Kobie v. Fifthian et al
Filing
106
OPINION AND ORDER denying 67 Defendants' Motion to Dismiss Counts III and IV of Plaintiff's Second Amended Complaint; denying 77 Defendants' Motion for Summary Judgment; denying 87 Defendants' Motion to Strike. See Opinion and Order for details. Signed by Judge John E. Steele on 12/11/2013. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRED HERMAN KOBIE, III,
Plaintiff,
vs.
Case No.
2:12-cv-98-FtM-29DNF
JASON FITHIAN, Detective of Lee
County, Sheriff Department, MIKE
SCOTT, Sheriff of Lee County Sheriff
Department,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion to
Dismiss Counts III and IV of Plaintiff’s Second Amended Complaint
(Doc. #67) filed on June 3, 2013.
Plaintiff filed a Response to
Defendants’ Motion to Dismiss (Doc. #71) on June 14, 2013.
Also
before the Court is Defendants’ Motion for Summary Judgment (Doc.
#77) filed on August 2, 2013.
Plaintiff filed a Response to
Defendants’ Motion for Summary Judgment (Doc. #82) on August 16,
2013, and defendants filed a Reply (Doc. #89) on September 16,
2013.
Defendants also filed a Motion to Strike (Doc. #87) on
September 6, 2013, to which plaintiff filed a Verified Response to
the Motion to Strike (Doc. #90) on September 17, 2013.
I. Defendants’ Motion to Dismiss
Plaintiff’s Second Amended Complaint sets forth four counts
pursuant
to
42
U.S.C.
§
1983
for
violation
of
plaintiff’s
constitutional rights, two counts against Detective Jason Fithian
(Detective Fithian) (Counts I and III) and two counts against
Sheriff Mike Scott (Sheriff Scott) (Counts II and IV).
Defendants
contend that Counts III and IV should be dismissed because they are
simply duplicative of Counts I and II.
With the aid of the Joint Pre-Trial Statement (Doc. #103), it
seems clear that Counts I and II allege constitutional claims of
false arrest and Counts III and IV allege constitutional claims of
false imprisonment, all arising from plaintiff’s October 29, 2010
arrest.
(Doc. #103, p. 2, § IIa.)
Count I alleges that Detective
Fithian arrested plaintiff pursuant to an arrest warrant but
without probable cause (and hence in violation of the Fourth
Amendment).
Count III alleges that Detective Fithian caused the
continued detention of plaintiff without probable cause by failing
to disclose certain information to the State Attorney’s Office (and
hence in violation of the Fourteenth Amendment).
Counts II and IV
make corresponding similar allegations against Sheriff Scott.
In order to prevail on a claim for false arrest under § 1983,
a plaintiff must establish that an arrest was made without probable
cause.
Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003)
(citing Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir.
-2-
1998)). “Likewise, falsifying facts to establish probable cause is
patently unconstitutional.”
Kingsland v. City of Miami, 382 F.3d
1220, 1232 (11th Cir. 2004).
“Probable cause exists where the
facts within the collective knowledge of law enforcement officials,
derived from reasonably trustworthy information, are sufficient to
cause a person of reasonable caution to believe that a criminal
offense has been or is being committed.”
Brown v. City of
Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010) (citing
Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997)).
In order to prevail a claim for false imprisonment under §
1983, a plaintiff must establish the common law elements of false
imprisonment and a due process violation under the Fourteenth
Amendment.
2009).
Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir.
The elements of common law false imprisonment are (1) an
intent to confine, (2) an act resulting in confinement, and (3) the
victim’s awareness of confinement.
Id.
The Fourteenth Amendment
Due Process Clause includes the right to be free from continued
detention after the state should have known that the detainee was
entitled to release.
Cir. 2007).
West v. Tillman, 496 F.3d 1321, 1327 (11th
To establish such a violation, a plaintiff must show
that the defendant acted with deliberate indifference to the
plaintiff’s due process rights.
Id.
Here, plaintiff could prevail on Count III or IV even if it is
ultimately determined that the arrest was supported by probable
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cause (or arguable probable cause).
Therefore, Counts III and IV
may not be dismissed as duplicative, and defendants’ motion to
dismiss is denied.
II.
Defendants’ Motion for Summary Judgment
Defendants
contend
that
they
are
entitled
to
qualified
immunity because the facts establish that there was probable cause
or arguable probable cause for plaintiff’s arrest and continued
imprisonment.
Plaintiff argues that there are at least disputed
material facts which preclude summary judgment.
A.
Standard of Review
Summary
judgment
is
appropriate
only
when
the
Court
is
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).
The
moving party bears the burden of identifying those portions of the
pleadings, depositions, answers to interrogatories, admissions,
and/or affidavits which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
-4-
1259-60 (11th Cir. 2004).
To avoid the entry of summary judgment,
a party faced with a properly supported summary judgment motion
must
come
forward
with
extrinsic
evidence,
i.e.,
affidavits,
depositions, answers to interrogatories, and/or admissions, which
are sufficient to establish the existence of the essential elements
to that party’s case, and the elements on which that party will
bear the burden of proof at trial.
Celotex, 477 U.S. at 322;
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th
Cir. 1999).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v.
M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983)(finding summary
judgment “may be inappropriate even where the parties agree on the
basic facts, but disagree about the factual inferences that should
be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from the
facts, and if that inference introduces a genuine issue of material
-5-
fact, then the court should not grant summary judgment.”
Allen v.
Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
B.
Qualified Immunity Principles
“Qualified immunity protects government actors performing
discretionary
functions
capacities.”
Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir.
2003).
from
being
sued
in
their
individual
It offers complete protection so long as the government
actor’s “conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The
doctrine of qualified immunity “balances two important interest-the
need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction,
and
liability
when
they
perform
their
duties
reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
The
Eleventh Circuit has often said that qualified immunity protects
“all but the plainly incompetent or one who is knowingly violating
federal law.”
Brown v. City of Huntsville, 608 F.3d 724, 733 (11th
Cir. 2010) (citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002)).
In order to receive the protection of qualified immunity, the
government actor must first demonstrate that he was performing a
discretionary function.
(11th Cir. 2007).
McClish v. Nugent, 483 F.3d 1231, 1237
The burden then shifts to the plaintiff to prove
-6-
that
qualified
immunity
does
not
insulate
the
official
from
liability. Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir.
2004).
Here, plaintiff does not dispute that defendants were
performing discretionary functions at the time of the alleged
injury; therefore, plaintiff shoulders the burden of proving that
qualified immunity does not apply.
In determining whether an officer is entitled to qualified
immunity, the Court employs a two-party inquiry, asking: (1)
whether the facts, taken in the light most favorable to the
plaintiff, demonstrate that the officer’s conduct violated the
plaintiff’s
constitutional
rights;
violated was clearly established.
and
(2)
whether
the
right
Pearson, 555 U.S. at 232.
A
court may exercise its discretion in deciding the order in which
the two prongs should be addressed.
Id. at 236.
The second prong of the qualified immunity standard is easily
satisfied in this case.
Plaintiff’s right to be free from an
arrest and detention based upon an arrest warrant for which the
affidavit did not contain probable cause was clearly established,
and no reasonable officer would have thought otherwise.
In 1995,
the Eleventh Circuit stated: “Malley1 and Garmon2 clearly establish
that a police officer is not protected by qualified immunity if he
1
Malley v. Briggs, 475 U.S. 335, 345 (1986).
2
Garmon v. Lumpkin County, Ga., 878 F.2d 1406, 1410 (11th Cir.
1989).
-7-
applies for an arrest warrant where ‘a reasonably well-trained
officer . . . would have known that his affidavit failed to
establish probable cause and that he should not have applied for
the warrant.’” Pickens v. Hollowell, 59 F.3d 1203, 1207 (11th Cir.
1995).
In 1999, the Eleventh Circuit stated:
Furthermore, the law was clearly established in 1993 that
the Constitution prohibits a police officer from
knowingly making false statements in an arrest affidavit
about the probable cause for an arrest in order to detain
a citizen and, thus, that qualified immunity will not
shield Detective Powers from liability for such false
statements, if such false statements were necessary to
the probable cause.
Malley v. Briggs, 475 U.S. 335,
344–45 (1986); Whiting v. Traylor, 85 F.3d 581, 585 n.5
(11th Cir. 1996); Kelly v. Curtis, 21 F.3d 1544 (11th
Cir. 1994) (following Malley and holding police officer
not entitled to qualified immunity in § 1983 claim based
on officer's false statements in 1989 affidavit submitted
to magistrate judge for arrest warrant at warrant
hearing); United States v. Martin, 615 F.2d 318, 327–29
(5th Cir. 1980) (applying rule regarding false statements
in a search warrant in Franks v. Delaware, 438 U.S. 154,
156, 165–71 (1978), to perjurious statements used to
obtain an arrest warrant).
Jones v. Cannon, 174 F.3d 1271, 1285 (11th Cir. 1999).
Defendants
do not dispute these well-settled principles, but argue that
probable cause and/or arguable probable cause did in fact exist in
this case.
Detective Fithian submitted a probable cause affidavit which
resulted in the issuance of an arrest warrant by a state judge.
The face of
the
probable
cause
affidavit
clearly
probable cause to support plaintiff’s arrest.
sets
forth
That does not
necessarily end the matter, however, because plaintiff challenges
-8-
the truthfulness of much of the factual information set forth in
the affidavit.
This brings the Court to defendant’s motion to
strike the affidavit of Mark Lee (Lee), the confidential informant
being used by Detective Fithian at the time of the arrest.
The
Court must resolve the motion to strike in order to determine what
information may be considered at the summary judgment stage.
C.
Defendants’ Motion to Strike the Affidavit of Mark Lee
Mark Lee was the confidential informant who allegedly provided
Detective Fithian with information used in the probable cause
affidavit to secure plaintiff’s arrest.
In the state criminal
prosecution, Lee gave a deposition admitting that he provided
Detective Fithian with the information used in the probable cause
affidavit and the truthfulness of that information.
Lee has now
given an affidavit to plaintiff’s counsel recanting his prior
deposition testimony and denying knowing of or giving information
about Kobie to Detective Fithian.
Defendants assert that Lee’s
recanting affidavit should be stricken for three reasons.
First,
defendants contend that the affidavit should be stricken pursuant
to Rule 37(c)(1) because plaintiff failed to comply with Rule
26(e).
Second, defendants contend that the affidavit is a sham
affidavit.
Finally, defendants assert that the affidavit does not
comply with Rule 56.
-9-
(1)
Rule 37 Sanction
Defendants claim that Lee’s affidavit should be stricken in
its
entirety
because
plaintiff
was
aware
of
Lee’s
contact
information and intent to recant his prior testimony nine months
before
the
close
information.
of
discovery,
Defendants
contend
but
failed
that
this
to
disclose
such
non-disclosure
is
prejudicial because there was no reason to believe that Lee would
recant
his
prior
sworn
testimony,
and
by
cancelling
Lee’s
deposition plaintiff foreclosed defendants’ opportunity to depose
Lee.
Each party is required to provide “the name, and if known, the
address and telephone number of each individual likely to have
discoverable
information–-along
information . . . .”
with
the
subjects
Fed. R. Civ. P. 26(a)(1)(A).
that
The parties are
required to supplement incomplete Rule 26(a) disclosures.
Civ. P. 26(e)(1).
of
Fed. R.
A party that fails to comply with Rule 26(a) or
(e) is precluded from using that witness “to supply evidence on a
motion . . . unless that failure was substantially justified or is
harmless.”
Fed. R. Civ. P. 37(c)(1).
evidence is discretionary.
The decision to exclude such
Lawver v. Hillcrest Hospice, Inc., 300
F. App’x 768, 770 (11th Cir. 2008) (citing Cooper v. Southern Co.,
390 F.3d 695, 727-28 (11th Cir. 2004)).
Plaintiff’s Rule 26 disclosures were submitted on November 30,
2012, and identified Lee as a witness who could testify as to his
-10-
knowledge
and
conversations
information was provided.
with
defendants,
(Doc. #32, p. 2.)
but
no
contact
On December 22, 2012,
plaintiff’s counsel interviewed Lee in Orlando, Florida.
The
interview revealed that Lee intended to recant significant portions
of the sworn testimony given during the criminal proceedings
against Kobie.
(Doc.
#82,
pp.
55-60.)
Plaintiff’s
counsel
acknowledges that a phone number for Lee was disclosed during the
interview, but states that it was incorrect and a correct number
was not obtained until August 9, 2013.
(Doc. #90, p. 8.)
On August 13, 2013, plaintiff notified defendants of his
intent to depose Lee on August 26, 2013.
(Doc. #81.)
On August
16, 2013, plaintiff filed a response in opposition to defendants’
motion for summary judgment stating that Lee agreed to provide an
affidavit recanting his prior testimony and that the affidavit
would be filed near the end of discovery.
(Doc. #82, p. 55.)
On
the date of the scheduled deposition, plaintiff notified defendants
that Lee’s deposition was being cancelled.
Defendants’ counsel
responded to the cancellation by asking if Lee had been located,
but received no response.
(Doc. #87, Exh. A.) Lee’s affidavit was
signed on August 28, 2013, and was filed on September 3, 2013, two
days after the close of discovery.
When
deciding
whether
to
(Doc. #86.)
exclude
a
witness
under
Rule
37(c)(1), courts consider (1) the importance of the testimony; (2)
the reason for non-disclosure; and (3) prejudice.
-11-
Bearint ex rel.
Bearint v. Dorell Juvenile Grp., 389 F.3d 1339, 1353 (11th Cir.
2004). Here, it is clear that Lee’s affidavit is important at this
stage of the proceedings.
Plaintiff’s opposition to summary
judgment relies heavily on the information supplied by Lee in the
affidavit, and plaintiff states in his response to the motion to
strike that exclusion of the affidavit would be tantamount to
dismissal of the case. The Court agrees that without consideration
of the Lee recanting affidavit, plaintiff’s chances of surviving
summary judgment are slim.
Plaintiff’s
reason
for
non-disclosure
is
troubling,
and
demonstrates a fast and loose approach to compliance with the
federal rules.
Plaintiff’s counsel had Lee’s correct phone number
on August 9, 2013, but did not update his discovery response.
Plaintiff’s counsel claims to still not have Lee’s address, but
does
not
explain
how
the
initial
interview
was
scheduled.
Plaintiff’s counsel advised the Court of Lee’s intent to recant
testimony, scheduled Lee’s deposition, cancelled Lee’s deposition,
and obtained a recanting affidavit during the discovery period, but
filed
the
recanting
Additionally,
affidavit
plaintiff’s
after
counsel
the
failed
close
to
of
discovery.
provide
contact
information in response to defense counsel’s inquiry on August 26,
2013.
Although the Court finds plaintiff’s reasons for non-
disclosure of Lee’s contact information troubling, striking the
affidavit is too severe a sanction.
-12-
Finally, the Court finds the failure to supplement the initial
disclosures to be prejudicial.
supplemental
information,
By failing to provide timely
plaintiff
effectively
eliminated
defendants’ ability to depose Lee before the close of discovery.
However,
the
prejudice
to
defendants
is
outweighed
by
undue
prejudice to plaintiff if the recanting affidavit is excluded.
This is not a case where the plaintiff failed to disclose the
identity
of
testimony.
a
key
witness
or
the
anticipated
nature
of
his
The recanting affidavit is not admissible at trial
without Lee’s presence, but the Court will not strike it as a
sanction at the summary judgment stage.
(2)
Sham Affidavit
The second contention set forth in the motion to strike is
that
Lee’s
affidavit.
it
affidavit
is
inadmissible
because
it
is
a
sham
“A court may determine that an affidavit is a sham when
contradicts
previous
deposition
testimony
and
the
party
submitting the affidavit does not give any valid explanation for
the contradiction.”
Latimer v. Roaring Toyz, Inc., 601 F.3d 1224,
1237 (11th Cir. 2010) (citing Van T. Junkins & Assocs., Inc. v.
U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984)).
However,
“[t]his rule is applied ‘sparingly because of the harsh effect [it]
may have on a party’s case.’”
Allen v. Bd. of Pub. Educ. for Bibb
Cnty., 495 F.3d 1306, 1316 (11th Cir. 2007) (quoting Rollins v.
TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987)).
-13-
As such,
a court must find some inherent inconsistency between an affidavit
and deposition before disregarding the affidavit.
There
is
no
question
that
Lee’s
Id.
recanting
affidavit
contradicts most of his prior testimony.
The contradictions,
however, are not without some explanation.
Lee states that his
subsequent experience in the military made him want to “right the
wrongs” that were done in this case and that he was untruthful in
the criminal matter because of threats made by Fithian.
#86.)
(Doc.
Although developing a conscious and getting over prior
threats may not ultimately be enough for a trier of fact to find
any of Lee’s testimony credible, the explanation is sufficient to
survive defendants’ motion to strike.
(3)
Compliance with Rule 56
The final argument raised in defendants’ motion to strike is
that the affidavit does not comply with Rule 56 because Lee does
not declare that the information provided was based on personal
knowledge or that he was competent to testify.
Rule 56 provides
that “[a]n affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarant
is competent to testify.”
Fed. R. Civ. P. 56(c)(4).
Here, the
Court finds that the information in the affidavit is based on
personal knowledge because the statements pertain to Lee’s actions
and observations in the criminal investigation.
-14-
As to Lee’s
competency, defendants have not presented any evidence to suggest
that Lee lacks the competency to testify. Accordingly, defendants’
motion to strike is denied.
D.
Qualified Immunity
To receive qualified immunity, an officer need not have actual
probable cause, but only arguable probable cause.
at 734 (citing Holmes, 321 F.3d at 1079).
Brown, 608 F.3d
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.”
F.3d at 1232.
Kingsland, 382
This standard is an objective one and does not
include an inquiry into the officer’s subjective intent or beliefs.
Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010).
Detective Fithian’s investigation of Kobie began with and
relied heavily on the information provided by a confidential
informant, Mark Lee.
An officer is entitled to rely on the
statements of a confidential informant and corroborating evidence
to establish probable cause. Case v. Eslinger, 555 F.3d 1317, 1327
(11th Cir. 2009) (citing Illinois v. Gates, 462 U.S. 213, 242
(1983)).
In determining whether the information provided by a
confidential informant rises to the level of probable cause, a
court must assess the totality of the circumstances.
Christian, 85 F.3d 1521, 1525 (11th Cir. 1996).
Ortega v.
Courts “consider
the relevance of factors such as the informant’s ‘veracity,’
-15-
‘reliability,’ and ‘basis of knowledge.’
Furthermore,
police
the
work
corroboration
adds
determination.
significant
of
Id. (citations omitted).
details
value
to
through
the
independent
probable
cause
Id.
The probable cause determination relied primarily on the
information provided by Lee and the purported admissions of Kobie
and Jones, but there are material issues of disputed facts and
little in the record to independently support the veracity of this
evidence.
Lee claims that he was forced to help Fithian arrest
Kobie even though he had no knowledge of Kobie doing anything
illegal, and further claims that neither Jones nor Kobie admitted
to any involvement in criminal activity during the investigation.
The recent change in Lee’s position and the credibility of his
statements cannot be resolved on summary judgment.
The Eleventh
Circuit has held that it is not proper to grant summary judgment on
the basis of credibility choices, even if the Court believes that
the evidence
presented
by
one
side
is
of
doubtful
veracity.
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.
2013) (citing Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir.
2006).
“This
is
because
credibility
determinations
and
the
weighing of evidence ‘are jury functions, not those of a judge.’”
Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).
-16-
Defendants
further
assert
that
Jones
acknowledged
his
admissions to the thefts during his deposition on February 13,
2013, and that this alone is sufficient to establish probable
cause.
The deposition testimony is as follows:
Q. At some point, did you think that Mark was wearing a
wire to record your conversations?
A. Yeah, in the beginning we were joking with him about
it.
Q.
Why would you joke about it if you felt he was
wearing a wire to record a conversation that would
implicate you in the theft of stolen trucks?
A. Because I didn’t do it. I didn’t have no worries
about getting in trouble for it.
Q.
What kind of joke did you make?
A. I don’t know. It has been so long ago. He would
always bring up things that would insinuate that we did
something. I would always joke around, yeah, okay, we
did that, whatever. I don’t remember how it went. I
would always go along with what he was saying.
Q. You were just being sarcastic when you went along
with what he was saying?
A.
Yeah.
Q. So, if he made a statement that you were involved in
the theft of trucks, would you agree, but it was just
kidding.
A.
Yeah.
(Doc. #77, pp. 5-6 (citing Jones Dep. 15:5-16:1, Feb. 13, 2013).)
Jones acknowledges that if Lee made a statement implicating him in
the thefts, he would have agreed with it. Defendants submitted the
audio recordings from the controlled contacts; however, most of the
-17-
recordings are inaudible and it is difficult to discern who is
speaking.
For example, the recording from October 14, 2010,
clearly contains discussion regarding the thefts, but the Court is
unable to discern if any of the statements constitute an admission
by
Jones.
(Doc.
#84,
Exh.
#3,
Disc
10/14/10,
22:20-24:00.)
Furthermore, an admission by Jones does not necessarily implicate
Kobie in the thefts or establish arguable probable cause as to
Kobie, and Lee claims no such admissions were made.
Accordingly,
the purported admissions by Jones and Kobie do not establish
probable cause or arguable probable cause as to Kobie.
The probable cause statement also refers to the truck parts
found at a location identified by Lee on Huffmaster Road.
Absent
incriminating statements, there is little to connect the parts to
Jones or Kobie in light of Lee’s involvement in the thefts.
Lee
also states that parts on Huffmaster Road have no connection to
Kobie.
Given the significance of the material disputed issues of
fact, qualified immunity is not appropriate at this stage of the
proceedings.
Therefore, defendants’ motion for summary judgement
is denied.
Accordingly, it is now
ORDERED:
1.
Defendants’ Motion to Dismiss Counts III and IV of
Plaintiff’s Second Amended Complaint (Doc. #67) is DENIED.
2.
Defendants’ Motion to Strike (Doc. #87) is DENIED.
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3.
Defendants’ Motion for Summary Judgment (Doc. #77) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2013.
Copies:
Counsel of record
-19-
11th
day of
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