Weinerth v. City of Punta Gorda et al
Filing
58
OPINION AND ORDER granting 46 Motion for summary judgment and the Second Amended Complaint is dismissed with prejudice as to all claims; denying as moot 57 Motion to continue trial and consent to magistrate. The Clerk shall enter judgment in favor of defendant Ayers and against plaintiff, terminate all deadlines including the Final Pretrial Conference, and close the file. Signed by Judge John E. Steele on 2/7/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOTT WEINERTH,
Plaintiff,
vs.
Case No.
2:10-cv-170-FtM-29SPC
HARVEY AYERS, City of Punta Gorda,
Florida, Police Officer, in his
individual capacity,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Detective Harvey Ayers’
Dispositive
Motion
November 3, 2011.
for
Summary
Judgment
(Doc.
#46)
filed
on
Plaintiff filed a Response in Opposition (Doc.
#54) on December 1, 2011.
The operative pleading in this case is a four count Second
Amended Complaint (Doc. #20) filed by plaintiff Scott Weinerth
(plaintiff or Weinerth) against Harvey Ayers (Ayers or defendant),
a police officer and employee of the City of Punta Gorda, Florida.
Count I alleges a 42 U.S.C. § 1983 claim for violation of the
Fourth Amendment based upon false arrest, while Count II alleges a
companion state law claim of false arrest.
Count III alleges a §
1983 claim
Amendment
for
violation
of
the Fourth
based
upon
malicious prosecution, while Count IV alleges a companion state law
claim for malicious prosecution.
Defendant asserts that no cause
of action has been established because there was probable cause to
arrest plaintiff, and that he is entitled to qualified immunity as
to the § 1983 claims because there was at least arguable probable
cause
to
arrest
plaintiff.
Plaintiff
disagrees
with
both
contentions. For the reasons set forth below, the Court finds that
Detective Ayers had probable cause to arrest plaintiff Weinerth,
and
therefore
summary
judgment
will
be
granted
in
favor
of
the
Court
is
defendant on all counts.1
I.
Summary
judgment
is
appropriate
only
when
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(c).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In
ruling on a motion for summary judgment, the Court views all
evidence and draws all reasonable inferences in favor of the nonmoving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v.
Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
1
The Court’s resolution of the probable cause issue makes it
unnecessary to address the other issues raised by defendant.
-2-
II.
Probable cause is central to the positions of each side in
this case.
Plaintiff asserts that Detective Ayers had no probable
cause to arrest him, and that the Affidavit he submitted to the
state court judge did not establish probable cause when construed
without its misrepresentations and omissions. The legal principles
for all four counts are well established.
A.
Count I:
Arrest Without Probable Cause/False Affidavit
Count I sets forth a claim under 42 U.S.C. § 1983 alleging
that Detective Ayers violated plaintiff’s Fourth Amendment rights
by arresting him without probable cause. Count I also asserts that
the arrest
was
based
upon
an
arrest warrant
affidavit
which
contained material misrepresentations and omissions, and which
would not establish probable cause if the misrepresentations are
removed and the omissions are included.
(Doc. #20, ¶59.)
The Fourth Amendment, which is applicable to the States
through the Fourteenth Amendment, guarantees the right against
unreasonable searches and seizures. U.S. Const. amend. IV.
An
arrest qualifies as a “seizure” of a person under the Fourth
Amendment.
California
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011);
v.
Hodari
D.,
499
U.S.
621,
624
(1991).
The
reasonableness of an arrest is “turns on the presence or absence of
probable cause” for the arrest.
Case v. Eslinger, 555 F.3d 1317,
1326-27 (11th Cir. 2009)(citing Skop v. City of Atlanta, Ga., 485
-3-
F.3d 1130, 1137 (11th Cir. 2007)).
An arrest without probable
cause violates the Fourth Amendment, Madiwale v. Savaiko, 117 F.3d
1321, 1324 (11th Cir. 1997), and a cause of action for damages may
be asserted under § 1983, Brown v. City of Huntsville, Ala., 608
F.3d 724, 734 n.15 (11th Cir. 2010).
Plaintiff has the burden of
establishing the absence of probable cause to succeed on a § 1983
claim.
Rankin v. Evans, 133 F.3d 1425, 1436 (11th Cir. 1998).
To
do so, plaintiff must show that no reasonably objective police
officer would have perceived there to be probable cause for the
arrest.
Phillips v. Fla. Fish & Wildlife Conservation Comm’n, 325
F. App’x 864, 865 (11th Cir. 2009).
An
officer
must
conduct
a
constitutionally
sufficient
investigation before making an arrest. Kingsland v. City of Miami,
382 F.3d 1220, 1228-30 (11th Cir. 2004); Rankin, 133 F.3d at 143536. While officers may not ignore known exculpatory information in
deciding whether to arrest, they need not explore every proffered
claim of innocence or take every conceivable step to eliminate the
possibility of convicting an innocent person.
at 1229; Rankin, 133 F.3d at 1435.
Kingsland, 382 F.3d
An officer may normally rely on
a victim’s criminal complaint to support probable cause.
Rankin,
133 F.3d at 1441; Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119
(2d Cir. 1995) (“An arresting officer advised of a crime by a
person who claims to be the victim, and who has signed a complaint
or information charging someone with a crime, has probable cause to
-4-
effect an arrest absent circumstances that raise doubts as to the
victim's veracity.”).
In deciding whether probable cause exists,
an officer is “not required to sift through conflicting evidence or
resolve issues of credibility, so long as the totality of the
circumstances present a sufficient basis for believing that an
offense has been committed.
Nor does probable cause require
certainty on the part of the police.”
Dahl v. Holley, 312 F.3d
1228, 1234 (11th Cir. 2002)(citations omitted).
Additionally, “a
police officer need not credit everything a suspect tells him”,
Rodriguez v. Farrell, 294 F.3d 1276, 1278 (11th Cir. 2002), and “is
not required . . . to resolve all inferences and all factual
conflicts in favor of the suspect.”
Bailey v. Bd. of County
Comm’rs, Alachua Cnty., Fla, 956 F.2d 1112, 1120 n.5 (11th Cir.
1992).
An
officer
who
has
probable
cause
to
arrest
constitutionally arrest a suspect without civil liability.
may
“[T]he
existence of probable cause at the time of arrest is an absolute
bar to a subsequent constitutional challenge to the arrest.”
Brown, 608 F.3d at 734.
“An arrest does not violate the Fourth
Amendment if a police officer has probable cause for the arrest.”
Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003).
See also
Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007).
An officer
has probable
cause
to
arrest
when
the arrest
is
objectively
reasonable based on the totality of the circumstances.
-5-
Coffin v.
Brandau, 642 F.3d 999, 1006 (11th Cir. 2011).
met
when
knowledge,
the
facts
and
circumstances
of
which
he
or
she
has
“This standard is
within
the
reasonably
officer's
trustworthy
information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing,
or is about to commit an offense.”
Coffin, 642 F.3d at 1006-07.
Probable cause need only exist for some criminal offense; it
does not matter that an officer believed he was arresting a suspect
for a different offense.
Knight v. Jacobson, 300 F.3d 1272, 1275
n.2 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188, 1196 (11th
Cir. 2002) (“[W]hen an officer makes an arrest, which is properly
supported by probable cause to arrest for a certain offense,
neither his subjective reliance on an offense for which no probable
cause exists nor his verbal announcement of the wrong offense
vitiates the arrest.” (citation omitted)).
that the
arrestee
was
never
Additionally, the fact
prosecuted, or
the
charges
were
dropped, or he was acquitted of any offense stemming from the
arrest, does not impact the existence of probable cause. Jacobson,
300 F.3d at 1275; Ferraro, 284 F.3d at 1195-96; Marx v. Gumbinner,
905 F.32d 1503, 1507 (11th Cir. 1990); Howell v. Tanner, 650 F.2d
610, 615 (5th Cir. Unit B July 1981)(“Once probable cause has been
established, the legality of the arrest is not affected by ... a
subsequent dismissal or acquittal of the charges.”).
-6-
The Fourth Amendment also prohibits a police officer from
knowingly or recklessly making false statements in an affidavit in
support of an arrest warrant.
Cir. 1994).
that
Kelly v. Curtis, 21 F.3d 1544 (11th
“The Warrant Clause of the Fourth Amendment requires
warrant
applications
establish probable cause.”
contain
sufficient
information
to
Holmes v. Kucynda, 321 F.3d 1069, 1083
(11th Cir. 2003)(citing Franks v. Delaware, 438 U.S. 154, 164
(1978)). The “obvious assumption is that there will be a truthful
showing” to establish probable cause.
Franks, 438 U.S. at 164-65.
While this requirement of truthfulness “does not dictate that the
statements be objectively accurate, it does require that they “be
‘truthful’ in the sense that the information put forth is believed
or appropriately accepted by the affiant as true.”
F.3d at 1083 (quoting Franks, 438 U.S. at 165).
Holmes, 321
A police officer
may be held liable under 42 U.S.C. § 1983 for submitting an
application for an arrest warrant that contains false information
in this sense.
Holmes, 321 F.3d 1083; Malley v. Briggs, 475 U.S.
335, 346 (1986). Because an arrest warrant is presumptively valid,
Franks, 438 U.S. at 171, plaintiff must establish that probable
cause would have been lacking absent the alleged misrepresentations
or omissions, United States v. Gamory, 635 F.3d 480, 490 (11th Cir.
2011).
A judge's decision to issue the arrest warrant in such a
situation does not absolve the police officer from liability.
-7-
Garmon v. Lumpkin County, Ga., 878 F.2d 1406, 1409-10 (11th Cir.
1989)(citing Malley, 475 U.S. at 344).
If a constitutional violation has occurred because an officer
lacked probable cause, the Court next considers whether arguable
probable cause existed for the § 1983 claims.
Case, 555 F.3d at
1327. An officer who makes an arrest without actual probable cause
is nonetheless entitled to qualified immunity in a § 1983 action if
there was “arguable probable cause” for the arrest.
Brown, 608
F.3d at 734; Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.
2002)(officials are entitled to immunity for an unlawful arrest
claim so long as there was probable cause or arguable probable
cause for the arrest); Coffin, 642 F.3d at 1006 (same).
Arguable
probable cause exists where “reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants
could
have
believed
that
probable
cause
existed
to
arrest
Plaintiff.” Kingsland, 382 F.3d at 1232 (quotation marks omitted);
Brown, 608 F. 3d at 734.
an
objective
standard
The arguable probable cause standard is
which
does
subjective intent or beliefs.
Showing
probable
cause
or
not
consider
an
officer’s
Brown, 608 F.3d at 735, 736.
arguable
probable
cause
however, require proving every element of a crime.
does
not,
Jordan, 487
F.3d at 1355 (“No officer has a duty to prove every element of a
crime
before
making
an
arrest.”);
Brown,
608
F.3d
at
735;
Scarbrough v. Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001).
-8-
If
the arresting officer had arguable probable cause to arrest for any
offense, qualified immunity will apply.
Skop, 485 F.3d at 1138;
Grider v. City of Auburn, Ala., 618 F.3d 1240 (11th Cir. 2010).
If a constitutional violation has occurred because of false
statements or omissions in an arrest warrant affidavit, the Court
examines the officer’s eligibility for qualified immunity.
If a
reasonable police officer would have known that information in the
affidavit was not just negligently false, but recklessly so, then
officer is not entitled to qualified immunity.
Kelly, 21 F.3d at
1554; Holmes, 321 F.3d at 1083. Qualified immunity will not shield
an officer from liability for intentional false statements in an
arrest affidavit if such false statements were necessary to the
probable cause.
Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir.
1999).
B.
Count II:
State Claim of False Arrest
Count II alleges a state law claim for false arrest based upon
the same factual predicate as Count I.
(Doc. #20, ¶64).
“False
arrest is defined as the unlawful restraint of a person against
that person's will.”
Willingham v. City of Orlando, 929 So. 2d 43,
48 (Fla. 5th DCA 2006)(citation omitted).
Such a restraint is
unlawful if there is no probable cause, but the existence of
probable cause bars an action for false arrest under Florida law.
Rankin, 133 F.3d at 1435; Mathis v. Coats, 24 So. 3d 1284, 1289
(Fla. 2d DCA 2010)(citation omitted).
-9-
“In a false arrest action,
probable cause is an affirmative defense to be proven by the
defendant.” Willingham, 929 So. 2d at 48 (citations omitted). The
standard for determining the existence of probable cause is the
same under both Florida and federal law.
Coffin, 642 F.3d at 1106-07.
Rankin, 133 F.3d at 1431;
Even if an arrest for the charged
offense cannot be sustained, an arrest is nonetheless lawful if it
was based on a probable cause showing that defendant committed a
different offense.
rendered
unlawful
“An arrest based on probable cause is not
because
improper label to it.”
the
arresting
officer
attaches
an
Blanding v. State, 446 So. 2d 1135, 1136
(Fla. 3d DCA 1984).
C.
Count III:
Malicious Prosecution Under Fourth Amendment
Count III sets forth a claim under 42 U.S.C. § 1983 alleging
that Ayers violated plaintiff’s Fourth Amendment right to be free
of malicious prosecution by arresting him without probable.
Count
III repeats the allegation that the arrest was based upon an arrest
warrant which contained material misrepresentations and omissions
and
which
would
not
establish
probable
cause
if
the
misrepresentations are removed and the omissions are included.
(Doc. #20, ¶70.)
The Eleventh Circuit “has identified malicious prosecution as
a violation of the Fourth Amendment and a viable constitutional
tort cognizable under § 1983.” Wood, 323 F.3d at 881; Kjellsen v.
Mills, 517 F.3d 1232, 1237 (11th Cir. 2008). “[A]lthough both state
-10-
law and federal law help inform the elements of the common law tort
of malicious prosecution, a Fourth Amendment malicious prosecution
claim under § 1983 remains a federal constitutional claim, and its
elements and whether they are met ultimately are controlled by
federal law.”
Wood, 323 F.3d at 882.
“To establish a federal
malicious prosecution claim under § 1983, a plaintiff must prove
(1) the elements of the common law tort of malicious prosecution,
and (2) a violation of her Fourth Amendment right to be free from
unreasonable seizures.”
Kingsland, 382 F.3d at 1234 (citing Wood
v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)).
The elements of
the common law tort of malicious prosecution are: “(1) a criminal
prosecution instituted or continued by the present defendant; (2)
with malice and without probable cause; (3) that terminated in the
plaintiff accused's favor; and (4) caused damage to the plaintiff
accused.” Wood, 323 F.3d at 882.
As to the second prong, an arrest
without probable cause is an unreasonable seizure that violates the
Fourth Amendment. Brown, 608 F.3d at 734; Wood, 323 F.3d at 882.
The
existence
of
prosecution claim.
882.
probable
cause
defeats
a
§
1983
malicious
Kjellsen, 517 F.3d at 1237; Wood, 323 F.3d at
Additionally, the same “arguable probable cause” standard is
used to determine qualified immunity for both false arrest and
malicious prosecution § 1983 claims.
Grider v. City of Auburn,
Ala., 618 F.3d 1240, 1257 (11th Cir. 2010).
-11-
D.
Count IV:
State Claim of Malicious Prosecution
Count IV sets forth a claim under Florida law for malicious
prosecution (Doc. #20, ¶¶76-80). The elements of this Florida tort
are:
(1) an original criminal or civil judicial proceeding
against the present plaintiff was commenced or continued;
(2) the present defendant was the legal cause of the
original proceeding against the present plaintiff as the
defendant in the original proceeding; (3) the termination
of the original proceeding constituted a bona fide
termination of that proceeding in favor of the present
plaintiff; (4) there was an absence of probable cause for
the original proceeding; (5) there was malice on the part
of the present defendant; and (6) the plaintiff suffered
damage as a result of the original proceeding.
Fernander
v.
Bonis,
947
2007)(citation omitted).
So.
2d
584,
589
(Fla.
4th
DCA
The failure of a plaintiff to establish
any one of these six elements is fatal to a claim of malicious
prosecution.
Thus, to establish a claim for malicious prosecution
under Florida law, plaintiff must establish facts that established
“there was an absence of probable cause for the original criminal
proceeding.”
Kingsland, 382 F.3d at 1234.
The presence of
probable cause defeats a malicious prosecution claim.
Fernander,
947 So. 2d at 589.
III.
The presence or absence of probable cause is the linchpin of
defendant’s motion for summary judgment as to all counts.
If the
undisputed
arrest
material
facts
establish
probable
plaintiff existed, all four counts fail.
-12-
cause
to
Even if only arguable
probable cause to arrest existed, the § 1983 claims fail.
The
record reflects the following material undisputed facts:
A.
Overview of Investigation
On November 6, 2005, while on-duty as a Detective with the
Criminal Investigation Division of the City of Punta Gorda Police
Department, Detective Ayers met with an officer and the victim of
an alleged sexual battery (the Victim) at Fawcett Memorial Hospital
in
Port
Charlotte,
Florida.
Detective
Ayers
took
over
investigation, and interviewed the Victim in the hospital.
the
The
Victim informed Detective Ayers that she was sexually assaulted
against her will by a co-worker on Thursday, November 3, 2005, and
identified
the
assailant
as
plaintiff
Weinerth.
The
Victim
informed Ayers that she was an operating room nurse at Charlotte
Regional Medical Center and worked with Weinerth.
Report
was
created
contemporaneously,
observations and conclusions.
An Offense
containing
Ayers’
(Doc. #46-1, Exh. 1, ¶ 6.)
On November 7, 2005, Detective Ayers arranged for a controlled
telephone call between the Victim and Weinerth.
5-b.)
(Doc. #46-2, Exh.
On November 8, 2005, Weinerth provided a Voluntary Witness
Statement (Doc. #46-6, Exh. E)2 to Detective Ayers at the Punta
Gorda Police Department.
2
The page numbers referenced will be those provided through
CM/ECF rather than the transcript page numbers at the bottom of
each page.
-13-
On November 15, 2005, Joanne Thompson, Director of Surgical
Services and the Assistant Chief Nursing Officer at Charlotte
Regional Medical Center, provided a Voluntary Witness Statement.
She stated that phenothiazine, which was found in Victim’s system,
is commonly found in Compazine or Phenergrin, which are for nausea
and vomiting, and that the medications were easily accessible to
both Weinerth and Victim.
(Doc. #46-2, Exh. 6.)
Parts of Ms.
Thompson’s conversation with Ayers were not recorded. (Doc. #54-9,
p. 48.)
On November 17, 2005, Detective Ayers took a Voluntary Witness
Statement (Doc. #46-7, Exh. F) from Tara Ann McGinn, who had been
dating Weinerth for a month.
that weekend.
Ms. McGinn was with Weinerth over
She arrived Friday evening and used the key under
Weinerth’s mat to get into his condo and wait for him.
They woke
up at 3:30 Saturday morning and left an hour later to drive to Fort
Lauderdale.
Ms. McGinn dropped off Weinerth at an office for hair
implant surgery and picked him up in his car at the end of the day.
(Id., pp. 4-5.)
Ms. McGinn returned to Sarasota on Sunday to check
her townhouse and drove back Sunday night to stay in Weinerth’s
condo again before leaving Monday morning.
(Id., p. 5.)
Weinerth
had mentioned 2-3 weeks before that he would be leaving town to get
his personal property from New Orleans but returning. (Id., p. 6.)
Ms. McGinn stated that she had seen a soft-sided briefcase or
laptop bag, but a little larger.
(Id., p. 8.)
-14-
B.
Controlled Call
During the controlled call, only the Victim’s side of the
conversation was recorded as follows:
VICTIM:
Um, nothing. I just got out of work. What are
you doing?
You what? Oh.
What’s going on? What’s going on?
You what? You got your truck? That’s good. Do you like it?
How come you don’t work today? Um, are you sick?
Yeah. Huh.
That’s funny you mention that. I have had stomach pains ever
since Friday. I haven’t felt right.
But, you know, I did want to talk to you about the other
night. I really freaked out about, like, the whole -- do
you know what I mean; having unprotected sex. You know,
you pushed me further than I wanted to go. Do you know
what I’m saying?
All right. And I’m freaking out about it.
Well, I mean, I worry about, you know, the hepatitis or
HIV thing. And it really -- it just hurt my trust that
you did that to me. I mean, it just -- I -- it sounds
weird, but I’ve been crying all weekend. I just feel
like you really -- you just hurt my trust. You know what
I’m saying?
I mean I care about you, but I feel like you didn’t
respect me when you didn’t listen to me when I said no.
Did you hear me say no?
Hello?
Yeah. Hello. I can hear you.
Okay. Did you understand -- did you hear me that I said
no and was fighting you?
He hung up the phone.
DETECTIVE AYERS:
Okay.
VICTIM: That’s weird that he -- he’s on his cell phone,
and I can hear wind.
DETECTIVE AYERS:
He’s probably driving.
VICTIM: Do you think he knows?
now. God, did he follow me?
DETECTIVE AYERS:
No.
I mean I’m all paranoid
Call him back again.
-15-
VICTIM: How weird is it that he hasn’t called me, and
all of a sudden he calls me.
DETECTIVE AYERS:
VICTIM:
Bye.
Hi.
Leave a message.
It’s me.
(Doc. #46-2, Exh. 5-b.)
You need to call me back; okay?
The recording device malfunctioned, but
Ayers was sitting next to the Victim and was able to hear the
entire conversation from both parties.
C.
(Doc. #46-1, Exh. 1.)
Weinerth’s Voluntary Statement
Weinerth stated he had known the Victim for a few months,
“kinda flirting around at work”, kissing and groping in a storage
area a couple of times.
(Doc. #46-6, Exh. E, pp. 13-14.)
Weinerth
stated that Victim waited around for him that Thursday night for
him after she was off, which was “not cool from the workplace”, so
Weinerth went to his car and called Victim from there to tell her
he was going to Fishermen’s Village.
(Id., p. 15.)
Weinerth and
Victim met at the bar, still in scrubs, had drinks, and then went
to the restaurant on the upper deck to eat dinner.
17.)
(Id., pp. 16-
Victim had two beers downstairs and they shared a whole
bottle of red wine at dinner.
(Id., p. 19.)
After dinner, Victim
followed Weinerth back to his condo where they sat on the couch and
started kissing and fooling around.
(Id., pp. 17-18, 20.)
had maybe a sip of wine before they started kissing.
They
(Id., p. 24.)
Weinerth asked Victim if she wanted to go in the bedroom and lay
down, and they both “hopped up, walked in there.”
-16-
(Id., pp. 20,
23.)
In the bedroom, Victim pulled off her own shirt and jacket,
and bra, and Weinerth thought she took off her own panties.
pp. 20-21.)
oral sex.
(Id.,
Weinerth had sexual intercourse, penis to vagina, and
Victim did not seem like she had been drinking, and her
speech and balance were fine.
(Id., pp. 22, 80.)
Victim left
around 12:00 or 12:30 to go let the dog out, Weinerth kissed her as
she left.
(Id., p. 25.)
They talked briefly that night, as they
both had work the next day, and Victim said the dog was good.
(Id., p. 26.)
The next day, they worked in separate rooms, but
Weinerth walked by and grabbed Victim’s hand and she turned and
smiled, like everything was fine.
(Id., p. 28.)
Weinerth stated
that he did not take drugs and did not give her drugs.
(Id., p.
29.)
Weinerth had a bag with him during the interview, which he
said
contained
stimulator.
a
box
of
drugs
for
anesthesia
and
a
nerve
Weinerth said the bag normally never leaves the
hospital, except this time he was with the police and thought it
was fine.
(Id., pp. 31-33.)
Weinerth signs in for the box and
signs out before leaving the box at the end of the day.
34-35.)
(Id., pp.
Weinerth stated that he did not give Victim anything, not
even to relax her; the drug kit was not even at the house, and
Victim never said no.
(Id., pp. 49-50.)
Weinerth did not call her
on the weekend as he was with someone else.
(Id., p. 56.)
During
the controlled call Weinerth said he was trying to placate Victim
and didn’t want to get into a confrontation, didn’t want things to
get bad at work.
(Id., pp. 69-70, 74.)
-17-
D.
Ayers’ Affidavit
On or about November 17, 2005, Detective Ayers prepared a
sworn Affidavit in support of arrest for submission to a state
court judge.
(Doc. #54-1, Exh. A.)
The Affidavit stated the
following:
On Sunday, November 6, 2005, Ayers responded to Fawcett
Memorial Hospital, located at 21298 Olean Blvd, Port
Charlotte, Charlotte County, Florida, in reference to an
alleged sexual battery.
Detective Ayers made contact
with the victim [ ] who reported that on the 3rd day of
November, she was Sexually Battered, in the area of West
Marion Ave, within the City Limits of Punta Gorda.
Detective Ayers obtained a sworn statement from the
victim, [ ] to the following information. The victim
stated that she works at Charlotte Regional Medical
Center as a Registered Nurse in the Operating Room. The
victim stated that she works with the suspect Scott
Weinerth, who is a Nurse Anethnasist [sic], who also
works in the operating room. The victim stated that she
and S. Weinerth have been flirting with each other for
the last several weeks, and on Thursday 11-03-05 S.
Weinerth asked the victim to have dinner and drinks after
work. The victim stated that she agreed and the two met
at Harpoon Harry’s. The victim stated that the two had
several drinks in the bar and then proceeded to the
Captain’s Table, which is upstairs and had dinner and
more wine. S. Weinerth ordered a bottle of wine to go,
then asked the victim to come back to his residence,
which was just down the road, stating that he did not
want her to drive, after consuming alcohol. The Victim
agreed to go back to S. Weinerth’s home, but stated that
she did not feel intoxicated, but did have a slight
“buzz.”
The two proceeded to S. Weinerth’s home, which is located
at 220 Coldway Drive, Building #1, Unit #114, which is
located within the City Limits of Punta Gorda.
The
victim stated that she entered the residence and sat on
the couch, watching television. S. Weinerth went to the
kitchen and prepared a glass of wine for the victim, at
which time he was out of sight of the victim.
S.
Weinerth came from the kitchen with two glasses of red
-18-
wine, and the two sat on the couch watching television.
The Victim stated that she consumed about half the glass
of wine, and began to feel “woozy”, and out of it. The
victim stated she recalled kissing S. Weinerth and him
attempting to pull her pants off. The victim stated that
[sic] the following facts, but the events seemed “hazy”,
and there are moments of black outs in her memory. The
victim recalls finding her pants off, and S. Weinerth
pulling at her underwear, in attempts to get them off.
The victim stated that she held onto her underwear, and
was telling S. Weinerth “no”, and to stop, while still
seated on the couch.
The Victim next found herself in the bedroom, with her
clothes off, and on the bed. S. Weinerth was on top of
her, and had penetrated her vagina with his penis. The
victim stated that she recalled telling S. Weinerth to
stop, but he refused.
The suspect also made the
statement, “suck my cock”, and forced his penis into her
mouth. The victim stated that she recalled being placed
on her back and stomach, and that S. Weinerth penetrated
her vagina with his penis, in both positions. The victim
advised that she must have passed out and awoke around
2:00 am, in the bed with S. Weinerth and she was naked.
S. Weinerth stated that she attempted to get dressed and
leave, having problems standing and finding her things.
Once she found her items she attempted to leave, at which
time S. Weinerth requested she stay and when that did not
work, he told her not to tell anyone of the incident.
The victim stated that the entire event felt like a
movie, which she was watching, that came in and out. The
victim stated that she had never felt this way before and
believed S. Weinerth had drugged her without her
permission or consent, then had sexual intercourse with
her while she was incapacitated.
Doctor Myers, who was the attending Emergency Room
Physician conducted an exam, and took a blood sample from
the victim for a comprehensive drug screen. The drug
screen revealed the victim had Phenothiazines in her
system. Phenothiazines are the largest of the five main
classes of antipsychotic drugs.
This drug causes
Parkinsonism and sedation. The victim has suffered from
shaking and tremors, which is related to Parkinsonism,
since the incident. The victim provided information from
her private doctor, which reported that she is not taking
any medications which contain Phenothiazines, as they
would cause her problems with the blood pressure
-19-
medication she is prescribed. The victim advised that
she wished to press charges against S. Weinerth.
The victim conducted a controlled phone call to S.
Weinerth, in the presence of Detective Ayers, in which he
was confronted about forcing the victim to have sex and
her saying no. S. Weinerth acknowledged that the victim
said “no”, and that the incident was forced. S. Weinerth
was asked did you hear me say, “No” about having sex, and
he stated “yeah I Know.”
Detective Ayers contacted S. Weinerth at Charlotte
Regional Medical Center. S. Weinerth agreed to go to the
Police Department to discuss this incident. S. Weinerth
had a small bag in his possession.
Detective Ayers
received consent to search the bag, which contained a
plastic box with numerous narcotics, which belonged to
the Hospital. This container contained narcotics used
for sedation, and is suppose to be returned to the
hospital at the end of each shift.
The bag also
contained approximately twelve unmarked syringes, which
S. Weinerth stated contained muscle relaxers, and blood
pressure medications. The medication within the syringes
is not accounted for, and does not have to be returned.
This bag also contained a nerve stimulator, which is used
to check a patient to determine if they are sedated. The
bag contained personal items belonging to S. Weinerth and
is his personal bag. S. Weinerth provided a statement,
in which he admitted that the hospital does not keep a
close watch on the medications he has in his possession,
and his distribution and disposal is based on the
hospitals trust in him. S. Weinerth does keep the bag in
question in his possession at all times, and does take it
home with him.
S. Weinerth provided a post Miranda video taped
statement.
S. Weinerth admitted to having sexual
intercourse with the victim, but denied forcing the
victim or her saying no or stop.
S. Weinerth denied
giving the victim any controlled substances. Detective
Ayers confronted S. Weinerth about the the controlled
phone call, which he admitted to his statements to the
victim about forcing her, and having sex with her against
her will, but stated that he only told her this to keep
her calm and go along with her. S. Weinerth was also
found to make several statements, which were found to be
of a false nature.
-20-
Detective Ayers obtained a sworn statement from Joanne
Thompson, who is the Nursing Director for the Surgery
Department of Charlotte Regional Medical Center.
J.
Thompson advised that S. Weinerth has access to
Compazine, which is used for antiemetic, antipsychotic,
or a tranquilizer, and contains Phenothiazine. This is
the controlled substance, which was found in the victims
system. J. Thompson advised that this medication comes
in several forms, one of which is liquid, and could be
mixed with a drink, such as wine.
J. Thompson also
advised that S. Weinerth was very flirtatious with women
employees, and had to be told by J. Thompson not to be so
hands on with women employees.
J. Thompson confirmed
that these medications are not strictly kept, and it
would be easy for S. Weinerth to take some for personal
use.
On November 15, 2005 Detective Ayers learned that S.
Weinerth had fled the area breaking his contract with the
Hospital. S. Weinerth failed to show for work and has
since been fired for falsifying work documents.
S.
Weinerth was made aware of when the drug screen would be
received and he apparently fled the area just prior to
the results being received.
The whereabouts of S.
Weinerth are unknown.
S. Weinerth was found to have access and use the
narcotic, which was found in the victims system.
S.
Weinerth also had the opportunity and means to administer
the narcotic to the victim without her knowledge. S.
Weinerth also acknowledged the victim saying “no”, and
her being forced to have sex, when confronted on the
controlled phone call.
Detective Ayers is requesting that a warrant be issued
for the arrest of Scott J. Weinerth on the charge of
Sexual Battery, contrary to the statute in such case made
and provided, and against the peace and dignity of the
State of Florida.
(Doc. #54-1, Exh. A.)
Upon
completion
of
an
Arrest
Warrant
Affidavit,
it
was
submitted to defendant’s supervisor for review, and then to a
Assistant State Attorney for review before it was presented to the
judge.
(Doc. #20, ¶ 7.)
On November 17, 2005, a Charlotte County
-21-
judge issued a warrant for Weinerth’s arrest for sexual battery in
violation of Florida Statute Section 794.011(4)(d), a first degree
felony carrying a penalty of up to 30 years in prison.
(Doc. #20,
¶ 6; Doc. #46-2, Exh. 4.)
E.
Post-Arrest
On November 22, 2005, Weinerth was arrested and bond was set
at $200,000.00.
(Doc. #20, ¶ 55.)
prossed by the State of Florida.
Charges were eventually nolle
(Id., ¶¶ 71, 78.)
After the arrest, at her March 8, 2006, Deposition, Ms.
Thompson stated that Weinerth was hired under a contract between
the administration and Rhino Medical for a few months.
9, pp. 6, 7-8.)
(Doc. #54-
The November 2005 “incident” occurred just prior
to the scheduled end of his month to month contract.
(Id., p. 7.)
Ms. Thompson stated that there was only one narcotic box in the
holding area of the operating room with only one set of keys held
by the registered nurse assigned to the holding area.
11, 12.)
p. 12.)
(Id., pp.
Victim did not generally work in the holding area.
(Id.,
In the common area of the operating room is a Accudose, a
medication
dispensing
program
or
system,
registered nurses but not Weinerth.
accessible
by
the
(Id., pp. 14, 15, 16.)
Compazine and Phenergrin, which contain Phenothiazines, is in the
Accudose in injectable form. (Id., pp. 17-19.) Ms. Thompson spoke
to Ayers and told him that Weinerth did not have access to the
Accudose, that Compazine was not a controlled substance, and she
-22-
stated that she did not know whether it could be mixed with a drink
such as wine when she asked the question by Ayers.
21.)
(Id., pp. 20-
Ms. Thompson noticed shortly after Victim was hired that
Victim had a tremor.
(Id., p. 25.)
Ms. Thompson stated that
Weinerth was “flirtatious and a little bit handsy,” with her
personally.
(Id., pp. 37, 39, 42.)
III.
All four counts require the absence of probable cause to
arrest, and the existence of probable cause precludes all four
counts.
Whether an officer possesses probable cause or arguable
probable cause depends on the elements of the alleged crime and the
operative fact pattern.
Brown, 608 F.3d at 735; Skop, 485 F.3d at
1137-38; Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir.
2004).
Weinerth was charged with sexual battery in violation of Fla.
Stat. § 794.011(4)(d), which provides:
(4) A person who commits sexual battery upon a person 12
years of age or older without that person’s consent,
under any of the following circumstances, commits a
felony of the first degree,
. . .
(d) When the offender, without the prior knowledge or
consent of the victim, administers or has knowledge of
someone else administering to the victim any narcotic,
anesthetic, or other intoxicating substance which
mentally or physically incapacitates the victim.
Fla. Stat. § 794.011(4)(d).
Florida law also punishes sexual
battery upon a person twelve years of age or older without the
-23-
person’s consent when the victim is physically incapacitated. Fla.
Stat. § 794.011(4)(f).
“Sexual battery means oral, anal, or
vaginal penetration by, or union with, the sexual organ of another
or the anal or vaginal penetration of another by any other object;
however, sexual battery does not include an act done for a bona
fide medical purpose.”
Fla. Stat. § 794.011(1)(h).
At the very least, giving plaintiff the benefit of each and
every factual issue, Detective Ayers knew the following at the time
he applied for an arrest warrant and arrested plaintiff:
1.
The victim had reported to the local hospital
and reported a sexual battery by a person known to her;
2.
The victim identified the date of the battery
and gave a fairly detailed description of the events
occurring on that date;
3.
The victim described conduct which clearly
constituted sexual battery under Florida law;
4.
The victim provided a reasonable basis to
believe she had been given some type of drug without her
permission
or
consent
and
that
the
sexual
battery
occurred while she was incapacitated;
5.
blood
A comprehensive drug screen of the victim’s
found
victim’s
Phenothiazines
reported
in
medication
substances;
-24-
her
did
system,
not
and
contain
the
such
6.
plaintiff
The victim had a telephone conversation with
in
which
Detective
Ayers
heard
plaintiff
acknowledge he heard the victim say “no” about having sex
and acknowledge that the incident was forced;
7.
Plaintiff
gave
a
pre-arrest
interview
to
Detective Ayers in which he appeared at the police
station with a bag containing drugs from the hospital,
which plaintiff said he kept in his possession at all
times and took home.
Plaintiff admitted the sexual
contact with the victim, but denied it was forced.
Plaintiff also admitted making the telephone statements
in which he acknowledged the sex was against the victim’s
will, but stated his statements were not true3;
8.
Both plaintiff and the nursing director stated
that plaintiff had access to drugs in the hospital, and
that the medications were not strictly kept by the
hospital; and
9.
On November 15, 2005, plaintiff broke his
contract with the hospital and fled the area.4
3
This is substantive evidence of plaintiff’s guilt, either as
an admission of guilt or as a false exculpatory statement, United
States v. Alejandro, 118 F.3d 1518, 1521 (11th Cir. 1997); United
States v. McDowell, 250 F.3d 1354, 1367 (11th Cir. 2001).
4
Flight of an accused is competent evidence tending to
establish guilt. United States v. Borders, 693 F.2d 1318, 1324-28
(11th Cir. 1982); Blanding, 446 So. 2d at 1137.
-25-
The Court finds that defendant Ayers had probable cause to arrest
plaintiff for sexual battery.
Plaintiff points to facts which would suggest either that he
did not commit sexual battery or that the case was not strong.
Plaintiff argues that (1) Ayers investigated the facts for 11 days
before seeking a warrant, and learned that the victim’s underwear
was not ripped, and that the victim had no evident sign of physical
trauma 3 days after the sexual battery when examined.
p. 19.)
(Doc. #54,
Weinerth also argues that a reasonable officer could not
conclude that Weinerth administered a drug to the victim because
(1) the victim did not disclose to the treating physician at
Fawsett Memorial Hospital that she was taking two prescribed
medications while voluntarily consuming alcohol; (2) the victim
disclosed that she took Klonopin for tremors, but later claimed
that the tremors were a result of the sexual battery; (3) the
victim did not disclose that she took Compazine, but claimed that
she was allergic to it, but had no reaction to it at any time after
the sexual battery; and (4) because phenothiazine was the only
other medication in her system, the victim claimed she was drugged
with Compazine rendering her unable to consent.
(Id., pp. 19-20.)
Plaintiff argues that Ayers learned that only nurses have access to
Compazine.
Ayers obtained the victim’s medical records from her during
the November 6, 2005 visit to Fawsett Memorial Hospital.
(Doc.
#20, ¶ 29.) The medical records revealed that the victim’s current
-26-
medications included Pindolol, Klonopin, and Prevacid, and that she
had a history of tremors.
(Doc. #54-11, Exh. E.)
Ayers also
obtained the victim’s medical records from a November 8, 2005,
visit to her own physician.
(Doc. #20, ¶ 36.)
Ayers was aware
that Victim reported that she was allergic to Compazine and that
she suffered from chronic “familial” tremors.
was
also
aware
that
the
victim
medication on November 8, 2005:
Vicoprofen.
(Id., ¶ 39.)
(Id., ¶ 38.)
discontinued
the
Ayers
following
Flexeril, Ultram, Vicodin, and
Ayers reviewed these records prior to
completing the Affidavit, and did not include in the Affidavit that
the victim was allergic to Compazine, or that the victim admitted
to taking two prescription controlled substances.
44.)
(Id., ¶¶ 42,
The lab test revealed the presence of benzodiazepines,
phenothiazines,
Tramadol,
and
metabolites
comprehensive urine drug screen.
in
the
victim’s
(Doc. #54-11, Exh. E.)
Ayers
also did not disclose that Victim’s underwear was not torn, or that
Weinerth’s statements were completely inaudible in the controlled
call.
(Doc. #20, ¶¶ 48, 50.)
Ayers took contemporaneous notes while listening to the entire
conversation on the controlled call even though the recording
malfunctioned
and
failed
to
pick
up
Weinerth’s
part
of
the
conversation, and therefore Ayers represents that he was truthful
and accurate to Judge Bell.
(Doc. #46-1, Exh. A, ¶ 11.)
The
Offense Report, dated November 29, 2005, reflects the malfunction,
and that Ayers was able to hear both sides of the conversation.
-27-
(Doc. #46-1, Exh. 1, p. 19.)
Ayers did not include in the arrest
Affidavit that the underwear was not torn because Victim did not
advise that it was torn, only that she “heard them rip.”
12.)
(Id., ¶
The omission of these facts were not essential to a finding
of probable cause and their inclusion would not negate the probable
cause set forth in the arrest Affidavit.
The
Offense
prescriptions
Report
that
Tramadol/Metabolites.
provides
accounted
for
that
the
victim
provided
benzodiazepines,
and
The victim advised Ayers that she had never
taken anything containing phenothiazines.
21.)
the
(Doc. #46-1, Exh. 1, p.
The arrest Affidavit also provides that
the victim was not
taking any medications containing phenothiazines because it would
interfere with her blood pressure medication.
(Doc. #54-1, p. 2.)
Ms. Thompson swore, at the time of her voluntary statement and
prior to the arrest Affidavit, that phenothiazine was commonly
found in Compazine or Phenergrin, and that the medications were
easily accessible to both Weinerth and Victim.
6.)
(Doc. #46-2, Exh.
The Court finds that the omission of these facts would have no
bearing on a finding of probable cause by a reasonable officer with
knowledge of the facts and circumstances available to Ayers at the
time of the arrest.
Ms. Thompson did not provide testimony that
the medications had limited accessibility until after the issuance
of the warrant.
The Court finds no Fourth Amendment violation occurred, and
therefore the claims of false arrest and malicious prosecution must
-28-
fail.
The motion for summary judgment will be granted on all
counts.
Accordingly, it is now
ORDERED:
1.
Detective Harvey Ayers’ Dispositive Motion for Summary
Judgment (Doc. #46) is GRANTED and the Second Amended Complaint is
dismissed with prejudice as to all claims.
2.
The Clerk shall enter judgment in favor of defendant and
against plaintiff accordingly, terminate all pending deadlines, and
close the file.
3.
The parties’ Joint Motion to Continue Trial and Joint
Consent to Magistrate Judge’s Jurisdiction (Doc. #57) is DENIED as
moot and the Final Pretrial Conference is cancelled.
DONE AND ORDERED at Fort Myers, Florida, this
February, 2012.
Copies:
Counsel of record
-29-
7th
day of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?