Chinelo v. City of Daytona Beach et al

Filing 43

ORDER denying 40 Motion to Dismiss; denying 41 Motion to Dismiss; denying 42 Motion to Dismiss. Signed by Judge John Antoon II on 10/30/2011. (EK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MADU J. CHINELO,
Plaintiff,
-vs-

Case No. 6:11-cv-45-Orl-28KRS

CITY OF DAYTONA BEACH, MICHAEL
CHITWOOD, SGT. HARRIS,
Defendants.
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ORDER
This cause is before the Court on the motions to dismiss (Docs. 40, 41, & 42) filed by
Defendants Harris, Chitwood, and City of Daytona Beach, respectively. Defendants assert
that the Second Amended Complaint (Doc. 37) filed by the pro se Plaintiff, Madu Chinelo,
(“Plaintiff”), fails to state claims against them.
“A pleading that states a claim for relief 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). “‘[D]etailed
factual allegations’” are not required, but “[a] pleading that offers ‘labels and conclusions’ or
‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S.
at 570).

“‘Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.’” Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998)). “Thus, wildly implausible allegations in the complaint should not be taken as true,
but the court ought not penalize the litigant for linguistic imprecision in the more plausible
allegations.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).
In Count I, Plaintiff alleges that Defendant Harris conducted an unreasonable search
of premises in violation of the Fourth Amendment; in Count II, he alleges a claim of malicious
prosecution against Defendant Harris; and in Count III, he alleges that his person was
unreasonably searched and seized by Defendant Harris. Defendant Harris challenges
Counts I and II, asserting that the factual allegations of the Complaint are insufficient to put
her on notice of the basis of the claims and that the allegations fail to state a claim.
However, in light of Plaintiff’s pro se status and the liberal construction to be afforded his
Second Amended Complaint, the Court finds these counts sufficiently stated.
In Count IV, Plaintiff alleges a claim against Defendant Chitwood, the Chief of Police,
for “develop[ing] a practice and custom of consistently violating the constitutional rights . .
. and especially the Fourth Amendment within the African-American community” and that this
practice and custom led to the constitutional violations committed by Defendant Harris in
Counts I through III. Again, affording the pro se Plaintiff the benefit of a liberal construction,
Count IV will be allowed to proceed.
Finally, in Count V, Plaintiff alleges a claim against the City for liability for “the acts of
its employees . . . committed in bad faith.” Although respondeat superior is not a basis for
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imposing municipal liability under 42 U.S.C. § 1983, Plaintiff has alleged a practice and
custom in Count IV against Defendant Chitwood. Reading Count V in conjunction with and
in light of Count IV, Count V will be permitted to proceed as a claim alleging municipal liability
based on a practice or custom rather than respondeat superior.
Accordingly, it is ORDERED and ADJUDGED that the motions to dismiss (Docs. 40,
41, & 42) filed by Defendants Harris, Chitwood, and the City of Daytona Beach, respectively,
are DENIED.
DONE and ORDERED in Orlando, Florida this 30th day of October, 2011.

Copies furnished to:
Counsel of Record
Unrepresented Party

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