Gregory et al v. City of Tarpon Springs et al

Filing 62

ORDER: Defendants City of Tarpon Springs and Officer Gassen's Motion to Dismiss (Doc. # 55) is granted. Gregory's Third Amended Complaint is dismissed with prejudice. The Clerk is directed to terminate any pending motions and thereafter close this case. Signed by Judge Virginia M. Hernandez Covington on 12/8/2016. (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 Third Amended Complaint (Doc. # 55),
filed on November 2, 2016. Plaintiff Warren Gregory filed a
response in opposition on November 20, 2016. (Doc. # 58). For
the reasons that follow, the Court grants the Motion to
Dismiss with prejudice.
I.

Background
Warren Gregory resides in the City of Tarpon Springs,

Florida,

on

a

live-aboard

boat

with

his

wife,

Michelle

Gregory. 1 (Doc. # 51 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 “at a marina off property owned
by a local businessman.” (Id. at ¶ 30).
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 while 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, the Tarpon Springs Police Department (TSPD) was
less

enthusiastic

Complaint

alleges

about

Warren’s

Officer

Gassen

decorated
of

the

bicycles.
TSPD

The

“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, 51a). The
Third Amended Complaint describes the events leading up to
the December 14, 2013, arrest as follows: “[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

2

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 Third Amended Complaint, which
does not allege the reason for the police presence, 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 that Florida Fish
and Wildlife Conservation Commission (FWC) officers search
the live-aboard boat. (Id.). During the search, FWC officers
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 Warren 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
officers

Third
knew

Amended
Warren

Complaint

was

not

a

also

alleges

felon,

but

the

TSPD

nevertheless

arrested him 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, who are represented by
counsel, 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

granted

4

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, as set by the
Case Management and Scheduling Order, passed on May 23, 2016.
(Doc. # 18). Although 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.
On August 1, 2016, the City and Officer Gassen filed a Motion
to

Dismiss

the

Second

Amended

Complaint,

or

for

a

More

Definite Statement. (Doc. # 44). The Court granted that Motion
on October 5, 2016, and granted Warren leave to file a Third
Amended Complaint. (Doc. # 48). In its Order, the Court
reemphasized that the Third Amended Complaint should state
each claim with particularity in separate counts, explicitly
incorporate factual allegations for each count, and follow
the proper procedures for adding or removing parties. (Id. at
9-11).
On October 14, 2016, Warren filed both a Motion to add
Officer Lemmon as a defendant and the Third Amended Complaint,
listing Officer Lemmon, the City, and Officer Gassen as

6

defendants, and Warren and Michelle as plaintiffs. (Doc. ##
50, 51). The thirty-nine page Third Amended Complaint brings
the following seven Counts:
Count I:

Violation of Plaintiff’s First Amendment
Right to Travel in and Around Tarpon Springs
Under 42 U.S.C. § 1983
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 In Their Official
Capacities and the City of Tarpon Springs
Warren Gregory Malicious Prosecution Action
for 2013 Arrest
Complaint by Michelle Gregory for
Retaliation by Defendant Steve Gassen
Against a Federal Witness

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

Count VI:
Count VII:

(Doc. # 51). The Third Amended Complaint adds Count VI, which
was not pled in the previous three complaints.
The City of Tarpon Springs and Officer Gassen then filed
their Motion to Dismiss on November 2, 2016, arguing that the
Third Amended Complaint should be dismissed with prejudice
for

repeated

failure

to

cure

the

previous

complaints’

deficiencies. (Doc. # 55 at 3). Warren filed a response in
opposition on November 20, 2016. (Doc. # 58). The Motion is
ripe for review.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

7

the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this

Court

favors

the

plaintiff

with

all

reasonable

inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for 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, 663 (2009) (quoting

8

Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Further, “[a]fter Iqbal it is clear that there is no
‘heightened

pleading

standard’

as

it

relates

to

cases

governed by Rule 8(a)(2), including civil rights complaints.
All that remains is the Rule 9 heightened pleading standard.”
Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).
III. Analysis
A.

Shotgun Pleading and Repeated Failure
to Cure Deficiencies

“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

9

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).
“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). The Eleventh Circuit has cautioned that
“where a more carefully drafted complaint might state a claim,
a plaintiff must be given at least one chance to amend the
complaint before the district court dismisses the action with
prejudice.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001)(internal quotations and citations omitted).

10

Nevertheless, the City and Officer Gassen urge the Court
to dismiss the Third Amended Complaint with prejudice because
Warren has failed to clarify his claims sufficiently after
three amendments. (Doc. # 55 at 2). 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

allowed;

(2)

cure

deficiencies

where

allowing

by

amendments

amendment

would

previously
cause

undue

prejudice to the opposing party; or (3) where amendment would
be futile.” Bryant, 252 F.3d at 1163.
The

Court

agrees

that

Warren

has

been

given

ample

opportunity to file a complaint that clearly states a cause
of action to which the City and Officer Gassen could respond.
Indeed, the Court warned Warren in its Order dismissing the
Second Amended Complaint that the Third Amended Complaint
would be his “final opportunity to address” the recurring
issues

with

Nevertheless,

the

previous

the

Third

complaints.
Amended

(Doc.

Complaint

#
—

48

at

while

9).
an

improvement — does not correct the deficiencies the Court
pointed out to Warren in its previous Orders.
Under Count I, styled as “Violation of Plaintiff’s First
Amendment Right to Travel in and Around Tarpon Springs Under
42 U.S.C. § 1983,” it is still unclear under what legal theory

11

Warren is proceeding. For example, the right to travel is
established under the Fourteenth Amendment, rather than the
First

Amendment.

See

Saenz

v.

Roe,

526

U.S.

489,

500

(1999)(stating that the Fourteenth Amendment right to travel
embraces “the right of a citizen of one State to enter and to
leave another State, the right to be treated as a welcome
visitor rather than an unfriendly alien when temporarily
present in the second State, and, for those travelers who
elect to become permanent residents, the right to be treated
like other citizens of that State”).
Additionally, the allegations within Count I indicate
that Warren is attempting to bring a claim for violations of
rights other than the right to travel. For example, Warren
alleges

that

[A]mendment

Officer
artistic

Gassen

violated

expression

Warren’s

rights”

and

“[F]irst
retaliated

against Warren for the “exercise of his First Amendment
grievance rights.” (Doc. # 51 at ¶¶ 41, 45).
The Court has previously warned Warren that he must
“state[] each count or claim with particularity regarding the
legal theory and relief requested” and “set[] forth each claim
for relief in separate numbered counts.” (Doc. # 42). While
Count I by its title explicitly refers to only one claim
regarding Warren’s right to travel, the body of Count I

12

remains “a hodgepodge of potential claims.” (Doc. # 33 at 7);
see also Warner v. City of Marathon, No. 14-10071-CIV-KING,
2015 WL 5194608, at *3 (S.D. Fla. Sept. 4, 2015)(dismissing
third

amended

complaint

with

prejudice

where

“Plaintiffs

improperly [pled] at least four distinct causes of action
under 42 U.S.C. § 1983 in each count,” including “an equal
protection claim, a due process claim, a ‘right to contract’
claim, and a Fourth Amendment unreasonable search claim”).
Thus, the City and Officer Gassen must speculate as to “the
claims against them and the grounds upon which each claim
rests.” Weiland, 792 F.3d at 1323.
Because “a complaint that fails to articulate claims
with sufficient clarity to allow the defendant to frame a
responsive pleading constitutes a shotgun pleading,” Count
I’s vague references to various legal theories and possible
claims

warrant

the

Third

Amended

Complaint’s

dismissal.

Lampkin-Asam v. Volusia Cty. Sch. Bd., 261 F. App’x 274, 277
(11th

Cir.

2008)(internal

quotations

omitted);

see

also

Apothecary Dev. Corp. v. City of Marco Island, Fla., No. 2:10cv-392-FtM-36DNF, 2011 WL 1071448, at *2 (M.D. Fla. Mar. 18,
2011)(“It is impermissible to combine multiple claims with
different claims with different legal standards into one
count.”).

13

In

addition,

the

claims

for

false

arrest,

false

imprisonment, and malicious prosecution do not state whether
they are federal, state, or common law causes of action. Thus,
the applicability of defenses like sovereign immunity — which
may apply for state law claims — is unclear to the City and
Officer Gassen, “mak[ing] it difficult, if not impossible,
for the City to frame a responsive pleading.” (Doc. # 55 at
9). As the case is on its fourth complaint and the Defendants
are still unsure of the claims against them, the Court finds
that allowing further amendment would prejudice the City and
Officer Gassen. See Apothecary Dev. Corp., 2011 WL 1071448,
at

*2

(noting

that

shotgun

pleadings

combining

multiple

claims in one count are “harmful and costly to litigants”).
The Third Amended Complaint adds Count VII by Michelle
against Officer Gassen for retaliation against a federal
witness.

However,

as

the

Court

explained

in

the

Order

dismissing the Second Amended Complaint, 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). Nevertheless, the Third Amended Complaint
adds this new claim. See Butler v. Crosby, No. 3:04-cv-917-

14

J-32MMH,

2006

WL

1071988,

at

*8

(M.D.

Fla.

Feb.

8,

2006)(“Whether a motion to amend adds a new legal issue is a
factor courts consider when determining whether to permit an
amendment.”).
Count VII also fails to heed the Court’s warning that
the

legal

theory

behind

each

claim

must

be

stated

with

particularity — it is unclear under what law this claim is
brought. Furthermore, additional discovery regarding this new
claim will be required, even though the parties have been
diligently engaged in discovery for months. See Dannebrog
Rederi AS v. M/Y True Dream, 146 F. Supp. 2d 1307, 1315 (S.D.
Fla. 2001)(recognizing that amendment would be prejudicial
“if the opponent would be required to engage in significant
new preparation at a late stage of the proceedings”).
Based on Warren’s failure to cure the deficiencies of
the previous complaints and failure to heed the Court’s
warnings regarding the addition of new parties and claims,
the Court finds that dismissal with prejudice is appropriate.
See Marshall v. Aryan Unlimited Staffing Solution/Faneuil
Inc./MacAndrews & Forbs Holding, 599 F. App’x 896, 899 (11th
Cir.

2015)(affirming

dismissal

with

prejudice

of

pro

se

plaintiff’s sixth amended complaint because “it was a shotgun
pleading that made it impossible to know which allegations of

15

fact were intended to support which claims for relief”). While
courts should grant leave to amend liberally, Warren is
represented by experienced counsel who has had the benefit of
the Court’s previous detailed orders in order to address the
deficiencies in the pleadings.
Even if the Court did not conclude that the Third Amended
Complaint is a shotgun pleading, dismissal would still be
warranted for the independent reasons discussed below.
B.

Section 1983 Claim

In Count I, Warren brings a § 1983 claim for violation
of his right to travel against both the City and Officer
Gassen, in his official capacity. Although Warren premises
this claim on the First Amendment, the right to travel claim
is properly brought pursuant to the Fourteenth Amendment.
Regardless of the Count’s labelling, this claim is due to be
dismissed against both the City and Officer Gassen.
a. Official Capacity Claim Against Officer Gassen
The

claim

against

Officer

Gassen

in

his

official

capacity is redundant and due to be dismissed. “[W]hen an
officer is sued under Section 1983 in his or her official
capacity, the suit is simply another way of pleading an action
against an entity of which an officer is an agent.” Busby v.
City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991)(quoting

16

Ky. v. Graham, 473 U.S. 159, 165 (1985))(internal quotation
marks omitted). Such a suit against an officer is actually a
suit against the city that the officer serves. Id.
Accordingly, even if the Third Amended Complaint were
not a shotgun pleading, the § 1983 claim against Officer
Gassen should still be dismissed with prejudice. See Ross v.
City of Tarpon Springs, No. 8:11-cv-2671-T-30EAJ, 2012 WL
1382271,

at

*3

(M.D.

Fla.

Apr.

20,

2012)(“The

court,

therefore, will dismiss the section 1983 first amendment
retaliation claim against DiPasqua in his official capacity
with prejudice.”); Cannon v. City of Sarasota, No. 8:09-cv739-T-33TBM,

2010

WL

962934,

at

*3

(M.D.

Fla.

Mar.

16,

2010)(“The Court finds that Plaintiffs’ claims against Chief
Abbott in his official capacity are redundant as Plaintiffs
have also sued the City. The claims against Chief Abbot in
his official capacity are dismissed with prejudice.”).
b. “First Amendment Right to Travel” Claim
Furthermore,

after

untangling

the

various

potential

claims in Count I, the Court finds this count against the
City should also be dismissed for failure to state a claim.
Warren states that the City violated his “[F]irst [A]mendment
legal right under the Federal Constitution to travel,” but

17

the allegations of the Third Amended Complaint do not support
such a claim. (Doc. # 51 at ¶43).
The Fourteenth Amendment right to travel embraces
the right of a citizen of one State to enter and to
leave another State, the right to be treated as a
welcome visitor rather than an unfriendly alien
when temporarily present in the second State, and,
for those travelers who elect to become permanent
residents, the right to be treated like other
citizens of that State.
Saenz, 526 U.S. at 500. Warren’s claim does not involve the
freedom to travel interstate. Rather, Warren, who states that
he has been a permanent resident in Tarpon Springs for years,
complains that the City’s officers harass him and Michelle as
they travel throughout the City. (Doc. # 51 at ¶¶ 43-44).
However, the right to intrastate travel is not recognized
under the Fourteenth Amendment. See Wright v. City of Jackson,
506 F.2d 900, 901-02 (5th Cir. 1975)(“Since we can find no
fundamental

constitutional

right

to

intrastate

travel

infringed by this ordinance, the City was not required to
justify the ordinance under the compelling interest standard
which must be met upon interference with a right to travel
interstate. We, therefore, affirm the dismissal failure to
state a claim.”). Therefore, Warren has failed to state a

18

claim against the City for violating his Fourteenth Amendment
right to travel. 2
And to the extent that a claim may lie under the Due
Process

Clause

of

the

Fourteenth

Amendment,

under

which

citizens “have a constitutionally protected liberty interest
to be . . . on . . . city lands of their choosing that are
open to the public generally,” Warren has not pled such a
claim, nor could the City and Officer Gassen be expected to
anticipatorily

respond

to

such

a

claim

in

a

responsive

pleading. Catron v. City of St. Petersburg, 658 F.3d 1260,
1266 (11th Cir. 2011)(quotation omitted).
c.

Other First Amendment Claims

Furthermore, Warren’s allegations regarding his freedom
of speech and artistic expression, included under his right
to travel claim, fail to state a claim against the City. A

To the extent that the Florida Constitution protects the
right to intrastate travel, State v. J.P., 907 So. 2d 1101,
1113 (Fla. 2004)(acknowledging that “the United States
Supreme Court has never definitively ruled that there is a
fundamental right to intrastate travel and that the federal
circuit courts are divided on the issue” but that, under the
Florida Constitution, “the right to intrastate travel in
Florida is clear”), such a state claim would not be brought
under § 1983. Bailey v. Wheeler, No. 15-11627, 2016 WL
6947003, at *3 (11th Cir. Nov. 28, 2016)(“To establish a claim
under § 1983, a plaintiff must demonstrate that a person
acting under color of state law deprived him of a federal
right.”)(citing Myers v. Bowman, 713 F.3d 1319, 1329 (11th
Cir. 2013).
2

19

plaintiff

seeking

to

impose

liability

on

a

governmental

entity under § 1983 must identify a “municipal ‘policy or
custom’ that caused the plaintiff’s injury.” Bd. of Cty.
Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403
(1997). Warren does not allege the existence of an ordinance
or official custom of the City to prevent artistic displays,
like Warren’s bicycle art, from being exhibited on sidewalks
or private property. See Williams v. Orlando Police Dep’t,
No. 6:14-cv-1813-Orl-22TBS, 2015 WL 136088, at *3 (M.D. Fla.
Jan. 9, 2015)(dismissing pro se plaintiff’s second amended
complaint

with

prejudice

because

“[n]one

of

Plaintiff’s

pleadings contain even a bare allegation that his injuries
were caused by an unconstitutional policy or custom, much
less describe such policy or custom”).
Rather, Warren points to the apparent vendetta of one
police officer, Officer Gassen, who “continually demand[ed]
that [Warren] move his bicycles.” (Doc. # 51 at ¶ 41). When
Warren refused to comply with these orders, Officer Gassen
“pushed one of the bikes into the Anclote River, smashed
another and [threw] others into the middle of the street
damaging them permanently.” (Id. at ¶ 42a). However, “[p]roof
of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell, unless proof of

20

the incident includes proof that it was caused by an existing,
unconstitutional

municipal

policy,

which

policy

can

be

attributed to a municipal policymaker.” Okla. City v. Tuttle,
471 U.S. 808, 824 (1985).
Additionally,
unconstitutional
county

policy

“[a]

policymaker’s

action
only

can

when

approval

constitute

the

of

an

unconstitutional

policymaker

‘approve[s]

a

subordinate’s decision and the basis for it.’” Gattis v.
Brice, 136 F.3d 724, 727 (11th Cir. 1998)(quoting City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). While Warren
alleges that Officer Gassen’s “actions were sanctioned by the
City Manager, Police Chief, Commissioners and Mayor by their
doing

nothing

citizens

and

complaints,”

about

[Warren’s]

artistic

citizens

such

an

and
oral

allegation

other
and

does

appreciative

written
not

show

letter
that

policymakers for the City knew of and ratified the motives
for Officer Gassen’s actions. (Id. at ¶ 45).
C.

Slander and Libel Claim, Count II

Even beyond the Third Amended Complaint’s status as a
shotgun pleading, the City and Officer Gassen argue that the
state-law slander and libel claim against Officer Gassen, in
his official capacity, should be dismissed because Warren has

21

failed to state a claim and Officer Gassen has absolute
immunity.
To establish a claim for defamation, a plaintiff must
prove “(1) the defendant published a false statement (2) about
the plaintiff (3) to a third party and (4)that the falsity of
the statement caused injury to the plaintiff.” Bass v. Rivera,
826 So. 2d 534, 535 (Fla. 2d DCA 2002). Under Florida law,
“[p]ublic officials who make statements within the scope of
their duties are absolutely immune from suit for defamation.”
Stephens v. Geoghegan, 702 So. 2d 517, 522 (Fla. 2d DCA 1997).
This

“absolute

privilege

protects

the

statements

of

all

public officials, regardless of the branch of government or
the level of the official.” Cassel v. India, 964 So. 2d 190,
194 (Fla. 4th DCA 2007). Accordingly, this absolute privilege
extends to police officers, like Officer Gassen. See Id.
In determining whether a public employee can be liable
for defamatory statements, the focus is on “whether the
communication was within the scope of the officer’s duties.”
City of Miami v. Wardlow, 403 So. 2d 414, 416 (Fla. 1981).
“The

scope

of

an

officer’s

duties

is

to

be

liberally

construed.” Cassel, 964 So. 2d at 194 (Goetz v. Noble, 652
So. 2d 1203, 1205 (Fla. 4th DCA 1995)). “The term ‘duties’ is
not confined to those things required of the officer, but

22

rather extends to all matters which he is authorized to
perform.”

Id.

(citing

Stephens,

702

So.

2d

at

523).

Furthermore, “the fact that the substance of the statement
was unsupported and turned out to be false” does not affect
this privilege. Cassel, 964 So. 2d at 195. “The fact that
[Officer Gassen’s] statement may be viewed as having an
unworthy

or

non-public

purpose

does

not

destroy

the

privilege.” Id. (citing Barr v. Mateo, 360 U.S. 564, 575
(1959)).
In

the

Third

Amended

Complaint,

Warren

brings

his

slander and libel claim against Officer Gassen in his official
capacity and states that, in the course of arresting Warren,
Officer Gassen “loudly told the gathered crowd in a loud voice
the slanderous statement that Warren Gregory was a Felon who
should not have a gun.” (Doc. # 51 at ¶¶ 15, 47a). Officer
Gassen’s “loud oral statements” were made “at the time of
[Warren’s] false imprisonment and/or arrest.” (Id. at ¶ 47a);
see

also

Cassell,

“complaint
Cassell

was

964

affirmatively
acting

So.

2d

at

alleged

within

‘the

194
at

(noting

all

course

that

material

and

scope

the

times
of

his

employment’ with the city, an allegation which India has not
disavowed”).

As

the

Third

Amended

Complaint

itself

acknowledges that Officer Gassen was acting in his official

23

capacity and made the defamatory statements during Warren’s
arrest, Warren has failed to state a claim for libel or
slander that is not barred by an absolute privilege.
Warren

also

complains

“of

the

publication

on

the

worldwide internet and newspapers and false probable cause
affidavits and publicly accessible police reports of false
allegations” of his arrest. (Id. at ¶ 49). To the extent that
Warren wishes to hold the City and Officer Gassen liable for
the publication of publicly accessible police records or
third party articles regarding Warren’s arrests, the claim
cannot stand. Warren was arrested, and reports to that effect
are not false statements. See Meyer v. Franklin, No. 1:15cv-185-MW-GRJ, 2016 WL 944421, at *13 (N.D. Fla. Feb. 25,
2016), report

and

recommendation

adopted,

No.

1:15CV185-

MW/GRJ, 2016 WL 953851 (N.D. Fla. Mar. 11, 2016)(granting
summary judgment to defendants on defamation claim because
“the arrest report did not contain a false statement. The
arrest report confirmed that [Plaintiff] was arrested and
identified the charge for which [Plaintiff] was arrested.”);
Henning v. Day, No. 6:15-cv-927-Orl-40DAB, 2016 WL 1068482,
at *9 (M.D. Fla. Mar. 18, 2016)(“Count 14 alleges slander per
se against the website that displayed Plaintiff’s mugshot on
the Internet. Again, however, the truth of the website’s

24

publication bars recovery, as there can be no dispute that
Plaintiff was truthfully arrested and charged with aggravated
battery.”).

Furthermore,

publication

to

the

internet

of

public documents like arrest reports by third parties cannot
be held against the City and Officer Gassen. See Meyer, 2016
WL 944421, at *13 (“[T]o the extent that a third party posted
Plaintiff’s mugshot on a public website, Officer Franklin
cannot be liable for the actions of third parties.”).
Therefore, as the allegedly defamatory statements were
made in the course of Officer Gassen’s duties and the City
and Officer Gassen cannot be held liable for the truthful
publication of the fact of Warren’s arrest, Count II should
be dismissed with prejudice.
D.

False Arrest Claims and False Imprisonment Claim,
Counts III, IV, and V
a. False Arrest

The City and Officer Gassen argue that the false arrest
claims against the City, as pled by Warren, are barred by
sovereign immunity. Florida Statute Section 768.28 states:
The state or its subdivisions shall not be liable
in tort for the acts or omissions of an officer,
employee, or agent committed while acting outside
the course and scope of her or his employment or
committed in bad faith or with malicious purpose or
in a manner exhibiting wanton and willful disregard
of human rights, safety, or property.

25

Fla. Stat. § 768.28(9)(a).
Although they acknowledge that false arrest claims are
not typically barred by immunity, the City and Officer Gassen
note that Warren pleads these claims as though the arrests
were made in bad faith. (Doc. # 55 at 15); see also Jibory v.
City of Jacksonville, 920 So. 2d 666, 667 (Fla. 1st DCA
2006)(holding no sovereign immunity for false arrest claim).
Specifically, Warren states that Officer Gassen, acting in
his

official

capacity,

acted

with

“express

malice”

and

“improper, illegal and unconstitutional purposes.” (Doc. # 51
at ¶¶ 54, 61); see also Dunn v. City of Boynton Beach, No.
15-81499-CIV-MARRA, 2016 WL 3256935, at *1 n.1 (S.D. Fla.
June 14, 2016)(“The reference to ‘bad faith’ in section
768.28(9)(a) is equivalent to actual malice, which depends on
subjective

intent.”)(citation

omitted).

Under

Section

768.28(9)(a), the City cannot be held liable for malicious
actions taken in bad faith by Officer Gassen. Fla. Stat. §
768.28(9)(a). Therefore, as pled, the Court agrees that the
false arrest claims against the City should be dismissed as
barred by sovereign immunity.
Furthermore, even if the claims as pled were not barred
by sovereign immunity, the City and Officer Gassen contend
the false arrest and false imprisonment claims against them

26

are subject to dismissal for failure to comply with the presuit

notice

requirement

under

Florida

law.

Section

768.28(6)(a), in pertinent part, states that “[a]n action may
not be instituted on a claim against the state or one of its
agencies or subdivisions unless the claimant presents the
claim in writing to the appropriate agency . . . within 3
years after such claim accrues” Fla. Stat. § 768.28(6)(a). In
the Third Amended Complaint, Warren states that “Florida
Statute [Section] 768 does not apply in Federal Court.” (Doc.
# 51 at ¶ 4).
Warren is only partially correct. Section 768 does not
apply to § 1983 claims. Majette v. O’Connor, 811 F.2d 1416,
1418 (11th Cir. 1987). However, Section 768 does apply to
pendent state law claims brought in federal court. See Posen
Constr., Inc. v. Lee Cty., 921 F. Supp. 2d 1350, 1357 (M.D.
Fla.

2013)(applying

section

768.28

to

supplemental

state

claims because “[a] rule that permits in the federal forum
what is clearly barred in the state forum would invariably
lead to forum shopping and, as a result, inequitable results
for similar claims”). Warren fails to allege that he served
pre-suit notice on the City for his state claims. See Doe v.
G-Star Sch. of the Arts, Inc., No. 16-cv-80446-BLOOM/Valle,
2016

WL

4625625,

at

*4

(S.D.

27

Fla.

Sept.

6,

2016)(“[A]

plaintiff

must

satisfy

the

notice

requirements

prior

to

maintaining a lawsuit against a subdivision of the State,
‘and the complaint must contain an allegation that such notice
was given.’”)(citation omitted). Accordingly, these claims
are due to be dismissed.
b. False Imprisonment
Additionally, the City and Officer Gassen argue that the
false imprisonment claim, Count V, is duplicative of the false
arrest claim regarding Warren’s arrest in December of 2015.
The Court agrees. To be sure, often “false arrest and false
imprisonment are different labels for the same cause of
action.” Smart v. City of Miami, 107 F. Supp. 3d 1271, 1280
(S.D. Fla. 2015)(quoting Weissman v. K-Mart Corp., 396 So. 2d
1164, 1165 n.1 (Fla. 3d DCA 1981)); see also Dunn, 2016 WL
3256935, at *1 n.1 (“In this case, the alleged false arrest
and false imprisonment are the same cause of action and the
Court refers to the claim as solely a false arrest claim.”).
While some courts have treated the two claims differently,
the Court finds that the false arrest and false imprisonment
claim

are

duplicative

here

because

the

arrest

and

imprisonment of which Warren complains occurred in the same
short period of time.

28

The alleged false arrest and false imprisonment were
coterminous — both occurred in the short, approximately one
hour period during which Warren was arrested and detained in
the back of the police car outside of his live-aboard boat.
See, e.g., Weissman, 396 So. 2d at 1166 (treating false arrest
and

false

imprisonment

claim

as

identical

where

the

plaintiff’s “entire detention [at the store] did not exceed
thirty minutes” for a shoplifting charge); compare Mathis v.
Coats, 24 So. 3d 1284, 1289 (Fla. 2d DCA 2010)(treating false
imprisonment as a broader tort than false arrest where the
plaintiff was arrested during a traffic stop in the afternoon,
but

not

released

Therefore,

the

from

false

jail

until

imprisonment

noon
claim

the

next

should

day).

also

be

dismissed.
E.

Malicious Prosecution Claim, Count VI

Finally, the City and Officer Gassen argue that the City
is immune from a state law claim for malicious prosecution.
The Court agrees: to the extent Warren brings this claim under
state law, the City cannot be sued for malicious prosecution.
Fla. Stat. § 768.28(9)(a); see Tozier v. City of Temple
Terrace, No. 8:10-cv-2750-T-33EAJ, 2011 WL 3961816, at *3
(M.D. Fla. Sept. 8, 2011)(dismissing state law malicious
prosecution claim against city); Johnson v. State Dep’t of

29

Health & Rehab. Servs., 695 So. 2d 927, 930 (Fla. 2d DCA
1997)(finding

that

sovereign

immunity

provisions

of

Fla.

Stat. § 768.28(9) bar an action for malicious prosecution
against the state or its subdivisions).
Although it is unclear whether the malicious prosecution
claim is being brought under federal, state, or common law,
the Court finds that Warren should not be granted leave to
amend this claim as the Court has previously advised Warren
of the necessity of specifying under what law each claim is
brought.
IV.

Conclusion
Despite being represented by counsel, Warren has still

failed to state claims upon which relief may be granted after
four opportunities. Therefore, the Court dismisses the Third
Amended Complaint with prejudice.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants City of Tarpon Springs and Officer Gassen’s
Motion to Dismiss (Doc. # 55) is GRANTED. Gregory’s Third
Amended Complaint is DISMISSED WITH PREJUDICE.

(2)

The Clerk is directed to terminate any pending motions
and thereafter CLOSE THIS CASE.

30

DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of December, 2016.

31