Hoffman v. Smith et al

Filing 37

ORDERED: Defendants' Motion to Dismiss (Doc. 35) is GRANTED. Plaintiff's malicious prosecution claims are DISMISSED without prejudice. On or before September 14, 2024, Plaintiff must file a third amended complaint to either amend or drop his malicious prosecution claims. Signed by Judge Sheri Polster Chappell on 8/30/2024. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JERRY L. HOFFMAN,
Plaintiff,
v.

Case No.: 2:24-cv-111-SPC-KCD

T. SMITH and CITY OF PUNTA
GORDA,
Defendants.

/
OPINION AND ORDER

Before the Court are Defendants’ Motion to Dismiss (Doc. 35) and
Plaintiff’s Response (Doc. 36). For the below reasons the Court grants the
motion.
Plaintiff Jerry Hoffman represents himself in this suit against
Defendants City of Punta Gorda and Officer T. Smith. In his second-amended
complaint, Plaintiff alleges that he was waiving a flag with political speech on
a public sidewalk when Defendant Smith wrote him a citation for a fine.
Defendants then “maliciously attempted to prosecute” Plaintiff “on three
different occasions[.]” (Doc. 33 at 4). Defendants move to dismiss the malicious
prosecution claims, arguing that “Plaintiff does not allege that he was charged
with any crime, received legal process with respect to any charge, or that he
was seized after any legal process.” (Doc. 35 at 4).

To survive a Rule 12(b)(6) motion, a plaintiff must plead enough facts to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). A claim is plausible when a plaintiff “pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. A plaintiff must provide
more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 554,
555 (2007). A formulaic recitation of the elements of a cause of action will not
be enough. Id. “Factual allegations must be enough to raise a right above the
speculative level[.]” Id. When considering a motion to dismiss, courts must
accept all factual allegations in the complaint as true and view them in the
light most favorable to the plaintiff. See Iqbal, 556 U.S. at 678.
Pro se complaints are construed liberally and held to less stringent
standards than formal pleadings that lawyers draft.

See Campbellv. Air

Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But the leniency has
limits. Courts neither “serve as de facto counsel for a [pro se] party,” nor
“rewrite an otherwise deficient pleading in order to sustain an action.” Id. at
1168-69 (citation omitted); see also Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989) (pro se litigants are “subject to the relevant law and rules of court,
including the Federal Rules of Civil Procedure”).
Under § 1983, Hoffman must allege (1) a violation of a constitutional
right, and (2) that the alleged violation was committed by a person acting
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under the color of state law. Brennan v. Thomas, 780 F. App’x 813, 820 (11th
Cir. 2019). The first element is at issue. Plaintiff confirms that he is asserting
First Amendment claims and Fourth Amendment malicious prosecution
claims.

(Doc. 36 at 5).

But he has not sufficiently alleged malicious

prosecution.
Malicious prosecution requires Plaintiff to allege “(1) that the defendant
violated his Fourth Amendment right to be free from seizures pursuant to legal
process and (2) that the criminal proceedings against the plaintiff terminated
in his favor.” Colon v. Smith., No. 22-14106, 2024 WL 3898011, at *7 (11th
Cir. Aug. 22, 2024) (cleaned up). So, a malicious prosecution claim “must be
premised on a seizure pursuant to legal process, such as a warrant-based arrest
or a seizure following an arraignment, indictment, or probable-cause hearing.”
Id. (cleaned up).
Plaintiff alleges that he was issued a citation and that Defendants
“maliciously attempted to prosecute Plaintiff . . . on three different occasions[.]”
(Doc. 33). To the extent Plaintiff argues that he was seized pursuant to legal
process while Defendant Smith issued the citation, this cannot support his
claim. See Orban v. City of Tampa, No. 804CV1904T23MAP, 2006 WL 890149,
at *2 (M.D. Fla. Apr. 5, 2006) (holding that while a traffic citation could initiate
a prosecution, “only a seizure occurring after the issuance of the citation may
serve as a predicate for a Section 1983 malicious prosecution claim[.]”). Rather,
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Plaintiff must allege that he was seized in relation to his prosecution. See
Naylor v. Melendez, No. 2:15-CV-593-FTM-99CM, 2016 WL 1367143, at *2
(M.D. Fla. Apr. 6, 2016) (“Under the second prong of a § 1983 malicious
prosecution claim, the plaintiff bears the burden of proving that he was seized
in relation to the prosecution, in violation of his constitutional rights.”).
Because it is unclear whether Plaintiff can allege facts showing he was
deprived of his liberty in this way, the Court will grant him leave to amend.
Accordingly, it is now
ORDERED:
1. Defendants’ Motion to Dismiss (Doc. 35) is GRANTED.
2. Plaintiff’s malicious prosecution claims are DISMISSED without
prejudice. On or before September 14, 2024, Plaintiff must file a
third amended complaint to either amend or drop his malicious
prosecution claims.
DONE and ORDERED in Fort Myers, Florida on August 30, 2024.

Copies: All Parties of Record

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