Hayward v. Lee County Sheriff's Office et al

Filing 52

OPINION AND ORDER granting in part and denying in part 38 defendants' Motion to Dismiss. Counts I and III are dismissed with prejudice; the Amended Motion to Dismiss is otherwise denied. Defendants shall file a responsive pleading to plaintiff's Complaint within fourteen (14) days of the date of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 6/30/2017. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AHMAD HAYWARD,
Plaintiff,
v.

Case No: 2:14-cv-244-FtM-29MRM

LEE COUNTY SHERIFF’S OFFICE,
RYAN LOWE, KEITH DUNN, and
RICH SNYDER,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendants’
Amended Motion to Dismiss (Doc. #38) filed on December 9, 2016.
Plaintiff filed a Reply 1 to Defendants’ Amended Motion to Dismiss
(Doc. #44) on January 13, 2017.

On January 19, 2017, with leave of

Court, Defendants filed a Reply to Response to Amended Motion to
Dismiss.

(Doc.

#50.)

For the reasons set

forth below, the

defendants’ Amended Motion to Dismiss is granted in part and denied
in part.
I.
The relevant facts, according to the Complaint, are as follows:
On February 13, 2009, plaintiff, accompanied by a friend, Patrick
Towns (Towns), drove to Fort Myers Beach to pick up money owed to

1

While plaintiff titled this a Reply, it is his initial
response to defendants’ Amended Motion to Dismiss.

an acquaintance of plaintiff from an unknown person.
8-13.)

(Doc. #1, ¶¶

Plaintiff was unaware that the Lee County Sheriff’s Office

was working with a confidential informant, and the meeting was part
of an anticipated drug deal.
the designated
anyone.

(Id. ¶¶ 14-17.)

Plaintiff arrived at

location, but left without making contact with

(Id. ¶ 16.)

Defendant officers stopped and detained

plaintiff, even though they did not have a physical description of
plaintiff and his vehicle did not match the description of the
anticipated drug supplier’s vehicle.

(Id. ¶¶ 22-23.)

When asked

by officers, plaintiff denied having drugs in the vehicle.
24-25.)

(Id. ¶¶

A K-9 search of the vehicle did not disclose any drugs.

(Id. ¶¶ 26-27.)
Despite not locating any drugs on plaintiff’s person, Towns’
person, or in the vehicle, defendants took Hayward and Towns into
custody and seized the vehicle. (Id. ¶¶ 27, 29-30.) When questioned
at the police station, plaintiff denied any involvement with drugs
and invoked his right to counsel.

(Id. ¶¶ 31-32.)

of the vehicle again did not reveal any drugs.

A second search

(Id. ¶ 33.)

Towns denied knowledge of any drugs when initially questioned
at the station by defendants.

(Id. at ¶ 34.)

Later, however, in

exchange for immunity, Towns admitted that his previous statement
was false and confessed that drugs were hidden in the headliner of
plaintiff’s vehicle.

(Id. ¶¶ 35-37.)

Acting on this information,

defendants searched the vehicle a third time and located heroin in
2

the headliner.

(Id. ¶ 38.)

Towns was then released from custody.

(Id. ¶ 39.)
Plaintiff was charged with “conspiracy to traffic, traffic in
heroin, public order crime, and driving while license was suspended
or revoked.”

(Id. ¶ 40.)

Towns subsequently signed a notarized

statement stating that he had previously lied to the defendants,
that the drugs found in the vehicle in fact belonged to him, and
that plaintiff had no knowledge of the drugs. (Id. ¶ 41.) Plaintiff
was acquitted by a jury of the drug trafficking charge on August
12, 2010.

(Id. ¶ 43.)

On May 5, 2014, 2 plaintiff filed this federal action asserting
claims against defendants Ryan Lowe (Lowe), Keith Dunn (Dunn), Rich
Snyder (Snyder) for illegal search (Count I), illegal seizure (Count
II), false arrest (Count III), and civil conspiracy (Count IV), and
seeking to impose respondeat superior liability on Lee County
Sheriff’s Department (Count V).

(Id. ¶¶ 46-63.)

Count I alleges

that defendants stopped the vehicle and searched plaintiff and the
vehicle in violation of the Fourth Amendment.

(Id. ¶¶ 46-49.)

Count II alleges that defendants illegally seized plaintiff in
violation of the Fourth Amendment by taking plaintiff into custody
when the facts did not justify such a seizure.

2

(Id. ¶¶ 50-53.)

Due to a monthly payment arrangement set forth for plaintiff
to pay the full filing fee (Doc. #15), summonses were not issued
until September 2016 (Docs. ##22-25), and defendants waived service
of the summonses in October 2016 (Docs. ##26-29).
3

Count III alleges that defendants violated Florida law by arresting
plaintiff based on false pretenses and without just cause or exigent
circumstances.
conspired

to

(Id. ¶¶ 54-56.)
violate

Count IV alleges that defendants

plaintiff’s

state

and

federal

rights

by

stopping, searching, seizing, and falsely arresting plaintiff. (Id.
¶¶ 57-60.)

Count V alleges that the Lee County Sheriff’s Office is

liable under respondeat superior for the actions of the deputies.
(Id. ¶¶ 61-63.)
Defendants

move

to

dismiss

plaintiff’s

Complaint

in

its

entirety as barred by the applicable statutes of limitations. (Doc.
#38.)

Plaintiff responds that his claims are not time-barred

because the statutes of limitations did not begin to run until he
was acquitted in the state court jury trial.

(Doc. #44, ¶ 5.)

Alternatively, plaintiff argues that equitable tolling saves his
otherwise untimely claims.

(Id. ¶ 7.)
II.

Generally, the existence of an affirmative defense will not
support a motion to dismiss because a plaintiff is not required to
negate an affirmative defense in his complaint.

La Grasta v. First

Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

A complaint

may be dismissed, however, when the existence of an affirmative
defense “clearly appears on the face of the complaint.”

Quiller v.

Baraclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984).
See also La Grasta, 358 F.3d at 845 (“[A] Rule 12(b)(6) dismissal
4

on statute of limitations grounds is appropriate only if it is
‘apparent from the face of the complaint’ that the claim is timebarred” (quoting Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1251
(11th Cir. 2003)); Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir.
2008)(same).

“At the motion-to-dismiss stage, a complaint may be

dismissed on the basis of a statute-of-limitations defense only if
it appears beyond a doubt that Plaintiffs can prove no set of facts
that toll the statute.”

Tello v. Dean Witter Reynolds, Inc., 410

F.3d 1275, 1288 n.13 (11th Cir. 2005).
Because the Plaintiff is proceeding pro se, the Court reads
his pleadings liberally and adopts a less stringent standard than
for one drafted by an attorney. Jones v. Fla. Parole Comm’n, 787
F.3d 1105, 1107 (11th Cir. 2015).

“This liberal construction,

however, does not give a court license to serve as de facto counsel
for a party, or to rewrite an otherwise deficient pleading in order
to sustain an action.”

Hickman v. Hickman, 563 F. App’x 742, 743

(11th Cir. 2014) (internal quotation marks and citations omitted).
III.
It appears that Counts I and II allege violations of the Fourth
Amendment pursuant to 42 U.S.C. § 1983. 3 (Doc. #1, pp. 9-10.)

3

Count

Count I alleges that defendants stopped the vehicle and
searched plaintiff and the vehicle in violation of the Fourth
Amendment, (Doc. #1, p. 9); Count II alleges that defendants
illegally seized plaintiff in violation of the Fourth Amendment by
taking plaintiff into custody with the required probable cause, (id.
at 9-10).
5

III alleges a state law claim for false arrest. (Id. at 10.)

Count

IV appears to allege a civil conspiracy under § 1983 to violate
plaintiff’s

state

and

federal

rights

by

seizing, and falsely arresting plaintiff.
alleges

that

the

Lee

County

Sheriff’s

stopping,

searching,

(Id. at 11.) Count V

Office

is

liable

under

respondeat superior for the actions of the deputies, apparently
under § 1983.

(Id. at 11-12.)

A. Length of Statutes of Limitations
The parties agree that the applicable statutes of limitations
period for each of Plaintiff’s causes of actions is four years.
(Doc. #38, p. 5; Doc. #44, ¶ 4.)

The Court agrees.

The statute of limitations for a § 1983 cause of action is that
“which the State provides for personal-injury torts”.
Kato,

549

U.S.

384,

387

(2007)

(citation

Wallace v.

omitted).

“All

constitutional claims brought under § 1983 are tort actions and,
thus, are subject to the statute of limitations governing personal
injury actions in the state where the § 1983 action has been
brought.”

Boyd v. Warden, 856 F.3d 853, 872 (11th Cir. 2017).

See

also DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir. 2011); McNair
v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008).

In Florida, the

statute of limitations for personal injury actions is four years.
Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (“Florida’s
four-year

statute

of

limitations

applies

to

such

claims

of

deprivations of rights under 42 U.S.C. [§] 1983 . . . .” (citation
6

omitted)).

The statute of limitations period for a Florida state

law claim of false arrest is also four years.
95.11(3)(o);

Fla. Stat. §

Harris v. Goderick, 608 F. App’x 760, 763–64 (11th

Cir. 2015).
B. Date(s) of Accrual
While

state

law

governs

the

length

of

the

statute

of

limitations in section 1983 cases, federal law determines when the
section 1983 cause of action accrues i.e., when the statute of
limitation begins to run.

Neelley v. Walker, --- F. App’x ----,

No. 16-11720, 2017 WL 359647, at *2 (11th Cir. Jan. 25, 2017)
(citation omitted).

“Under federal law, which governs the date of

accrual, the statute of limitations begins to run when ‘the facts
which would support a cause of action are apparent or should be
apparent to a person with a reasonably prudent regard for his
rights.’” Betts v. Hall, --- F. App’x ----, No. 15-12872, 2017 WL
526055,

at

*2

(11th

Cir.

Feb.

9,

2017)

(quoting

Mullinax

v.

McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)).
Defendants assert that the statutes of limitations accrued and
began to run for plaintiff’s claims of illegal search, illegal
seizure, false arrest, and civil conspiracy on February 13, 2009 –
the date of the arrest.

(Doc. #38, pp. 4-6.)

Plaintiff argues

that the statutes of limitations did not accrue on any of his claims
until after his acquittal on August 12, 2010.
The Court discusses each claim separately.
7

(Doc. #44, p. 2.)

(1)
Count

Count I:
I

Fourth Amendment Seizures

alleges

that

defendants

stopped

the

vehicle

and

searched plaintiff and the vehicle in violation of the Fourth
Amendment.

(Doc. #1, p. 8.)

It is clear from the allegations that

both the stop of the vehicle and the subsequent search of plaintiff
and the vehicle were done without a warrant.

It is also clear that

both stopping a vehicle and searching it and the driver implicate
the Fourth Amendment.

United States v. McCullough, 851 F.3d 1194,

1201 (11th Cir. 2017).
As to Count I, the injury occurred when the alleged illegal
search and seizure occurred, which was on February 13, 2009.

On

this date, it was clear that plaintiff had complete causes of
actions for any Fourth Amendment violations involving the illegal
seizure of the vehicle and himself or the search of the vehicle. 4
The statute of limitations thus expired on February 12, 2013.
Because the Complaint was not filed until May 5, 2014, more than a
year after statute of limitations had expired, Count I is barred by
the statute of limitations unless it was tolled.
(2)

Count II:

Federal False Arrest Claim

Count II alleges that defendants illegally seized plaintiff in
violation of the Fourth Amendment by taking plaintiff into custody

4

The acts upon which Count I is based are discrete acts for
which the continuing legal violation does not apply. Betts, 2017
WL 526055, at *2.
8

when the facts did not justify such a seizure. (Doc. #1, p. 9.)
This is essentially a federal claim for false arrest, which arises
when an arrest occurs without a warrant and without probable cause.
Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010).

A

false arrest is a violation of the Fourth Amendment and is a viable
claim under section 1983.

Ortega v. Christian, 85 F.3d 1521, 1525–

26 (11th Cir. 1996).
The statute of limitations begins to run for a federal false
arrest claim when the false imprisonment comes to an end.

White v.

Hiers, 652 F. App’x 784, 786 (11th Cir. 2016) (citing Wallace, 549
U.S. at 388, 389). “[A] false imprisonment ends once the plaintiff
becomes held pursuant to [legal] process —when, for example, he is
bound over by a magistrate or arraigned on charges.” Wallace, 549
U.S. at 389 (emphasis omitted).
Therefore,

the

statute

of

limitations

began

to

run

for

plaintiff’s federal false arrest claim when he was held pursuant to
legal process – “when, for example, he is bound over by a magistrate
or arraigned on charges.”

See id.

The parties have not provided

this Court with the date that plaintiff was held pursuant to legal
process.

Because the Court cannot determine that plaintiff’s claim

for false arrest is untimely by examining the face of plaintiff’s

9

Complaint, defendants’ Amended Motion to Dismiss as to Count II is
denied. 5
(3)

Count III: State Law Claim of False Arrest

Count III alleges that defendants violated Florida law by
arresting plaintiff based on false pretenses and without just cause
or exigent circumstances.

(Doc. #1, p. 10.)

Florida state law claims for false arrest accrue on the date
of the arrest.

Scullock v. Gee, 161 So. 3d 421, 422 (Fla. 2d DCA

2014); Leatherwood v. City of Key West, 347 So. 2d 441, 442 (Fla.
3d DCA 1977).
Plaintiff was arrested on February 13, 2009.

The underlying

Complaint was not filed until May 5, 2014—more than a year after
the statute of limitations had run. Therefore, unless tolled, Count
III is barred by the applicable statute of limitations.
(4)

Count VI: Conspiracy to Violate Civil Rights

Count
plaintiff’s

IV

alleges

state

and

that
federal

defendants
rights

seizing, and falsely arresting plaintiff.

5

conspired

by

stopping,

to

violate

searching,

(Doc. #1, p. 11.)

In asserting that plaintiff’s the statute of limitations for
his cause of action did not begin to run until he was acquitted and
released from custody, plaintiff relies on Heck v. Humphrey, 512
U.S. 477 (1994).
Plaintiff’s reliance is misplaced because the
claim at issue in Heck was synonymous to a claim for malicious
prosecution, id. at 489-90, and the Supreme Court in Wallace
declined to extend Heck to claims of false arrest, Wallace, 549 U.S.
at 397.
10

As for plaintiff’s civil conspiracy cause of

action, the

Complaint alleges that defendants Lowe, Snyder, and Dunn conspired
to violate his state and federal rights by “stopping, searching,
seizing, and falsely arresting him.”

(Id. ¶¶ 57-60.)

The last

element constituting this cause of action for civil conspiracy “will
necessarily be injury to the plaintiff.” Armbrister v. Roland Int’l
Corp., 667 F. Supp. 802, 809 (M.D. Fla. 1988).

Therefore, because

plaintiff, at least in part, bases his civil conspiracy claim on
his allegations of false arrest, the injury for which potentially
lasted until plaintiff was held pursuant to legal process, the Court
is unable to determine when the statute of limitations began to run
based

upon

the

four

corners

of

the

Complaint.

Accordingly,

defendants’ Amended Motion to Dismiss as to Count IV is denied.
(5)

Count V: Respondeat Superior Liability

Count V alleges that the Lee County Sheriff’s Office is liable
under respondeat superior for the actions of the deputies. (Doc.
#1, p. 11-12.)
Claims of respondeat superior attempt to impose liability based
upon conduct of another and therefore the applicable statute of
limitations is that which applies to the underlying theory of
liability or cause of action. See D.M.S. v. Barber, 645 N.W.2d 383,
390 (Minn. 2002).

Here, the Court has held that Count I and III

are untimely, unless tolled.
respondeat

superior

liability

Therefore any attempt to assert
based
11

on

these

claims

are

also

untimely unless tolled.

As for plaintiff’s respondeat superior

claim based on plaintiff’s federal false arrest claim, 6 the Court
is unable to determine that this is barred by the statute of
limitations based on the four corners of the Complaint.

Therefore,

defendants’ Amended Motion to Dismiss as to Count V is denied.
C. Equitable Tolling
Plaintiff next asserts that he is entitled to equitable tolling
to save his otherwise untimely claims.

(Doc. #44, pp. 3-4.)

Specifically, plaintiff asserts that he is entitled to equitable
tolling for two reasons: (1) defendants “falsified documents in
connection

with

Plaintiff’s

arrest,

seizure,

and

the

search

performed upon him,” and (2) “the State of Florida has adopted a
strong

preference

against

litigation

and

in

favor

of

presuit

settlement of disputes” therefore efforts at presuit disposition
should act to “toll the limitations period while and until the
Defendants reject the possibility of presuit disposition or, when
no response is given, a reasonable time after the presuit notice is
served.”

(Id. at 3-4.)

6

It is well-established that section 1983 actions cannot be
based on respondeat superior liability.
Hartley v. Parnell, 193
F.3d 1263, 1269 (11th Cir. 1999) (citation omitted).
However,
supervisors can be liable for acts of others under some
circumstances. Cottone v. Jenne, 326 F.3d 1352, 1360-61 (11th Cir.
2003). Although titled respondeat superior, it appears that Count
V contains allegations aimed at establishing supervisory liability.
(Doc. #1, pp. 8, 11-12.)
12

“We look to state law for statutory tolling rules in § 1983
actions.”

Seibert v. Comm'r, --- F. App’x ----, No. 15-10501, 2017

WL 710437, at *2 (11th Cir. Feb. 23, 2017) (citing Wallace, 549 U.S.
at 394)).

Florida Statute section 95.051 lists the following

circumstances

for

which

a

party

may

be

entitled

to

tolling:
(1) The running of the time under any statute
of limitations except ss. 95.281, 95.35, and
95.36 is tolled by:
(a) Absence from the state of the person to be
sued.
(b) Use by the person to be sued of a false name
that is unknown to the person entitled to sue
so that process cannot be served on the person
to be sued.
(c) Concealment in the state of the person to
be sued so that process cannot be served on him
or her.
(d) The adjudicated incapacity, before the
cause of action accrued, of the person entitled
to sue. In any event, the action must be begun
within 7 years after the act, event, or
occurrence giving rise to the cause of action.
(e) Voluntary payments by the alleged father of
the child in paternity actions during the time
of the payments.
(f) The payment of any part of the principal or
interest of any obligation or liability founded
on a written instrument.
(g) The pendency of any arbitral proceeding
pertaining to a dispute that is the subject of
the action.
(h) The period of an intervening bankruptcy
tolls
the
expiration
period
of
a
tax
certificate under s. 197.482 and any proceeding
or process under chapter 197.
(i) The minority or previously adjudicated
incapacity of the person entitled to sue during
any period of time in which a parent, guardian,
or guardian ad litem does not exist, has an
interest adverse to the minor or incapacitated
13

equitable

person, or is adjudicated to be incapacitated
to sue; except with respect to the statute of
limitations for a claim for medical malpractice
as provided in s. 95.11. In any event, the
action must be begun within 7 years after the
act, event, or occurrence giving rise to the
cause of action.
Fla. Stat. § 95.051.

None of plaintiff’s bases for equitable

tolling fit into those set forth in the statute.
Plaintiff asserts, vaguely, that defendants concealed “their
misconduct

and

malicious

deeds,”

and

that

“[s]uch

concealment

hindered Plaintiff’s ability to discover the underlying truth to
support Plaintiff’s claims until he filed his initial Complaint.”
(Doc. #44, p. 3.)

Plaintiff’s allegations of concealment seem to

either attempt to present a claim of fraudulent concealment 7 to toll
the statute of limitations or an equitable estoppel 8 argument to
prevent

defendants

from

utilizing

the

statute

of

limitations.

Either way, the Court does not find that his allegations warrant
tolling

or

estoppel.

Plaintiff

alleges

that

documents

were

falsified that precluded him from determining the truth, which in

7

Florida case law is unclear whether it recognizes the doctrine
of fraudulent concealment.
Some courts hold that fraudulent
concealment is not listed as a basis to toll the statute of
limitations in Florida Statute section 95.051 and is therefore
unavailable, while others have read concealment of a cause of action
(as opposed to concealment of a tortfeasor’s identity) into Florida
Statute section 95.051(1)(c). See Carroll v. TheStreet.com, Inc.,
No. 11-CV-81173, 2014 WL 5474061, at *5 (S.D. Fla. July 10, 2014).
8 The Florida Supreme Court has ruled that equitable estoppel
is still recognized under Florida law. Major League Baseball v.
Morsani, 790 So. 2d 1071, 1080 (Fla. 2001).
14

turn prevented him from filing his Complaint in a timely fashion.
Plaintiff does not provide any specifics as to what was falsified
and how it prevented him from filing his Complaint.
The Court finds

that regardless of any alleged falsified

documents, plaintiff should have known that he had claims at the
time the defendants searched and seized him and his vehicle.

False

documents would not have concealed the facts as they existed at the
time of his search and seizure as set forth in the Complaint.
Therefore, the Court finds that even if it were to allow plaintiff
to amend his Complaint to include allegations

regarding these

falsifications, such amendment would be futile because plaintiff is
not entitled to tolling or estoppel of the statute of limitations
for the causes of actions set forth in his Complaint on the bases
set forth in his Response.
The Court also finds that there is no basis to toll the statute
of limitations during the time of pre-suit negotiations as requested
by defendant. Therefore the Court declines to toll the statute of
limitations on this basis.
Accordingly, it is now
ORDERED:
1. Defendants’ Amended Motion to Dismiss (Doc. #38) is granted
in part and denied in part.
2. Counts I and III are dismissed with prejudice; the Amended
Motion to Dismiss is otherwise denied.
15

3. Defendants shall file a responsive pleading to plaintiff’s
Complaint within fourteen (14) days of the date of this
Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this __30th__ day of
June, 2017.

Copies:

Parties of Record

16