STEVEN D. MERRYDAY, District Judge.
Appearing pro se and proceeding in forma pauperis, Leon Bright sues (Doc. 1) fourteen defendants because of their alleged participation in events concluding with a November 2017 arrest at a Hillsborough County public library. A September 12, 2018 order (Doc. 8) allowed Bright through October 1, 2018, to serve the defendants. The clerk mailed to Bright the September 12, 2018 order but addressed the mail to Bright in jail, from which Bright was released in July 2018 (Doc. 7). The postal service returned the mail, which was marked "undeliverable."
On October 4, 2018, Bright submitted a "motion for objection and notice to move," (Doc. 9) in which Bright objects to the error in his service address and to the delays in the clerk's issuing summonses and in the United States Marshal's effecting service. That same day, the clerk issued a summons for each of the fourteen defendants (Docs. 10-23). The Marshal served each defendant (Docs. 31-39, 41, 42) except Tampa police officer Amanda K. Baranowski (Doc. 43) and former Tampa police chief Eric Ward (Doc. 29).
If a plaintiff demonstrates good cause, Rule 4(m) requires an extension of the time to serve a defendant. But even absent a plaintiff's showing good cause, a discretionary extension remains available in an exigent circumstance. Lepone-Dempsey v. Carroll Cty. Comm'rs, 476 F.3d 1277, 1282 (11th Cir. 2007). Because of the undelivered September 12, 2018 order, Bright was unaware of the October 1, 2018 service deadline. In other words, the delay in serving the library, Hillsborough County, and Marquise is attributable only in part to Bright's neglect. Bright obtained the summonses, and the Marshal served the library, Hillsborough County, and Marquise. Accordingly, good cause exists to accept as timely Bright's service of the library, Hillsborough County, and Marquise.
In the complaint, Bright alleges that Carolay Vargas, an assistant state attorney; Paul T. Jeske, a state court judge; Harold McCray, the arresting police officer from the Tampa Police Department; and Marquise conspired to deprive Bright of due process by destroying video evidence of the arrest. Vargas moves (Doc. 46) to dismiss Bright's claim.
Bright's complaint includes seven counts,
Rule 8, Federal Rules of Civil Procedure, requires a "short and plain statement of the claim" and a demand for the relief sought. A complaint that complies with the rule will fairly notify the defendant of which claims the plaintiff asserts against the defendant and the legal and factual basis for each claim. On the other hand, a complaint, such as Bright's, that asserts claims against several defendants without specifying which claim the plaintiff asserts against which defendant is a "shotgun pleading" and violates Rule 8. Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1323 (11th Cir. 2015).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under the color of law violated the plaintiff's constitutional right. Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). Bright appears to allege four constitutional violations. Bright captions "Count One" as "Assault and Battery by [Tampa Police Department] Officers et al., -4th and 14th Amend. Violation." (Doc. 1 at 6) The Fourth Amendment freedom from unreasonable searches and seizures includes a freedom from excessive force during an arrest. Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002). And Bright's allegation that McCray employed "extreme violent" force against Bright (Doc. 1 at 7) suggests an excessive force claim. Also, Bright mentions "excessive force" in Count Three.
Bright's second count asserts a "false imprisonment" claim. False imprisonment is a tort under state law, and a state-law tort is not a constitutional violation. Dacosta v. Nwachukwa, 304 F.3d 1045, 1048 (11th Cir. 2007). However, Count Two mentions a "false arrest," and the Fourth Amendment guarantees freedom from an arrest without probable cause. Accordingly, Count Two might attempt to allege a Section 1983 claim for a violation of the Fourth Amendment right to freedom from arrest without probable cause.
But if a plaintiff sues under Section 1983 and is at the same time a defendant in a state-court criminal action that began before the plaintiff sued in federal court, the federal district court must abstain if the federal action "implicate[s] important state interests" and if the criminal trial presents an adequate opportunity for the plaintiff to raise a constitutional challenge to the same conduct. For Your Eyes Alone, Inc. v. City of Columbus, Ga., 281 F.3d 1209, 1216-17 (11th Cir. 2002) (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982) and Younger v. Harris, 401 U.S. 37, 44 (1971)).
The State Attorney charged Bright with trespassing, disorderly conduct, and resisting an officer without violence in November 2017 (Doc. 47 at 3; Doc. 48 at 3), five months before Bright sued (Doc. 1) in federal court. The pending state criminal action affords Bright an opportunity to challenge the constitutionality of his arrest. Further, because an arrestee is privileged to resist arrest with reasonable but non-deadly force if an arresting officer applies excessive force,
In Count Three, Bright appears to assert that the Tampa police retaliated against him for exercising a "First Amendment right to complain. . . ." (Doc. 1 at 8) To state a First Amendment retaliation claim, the complaint must allege that Bright engaged in constitutionally protected speech, that Bright "suffered adverse conduct that would likely deter a person of ordinary firmness from engaging in such speech," and that a causal connection exists between the protected speech and the retaliation. Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir. 2011). The complaint's allegations are conclusory and unspecific. The complaint fails to allege that McCray arrested Bright because of, and in retaliation for, a complaint levied by Bright. Bright fails to state a claim for First Amendment retaliation.
Lastly, a law enforcement officer can violate the Fourteenth Amendment by exhibiting during an arrest deliberate indifference to a substantial risk of serious harm. Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996). Deliberate indifference exists if the officer "knows of and disregards an excessive risk to inmate health or safety. . . ." Cottrell, 85 F.3d at 1491. Because Bright fails to allege that an excessive risk to Bright's health or safety existed and that McCray knew of and disregarded that risk, Bright fails to state a claim for a Fourteenth Amendment violation.
Bright apparently asserts some form of municipal or supervisory liability against the City of Tampa; Bob Buckhorn, the City's mayor; and Eric Ward, the City's former police chief. "Supervisory liability occurs either when the supervisor participates in the alleged constitutional violation or when there is a causal connection between actions of the supervision official and the alleged constitutional deprivation." Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). Municipal liability requires a "policy or custom" that "constituted deliberate indifference" to constitutional rights and which caused the violation of the plaintiff's constitutional rights. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Both supervisory liability and municipal liability require a constitutional violation. Even assuming a constitutional violation occurred, Bright fails to state a claim against the City, Buckhorn, or Ward because Bright offers only conclusory allegations that the City, Buckhorn, and Ward "condone" and "ratify" constitutional violations by Tampa police officers.
Bright's remaining claims — false imprisonment, negligence, and intentional infliction of emotional distress — are state-law torts. A tortious act under state law is not a violation of a plaintiff's constitutional right and cannot create federal subject-matter jurisdiction unless the tortious act "shocks the conscience" or interferes with the rights "implicit in the concept of ordered liberty." Dacosta, 304 F.3d at 1048. Further, a district court can decline to exercise supplemental jurisdiction if the claim creating original jurisdiction has been dismissed or if the state law claim "substantially predominates over the claim" that creates federal jurisdiction. Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 743 (11th Cir. 2006). With Bright's Section 1983 claims either dismissed or stayed, exercise of supplemental jurisdiction over Bright's state law claims is unwarranted.
In conclusion, Carolay Vargas's motion to dismiss (Doc. 46) is
The remainder of Bright's complaint (Doc. 1) is
This action is
Finally, Bright is warned that litigation in federal court is difficult. Litigation in federal court requires compliance with applicable laws and rules, including the Federal Rules of Civil Procedure and the Local Rules. Bright's complaint and motions suffer from deficiencies, in addition to those mentioned in this order, that confirm that Bright requires legal advice and assistance from a member of The Florida Bar in the formulation, presentation, and advancement of any claim. The court cannot assist a party, even an in forma pauperis party, in conducting an action. Bright is strongly advised to consult a member of The Florida Bar.