Gregory et al v. City of Tarpon Springs et al

Filing 48

ORDER: Defendants City of Tarpon Springs and Steve Gassen's Motion to Dismiss is DENIED. Alternatively, Defendants' Motion for a More Definite Statement (Doc. # 44 ) is GRANTED. Plaintiff Warren Gregory may file a Third Amended Complaint by October 14, 2016, failing which, the Court will dismiss the case. Signed by Judge Virginia M. Hernandez Covington on 10/5/2016. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WARREN GREGORY,
Plaintiff,
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 and Officer Steve Gassen’s
Motion to Dismiss the Second Amended Complaint, or for a More
Definite Statement (Doc. # 44), filed on August 1, 2016.
Plaintiff Warren Gregory filed a response in opposition on
August 10, 2016. (Doc. # 45). For the reasons that follow,
the Court denies the Motion to Dismiss, and grants the Motion
for a More Definite Statement.
I.

Background
Warren Gregory resides in the City of Tarpon Springs,

Florida,

on

a

live

aboard

boat

with

his

wife

Michelle

Gregory. 1 (Doc. # 43 at ¶¶ 5, 8). Until recently, Warren

1

Because Plaintiff and his wife share the same last name,
the Court will refer to them by first name when necessary.

1

anchored his live aboard boat in a marina off property owned
by a local businessman. (Id. at ¶¶ 30-32).
Due to Michelle’s epilepsy, Warren and Michelle travel
by bicycle rather than car. (Id. at ¶¶ 8a, 17). 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 ¶ 9). 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 ¶¶ 10-11).
However, not everyone was so enamored with Warren’s
decorated bicycles. The Complaint alleges Officer Gassen with
the

Tarpon

Springs

Police

Department

(TSPD)

“followed

[Warren] around and asked him to remove his bicycles . . . .”
(Id. at ¶ 12). TSPD Officers also allegedly told Warren to
leave

“because

the

homeless

are

not

allowed

in

Tarpon

Springs.” (Id. at ¶ 8).
Then, on December 14, 2013, Warren was arrested for
aggravated assault by Officer Gassen. (Id. at ¶¶ 5, 22). The
Second Amended Complaint describes the events of the day
leading up to the December 14, 2013, arrest thusly: “[Warren]
retreated to get a [.]22 caliber pistol and held it in his
hand pointed at a thief after being pepper sprayed by the

2

thief when he discovered the thief had put stolen items in a
shed where [Warren] was a tenant.” (Id. at ¶ 5). A criminal
complaint was filed against Warren on December 15, 2013;
however,

those

criminal

proceedings

were

ultimately

terminated in favor of Warren on March 25, 2014. (Id. at ¶
6).
Warren criticized TSPD for his supposedly false arrest.
(Id. at ¶ 5). Warren also “criticize[d] the police for . . .
interference with [his] bicycles . . . ” and “for . . . the
shadowing of him by the police wherever he goes or parks his
decorated bicycles.” (Id. at ¶¶ 24, 34).
Warren was again arrested on December 19, 2015, this
time on the charge of felon in possession of a firearm. (Id.
at ¶¶ 13, 15). According to the Second Amended Complaint,
although the reason for the police presence is not alleged,
Warren refused to consent to a search of his live aboard boat
by TSPD officers. (Id. at ¶ 14). It is further alleged that,
upon Warren’s refusal, the TSPD requested Florida Fish and
Wildlife Conservation Commission (FWC) officers to search the
live aboard boat. (Id.). FWC officers conducted a search and
found

a

rifle

onboard.

(Id.

at

¶

18).

The

rifle

was

confiscated by TSPD, but was returned later that night. (Id.
at ¶¶ 19, 22).

3

Michelle and her mother returned to the live aboard boat
after an outing to find a “large number of [TSPD] vehicles
and officers,” as well as Warren in handcuffs seated in the
backseat of a police cruiser. (Id. at ¶¶ 13, 15). 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 ¶
16). 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 ¶ 17).
The

Second

Amended

Complaint

also

alleges

the

TSPD

officers knew Warren was not a felon, but he was nevertheless
arrested on the charge of felon in possession of a firearm.
(Id. at ¶¶ 19-20). “After an hour or so” of being handcuffed,
the handcuffs were removed and Warren was allowed to leave
the police cruiser. (Id. at ¶ 21).
Thereafter, Warren and Michelle filed their original
Complaint on January 29, 2016, against the City, TSPD, and
Officer Gassen. (Doc. # 1). Defendants then filed their first
Motion

for

a

More

Definite

Statement,

arguing

that

the

Complaint was a shotgun pleading. (Doc. # 19). The Court

4

granted the Motion in an Order explaining the Complaint’s
defects on May 23, 2016. (Doc. # 33).
Subsequently, as the sole plaintiff, Warren filed a
First Amended Complaint on June 10, 2016. (Doc. # 36). The
First Amended Complaint included the City and Officer Gassen
as defendants, but removed TSPD. (Doc. # 36 at 1). Warren
also added Officer Christopher Lemmon as a defendant without
requesting leave to do so from the Court. (Id.). However, the
deadline to add parties or amend pleadings was May 23, 2016,
as set by the Case Management and Scheduling Order. (Doc. #
18). While Michelle and TSPD were no longer listed as parties,
no notice of dismissal was filed for either.
The City and Officer Gassen filed a second Motion for a
More Definite Statement on July 1, 2016. (Doc. # 40). Warren
did not file a response. Subsequently, on July 20, 2016, the
Court granted the Motion as unopposed, and permitted Warren
to file a Second Amended Complaint. (Doc. # 42). In its Order,
the Court advised Warren that the Second Amended Complaint
should:
state[] each count or claim with particularity
regarding the legal theory and relief requested; 2.
set[] forth each claim for relief in separate
numbered counts; 3. identif[y] in which capacity
Officer Gassen is being sued; 4. identif[y] which
of the factual allegations are relevant to
individual claims; and 5. utlize[] the proper

5

procedures for adding
parties in this action.

or

removing

individual

(Id.).
On

July

Complaint

28,

with

2016,

the

Warren

caption

filed

listing

the

Second

Warren

as

Amended

the

sole

plaintiff, and retaining the City, and Officers Gassen and
Lemmon, in their official capacities, as defendants. (Doc. #
43). However, Warren still had not requested leave from the
Court

to

add

Officer

Lemmon.

Nor

did

he

file

a

notice

dismissing TSPD as a defendant, or Michelle as a plaintiff.
The thirty-two page Second Amended Complaint brings the
following Counts:
Count I:

Count II:
Count III:
Count IV:
Count V:

Count VI:

Violation of First Amendment Plaintiff’s
Right to Travel in Violation of the First
and Fourth Amendment and 42 U.S.C. § 1983
and § 1985
State Libel and Slander Claim
False Arrest – December 14, 2013 for
Aggravated Assault
False Arrest – December 19, 2015
False Imprisonment Suit by Warrant Gregory
for False Imprisonment – December 19, 2015
Against Police Officers Steve Gassen and
Officer Christopher Lemmon and the City of
Tarpon Springs
Warren Gregory Malicious Prosecution Action
for 2013 Arrest

(Id.)
On August 1, 2016, the City and Officer Gassen filed the
instant Motion to Dismiss or for a More Definite Statement.
(Doc. # 44). They argue the Second Amended Complaint should

6

be dismissed with prejudice or, alternatively, amended to
separate

and

clarify

the

legal

theory

for

each

claim,

explicitly incorporate factual allegations for each claim,
and clarify the identity of the parties in this action. (Id.
at 6). Warren filed a response in opposition on August 10,
2016. (Doc. # 45).
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
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).
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

7

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).
“The

unifying

characteristic

of

all

types

of

shotgun

pleadings is that they fail to . . . give the defendants
adequate notice of the claims against them and the grounds
upon which each claim rests.” Id. at 1323.
Although deficient complaints should be dismissed, the
Federal Rules of Civil Procedure advise that courts should
“freely give leave [to amend] when justice so requires.” Fed.
R. Civ. P. 15(a)(2). Nevertheless, the City and Officer Gassen
urge the Court to dismiss the Second Amended Complaint with
prejudice because Warren has failed to clarify his claims
sufficiently after three attempts. (Doc. # 44 at 2-3). They
are correct that this Court need not “allow an amendment (1)
where there has been undue delay, bad faith, dilatory motive,
or

repeated

failure

to

cure

deficiencies

by

amendments

previously allowed; (2) where allowing amendment would cause
undue prejudice to the opposing party; or (3) where amendment
would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
Cir. 2001).

8

However, the Court does not consider further amendment
futile or believe that Warren’s failure to cure the prior
complaints’ deficiencies was the result of bad faith. The
Court

notes

that

the

Second

Amended

Complaint

is

an

improvement from the previous two, and shows an attempt by
Warren to comply with the Court’s Orders. The caption now
specifies that Officer Gassen is being sued in his official
capacity only. (Doc. # 43 at 1). Excepting the reference in
Count III’s prayer for relief, all references to TSPD as a
party have been removed. (Id. at 24). Additionally, Warren
has explicitly incorporated by reference factual allegations
for Counts I and II. (Id. at ¶¶ 37a, 47). Although the Second
Amended Complaint still falls short, the Court will give
Warren a final opportunity to address the following problems
in a Third Amended Complaint.
A. State Each Claim with Particularity in Separate Counts
Although

the

Second

Amended

Complaint

does

not

impermissibly incorporate every preceding allegation into
each Count, it is nevertheless a shotgun pleading because it
does not separate all its claims into separate counts. Despite
the Court’s previous warnings, Count I is brought under two
federal statutes — 42 U.S.C. §§ 1983 and 1985 — and attempts

9

to assert claims under both the First and Fourth Amendments
to the United States Constitution. (Doc. # 43 at 14).
As the Court explained in its May 23, 2016, Order, “Count
I is a hodgepodge of potential claims and constitutes an
impermissible shotgun pleading.” (Doc. # 33 at 7). If Warren
chooses to amend the Second Amended Complaint and proceed in
this action, the Court advises Warren that he must separate
each cause of action or claim into different counts.
B. Explicitly Incorporate Factual Allegations for
Each Count
The

first

allegations.

two

But

counts
Count

explicitly
II

incorporate

incorporates

some

factual
factual

allegations irrelevant to Warren’s libel and slander claim.
For example, Paragraph 34b asserts violations of Warren’s
rights to: “reside peacefully, travel and shop on [his] bike[]
and have quiet enjoyment of [his] live aboard boat.” (Id. at
¶ 34b). If he chooses to amend, Warren should incorporate
only the factual allegations relevant to Count II’s libel and
slander claim.
Additionally, Warren has not explicitly incorporated
factual allegations for the final four counts, leaving the
City

and

Officer

Gassen

to

sift

through

the

factual

allegations to determine which are relevant to those claims

10

against them. See Durrance v. Deutsche Bank Nat’l Tr. Co.,
No. 3:12-cv-1097-J-99MMH-MCR, 2012 WL 5416950, at *1 (M.D.
Fla.

Oct.

16,

2012)(noting

that

shotgun

complaints

face

courts and defendants “with the onerous task of sifting out
irrelevancies in order to decide for [themselves] which facts
are relevant to [the] particular cause of action asserted.”).
For

example,

as

Warren

chose

to

remove

Michelle

as

a

plaintiff, the allegations describing purported violations of
Michelle’s constitutional rights or involving her seizure on
December 19, 2015, are irrelevant to Warren’s claims. (Doc.
# 43 at ¶¶ 17, 34). Without explicit incorporation of the
relevant paragraphs into each count, the City and Gassen are
unable to determine which of the factual allegations they
must address in their defenses for each claim.
Therefore, if he files a Third Amended Complaint, Warren
should clearly identify which of the factual allegations are
relevant to every claim by way of explicit incorporation.
Thus, Warren must, as all plaintiffs must, present his claims
discretely and succinctly. See Fikes v. City of Daphne, 79
F.3d 1079, 1082 (11th Cir. 1996).
C. Properly Add or Remove Parties
As discussed, the Second Amended Complaint’s caption
differs from the caption in the original Complaint. Michelle

11

has been removed as a plaintiff and TSPD has been removed as
a defendant; however, the proper procedure for dismissing
parties was not followed. A review of the file reveals that
Warren has not filed a notice of voluntary dismissal as to
these parties, pursuant to Rule 41(a)(1)(A). Rather, Warren
removed these parties without informing the Court or the
remaining defendants.
Furthermore, the Second Amended Complaint still lists
Officer Lemmon as a defendant. However, the deadline to add
parties or amend pleadings set by the Case Management and
Scheduling Order, (Doc. # 18), passed on May 23, 2016, before
the First Amended Complaint, adding Officer Lemmon, was filed
on June 10, 2016, and the Second Amended Complaint was filed
on July 28, 2016. This is improper procedure. The Court’s
Orders allowed Warren to amend both his original and amended
complaints “to clarify existing claims; it did not permit
adding new claims or parties.” Kahama VI, LLC v. HJH, LLC,
No. 8:11-cv-2029-T-30TBM, 2013 WL 6511731, at *3 (M.D. Fla.
Dec. 12, 2013). A review of the record reveals that Warren
has not moved for leave to add Officer Lemmon. See Id.
(advising that the plaintiff “should have requested leave to
add

the

new

claims

and

parties

Complaint].”).

12

to

its

[Third

Amended

Rather, Warren requests that Officer Lemmon be added as
a defendant and that Michelle be reinstated as a plaintiff in
his response to the Motion to Dismiss or for a More Definite
Statement. (Doc. # 45 at 5). As explained already, this is
not the proper procedure for adding or removing parties.
Therefore, Officer Lemmon has not been added, nor will be
added, as a defendant in this action.
Finally, imbedding requests in a response in opposition
to a motion is an inappropriate method of requesting any form
of relief from the Court. Under the Local Rules, all requests
for relief from the Court are to be made in the form of a
motion,

and

must

comply

with

all

other

rules

regarding

motions. See Local Rule 3.01(f), M.D. Fla. (“All applications
to

the

Court

requesting

relief

in

any

form,

or

citing

authorities or presenting argument with respect to any matter
awaiting decision, shall be made in writing [] in accordance
with this rule . . .”). Future filings that do not comply
with these rules will be stricken.
Plaintiff

Warren

Gregory

may

file

a

Third

Amended

Complaint, which corrects the problems described above, on or
before October 14, 2016. The Third Amended Complaint will be
the last.
Accordingly, it is

13

ORDERED, ADJUDGED, and DECREED:
(1)

Defendants City of Tarpon Springs, and Steve Gassen’s
Motion to Dismiss is DENIED. Alternatively, Defendants’
Motion for a More Definite Statement (Doc. # 44) is
GRANTED.

(2)

Plaintiff

Warren

Gregory

may

file

a

Third

Amended

Complaint by October 14, 2016, failing which, the Court
will dismiss the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 5th
day of October, 2016.

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