Henry v. Iannone et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 23-cv-14197-Cannon/McCabe
NELSON HENRY,
Plaintiff,
v.
JOSEPH IANNONE, et al.,
Defendants.
___________________________________/
REPORT & RECOMMENDATION
THIS CAUSE comes before the Court on Defendants’ Motion for Summary Judgment,
which was referred to the undersigned by United States District Judge Aileen M. Cannon. (DE
304, DE 334). For the reasons set forth below, the undersigned RECOMMENDS that the motion
be GRANTED.
I. 	OVERVIEW
This is a pro se civil rights case arising from a DUI arrest. 	Plaintiff initially sued four
Defendants: (1) Officer Joseph Iannone, (2) Officer James Deacetis, (3) the City of Port St. Lucie
(“City”), and (4) Jesus Merejo, the City Manager of the City (“City Manager”). (DE 39 at 1-2).
By way of a previous Order, the District Judge dismissed all claims against the City and the City
Manager. (DE 58). The following counts remain against Officers Iannone and Deacetis:
Count 	Claim
1 	False arrest and malicious prosecution in violation of 42 U.S.C. § 1983
2 	Common law malicious prosecution
3 	Common law false arrest
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5 	Common law intentional infliction of emotional distress (“IIED”)
(DE 39, DE 58). 	By way of the pending motion, Officers Iannone and Deacetis seek summary
judgment on these remaining claims. (DE 304).
II. 	SUMMARY JUDGMENT STANDARD
A district court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party “always bears the initial responsibility of informing the district
court of the basis for its motion and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). To satisfy this burden, the movant must show “there is an absence of evidence
to support the non-moving party’s case.” Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production shifts, and
the non-moving party “must do more than simply show that there is some metaphysical doubt as
to the material facts.” 	Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). As Rule 56 explains, “[i]f a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact ... the court may ... grant summary judgment if
the motion and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). Therefore, the non-moving party “may not rest
upon the mere allegations or denials in its pleadings” but instead must present “specific facts
showing that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573, 1576-77 (11th
Cir. 1990). “A genuine issue of material fact exists when the evidence is such that a reasonable
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jury could return a verdict for the non-moving party.” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d
1227, 1235 (11th Cir. 2016) (cleaned up).
In deciding a motion for summary judgment, courts must view the facts in the light most
favorable to the non-moving party. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). Also,
courts must resolve ambiguities and draw justifiable inferences in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III. 	UNDISPUTED FACTS
The record shows the following undisputed facts.
1. 	In the early morning hours of January 17, 2021, Plaintiff was driving his vehicle on
Veterans Memorial Parkway in the City of Port St. Lucie. (DE 39 ¶ 7, DE 305 ¶ 8, DE 332 ¶ 8).
According to Plaintiff, he pulled his vehicle to the grass shoulder of the road to fall asleep, as he
was tired from repeated back-to-back shifts at work. (DE 39 ¶ 7).
2. 	At approximately 3:00 a.m., Officer Iannone pulled behind Plaintiff’s vehicle and
activated his police lights. 	(DE 39 ¶ 15; DE 306 ¶¶ 4, 5; DE 305 ¶¶ 8, 10; DE 332 ¶¶ 8, 10).
Officer Iannone then approached the driver’s side window of Plaintiff’s vehicle and observed
Plaintiff asleep in the driver’s seat. (DE 39 ¶ 15, DE 306 ¶ 4, DE 305 ¶ 10, DE 332 ¶ 10).
3. 	Shortly thereafter, Officer Deacetis responded to the scene as backup. (DE 39 ¶ 20,
DE 306 ¶ 8, DE 305 ¶ 15, DE 332 ¶ 15).
4. 	Officer Iannone asked Plaintiff to get out of the vehicle to participate in a roadside
field sobriety test. (DE 39 ¶ 22, DE 305 ¶ 17, DE 332 ¶ 17). Plaintiff exited the vehicle and agreed
to participate in the test. (DE 39 ¶ 22, DE 305 ¶ 17, DE 332 ¶ 17).
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5. 	Officer Iannone conducted the test in three phases. In the first phase, the horizontal
gaze test, Officer Iannone moved a pen back and forth in front of Plaintiff’s face and instructed
him to track the pen using only his eyes. (DE 305 ¶¶ 18, 20, 21; DE 332 ¶¶ 18, 20, 21). During
this phase of the test, video footage shows that Plaintiff repeatedly failed to follow the instructions
and tracked the pen by turning his entire head, rather than using only his eyes. (DE 304-6 at 0:57-
1:05, 1:31). Officer Iannone had to correct Plaintiff several times on how to properly perform the
exercise. (DE 304-6 at 0:57-1:05, 1:31).
6. 	In the second phase, the walk and turn test, Officer Iannone instructed Plaintiff to
take nine steps in a straight line in a heel-to-toe manner with his arms at his sides while counting
the steps out loud. (DE 305 ¶¶ 18, 24, DE 332 ¶¶ 18, 24). During this phase of the test, video
footage shows that Plaintiff repeatedly stumbled, swayed, and extended his arms for balance as he
performed the exercise. (DE 304-6 at 3:20-4:39).
7. 	In the third phase, the one leg stand, Officer Iannone instructed Plaintiff to stand on
one leg, whichever he wanted, and to hold the other leg six inches off the ground with his toes
pointed out. (DE 305 ¶¶ 18, 32, DE 332 ¶¶ 18, 32). During this phase of the test, video footage
shows that Plaintiff repeatedly swayed and touched his raised foot to the ground in order to
maintain his balance. (DE 304-6 at 4:43-6:06).
8. 	At the conclusion of the test, Officer Iannone asked Plaintiff, “How much have you
had to drink my man?” (DE 304-6 at 6:09-6:17, DE 39 ¶ 33, DE 305 ¶ 19, DE 332 ¶ 19). Plaintiff
responded, “Just one.” (DE 304-6 at 6:09-6:17, DE 39 ¶ 33, DE 305 ¶ 19, DE 332 ¶ 19).
9. 	Thereafter, Officers Iannone and Deacetis placed Plaintiff under arrest for DUI.
(DE 305 ¶ 43, DE 332 ¶ 43).
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10. 	Following the arrest, the State charged Plaintiff with DUI and arraigned him on
February 16, 2021. (DE 306 ¶ 11; DE 305 ¶ 44; DE 332 ¶ 44). Plaintiff remained in jail for more
than twelve months in connection with these charges. (DE 39 ¶ 93, DE 306 ¶ 12).
11. 	Plaintiff’s case went to trial before a jury in February 2022. 	(DE 305 ¶ 45, DE 332
¶ 45). 	After the jury was impaneled, the state trial judge declared a mistrial, over Plaintiff’s
objection, due to witness and juror unavailability. (DE 305 ¶ 45, DE 332 ¶ 45). The trial judge
scheduled another trial to commence approximately one month later. (DE 305 ¶ 45, DE 332 ¶ 45).
12. 	Plaintiff thereafter filed a motion to dismiss his case on double jeopardy grounds,
arguing that jeopardy had attached once the jury was sworn in his initial trial and that the trial
judge had improperly declared a mistrial without first considering other available alternatives. (DE
305 ¶ 46, DE 332 ¶ 46, DE 304-10). The trial court denied the motion. (DE 305 ¶ 46, DE 332 ¶
46).
13. 	On appeal to the Fourth District Court of Appeal, the State confessed error,
resulting in a reversal of the trial court’s decision. (DE 305 ¶ 46, DE 332 ¶ 46, DE 304-11). As a
result, on or about June 1, 2022, the state trial court dismissed Plaintiff’s DUI case on double
jeopardy grounds in accordance with the directive from the appellate court. (DE 305 ¶ 46, DE 332
¶ 46, DE 304-11).
14. 	This civil lawsuit followed. (DE 1).
IV. 	DISCUSSION
Officers Iannone and Deacetis seek summary judgment on all counts against them, arguing
that the doctrines of qualified immunity and sovereign immunity preclude any civil liability in this
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case. (DE 304). As set forth below, the Court agrees. The Court will address the § 1983 claims
first, followed by the state-law claims.
A. 	Count 1 – 42 U.S.C. § 1983
Count 1 alleges claims against Officers Iannone and Deacetis for violation of 42 U.S.C. §
1983, which provides a remedy against “every person” who, under color of state law, deprives
another of rights secured by the Constitution and laws of the United States. Plaintiff alleges that
Officers Iannone and Deacetis violated his constitutional rights by, among other things, falsely
arresting him and causing his malicious prosecution. (DE 39 ¶¶ 55-93). As set forth below, the
Court finds that summary judgment should be granted on Count 1 based on qualified immunity.
The doctrine of qualified immunity provides “complete protection for government officials
sued in their individual capacities if their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Vinyard v. Wilson, 311
F.3d 1340, 1346 (11th Cir. 2002) (cleaned up). 	“The purpose of this immunity is to allow
government officials to carry out their discretionary duties without the fear of personal liability or
harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly
violating the federal law.” 	Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (cleaned up).
Qualified immunity is a “legal question” that courts may resolve on summary judgment. Lee v.
Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002).
To be eligible for qualified immunity, a defendant must first establish that the officer was
performing a “discretionary function” at the time the alleged violation of federal law occurred.
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263-64 (11th Cir. 2004). Here, Plaintiff
alleges that the officers arrested him for DUI, thereby causing his prosecution for that offense.
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The Court finds these actions to be “discretionary functions” for purposes of qualified immunity
analysis.
Once the defendant makes this showing, the burden shifts to the plaintiff to demonstrate
that the defendant is not entitled to qualified immunity. 	Id. at 1264. 	To meet this burden, the
plaintiff must satisfy a two-step test: (1) he must show the defendant committed a constitutional
violation, and (2) he must show the constitutional right at issue was “clearly established” at the
time of the violation. 	Id. 	“The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Hamilton v. City of Jackson, Ala., 261 F. App’x 182, 186
(11th Cir. 2008) (cleaned up). 	“Put another way, the defendant must have fair notice of his
conduct’s unconstitutionality which derives from one of the following sources: (1) the obvious
clarity of constitutional or statutory language; (2) of principle in case law that are not tied to
particularized facts; or (3) fact-specific judicial precedents that are not fairly distinguishable.”
Eloy v. Guillot, 289 F. App’x 339, 346 (11th Cir. 2008).
Here, Plaintiff alleges that Officers Iannone and Deacetis violated his Fourth Amendment
rights by falsely arresting him without probable cause and causing his malicious prosecution. (DE
39 ¶¶ 55-74, 75-83). An arrest made without a warrant and without probable cause violates the
Fourth Amendment and gives rise to a claim under 42 U.S.C. § 1983. Gates v. Khokhar, 884 F.3d
1290, 1297 (11th Cir. 2018). 	Probable cause exists to make an arrest when law enforcement
officers have facts and circumstances within their knowledge “sufficient to warrant a reasonable
belief that a suspect has committed or was committing a crime.” Case v. Eslinger, 555 F.3d 1317,
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1327 (11th Cir. 2009). Probable cause must be measured objectively, based on the totality of the
circumstances. Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998).
To overcome qualified immunity in a false arrest case, a plaintiff must do more than merely
show lack of probable cause; a plaintiff must show lack of “arguable probable cause.” Brown v.
City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). 	“Arguable probable cause” exists
where a reasonable officer in the same circumstances “could have believed” that probable cause
existed to make the arrest. 	Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990). 	Courts
apply this standard because “it is inevitable that law enforcement officials will in some cases
reasonably but mistakenly conclude that probable cause is present, and in such cases those officials
should not be held personally liable.” Id. (cleaned up); see also Montoute v. Carr, 114 F.3d 181,
184 (11th Cir. 1997) (noting that qualified immunity is broad enough to cover mistaken judgment).
Like probable cause, arguable probable cause must be measured objectively, without regard to the
officer’s subjective intent or belief. Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010).
The question of whether an officer possesses arguable probable cause in a given case
depends on the elements of the alleged crime and the operative fact pattern. Brown, 608 F.3d at
735. Here, the Court finds that the undisputed facts show that Officers Iannone and Deacetis had
arguable probable cause to believe that Plaintiff had violated Fla. Stat. § 316.193, which provides
as follows:
316.193 	Driving under the influence; penalties.—
(1) 	A person is guilty of the offense of driving under the influence and is subject
to punishment as provided in subsection (2) if the person is driving or in actual
physical control of a vehicle within this state and:
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(a) 	The person is under the influence of alcoholic beverages, any chemical
substance set forth in s. 877.111, or any substance controlled under chapter 893,
when affected to the extent that the person’s normal faculties are impaired;
Fla. Stat. § 316.193(1)(a) (emphasis added).
In particular, the undisputed facts show the following:
• 	The officers found Plaintiff parked on the side of the road at 3:00 a.m. asleep at the
wheel of his vehicle. (DE 39 ¶¶ 7, 65; DE 305 ¶ 10; DE 332 ¶ 10).
• 	The video shows that Plaintiff failed to follow instructions during the first phase of
the field sobriety test, thereby showing signs of impairment. 	(DE 304-6 at 0:57-
1:05, 1:31).
• 	The video shows that Plaintiff swayed and stumbled numerous times during the
second and third phases of the field sobriety test, thereby showing signs of
impairment. (DE 304-6 at 3:20-6:06).
• 	When asked how much he had to drink, Plaintiff said, “Just one.” 	(DE 304-6 at
6:09-6:17, DE 39 ¶ 33, DE 305 ¶ 19, DE 332 ¶ 19).
The Court finds these undisputed facts more than sufficient to support arguable probable
cause for Plaintiff’s DUI arrest. Officers Iannone and Deacetis urge the Court to look to additional
evidence, including the officers’ personal observations of the condition of Plaintiff’s eyes, the odor
of alcohol on his person, and Plaintiff’s refusal to submit to a breath, blood, or urine test. (DE 304
at 7, 18-20). The Court declines to rely upon this additional evidence, as Plaintiff disputes much
of it, including the credibility of the officers’ personal observations. (DE 333 at 6-9). This Court
cannot, and will not, resolve credibility issues at the summary judgment stage.
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Plaintiff urges the Court to deny summary judgment, and he disputes the meaning and
interpretation of the video footage, including his poor performance on the field sobriety test. (DE
332 ¶¶ 23, 27-30, 35-38). The Court has reviewed the video footage numerous times. The footage
plainly and unambiguously shows that Plaintiff failed to follow instructions during the first phase
of the test and that he swayed and staggered during the second and third phases of the test. (DE
304-6 at 0:57-1:05, 1:31, 3:20-4:39, 4:43-6:06). As such, the Court may, and does, rely upon this
video footage in reaching this summary judgment decision. See Scott v. Harris, 550 U.S. 372, 380
(2007) (noting that when the parties tell two different stories and a video blatantly contradicts one
version of the facts “so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment”); Metz v. Bridges,
No. 23-11275, 2024 WL 5088586, at *4 (11th Cir. Dec. 12, 2024) (concluding that officers had
arguable probable cause to make an arrest based, in part, on video footage).
Plaintiff raises three additional arguments in opposition to summary judgment, each of
which the Court will address in turn.
1. 	Ankle Injury
First, Plaintiff argues that an ankle injury, not intoxication, caused his poor performance
on the field sobriety test and that the officers therefore lacked arguable probable cause to arrest
him. Specifically, Plaintiff claims that he informed Officer Iannone that he had an ankle brace in
his vehicle due to an ankle injury, but that Officer Iannone coerced Plaintiff into performing the
test without the benefit of his ankle brace. 	(DE 39 ¶ 62, DE 332 ¶ 16).
The Court finds this argument unpersuasive for two reasons. First, the video footage does
not support Plaintiff’s version of events. Instead, the video shows the following exchange:
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Officer Iannone: Okay, I’m going to put you through a couple of field sobriety
tests, okay? Just to make sure you’re okay to drive…. Do you have any problems
with your knees, ankles, feet, anything that’s going to prevent you from doing these
tests?
Plaintiff: No
Officer Iannone: No?
Plaintiff: I got an injury to my ankle, but
Officer Iannone: You can still do it?
(DE 304-6 at 0:21-0:42). 	Officer Iannone then paused for Plaintiff’s affirmative response, but
Plaintiff gave none. (DE 304-6 at 0:40-0:44). Hearing no response, Officer Iannone proceeded
with the test. In short, the video contains no indication that Plaintiff ever requested an ankle brace,
that Officer Iannone ignored a request for an ankle brace, or that Officer Iannone demanded more
than Plaintiff said he could do.
Second, even if Plaintiff had requested an ankle brace, this factor would not alter the
Court’s conclusion as to arguable probable cause. The video shows that Plaintiff performed poorly
on all phases of the field sobriety test. (DE 304-6 at 0:57-1:05, 1:31, 3:20-4:39, 4:43-6:06). To
the extent an ankle injury may have hindered his performance on the second or third phases of the
test (walk and turn and one leg stand), Plaintiff still failed to follow basic instructions on the first
phase of the test, which did not depend on ankle function at all. 	Plaintiff’s inability to follow
instructions during the first phase, by itself, satisfies the “low bar” of arguable probable cause. See
Terrell v. Allgrunn, 114 F.4th 428, 436 (5th Cir. 2024) (describing arguable probable cause as a
“low bar”).
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2. 	“Just one”
Plaintiff next argues that his admission to “one” drink cannot support arguable probable
cause because he never admitted the drink was alcoholic. (DE 333 at 5). The Court disagrees.
Arguable probable cause must be measured based on the totality of the circumstances from the
perspective of a reasonable police officer. Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir.
2001). 	Based on the totality of the circumstances here, a reasonable police officer could have
believed that Plaintiff admitted to having one alcoholic drink. These circumstances include the
following:
• 	Officer Iannone told Plaintiff he wanted to perform “field sobriety tests” to make
sure Plaintiff was “ok to drive.” (DE 304-6 at 0:21-0:28) (emphasis added).
• 	The video shows that Plaintiff performed poorly on the test. 	(DE 304-6 at 0:57-
1:05, 1:31, 3:20-4:39, 4:43-6:06).
• 	At the conclusion of the test, Officer Iannone asked, “How much have you had to
drink my man?” (DE 304-6 at 6:09-6:17).
• 	Plaintiff replied, “Just one.” (DE 304-6 at 6:09-6:17).
Based on these facts and circumstances, a reasonable police officer in Officer Iannone’s
position could have concluded that Plaintiff admitted to having one alcoholic drink. As such, the
Court finds this argument insufficient to defeat arguable probable cause.
3. 	False Affidavit Statements
Plaintiff next argues that the officers’ Arrest Affidavit and Alcohol Influence Report
(collectively “Affidavits”) contain numerous false statements that defeat arguable probable cause.
(DE 39 ¶¶ 65-70, DE 304-1, DE 304-3). Plaintiff identifies the following statements as false:
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• 	Plaintiff’s vehicle was facing the wrong way at a major intersection. (DE 304-1,
DE 304-3).
• 	Plaintiff refused to submit to a breath test. (DE 304-1).
• 	Plaintiff’s eyes were bloodshot, droopy, watery, and he spoke with slurred speech
and fumbled with his insurance and registration documents. (DE 304-1, DE 304-
3).
• 	Two other persons, “Mr. Reis” and “Mr. Grant,” were present during the DUI
stop. (DE 304-1).
Courts utilize a two-step inquiry to determine whether an officer’s misstatement in an arrest
or probable cause affidavit violates the Fourth Amendment. Paez v. Mulvey, 915 F.3d 1276, 1287
(11th Cir. 2019). 	First, a court must consider whether the officer made the misstatement or
omission intentionally or recklessly. 	Id. 	As the Eleventh Circuit has explained, “negligent
misstatements or omissions” do not violate the Fourth Amendment. Id. Second, the court must
determine whether the misstatement or omission was material, i.e., whether arguable probable
cause would remain if the misstatement were removed, or the omitted facts were added. Id. If the
affidavit, once corrected for any misstatements or omissions, would still demonstrate arguable
probable cause, then qualified immunity applies. 	Mathis v. Eslinger, No. 20-13761, 2022 WL
16849124, at *9 (11th Cir. Nov. 10, 2022).
Applying this standard here, the Court finds it unnecessary to determine whether the
alleged misstatements were in fact false or whether the officers made the misstatements
intentionally or recklessly. Even assuming these factors in Plaintiff’s favor, Plaintiff still fails the
second part of the two-step inquiry, i.e., materiality. 	Put differently, even after removal of the
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alleged misstatements, the officers’ Affidavits still demonstrate arguable probable cause for a DUI
arrest based on the following facts: 	(1) the officers found Plaintiff asleep at the wheel of his
vehicle, (2) he performed poorly on the field sobriety exercises, and (3) he admitted to having one
drink. (DE 304-1, DE 304-3). As previously explained, arguable probable cause sets a “low bar.”
See Terrell, 114 F.4th at 436.
For all of the above reasons, the Court finds that qualified immunity protects Officers
Iannone and Deacetis from the § 1983 false arrest and malicious prosecution claims alleged in
Count 1. See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1257 n.25 (11th Cir. 2010) (noting
that arguable probable cause triggers qualified immunity for both false arrest and malicious
prosecution). As such, summary judgment should be granted as to Count 1.
B. 	Counts 2, 3, & 5 – State-Law Claims
Counts 2, 3, and 5 allege state-law claims against Officers Iannone and Deacetis. (DE 39
¶¶ 75-92, 98-99). The Court finds that summary judgment should be granted on these counts based
on Florida’s sovereign immunity statute, which provides as follows, in relevant part:
An officer, employee, or agent of the state or of any of its subdivisions may not be
held personally liable in tort or named as a party defendant in any action for any
injury or damage suffered as a result of any act, event, or omission of action in the
scope of her or his employment or function, unless such officer, employee, or agent
acted in bad faith or with malicious purpose or in a manner exhibiting wanton and
willful disregard of human rights, safety, or property. …
Fla. Stat. § 768.28(9)(a) (emphasis added).
Just as the doctrine of qualified immunity provides police officers with protection from the
federal claims arising under § 1983, this statute provides police officers with protection from state
tort claims arising under Florida common law. In particular, the statute provides police officers
with both an immunity from liability and an immunity from suit against state-law tort claims for
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injuries or damages caused while acting within the scope of their employment. 	Furtado v. Yun
Chung Law, 51 So. 3d 1269, 1277 (Fla. 4th DCA 2011). The immunity does not attach, however,
if the officer “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and
willful disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a).
Applying these standards here, the Court finds that the undisputed facts show that Officers
Iannone and Deacetis acted within the scope of their employment for purposes of Fla. Stat. §
768.28(9)(a). The Court further finds that the undisputed facts show that the officers did not act
in “bad faith” or with “malicious purpose” or in “a manner exhibiting wanton and willful disregard
of human rights, safety, or property” for purposes of the statute. Instead, as set forth in Part IV.A
above, the evidence shows that the officers had arguable probable cause to arrest Plaintiff for DUI.
Cf. Cottam v. City of Wildwood, 750 F. App’x 791, 795 (11th Cir. 2018) (noting that “[t]he
existence of probable cause contradicts any suggestion of malicious intent or bad faith”). On this
record, no reasonable juror could conclude that the officers’ conduct exhibited bad faith, malice,
or wanton and willful disregard for Plaintiff’s rights within the meaning of Fla. Stat. §
768.28(9)(a). 	As such, summary judgment should be granted on Counts 2, 3, and 5 based on
Florida’s sovereign immunity statute.
C. 	The City
Finally, in his response to the pending motion, Plaintiff claims, at several points, to assert
§ 1983 claims against Officers Iannone and Deacetis in their official capacities. (DE 333 at 11,
14). An official-capacity claim against these officers would be the functional equivalent of a claim
against the City. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“Because suits
against a municipal officer sued in his official capacity and direct suits against municipalities are
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functionally equivalent, there no longer exists a need to bring official-capacity actions against local
government officials, because local government units can be sued directly....”). 	By way of
previous Orders, the District Judge already dismissed all claims against the City. 	(DE 58, DE
241).
To the extent these previous Orders failed to address a § 1983 claim against the City – pled
under the guise of an official-capacity claim against the officers – the Court recommends that any
such claim be dismissed with prejudice. In Monell v. Department of Social Services, 436 U.S. 658
(1978), the Supreme Court recognized that municipalities qualify as “persons” subject to suit under
§ 1983. To demonstrate liability against a municipality, however, a plaintiff must do more than
merely show the municipality employed a person who committed a constitutional violation, as the
doctrine of respondeat superior does not apply to § 1983 actions. 	Id. at 691. 	“[A] city is not
vicariously liable under § 1983 for the constitutional torts of its agents: It is only liable when it
can be fairly said that the city itself is the wrongdoer.” Collins v. City of Harker Heights, Tex.,
503 U.S. 115, 122 (1992).
The Supreme Court has defined three narrow circumstances under which a municipality
can be held liable under § 1983. First, Monell recognizes that § 1983 liability attaches when the
municipality itself adopts a formal policy, rule, or regulation that causes constitutional violations.
436 U.S. at 658. Second, Monell recognizes that municipalities may follow informal customs or
practices that cause constitutional violations even though such customs or practices have “not
received formal approval through the body’s official decisionmaking channels.” 	Id. at 690-91
(cleaned up). 	To prove a custom or practice, a plaintiff must establish a widespread pattern of
conduct “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”
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Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (cleaned up). Third, the
Supreme Court recognizes “limited circumstances” under which “failure to train” can give rise to
§ 1983 liability. 	City of Canton v. Harris, 489 U.S. 378, 387 (1989). 	Specifically, inadequate
training “may serve as the basis for § 1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into contact.” Id. at
388. To show “deliberate indifference” in a failure-to-train case, “a plaintiff must present some
evidence that the municipality knew of a need to train and/or supervise in a particular area and the
municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d
1346, 1350 (11th Cir. 1998).
Here, Plaintiff’s operative complaint fails to allege facts to demonstrate Monell liability
under any of these three theories. (DE 39). The operative complaint fails to allege that the City
maintained an official policy that caused the alleged violations at issue, or that the City followed
informal customs or practices that caused the alleged violations, or that the City received notice of
similar violations and thereafter made a deliberate decision to ignore a need for officer training in
that area. 	In short, Plaintiff never pled a plausible § 1983 Monell claim against the City in this
case. 	To the extent any such claim has not yet been dismissed, it should be dismissed now.
V. 	RECOMMENDATION & NOTICE OF RIGHT TO OBJECT
For the reasons stated above, the undersigned RECOMMENDS that the motion (DE 304)
be GRANTED as follows:
1. 	Summary judgment be entered in favor of Officers Iannone and Deacetis in their
individual capacities as to Counts 1, 2, 3, and 5.
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2. 	To the extent necessary, Count 1 should be dismissed with prejudice as to Officers
Iannone and Deacetis in their official capacities.
3. 	The Clerk SHALL FILE a Notice of Compliance on the docket indicating that a
copy of this Report and Recommendation was mailed to Plaintiff, Nelson Henry, pro se.
4. 	The parties shall have fourteen (14) days from the date of being served with a copy
of this Report and Recommendation within which to file written objections, if any, with United
States District Judge Aileen M. Cannon. Failure to file objections timely shall bar the parties from
a de novo determination by the District Judge of an issue covered in the Report and
Recommendation and shall bar the parties from attacking on appeal unobjected-to factual and legal
conclusions contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); 11th Cir.
R. 3-1.
5. 	IF A PARTY DOES NOT INTEND TO OBJECT TO THIS REPORT AND
RECOMMENDATION, THE PARTY SHALL FILE A NOTICE TO THAT EFFECT
WITHIN FIVE (5) DAYS.
RESPECTFULLY SUBMITTED in Chambers at West Palm Beach in the Southern
District of Florida, this 26th day of November 2025.
RYON M. MCCABE
U.S. MAGISTRATE JUDGE
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