Gregory et al v. City of Tarpon Springs et al

Filing 33

ORDER: Defendants' Motion for a More Definite Statement (Doc. # 19 ) is granted. Plaintiffs Warren Gregory and Michelle Gregory may file an amended complaint by June 6, 2016. Signed by Judge Virginia M. Hernandez Covington on 5/23/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WARREN GREGORY, et al.
Plaintiffs,
v.

Case No. 8:16-cv-237-T-33AEP

CITY OF TARPON SPRINGS, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Defendants City of Tarpon Springs, Tarpon Springs Police
Department, and Steve Gassen’s Motion for a More Definite
Statement (Doc. # 19), filed on March 31, 2016. Plaintiffs
Warren Gregory and Michelle Gregory filed a response in
opposition on April 20, 2016. (Doc. # 30).1 For the reasons
that follow, the Court grants the Motion.
I.

Background
Warren

and

Michelle

Gregory

are

husband

and

wife

residing in the City of Tarpon Springs, Florida, upon a liveaboard boat. (Doc. # 1 at ¶¶ 1, 4). Until recently, Warren
anchored his live-aboard boat in a marina off property owned

1

Because Plaintiffs share the same last name, the Court
will refer to them by first name when necessary.

1 

by a local businessman. (Id. at ¶ 29). The Complaint does not
indicate

where

Warren

now

anchors

the

live-aboard

boat,

except for generally averring the live-aboard boat is in
Tarpon Springs. (Id. at ¶ 27).
Warren and Michelle travel by bicycles due to Michelle’s
physical disabilities; Michelle suffers from epilepsy. (Id.
at ¶¶ 7a, 16). Warren, a self-described folk artist, learned
how to decorate bicycles with flowers and other artistic items
from his years living in the Netherlands. (Id. at ¶ 8). People
have often asked to be photographed with Warren’s decorated
bicycles, and business owners have requested the bicycles be
displayed in front of their shops. (Id. at ¶¶ 9-10).
However, not everyone was so enamored with Warren’s
decorated

bicycles.

The

Complaint

alleges

Officer

Steve

Gassen with the Tarpon Springs Police Department “followed
[Warren] around and asked him to remove his bicycles . . . .”
(Id. at ¶ 11). Officers with the Tarpon Springs Police
Department also allegedly told Warren and Michelle to leave
“because the homeless are not allowed in Tarpon Springs.”
(Id. at ¶ 7). Warren and Michelle “criticize[d] the police
for . . . interference with their bicycles . . . .” (Id. at
¶ 33). Warren also “criticize[d] the City Police for . . .

2 

the shadowing of him by the police wherever he goes or parks
his decorated bicycles.” (Id. at ¶ 23).
Then on December 14, 2013, Warren was arrested for
aggravated assault by Gassen. (Id. at ¶ 51). The Complaint
describes the events of the day leading up the December 14,
2013, arrest as: “[Warren] retreated to get a [.]22 caliber
pistol and held it in his hand pointed at a thief after being
pepper sprayed by the thief when he discovered the thief had
put stolen items in a shed where [Warren] was a tenant.” (Id.
at ¶ 4). A criminal complaint was filed against Warren on
December 14, 2013; however, those criminal proceedings were
ultimately terminated in favor of Warren on March 25, 2014.
(Id. at ¶¶ 5, 56). Warren and Michelle then began to criticize
the Tarpon Springs Police Department for, as they allege,
falsely arresting Warren. (Id. at ¶ 23).
Warren was again arrested on December 19, 2015, this
time on the charge of felon in possession of a firearm. (Id.
at ¶¶ 12, 60). According to the Complaint, although the reason
for the police presence is not alleged, Warren refused to
consent to a search of his live-aboard boat by Tarpon Springs
police officers. (Id. at ¶ 13). It is further alleged that,
upon Warren’s refusal, the Tarpon Springs police requested
Florida

Fish

and

Wildlife

Conservation

3 

Commission

(FWC)

officers to search the live-aboard boat. (Id.). FWC officers
conducted a search and found a rifle onboard. (Id. at ¶ 17).
The

rifle

was

confiscated

by

the

Tarpon

Springs

Police

Department, but was returned later that night. (Id. at ¶¶ 1718, 21).
Michelle and her mother returned to the live-aboard boat
after an outing to find a “large number of Tarpon Springs
Police vehicles and officers,” as well as Warren in handcuffs
seated in the backseat of a police cruiser. (Id. at ¶¶ 12,
14). Michelle attempted to speak with Warren, as the cruiser’s
window was rolled down, however, officers informed her that
she could not speak with him because he was under arrest.
(Id. at ¶ 15). Michelle was physically upset and, “denied the
right to board her boat to get her medication by the police,”
suffered

an

epileptic

seizure,

which

required

emergency

medical services. (Id. at ¶ 16).
The Complaint also alleges the Tarpon Springs officers
knew Warren was not a felon, but he was nevertheless arrested
on the charge of felon in possession of a firearm. (Id. at ¶¶
18-19). “After an hour or so” of being handcuffed, the
handcuffs were removed and Warren was allowed to leave the
police cruiser. (Id. at ¶ 20).

4 

Thereafter, Warren and Michelle filed the instant action
on January 29, 2016. (Id.). The Complaint brings the following
Counts:
Count I—Complaint for Conspiracy to Violate Civil Rights
and Infringement of Liberty Interest with Resulting
Stigma to Reputation from Police Department’s Action in
Retaliation for Exercise of Fourth Amendment Rights and
First Amendment Rights in Violation of the First and
Fourteenth Amendment and 42 U.S.C. § 1983 and § 1985;
Count II—Libel and Slander;
Count IV—False Arrest – December 14, 2013;
Count V(a)—False Arrest – December 19, 2015;
Count V(b)—False Imprisonment — December 19, 2015; and
Count VII—Malicious Prosecution.
(Id. at 14, 20, 22, 25, 27, 28).2 Defendants then filed the
pending Motion, which requests a more definite statement and
argues the Complaint is a shotgun pleading.
II.

Analysis
“A defendant served with a shotgun complaint should move

the district court to dismiss the complaint pursuant to Rule
12(b)(6) or for a more definite statement pursuant to Rule
12(e) on the ground that the complaint provides it with

2

The Complaint skips from Count II to Count IV. The Complaint
also includes two Counts listed as Count V, so for clarity’s
sake, the Court refers to them as Counts V(a) and V(b).
Additionally, the Complaint skips from Count V(b) to Count
VII.

5 

insufficient notice to enable it to file an answer.” Paylor
v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126-27 (11th Cir.
2014) (footnotes omitted). Furthermore, courts are under an
independent obligation to order a repleader when faced with
a shotgun pleading. McWhorter v. Miller, Einhouse, Rymer &
Boyd, Inc., No. 6:08-cv-1978-Orl-31KRS, 2009 WL 92846, at *2
(M.D. Fla. Jan. 14, 2009) (citing Byrne v. Nezhat, 261 F.3d
1075, 1133 (11th Cir. 2001)).
The Eleventh Circuit has “identified four rough types or
categories of shotgun pleadings”: (1) “a complaint containing
multiple counts where each count adopts the allegations of
all preceding counts . . .”; (2) a complaint that is “replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action”; (3) a complaint
that does “not separat[e] into a different count each cause
of action or claim for relief”; and (4) a complaint that
“assert[s]

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.”

Weiland

v.

Palm

Beach

Cty.

Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015).
Although

the

Complaint

here

does

not

impermissibly

incorporate every preceding allegation into each Count (in

6 

fact, not a single Count contains a paragraph incorporating
earlier

allegations

by

reference),

the

Complaint

is

nevertheless a shotgun pleading. For instance, Count I is
brought under two federal statutes—42 U.S.C. §§ 1983 and 1985—
and attempts to assert claims under four Amendments to the
United

States

Constitution,

as

well

as

referencing

the

Constitution of the State of Florida. Simply put, Count I is
a

hodgepodge

of

potential

claims

and

constitutes

an

impermissible shotgun pleadings.
As parenthetically referenced above, none of the Counts
explicitly incorporate any of the allegations listed under
the header “Allegations Common to All Counts”; rather, the
reader of the Complaint is left to infer incorporation.
Assuming

for

the

sake

of

argument

such

inferential

incorporation is sufficient, then irrelevant allegations are
incorporated into certain Counts. For example, Paragraph 30
alleges how “[t]he police interfered” with Warren’s docking
arrangement

with

a

local

businessman.

But,

whether

the

Defendants interfered with Warren’s docking arrangement is
irrelevant to establishing, for example, a claim of false
arrest or of malicious prosecution. See Ortega v. Christian,
85 F.3d 1521, 1525 (11th Cir. 1996) (noting basis of a section
1983 claim); Abdullah v. Osceola Cty. Sheriff, No. 6:14-cv-

7 

629-Orl-40TBS, 2015 WL 5915818, at *3 (M.D. Fla. Oct. 8, 2015)
(listing elements of malicious prosecution claim).
In addition, all but one of the Counts make no mention
as to the capacity in which Gassen is sued. While the caption
of the Complaint states Gassen is sued in both his official
and

individual

capacities,

Warren

and

Michelle

have

not

explained why Count VII specifies Gassen’s capacity when the
earlier Counts do not. The specification of capacity in Count
VII could simply be a redundant allegation or it could signal
a distinction between Count VII and the other Counts. In light
of

the

“significant”

distinction

between

individual

and

official capacity suits, Smith v. Allen, 502 F.3d 1255, 1271
(11th Cir. 2007), abrogated on other grounds by Sossamon v.
Texas, 563 U.S. 277, 287 (2011), the Court will not require
the Defendants to speculate. See Thorn v. Randall, No. 8:14cv-862-T-36MAP, 2014 WL 5094134, at *2 (M.D. Fla. Oct. 24,
2014)

(finding

complaint

“a

deficient

shotgun

pleading”

because plaintiff “fail[ed] to specify whether he [was] suing
[defendants] in their individual capacities and/or official
capacities”).
In ordering a repleader, the Court notes Warren and
Michelle must separate each cause of action or claim into
different counts. Additionally, each count brought against

8 

Gassen should specify the capacity in which he is being sued.
Furthermore, ordering a repleader will afford Warren and
Michelle an opportunity to clearly identify which of the
“common” allegations are relevant to which claims by way of
explicit incorporation, and to correct the numbering of the
Counts. Under the Federal Rules of Civil Procedure, Warren
and Michelle must, as all plaintiffs must, present their
claims discretely and succinctly. See Fikes v. City of Daphne,
79 F.3d 1079, 1082 (11th Cir. 1996).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants City of Tarpon Springs, Tarpon Springs Police
Department,

and

Steve

Gassen’s

Motion

for

a

More

Definite Statement (Doc. # 19) is GRANTED.
(2)

Plaintiffs Warren Gregory and Michelle Gregory may file
an amended complaint by June 6, 2016.
DONE and ORDERED in Chambers in Tampa, Florida, this

23rd day of May, 2016.

9