Opinion
6:22-cv-898-RBD-DAB
09-23-2022
KHALI DEVONTEE FELTON, Plaintiff, v. WINTER PARK POLICE DEPARTMENT; and AMY DICARLO, Defendants.
ORDER
ROY B. DALTON JR. UNITED STATES DISTRICT JUDGE
In this malicious prosecution and negligence case, Plaintiff sued the Winter Park Police Department (“WPPD”) and police detective Amy DiCarlo in her official and individual capacities. (See Doc. 1-1.) Defendants moved to quash service. (Doc. 5 (“Motion”).) On referral, U.S. Magistrate Judge Celeste F. Bremer recommends granting the Motion in part. (Doc. 19 (“R&R”).)
First, as to the parties themselves, Judge Bremer recommends that the WPPD should be dismissed because it is not amenable to suit as a municipal department; the City of Winter Park itself is the proper party. (See Doc. 19, pp. 23); Williams v. Mia.-Dade Police Dep't, 297 Fed.Appx. 941, 945 (11th Cir. 2008). As to DiCarlo, as a municipal officer, the suit against her in her official capacity is essentially a suit against the City and must be served accordingly. (Doc. 19, pp. 5-6 & n.3); see Ludaway v. City of Jacksonville, 245 Fed.Appx. 949, 951 (11th Cir. 2007).
Turning to service, Judge Bremer recommends finding that service on the municipal entity (and thus DiCarlo in her official capacity) was improper under Federal Rule of Civil Procedure 4(j)(2) because Plaintiff did not serve the municipality's CEO or another individual authorized to accept service under the applicable statute. (See Doc. 19, pp. 3-7.) As to DiCarlo individually, Judge Bremer recommends finding that service was proper because, even though someone else accepted service on her behalf, DiCarlo failed to carry her burden of showing that the recipient was not authorized to accept service. (See id. at 4-5.)
The parties did not object and the deadline has passed, so the Court examines the R&R for clear error only. See Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006). Finding none, the R&R is due to be adopted in its entirety.
Judge Bremer also recommends that Plaintiff's complaint be dismissed as a shotgun pleading because each count incorporates the allegations of the preceding count. (See Doc. 19, p. 8.) Plaintiff should fix this deficiency on repleader.
Accordingly, it is ORDERED AND ADJUDGED:
1. The R&R (Doc. 19) is ADOPTED, CONFIRMED, and made a part of this Order in its entirety.
2. Defendants' Motion (Doc. 5) is GRANTED IN PART AND DENIED IN PART:
a. The Motion is GRANTED insofar as service on DiCarlo
in her official capacity is QUASHED.
b. The Motion is DENIED insofar as service on DiCarlo individually was proper.
c. The Motion is GRANTED insofar as the claims against the Winter Park Police Department are DISMISSED WITH PREJUDICE because it is not amenable to suit. The Clerk is DIRECTED to terminate the Winter Park Police Department as a party to the case.
d. The Motion is GRANTED insofar as the remaining claims in Plaintiff's Complaint (Doc. 1-1) are DISMISSED WITHOUT PREJUDICE. By Wednesday, October 5, 2022, Plaintiff may file an amended complaint against the City and DiCarlo in her individual capacitycorrecting the deficiencies identified in the R&R (Doc. 19). Failure to timely file will result in this action being closed without further notice.
e. In all other respects, the Motion is DENIED.
Assuming Plaintiff names the City on repleader, it must be properly served in accordance with the R&R.
Because service on DiCarlo in her official capacity was quashed, the R&R did not reach the motion to dismiss on that claim. (See Doc. 19, p. 7.) Nevertheless, as the R&R points out, the official capacity claim against DiCarlo is duplicative of a claim against the City. (Id. at 5 n.3); see Hafer v. Melo, 502 U.S. 21, 25 (1991). Assuming that Plaintiff repleads to assert a claim against the City, he should only assert an individual capacity claim against DiCarlo, not the duplicative official capacity claim.
DONE AND ORDERED.