Johnson v. Scott et al
Filing
49
ORDER granting 35 Defendants' Motion for Summary Judgment as to Counts 1, 2, 3, 4, 5, and 6. Moreover, Counts 7, 8, and 9 are DISMISSED WITH PREJUDICE. All pending motions are DENIED AS MOOT. The Clerk is directed to CLOSE this action and enter judgment accordingly. Signed by Judge Sheri Polster Chappell on 10/27/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ADAM J. JOHNSON,
Plaintiff,
v.
Case No: 2:13-cv-500-FtM-38CM
MIKE SCOTT, THOMAS W. COLE
and UNKNOWN SHERIFF’S
DEPUTY(S),
Defendants.
/
ORDER1
This matter comes before the Court on Defendants' Motion for Summary Judgment
(Doc. #35) filed on September 8, 2014. Plaintiff filed a Response in Opposition2 on
September 20, 2014. (Doc. #39). Thereafter, Defendants requested (Doc. #41), and the
Court granted (Doc. #42), leave to file a Reply, which Defendants filed on September 29,
2014. (Doc. #43). Plaintiff followed with a Surreply filed on October 3, 2014. (Doc. #45).
Thus, the Motion is now ripe for review.
1
Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or Web sites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other Web sites, this court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their Web
sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court
accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink
ceases to work or directs the user to some other site does not affect the opinion of the court.
At this time, the Court would like to note Plaintiff’s unacceptable, blatant disregard for the Local Rules of
the Middle District of Florida. Rule 1.05(a) explicitly states that all papers tendered by counsel for filing
should be double-spaced with one-and-one-fourth inch top, bottom, and left margins and a one-to-one-andone-fourth inch right margin. Instead of abiding by Rule 1.05(a), Plaintiff tendered his Response in
Opposition and Surreply with, at best, one-and-one-half-spaced font and half-inch margins. In interest of
judicial economy, the Court chooses not to strike these documents in this instance, but warns Plaintiff that
further blatant disregard of the Local Rules will lead to repercussions, including the possibility of Rule 11
sanctions.
2
Background
Plaintiff, Adam J. Johnson, is a resident of the city of Fort Myers, which is located
within Lee County, Florida. (Doc. #37-2 at 4-5). Defendant Mike Scott is the Sheriff for
Lee County, and Defendants Thomas W. Cole (“Detective Cole”) and Unknown Sheriff’s
Deputy(s) are a detective and deputy(s) with the Lee County Sheriff’s Office (“LCSO”),
respectively. (Doc. #37-1 at 6). On October 19, 2009, an individual named Johnnie Craft
contacted the LCSO seeking their assistance with a home burglary that resulted in the
theft of numerous firearms. (Doc. #35-1 at 4). While investigating the home burglary and
theft, Detective Cole came into contact with an individual named Keith Beland. (Doc. #371 at 18).
On October 22, 2009, Mr. Beland agreed to provide Detective Cole with a sworn
statement regarding his knowledge of the burglary and theft. (Doc. #38). During his
testimony, Mr. Beland stated that on October 20, 2009, he visited the residence of a friend
named Rudy Lopez. (Doc. #38 at 1:02-2:13; #35-1 at 5). When Mr. Beland entered Mr.
Lopez’s house, Mr. Lopez exhibited numerous firearms – approximately 20 guns in total
– including handguns, shotguns, and assault rifles. (Doc. #38 at 1:02-2:13; #35-1 at 5).
Mr. Beland left Mr. Lopez’s residence shortly thereafter, but returned later that evening
and witnessed Mr. Lopez and another individual, who identified himself as “Adam,”
loading guns into a black or blue Chevrolet S-10 truck. (Doc. #38 at 5:12-5:54; #35-1 at
5). In addition to witnessing Mr. Lopez and “Adam” load guns into Adam’s truck, Mr.
Beland testified that he witnessed an individual named Chad (later identified as Chad
Howard) acting as a lookout because Mr. Lopez had previously been robbed himself.
(Doc. #38 at 5:12-5:54; #35-1 at 5).
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Thereafter, Mr. Beland witnessed Mr. Lopez and Adam leave Mr. Lopez’s
residence with the weapons loaded into the truck and return later only to load more
weapons and leave again. (Doc. #38 at 8:54-9:06; Doc. #35-1 at 5). Immediately before
concluding Mr. Beland’s sworn interview, Detective Cole attempted to ascertain the full
name of “Adam” by showing Mr. Beland six individual photos of men named Adam. (Doc.
#37-1 at 62:10-62:12). But Mr. Beland did not believe that any of the six pictures shown
were the Adam that he witnessed loading weapons into the truck and leaving with Mr.
Lopez. (Doc. #37-1 at 62:10-62:25). Nevertheless, on a later date, Detective Cole
provided Mr. Beland with a lineup of six more photos of men named Adam on a sheet of
paper. (Doc. #37-1 at 60:21-61:15). This time, however, Mr. Beland was able to point to
the individual that he saw loading weapons with Mr. Lopez, which turned out to be the
Plaintiff, Adam Johnson. (Doc. #37-1 at 61:07-61:15; #35-2).
Because Mr. Beland provided the names of other individuals involved, including
Rudy Lopez and Chad Howard, Detective Cole sought to bring those individuals in for
questioning also. (Doc. #37-1 at 24:13-24:24). On October 22, 2009, Detective Cole was
able to conduct a sworn interview with Mr. Lopez. (Doc. #35-3). During this interview,
Mr. Lopez testified that three days earlier, Chad Howard and another man named Kyle
McCartney brought Mr. Craft’s stolen weapons to his residence. (Doc. #35-3 at 2). Mr.
Lopez then corroborated the events that Mr. Beland previously testified to and attested
that “Adam’s” truck was the vehicle that was used to transport the weapons the night that
they were moved. (Doc. #35-3 at 4-5).
As a result of the foregoing and other factual discoveries, an arrest warrant was
issued for five individuals, including Plaintiff. (Doc. #43-1). Plaintiff was eventually
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released from jail a month after his arrest, and his charges were deemed nolle prosequi.
Subsequently, Plaintiff filed an Amended Complaint asserting nine counts: Violation of
Civil Rights Pursuant to 42 U.S.C. § 1983 against Defendant Mike Scott, as Sheriff of Lee
County, Florida (Count 1); False Imprisonment against Defendant Mike Scott, as Sheriff
of Lee County, Florida (Count 2); Negligence against Defendant Mike Scott, as Sheriff of
Lee County, Florida (Count 3); Violation of Civil Rights Pursuant to 42 U.S.C. § 1983
against Defendant Thomas Cole (Count 4); False Imprisonment against Defendant
Thomas Cole (Count 5); Negligence against Defendant Thomas Cole (Count 6); Violation
of Civil Rights Pursuant to 42 U.S.C. § 1983 against Defendant(s) Unknown Sheriff
Deputy(s) (Count 7); False Imprisonment against Defendant(s) Unknown Sheriff
Deputy(s) (Count 8); and Negligence against Defendant(s) Unknown Sheriff Deputy(s)
(Count 9). (Doc. #16 at 3-29).
STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and [she] is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). An issue is genuine if there is sufficient evidence such that
a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Similarly, an issue of fact is material if it may affect the
outcome of the suit under governing law. Id.
The moving party bears the initial burden of showing the absence of any genuine
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding
whether the moving party has met this initial burden, courts must review the record and
draw all reasonable inferences from the record in a light most favorable to the non-moving
4
party. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). Once the
court determines the moving party has met this burden, the burden shifts to the nonmoving party to present facts showing a genuine issue of fact exists to preclude summary
judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
"The evidence presented cannot consist of conclusory allegations, legal
conclusions or evidence which would be inadmissible at trial." Demyan v. Sun Life
Assurance Co. of Can., 148 F. Supp. 2d 1316, 1320 (S.D. Fla. 2001) (citing Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)). Failure to show sufficient evidence of any
essential element is fatal to the claim and the court should grant the summary judgment.
See Celotex, 477 U.S. at 322-23. Conversely, if reasonable minds could find a genuine
issue of material fact then summary judgment should be denied. See Miranda v. B & B
Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992). With this standard in
mind, the Court will address Defendants’ arguments below.
Discussion
A. Counts 7, 8, and 9 against Defendant(s) Unknown Sheriff’s Deputy(s).
As a precursor to ruling on the substance of Defendants’ Motion, the Court
understands that Plaintiff “concedes at this time that [Defendant(s)] Unknown Sheriff’s
Deputy(s) . . . should be dismissed” from this action. (Doc. #39 at 3, ¶ 19). Because of
Plaintiff’s concession, and because Defendants requested such a dismissal in their
Motion (Doc. #35 at 21-23), the Court dismisses Counts 7, 8, and 9 against Defendant(s)
Unknown Sheriff’s Deputy(s) with prejudice. See also Richardson v. Johnson, 598 F.3d
734, 738 (11th Cir. 2010) (affirming district court’s dismissal of the plaintiff’s claims
5
against fictitious parties named in the complaint and noting that “the description in [the
plaintiff’s] complaint was insufficient to identify the defendant among the many” officers
employed at the agency).
B. Counts 4 and 5 against Defendant Thomas Cole
Defendants first seek summary judgment on the basis that Detective Cole is
shielded against Counts 4 and 5 by qualified immunity. (Doc. #35 at 7). In support,
Defendants maintain that Detective Cole had probable cause for arresting Plaintiff,
qualifying Detective Cole for immunity and preventing Plaintiff from asserting counts of
false imprisonment and civil rights violations against him.
(Doc. #35 at 7).
First,
Defendants contend that “there is no dispute that Detective Cole was acting within the
scope of his discretionary authority in arresting and detaining Plaintiff.” (Doc. #35 at 9).
Second, because Detective Cole was acting within the scope of his discretionary
authority, Defendants assert that Plaintiff cannot meet the shifted burden of illustrating
that his arrest was made without probable cause. (Doc. #35 at 11).
In order to exhibit that probable cause existed for Plaintiff’s arrest, Defendants
point the Court’s attention to the fact that Mr. Beland identified Plaintiff out of a photo
lineup; Mr. Beland’s physical description of “Adam” fit Plaintiff’s physical characteristics;
Mr. Beland described the identical make and model of the vehicle that Plaintiff owns; and
Plaintiff has admitted to being “a friend or acquaintance of the principals in the crime.”
(Doc. #35 at 16). In the alternative, Defendants argue that even if full probable cause
was not present, arguable probable cause was present. (Doc. #35 at 16). As Defendants
elucidate by citing Eleventh Circuit precedent, “the existence of arguable probable cause
for Plaintiff’s arrest would entitle Detective Cole to qualified immunity.” (Doc. #35 at 16).
6
As such, because Mr. Beland was able to identify Plaintiff out of a photo lineup,
Defendants argue that this identification, at the least, was sufficient to establish arguable
probable cause. (Doc. #35 at 17).
In response, Plaintiff “agrees that [Detective Cole] was acting in his official capacity
and under color of law[,]” thereby shifting the burden to “Plaintiff to establish that
[Detective Cole] is not entitled to qualified immunity.” (Doc. #39 at 5, ¶ 22). But Plaintiff’s
agreement with Defendants’ argument ends there. Contrary to Defendants, Plaintiff
asserts that when the facts are viewed in the light most favorable to him, the non-moving
party, it is clear that he “was arrested without probable cause or arguable probable
cause.” (Doc. #39 at 5, ¶ 22). As Plaintiff explains, “[t]he taped statements of the other
suspects in the criminal case, the Information filed by the State[,] and other documents
filed with the [c]riminal [c]ourt [] fail[] to state probable cause for [] Plaintiff to be arrested.”
(Doc. #39 at 6, ¶ 23).
In support, Plaintiff first notes that Detective Cole interviewed two other individuals,
Jason Hayes and Cassandra Braun, who provided testimony that Plaintiff believes
“contradicts” Mr. Beland’s testimony. (Doc. #39 at 6, ¶ 23). Specifically, Plaintiff points
the Court’s attention to the fact that neither of those individuals ever testified that they
witnessed Plaintiff conduct the activities that Mr. Beland testified he witnessed Plaintiff
conduct – i.e., help Mr. Lopez load weapons into a truck. (Doc. #39 at 6, ¶ 23). Second,
Plaintiff asserts that “[t]he contradictory facts were glaring as Keith Buelund [sic] was a
witness in passing, while Rudy Lopez, who was part of the crime[,] named a different
person as loading the truck.” (Doc. #39 at 7, ¶ 25). As Plaintiff sees it, although Detective
Cole was armed with “conflicting statements as to who was present[,]” Detective Cole
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“failed to do any independent investigation related to the identity of the third person
involved with the loading of the truck with the stolen firearms.” (Doc. #39 at 7, ¶ 25).
Third, Plaintiff disputes that Detective Cole conducted an unbiased photo lineup
when he presented the second set of photos of men named Adam on a piece of paper to
Mr. Beland. That is, Plaintiff states that while “all the other photos [on the paper] where
[sic] of a head and shoulders,” Plaintiff’s photo “was a close[-]up of his face.” (Doc. #39
at 7, ¶ 26). As a result of this discrepancy, Plaintiff contends that his photo in the lineup
was “highly suggestive.” (Doc. #39 at 8, ¶ 27). Moreover, Plaintiff takes issue with the
fact that the six photo lineup that Mr. Beland used to identify Plaintiff “lacks the date and
time it was done[,] [] who conducted the lineup[,]” or Detective Cole’s or “any other
person’s signature or name on the lineup stating [they] witnessed the identification.” (Doc.
#39 at 11, ¶ 32). According to Plaintiff, the lack of these items makes it “entirely plausible
that Detective Cole forgot about [Plaintiff] after his arrest and later tried to cover his tracks
to make his arrest seem legitimate after letting him sit in jail for six weeks, when faced
with no probable cause or arguable probable cause for his arrest.” (Doc. #39 at 11, ¶ 32).
Fourth, Plaintiff questions the credibility of Mr. Beland. Plaintiff specifically points
the Court’s attention to the fact that 1) Mr. Beland testified it was dark outside when he
witnessed all the events; 2) Mr. Beland was “admittedly . . . rushed away by [Mr.] Lopez”
when he made brief face-to-face contact with the individuals loading the guns; 3) Mr.
Beland was not aware if “Adam” was the real name of the individual that he spoke to; and
4) Mr. Beland was unable to identify “Adam” from the first six pictures shown to him during
his sworn statement. (Doc. #39 at 8, ¶ 28). Fifth and finally, Plaintiff provides the
testimony of his expert, Kevin C. Kozak, who, after reviewing the complete case file,
8
opined that “[Detective] Cole did not enumerate sufficient facts in his reports to establish
probable cause for [Plaintiff’s] arrest.” (Doc. #39 at 13, ¶ 40).
It is well established that qualified immunity “provides protection for government
officials performing discretionary functions and sued in their individual capacities as long
as their conduct violates no ‘clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Storck v. City of Coral Springs, 354 F.3d 1307,
1313 (11th Cir. 2003) (quoting Lassiter v. Ala. A & M Univ., Bd. of Trustees, 28 F.3d 1146,
1149 (11th Cir.1994)). “Because qualified immunity is a defense not only from liability,
but also from suit, it is ‘important for a court to ascertain the validity of a qualified immunity
defense as early in the lawsuit as possible.’” Id. at 1314 (quoting GJR Invs., Inc. v. County
of Escambia, 132 F.3d 1359, 1370 (11th Cir.1998)).
In order to utilize qualified immunity, “the public official must first prove that he was
acting within the scope of his discretionary authority when the allegedly unconstitutional
acts took place.” Id. (citing Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.1991)).
Here, the parties are in agreement that Detective Cole was acting within the scope of his
discretionary authority when he arrested Plaintiff. (Doc. #35 at 9 (“[I]t is clearly within the
scope of a detective’s authority to make arrests.”); Doc. #39 at 5, ¶ 22 (“Plaintiff agrees
that [Detective Cole] was acting in his official capacity and under color of law.”)).
Therefore, the burden now shifts to Plaintiff to establish that qualified immunity is
inapplicable to the facts at hand. Storck, 354 F.3d at 1314.
To assist in determining whether a plaintiff has met their burden of illustrating that
qualified immunity does not apply, the Supreme Court provided a two-part test. First, the
plaintiff must illustrate “that the official violated a statutory or constitutional right.” Ashcroft
9
v. al-Kidd, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011). Second, the plaintiff must
illustrate “that the right was clearly established at the time of the challenged conduct.” Id.
(internal quotations and citations omitted). However, when applying this two-part test,
“lower courts have discretion to decide which of the two prongs of qualified-immunity
analysis to tackle first.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808,
172 L.Ed.2d 565 (2009)).
Here, the Court will address the “violation-of-a-constitutional-right” prong first.
Although Plaintiff does not specify an exact constitutional right in Counts 4 or 5 that he
believes Detective Cole violated, based on Plaintiff’s Amended Complaint, it appears that
Plaintiff alleges Detective Cole violated his Fourth and Fourteenth Amendment rights by
falsely arresting and imprisoning him.
Both parties recognize that “[t]he existence of
probable cause at the time of arrest absolutely bars a § 1983 claim for false arrest [and
imprisonment] under the Fourth Amendment.” Atterbury v. City Of Miami Police Dep't,
322 F. App'x 724, 727 (11th Cir. 2009). As the Eleventh Circuit notes, “the standard for
determining the existence of probable cause is the same under both Florida and federal
law—whether a reasonable man would have believed probable cause existed had he
known all of the facts known by the officer.” Rankin v. Evans, 133 F.3d 1425, 1433 (11th
Cir. 1998) (internal citation, quotations, and brackets omitted).
There are two forms of probable cause that entitle a public official to qualified
immunity: actual probable cause and arguable probable cause. Atterbury, 322 F. App’x
at 727 (citing Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009)). “Actual probable
cause exists when the facts and circumstances within the police officer’s knowledge
‘warrant a reasonable belief that the suspect had committed or was committing a crime.’”
10
Id. “This knowledge may be garnered from an informant’s allegations and corroborating
evidence.”
Id.
“The evidence of criminal activity need not be overwhelming.”
Id.
“Probable cause requires only a probability or substantial chance of criminal activity, not
an actual showing of such activity.” Id. (internal citations omitted). “Thus, an officer must
have something more than mere suspicion but he may have less than convincing proof.”
Id. (citing Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003)).
In contrast,
“[a]rguable probable cause to arrest exists where a reasonable officer in the identical
circumstances could have believed that probable cause existed.” Id. (citing Eslinger, 555
F.3d at 1327)).
After thoroughly reviewing the evidence presented in the light most favorable to
Plaintiff, the Court finds that Detective Cole had actual probable cause to arrest Plaintiff.
As noted above, while investigating the underlying burglary, Detective Cole obtained the
sworn testimony of Mr. Beland. (Doc. #37-1 at 18). Through this testimony, Mr. Beland
was able to identify several individuals who were connected to the crime, including an
individual named “Adam.” (Doc. #38 at 5:12-5:54; #35-1 at 5). Although Mr. Beland was
unable to provide Detective Cole with a last name for “Adam” on the day of his sworn
testimony, the fact remains that Mr. Beland was able to later identify “Adam” as Plaintiff,
Adam Johnson. (Doc. #37-1 at 60:21-61:15).
While Plaintiff contends that the testimony of Jason Hayes and Cassandra Braun
contradicts Mr. Beland’s testimony, the Court disagrees. In his testimony, Mr. Beland
noted that he witnessed Plaintiff assist Mr. Lopez with loading weapons into a dark
colored truck. (Doc. #38 at 5:12-5:54; #35-1 at 5). In contrast, both Mr. Hayes’ and Ms.
Braun’s statements relate to a later time period when the guns were being unloaded and
11
were already unloaded, respectively, into another residence, not the time period that Mr.
Beland witnessed. (Doc. #39-2; #39-1). The fact that neither Mr. Hayes nor Ms. Braun
testified to witnessing Plaintiff being involved in these earlier events does not contradict
or negate Mr. Beland’s testimony that explicitly places Plaintiff at the Lopez residence
when the guns were being loaded into a truck. This point is furthered by the fact that Mr.
Hayes’ testimony asserts that the stolen weapons were dropped off to the other residence
in Chad Howard’s car; but Mr. Lopez, who admitted to being involved and helping load
the weapons, confirmed Mr. Beland’s testimony that the weapons were loaded into
“Adam’s truck.” (Doc. #39-1 at 2; #35-3 at 5). This discrepancy in vehicle descriptions
clearly indicates that two distinct time periods were being testified to and that Mr. Beland’s
testimony remains uncontradicted when compared to Mr. Hayes’ and Ms. Braun’s
testimony.
Plaintiff’s next argument that “[t]he contradictory facts were glaring” between Mr.
Beland’s and Mr. Lopez’s testimony fairs no better than his first. In his testimony, Mr.
Lopez appears to note that on the night when the weapons were loaded into Plaintiff’s
truck, Chad Howard and Kyle McCartney were the only individuals present. (Doc. #35-3
at 4). However, when Detective Cole inquired “[i]n whose car,” Mr. Lopez replied that “[i]t
was ah Adam, Adam’s truck.” (Doc. #35-3 at 5). When Detective Cole inquired further
by stating, “Adam’s truck,” Mr. Lopez replied, “[a]h yeah it was Adam.” (Doc. #35-3 at 5).
Therefore, Mr. Lopez’s testimony is unclear as to whether Plaintiff was driving the truck
that was being loaded or whether Chad Howard and Kyle McCartney were simply using
Plaintiff’s truck. But as Defendants correctly note, “arresting officers, in deciding whether
probable cause exists, are not required to sift through conflicting evidence or resolve
12
issues of credibility, so long as the totality of the circumstances present a sufficient basis
for believing that an offense has been committed.” Dahl v. Holley, 213 F.3d 1228, 1234
(11th Cir. 2002).
Here, the fact remains that an admitted active participant in the
underlying crime, Mr. Lopez, identified that, at the least, Plaintiff’s vehicle was involved.
When this fact is added to Mr. Beland’s identification of Plaintiff as the “Adam” he
witnessed assist Mr. Lopez with loading weapons into the truck, it is clear that these facts
aided Detective Cole, based on the totality of the circumstances, in concluding that
Plaintiff was involved in the underlying crime.
Plaintiff’s third argument contends that because Plaintiff’s photo in the six-person
lineup did not exhibit his shoulders, while the other five photos did, Plaintiff’s photo was
“highly suggestive,” and the lineup was therefore biased. In support, Plaintiff relies on the
“two-part test developed for determining the constitutionality of the admission into
evidence of photographic array identifications” set out in Neil v. Biggers, 409 U.S. 188
(1972). (Doc. #39 at 8, ¶ 27). But the Court believes this reliance might be misplaced.
Although the Eleventh Circuit has not addressed this issue, the Sixth Circuit
recently clarified, albeit in a non-binding, unpublished opinion, that Biggers “control[s]
whether a photo lineup and witness identification can be used as evidence at trial.”
Legenzoff v. Steckel, 564 F. App'x 136, 142 n.3 (6th Cir. 2014) (emphasis in original).
Similar to the instant case, “[t]he inquiry [in Legenzoff], however, focuse[d] on . . . probable
cause[,]” and “evidence that supports probable cause for an arrest is not always
admissible at trial.” Id. (citing Illinois v. Gates, 462 U.S. 213, 256 (1983)). In following four
other circuits, the Sixth Circuit did “not find that it is necessary for [their] [] analysis to
formally incorporate into [their] probable cause discussion the Bigger’s framework, which
13
is commonly employed for the admissibility of witness identifications at trial.” Id. (citing
Robinson v. Cook, 706 F.3d 25, 34 (1st Cir. 2013); Stansbury v. Wertman, 721 F.3d 84,
91 (2nd Cir. 2013); Phillips v. Allen, 668 F.3d 912, 914–15 (7th Cir. 2012); Good v. Curtis,
601 F.3d 393, 398 (5th Cir. 2010)).
But the Sixth Circuit quickly noted that it was not “turning a blind eye to potentially
suggestive police procedures.” Id. Rather, the Sixth Circuit stated that “[t]hese are still
‘relevant considerations in the totality-of-the-circumstances analysis that has traditionally
guided probable cause determinations’ and [courts should] consider them.” Id. (quoting
Gates, 462 U.S. at 233). As such, the Sixth Circuit noted that courts should focus on
“whether it was clearly established that a reasonable officer would not find probable cause
where [a witness] identified [the suspect] using a possible suggestive photo array.” Id. at
141.
Regardless of whether the Court utilizes the Legenzoff Court’s traditional totalityof-the-circumstances probable cause analysis or the higher standard set out in Biggers,
the Court finds that the lineup was not suggestive, and therefore does not itself raise an
issue of material fact that would prevent the Court from granting summary judgment to
Detective Cole on the basis of qualified immunity. But because Plaintiff responded to
Defendants’ Motion utilizing the higher standard set out in Biggers, the Court will address
Plaintiff’s argument under that framework. As noted above, in Biggers, the Supreme Court
set out a “two-step analysis in assessing the constitutionality of a trial court’s decision to
admit out-of-court identifications.” Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988).
Under the first step, courts “must determine whether the original identification procedure
was unduly suggestive.”
Id. (citations omitted). Instead of providing case law and
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significant analysis for this first step before continuing on to the second step, Plaintiff
provides a single conclusory sentence, stating “the photo of [Plaintiff] in the alleged photo
line up [sic] was zoomed n [sic] compared to the other photos, making it highly
suggestive.” (Doc. #39 at 8, ¶ 27).
Although Plaintiff quickly concludes that Plaintiff’s photo was “highly suggestive,”
and that the Court should therefore progress to Biggers’ second step, the Court
disagrees.
A review of the lineup in question clearly indicates that each of the six
individuals have very similar facial features and haircuts. (Doc. #35-2). While Plaintiff is
correct that his picture is slightly “zoomed in” compared to the others, this sole
discrepancy is negligible at best. (Doc. #35-2). While no courts in the Eleventh Circuit
have analyzed an objection to a lineup over a suspect’s picture being “zoomed in” when
compared to the others, this objection has been addressed and rejected by other courts.
For example, in U.S. v. James, the defendant claimed that the “array [was] unnecessarily
suggestive because only two of the photos [were] ‘close-ups,’ one depicting the defendant
and the other depicting a man with a conspicuous scar on his right cheek.” 834 F.Supp.2d
1, 3 (D. Mass. 2011).
In rejecting the defendant’s objection, the James Court noted that such an
objection “grasps at straws.” Id. As the court explained, “[a]lthough the defendant is
somewhat closer to the camera than several of the other men photographed, the features
of all photographed are equally discernable.” Id. Here, just as in James, Plaintiff “offer[s]
no legal precedent or common-sense reason to support the proposition that a moderately
zoomed-in photo of a suspect would be suggestive of that suspect’s guilt.” Id.; see also
United States v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994) (“While it is true that the
15
photograph of [the suspect] is slightly brighter and slightly more close-up than the others,
we find that these differences did not render the array suggestive.”). Consequently, the
Court finds that the fact that Plaintiff’s photograph in the lineup was slightly zoomed-in
does not make the photographic lineup highly suggestive. Because the Court finds that
plaintiff’s photograph in the lineup was not suggestive, there is no need to progress to the
second step of the Biggers analysis. See Cikora, 840 F.2d at 897 (noting that when the
district court concludes “that the photo array was not impermissibly suggestive, [the court]
need not reach the five-factor [portion of the Biggers] test”).
Plaintiff’s next argument disputes the credibility of Mr. Beland’s testimony. As
noted above, Plaintiff first points the Court’s attention to the fact that it was dark outside.
But the Court does not find this to be a credible basis for discrediting Mr. Beland’s
testimony presented. In his testimony, Mr. Beland was able to identify Chad Howard’s
vehicle sitting down the street, serving as a look-out while the guns were being loaded.
(Doc. #38 at 5:12-5:54; #35-1 at 5). Therefore, it is doubtful that it was too dark for Mr.
Beland to become familiar with an individual’s face who was standing a mere few feet
away from him when he was able to identify a vehicle located a significantly further
distance away. Second, Plaintiff notes that Mr. Beland admitted to being “rushed away
by Mr. Lopez.” While it might be true that Mr. Lopez “rushed” Mr. Beland away, Mr. Beland
made contact long enough with the individuals loading the truck to ascertain their names
and entertain a conversation. Thus, Mr. Beland seemingly had enough time to observe
the events he testified to.
Third, Plaintiff notes that during his sworn testimony, Mr. Beland was not aware
whether Adam was the real name of the individual that he spoke to. While this appears
16
to be true, it does not serve in any fashion to discredit Mr. Beland’s testimony due to the
fact that Mr. Beland was able to identify Plaintiff from a lineup. As such, while Mr. Beland
might have been unsure whether the individual he encountered was actually named
Adam, he confirmed the individual’s name was in fact Adam when he later identified
Plaintiff in the lineup. Finally, Plaintiff correctly notes that Mr. Beland was unable to
identify “Adam” from the first six photos that Detective Cole showed him during his sworn
interview. But this fact does not discredit Mr. Beland’s testimony. Mr. Beland was not
able to identify Plaintiff from the first six photos because Plaintiff’s photo was not included
in those first six photos shown to him. And Plaintiff fails to cite any support for his
contention that if a witness cannot identify a person of interest in the first six photos shown
to him then the witness’ testimony is not credible. Therefore, the Court declines to pioneer
Plaintiff’s crafted contention.
Finally, Plaintiff presents the testimony of his expert witness, Kevin Kozak, who
opined that Detective Cole did not have sufficient facts to establish probable cause for
Plaintiff’s arrest. (Doc. #39-8). But as Defendants correctly note, experts are disqualified
from providing an opinion as to whether Detective Cole lacked probable cause to arrest
Plaintiff. See Kobie v. Fifthian, 2:12-CV-98-FTM-29DNF, 2014 WL 1652421, at *9 (M.D.
Fla. Apr. 23, 2014) (ruling that at trial, an expert witness “may not state his opinion that
[the] [d]efendant lacked probable cause to arrest [the] [p]laintiff and search his business”).
Therefore, because the Court has rejected each of Plaintiff’s previous arguments, Mr.
Kozak’s testimony by itself fails to assist Plaintiff in meeting his burden of illustrating a
genuine issue of material fact. See Avirgan, 932 F.2d at 1577 (“A nonmoving party,
opposing a motion for summary judgment supported by affidavits cannot meet the burden
17
of coming forth with relevant competent evidence by simply relying on legal conclusions
or evidence which would be inadmissible at trial.”).
Based on the foregoing, the Court finds that Detective Cole had actual probable
cause to arrest Plaintiff. Detective Cole had sufficient knowledge based on the testimony
of both Mr. Beland and Mr. Lopez to “warrant a reasonable belief that [Plaintiff] had
committed . . . a crime.” Atterbury, 322 F. App’x at 727 (internal quotations and citations
omitted). Plaintiff’s comprehensive arguments, which the Court rejected above, fail to
illustrate that there was not “a probability or substantial chance of criminal activity.” Id.
Based on the evidence presented, even when viewed in the light most favorable to
Plaintiff, it is clear that Detective Cole maintained more than “mere suspicion.”
Id.
Consequently, Detective Cole is entitled to qualified immunity with regard to Counts 4 and
5.
As such, the Court grants summary judgment in favor of Defendant Thomas Cole
on Counts 4 and 5 of Plaintiff’s Amended Complaint.
C. Counts 1 and 2 against Defendant Mike Scott
Defendants next seek summary judgment for Counts 1 and 2 on the basis that they
fail as a matter of law. (Doc. #35 at 18). As Defendants explain, Plaintiff brings Counts 1
and 2, alleging false arrest and false imprisonment, respectively, against Sheriff Mike
Scott in his official capacity. Because these Counts are brought against Sheriff Scott in
his official capacity, Defendants aver that Plaintiff is required to, but has failed to,
“establish a direct causal connection between a custom policy, practice, or procedure and
the alleged constitutional deprivation.” (Doc. #35 at 18).
Defendants recognize that
Plaintiff attempts to establish this causal connection by alleging that the LCSO “had a
18
‘long standing de facto policy of making arrests without proper investigation of the facts
of a case and/or obtaining arrest warrants for citizens’ without probable or arguable
cause.” (Doc. #38 at 17 (citing Doc. #16 at 3, ¶ 12)).
But Defendants dispute this contention by noting that “the undisputed record
evidence establishes that there was no constitutional violation, and, even if there was,
there is no record evidence of a policy, practice, or procedure that could have caused the
alleged violation.” (Doc. #35 at 17-18). Defendants assert that Plaintiff must establish
the de facto policy “through evidence of the ‘repeated acts of the final policymaker of the
entity.’” (Doc. #35 at 18 (citing Doc. #15 at 5)). While Defendants note that Plaintiff has
“allege[d] that eight other individuals were affected by the alleged de facto policy,”
Defendants aver that “Plaintiff has simply searched the federal docket for other cases
alleging claims for false arrest or false imprisonment against Sheriff Scott.” (Doc. #35 at
18) (emphasis in original). Defendants argue that these search results, however, “are . .
. not evidence of a de facto policy” that would allow Plaintiff’s Counts 1 and 2 to survive
as a matter of law. (Doc. #35 at 18).
In his Response, Plaintiff asserts Sheriff Scott’s “defacto [sic] policy of allowing his
deputies and detectives to extend probable cause for up to five days on the issue of
possession of stolen property, burglary[,] and possession of burglary tools is contrary to
Federal and Florida law and violates Plaintiff’s [c]ivil [r]ights guaranteed by the U.S.
Constitution and Florida Constitution.” (Doc. #39 at 14, ¶ 41). In support, Plaintiff avers
that “[b]y [Sheriff Scott] failing to give guidelines or training on when probable cause no
longer attaches to stolen merchandise or on how to apply probable cause generally,
[Sheriff Scott] has perpetuated and allowed officers in his department to create and utilize
19
this defacto [sic] policy[,] . . . which is common practice in the [LCSO].” (Doc. #39 at 14,
¶ 41) (internal citations omitted). It appears that Plaintiff principally relies on Detective
Cole’s deposition testimony for this proposition.
As Plaintiff explains, in his deposition, Detective Cole testified “that it was common
practice for the policy of extending probable cause for up to five days to be used by
detectives and officers and therefore widespread in its application.” (Doc. #39 at 14, ¶
41). Based on this testimony, Plaintiff asserts that “[t]he fact that this was a defacto [sic]
policy in common use by the [LCSO] at the time of Plaintiff’s arrest, as [Detective Cole]
testified to, allowed [Detective Cole] to wrongfully arrest [] Plaintiff and there is a clear
casual effect of the use of the policy and the deprivation of [] Plaintiff’s constitutional
rights.” (Doc. #39 at 14, ¶ 42). Plaintiff fails to cite any case law supporting this assertion,
and instead continues by noting that had this de facto policy “not [been] in place,
[Detective Cole] would have been required to further investigate the matter and would
have easily discovered that [] Plaintiff was not in fact the person who helped load the
weapons into the pickup truck and that it was not [] Plaintiff’s pickup truck which was in
fact used.” (Doc. #39 at 15, ¶ 42).
Because Plaintiff fails to specify in his Amended Complaint whether his Counts
against Sheriff Scott are against him in his individual or official capacity, the Court will
address both. The Eleventh Circuit has been clear that “[t]he standard by which a
supervisor is held in her individual capacity for the actions of a subordinate is extremely
rigorous.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1308 (11th Cir. 2009) (quoting Braddy
v. Florida Dept. of Labor and Employment Sec., 133 F.3d 797, 802 (11th Cir.1998)).
“Supervisors can be held personally liable when either (1) the supervisor personally
20
participates in the alleged constitutional violation, or (2) there is a causal connection
between the actions of the supervisor and the alleged constitutional violation.” Id. (citing
Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988)). However, “[t]he central tenet in both
offenses is a constitutional or statutory violation. . . .” Id.
Here, based on the extensive analysis conducted above, the Court has found that
there has been no constitutional violation. Rather, Detective Cole maintained probable
cause when he arrested Plaintiff, thereby preventing Plaintiff from pursuing his § 1983
claims against Detective Cole. And where a plaintiff’s underlying § 1983 claims fail, the
plaintiff’s claims under a theory of supervisory liability also fail. See Hicks v. Moore, 422
F.3d 1246, 1253 (11th Cir. 2005) (“Because we conclude that Plaintiff's constitutional
rights were not violated . . . Plaintiff cannot maintain a § 1983 action for supervisory liability
against [the] Sheriff.”). Therefore, Plaintiff’s claims against Sheriff Scott in his individual
capacity fail.
Indeed, “[a] claim asserted against an individual in his or her capacity is, in reality,
a suit against the entity that employs the individual.” Mann, 588 F.3d at 1309 (citing
Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999)). But when a court finds “no
support for any of the federal claims being made against [the defendants] in their
individual capacities[,]” “there is no basis and no support for the similar claims made
against them in their official capacities.”
Id.
Therefore, because there was no
constitutional violation to support Counts 1 and 2 against Sheriff Scott in his individual
capacity, Plaintiff’s Counts 1 and 2 against Sheriff Scott in his official capacity also fail.
Consequently, the Court grants summary judgment in favor of Defendant Mike
Scott on Counts 1 and 2 of Plaintiff’s Amended Complaint.
21
D. Counts 3 and 6 against Defendants Mike Scott and Thomas Cole
Defendants next seek summary judgment as to Counts 3 and 6, alleging
negligence, asserted against Sheriff Scott and Detective Cole on the basis that there is
no duty to support these claims, and, as a result, these claims fail as a matter of law.
(Doc. #35 at 19). In support, Defendants note that “Plaintiff alleges that Defendants owed
a duty to the general public to properly investigate and enforce the laws of the United
States and Florida and not violate the rights of the general public in doing so.” (Doc. #35
at 19 (citing Doc. #16 at 11, 20)). But “[a]s a threshold matter,” Defendants aver that
“Plaintiff has not alleged a duty that was owed specifically to him.” (Doc. #35 at 19). And
as Defendants explain by citing a case from our sister district, “[d]uties owed by a
government entity to the general public do not create a duty of care owed to specific
individuals.” (Doc. #35 at 19 (citing Smith v. City of Plantation, 19 F.Supp.2d 1323, 1331
(S.D. Fla. 1998)). Therefore, Defendants contend that “[w]here there is no duty, there
can be no breach, and Plaintiff’s claims for negligence fail as a matter of law.” (Doc. #35
at 19).
In the alternative, however, Defendants argue that should the Court find “a duty
owed to Plaintiff individually, Plaintiff’s claims are still fatally flawed.” (Doc. #35 at 19).
First, Defendants note that it appears that both Counts 3 and 6 are plead against Sheriff
Scott and Detective Cole, respectively, in their individual capacities. (Doc. #35 at 19).
But as Defendants explain, Fla. Stat. § 768.28(9)(a) exempts Sheriff Scott and Detective
Cole from liability in tort for all actions other than those “either outside the scope of their
22
employment, or [] within the scope of their employment and [] performed in bad faith or
malicious purpose or with wanton and willful disregard for human rights.” (Doc. #35 at
20) (citations and brackets omitted). According to Defendants, because “Plaintiff has
failed to even allege that Defendants acted in bad faith, or with a malicious purpose, or in
wanton or willful disregard for human rights,” Plaintiff’s negligence claims against
Defendants in their individual capacities fail. (Doc. #35 at 20) (emphasis in original).
On the chance that Plaintiff is asserting Counts 3 and 6 against Defendants in their
official capacities, Defendants note that “the Eleventh Circuit has recognized that, under
Florida law, there is no common law duty of care owed to an individual with respect to the
discretionary judgmental power granted a police officer . . . to enforce the law.” (Doc. #35
at 21) (citations and quotations omitted). Defendants also note that “[t]he power of a
police officer to choose whether to make an arrest or enforce the law is a discretionary
function.” (Doc. #35 at 21) (citations and quotations omitted). Therefore, Defendants
aver that in their official capacities, they “cannot be held liable under Florida law for the
discretionary decision to arrest Plaintiff.” (Doc. #35 at 21).
In response, Plaintiff begins by noting that, although it is not clarified in his
Amended Complaint, Plaintiff’s Counts are brought against Sheriff in his official capacity
and not in his individual capacity. (Doc. #39 at 16, ¶ 45). In capricious fashion, Plaintiff
goes on to state that Count 3 and Count 6 “are pled in the alternative, if the Court finds
that [Sheriff Scott] is negligent for the acts of [Detective Cole], than [sic] the Court would
have to dismiss the negligent [sic] count against [Detective Cole], but since this is pled in
the alternative, if the Court found negligence on the part of [Detective Cole] because he
acted in bad faith, with a malicious purpose or with wanton and willful disregard for human
23
rights and [Sheriff Scott] could not be held liable for that negligence, then the count for
negligence against [Detective Cole] would stand against him in accordance with [Fla.
Stat.] § 768.28(9)(a).” (Doc. #39 at 16, ¶ 46). Plaintiff continues by asserting “[t]here has
never been an allegation by [Plaintiff] that [Detective Cole] acted in bad faith, with a
malicious purpose or with wanton and willful disregard for human rights, only that he
conducted an extremely poor investigation, followed the common practices which were
the defacto [sic] policies of [Sheriff Scott] and failed to have probable cause or arguable
probable cause.” (Doc. #39 at 16, ¶ 47).
Next, Plaintiff cites an Eleventh Circuit case and several Florida state cases in
support of an argument that Detective Cole’s “failure to properly investigate the underlying
action created a zone of risk that innocent persons could be arrested for something they
had nothing to do with.” (Doc. #39 at 17, ¶ 48). As Plaintiff sees it, “Defendants mistake
the issue in this action [because] . . . [i]t is the operation process which detectives as a
whole and in this case it is how [Detective Cole] came to the conclusion that there was
probable cause to make the arrest in the first place.” Plaintiff asserts that “[i]t is an
operational function to insure [sic] that the detectives and deputies are properly trained to
conduct a criminal investigation or to determine if there is probable cause or arguable
probable cause that is at issue.” (Doc. #39 at 17, ¶ 49). Plaintiff seemingly supports this
argument by noting several investigation tactics that he believes should have been
conducted, but were not. (Doc. #39 at 17, ¶ 49).
At this point, the Court declines to recite any more of Plaintiff’s Response because
it appears that he is arguing as if he pled counts for negligent training and/or negligent
supervision. But this is not what is alleged in his Amended Complaint. A review of the
24
Amended Complaint shows that the substantive portions of both Counts 3 and 6 are
identical3, and state, in full:
At that time and place, the Defendants negligently investigated a
burglary of a home and in the course of the investigation failed to properly
identify a suspect even though they had in their possession evidence and
information that the Plaintiff was not involved in any crime which they were
investigating and negligently/wrongfully arrested the Plaintiff and held him
in jail for an extended period of time for no reason.
(Doc. #16 at 11-12, ¶ 40; 20, ¶ 71). As exhibited, Plaintiff failed to make a single allegation
regarding negligent training or negligent supervision. Instead, Plaintiff makes allegations
related to Defendants “negligently investigat[ing]” and “negligently arrest[ing]” him.
The Eleventh Circuit has noted that the federal pleading “standard . . . does not
afford plaintiffs with an opportunity to raise new claims at the summary judgment stage.”
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004) (emphasis
added). Instead, “[a]t the summary judgment stage, the proper procedure for plaintiffs to
assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a).”
Id. at 1315. “A plaintiff may not amend her complaint through argument in a brief opposing
summary judgment.” Id. (citation omitted). Plaintiff’s opportunity to amend his Amended
Complaint in compliance with the Federal Rules of Civil Procedure has expired. The
Court will disregard any argument regarding negligent training and supervision and will
focus on the claims that Plaintiff did assert in his Amended Complaint for negligent
investigation and negligent arrest.
3
The Court notes that the only difference between the substantive portions of Counts 3 and 6 is that
paragraph 40 for Count 3 states “Defendants,” while paragraph 71 for Count 6 states “Defendant, Cole.”
(Doc. #16 at 11-12, ¶ 40; 20, ¶ 71).
25
Although Plaintiff attempts to concede that Count 3 against Sheriff Scott is against
him in his official capacity (Doc. #39 at 16, ¶ 45), Plaintiff failed to specify this capacity in
his Amended Complaint. Therefore, the Court will analyze Plaintiff’s negligence claim
against Sheriff Scott in both his official and individual capacities.
It is no surprise that in
order “[t]o state a claim for negligence under Florida law, a plaintiff must allege that the
defendant owed the plaintiff a duty of care, that the defendant breached that duty, and
that the breach caused the plaintiff to suffer damages.” Albra v. City of Fort Lauderdale,
232 Fed. Appx. 885, 888 (11th Cir. 2007) (citations omitted).
Plaintiffs should be aware, however, that “[t]he Florida Supreme Court has
recognized that there is no ‘common law duty of care owed to an individual with respect
to the discretionary judgmental power granted a police officer to enforce the law.’” Id.
(quoting Everton v. Willard, 468 So. 2d 936, 938 (Fla. 1985) (ellipses omitted). Put
differently, “[t]he responsibility to enforce the laws for the good of the public cannot
engender a duty to act with care toward any one individual, unless an official assumes a
special duty with regard to that person.” Pollock v. Florida Dep't of Highway Patrol, 882
So. 2d 928, 935 (Fla. 2004).
Here, Plaintiff asserts that he “clearly states in [p]aragraph 39 of the Amended
Complaint that [Sheriff Scott] had a specific duty to [Plaintiff] and not just to the general
public, it is pled twice in the same paragraph.” (Doc. #39 at 16, ¶ 44). But a review of
paragraph 39 indicates that this is not the case. When read in full, it appears that Plaintiff
alleges Sheriff Scott owes a general duty to all citizens:
39. [Sheriff Scott] had a duty to the Residents of Lee County Florida,
the citizens of Florida, the Citizens of the United States of America and
guests visiting or traveling through Lee County, Florida, including but not
limited to [Plaintiff], to properly investigate and enforce the Laws of the
26
United States of America and the State of Florida and in doing so, not violate
the rights of the Residents of Lee County, Florida, the Citizens of Florida,
the citizens of United States of America and guests visiting or traveling
through Lee County, Florida, including but not limited to the Plaintiff.
(Doc. #16 at 11, ¶ 39). As exhibited, Plaintiff alleges that Sheriff Scott had a duty to all
residents of Lee County, all citizens of Florida, and all citizens of the United States, which
includes, “but [is] not limited to,” Plaintiff as a member of each of those three groups.
In other words, Plaintiff did not allege that Sheriff Scott owed a specific or special
duty to him, but instead to three groups that Plaintiff is a member of. Plaintiff also failed
to provide any analysis in his Response regarding why Sheriff Scott owed him a specific
or special duty. As the Eleventh Circuit noted, however, a general duty allegation will not
support a negligence claim against a police officer for their discretionary power. Albra,
232 Fed. Appx. at 888. And “[t]he power of a police officer to choose whether to make an
arrest or enforce the law is a discretionary function.” Id. (citation omitted). Therefore,
Plaintiff’s negligence claim against Sheriff Scott in his official capacity fails on this basis
alone.
Even if the Court looked past Plaintiff’s general duty allegation and assumed
Plaintiff’s negligence claim against Sheriff Scott was against him in his individual capacity,
Plaintiff’s claim fails as a matter of law. Fla. Stat. § 768.28(9)(a) provides sovereign
immunity to Sheriff Scott against all tort actions unless Sheriff Scott “acted in bad faith or
with malicious purpose or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.” Nowhere in Plaintiff’s Amended Complaint is it alleged that
Sheriff Scott acted in bad faith or with malicious purpose or in a manner exhibiting wanton
and will disregard of human rights, safety, or property.
27
(Doc. #16 at 1-3, 11-12).
Therefore, Sheriff Scott maintains sovereign immunity against Plaintiff’s negligence count
asserted against him in his individual capacity.
In addition, Plaintiff’s negligence claim against Detective Cole in his official
capacity also fails a matter of law. Unlike the duty argument regarding Sheriff Scott, in
his Response, Plaintiff fails to argue that he alleged that Detective Cole owed him a
specific duty. And a review of the Amended Complaint reveals that Plaintiff used the
exact same4 duty paragraph in his negligence claim against Detective Cole as he used in
his negligence claim against Sheriff Scott, which is quoted above. Cf. (Doc. #16 at 11, ¶
39 with 20, ¶ 70). But as noted, a general duty allegation will not support a negligence
claim against a police officer for performing his discretionary functions. See Albra, 232
Fed. Appx. at 888. Therefore, because Plaintiff brought his negligence claim against
Detective Cole for negligently arresting and investigating him, both of which are
discretionary functions, Plaintiff’s negligence claim against Detective Cole in his official
capacity fails as a matter of law.
Finally, assuming Plaintiff’s negligence claim against Detective Cole is brought
against him in his individual capacity, Plaintiff’s claim also fails. As noted above, under
Fla. Stat. § 768.28(9)(a), police officers maintain sovereign immunity against personal
liability in tort claims unless the officers conduct certain actions. In his Response, Plaintiff
admits that “[t]here has never been an allegation by [Plaintiff] that [Detective Cole] acted
in bad faith, with a malicious purpose or with wanton and will disregard for human rights.
. . .” (Doc. #39 at 16, ¶ 47). Consequently, because Plaintiff concedes that he has never
The Court notes that the only difference between paragraphs 39 and 70 in Plaintiff’s Amended Complaint
is that in paragraph 39 Plaintiff alleged “[t]he Defendant, Sheriff, had a duty” (Doc. #16 at 11, ¶ 39), whereas
in paragraph 70, Plaintiff alleges “[t]he Defendant, Cole, had a duty. . . .” (Doc. #16 at 20, ¶ 70).
4
28
alleged that Detective Cole conducted any actions that would exempt him from sovereign
immunity under § 768.28(9)(a), Plaintiff’s negligence claim against Detective Cole in his
individual capacity fails as a matter of law.
Based on the foregoing, the Court grants summary judgment on Counts 3 and 6 in
favor of Defendants Mike Scott and Thomas Cole.
Accordingly, it is now
ORDERED:
Defendants' Motion for Summary Judgment (Doc. #35) is GRANTED as to Counts
1, 2, 3, 4, 5, and 6. Moreover, Counts 7, 8, and 9 are DISMISSED WITH PREJUDICE.
All pending motions are DENIED AS MOOT. The Clerk is directed to CLOSE this action
and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida, this 27th day of October, 2014.
Copies: All Parties of Record
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