Walde v. Meurer

PAUL DONOVAN WALDE, Plaintiff, v. JOSHUA MEURER, Defendant.

No. 1:21cv123-MW-MAF

United States District Court, N.D. Florida, Gainesville Division

February 23, 2023

REPORT AND RECOMMENDATION

MARTIN A. FITZPATRICK, UNITED STATES MAGISTRATE JUDGE.

Plaintiff proceeding pro se, initiated this case in July 2021. ECF No 1. Defendant's motion to dismiss, ECF No. 7, was granted in part and denied in part. ECF No. 27. Dismissal was “without prejudice,” and Plaintiff was granted leave to file an amended complaint. ECF No. 27. Plaintiff did so in April 2022, ECF No. 28, by filing an “amended complaint” on notebook paper. Without requesting permission to again amend his complaint, Plaintiff submitted another document also titled as a “first amended” complaint on May 11, 2022. ECF No. 29. That pleading was submitted on the Court's complaint form. Id.

On June 21, 2022, prior to entry of a Court Order addressing the fact that Plaintiff had filed two amended complaints, Defendant filed a motion to dismiss for failure to state a claim, ECF No. 35. Three weeks later, Defendant also filed a motion for summary judgment, ECF No. 41. Plaintiff was given notice of his obligation in responding, ECF No. 42, and has filed responses to both motions, ECF Nos. 36 and 54.

This case was reassigned to the undersigned in September 2022. ECF No. 71. Subsequently the parties advised that mediation was unsuccessful and reached an impasse. ECF Nos. 78, 79. In light thereof, both motions are ready for a ruling. The Court has reviewed both complaints, ECF Nos. 28-29, Defendant's motion to dismiss, ECF No. 35, Plaintiff's response to that motion, ECF No. 36, Defendant's motion for summary judgment, ECF No. 41, and the pro se Plaintiff's response. ECF No. 54.

Plaintiff's Amended Complaints

It would have been beneficial for an Order to clarify which of Plaintiff's pleadings would be deemed to be the operative proceeding. There is no provision in the Federal Rules of Civil Procedure which permits a Plaintiff to proceed on multiple complaints. In this case, however, Defendant filed a motion to dismiss, ECF No. 35, which addressed both of Plaintiff's amended complaints, ECF Nos. 28 and 29 together.

Plaintiff's Allegations

Plaintiff alleged that the Defendant approached his vehicle on September 27, 2019, at approximately 9:44 p.m. ECF No. 28 at 1. Plaintiff claimed he was parked on private, commercial property and he identified the Defendant as a K-9 Officer. Id. Although not a model of clarity, it appears that Plaintiff is claiming the Defendant walked his K-9 around the vehicle and then woke up Plaintiff when he opened the passenger door of the vehicle. Id. at 1-2. Plaintiff contends the Defendant lacked probable cause and committed an “unlawful search” by having a K-9 check the vehicle without probable cause. Id. at 2.

Plaintiff also alleged that Defendant issued a false report which was used to obtain a warrant. Id. at 3. Plaintiff disputes statements made in the Defendant's report, specifically denying that he told the Defendant he had stayed “at the business off and on for several months.” Id. Plaintiff also denied that he told the Defendant he stayed at Grace Market Place. Id. Plaintiff contends that he could tell by Defendant's body language that the Defendant “was looking for a reason to arrest Plaintiff.” Id. at 4. At some later point in time Plaintiff was arrested by the Defendant, but he advises that the charges were dropped. Id. He contends he was “falsely imprisoned” and that Defendant's report contained more falsity than truth. Id. at 5.

Plaintiff's second “amended complaint” identified the Defendant as a police officer employed by the Gainesville Police Department. ECF No. 29 at 2, 7. Plaintiff contends that on September 27, 2019, Defendant Meurer woke him up by opening the passenger side door of Plaintiff's vehicle. ECF No. 29 at 7. Plaintiff indicates his vehicle was parked at the Concrete Recycling at 930 SW 3rd Street in Gainesville, Florida. Id. Defendant Meurer allegedly threatened to arrest Plaintiff if he did not show his Id. Id. It appears that Plaintiff did so, and asked the Defendant “what crime was being commited [sic].” Id. Defendant Meurer answered, trespassing. Id. There are no allegations which indicate that Plaintiff was arrested during that interaction.

Plaintiff claims the Defendant came to Plaintiff's job at the Concrete Recycling facility on October 2, 2019. Id. Plaintiff said the Defendant was now “focused only on the sex offence [sic]” and did so only by “running” Plaintiff's Id. Id. Plaintiff was then arrested and charged with failure to change his address. ECF No. 29 at 7-8. The charges were subsequently dropped. Id. at 8.

Plaintiff's amended complaint continues to dispute statements that were included in Defendant's report. Id. Plaintiff claims he was “harassed” by Gainesville police officers after the contact was made with him on September 27, 2019. Id. Plaintiff contends his Fourth Amendment right against unreasonable searches and seizures was violated. Id. at 4. As relief, Plaintiff requests that he “be taken off sex offender list” and receive monetary damages. Id. at 9.

Standard of Review - Motion to Dismiss

The issue on whether a complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted is whether the plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “To survive a motion to dismiss, a complaint must contain 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).^[1] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. at 1965); see also Wilborn v. Jones, 761 Fed.Appx. 908, 910 (11th Cir. 2019). “The plausibility standard” is not the same as a “probability requirement,” and “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 677 (quoting Twombly, 550 U.S. at 556). A complaint that “pleads facts that are ‘merely consistent with' a defendant's liability,” falls “short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 677 (quoting Twombly, 550 U.S. at 557).

The pleading standard is not heightened, but flexible, in line with Rule 8's command to simply give fair notice to the defendant of the plaintiff's claim and the grounds upon which it rests. Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions.”). Pro se complaints are held to less stringent standards than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)). Nevertheless, a complaint must provide sufficient notice of the claim and the grounds upon which it rests so that a “largely groundless claim” does not proceed through discovery and “take up the time of a number of other people . . . .” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (quoted in Twombly, 550 U.S. at 558).

One additional principle bears highlighting: a motion to dismiss does not test the truth of a complaint's factual allegations. Only factual allegations, not legal conclusions, are “accepted as true,” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949, even when they are “doubtful in fact.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965. “Instead, it remains true, after Twombly and Iqbal as before, that ‘federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.'” Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993) (quoted in Yawn v. Sec'y of Dep't of Corr., No. 5:13cv228-RH/EMT, 2017 WL 2691423, at *1 (N.D. Fla. June 21, 2017)).

Motion to Dismiss, ECF No. 35

Defendant's motion asserts that Plaintiff's first amended complaint ECF No. 28, fails to comply with Rule 8(a)'s requirements. ECF No. 35 at 1-2. Further, it “contains rambling arguments about multiple arrests, and takes issue with the police report.” Id. at 2. As for Plaintiff's second filed amended complaint, ECF No. 29, Defendant asserts that this pleading corrected some of the Rule 8(a) deficiencies such as jurisdiction and a more clear request for relief. ECF No. 35 at 3. However, Defendant argues the amended complaint “fails to allege any conduct by Officer Meurer to deliberately violate Plaintiff's Constitutional rights, and it fails to identify any conduct by Officer Meurer that was performed pursuant to a custom, practice, or official policy of the City, or any deliberate municipal action through which Plaintiff's rights were violated.” Id. Defendant also contends that Plaintiff's failure to state whether Defendant Meurer is sued in his individual capacity or official capacity is grounds for dismissal. ECF No. 35 at 4. Even so, Defendant argues that both amended complaints fail to state a claim against him in either his individual or official capacities. Id. at 4-9.

Plaintiff's response

Plaintiff acknowledges in his response to Defendant's motion to dismiss that his amended complaint “could have been a lot more stronger and more facts.” ECF No. 36 at 1. Plaintiff...