[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-12741

Non-Argument Calendar

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D.C. Docket No. 1:16-cv-24214-DLG

CONTRELL LEO FLOYD, 

 Plaintiff-Appellant, 

versus

CITY OF MIAMI BEACH, 

Miami Beach City Hall, 

K. ESPADA, 

Miami Beach Police Officer, 

ORISME, 

Miami Beach Police Officer, 

 Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 17, 2018)

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Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

Contrell Floyd, a pro se prisoner1 proceeding in forma pauperis, appeals the 

dismissal with prejudice of his 42 U.S.C. § 1983 complaint for failure to state a 

claim on which relief could be granted. After careful review, we vacate and 

remand for further proceedings.

I.

Floyd’s complaint alleges the following facts, which we accept as true. At 

around 4:20 a.m. on August 3, 2013, Floyd, an African-American male, was 

driving home with his cousin after attending several night clubs. They were 

“bobbing their heads to the music on the radio” with the windows down when a 

Miami Beach Police SUV traveling in the opposite direction made a U-turn and 

started following them. Though Floyd was not violating any traffic laws and the 

music was not too loud to disturb the peace, the police SUV activated its overhead 

lights and conducted a traffic stop of Floyd’s car. Floyd believes he and his cousin 

were targeted based on a stereotypical view that black males listening to music 

with the windows down in the early morning hours “must be up to no good.”

Floyd pulled over and waited as Miami Beach Police Officers Orisme and K. 

Espada approached. Orisme came to the driver’s side window and “started 

 1 As far as we can tell from the complaint, Floyd is incarcerated for reasons unrelated to 

the circumstances giving rise to this case. 

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eyeballing” inside Floyd’s car. In response to Orisme’s questions, Floyd explained 

that they were heading home from the club, that he had not been drinking or 

smoking pot, and that he did not possess any contraband. After ordering Floyd to 

step out of the vehicle, Orisme examined him for signs of intoxication or drugs

and, finding none, directed Floyd to turn around and put his hands on the car so he 

could be searched. The “thorough search of Floyd’s person” did not reveal 

anything illegal. 

Finding no contraband or signs of intoxication, Orisme finally asked for 

Floyd’s driver’s license to run a records check and to see if he had any warrants or 

open cases. Floyd disclosed that he did not have a driver’s license and instead 

produced a state identification card. The records check did not turn up any 

warrants or open cases. Once the records check was complete, Orisme and Espada 

informed Floyd that they were giving him tickets for an inoperative tag light and 

for not having a valid driver’s license. When Floyd protested that his tag light was 

working, the officers told him they had “to make it look good on paper.” After 

issuing the two tickets, the officers said he was free to go.

As a result of the ticket for driving without a valid license, Floyd was later 

arrested and jailed for violating the conditions of his probation. While in jail, he 

lost his two jobs, his apartment, and various personal property, and he became 

depressed. He was released from jail in September 2014.

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Upon his release, Floyd challenged the two tickets, maintaining that Orisme 

and Espada had no basis to stop him because his tag light was working properly. 

In an attempt to prove his innocence, Floyd requested the dashboard video footage 

from the officers’ SUV, but the City refused to release it. Eventually, a court 

dismissed the two tickets, despite the officers’ attempts to mislead the court by 

“lying about the incident.” 

Thereafter, Floyd filed this federal lawsuit. Floyd sued Orisme and Espada 

in their individual and official capacities, alleging that they had violated his rights 

under the Fourth Amendment. Floyd also sued the City of Miami Beach and its 

police department, alleging that the City had known for years that its officers were 

unlawfully profiling, harassing, detaining, searching, and arresting innocent 

African-Americans and had taken no action to address the issue, like instituting 

adequate training and supervision. Floyd requested compensatory and punitive 

damages as well as declaratory relief. 

A magistrate judge screened the complaint before service to the defendants, 

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and determined that it failed to state a 

claim. In a report and recommendation (“R&R”) entered on May 1, 2017, the 

magistrate judge found that Floyd failed to state a claim against Espada and 

Orisme in their individual capacities because he was not arrested during the traffic 

stop. Because he was arrested later pursuant to a warrant for violating his 

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probation, the magistrate judge reasoned, “proving that he had operative tag lights 

on the night when he was stopped by Officers Orisme and Espada, does nothing to

invalidate his arrest based on an arrest warrant issued by a circuit judge,” plus 

Floyd did not dispute “that he did not have a valid driver’s license.” The 

magistrate judge also found that Floyd’s allegations against the City were too 

conclusory to show a policy or custom of violating the rights of African-American 

individuals, and that his official-capacity claims failed for the same reasons. 

Finally, the magistrate judge concluded that it would be futile to allow Floyd to 

amend his complaint. 

On May 31, 2017, the district court adopted the R&R and dismissed the 

case. Several days after that, the district court received Floyd’s objections to the 

R&R, which Floyd turned over to prison officials for mailing on May 31. Floyd 

attached to his objections a letter from the Bureau of Prisons, which stated that 

Floyd’s institution was on lockdown from May 4 through May 30 and that he did 

not have access to his legal materials during that time. The court did not address 

Floyd’s objections. Floyd then brought this timely appeal.2

 

II.

We review de novo a district court’s sua sponte dismissal for failure to state 

 2

 Ordinarily, the failure to object to an R&R results in a waiver of “the right to challenge 

on appeal the district court's order based on unobjected-to factual and legal conclusions,” except 

for plain error. 11th Cir. Rule 3-1. Here, however, Floyd produced evidence that he was 

prevented from filing timely objections due to the lockdown. In these circumstances, we 

conclude that the waiver rule of Rule 3-1 does not apply.

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a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), viewing the allegations in the 

complaint as true and drawing all reasonable inferences in the plaintiff’s favor. 

Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003). Under § 1915(e)(2), the 

district court must dismiss the complaint of an in forma pauperis plaintiff if the 

court determines that the action “fails to state a claim upon which relief may be 

granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The standards governing dismissals 

under Federal Rule of Civil Procedure 12(b)(6) apply to § 1915(e)(2)(B)(ii). 

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). 

To avoid dismissal for failure to state a claim, the complaint “must include 

enough facts to state a claim to relief that is plausible on its face.” Hunt v. Aimco 

Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (quotation marks omitted). A 

claim is facially plausible when “the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.’” Id. (quotation marks omitted). In other words, the 

“[f]actual allegations must be enough to raise a right to relief above the speculative 

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must 

offer “more than labels and conclusions, and a formulaic recitation of the elements 

of a cause of action will not do.” Id. at 555.

We liberally construe the filings of pro se litigants. See Erickson v. Pardus, 

551 U.S. 89, 94 (2007). In addition, when a more carefully drafted complaint 

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might state a claim, a pro se litigant “must be given at least one chance to amend 

the complaint before the district court dismisses the action with prejudice.” Evans 

v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254 (11th Cir.) (quotation marks omitted), 

cert. denied, 138 S. Ct. 557 (2017). However, the court need not allow any 

amendment where amendment would be futile. Id. 

Both individuals and municipalities are subject to suit under § 1983. An 

individual who, acting under color of state law, violates a person’s constitutional 

rights is liable under § 1983. See 42 U.S.C. § 1983. A city can be liable under 

§ 1983 when its “policy” or “custom” causes a constitutional violation. Grech v. 

Clayton Cty, Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc) (quotation marks 

omitted). “In order for a plaintiff to demonstrate a policy or custom, it is generally 

necessary to show a persistent and wide-spread practice.” McDowell v. Brown, 

392 F.3d 1283, 1290 (11th Cir. 2004). When a plaintiff alleges a failure to train or 

supervise, “a plaintiff may prove a city policy by showing that the municipality’s 

failure to train evidenced a ‘deliberate indifference’ to the rights of its inhabitants.” 

Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).

We first address Floyd’s § 1983 claims against Orisme and Espada in their 

individual capacities. Floyd primarily contends that these defendants violated his 

rights under the Fourth Amendment when they conducted a traffic stop without 

any lawful basis and then falsely stated that his tag light was out. 

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“[Section] 1983 allow[s] a plaintiff to seek money damages from 

government officials who have violated his Fourth Amendment rights.” See 

Wilson v. Layne, 526 U.S. 603, 609 (1999). “The Fourth Amendment prohibits 

unreasonable searches and seizures by the Government, and its protections extend 

to brief investigatory stops of persons or vehicles that fall short of traditional 

arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks 

omitted). A traffic stop is constitutional if the officers have probable cause to 

believe that a traffic violation has occurred or reasonable suspicion that criminal 

activity is afoot. United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008). 

And “[i]n the name of investigating a person who is no more than suspected of 

criminal activity, the police may not carry out a full search of the person or of his 

automobile or other effects.” Florida v. Royer, 460 U.S. 491, 499 (1983).

Floyd has stated a plausible claim under § 1983 against officers Orisme and 

Espada. Taking the facts in Floyd’s complaint as true, as we are required to do, see 

Hughes, 350 F.3d at 1159–60, Orisme and Espada violated Floyd’s rights under the 

Fourth Amendment when they conducted a traffic stop without probable cause or 

reasonable suspicion and then “thorough[ly] search[ed]” his person. According to 

Floyd’s complaint, he was not violating any traffic law, his music was not too loud 

to be a nuisance, his tag light was working properly, he was not intoxicated, and he 

did not possess any contraband. These facts, accepted as true, plausibly allege a 

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seizure and search in violation of the Fourth Amendment. See Arvizu, 534 U.S. at

273; Royer, 460 U.S. at 499; Harris, 526 F.3d at 1337.

The district court erred by focusing solely on the arrest for a probation 

violation. Floyd, however, mainly challenged the initial seizure.3

 Nevertheless, 

we agree with the district court that the complaint provides no basis to challenge 

his subsequent arrest, which rested on the undisputed fact that Floyd was driving 

without a valid license. That the officers may have discovered that fact during an 

unlawful stop is irrelevant because “the exclusionary rule does not apply in a civil 

suit against police officers.” Black v. Wigington, 811 F.3d 1259, 1268 (11th Cir. 

2016). In other words, whether the initial stop was invalid does not affect the 

validity of his later arrest based on an arrest warrant for a probation violation. 

As for Floyd’s claim against the City, we agree with the district court that 

the complaint is insufficient to state a claim to relief. Besides his own experience, 

Floyd offers only broad, conclusory allegations about the City’s policies or 

customs. That is not enough. First, Floyd’s own experience is inadequate by itself 

because “[a] single incident of a constitutional violation is insufficient to prove a 

policy or custom even when the incident involves several employees of the 

 3

 On appeal, Floyd also indicates that he wishes to bring a claim for malicious 

prosecution, but the basis for that claim is not clear from his brief on appeal. The issuance of the 

traffic tickets was not a seizure for purposes of the Fourth Amendment. See Bielanski v. Cty. of 

Kane, 550 F.3d 632, 642 (7th Cir. 2008) (“[A] summons alone does not equal a seizure for 

Fourth Amendment purposes. To hold otherwise would transform every traffic ticket and jury 

summons into a potential Section 1983 claim.”). Moreover, probable cause supported the 

issuance of the ticket for driving without a valid license. 

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municipality.” Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1311 (11th Cir. 2011). 

Second, Floyd’s conclusory allegations and his “formulaic recitation of the 

elements of a cause of action” are insufficient to state a plausible claim to relief. 

See Twombly, 550 U.S. at 555. 

However, we conclude that Floyd should be given an opportunity to amend 

his complaint against the City. Evans, 850 F.3d at 1254. Floyd may be able to 

identify facts supporting his claim that the City has known for years that its 

officers were violating the constitutional rights of innocent African-Americans and 

has taken no action to address the issue. If he did so, he potentially could state a 

viable claim against the City. See Evans, 850 F.3d at 1254. In other words, 

amendment would not necessarily be futile in those circumstances. As a result, it 

was error for the district court to dismiss Floyd’s complaint under 

§ 1915(e)(2)(B)(ii) without leave to amend.

For these reasons, we vacate the dismissal of Floyd’s complaint with 

prejudice and we remand for further proceedings consistent with this opinion.

VACATED AND REMANDED.

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