Thomas v. Derryberry et al
Filing
35
ORDER: Defendant City of Brooksville's Motion to Dismiss (Doc. # 17 ) is GRANTED. The Amended Complaint (Doc. # 15 ) is DISMISSED WITHOUT PREJUDICE. Thomas may file a second amended complaint by June 23, 2017. If Thomas files a second amended complaint, he must conform to the pleading requirements of the Federal Rules of Civil Procedure and cure the defects addressed herein. Signed by Judge Virginia M. Hernandez Covington on 5/24/2017. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DERREL LEONARD THOMAS,
Plaintiff,
v.
Case No. 8:16-cv-3482-T-33AEP
SHANE DERRYBERRY, et al.,
Defendants.
/
ORDER
This matter comes before the Court upon consideration of
Defendant City of Brooksville’s Motion to Dismiss (Doc. #
17), filed on May 8, 2017. Plaintiff Derrel Leonard Thomas,
who is proceeding pro se, filed his “Objection to Defendant’s
Motion to Dismiss First Amended Complaint,” which the Court
construes as Thomas’s response in opposition, on May 18, 2017.
(Doc. # 30). For the reasons below, the Court dismisses the
Amended Complaint with leave to amend.
I.
Background
Thomas alleges that on August 4, 2016, he had a verbal
argument with one of his neighbors, which resulted in that
neighbor calling the police. (Doc. # 15 at ¶¶ 7, 8). When
Defendant Officers Shane Derryberry, Josh Caldwell, and Jeff
1
McDougal arrived at the scene, Thomas was sitting in his
garage. (Id. at ¶ 8). After speaking with the neighbor, who
is not identified in the Amended Complaint, McDougal and
Derryberry walked up Thomas’s driveway. (Id. at ¶ 9). Thomas
exited his garage and met the officers on the driveway. (Id.
at ¶ 10).
As Thomas was attempting to explain what happened, “the
Officers” (the Amended Complaint is not specific as to which
of the three officers Thomas is referring, but presumably
Thomas is referring to McDougal and Derryberry) threw Thomas
to the ground and handcuffed him. (Id. at ¶ 10). Thomas asked
why he was being arrested and McDougal responded that Thomas
was being arrested for disorderly intoxication and resisting
arrest without violence. (Id. at ¶ 11). Thomas alleges that
“the officers” (again, the Amended Complaint is not specific
as to which of the officers Thomas is referring) never saw
Thomas drinking and did not administer a breathalyzer test.
(Id. at ¶ 12).
Thomas was transported to the Hernando County Detention
Center (Id. at ¶¶ 3, 13). “When [he] arrived at the jail,
[Thomas] was stating the [il]legality of his arrest and racial
discrimination.” (Id. at ¶ 13). Eventually, Thomas was placed
2
in a restraining chair, although he alleges he was not violent
toward any detention deputy. (Id. at ¶ 14). Thomas was then
held in confinement without access to a television or a phone
for almost sixteen hours. (Id. at ¶ 15). As a result of the
chair’s restraints, Thomas alleges he lost feeling in his
left hand for two months. (Id. at ¶ 16). After being released,
Thomas spoke with a person identified by Thomas as “inspector
Faulkingham.”
Complaint,
(Id.
this
at
¶
inspector
17).
According
informed
to
Thomas
the
that,
Amended
after
reviewing the recordings, he “did not see [Thomas] do anything
wrong to be put in the restraining chair.” (Id.).
The disorderly intoxication charge and the resisting
without violence charge were both dismissed. (Id. at ¶¶ 24,
25). Thomas now brings suit under 42 U.S.C. § 1983 against
Derryberry, Caldwell, and McDougal for allegedly violating
his First, Fourth, and Fourteenth Amendment rights. (Id. at
¶¶ 28, 29). Thomas also asserts a claim under the Civil Rights
Act of 1964 for racial discrimination against Derryberry,
Caldwell, and McDougal. (Id. at ¶ 30). In addition, Thomas
brings a § 1983 claim against Hernando County Sheriff Al
Nienhuis for alleged violations of the First and Eighth
Amendments (Id. at ¶ 31), a § 1983 claim against Assistant
3
State Attorney Charles Helm for an alleged violation of the
Fourteenth Amendment (Id. at ¶ 32), and a § 1983 claim against
the City of Brooksville for an alleged violation of the
Fourteenth Amendment (Id. at ¶ 33).
The City of Brooksville has moved to dismiss. (Doc. #
17). Thomas has responded in opposition. (Doc. # 30). For the
reasons below, the Amended Complaint is dismissed without
prejudice and Thomas is granted leave to amend.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
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,
[w]hile 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
4
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). 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). Furthermore, “[t]he scope
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
A.
Shotgun Pleading
“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). 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
5
(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).
Here, the Amended Complaint is a shotgun pleading. The
Amended Complaint does not separate the different claims to
relief into different counts. For example, paragraph 28 of
the Amended Complaint brings two claims (a § 1983 claim for
an alleged free speech violation and a § 1983 claim for an
alleged violation of the Fourth Amendment) against three
Defendants. (Doc. # 15 at ¶ 28). If Thomas files a second
6
amended complaint, he must separate each cause of action or
claim to relief into a different count. In addition, Thomas
should specify which facts support which claims to relief.
So, for example, facts relating to the false arrest claim
against the Defendant police officers should not be included
in the Eighth Amendment claim against Neinhuis.
B.
Claim against the City of Brooksville
It is well-established that “a municipality may not be
held
liable
under
§
1983
solely
because
it
employs
a
tortfeasor.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 403 (1997). Rather, to recover damages from a local
governmental entity, such as a municipality or a city, under
§ 1983, a plaintiff must show: “(1) that [his] constitutional
rights were violated; (2) that the municipality had a custom
or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused
the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir.2004) (citing City of Canton v. Harris, 489 U.S. 378, 388
(1989)); see also Stephens v. Levens, No. 8:15-cv-2219-T33AEP, 2015 WL 5872593, at *3 (M.D. Fla. Oct. 5, 2015).
A
plaintiff
municipality
under
seeking
§
to
1983
impose
must
7
liability
identify
a
on
a
particular
municipal “policy” or “custom” that caused the constitutional
injury. Bd. of Cty. Comm’rs of Bryan Cty., 520 U.S. at 403.
A policy is a decision that is officially adopted
by the municipality, or created by an official of
such rank that he or she could be said to be acting
on behalf of the municipality. . . . A custom is a
practice that is so settled and permanent that it
takes on the force of law.
Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999) (quoting
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997)); see also Griffin v. City of Opa–Locka, 261 F.3d 1295,
1307 (11th Cir. 2001). The plaintiff must show that the
municipality’s policy or custom was the “moving force” that
caused the constitutional violation in order to establish §
1983 liability. McElligott v. Foley, 182 F.3d 1248, 1259 (11th
Cir. 1999); Young v. City of Augusta, Ga., 59 F.3d 1160, 1171
(11th Cir. 1995).
An inadequate training program can also be the basis for
§
1983
liability
in
limited
circumstances
where
the
municipality adhered to an approach that failed to prevent
tortious conduct by employees. Bd. of Cty. Comm’rs of Bryan
Cty., 520 U.S. at 407 (citing City of Canton, 489 U.S. at
387–390). “A pattern of tortious conduct by employees can
show that the lack of proper training constituted the ‘moving
8
force’ behind the plaintiff’s alleged injury.” Miller v. City
of Tampa, No. 8:10-cv-487-T-33EAJ, 2011 WL 2631974, at *2
(M.D. Fla. July 5, 2011) (citing Bd. of Cty. Comm’rs of Bryan
Cty., 520 U.S. at 407–408; Lewis v. City of W. Palm Beach,
Fla., 561 F.3d 1288 (11th Cir. 2009)).
The Amended Complaint mentions the City of Brooksville
only twice: once when alleging the City is being sued in its
“official
capacity[]
for
upholding
wrongdoing
of
its[]
officers . . .” and once when alleging the City “violated the
Fourteenth Amendment . . ., citizenship rights and equal
protection of the law based on race . . . .” (Doc. # 15 at 2,
9). Even assuming, without deciding, that Thomas alleges
enough facts to show a constitutional violation by the City’s
employees, there is no allegation in the Amended Complaint
that the City has a custom or policy that was the motivating
force behind the putative violation, or that the City failed
to properly train its officers.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant City of Brooksville’s Motion to Dismiss (Doc.
# 17) is GRANTED.
(2)
The Amended Complaint (Doc. # 15) is DISMISSED WITHOUT
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PREJUDICE. Thomas may file a second amended complaint by
June
23,
2017.
If
Thomas
files
a
second
amended
complaint, he must conform to the pleading requirements
of the Federal Rules of Civil Procedure and cure the
defects addressed herein.
DONE and ORDERED in Chambers in Tampa, Florida, this
24th day of May, 2017.
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