Smith v. Slimak et al
Filing
53
ORDER granting in part and denying in part 43 Motion to Dismiss. Counts II-VI are DISMISSED. Miami-Dade County is dismissed from the action. Count I against Slimak remains. Joint Scheduling Report due by 2/10/2025. Signed by Chief Judge Cecilia M. Altonaga on 1/29/2025. See attached document for full details. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-22990-CIV-ALTONAGA/Reid
SAMUEL LEE SMITH, JR.,
v.
Plaintiff,
MARK H. SLIMAK, et al.,
Defendants.
___________________________/
ORDER
THIS CAUSE came before the Court upon Defendants, Mark H. Slimak and Miami-Dade
County’s Joint Motion to Dismiss Second Amended Complaint [ECF No. 43], filed on December
11, 2024. Pro se Plaintiff, Samuel Lee Smith, Jr. filed a Response [ECF No. 49], to which
Defendants filed a Reply [ECF No. 50]. The Court has carefully considered the record, the parties’
written submissions, and applicable law. For the following reasons, the Motion is granted in part
and denied in part.
I. BACKGROUND
This action arises from a series of alleged incidents between Plaintiff and Defendant Mark
Slimak, a police officer with the Miami-Dade Police Department. (See generally Second Am.
Compl. (“SAC”) [ECF No. 26]). 1 Plaintiff contends the first incident occurred on December 31,
2021, when Slimak approached Plaintiff without reason and asked Plaintiff to identify himself.
Despite its label, Plaintiff’s “Second Amended Complaint” [ECF No. 26], filed on October 30, 2024, is
actually his third amended complaint and the fourth iteration overall. (See Compl. for Violation of Civil
Rights [ECF No. 1]; Am. Compl. [ECF No. 11]; Am. Compl. [ECF No. 16]). For clarity, and to be
consistent with the parties’ filings, the Court refers to the operative amended complaint filed on October
30, 2024 as the “SAC.”
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(See id. ¶ 16). When Plaintiff refused to provide identification, Slimak “forcefully detained”
Plaintiff, placed him in handcuffs, threatened to send him to jail, and refused to allow him to leave
for an unstated amount of time. (Id. ¶¶ 16–17).
In another incident, Slimak stared 2 at Plaintiff “menacing[ly]” and “threatening[ly]” in a
store parking lot, on an unspecified date. (Id. ¶ 19 (alterations added)). Then, on December 14,
2023, Slimak nearly hit Plaintiff with his car while Plaintiff was out jogging. (See id. ¶ 14). 3 After
this encounter, Slimak threatened to arrest Plaintiff and commanded him to stand on the sidewalk.
(See id. ¶ 15).
Plaintiff also generally alleges that Slimak has stalked him and threatened him with arrest,
incarceration, and violence. (See id. ¶ 13). Plaintiff purports to have video and audio recordings
of Slimak’s behavior but neither specifies what these recordings capture nor provides them with
the SAC. (See id. ¶ 20). He states that the alleged incidents have left him in fear for his life and
safety. (See id. ¶ 22).
Plaintiff brings claims against Slimak, in his personal capacity, and against Miami-Dade
County. (See id. ¶¶ 9–10, 24–56). Plaintiff’s claims against Slimak are for: (1) unlawful arrest
and false imprisonment under 42 U.S.C. section 1983; (2) unnecessary and excessive use of force
under section 1983; and (3) intentional infliction of emotional distress, presumably under Florida
state law. (See id. ¶¶ 24–38). He also sues Miami-Dade County, labeling one count “Federal Civil
Rights Violations” and titling another “Respondeat Superior[.]” (Id. ¶¶ 39–56 (alteration added)).
The Court considers Plaintiff’s use of “started” in the SAC a typographical error for the intended word,
“stared.” (SAC ¶ 19).
2
3
Plaintiff does not indicate whether this near collision was purposeful or accidental. (See id. ¶ 14).
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CASE NO. 24-22990-CIV-ALTONAGA/Reid
In response, Defendants bring the present Motion, seeking the dismissal of the SAC in full for
failure to state claims upon which relief can be granted. (See generally Mot.; Reply).
II. LEGAL STANDARD
“To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added; quoting
Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard “does not require
‘detailed factual allegations,’ . . . it demands more than an unadorned, the-defendant[s]-unlawfullyharmed-me accusation.” Id. (alterations added; quoting Twombly, 550 U.S. at 555).
Pleadings must contain “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (alteration added;
citation omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (alteration added; citing Twombly, 550 U.S. at 556). To meet
this “plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw
the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Id. at 678
(alterations added; citing Twombly, 550 U.S. at 556). “The mere possibility the defendant[s] acted
unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F.3d
1252, 1261 (11th Cir. 2009) (alteration added; citation omitted; abrogated on other grounds by
Mohamad v. Palestinian Auth., 566 U.S. 449 (2012)).
III. DISCUSSION
Defendants argue the SAC should be dismissed because (1) Plaintiff’s section 1983 claims
fail to state that Slimak violated a constitutional right, which is required to overcome Slimak’s
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qualified immunity defense (see Mot. 3–7); 4 (2) Slimak is statutorily protected from Plaintiff’s
intentional-infliction-of-emotional-distress (“IIED”) claim under Section 768.28(9)(a), Florida
Statutes (see Mot. 9–11); (3) Plaintiff’s IIED claim also fails to include facts meeting the required
elements of the claim (see id. 11–12); and, finally, (4) Plaintiff fails to articulate a viable theory of
liability against Miami-Dade County (see id. 12–16).
In considering the Motion to Dismiss, the Court first addresses the claims against Slimak,
personally; and then, the two counts against Miami-Dade County. The Court finds that only Count
I against Slimak states a plausible claim for relief. The other four claims are dismissed.
A. Count I: Unlawful Arrest/False Imprisonment under 42 U.S.C. Section 1983
(Against Slimak)
Plaintiff alleges constitutional violations by Slimak under 42 U.S.C. section 1983 for
unlawful arrest and false imprisonment. (See SAC ¶¶ 24–28). Defendants argue Plaintiff’s claim
of unlawful arrest or false imprisonment against Slimak in his personal capacity should be
dismissed because Plaintiff fails to allege facts that state a constitutional violation required to
overcome Slimak’s qualified immunity as a police officer. (See Mot. 3–7). The Court disagrees;
Plaintiff’s allegations, taken as true, show that Slimak violated Plaintiff’s clearly established
Fourth Amendment right to be free from unreasonable seizure.
Defendants assert that qualified immunity renders Slimak personally immune from suits
against him for actions undertaken in his job as a police officer. (See id. 5); see also Fleming v.
Barber, 383 F. App’x 894, 896 (11th Cir. 2010) (noting “[q]ualified immunity protects government
officials performing discretionary functions from suits in their individual capacities unless their
conduct violates clearly established statutory or constitutional rights of which a reasonable person
The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
of all court filings.
4
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CASE NO. 24-22990-CIV-ALTONAGA/Reid
would have known” (alteration added; quotation marks and citation omitted)).
Because
Defendants raise the qualified immunity defense, the Court “must exercise its discretion in a way
that protects the substance of the qualified immunity defense . . . so that officials are not subjected
to unnecessary and burdensome discovery or trial proceedings.’” Id. (alterations added; quoting
Crawford–El v. Britton, 523 U.S. 574 (1998); other citation omitted).
“To receive qualified immunity, a public official must first prove that he was acting within
the scope of his discretionary authority when the allegedly wrongful acts occurred.” De Veloz v.
Miami-Dade Cnty., 756 F. App’x 869, 876 (11th Cir. 2018) (citation omitted). Plaintiff does not
contest that Slimak was acting in his official capacity as a police officer when the alleged conduct
occurred. (See SAC ¶ 52 (“At all times relevant . . . [Slimak] was an . . . employee of the Miami[]Dade Police Department . . . and was within the scope of employment when he committed the
conduct described [in the SAC]” (alterations added)). As a result, Plaintiff bears the burden of
showing that Slimak is not entitled to qualified immunity. See De Veloz, 756 F. App’x at 876
(citation omitted).
To show that Slimak is not entitled to qualified immunity, Plaintiff must plead facts that,
when taken as true, establish that: (1) Slimak violated Plaintiff’s constitutional right(s), and (2) the
“right was clearly established at the time of the alleged violation.” Id. (citation and quotation
marks omitted). Plaintiff alleges three specific incidents in the SAC: (1) the December 31, 2021
incident where Slimak “forcefully detained” Plaintiff in handcuffs for an unstated amount of time
and threatened to send him to jail (SAC ¶¶ 16–17); (2) the undated instance where Slimak stared
at Plaintiff in a menacing and threatening manner while Plaintiff attempted to enter a store (see id.
¶ 19); and (3) the December 14, 2023 incident when Slimak commanded Plaintiff to stand on the
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sidewalk and threatened to arrest Plaintiff after nearly hitting Plaintiff with his police vehicle (see
id. ¶¶ 14–15). 5
Incidents (2) and (3) amount to no more than yelling at and staring at Plaintiff. 6 The
Eleventh Circuit has held that mere verbal abuse, including threats, cannot amount to a
constitutional violation. See Oliver, 2019 WL 1254844, at *4 (quoting Hernandez, 281 F. App’x
at 866). Therefore, the operative question is whether Plaintiff’s allegations concerning the
December 31, 2021 incident, taken as true, plausibly show that Slimak violated one or more of
Plaintiff’s clearly established constitutional rights.
As an initial matter, the Court construes Count I — which is labeled “Unlawful Arrest/
False Imprisonment” — as a claim that Slimak violated Plaintiff’s Fourth Amendment right to be
free from “unreasonable searches and seizures[.]” U.S. Const. amend. IV (alteration added). The
substance of Plaintiff’s claim in Count I sounds in unlawful seizure. (See SAC ¶¶ 24–28). Plaintiff
asserts that a stop occurred during which Slimak temporarily detained Plaintiff in handcuffs. (See
id. ¶¶ 16–17). Plaintiff also alleges Slimak did not have “reasonable suspicion” to detain him and
calls the incident a “detainment[.]” (Id. ¶ 25 (alteration added)). The Court, mindful of the need
to construe pro se filings liberally and empowered to “look beyond the labels used in a pro se
party’s complaint[,]” thus interprets Plaintiff’s unlawful arrest claim/false imprisonment claim as
Outside of these three specific instances, Plaintiff also broadly asserts that Slimak has stalked him and
threatened him with “arrest, incarceration, and [] physical violence since 2021.” (SAC ¶ 13 (alteration
added)). Plaintiff provides no supporting facts explaining this general allegation. (See id.). Mere
conclusory statements, lacking in any supporting facts, “are not entitled to the assumption of truth.” Iqbal,
556 U.S. at 664. The Court, therefore, does not consider this generalized allegation in analyzing whether
Plaintiff pleads a constitutional violation in either Count I or Count II.
5
Again, the Court interprets paragraph 19 of the SAC as alleging that Slimak stared at Plaintiff. (See SAC
¶ 19). Even if Plaintiff intended the phrase “started at” to be slang for “yelled at,” this interpretation would
still fail to show a constitutional violation. See Oliver v. Calderon, No. 17-cv-1792, 2019 WL 1254844, at
*4 (M.D. Fla. Mar. 19, 2019) (quoting Hernandez v. Fla. Dep’t of Corr., 281 F. App’x 862, 866 (11th Cir.
2008)).
6
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CASE NO. 24-22990-CIV-ALTONAGA/Reid
a more general claim of unlawful seizure. Torres v. Miami-Dade Cnty., 734 F. App’x 688, 691
(11th Cir. 2018) (alteration added; citation omitted); see also Jenkins v. Davis, No. 11-cv-307,
2011 WL 4550168, at *1 n.1 (M.D. Ala. Sept. 2, 2011) (liberally construing a pro se plaintiff’s
filing in a similar manner), report and recommendation adopted, 2011 WL 4550161 (M.D. Ala.
Oct. 3, 2011). 7
Defendants do not contest that Slimak’s actions, as alleged in the SAC, constituted a
seizure. (See Mot. 6; see also SAC ¶¶ 16–17). Rather, Defendants’ only argument that Plaintiff
fails to state a constitutional violation in Count I sufficient to overcome Slimak’s qualified
immunity defense is that Plaintiff does not allege the seizure was “extended” or “unreasonably
long.” (Mot. 6). Yet, Plaintiff brings this claim because Slimak allegedly detained him without
probable cause or reasonable suspicion. (See SAC ¶¶ 16–17, 25–26). It is well-settled that even
a temporary investigatory stop and detention without reasonable suspicion or probable cause
violates the Fourth Amendment. See Jeancharles v. Augustus, No. 13-60723-Civ, 2014 WL
4824371, at *4 (S.D. Fla. Sept. 26, 2014) (“The law is clearly established that, in the absence of
reasonable suspicion . . . a police officer who detains a person to determine his identity violates
the person’s Fourth Amendment right to be free from unlawful seizures.” (alteration added;
citation omitted)).
The SAC describes the following events leading up to Slimak handcuffing Plaintiff: (1)
Slimak approached Plaintiff without reason as Plaintiff left the store, asking for his identification;
(2) Plaintiff refused to provide identification until Slimak stated the reason for stopping him, and;
Plaintiff claims that Slimak violated the Fourth and Fourteenth Amendments of the U.S. Constitution by
detaining him without reasonable suspicion or probable cause. (See SAC 4). Yet Plaintiff’s allegations —
that Slimak detained him without probable cause or reasonable suspicion — do not state a cognizable
violation of the Fourteenth Amendment. See Martin v. City of Tampa, No. 07-cv-136, 2007 WL 1231837,
at *4 (M.D. Fla. Apr. 26, 2007) (holding the same). The Court therefore limits its analysis to the Fourth
Amendment.
7
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CASE NO. 24-22990-CIV-ALTONAGA/Reid
(3) Slimak placed Plaintiff in handcuffs and did not allow him to leave for an unstated amount of
time. (See SAC ¶¶ 16–17). None of these allegations, accepted as true, supports the conclusion
that Slimak arguably possessed reasonable suspicion for even temporarily detaining Plaintiff.
Plaintiff therefore sufficiently alleges a constitutional violation, even without stating the length of
his detention.
Next, to overcome Slimak’s qualified immunity defense, the Court must analyze whether
the constitutional right was clearly established at the time of the incident. De Veloz, 756 F. App’x
at 876 (citation and quotation marks omitted). “‘Clearly established’ means that, at the time of the
officer’s conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand
that what he is doing’ is unlawful.” D.C. v. Wesby, 583 U.S. 48, 63 (2018) (citations omitted).
Undoubtedly, at the time of the December 31, 2021 incident, it was clearly established that an
officer violates the Fourth Amendment by seizing an individual without reasonable suspicion or
probable cause solely to obtain the individual’s identification. See, e.g., Jeancharles, 2014 WL
4824371, at *4. And Plaintiff repeatedly cites to and quotes from the Fourth Amendment, securing
that right. (See SAC ¶¶ 25–26). Therefore, the alleged constitutional violation was wellestablished at the time of the incident.
While Slimak may claim he possessed reasonable suspicion to detain Plaintiff, the Court
must — at the motion to dismiss stage — accept “the factual allegations in the complaint as true
and [draw] all reasonable inferences in the plaintiff’s favor.” Gonzalez v. Reno, 325 F.3d 1228,
1233 (11th Cir. 2003) (alteration added; citation omitted). In this instance, Plaintiff’s allegations
suffice to state a violation of a well-established constitutional right.
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B. Count II: Unnecessary/Excessive Use of Force under 42 U.S.C. Section 1983
(Against Slimak)
Plaintiff next brings a claim in Count II against Slimak for unnecessary or excessive force
under section 1983. Here, Defendants are correct that Plaintiff fails to state a constitutional
violation, and Slimak is protected by qualified immunity. (See Mot. 3–9).
As in Count I, the Court focuses on the December 31, 2021 incident — the only incident
in which Slimak physically interacted with Plaintiff. (See generally SAC). Plaintiff alleges
Slimak’s use of unnecessary or excessive force occurred in the course of his work as a police
officer. (See id. ¶ 52). Therefore, to overcome Slimak’s argument that he is protected against the
excessive-force claim by qualified immunity, Plaintiff must articulate that Slimak violated a wellestablished constitutional right in applying unnecessary or excessive force against him. See De
Veloz, 756 F. App’x at 876.
Courts use three factors to assess whether force was excessive: “(1) the severity of the
crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or
others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by
flight.” Richmond v. Badia, 47 F.4th 1172, 1182 (11th Cir. 2022) (citation omitted). Courts also
consider “the justification for the application of force, the relationship between the justification
and the amount of force used, and the extent of any injury inflicted.” Id. (citation omitted).
In this instance, Plaintiff fails to state any facts indicating that Slimak used excessive force
against him outside of baldly alleging that Slimak “forcefully detained” him on December 31,
2021. (SAC ¶ 16). Plaintiff does not allege how Slimak asserted force, where on his person Slimak
asserted force, or the severity with which Slimak applied force. (See generally id.). While the
Court must take all factual allegations in the SAC as true, the Court is “not bound to accept as true
a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation marks
9
CASE NO. 24-22990-CIV-ALTONAGA/Reid
omitted; citing Twombly, 550 U.S. 556 (2007)). 8 Importantly, Plaintiff’s sparse allegations leave
the Court unable to evaluate whether a reasonable officer at the scene would have believed the
level of force necessary in the situation. See Saunders v. Duke, 766 F.3d 1262, 1267 (11th Cir.
2014) (articulating the standard for establishing a constitutional violation grounded in excessive
use of force (citations omitted)). Consequently, Count II against Slimak is dismissed.
C. Count III: Intentional Infliction of Emotional Distress (Against Slimak)
Plaintiff asserts a final claim against Slimak for IIED. 9 Defendants argue that Plaintiff fails
to state facts in his SAC that, when accepted as true, show the elements of an IIED claim, (see
Mot. 11–12); and Plaintiff fails to allege facts to overcome Slimak’s protection from state tort suits
under Section 768.28(9)(a), Florida Statutes (see Mot. 9–11). Defendants are correct; Plaintiff’s
factually bare IIED claim must be dismissed.
Under Florida law, the elements of an IIED claim are:
(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his
behavior when he knew or should have know that emotional distress would likely
result;
(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and
to be regarded as odious and utterly intolerable in a civilized community;
(3) the conduct caused emotional distress; and
(4) the emotional distress was severe.
The Court notes that even supposing Plaintiff had attempted to assert a separate excessive force claim on
the ground that any use of force in effectuating a seizure without probable cause is a constitutional violation,
such a claim would be subsumed into the unlawful arrest/false imprisonment claim. See Richmond, 47
F.4th at 1180–81 (distinguishing artificial excessive force claims — arising from any use of force during
an arrest lacking probable cause — from genuine excessive force claims, and noting the former are
subsumed by false arrest claims arising out of the same incident).
8
Plaintiff does not explain whether he attempts to bring the claim under section 1983 or state law. (See
SAC 6). In any event, IIED claims are not viable under section 1983. See Rubin v. City of Miami Beach,
No. 19-20520-Civ, 2019 WL 11470833, at *4 (S.D. Fla. Feb. 12, 2019) (citations omitted). The Court
understands Plaintiff to be bringing this claim under Florida state law. See Alba v. Montford, 517 F.3d
1249, 1252 (11th Cir. 2008) (requiring courts to liberally construe pro se pleadings (citation omitted)).
9
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CASE NO. 24-22990-CIV-ALTONAGA/Reid
Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949, 954–55 (Fla. 3d DCA 2017) (citation
omitted).
Plaintiff does not allege facts allowing the Court to evaluate Slimak’s intentionality or
recklessness. (See SAC ¶¶ 13–22). Plaintiff also makes no attempt to allege facts speaking to the
“outrageous” nature of Slimak’s alleged conduct. (See generally id.); cf. Kantrow v. Celebrity
Cruises, Inc., 510 F. Supp. 3d 1311, 1324 (S.D. Fla. 2020) (collecting cases holding that even a
showing of malice or aggravation may fall short of the outrageous conduct required for a successful
Florida IIED claim). Plaintiff further fails to allege facts outside of bare legal conclusions that
speak to the severity of his own distress. (See generally id.).
Further still, even if Plaintiff articulated facts sufficient to state a viable IIED claim, Slimak
would be immune to that claim under Section 768.28(9)(a), Florida Statutes. See id. Section
768.28(9)(a) prevents government officials from being named as party defendants or being
personally liable in any action stemming from injuries “suffered as a result of any act. . . in the
[official’s] scope of . . . employment” unless the official “acted in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or
property.” Id. (alterations added). Plaintiff makes no attempt to state facts showing bad faith,
malicious purpose, or wanton and willful behavior. (See generally SAC).
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CASE NO. 24-22990-CIV-ALTONAGA/Reid
D. Counts IV and VI: Violation of Federal Civil Rights and Respondeat Superior
(Against Miami-Dade County) 10
Defendants argue that the two claims against Miami-Dade County should be dismissed
because Plaintiff fails to present any facts that, if taken as true, would establish the County’s
liability for Slimak’s alleged actions. (See Mot. 13–16). The Court agrees.
Plaintiff sues for violations of his rights based upon Slimak’s actions. (See SAC ¶¶ 12–
23). As Defendants correctly note, a municipality may be liable for its employees’ actions only if
a plaintiff suffered injury because of an official policy of the municipality. (See Mot. 13 (citing
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978); quotation marks and additional citations
omitted))); see also Brown v. City of Hialeah, 30 F.3d 1433, 1438 (11th Cir. 1994) (“A plaintiff
seeking to impose liability on a municipality for injuries its employees or agents have inflicted
must show that the plaintiff suffered injuries inflicted pursuant to an official government policy or
custom.” (citation omitted)). Additionally, to allege an official policy, a plaintiff must plead
“either [] an officially promulgated county policy or [] an unofficial custom or practice of the
county shown through the repeated acts of a final policymaker for the county.” Grech v. Clayton
Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (alterations added; citations omitted).
Because Plaintiff does not point to an officially circulated Miami-Dade County policy, he
would need to plead the existence of repeated acts by a Miami-Dade County policymaker to
establish an unofficial policy or custom. See id. Yet, while Plaintiff uses the words “custom” and
“policy” throughout the SAC (see SAC ¶¶ 43–45, 46–48), the only real act he alleges by the County
is a singular act of omission: that the County “took no action or conducted [no] investigation” into
Plaintiff’s single complaint against Slimak (id. ¶ 23 (alteration added)). Of course, a singular
instance does not a custom or policy make. See Depew v. City of St. Marys, 787 F.2d 1496, 1499
10
In the SAC, Plaintiff labels his fifth-listed claim as “Count VI”. (See SAC ¶¶ 51–56).
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CASE NO. 24-22990-CIV-ALTONAGA/Reid
(11th Cir. 1986) (explaining that “random acts or isolated incidents[,]” standing alone, are
insufficient to establish a custom or policy (alteration added; citation omitted)).
Outside of this singular instance, Plaintiff cites no other action or omission by Miami-Dade
County that would create a “widespread practice . . . so permanent and well settled as to . . . [have]
the force of law.” Wade v. City of Miami Beach, 565 F. Supp. 3d 1248, 1251 (S.D. Fla. 2021)
(alteration adopted; alteration added; quoting Brown v. City of Fort Lauderdale, 923 F.2d 1474,
1481 (11th Cir. 1991) (additional citation omitted)). Therefore, Plaintiff fails to state a policy or
custom, and Plaintiff’s claim against Miami-Dade County in Count IV fails.
Plaintiff attempts to plead in Count VI that Miami-Dade County is vicariously liable for
Slimak’s actions simply because Slimak was acting in the scope of his employment during the
alleged incidents. (See SAC ¶¶ 51–56). This, too, fails. Again, Defendants are correct that “a
municipality cannot be held liable under [section] 1983 on a respondeat superior theory.” (Mot.
13 (alteration added; quoting Monell, 436 U.S. at 691; additional citations omitted)); see also
Misquith v. Palm Beach Cnty. Health Care Dist., No. 20-cv-81123, 2021 WL 8055475, at *9 (S.D.
Fla. Sept. 29, 2021) (“A municipal entity cannot be found liable on a respondeat superior theory.”
(citation omitted)), report and recommendation adopted sub nom. Misquith v. Borrego, 2022 WL
782545 (S.D. Fla. Mar. 15, 2022), aff’d, No. 22-11194, 2023 WL 2156635 (11th Cir. Feb. 22,
2023). In other words, Plaintiff’s claim that the government is responsible for the alleged injurious
actions of its employee merely because it employed him is not sufficient for liability to attach.
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IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED as follows:
1. Defendants, Mark H. Slimak and Miami-Dade County’s Joint Motion to Dismiss
Second Amended Complaint [ECF No. 43] is GRANTED in part and DENIED in part. Counts
II–VI are DISMISSED. Miami-Dade County is dismissed from the action. Count I against Slimak
remains.
2. The remaining parties are directed to prepare and file a joint scheduling report, as
required by Local Rule 16.1, by February 10, 2025.
DONE AND ORDERED in Miami, Florida, this 29th day of January, 2025.
________________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc:
counsel of record
Plaintiff, pro se
14
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