Ermini v. Scott et al
OPINION AND ORDER granting 22 motion to dismiss Count XIII, which is dismissed; granting 31 Motion to Dismiss Count X without prejudice. Signed by Judge John E. Steele on 9/22/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Patricia I. Mapes,
Case No: 2:15-cv-701-FtM-99CM
MIKE SCOTT, in his official
capacity as Sheriff of Lee
County, Florida, CHARLENE
individually, ROBERT HAMER,
individually, and WILLIAM
OPINION AND ORDER
This matter comes before the Court on review of defendant
Mike Scott’s Motion to Dismiss Count XIII (Doc. #22) filed on
December 29, 2015. Plaintiff filed a Response to Defendant Scott's
Motion to Dismiss Count XIII (Doc. #30) on January 8, 2016.
before the Court is defendant Murphy’s Motion to Dismiss Complaint
(Count X) (Doc. #31) filed on January 11, 2016.
a Response to Defendant Murphy’s Motion to Dismiss Count X (Doc.
#33) on January 21, 2016.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
“Factual allegations that are merely
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages
in a two-step approach: “When there are well-pleaded factual
determine whether they plausibly give rise to an entitlement to
Iqbal, 556 U.S. at 679.
In Count XIII, plaintiff asserts a claim of defamation against
Mike Scott, Sheriff of Lee County, Florida, for the damage to her
reputation. Taking the allegations as true for purposes of review,
plaintiff alleges that Sheriff Mike Scott had no duty to tell the
media of what transpired at her home before the investigation was
complete, and in fact often refrains from making a statement
pending an investigation.
However, plaintiff alleges that Scott
personally issued statements to the media to justify the actions
of his deputies by stating that plaintiff had fired at the deputies
who responded with deadly force because they feared for their
Plaintiff alleges that Scott’s statements were false and
defamatory, and he knew they were false or failed to exercise
reasonable care to determine the truthfulness of the statements
before making them.
The negligently made statements resulted in
damage to plaintiff in that she was subjected to ridicule and
condemnation by the community.
(Doc. #1, ¶¶ 189-193.)
Defendant Sheriff Mike Scott moves to dismiss plaintiff’s
claim of defamation for statements made to the media because no
such claim may be maintained against the Sheriff in his official
capacity, and he is entitled to sovereign immunity.
defendant further argues that Count XIII should be dismissed
because the statements were absolutely privileged, or at least
“Sovereign immunity is the privilege of the sovereign not to
be sued without its consent”, and “Florida’s legislature has
involving personal injury, wrongful death, and loss or injury of
Llorca v. Rambosk, No. 2:15-CV-17-FTM-29CM, 2015 WL
2095805, at *1 (M.D. Fla. May 5, 2015) (Steele, J) (citations
Under Fla. Stat. § 768.28, pleading “bad faith or
malicious purpose on the part of the governmental actor”, will bar
recovery based on sovereign immunity.
Boggess v. Sch. Bd. of
Sarasota Cty., No. 8:06-CV-2245-T-27EAJ, 2008 WL 564641, at *5
(M.D. Fla. Feb. 29, 2008).
The tort of defamation has the following “five elements: (1)
publication; (2) falsity; (3) actor must act with knowledge or
reckless disregard as to the falsity on a matter concerning a
public official, or at least negligently on a matter concerning a
private person; (4) actual damages; and (5) statement must be
Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106
Malice is not a required element 1, and plaintiff does
Defendant cites to Wolfson v. Kirk, 273 So. 2d 774, 776
(Fla. Dist. Ct. App. 1973) for the proposition that malice is an
not allege malice in her Complaint.
Since sovereign immunity does
not bar a claim of negligent defamation, Rudloe v. Karl, 899 So.
2d 1161, 1164 (Fla. 1st DCA 2005), the motion to dismiss will be
denied on this basis.
“As an executive officer the sheriff enjoys an absolute
privilege as to any statements he makes incidental to his official
Cobb's Auto Sales, Inc. v. Coleman, 353 So. 2d 922, 923
(Fla. 4th DCA 1978) (citations omitted).
See also Stephens v.
officials who make statements within the scope of their duties are
absolutely immune from suit for defamation”.)
extends only to words or acts within the scope of the authority of
the public servant.”
Crowder v. Barbati, 987 So. 2d 166, 168 (Fla.
4th DCA 2008) (citations omitted).
Taking the allegations in the Complaint as true, plaintiff
alleges that Sheriff Scott had “no duty” to make statements to the
media. Information disclosed through a press release may be beyond
the scope of the Sheriff’s duties if rules or laws prohibited the
essential element of the tort of defamation.
However, a more
careful reading of Wolfson shows that malice is an additional
component of a claim of defamation per se, which is not asserted
here. See Alan v. Wells Fargo Bank, N.A., No. 14-80682-CIV, 2014
WL 11393570, at *2 (S.D. Fla. June 18, 2014) (per se defamatory
statements are “so obviously defamatory” that malice and damages
are presumed), aff'd, 604 F. App'x 863 (11th Cir. 2015).
release, or if “there was no official purpose” for the release,
but “scope of office” is to be broadly defined.
Densmore v. City of Boca Raton, 368 So. 2d 945, 947 (Fla. 4th DCA
1979); Kribs v. City of Boynton Beach, 372 So. 2d 195 (Fla. 4th
DCA 1979)). However, “[t]he term ‘duties’ is not confined to those
things required of the officer, but rather extends to all matters
which he is authorized to perform.”
190, 194 (Fla. 4th DCA 2007).
Cassell v. India, 964 So. 2d
“Law enforcement agencies routinely
brief the media on matters of public concern.”
Geoghegan, 702 So. 2d 517, 523 (Fla. 2d DCA 1997).
As head of the
Lee County Sheriff’s Office, Sheriff Scott’s statements to the
press would fall under the broader scope of office.
will be granted on this case and Count XIII is dismissed.
Defendant argues that the claim of intentional infliction of
emotional distress must be dismissed as the conduct alleged in the
To establish a cause of action for the
intentional infliction of emotional distress,
a plaintiff must show that the defendant’s
intentional conduct was “so outrageous in
character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to
Metropolitan Life Ins. Co. v. McCarson, 467
So. 2d 277, 278-79 (Fla. 1985).
Gallogly v. Rodriguez, 970 So. 2d 470, 471
(Fla. 2d DCA 2007).
The conduct must be
plaintiff’s subjective response to the conduct
does not control.
McCarson, 467 So. 2d at
278-79. A defendant’s knowledge of a person’s
distress is relevant in determining whether
the conduct is extreme or outrageous; however,
the mere fact that the defendant knows the
person’s feelings will be hurt by the conduct
is not enough; it must be outrageous. Liberty
Mut. Ins. Co. v. Steadman, 968 So. 2d 592,
595-96 (Fla. 2d DCA 2007) (citing Restatement
(Second) of Torts § 46 cmt. f). Whether the
alleged conduct satisfies this high standard
is a legal question “for the court to decide
as a matter of law.” Vance v. Southern Bell
Tel. & Tel. Co., 983 F.2d 1573, 1575 n.7 (11th
Cir. 1993) (quoting Baker v. Florida Nat’l
Bank, 559 So. 2d 284, 287 (Fla. 4th DCA 1990)).
See also Gandy v. Trans World Computer Tech.
Grp., 787 So. 2d 116, 119 (Fla. 2d DCA 2001).
Schweikhard v. Sch. Bd. of Collier Cty., Fla., No. 2:14-CV-466FTM-29, 2015 WL 1470676, at *3 (M.D. Fla. Mar. 31, 2015).
Tillman, the Eleventh Circuit remanded for reconsideration the
officers falsified charging documents in order to convict a man of
a nonexistent crime—is the type of extreme conduct considered to
be intolerable in a civilized society.”
Tillman v. Orange Cty.,
Fla., 519 F. App'x 632, 637 (11th Cir. 2013).
Within Count X, plaintiff alleges that Murphy had no facts to
support Baker-Acting plaintiff, and isolated her while she was
Plaintiff further alleges that Murphy let
plaintiff’s family and the community believe that she had shot at
deputies, and that Murphy intentionally falsified facts in a
probable cause affidavit to obtain a search warrant and to prove
that she committed aggravated assault.
Plaintiff sought the
services of a psychiatrist and suffered severe and crippling
humiliation, mental anguish, and financial hardship as a result of
(Doc. #1, ¶¶ 172-176.)
The Court finds this case is distinguishable from Tillman.
In the Factual Allegations of the Complaint, plaintiff alleges
that Murphy’s Affidavit “said that the investigation had revealed
the following facts”, including that plaintiff was “armed with a
gun and threatened to kill the deputies,” but that it was untrue.
(Doc. #1, ¶ 37.)
The Affidavit was the basis for the search
warrant and affirmed that there was probable cause for the search.
(Id., ¶ 38.)
The Complaint however also alleges in some detail
husband, the deputies who entered plaintiff’s home, plaintiff
herself, and other officers and firefighter who appeared at the
scene on what was thought to be a suicide call.
(Id., ¶¶ 52-54,
The Court finds that the Factual Allegations that
Murphy relied on facts provided through an investigation belie the
allegations in Count X of Murphy intentionally falsifying the
The Court finds that the claim does not rise to the
level of atrocious and outrageous conduct.
The motion to dismiss
will be granted without prejudice.
Accordingly, it is now
1. Defendant Mike Scott’s Motion to Dismiss Count XIII (Doc.
#22) is GRANTED and Count XIII is dismissed.
2. Defendant Murphy’s Motion to Dismiss Complaint (Count X)
(Doc. #31) is GRANTED and Count X is dismissed without
DONE AND ORDERED at Fort Myers, Florida, this
Counsel of record
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