Bounce v. City of Miami Beach et al

Filing 4

ORDER Dismissing Case (Without Prejudice) Signed by Judge Darrin P. Gayles on 3/6/2025. See attached document for full details. (skz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:25-cv-20937-GAYLES
BOUNCE,
Plaintiff,
v.
CITY OF MIAMI BEACH, et al.,
Defendants.
_______________________________/
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE
PURSUANT TO 28 U.S.C. § 1915(e)
THIS CAUSE is before the Court on the pro se Complaint filed by Plaintiff “Bounce,”
also known as K.R. Conary. [ECF No. 1]. Because Plaintiff has not paid the filing fee and has
sought leave to proceed in forma pauperis (“IFP”) [ECF No. 3], the screening provisions of 28
U.S.C. § 1915(e)(2)(B) apply. Under that statute, the Court shall dismiss a complaint if it
determines the action is “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” Id.
§ 1915(e)(2)(B)(i)–(iii). For the following reasons, the Complaint is DISMISSED WITHOUT
PREJUDICE for failure to state a claim for relief.
I.

BACKGROUND
Plaintiff has filed “a civil rights action challenging the unconstitutional criminalization of

homelessness by the City of Miami Beach and the Miami Beach Police Department (MBPD).”
[ECF No. 1 at 1]. Plaintiff alleges that on July 3, 2024, they 1 were unlawfully arrested by MBPD
officers for “‘park entry after hours’ despite identifying as homeless and actively seeking shelter

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Plaintiff uses the personal pronoun “they” in the Complaint. [ECF No. 1 at 2].

and services[.]” Id. Plaintiff claims they were “found resting in a public area” and “explicitly
informed the officers that they were seeking services and had no alternative location to go.” Id. at
2. Plaintiff further claims that the arresting officers “falsely reported that Plaintiff declined shelter,
contradicting recorded body-worn camera footage.” Id.
Plaintiff sues five Defendants: (1) the City of Miami Beach; (2) the MBPD; and the three
arresting officers, (3) Officer “Azicri L”, (4) Officer “Damus D”, and (5) Officer “Parada G.” Id.
at 1. Liberally construed, Plaintiff’s Complaint asserts four claims 2 under 42 U.S.C. § 1983: (1)
cruel and unusual punishment under the Eighth Amendment against the City of Miami Beach and
the MBPD for criminalizing homelessness and arresting and prosecuting Plaintiff for “engaging
in necessary human functions” while homeless; (2) violation of the Equal Protection Clause of the
Fourteenth Amendment against all Defendants for “enforcement practices that disproportionately
target homeless individuals”; (3) violation of the Due Process Clause of the Fourteenth
Amendment against the three arresting officers for making false statements in their arrest report;
and (4) false arrest against the officers. Id. at 3. Plaintiff seeks compensatory and punitive damages
and “injunctive relief preventing further unconstitutional enforcement against homeless
individuals in Miami Beach.” Id. at 4.
II.

LEGAL STANDARD
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show that he was

deprived of a federal right by a person acting under color of state law. See Griffin v. City of Opa
Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). A pleading fails to state a claim for relief when it
does not contain sufficient “factual matter (taken as true)” to “give the defendant fair notice of

Plaintiff asserts a separate claim under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), against the
City of Miami Beach and the MBPD, but Monell is not itself a cause of action. Rather, it provides the
standard for proving liability under § 1983 against a municipality. See id. at 694.
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what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555–56 (2007); see also Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (“The standards
governing dismissals under Rule 12(b)(6) apply to § 1915(e)(2)(B)(ii).”). A complaint need not
contain detailed factual allegations, but it must provide as grounds for relief something more than
“labels and conclusions” and “a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (citations omitted). To survive dismissal, a complaint must “state a
claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Court holds pro se pleadings “to a less stringent standard than pleadings drafted by
attorneys” and construes them liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). Nevertheless, the Court does not have “license to serve as de facto counsel for a party,
or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty.
of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted).
III.

DISCUSSION
A. Eighth Amendment Claim Against the City of Miami Beach
Plaintiff claims that the City of Miami Beach and the MBPD 3 violated their Eighth

Amendment rights by enforcing “laws that criminalize homelessness.” [ECF No. 1 at 3]. Plaintiff
cites Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), and City of Grants Pass, Oregon v.
Johnson, 603 U.S. 520 (2024), for the proposition that criminalizing homelessness by “punishing
individuals for sleeping in public when no alternatives exist” violates the Eighth Amendment’s
Cruel and Unusual Punishments Clause. [ECF No. 1 at 3]. In Grants Pass, however, the Supreme
Court overturned Martin and expressly rejected the proposition that criminalizing sleeping outside,

Plaintiff may not sue the MBPD because “[u]nder Florida law, police departments are not legal entities
amenable to suit.” Williams v. Miami-Dade Police Dep’t, 297 F. App’x 941, 945 (11th Cir. 2008).
Therefore, the Court addresses only Plaintiff’s claims against the City of Miami Beach.
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even when no alternative shelter exists, constitutes cruel and unusual punishment under the Eighth
Amendment. The Supreme Court held that “[t]he Cruel and Unusual Punishments Clause focuses
on the question what ‘method or kind of punishment’ a government may impose after a criminal
conviction, not on the question whether a government may criminalize particular behavior in the
first place[.]” Grants Pass, 603 U.S. at 542. Therefore, Plaintiff’s claim fails because it is based
on the criminalization of being in the park after hours.
Under Grants Pass, generally applicable laws that criminalize camping or sleeping outside
do not per se violate the Eighth Amendment, absent a showing that the “criminal punishments”
these laws impose qualify as cruel and unusual. 4 Id. Plaintiff provides no details about the types
of punishments the City of Miami imposes under its “laws that criminalize homelessness.” [ECF
No. 1 at 3]. Accordingly, Plaintiff has not shown that the law under which they were arrested
violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.
Plaintiff emphasizes their “status as homeless” and their “physiological need” for sleep.
[ECF No. 1 at 2]. But the Supreme Court in Grants Pass explicitly rejected the argument, embraced
by the Ninth Circuit in Martin, that laws criminalizing conduct associated with homelessness—
like sleeping outside—criminalize the “mere status” of being homeless because they “seek to
regulate actions that are in some sense involuntary.” Grants Pass, 603 U.S. at 546–47 (emphasis
added) (internal quotations omitted). The Court explained that laws that regulate “acts undertaken
with some mens rea” do not criminalize “mere status” even if those acts “might in some sense
qualify as involuntary.” Id. at 549 (internal quotations omitted). The Court emphasized that it “has
never invoked the Eighth Amendment’s Cruel and Unusual Punishments Clause” to prohibit a law

The Supreme Court concluded that “the criminal punishments Grant Pass imposes”—ranging from civil
fines to up to thirty days in jail—do not qualify as “cruel and unusual.” Id. at 543.

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regulating conduct even if that conduct could be considered involuntary. Id. at 550; see also id. at
551–56 (explaining that a rule requiring the plaintiffs to show a lack of “available” shelter to prove
an Eighth Amendment violation would be unworkable for courts). Courts have since applied
Grants Pass to hold that civil rights plaintiffs “cannot challenge [a city’s] ordinances on the basis
that they punish the unhoused based on status.” Wills v. City of Monterey, No. 21-CV-01998-EMC,
2024 WL 4565089, at *2 (N.D. Cal. Oct. 23, 2024). Thus, in light of Grants Pass, Plaintiff cannot
maintain a claim against the City of Miami Beach under the Eighth Amendment for enforcing laws
or ordinances that “punish[ ] individuals for sleeping in public when no alternatives exist.” [ECF
No. 1 at 3].
B. Equal Protection Claim Against the City of Miami Beach
Plaintiff also alleges that the City of Miami Beach’s criminalization of homelessness
violates the Equal Protection Clause of the Fourteenth Amendment. [ECF No. 1 at 3]. The Eleventh
Circuit held in Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000), however, that “[h]omeless
persons are not a suspect class, nor is sleeping out-of-doors a fundamental right.” Id. at 1357.
Therefore, a city ordinance that has “a disparate effect on the homeless does not violate equal
protection.” Id. at 1359. The Eleventh Circuit explained that “[i]f an ordinance does not infringe
upon a fundamental right or target a protected class, equal protection claims relating to it are judged
under the rational basis test,” which provides that a law is constitutional if it is rationally related
to a legitimate governmental purpose. Id. at 1357–58. The Eleventh Circuit “readily conclude[d]”
in Joel that “a rational basis exists for believing that prohibiting sleeping out-of-doors on public
property would further aesthetics, sanitation, public health, and safety.” Id. at 1358. The Eleventh
Circuit further held that even though the plaintiff had shown a disparate impact on the City of
Orlando’s homeless population, “[i]n order to establish a constitutional violation, [ ] it is not
enough to show that the ordinance has a disproportionate impact upon the homeless.” Id. at 1359.
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“[A] law neutral on its face, yet having a disproportionate effect on the group will be deemed to
violate the Equal Protection Clause only if a discriminatory purpose can be proven.” Id. The
plaintiff in Joel had not proven that Orlando’s ordinance “was enacted for the purpose of
discriminating against the homeless.” Id. “Consequently, a disparate effect on the homeless does
not violate equal protection.” Id.
Here, Plaintiff does not claim, much less plead facts demonstrating, that the City of Miami
Beach’s laws and ordinances were enacted for the purpose of discriminating against the homeless.
Indeed, Plaintiff does not even identify the code or provision under which they were arrested. They
merely allege that they were arrested for “park entry after hours,” which shows that they were
arrested pursuant to “a law neutral on its face” that does not discriminate against the homeless.
[ECF No. 1 at 2]. Moreover, as in Joel, such a law is rationally related to the legitimate
governmental purposes of “aesthetics, sanitation, public health, and safety.” 232 F.3d at 1358.
Thus, Plaintiff has not plausibly alleged that the law at issue violates the Equal Protection Clause
of the Fourteenth Amendment.
Further, while Plaintiff claims that “Defendants’ enforcement practices disproportionately
target homeless individuals,” they provide no details to support this conclusory assertion. See
Fullman v. Graddick, 739 F.2d 553, 556–57 (11th Cir. 1984) (“In civil rights actions, . . . a
complaint will be dismissed as insufficient where the allegations it contains are vague and
conclusory”); Smith v. Reg’l Dir. of Fla. Dep’t of Corr., 368 F. App’x 9, 13 (11th Cir. 2010)
(prisoner failed to state an equal protection claim where he “offered nothing more than conclusory
allegations that officials treated [him] differently than other similarly-situated prisoners because
of his race”); cf. Bowe v. City of Hallandale Beach, No. 16-CV-60993-WPD, 2017 WL 5643304,
at *3 (S.D. Fla. Aug. 7, 2017) (plaintiffs had adequately pled a claim that the city was
“disproportionately targeting members of the African-American community” for SWAT raids
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where they “compiled forty incidents of racially targeted SWAT raids.”). In sum, Plaintiff has not
stated an equal protection claim against Defendants.
C. Claims Against the Individual Officers
Plaintiff asserts two causes of action against the three individual officers: a false arrest
claim and a due process claim. As to Plaintiff’s false arrest claim, “[a]n arrest without a warrant
and lacking probable cause violates the Constitution and can underpin a § 1983 claim, but the
existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional
challenge to the arrest.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010).
Plaintiff alleges that they were “found resting in a public area” and that they were arrested for
“park entry after hours.” [ECF No. 1 at 2]. Thus, Plaintiff effectively concedes that the officers
had probable cause to arrest them for violating a law or ordinance that prohibits such conduct. As
discussed above, the crux of Plaintiff’s claim is not that Plaintiff was not violating the law, but that
the law itself is unconstitutional. Thus, Plaintiff’s allegations show the existence of probable cause.
Plaintiff also alleges that the officers “falsified police reports, stating that Plaintiff declined
shelter,” but Plaintiff does not explain how this false statement was material to the probable cause
determination. [ECF No. 1 at 1]. An officer’s false statements will only support a false arrest claim
if those statements were “necessary to the probable cause.” Jones v. Cannon, 174 F.3d 1271, 1285
(11th Cir. 1999); see also Manborde v. Suarez, No. 22-CV-20404-RKA, 2022 WL 2191638, at *3
(S.D. Fla. June 17, 2022) (“a police officer’s false statements in an application for a warrant are
not, standing alone, sufficient to state a viable false-arrest claim unless ‘such false statements were
necessary to the probable cause.’” (quoting Jones, 174 F.3d at 1285) (emphasis in original)).
Plaintiff does not allege that the officers would have lacked probable cause without the false
statement about Plaintiff declining shelter. In other words, Plaintiff does not allege that declining
shelter is an element of the offense for which they were arrested. See Brown, 608 F.3d at 735
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(whether an officer possesses probable cause depends on the elements of the alleged offense and
the operative fact pattern). Rather, Plaintiff’s allegations show that the officers would have had
probable cause even without this false statement because, as Plaintiff concedes, the law under
which they were arrested prohibits sleeping in public even when no alternative shelter exists. [ECF
No. 1 at 3]. Thus, Plaintiff’s allegations show that the officers had probable cause to arrest them,
precluding a false arrest claim.
Finally, Plaintiff alleges a due process claim against the officers for falsifying police
reports, “contributing to wrongful prosecution.” [ECF No. 1 at 3]. Beyond these allegations,
Plaintiff does not specify how their due process rights were violated; but liberally construed, these
allegations suggest either a false imprisonment claim or a malicious prosecution claim. See, e.g.,
Cannon v. Macon County, 1 F.3d 1558, 1562–63 (11th Cir. 1993) (a § 1983 false imprisonment
claim requires a showing of common law false imprisonment and a due process violation under
the Fourteenth Amendment); Williams v. Aguirre, 965 F.3d 1147, 1157 (11th Cir. 2020) (to state
a § 1983 claim for malicious prosecution, the plaintiff “must prove both a violation of his Fourth
Amendment right to be free of unreasonable seizures and the elements of the common law tort of
malicious prosecution”) (quotations and alterations omitted)); Joyce v. Adams, No. 4:05- CV-078,
2007 WL 2781196, at *8 (S.D. Ga. Sept. 20, 2007) (construing a Fourteenth Amendment due
process claim based on an alleged false arrest and detention as a malicious prosecution claim
because “the law is clear that malicious prosecution is the appropriate cause of action for seeking
damages for confinement pursuant to legal process.”).
As explained above, Plaintiff’s allegations show that the officers had probable cause to
arrest them. Thus, Plaintiff cannot maintain a false imprisonment or malicious prosecution claim
against the arresting officers. See Rebalko v. City of Coral Springs, 552 F. Supp. 3d 1285, 1308–
09 (S.D. Fla. 2020) (claims for false imprisonment and malicious prosecution require the plaintiff
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to show an absence of probable cause for the arrest). Plaintiff otherwise alleges no facts showing
that their due process rights were violated. The officers’ false statement about Plaintiff declining
shelter does not, by itself, constitute a due process violation. See Sullenberger v. City of Coral
Gables, No. 22-CV-21830-RKA, 2025 WL 101703, at *29 (S.D. Fla. Jan. 15, 2025) (rejecting
arrestee’s due process claim based on arresting officers’ alleged reliance on false statements
because “shoddy, sloppy, or lazy police work doesn’t—by itself—necessarily constitute a dueprocess violation.”). Accordingly, Plaintiff has not stated a due process claim against the arresting
officers.
IV.

LEAVE TO AMEND
A pro se Plaintiff must be granted at least one opportunity to amend his Complaint if an

amended complaint might state a claim upon which relief can be granted. See Silberman v. Miami
Dade Transit, 927 F.3d 1123, 1132 (11th Cir. 2019). Plaintiff’s Amended Complaint must comply
with the Federal Rules of Civil Procedure and the Local Rules of the Southern District of Florida.
See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Rule 8 of the Federal Rules of Civil
Procedure provides that a pleading which states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
Fed. R. Civ. P. 8(a).
While Rule 8 allows a plaintiff considerable leeway in framing a complaint, the Eleventh
Circuit has tightened the application of Rule 8 with respect to § 1983 cases in an effort to identify
meritless claims. See GJR Invs., 132 F.3d at 1367 (“Some factual detail in the pleadings is
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necessary to the adjudication of § 1983 claims.”). Accordingly, a § 1983 plaintiff must allege with
specificity the facts which make out his claim. See Wilson v. Strong, 156 F.3d 1131, 1134 (11th
Cir.1998) (“[T]he contours of an asserted constitutional right ‘must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’”). Factual detail in
the pleadings is particularly necessary in cases involving qualified immunity, where the Court must
determine whether a defendant’s actions violated a clearly established right. See GJR Invs., 132
F.3d at 1367.
In addition, Plaintiff must separate each cause of action against each Defendant into a
different count. The Amended Complaint must state its claims “in numbered paragraphs, each
limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). To promote
clarity, “each claim founded on a separate transaction or occurrence . . . must be stated in a separate
count[.]” Id. Plaintiff must clearly write the name of each Defendant who is a party to this action
and specify which Defendant is responsible for each act or omission that forms the basis of his
claims. See Weiland, 792 F.3d at 1323.
V.

CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Complaint [ECF No. 1] is DISMISSED WITHOUT PREJUDICE.
2. On or before April 7, 2025, Plaintiff shall file an amended complaint, labeled “Amended
Complaint,” that cures the deficiencies identified above. The Amended Complaint shall:
a. Contain a short and plain statement of Plaintiff’s claims against each named
Defendant, a basis for federal jurisdiction, and a demand for judgment.
b. Be either typed in 12-point font or larger and double-spaced or handwritten
legibly.
c. Be written on the § 1983 complaint form attached to this order.

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3. The Amended Complaint must show Case No. 25-cv-20937-GAYLES so that it will be
filed in this case.
4. The Clerk of Court is DIRECTED to mail Plaintiff a copy of the non-prisoner civil rights
complaint form, together with this Order, at the address listed below.
5. This case is CLOSED for administrative purposes only.
DONE AND ORDERED in chambers at Miami, Florida, this 6th day of March, 2025.

DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
cc:

Bounce, pro se
555 17th Street
Miami Beach, FL 33139

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