v. Broward Sheriff's Off., 270 So. 3d 417,
421 (Fla. 4th DCA 2019); City of Boca Raton v. Basso, 242 So. 3d
1141, 1143 (Fla. 4th DCA 2018).

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Plaintiff has failed to allege a plausible claim for false
imprisonment or arrest.

While the Court may infer that Plaintiff

believed he was being detained against his will when security
officers

encircled

him,

there

are

no

factual

allegations

establishing that the detention was unlawful or was unreasonable
under the circumstances.

Thus, Plaintiff has failed to state a

claim for false imprisonment or arrest, and dismissal of these
claims are warranted.
(4)

Negligence and Breach of Contract

Liberally construing the Amended Complaint, Plaintiff appears
to allege that the Defendants acted negligently by failing to
provide patient safety, or may have breached a contractual duty.
(Doc. #14, ¶ 6.) More specifically, it states “[n]egligent in duty
and violates contract in duty. All security owed me patient safey
[sic]. They place me in a constant position . . . where my life is
constantly in danger.”4 (Id.)
The

Court

finds

that

Plaintiff

has

failed

to

state

a

negligence claim upon which relief may be granted under Rule

As a hospital patient, Plaintiff was a business invitee on
Healthpark’s property. See Hammer v. Lee Memorial Health Sys., No.
2:18-cv-347, 2018 U.S. Dist. LEXIS 130583, 2018 WL 3707832, at *3
n.1 (M.D. Fla. Aug. 3, 2018) (citing Post v. Lunney, 261 So. 2d
146, 147-48 (Fla. 1972)("A hospital patient is a business invitee
under Florida law.")). While Healthpark may have a duty to take
ordinary and reasonable care to keep its premises reasonably safe
for invitees like Plaintiff, Delgado v. Laundromax, Inc., 65 So.
3d 1087, 1089 (Fla. 3d DCA 2011), Healthpark is not a named
defendant in this matter.
4

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12(b)(6).

A claim for negligence requires: (1) the existence of

a duty; (2) breach of that duty; (3) the breach of the duty was
the proximate cause of injury; and (4) actual loss or damages.
Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383,
392 (Fla. 2d DCA 2018). Here, Plaintiff has not sufficiently
alleged any facts demonstrating that each Defendant owed Plaintiff
a duty to keep him safe, or that a breach of that duty was the
proximate cause of any injury.

The Court therefore dismisses

Plaintiff’s negligence claim.
To the extent Plaintiff is alleging that Defendants breached
a contractual duty, he also fails to state such a claim showing he
is entitled to relief. Under Florida law, a breach of contract
claim requires the existence of a valid contract between the
parties, a material breach of that contract, and resulting damages.
Havens v. Coast Fla., 117 So. 3d 1179, 1181 (Fla. 2d DCA 2013).
The Amended Complaint fails to identify a contract to which any of
the Defendants were a party, or how such a contract was breached,
which leaves the Court with only Plaintiff’s bare assertion that
Defendants breached a contractual duty.

This manner of pleading

will not suffice. See Mamani, 654 F.3d 1148, 1153 (11th Cir. 2011)
(“[l]egal

conclusions

without

adequate

factual

support

are

entitled to no assumption of truth.”). Defendants’ motion to
dismiss this claim is granted.

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(5)
The

Unlawful Release of Medical Information

Amended

Complaint

alleges

that

Plaintiff’s

medical

records were illegally accessed, stolen, and released to the
public. (Doc. #14, ¶¶ 2, 8-9.)

In the Court’s previous Opinion

and Order regarding Defendants’ motion to dismiss the original
Complaint,

Plaintiff’s

claim

for

unlawful

disclosure

of

his

medical records pursuant to the Health Insurance Portability and
Accountability Act (HIPAA) was dismissed with prejudice as there
is no private right of action.

(Doc. #9, p. 11.)

While the

Amended Complaint does not assert any HIPAA cause of action per
se, it fails to provide any legal basis on which Defendants could
be held liable for releasing medical records. See Iqbal, 556 U.S.
at 678-79 (“Threadbare recitals of the elements of a cause of
action,

supported

suffice.”).

by

mere

conclusory

statements,

do

not

Accordingly, dismissal as to any claim for unlawful

release of medical records is granted.
The Court will provide Plaintiff one final opportunity to
remedy the deficiencies noted in the Amended Complaint.

If the

second amended complaint is a shotgun pleading or fails to set
forth any claim upon which relief may be granted, the Court will
dismiss it with prejudice. See Cummings v. Mitchell, No. 20-14784,
2022 WL 301697, 2022 U.S. App. LEXIS 3036, at *1 (11th Cir. Feb.
2, 2022)(finding the district court did not abuse its discretion
by

dismissing

the

plaintiff's

second

- 12 -

amended

complaint

with

prejudice on shotgun pleading grounds because she failed to correct
the specific defects despite having a meaningful chance to fix
it).
The Court reemphasizes some general instructions for filing
a second amended complaint — it must (1) assert each claim in a
separate

numbered

count;

(2)

clearly

identify

the

specific

defendant(s) against whom each claim is asserted; (3) clearly
explain the factual allegations supporting each claim and their
application to each defendant against whom the claim is asserted;
(4)

avoid

vague,

generalized,

conclusory,

contradictory

or

irrelevant assertions; and (5) avoid incorporating prior counts
into those which follow.
Accordingly, it is hereby
ORDERED:
1.

The Amended Complaint (Doc. #14) is DISMISSED without
prejudice.

2.

Plaintiff may file a second amended complaint within
FOURTEEN (14) DAYS from the date of this Order.

Failure

to do so will result in closure of the case without
further order.
3.

If and when filed, Defendants shall answer or otherwise
respond to the second amended complaint within FOURTEEN
(14) DAYS of the date of service.

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DONE and ORDERED at Fort Myers, Florida, this __1st__ day of
August, 2022.

Copies:
Parties of Record

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