MacIntyre v. City of Palm Bay et al

Filing 43

ORDER. McDonald and Mitchell's motion (Dkt. 20) is GRANTED. Escandon's motion (Dkt. 37) is GRANTED. Counts I, II, V, and VI of Plaintiff's complaint are DISMISSED with prejudice. Counts III and IV of Plaintiff's complaint a re DISMISSED without prejudice under 28 U.S.C. § 1367(c)(3). The Clerk is DIRECTED to enter judgment in favor of Defendants as to Counts I, II, V, and VI, to terminate any pending deadlines and motions, and to close this case. Signed by Judge Julie S. Sneed on 3/6/2025. (JWM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SCOTT MACINTYRE,
Plaintiff,
v.

Case No: 6:24-cv-988-JSS-RMN

CITY OF PALM BAY, OFFICER
JUAN CASTRO ESCANDON,
OFFICER COLE MCDONALD, and
OFFICER DERRICK MITCHELL,
Defendants.
___________________________________/
ORDER
Defendants Juan Castro Escandon, Cole McDonald, and Derrick Mitchell
move to dismiss the complaint. (Dkts. 20, 37.) Plaintiff, Scott MacIntyre, opposes the
motions. (Dkts. 23, 38.) Upon consideration, for the reasons outlined below, the
motions are granted.
BACKGROUND 1
On the evening of December 2, 2022, Plaintiff was riding his “fully lit” Segway
in a residential neighborhood.

(Dkt. 1 at 3.)

Officers of the Palm Bay Police

Department “had been in th[e] neighborhood for some time.” (Id.) One of these
officers, Escandon, stopped Plaintiff “for no reason,” and Plaintiff complied. (Id.)

The court accepts the well-pleaded factual allegations in the complaint as true and construes them in
the light most favorable to Plaintiff. See Harry v. Marchant, 291 F.3d 767, 769 (11th Cir. 2002) (en
banc).
1

Plaintiff “plac[ed] his hands on the hood of a police vehicle to warm them” and then
“lifted his hands back up and was violently thrown to the ground by . . . McDonald
and Mitchell.” (Id.) The force of the throw “aggravated” Plaintiff’s hernia, a preexisting medical condition. (Id. at 4.) McDonald and Mitchell then handcuffed
Plaintiff, and Escandon arrested him without a warrant for resisting arrest, took him
to a local hospital, handcuffed him to a hospital bed, and “treated [him] like a criminal
in front of hospital staff.” (Id. at 3–4.) Plaintiff was then “unarrested” without being
charged with a crime, though he has been billed by the hospital for its services. (Id. at
4.)
Plaintiff initiated this action on May 29, 2024, filing a six-count complaint
against Defendants. He brings two claims under 42 U.S.C. § 1983 against Escandon
for an unlawful stop, detention, and interrogation (Count I) and for false arrest or false
imprisonment (Count II). (Dkt. 1 at 4–6.) He also raises two section 1983 claims
against McDonald and Mitchell for deliberate indifference (Count V) and excessive
force (Count VI). (Id. at 8–11.) Count III is a Florida law claim for false arrest or false
imprisonment against the City of Palm Bay, and Count IV is a Florida law claim for
battery against McDonald and Mitchell. (Id. at 6–8.)
APPLICABLE STANDARDS
Federal Rule of Civil Procedure 8 requires a complaint to have a “short and
plain statement of [a] claim showing that the [plaintiff] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-2-

unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Rule 8 marks a notable
and generous departure from the hypertechnical, code-pleading regime of a prior era,
but it does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 678–79.
In deciding a motion to dismiss for failure to state a claim, a court “accept[s]
the allegations in the complaint as true and construe[s] them in the light most favorable
to the plaintiff.” Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). “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.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (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.
“[D]etailed factual allegations” are generally 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.’” Id. (quoting Twombly, 550 U.S. at 555).
“Qualified immunity shields government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Carruth v.
Bentley, 942 F.3d 1047, 1053 (11th Cir. 2019) (quotation omitted). “Because qualified
immunity is a defense not only from liability, but also from suit, it is important for a
court to ascertain the validity of a qualified immunity defense as early in the lawsuit
-3-

as possible.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation omitted).
Indeed, the Eleventh Circuit has “repeatedly held that a district court errs when it
reserves ruling on an official’s entitlement to qualified immunity,” and so “[a] district
court must adjudicate a defense of qualified immunity at whatever stage it is raised.”
Miller v. Palm Beach Cnty. Sheriff’s Off., No. 23-13753, 2025 WL 631192, at *3 (11th Cir.
Feb. 27, 2025).
“At the motion to dismiss stage in the litigation, the qualified immunity inquiry
and the Rule 12(b)(6) standard become intertwined.” Keating v. City of Mia., 598 F.3d
753, 760 (11th Cir. 2010) (quotation omitted). Accordingly, “[t]o survive a motion to
dismiss based upon qualified immunity, the plaintiff must have alleged sufficient facts
to support a finding of a constitutional violation of a clearly established law.” Chandler
v. Sec’y of Fla., Dep’t of Transp., 695 F.3d 1194, 1198 (11th Cir. 2012); see id. at 1200–01
(reversing and remanding with instructions for the district court to dismiss a claimed
Fourth Amendment violation where the factual “assertions . . . [we]re insufficient to
allege a Fourth Amendment seizure”). “[A]n entitlement to qualified immunity
‘raised . . . on a motion to dismiss . . . will be granted if the complaint fails to allege the
violation of a clearly established constitutional right.’” Miller, 2025 WL 631192, at *3
(quoting Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001)).
ANALYSIS
Defendants Escandon, McDonald, and Mitchell contend that because they are
entitled to qualified immunity, the section 1983 claims against them (Counts I, II, V,

-4-

and VI) must be dismissed. (Dkt. 20 at 7–11; Dkt. 37 at 3–5.) Plaintiff argues that the
officers are not entitled to qualified immunity. (Dkt. 23 at 5–6; Dkt. 38 at 2–4.) The
court agrees with the officers. Because they are entitled to qualified immunity, the
court does not consider their alternative arguments as to those claims. (See Dkts. 20,
37.) Moreover, because Plaintiff’s section 1983 claims are due to be dismissed with
prejudice, the court declines to exercise supplemental jurisdiction over the remaining
state law claims (Counts III and IV).
A. Qualified Immunity
Escandon, McDonald, and Mitchell maintain that as police officers employed
by the City of Palm Bay, they are entitled to qualified immunity as to Plaintiff’s section
1983 claims. “To invoke the defense of qualified immunity, a government official
must have been acting within the scope of his ‘discretionary authority’ when the
allegedly wrongful acts occurred.” Spencer v. Benison, 5 F.4th 1222, 1230 (11th Cir.
2021). “After a government official establishes that he was acting within the scope of
his discretionary authority, the burden shifts to the plaintiff to show that the official’s
conduct (1) violated federal law (2) that was clearly established at the relevant time.”
Id.; accord Carruth, 942 F.3d at 1054 (“If the official makes this showing [of
discretionary authority], the burden shifts to the plaintiff to show that qualified
immunity is not appropriate.” (quotation omitted)).
1. Scope of Discretionary Authority
To demonstrate that they were acting within the scope of their discretionary
authority, the officers were required to show that they acted (1) “pursuant to the
-5-

performance of [their] duties” and (2) “within the scope of [their] authority.” Id. “In
applying each prong of this test, [the court] look[s] to the general nature of the
defendant’s action, temporarily putting aside the fact that it may have been committed
for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional
extent, or under constitutionally inappropriate circumstances.” Est. of Cummings v.
Davenport, 906 F.3d 934, 940 (11th Cir. 2018) (quoting Mikko v. City of Atlanta, 857
F.3d 1136, 1144 (11th Cir. 2017)). “[A] court must ask 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.” Harbert Int’l, Inc. v. James, 157 F.3d
1271, 1282 (11th Cir. 1998) (quotation omitted).

The discretionary authority

requirement “is not difficult to satisfy.” Marbut v. Phillips, No. 1:22-cv-00776-VMC,
2024 WL 4579911, at *7 (N.D. Ga. Sept. 30, 2024) (citing Hinson v. Bias, 927 F.3d
1103, 1116 (11th Cir. 2019)).
Plaintiff alleges that, at all times material to his claims against them, the officers
were acting in the course and scope of their employment as police officers with the
Palm Bay Police Department. (Dkt. 1 at 2.) In his responses to the officers’ motions
to dismiss, Plaintiff does not appear to dispute that the officers were acting within the
scope of their discretionary authority. (See Dkts. 23, 38.) To the extent that Plaintiff
disputes the officers’ discretionary authority, the officers acted within the scope of their
discretionary authority because they were police officers conducting an investigatory
stop and making an arrest. See Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir.
2004) (finding that the question whether a sheriff’s deputy was engaged in a
-6-

discretionary function was an “easy” one “[b]ecause making an arrest is within the
official responsibilities of a sheriff’s deputy”); Nigro v. Carrasquillo, 152 F. Supp. 3d
1364, 1368 (S.D. Fla. 2015) (“Investigating crimes, conducting searches, and making
arrests are legitimate job-related functions within the discretionary authority of police
officers.” (quotation omitted)). Escandon, McDonald, and Mitchell’s conduct was at
the very least “within, or reasonably related to, the outer perimeter of [their]
discretionary duties.” Mikko, 857 F.3d at 1144 (quotation omitted).
Accordingly, Plaintiff bears the burden “to show that qualified immunity is not
appropriate.” Carruth, 942 F.3d at 1054 (quotation omitted). This burden requires
him to make two showings: (1) “that the defendants violated his constitutional rights”
and (2) “that, at the time of the violation, those rights were clearly established . . . in
light of the specific context of the case, not as a broad general proposition.” Stalley v.
Cumbie, 124 F.4th 1273, 1284 (11th Cir. 2024) (quotation omitted).
2. Constitutional Violation
The court discusses the constitutional violations alleged in Counts I and II
against Escandon and then turns to those alleged in Counts V and VI against
McDonald and Mitchell.
a) Escandon—Unlawful Stop, Detention, and Interrogation (Count I)
A police officer may, “consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable suspicion that criminal
activity is afoot.” United States v. Gonzalez-Zea, 995 F.3d 1297, 1302 (11th Cir. 2021).

-7-

This standard is “less demanding . . . than probable cause,” id. at 1302–03, and
requires the court to “examine ‘the totality of the circumstances’ to determine whether
the police had ‘a particularized and objective basis for suspecting legal wrongdoing.’”
United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007) (quoting United States v.
Arvizu, 534 U.S. 266, 273 (2002)). “A reasonable suspicion of criminal activity may
be formed by observing exclusively legal activity, even if such activity is seemingly
innocuous to the ordinary citizen.” Id. (cleaned up). That is, courts “recognize that
the police may ‘draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them
that might well elude an untrained person.’” Id. at 1290–91 (quoting Arvizu, 534 U.S.
at 273). Moreover, in the context of qualified immunity, the proper inquiry is whether
the challenged investigatory stop was supported by arguable, not actual, reasonable
suspicion. Meshal v. Comm’r, Ga. Dep’t of Pub. Safety, 117 F.4th 1273, 1287 (11th Cir.
2024) (“When an officer asserts qualified immunity, the issue is not whether
reasonable suspicion existed in fact, but whether the officer had ‘arguable’ reasonable
suspicion to support an investigatory stop.” (quotation omitted)).
Plaintiff alleges that Escandon “stopped” him “for no reason.” (Dkt. 1 at 3.) In
the light most favorable to Plaintiff, the court interprets this allegation as asserting that
Plaintiff was complying with all applicable laws, including those regulating the use of
Segway vehicles, at the time Escandon stopped him. (See id. at 4 (alleging that
Escandon acted “in the absence of probable cause” or “lawful authority” and that his
actions were “objectively unreasonable and violated the clearly established rights of
-8-

Plaintiff under the Fourth Amendment”).) Plaintiff argues that these allegations
suffice to support his claim against Escandon for conducting an unlawful investigatory
stop because the court must accept the complaint as true. (Dkt. 38 at 2–4.) 2 The court
disagrees. Although it accepts the complaint’s well-pleaded factual allegations as true,
Plaintiff’s threadbare allegations are conclusory and therefore not entitled to the
assumption of truth. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”); cf. White v. De La Osa, No. 07-23381-CIV, 2012 WL 266427, at *5 (S.D.
Fla. Jan. 30, 2012) (noting that a court “considering whether a party has stated a
plausible claim for relief is not required to accept as true legal conclusions disguised as
factual assertions” and accordingly disregarding the plaintiff’s allegation in his
proposed amended complaint that the defendant “acted without available probable
cause or reasonable suspicion”). Accordingly, the court disregards these allegations
and determines whether the “remaining factual allegations . . . plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 678 (quotation omitted); see Chandler, 695 F.3d
at 1201 (“[The plaintiffs] cannot transform [the defendant’s conduct] . . . into a

While Escandon’s motion to dismiss raises several discrete arguments as to both of Plaintiff’s claims
against him, Plaintiff fails to organize his response to the motion such that it is unclear which
statements in the response are directed to which of Escandon’s arguments. (See Dkt. 38 at 2–4.) While
Plaintiff is by no means required to “include an itemized rebuttal response to each of the arguments
he opposes in a motion to dismiss,” Ashley v. Shuemake, No. 6:15-cv-53, 2016 WL 6272369, at *2 n.3
(S.D. Ga. Oct. 25, 2016), requiring the court to decipher his arguments is not helpful to him in
satisfying his burden to show that Escandon is not entitled to qualified immunity, see Carruth, 942 F.3d
at 1054; see also Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1352 (11th Cir. 2009) (“Judges are not like
pigs, hunting for truffles buried in briefs.” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991))).

2

-9-

constitutional violation by conclusorily labeling it ‘unlawful’ and referring to it as a
‘seizure.’”).
Plaintiff alleges that he was riding his “fully lit personal transportation device
(Segway) and was easily viewed by the Palm Bay Police in the neighborhood” when
he was stopped by Escandon. (Dkt. 1 at 3.) Taking all the well-pleaded factual
allegations as true, Plaintiff fails to allege an unlawful investigatory stop because the
facts alleged do not show that the stop was unreasonable under the totality of the
circumstances. See Lindsey, 482 F.3d at 1290; compare Watkins v. Chase, No. 3:23-cv333-MMH-JBT, 2024 WL 2833912, at *2 (M.D. Fla. June 4, 2024) (dismissing the
plaintiff’s complaint under Rule 8 because the plaintiff “offer[ed] no plausible or nonconclusory facts in the [complaint] to show why [the defendant] lacked reasonable
suspicion to stop him and conduct a search” because “the[] limited factual allegations
‘[we]re merely consistent with [the defendant’s] liability,’ and [the plaintiff] ‘stop[ped]
short of the line between possibility and plausibility of entitlement to relief’” (quoting
Iqbal, 556 U.S. at 678)), and Wimbush v. Noonan, No. 4:16cv288-RH/CAS, 2016 WL
7155759, at *1 (N.D. Fla. Dec. 7, 2016) (dismissing a section 1983 claim predicated
on an unlawful stop where “the plaintiff d[id] not allege facts suggesting the stop was
made without reasonable suspicion or probable cause”), with Meshal v. Wright, 651 F.
Supp. 3d 1273, 1293 (S.D. Ga. 2022) (denying motion to dismiss an unlawful stop
claim under section 1983 where “[t]he [c]omplaint plausibly allege[d] that the officers
merely equated [the plaintiff]’s presence on the [no-fly] list to ambiguous criminal
activity . . . .”), and Hargis v. City of Orlando, No. 6:12-cv-723-Orl-37KRS, 2012 WL
- 10 -

6089715, at *4 (M.D. Fla. Dec. 7, 2012) (concluding that the complaint “sufficiently
allege[d] a claim of unlawful search and seizure for lack of arguable reasonable
suspicion” where it alleged the defendant officer’s stated basis for reasonable
suspicion, which the court determined was inadequate). Accordingly, Escandon’s
motion is granted as to this count.
b) Escandon—False Arrest (Count II)
“For Fourth Amendment purposes, arrests are seizures and are unreasonable
unless supported by probable cause.” Edger v. McCabe, 84 F.4th 1230, 1235 (11th Cir.
2023). “Probable cause exists if the facts and circumstances within the officer’s
knowledge, of which he or she has reasonably trustworthy information, would cause
a prudent person to believe, under the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.” Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1557–58 (11th Cir. 1993) (quotation omitted). However,
when an officer raises qualified immunity, a court asks whether the challenged arrest
was supported by merely arguable probable cause. See id. at 1558 (“When an officer
asserts qualified immunity, the issue is not whether probable cause existed in fact, but
whether the officer had ‘arguable’ probable cause to arrest. That is, the officer is
entitled to qualified immunity if a reasonable officer could have believed that probable
cause existed.” (citation omitted)). In the context of an allegedly unlawful arrest, the
probable cause “inquiry must be undertaken in light of the specific context of the case,
not as a broad general proposition. Importantly, whether an officer possesse[d] actual
or arguable probable cause depends on the elements of the alleged crime and the
- 11 -

operative fact pattern.” Edger, 84 F.4th at 1237 (quotation omitted). Thus, “[p]robable
cause ‘is not a high bar.’” District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (quoting
Kaley v. United States, 571 U.S. 320, 338 (2014)).
Plaintiff alleges that Escandon unlawfully arrested him “for resisting arrest.”
(Dkt. 1 at 4.) In the light most favorable to Plaintiff, he appears to allege that Escandon
arrested him for resisting the arrest instigated by McDonald and Mitchell after
Plaintiff, having “plac[ed] his hands on the hood of a police vehicle to warm
them . . . lifted his hands back up.” (Id. at 3–4.) These allegations, accepted as true,
fail to state a Fourth Amendment violation because the facts alleged do not show that
Escandon lacked arguable probable cause to arrest Plaintiff for resisting arrest.
Florida permits an officer to arrest individuals for resisting an officer without
violence “when they ‘resist, obstruct, or oppose any [law enforcement] officer . . . in
the lawful execution of any legal duty, without offering or doing violence to the person
of the officer.’” Harris v. Wingo, 845 F. App’x 892, 896 (11th Cir. 2021) (quoting Fla.
Stat. § 843.02); see C.E.L. v. State, 24 So. 3d 1181, 1185–86 (Fla. 2009) (“[T]o support
a conviction for obstruction without violence, the [s]tate must prove: (1) the officer
was engaged in the lawful execution of a legal duty[] and (2) the defendant’s action,
by his words, conduct, or a combination thereof, constituted obstruction or resistance
of that lawful duty.”). “Probable cause exists to arrest an individual for resisting an
officer without violence when that individual disobeys a command by a law
enforcement officer.” Harris, 845 F. App’x at 896 (citing Zivojinovich v. Barner, 525
F.3d 1059, 1072 (11th Cir. 2008)). Courts have found that even minor resistance
- 12 -

establishes probable cause for resisting without violence. See Slade v. Forehand, No.
3:16-cv-59-RV-MJF, 2019 WL 1430401, at *8 n.8 (N.D. Fla. Feb. 28, 2019) (noting
that “courts have held that minimally obstructive behavior can . . . establish probable
cause for purposes of resisting arrest without violence” and collecting cases), report and
recommendation adopted by 2019 WL 1434581 (N.D. Fla. Mar. 29, 2019); Zivojinovich,
525 F.3d at 1071–72 (finding the defendants had probable cause to arrest the plaintiff
for resisting without violence where he was told to sit, “did for a moment, but
then . . . stood up again,” because the plaintiff “disobeyed a command by members of
law enforcement to sit while they executed their lawful duties”).
Plaintiff alleges that after being stopped, and without being instructed to, he
“lifted his hands.” (Dkt. 1 at 3.) The Eleventh Circuit has found arguable probable
cause for resisting arrest when a person spontaneously raised their hands during an
encounter

with

law

enforcement.

See

Post,

7

F.3d

at

1559

(“[The

p]laintiffs . . . concede that [one plaintiff]—without having been told to do so—raised
his hands to [the officers] after being told he was under arrest. Because a reasonable
officer in [the officers’] place could have interpreted this raising of hands as resistance,
[the officers] [are] entitled to qualified immunity.”). Thus, Plaintiff’s alleged conduct
gave Escandon arguable probable cause to arrest Plaintiff for resisting without
violence.

Alternatively, Plaintiff does not satisfy his burden to demonstrate a

constitutional violation, see Carruth, 942 F.3d at 1054, because his allegations of fact
and conclusory allegation that his arrest was effected “without any arguable probable
cause,” (Dkt. 1 at 3–5), fail to state a claim under the Fourth Amendment. These
- 13 -

allegations do not show that Escandon lacked arguable probable cause to arrest
Plaintiff. See Hesed-El v. McCord, 829 F. App’x 469, 472 (11th Cir. 2020) (affirming the
district court’s dismissal of the plaintiff’s false arrest claim “because [the plaintiff] did
not allege sufficient facts to show the absence of probable cause for his arrest,” noting
that the plaintiff’s “conclusory assertion that [the defendant] acted without probable
cause [wa]s devoid of any facts giving rise to a plausible suggestion of . . . false arrest.”
(quotation omitted)); Hernandez v. Wells, No. 8:21-cv-1488-KKM-TGW, 2022 WL
1607190, at *6 (M.D. Fla. May 20, 2022) (dismissing Fourth Amendment claim as
“entirely conclusory” where “[the plaintiff] allege[d] with some specificity where and
when he was arrested . . . but offer[ed] no reason to doubt that [the defendant] had
arguable probable cause”). Accordingly, the court grants Escandon’s motion as to this
claim, as well.
c) McDonald and Mitchell—Deliberate Indifference (Count V)
“A prison official’s deliberate indifference to a known, substantial risk of serious
harm to an inmate violates the Fourteenth Amendment.” Goodman v. Kimbrough, 718
F.3d 1325, 1331 (11th Cir. 2013) (quotation omitted). While Plaintiff here was a
pretrial detainee rather than a prisoner, the same analysis applies. See id. at 1331 n.1.
Plaintiff alleges that McDonald and Mitchell threw him to the ground with so much
force that they “aggravated a pre-existing medical condition,” his hernia. (Dkt. 1 at
3–4.) Plaintiff does not allege that the officers knew of this pre-existing medical
condition, only that the aggravation of his hernia was a “direct and proximate result”
of their “conscious disregard for the substantial risk of serious harm to Plaintiff.” (Id.
- 14 -

at 8–9.) The facts alleged in the complaint do not support that the officers knew about
Plaintiff’s hernia. (See id. passim.)
To state a claim of deliberate indifference, Plaintiff was required to allege that
the officers had subjective knowledge of the risk particular to him—absent such
allegations, any alleged indifference would not be deliberate. See Hines v. Parker, 725
F. App’x 801, 805 (11th Cir. 2018) (affirming the district court’s dismissal of a
deliberate indifference claim based on qualified immunity where the plaintiff “alleged
nothing to suggest that [the defendant] knew or would have known that [the plaintiff]
had a serious medical need that required immediate attention”); cf. Popham v. City of
Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990) (“Absent knowledge of a detainee’s
suicidal tendencies, . . . failure to prevent suicide has never been held to constitute
deliberate indifference.”). Indeed, as Plaintiff alleges, he was taken to the hospital
upon the aggravation of his hernia. (See Dkt. 1 at 4.) The complaint supports that the
hospital rendered services to Plaintiff—Plaintiff describes incurring hospital costs,
(id.)—and does not mention a delay in care, (see id. passim). Cf. Ireland v. Prummell, 53
F.4th 1274, 1294 (11th Cir. 2022) (determining that nurses did not unconstitutionally
delay care when they immediately sought to contact a doctor upon observing the
plaintiff’s condition). Accordingly, Plaintiff’s complaint fails to state a claim of
deliberate indifference. See Goodman, 718 F.3d at 1332 (“[A] plaintiff . . . must show
not only that there was a substantial risk of serious harm, but also that [the defendants]
subjectively knew of the substantial risk of serious harm and that [they] knowingly or

- 15 -

recklessly disregarded that risk.” (quotation omitted)).

The court thus grants

McDonald and Mitchell’s motion as to Count V.
d) McDonald and Mitchell—Excessive Force (Count VI)
“The use of excessive force in carrying out an arrest constitutes a violation of
the Fourth Amendment.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002).
At the same time, “the right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat thereof to effect it.”
Id. (quotation omitted). The question is whether the force used was objectively
reasonable “in light of the facts and circumstances confronting [the officers], without
regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397
(1989). This inquiry is fact intensive. Post, 7 F.3d at 1559 (“Use of force must be
judged on a case-by-case basis ‘from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” (quoting Graham, 490 U.S. at
396)). “Because this standard establishes no bright line, qualified immunity applies
unless application of the standard would inevitably lead every reasonable officer in
[the defendant officer]’s position to conclude the force was unlawful.” Id.
Plaintiff alleges that after he raised his hands from the hood of the police car on
which he had been warming them, McDonald and Mitchell threw him to the ground
and handcuffed him. (Dkt. 1 at 3.) While he alleges that the officers’ conduct was
“not objectively reasonable” and was instead “excessive and grossly disproportionate
to the amount of force[] necessary,” (id. at 10), this conclusory language must be

- 16 -

disregarded under Rule 8, see Iqbal, 556 U.S. at 678 (“[T]he pleading standard Rule 8
announces . . . demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.”); Hogan v. Johnson, No. 5:17-cv-01022-KOB-JEO, 2017 WL 6102818,
at *2 (N.D. Ala. Oct. 17, 2017) (“Without [the] benefit of supporting factual
allegations, the plaintiff in this instance asserts in conclusory fashion that he was
‘wrongly assaulted’ and that the defendants ‘purposefully used excessive force’ against
him. In that sense, the complaint pleads no specific facts which directly show a
deprivation of rights.”), report and recommendation adopted by 2017 WL 6055224 (N.D.
Ala. Dec. 7, 2017).
Accepting all the facts alleged in the complaint as true, including that “Plaintiff
did not pose any threat . . . to . . . Defendants or anyone else, (Dkt. 1 at 10–11), the
court concludes that Count VI fails to state a claim because it does not show that the
force employed by McDonald and Mitchell was objectively unreasonable. See Vinyard
v. Wilson, 311 F.3d 1340, 1349 n.14 (11th Cir. 2002) (“The border between permissible
and excessive force is marked by a fact-intensive test conducted case-by-case. An
excessive force analysis thus requires careful attention to the facts and circumstances
of each particular case.”). For example, another court in this district determined that
a plaintiff failed to state a claim for excessive force where he alleged that he “was
grabbed and shoved,” “slammed on the ground,” and “kicked and punched” by the
officers after complying with their commands. Prescott v. Oakley, No. 8:16-cv-060-T27TBM, 2016 WL 8919458, at *3 (M.D. Fla. Dec. 6, 2016). Although the plaintiff
“allege[d] sufficient facts to support he was not a threat and complying with
- 17 -

commands . . . before he was on the ground, the facts [we]re insufficient to infer that
once [the plaintiff] was on the ground he remained non-threatening and compliant
with commands.” Id. (emphasis omitted). The Prescott court concluded that “[b]ased
on the limited facts alleged about what events occurred once [the plaintiff] was on the
ground, [he] ha[d] failed to allege that the use of force by [the officers] was excessive.”
Id. at *4; see Pribyl v. Unknown Fla. Dep’t of Law Enf’t Officers, No. 4:18cv365-WS-MAF,
2021 WL 1799426, at *5 (N.D. Fla. Mar. 16, 2021) (dismissing excessive force claim
because “[t]here [we]re no facts alleged which reveal[ed] that the manner in which [the
p]laintiff was arrested involved excessive force”), report and recommendation adopted by
2021 WL 1788401 (N.D. Fla. May 4, 2021). Dismissal is required notwithstanding
the fact that the force employed by the officers in this case aggravated Plaintiff’s hernia.
See Rodriguez, 280 F.3d at 1353 (“What would ordinarily be considered reasonable
force does not become excessive force when the force aggravates (however severely) a
pre-existing condition the extent of which was unknown to the officer at the time.”).
Accordingly, the court grants McDonald and Mitchell’s motion to dismiss Count VI.
3. Clearly Established
Even if Plaintiff had established a constitutional violation as to any of the claims
he raises against the officers—which he has not—he also fails to show that any of the
rights he claims were violated were clearly established at the time of the officers’
actions. See Stalley, 124 F.4th at 1284. A plaintiff in the Eleventh Circuit can satisfy
his burden under the clearly-established prong in three ways:

- 18 -

First, the plaintiff can point to a materially similar case
decided at the time of the relevant conduct by the Supreme
Court, the Eleventh Circuit, or the relevant state supreme
court. This first method looks at the relevant case[]law at
the time of the alleged violation that would have made it
obvious to the officer that his actions violated federal law.
The prior case[]law need not be directly on point, but an
existing precedent must have placed the statutory or
constitutional question beyond debate. Second, the plaintiff
can identify a broader, clearly established principle that
should govern the novel facts of the situation. Third, the
plaintiff can show that the conduct at issue so obviously
violated the Constitution that prior case[]law is
unnecessary.
Id. (quotation omitted).
In his response to Escandon’s motion to dismiss, Plaintiff cites a number of
cases to establish the standards relevant to his claims. (Dkt. 38 at 2–3.) However,
these broad statements of the relevant standards aside, Plaintiff cites no prior caselaw
that is “materially similar” to the facts of his case to show that the constitutional
violations he asserts were clearly established. (See Dkt. 38 at 2–4.) See Gaines v.
Wardynski, 871 F.3d 1203, 1209 (11th Cir. 2017). The citations he does provide, which
offer only high-level generalities of the law as it relates to his unlawful stop and arrest
claims, are insufficient. See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“We have
repeatedly told courts . . . not to define clearly established law at a high level of
generality. The general proposition, for example, that an unreasonable search or
seizure violates the Fourth Amendment is of little help in determining whether the
violative nature of particular conduct is clearly established.”); Vielma v. Gruler, 808 F.
App’x 872, 879–80 (11th Cir. 2020) (determining that the plaintiffs had not
- 19 -

demonstrated a clearly established law where they “failed to cite any case addressing
materially similar facts that clearly establishe[d] the existence of the duty that [the
p]laintiffs assign[ed] to [the defendant]”); Puglia v. Nienhuis, No. 8:22-cv-1954-VMCCPT, 2023 WL 2743526, at *8 (M.D. Fla. Mar. 31, 2023) (“[The plaintiff] cites no
case[]law at all in his discussion of whether it was clearly established that [the
d]efendants’ actions were unconstitutional. This failure to carry his burden also
supports the grant of qualified immunity for the individual [d]efendants.” (citation
omitted)).
In the absence of materially similar caselaw, Plaintiff can satisfy the clearly
established prong only by identifying either “a broad statement of principle within the
Constitution, statute, or case[]law,” or “conduct so egregious that a constitutional
right was clearly violated, even in the total absence of case[]law.” Crocker v. Beatty, 995
F.3d 1232, 1240 (11th Cir. 2021) (quotation omitted). These “methods are generally
known as obvious clarity cases,” which the Eleventh Circuit has repeatedly
emphasized “will be rare.” Gaines, 871 F.3d at 1209 (quotations omitted); see Lee, 284
F.3d at 1199 (referring to obvious clarity cases as a “narrow exception”). Plaintiff does
not raise an obvious clarity argument in his response to Escandon’s motion and the
court discerns no basis to apply the principle. (See Dkt. 38.) See Herman v. Mr. Cooper
Grp. Inc., No. 2:23-cv-948-JES-KCD, 2024 WL 3277021, at *1 (M.D. Fla. July 2, 2024)
(“In our adversarial system, a claimant must present her case. It is not a court’s job to
conduct research to provide the proper support for conclusory arguments.” (alteration
adopted and quotation omitted)). That reason alone is a sufficient basis to determine
- 20 -

that the exception does not apply in this case. See Hamilton v. Southland Christian Sch.,
Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite
authorities in support of an issue waives it.”), overruled in part on other grounds by United
States v. Durham, 795 F.3d 1329, 1331 (11th Cir. 2015) (en banc) (“The only rule
affected is the rule concerning the effect of a failure to raise a claim or theory in the
opening brief that a party files where that claim or theory is based on an intervening
Supreme Court decision.”); Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1352 (11th Cir.
2009) (determining that the petitioner’s failure to “even allude to” an argument did
not “adequate[ly] present[] . . . the issue”).
Plaintiff’s response to McDonald and Mitchell’s motion to dismiss suffers from
the same flaws. While Plaintiff cites two cases with regard to the officers’ qualified
immunity argument, he uses both only to establish general propositions regarding
qualified immunity and excessive force claims generally. (See Dkt. 23 at 6 (citing Alston
v. Swarbrick, 954 F.3d 1312, 1318 (11th Cir. 2020) (reciting a plaintiff’s burden to
overcome a qualified immunity defense), and quoting Hadley v. Gutierrez, 526 F.3d
1324, 1330 (11th Cir. 2008) (“Our cases hold that gratuitous use of force when a
criminal suspect is not resisting arrest constitutes excessive force.”)).) However, to
show that the law was clearly established, Plaintiff was required to point to a
“materially similar” case, one “close enough to have put the statutory or constitutional
question beyond debate.” Gaines, 871 F.3d at 1209–10 (quotations omitted). Because
Plaintiff did not engage in a factual comparison of his case and those he cited, the court
cannot determine “whether the factual scenario that [McDonald and Mitchell] faced
- 21 -

is fairly distinguishable from the circumstances facing a government official in a
previous case.” Id. at 1209 (quotation omitted).
As with his response to Escandon’s motion, Plaintiff fails to raise an obvious
clarity argument in his response to McDonald and Mitchell’s motion, and the court
finds that this narrow exception does not apply for that reason alone. See Hamilton,
680 F.3d at 1319. Moreover, even if he had raised an obvious clarity argument as to
his excessive force claim, it would fail as a matter of law because the facts alleged do
not demonstrate that McDonald and Mitchell’s conduct “lies so obviously at the very
core of what the Fourth Amendment prohibits that the unlawfulness of the conduct
was readily apparent to [them], notwithstanding the lack of caselaw.” Elliott, 641 F.
App’x at 898 (quotation omitted). See Oliver v. Fiorino, 586 F.3d 898, 907–08 (11th Cir.
2009) (denying qualified immunity where the officers tasered an un-resisting person
“at least eight[] and as many as eleven or twelve times over a two-minute span without
attempting to arrest or otherwise subdue the plaintiff”); Priester v. City of Riviera Beach,
208 F.3d 919, 923 n.1, 927 (11th Cir. 2000) (denying qualified immunity where officer
“ordered and allowed his [94-pound German Shepherd] to attack and bite [the
p]laintiff,” who was accused of stealing “$20 of snacks and crackers,” and “threatened
to kill [the p]laintiff when [he] kicked the dog in an effort to resist the unprovoked
attack”).
Because Plaintiff has failed to allege a constitutional violation of a clearly
established right under Counts I, II, V, and VI, the officers’ motions to dismiss these
claims are granted. Carruth, 942 F.3d at 1054.
- 22 -

B. Supplemental Jurisdiction
Under 28 U.S.C. § 1367(c), a district court has discretion to “decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction.” Because the court has determined that
all of Plaintiff’s claims over which this court has original jurisdiction, Counts I, II, V,
and VI, are due to be dismissed with prejudice, the court declines to continue to
exercise supplemental jurisdiction over Plaintiff’s remaining state law claims, Counts
III and IV. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A district
court’s decision whether to exercise [supplemental] jurisdiction after dismissing every
claim over which it had original jurisdiction is purely discretionary.”). Indeed, the
Eleventh Circuit has affirmatively counseled district courts to decline to exercise
supplemental jurisdiction in such situations. See Silas v. Sheriff of Broward Cnty., 55
F.4th 863, 866 (11th Cir. 2022) (“Although the district court has discretion, concerns
of federalism—namely, of federal courts of limited jurisdiction weighing in on state
law—counsel in favor of dismissing state[]law claims after the federal claims are
dismissed.”); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (“We have
encouraged district courts to dismiss any remaining state claims when, as here, the
federal claims have been dismissed prior to trial.”).
Accordingly, Counts III and IV are due to be dismissed without prejudice. This
dismissal should not work to Plaintiff’s disadvantage should he elect to bring Counts
III and IV in state court because the period of limitations for these claims is tolled

- 23 -

during the pendency of this action. See 28 U.S.C. § 1367(d); Foley v. Azam, 257 So. 3d
1134 (applying section 1367(d) to toll the limitations period).
CONCLUSION
Accordingly:
1. McDonald and Mitchell’s motion (Dkt. 20) is GRANTED.
2. Escandon’s motion (Dkt. 37) is GRANTED.
3. Counts I, II, V, and VI of Plaintiff’s complaint are DISMISSED with
prejudice.
4. Counts III and IV of Plaintiff’s complaint are DISMISSED without
prejudice under 28 U.S.C. § 1367(c)(3).
5. The Clerk is DIRECTED to enter judgment in favor of Defendants as to
Counts I, II, V, and VI, to terminate any pending deadlines and motions,
and to close this case.
ORDERED in Orlando, Florida, on March 6, 2025.

Copies furnished to:
Counsel of Record

- 24 -