Bent v. Wilson et al

Filing 75

ORDER granting 42 Motion to Dismiss. Counts I, II, and III of the 40 Amended Complaint are dismissed without prejudice and Count IV is dismissed with prejudice. On or before September 21, 2022, Plaintiff may file an amended pleading to correct the shotgun pleading deficiencies noted in the Order. Failure to timely file an amended pleading in accordance with the Order may result in the dismissal of this case without further notice. Signed by Judge Wendy W. Berger on 9/16/2022. (MDJ)

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 1 of 12 PageID 2116

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CRAIG BENT,
Plaintiff,
v.

Case No. 6:21-cv-75-WWB-EJK

KEVIN WILSON and ROBERT RILEY,
Defendants.

/
ORDER

THIS CAUSE is before the Court on Defendants’ Motion to Dismiss Amended
Complaint (“Motion to Dismiss,” Doc. 42)1 and Plaintiff’s Response (Doc. 44) thereto.
For the reasons set forth below, Defendants’ Motion will be granted.
I.

BACKGROUND
On December 17, 2016, non-parties Cheyanne Arias, Nestor Vinas, and Marc

Hernandez were in a Chevy Malibu near the area of North Powers Drive and Silver Star
Road in Orlando, Florida when Brandon Bascom approached their vehicle with a knife
and stabbed one of the tires. (Doc. 40, ¶¶ 7–8). Hernandez shot Bascom in the torso. (Id.
¶ 9). Bascom then entered a silver vehicle and began to drive in reverse, eventually
crashing into several objects before succumbing to his injuries. (Id.). As Bascom was
getting into the silver vehicle, an “unknown black male” exited a light-colored Chevrolet
vehicle and approached the Malibu, firing numerous shots towards the Malibu. (Id. ¶¶ 10–
The Court notes that Defendants’ Motion fails to comply with this Court’s January
13, 2021 Standing Order. In the interests of justice, the Court will consider the Motion, but
the parties cautioned that future failures to comply with all applicable rules and orders of
this Court may result in the striking or denial of filings without notice or leave to refile.
1

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 2 of 12 PageID 2117

11). Arias exited the Malibu and fled while Hernandez returned fire. (Id. ¶¶ 12–13). The
unknown shooter retreated to the light-colored Chevrolet and fled the scene. (Id. ¶ 14).
None of the occupants of the Malibu could identify the unknown shooter. (Id. ¶ 15).
Defendants, Kevin Wilson and Robert Riley, members of the Orange County
Sheriff’s Office, were assigned to investigate the incident. (Id. ¶¶ 2, 3, 16). During their
investigation, Defendants discovered that Bascom and Plaintiff were acquaintances. (Id.
¶ 17). On December 19, 2016, Natalie Richardson, a witness to the shooting, met with
Defendants to be interviewed. (Id. ¶¶ 19–20). Richardson told Defendants that she had
only seen the shooter from the side and not from the front. (Id. ¶ 21). Defendants
presented Richardson with a photo lineup that included Plaintiff’s picture in the second
spot. (Id. ¶ 22). Richardson told Defendants that she did not get a good look at the shooter
and did not think she could make an identification based on the person’s face. (Id. ¶ 25).
Despite this, Plaintiff alleges that Riley pressured Richardson to pick his photo out of the
lineup, including by falsely telling Richardson that other witnesses had identified Plaintiff
as the shooter from the photo lineup. (Id. ¶¶ 26, 29). Plaintiff alleges that because of
Riley’s pressure, Richardson choose his photo from the lineup and signed her name. (Id.
¶ 31). Wilson was present during this exchange and did not intervene. (Id. ¶¶ 27, 32).
Afterward, Riley drafted a police report that falsely stated Richardson had voluntarily
identified Plaintiff as the shooter and omitted any mention of Richardson’s hesitation or
Riley’s lies and pressure and obtained a warrant for Plaintiff’s arrest. (Id. ¶¶ 34, 36).
Wilson did not intervene to prevent Riley from completing the false report. (Id. ¶ 35).
Plaintiff was arrested on January 31, 2017. (Id. ¶ 37).

2

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 3 of 12 PageID 2118

Plaintiff alleges that he was not involved in the shooting but nonetheless, was
charged with second degree murder, attempted first degree murder, and shooting at or
into an occupied vehicle as a result of Defendants’ actions and inactions. (Id. ¶¶ 38–39).
Plaintiff remained in custody until he was released on bond on June 26, 2019. (Id. ¶ 40).
Plaintiff was subsequently found not guilty of the charges at a jury trial. (Id. ¶ 41). As a
result of the foregoing, Plaintiff filed the Amended Complaint, alleging claims for Unlawful
Pretrial Detention (Count I), Fabrication of Evidence (Count II), Malicious Prosecution
(Count III), and Failure to Intervene (Count IV) pursuant to 42 U.S.C. § 1983.
II.

LEGAL STANDARD
“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).
Where a complaint alleges fraud or mistake, “a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.” Id.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss
a complaint for “failure to state a claim upon which relief can be granted.” In determining
whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the
complaint as true and construes them in a light most favorable to the non-moving party.
See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless,
“the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Furthermore, “[t]o survive a motion to dismiss, a complaint

3

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 4 of 12 PageID 2119

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
III.

DISCUSSION
Riley moves to dismiss Count II of the Amended Complaint and Wilson seeks

qualified immunity as to Count IV. Plaintiff opposes the Motion as to both Defendants.
A.

Count II

Riley argues that Count II should be dismissed because Plaintiff’s fabrication of
evidence claim is a mislabeled claim for malicious prosecution and Plaintiff has failed to
sufficiently allege the elements of such claim. Plaintiff argues that his fabrication of
evidence claim is separate and distinct from his malicious prosecution claim because it
seeks to vindicate his Fourth Amendment right not to be deprived of liberty, whereas the
malicious prosecution claim seeks to vindicate his Fourth Amendment right not to be
prosecuted with malice and without probable cause. Plaintiff offers no binding—or even
persuasive—legal authority explicitly recognizing fabrication of evidence as its own claim
under the Fourth Amendment or articulating the elements of such claim. Instead, Plaintiff
simply asserts that “to state a claim for fabrication of evidence, a plaintiff must allege that
a defendant included false information in an arrest report either knowingly and
intentionally or with reckless disregard for the truth.” (Doc. 44 at 3–4). Yet the cases upon
which Plaintiff relies discuss whether government actors were entitled to qualified
immunity for a false arrest claim, Kingsland v. City of Mia., 382 F.3d 1220, 1223 (11th Cir.

4

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 5 of 12 PageID 2120

2004), and a malicious prosecution claim, Williams v. Aguirre, 965 F.3d 1147, 1152 (11th
Cir. 2020), not the elements for a fabrication of evidence claim. Plaintiff also cites to
Franks v. Delaware, 438 U.S. 154 (1978), the landmark Supreme Court case “requir[ing]
a district court to hold a hearing if a defendant makes a substantial showing that: (1) a
warrant affiant made intentionally false or recklessly misleading statements or omissions
and (2) those statements or omissions were necessary to the finding of probable cause[,]”
United States v. Jones, 847 F. App’x 830, 834 (11th Cir. 2021) (citing Franks, 438 U.S.
at 155–56), without any explanation or discussion. Further, Plaintiff’s reliance on
McDonough v. Smith for the proposition that fabrication of evidence is a recognized claim
is misplaced because the Court explicitly “assume[d] without deciding” that the fabrication
of evidence and malicious prosecution claims were distinct. 139 S. Ct. 2149, 2155 (2019).
The Court further notes that the fabrication of evidence claim addressed in McDonough
was raised under the Due Process Clause of the Fourteenth Amendment, not the Fourth
Amendment. Id. Thus, the Court is not convinced that Plaintiff has or can state a distinct
claim for fabrication of evidence under the Fourth Amendment because, as pleaded,
Count II is either duplicative of Count I or fails to sufficiently allege an alternative claim for
malicious prosecution.
First, Count II is duplicative of Plaintiff’s unlawful pretrial detention claim because
both claims rely on Riley’s purportedly false or misleading statements to obtain an arrest
warrant and Plaintiff’s subsequent detention. (Doc. 40, ¶¶ 42–49). “Duplicative claims are
those that stem from identical allegations, that are decided under identical legal
standards, and for which identical relief is available. To promote judicial economy, a court
should dismiss claims that are duplicative of other claims.” Manning v. Carnival Corp.,

5

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 6 of 12 PageID 2121

No. 12-22258-CIV, 2012 WL 3962997, at *2 (S.D. Fla. Sept. 11, 2012) (citation and
quotations omitted); see also Diaz v. Medline Indus., Inc., No. 20-24952-CIV, 2021 WL
2075422, at *2 (S.D. Fla. Feb. 24, 2021). Therefore, to the extent that the claims are
based on the same factual allegations and seek to vindicate the same harm, Count II
should be dismissed.
In the alternative, to the extent Plaintiff instead intended to vindicate the harm
arising from his prosecution, as opposed to his arrest and detention, the Court agrees
that the claim is a mislabeled claim for malicious prosecution and Plaintiff has not
sufficiently alleged such a claim. “[I]n the Eleventh Circuit, a fabrication-of-evidence claim
is really just a species of malicious prosecution” because it “vindicates [ ] the right not to
be prosecuted with fabricated evidence.” Watkins v. Session, No. 19-60810-CIV, 2021
WL 663762, at *10 (S.D. Fla. Feb. 19, 2021) (collecting cases). Because the Court finds
that Plaintiff has failed to come forward with persuasive authority to the contrary and
Plaintiff does not dispute that he has failed to meet the elements of a malicious
prosecution claim, Count II can also be dismissed on these grounds.
B.

Count IV

In Count IV, Plaintiff alleges that Wilson was present when Riley unduly coerced
Richardson into identifying Plaintiff and had the opportunity to prevent Riley’s misconduct
during the photo array and subsequent use of the report that caused Plaintiff to be
arrested and detained but failed to do so. (Doc. 40, ¶¶ 56–61). Wilson argues that he is
entitled to qualified immunity as to Count IV. In response, Plaintiff argues that Defendants’
Motion as to Count IV must be denied as premature.

6

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 7 of 12 PageID 2122

“In order to receive qualified immunity, the public official must first prove that he
was acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation omitted). “The
question is ‘whether the act complained of, if done for a proper purpose, would be within,
or reasonably related to, the outer perimeter of an official’s discretionary duties.’” Hargis
v. City of Orlando, No. 6:12-cv-723-Orl, 2012 WL 6089715, at *3 (M.D. Fla. Dec. 7, 2012)
(quoting Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir. 2006)). There
is no dispute that Wilson was acting within his discretionary duties when he accompanied
Riley during Richardson’s interview. Eubanks v. Freburger, No. 11-60714-CIV, 2012 WL
4936061, at *3 (S.D. Fla. Oct. 17, 2012) (“Actions such as investigating crimes and
questioning witnesses fall within the scope of a law enforcement officer’s discretionary
authority.”).
Where, as here, the defendant has established that he was acting within the scope
of his discretionary authority, the burden shifts to the plaintiff to prove that the defendant
“(1) . . . violated a constitutional right, and (2) this right was clearly established at the time
of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th
Cir. 2004). The two prongs of the qualified immunity analysis may be addressed in either
order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). “[I]t is proper to grant a motion
to dismiss on qualified immunity grounds when the complaint fails to allege the violation
of a clearly established constitutional right.” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th
Cir. 2019) (quotation omitted). “For a right to be clearly established, ‘[t]he contours of the
right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.’” Id. at 1311 (quoting Anderson v. Creighton, 483 U.S. 635, 640

7

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 8 of 12 PageID 2123

(1987)). “[I]n the light of the pre-existing law[,] the unlawfulness must be apparent.” Id. at
1312 (quoting Loftus v. Clark-Moore, 690 F.3d 1200, 1205 (11th Cir. 2012)). “[A] plaintiff
cannot strip a § 1983 defendant of his qualified immunity by citing to general rules or
abstract rights.” Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999).
Plaintiff has failed to point this Court to any controlling authority that requires a law
enforcement officer to intervene when another officer coerces a witness or includes
misleading information in an arrest affidavit. In his briefing, Plaintiff points to case law
establishing that in the context of a warrantless arrest, a non-arresting officer “may be
liable if he knew the arrest lacked any constitutional basis and yet participated in some
way.” Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013); see also Buress v. City
of Mia., No. 21-12131, 2022 WL 2161438, at *3 (11th Cir. 2022). Plaintiff has not,
however, demonstrated that the law was clearly established that an officer can be liable
under the circumstances of this case, where Wilson was allegedly aware that the arrest
affidavit prepared by Riley contained misleading information. See Rowe v. City of Fort
Lauderdale, 279 F.3d 1271, 1281 (11th Cir. 2002) (“[T]his Court has held that a police
officer did not violate clearly established law merely by failing to act in the face of
knowledge that another officer had fabricated a confession.”); see also McGuire v. City of
Montgomery, No. 2:11-CV-1027, 2013 WL 1336882, at *14 (M.D. Ala. Mar. 29, 2013) (“[I]t
is unclear whether the duty to intervene exists for constitutional deprivations other than
excessive force.”); Lewis v. Blue, No. 2:09-CV-862, 2010 WL 730210, at *6 (M.D. Ala.
Mar. 3, 2010) (“[C]ase law seems to indicate that failure to intervene claims are cognizable
only

when

related

to

excessive

force

violations.”);

Heine

v.

Rice,

No.

8:00CV2297T24TBM, 2001 WL 1338780, at *8 (M.D. Fla. Apr. 9, 2001) (holding that a

8

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 9 of 12 PageID 2124

law enforcement officer was entitled to qualified immunity where the plaintiff failed to show
clearly established law that requires an officer to intervene when another officer omits
information from a warrant affidavit). Plaintiff has failed to meet his burden. Thus, Wilson
is entitled to qualified immunity, and Count IV will be dismissed accordingly.
C.

Shotgun Pleading

Nevertheless, this does not end the Court’s inquiry. Upon review, the Court finds
that the Amended Complaint continues to be an impermissible shotgun pleading. “The
failure to identify claims with sufficient clarity to enable the defendant to frame a
responsive pleading constitutes a ‘shotgun pleading.’” Beckwith v. BellSouth Telecomms.
Inc., 146 F. App’x 368, 371 (11th Cir. 2005) (citing Byrne v. Nezhat, 261 F.3d 1075, 1029–
30 (11th Cir. 2001)). “Shotgun pleadings wreak havoc on the judicial system” and “divert
already stretched judicial resources into disputes that are not structurally prepared to use
those resources efficiently.” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279
(11th Cir. 2006) (quotation omitted). As such, “[w]hen presented with a shotgun complaint,
the district court should order repleading sua sponte.” Ferrell v. Durbin, 311 F. App’x 253,
259 n.8 (11th Cir. 2009); see also Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc.,
162 F.3d 1290, 1333 (11th Cir. 1998) (noting that shotgun pleadings drain judicial
resources, and the district should act sua sponte to define the issues at the earliest
possible stage).
The Eleventh Circuit has defined four types of shotgun pleadings. “The most
common type—by a long shot—is a complaint containing multiple counts where each
count adopts the allegations of all preceding counts, causing each successive count to
carry all that came before and the last count to be a combination of the entire complaint.”

9

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 10 of 12 PageID 2125

Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 (11th Cir. 2015). The
second most common type “is a complaint that . . . is guilty of the venial sin of being
replete with conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action.” Id. at 1322. “The third type of shotgun pleading is one that
commits the sin of not separating into a different count each cause of action or claim for
relief.” Id. at 1322–23. “Fourth, and finally, there is the relatively rare sin of asserting
multiple claims against multiple defendants without specifying which of the defendants
are responsible for which acts or omissions, or which of the defendants the claim is
brought against.” Id. at 1323.
On September 1, 2021, this Court warned Plaintiff that his Amended Complaint
(Doc. 38) constituted an impermissible shotgun pleading and was subject to immediate
dismissal because each count adopted the allegations of all preceding counts. (Doc. 39
at 1; see also Doc. 38, ¶¶ 37, 43, 47). Plaintiff was granted leave to file an amended
pleading and was warned that the “[f]ailure to timely file an amended pleading that
corrects the deficiencies noted in . . . this Order and that complies with all applicable rules
and orders may result in the dismissal of this case without further notice.” (Doc. 39 at 2).
Despite this warning, Plaintiff’s Amended Complaint, inexplicably, remains a shotgun
pleading because Counts II, III, and IV incorporate by reference all preceding paragraphs
with the phrase “[a]s described above[.]” (Doc. 40, ¶¶ 47, 50, 56). Notably, while Counts
II, III, and IV incorporate all that comes before it, Count I neglects to incorporate any of
the factual allegations in the complaint and, thus, arguably, fails to state a claim.
Accordingly, the Amended Complaint will be dismissed in its entirety. Although the Court
is not required to grant Plaintiff further leave to amend at this juncture, Plaintiff will be

10

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 11 of 12 PageID 2126

granted leave to file one last amended pleading to address the shotgun pleading issue,
but he is cautioned that failure to correct the deficiencies noted herein may result in the
dismissal of any amended pleading with prejudice. See Barmapov v. Amuial, 986 F.3d
1321, 1326 (11th Cir. 2021).
IV.

CONCLUSION
Therefore, it is ORDERED and ADJUDGED as follows:
1. Defendants’ Motion to Dismiss (Doc. 42) is GRANTED.
2. Counts I, II, and III of the Amended Complaint (Doc. 40) are DISMISSED
without prejudice.
3. Count IV of the Amended Complaint (Doc. 40) is DISMISSED with
prejudice. The Clerk is directed to terminate Kevin Wilson as a defendant
in this matter and amend the case style accordingly.
4. On or before September 21, 2022, Plaintiff may file an amended pleading
to correct the shotgun pleading deficiencies noted herein only. Plaintiff is
not permitted to replead Count II or make any additional factual allegations
or claims. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541,
542 (11th Cir. 2002). Failure to timely file an amended pleading in
accordance with this Order may result in the dismissal of this case without
further notice.
DONE AND ORDERED in Orlando, Florida on September 16, 2022.

11

Case 6:21-cv-00075-WWB-EJK Document 75 Filed 09/16/22 Page 12 of 12 PageID 2127

Copies furnished to:
Counsel of Record

12