HERNANDEZ v. MCCALLUM et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
MICHAEL HERNANDEZ,
Plaintiff,
v. 	Case No.: 1:25cv47/TKW/ZCB
ROBERT B. MCCALLUM, JR.,
et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Plaintiff is a prisoner proceeding pro se and in forma pauperis in
this civil rights action. 	Presently before the Court is Plaintiff’s third
amended complaint.1 (Doc. 25). The Court is required to screen the third
amended complaint to determine if it is frivolous or malicious, fails to
1 After Plaintiff filed the third amended complaint (Doc. 25), the Court
received 	an 	identical 	and 	unsigned 	copy 	of 	it 	(Doc. 	29). 	Plaintiff
previously advised the Court that he may have inadvertently sent an
unsigned copy. 	(Doc. 26). 	Because the unsigned copy violates the Local
Rules and the Federal Rules of Civil Procedure, and since it is identical
to the third amended complaint in all respects except for the missing
signature, the Court considers only the signed third amended complaint
(Doc. 25). See Fed. R. Civ. P. 11(a) (“Every pleading, written motion, and
other paper must be signed . . . by a party personally if the party is
unrepresented.”); see also N.D. Fla. Loc. R. 5.1(E) (“A document filed by
a 	pro 	se 	party 	must 	include 	a 	signature 	block 	with 	the 	party’s
handwritten signature . . . .”).
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state a claim on which relief may be granted, or seeks monetary relief
against an immune defendant. 	28 U.S.C. §§ 1915(e)(2)(B), 1915A(a)-(b).
Upon a review of the third amended complaint, the Court finds that it is
an 	impermissible 	shotgun 	pleading. 	Because 	Plaintiff 	previously
submitted a shotgun pleading and was notified of the deficiencies and
provided an opportunity to amend, (Docs. 19, 20), this case should be
dismissed.
I. Discussion
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to contain “a short and plain statement of the claim” showing
that the plaintiff is entitled to relief. 	Fed. R. Civ. P. 8(a)(2). 	And Rule
10(b) requires a plaintiff to “state its claims [] in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.” 	Fed.
R. Civ. P. 10(b). 	“A shotgun pleading is a complaint that violates either
Federal Rule of Civil Procedure 8(a)(2) or Rule 10(b), or both.” Barmapov
v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021). Shotgun pleadings are
“flatly forbidden.” 	Id. 	And district courts have the “authority to dismiss
a shotgun pleading on that basis alone.” 	Jackson v. Bank of Am., N.A.,
898 F.3d 1348, 1357 (11th Cir. 2018).
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The Eleventh Circuit has explained that there are four types of
shotgun pleadings: (1) “a complaint containing multiple counts where
each count adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last count to be a
combination of the entire complaint”; (2) “a complaint that is replete with
conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action”; (3) “a complaint that does not separate each
cause of action or claim for relief into a different count”; and (4) “a
complaint 	that 	asserts 	multiple 	claims 	against 	multiple 	defendants
without specifying which of the defendants are responsible for which acts
or omissions, or which of the defendants the claim is brought against.”
Barmapov, 986 F.3d at 1324-25 (cleaned up). 	What all four types of
shotgun pleadings have in common is “that they fail to one degree or
another, and in one way or another, to give the defendants adequate
notice of the claims against them and the grounds upon which each claim
rests.” 	Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323
(11th Cir. 2015). 	And dismissing shotgun pleadings (or requiring a more
definite statement) is necessary because “district courts have neither the
manpower nor the time to sift through a morass of irrelevant facts in
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order to piece together” a plaintiff’s claims. Barmapov, 986 F.3d at 1327-
28 (Tjoflat, J., concurring).
Plaintiff’s third amended complaint is a shotgun pleading because
it “does not separate each cause of action or claim for relief into a different
count.” 	Barmapov, 986 F.3d at 1325 (cleaned up). 	The third amended
complaint claims to be asserting thirteen counts. 	(Doc. 25 at 7, 22-24).
But Plaintiff has combined several different causes of action or claims
into a single count and in some instances has failed to adequately specify
what claims are actually being asserted in what counts.
For 	example, 	in 	Count 	I, 	Plaintiff 	states 	that 	Defendants
McCallum, 	Narayan, 	Perryman, 	Stancil, 	and 	Murphy 	“committed
conspiracy against Plaintiff and family in violations of Tit. 42 USCS
1985(3) and F.S. 777.04(3).” (Id. at 7). Count I continues by stating that
“[t]heir conspiracy deprived Plaintiff and his family of life, liberty, and
property without due process of law by reaching an understanding and
agreement to deny Plaintiff/family of their 5th amendment rights” and
that these actions “amount to deliberate indifference” due to “wanton and
gross negligence” while also being “intentional misconduct.” (Id. at 7, 22).
The references to 42 U.S.C. § 1985(3) and Fla. Stat. § 777.04(3) constitute
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at least two distinct claims and it is entirely unclear whether Plaintiff’s
reference to 	Fifth Amendment 	due 	process rights is intended as a
standalone claim or to support the two aforementioned claims. The same
is true regarding Plaintiff’s reference to gross negligence—a recognized
cause of action under Florida law.2 	See Cortes v. Honeywell Bldg. Sols.
SES Corp., 37 F. Supp. 3d 1260, 1270 (S.D. Fla. 2014) (identifying the
elements of a gross negligence claim under Florida law).
Count 	II 	alleges 	that 	Defendants 	McCallum, 	Narayan, 	and
Perryman discriminated against Plaintiff due to his sex offender status
in violation of the Fourteenth Amendment’s Equal Protection Clause.
(Doc. 	25 	at 	22). 	But 	Plaintiff 	again 	states 	that 	these 	Defendants
“commit[ed] wanton and gross negligence” without clarifying whether
these are independent claims for relief. (Id.). Count III is similar, where
Plaintiff states that Defendants Perryman and Stancil “violat[ed] . . .
Franks v. Del. 438 US 154 (1978)” by fabricating probable cause for a
2 	In 	a 	standalone 	sentence 	in 	Count 	I, 	Plaintiff 	also 	references
“intentional misconduct” (Doc. 25 at 22) which is an independent basis
for punitive damages under Florida law. 	See IBP, Inc. v. Hady Enters.,
Inc., 267 F. Supp. 2d 1148, 1170 (N.D. Fla. 2002) (“Under Florida law, in
order to recover punitive damages, a plaintiff must demonstrate . . . that
the defendant is personally guilty of intentional misconduct or gross
negligence.”), aff’d, 52 F. App’x 487 (11th Cir. 2002).
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search warrant in violation of the Fourth Amendment” while Plaintiff
again 	states 	that 	these 	Defendants 	“commit[ed] 	wanton/gross
negligence.” (Id.). Count IV references Defendants Stancil and Narayan
“falsely arrest[ing] Plaintiff in violation of” the Eighth Amendment while
again stating that these actions constituted “gross negligence.” (Id.).
In Count VI, Plaintiff claims that Defendant Murphy “illegally
searched and seized Plaintiff’s truck without a warrant or probable cause
in violation of” the Fourth Amendment. (Id.). Fourth Amendment search
claims and Fourth Amendment seizure claims are distinct causes of
action, yet Plaintiff has joined them together in one count. 	See Horton v.
California, 496 U.S. 128, 133 (1990) (“The right to security in person and
property protected by the Fourth Amendment may be invaded in quite
different ways by searches and seizures. 	A search compromises the
individual 	interest 	in 	privacy; 	a 	seizure 	deprives 	the 	individual 	of
dominion over his or her person or property.”).
Count VII states that Defendant Murphy “negligently failed to
order a Gerstein v. Pugh, 420 U.S. 103, 124-25 (1975) hearing,” which
“violat[ed] federal due process and FL Rule Crim. Pro. 3.133.” 	(Doc. 25
at 23). 	Plaintiff also incorporates other counts in Count VII by stating
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that “Murphy’s actions listed in Claims V-VII amount to intentional
misconduct.” (Id.). Even putting aside Plaintiff’s reference to negligence
in Count VII—an independent claim in itself under Florida law—it is
unclear whether Plaintiff is asserting a due process claim, a claim under
the cited Florida Rule of Criminal Procedure, or both.
Count VIII is brought against Defendant Screws. 	Plaintiff states
that Screws “maliciously prosecuted Plaintiff in violation of federal due
process” while, again, stating that Screws “commit[ed] wanton and gross
negligence.” 	(Id.). 	But it ambiguous whether Count VIII is a malicious
prosecution claim, a due process claim,3 or both—even though they arise
from different constitutional provisions and are distinct claims for relief.4
3 The Court also notes that there are different types of due process claims,
yet Plaintiff’s fails to identify which type he is asserting. 	See Kantner v.
Martin Cnty., 929 F. Supp. 1482, 1486 n.1 (S.D. Fla. 1996) (“Substantive
due process rights differ from its procedural counterpart in the manner
in which they occur and the remedy sought by the plaintiff.).
4 See Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018) (“To establish a
federal claim for malicious prosecution under § 1983, a plaintiff must
prove (1) the elements of the common-law tort of malicious prosecution
and (2) a violation of his Fourth Amendment right to be free from
unreasonable seizures.”); Hoefling v. City of Miami, 811 F.3d 1271, 1282
(11th Cir. 2016) (“To state a substantive due process claim, a plaintiff
must allege (1) a deprivation of a constitutionally protected interest, and
(2) that the deprivation was the result of an abuse of governmental power
sufficient to raise an ordinary tort to the stature of a constitutional
violation.”) (cleaned up); Arrington v. Helms, 438 F.3d 1336, 1347 (11th
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In Count IX, Plaintiff asserts that Defendant Stancil “failed to
protect the Swartz Estate by ‘not’ securing the home/property” after
searching it which “result[ed] in negligence and deliberate indifference
to” the “common law right to have authorities protect and serve.” 	(Doc.
25 at 23). 	Count IX continues by asserting that these alleged actions
were “[i]n violation of 5th Amendment Due Process rights to property . .
. .” (Id.). But as noted previously, a negligence claim is not the same as
a due process claim. 	And even if there is a “common law right” to be
“protect[ed] and serve[d],” this is yet a third claim Plaintiff attempts to
lump into Count IX. (Id.). Counts X and XI similarly assert violations of
Plaintiff’s “common law right” while simultaneously referencing gross
negligence and Fifth Amendment due process violations. (Id. at 23-24).
Counts XII and XIII appear to be municipal liability claims against
Defendants McCallum and Kramer. (Id. at 24). Like others, Counts XII
and XIII allege Fifth Amendment due process violations while also
Cir. 2006) (“In this circuit, a § 1983 claim alleging a denial of procedural
due process requires proof of three elements: 	(1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action;
and (3) constitutionally-inadequate process.”).
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asserting 	that 	these 	Defendants 	“commit[ed] 	wanton 	and 	gross
negligence.” (Id.).
As 	demonstrated 	above 	and 	despite 	previously 	being 	warned
against doing so (Doc. 20 at 6-7), Plaintiff has included multiple potential
claims for relief and theories of liability in the Counts set forth in the
complaint. 	This is not a pleading where Plaintiff identifies the claim
being asserted in each count. Instead, the third amended complaint is a
jumbled conglomeration of allegations with legal claims and citations to
legal provisions scattered throughout. 	Plaintiff repeatedly lists various
constitutional provisions (often more than one per Count) alongside
phrases like negligence, gross negligence, and deliberate indifference—
all of which are additional possible claims for relief.
Plaintiff’s pleading strategy has left the Court uncertain as to
exactly 	which 	claims 	Plaintiff 	is 	asserting 	in 	his 	third 	amended
complaint. 	Defendants cannot be expected to defend against multiple
potential causes of action asserted in each Count—when it is unclear
which of the possible claims in each count are actually being brought.5
5 See also Burgess v. Royal Caribbean Cruises Ltd., 2020 WL 13349026,
at 	*2 	(S.D. 	Fla. 	Oct. 	9, 	2020) 	(“Despite 	Plaintiff’s 	claim 	that 	the
Complaint 	properly 	separates 	each 	cause 	of 	action 	and 	theory 	of
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See Weiland, 792 F.3d at 1323 n.13 (noting “a complaint with untold
causes of action, all bunched together in one count as a model shotgun
pleading”) (cleaned up). By “lump[ing] multiple claims together in [each]
count[,]” 	Plaintiff 	“forces 	[the 	Court] 	to 	play 	detective 	rather 	than
umpire.” 	Vargas v. Lincare, Inc., 134 F.4th 1150, 1162 (11th Cir. 2025)
(Tjoflat, J., concurring). “This is not how litigation works.” 	Id.
For the reasons above, Plaintiff’s third amended complaint is a
shotgun pleading. It fails to “give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.”
Arrington v. Green, 757 F. App’x 796, 797 (11th Cir. 2018). 	The Court
recognizes that Plaintiff is proceeding pro se and that pro se pleadings
are “liberally construed.” Nalco Co. LLC v. Bonday, 142 F.4th 1336, 1341
(11th Cir. 2025). 	But pro se litigants are still “required to conform to
negligence, the Complaint improperly lumps distinct claims and legal
theories 	together 	in 	a 	single 	count 	with 	no 	regard 	to 	Rule 	10(b)’s
requirement that discrete claims be plead in separate counts. Indeed, in
both Counts VIII and XVI , Plaintiff improperly pled ‘Negligent Hiring,
Selection, Retention, Monitoring and Training’ of medical staff. 	These
counts combine different causes of action that have distinct elements of
law and require different findings.”) (cleaned up); James River Ins. Co. v.
O’Gallagher LLC, 340 F.R.D. 471, 475 (S.D. Fla. 2022) (noting a claim
“bears the hallmarks of a shotgun pleading . . . given the lack of clarity
as to how many and what claims for relief O’Gallagher sought to bring in
its omnibus single count”).
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procedural rules.” 	Roy v. Ivy, 53 F.4th 1338, 1346 (11th Cir. 2022). And
a court is not tasked with rewriting a deficient pleading, even if brought
by a pro se party. Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69
(11th Cir. 2014).
Plaintiff has filed several deficient complaints (Docs. 1, 8 to 10, 19),
was told of the deficiencies in these pleadings, and provided with multiple
opportunities to cure those deficiencies. (Docs. 6, 15, 20). Most recently,
Plaintiff was advised that his second amended complaint (Doc. 19) was a
shotgun pleading and warned that a failure to correct the identified
deficiencies would result in a recommendation of dismissal. 	(Doc. 20).
Nonetheless, Plaintiff has filed a third amended complaint that suffers
from the same type of deficiencies as the second amended complaint.
Thus, dismissal is warranted. See Jackson, 898 F.3d at 1358 (explaining
that the district court should “give the plaintiff one chance to remedy
such 	deficiencies” 	before 	dismissing 	the 	complaint 	as 	a 	shotgun
pleading); see also Cornelius v. Bank of Am., NA, 585 F. App’x 996, 1000
(11th Cir. 2014) (“There is no indication that, given a [fifth] bite at the
apple, 	[Plaintiff] 	would 	correct 	the 	numerous 	deficiencies 	in 	his
complaint.”).
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II. Conclusion
For the reasons above, it is respectfully RECOMMENDED that:
1. 	Plaintiff’s third amended complaint (Doc. 25) be DISMISSED
as an impermissible shotgun pleading.6
2. 	All pending motions be DENIED as moot.
3. 	The Clerk of Court be directed to enter judgment and close
this case.
At Pensacola, Florida, this 4th day of November 2025.
/s/
Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must
be 	filed 	within 	fourteen 	days 	of 	the 	date 	of 	the 	Report 	and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic 	docket 	is 	for 	the 	court’s 	internal 	use 	only 	and 	does 	not
control. 	An objecting party must serve a copy of the objections on all
other parties. 	A party who fails to object to the magistrate judge’s
6 Plaintiff’s federal claims should be dismissed with prejudice. 	See Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018). 	To the
extent the third amended complaint includes state law claims, those
claims should be dismissed without prejudice to Plaintiff refiling them in
state court. 	Id. at 1296-97 (affirming dismissal of federal claims with
prejudice on shotgun pleading grounds but stating that “to whatever
extent that the [complaint] includes state law claims, the dismissal
should have been without prejudice as to refiling in state court”).
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findings or recommendations contained in a report and recommendation
waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
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