Topa v. Melendez et al

Filing 32

OPINION AND ORDER granting 8 Defendants' Motion to Dismiss Plaintiff's Complaint and dismissing 1 Plaintiff's Complaint without prejudice to refile, should Plaintiff subsequently have his conviction vacated; denying as moot 30 Defendants' Motion for Summary Judgment. The Clerk shall enter judgment accordingly, terminate all pending deadlines as moot, and close the case. See Opinion and Order for details. Signed by Judge John E. Steele on 9/18/2017. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GELU TOPA,
Plaintiff,
v.

Case No: 2:16-cv-00737-FTM-29CM

C.O. TEOFILO MELENDEZ
and
CPL.
NICHOLAS
SHAFFER,

A.

Defendants.

OPINION AND ORDER
This matter comes before the Court on review of Defendants’
Motion to Dismiss Plaintiff’s Complaint (Doc. #8) filed on November
15, 2016, to which Plaintiff filed a Response in Opposition (Doc.
#11) on December 15, 2016.

Also before the Court is Defendants’

August 25, 2017 Motion for Summary Judgment (Doc. #30).

Plaintiff

has not filed a Response, and the time to do so has passed.
the

reasons

set

forth

below,

the

Court

grants

dismissal

For
of

Plaintiff’s Complaint.
I.
Gelu Topa (Plaintiff) filed a pro se Civil Rights Complaint
Form (Doc. #1) on November 28, 2016 naming as Defendants Teofilo
Melendez (Officer Melendez) and Nicholas Shaffer (Officer Shaffer)
(collectively,
Office.

Defendants)

of

the

Collier

County

Sherriff’s

The Complaint purports to allege four causes of action

arising out of Plaintiff’s October 24, 2012 arrest and subsequent
conviction for violating a Temporary Restraining Order (TRO): (1)
a due process claim for wrongful arrest; (2) a Fourth Amendment
claim for unreasonable seizure; (3) false imprisonment; and (4)
conspiracy.
As best the Court can tell from the stream-of-conscience
allegations

in

the

Complaint,

the

factual

Plaintiff’s claims seems to be as follows:

predicate

for

Plaintiff was arrested

on September 30, 2012 for a domestic disturbance, and his wife
obtained a TRO against him on October 5, 2012.

On October 24,

2012, Plaintiff called the Collier County Sheriff’s Department and
requested an appointment with Sheriff Kevin Rambosk to discuss
Plaintiff’s belief that his then-wife was attempting to “set [him]
up with the help of a policeman,” a claim for which he had “proof
on a laptop.”

(Id. p. 5.)

He also asked for police assistance

with a matter relating to documents for his vehicle, which were in
his wife’s possession, so he would not violate the TRO.

(Id.)

Plaintiff alleges that the officer he spoke with agreed to send
someone to help.

(Id.)

About thirty minutes later, a police car pulled up in front
of or near Plaintiff’s home.

(Id.)

The occupants were a police

officer (potentially Officer Shaffer) and a woman in a “nurselike” blue outfit.

(Id.)

The officer was – it appears - permitted

to enter Plaintiff’s apartment, while the woman stayed in the car.

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(Id.)

After entering the apartment, the officer began “whispering

into his mike (sic) and went to all the rooms.”

(Id.)

Plaintiff

assumed the officer was speaking to another officer tasked with
collecting the forms for Plaintiff’s vehicle from Plaintiff’s
wife, as Plaintiff had requested.

(Id.)

However, about thirty

minutes later, a “younger officer with a different color uniform”
forcefully entered the apartment and began reading Plaintiff his
Miranda rights.

(Id.)

The officer told Plaintiff that Plaintiff

had been seen in his wife’s parking lot and was being arrested for
violating the TRO – an accusation Plaintiff denied.

(Id.)

On February 21, 2013, Plaintiff pled no contest to violating
the TRO.

(Doc. #30-4.)

He was adjudicated guilty and sentenced

to 180 days in jail, which he served, and 12 months of probation. 1
(Id.; see also Doc. #1, p. 6.)
Plaintiff now contends that Officer Melendez “masterminded”
the arrest so he could remove a laptop from Plaintiff’s apartment,
and then convinced Plaintiff’s wife and her coworker to give false
statements corroborating the fabricated story that Plaintiff had
been in the wife’s parking lot. 2

(Doc. #1, p. 6.)

Plaintiff

claims he can prove to the Court that he did not violate the TRO,

1

Plaintiff says he was on probation for two years.
6-7.)
2

(Doc. #1, pp.

The Complaint does not allege that Officer Melendez was at
Plaintiff’s apartment when Plaintiff was arrested.

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and he seeks to recover $500,000 for the out-of-pocket costs and
the pain and suffering that his wrongful arrest, imprisonment, and
probation have caused.
Defendants have moved to dismiss this case in its entirety
under Federal Rule of Civil Procedure 12(b)(6) on the ground that
the Complaint fails to state a claim against Defendants – in either
their individual or official capacities - for any of the causes of
action alleged.

Defendants’ Motion for Summary Judgment raises

the additional argument that Plaintiff’s claims are barred under
the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477
(1994). 3

As the Court will now discuss, the Court agrees that

Heck and its progeny require dismissal of Plaintiff’s claims. 4
II.
Heck involved a Section 1983 suit brought by a prisoner
seeking compensatory and punitive damages against law enforcement
for “engineering” his manslaughter conviction.
997 F.2d 355, 357 (7th Cir. 1993).

Heck v. Humphrey,

On appeal, the United States

Supreme Court held that, before a lawsuit seeking damages for

3

The Motion for Summary Judgment also argues that the evidentiary
record shows that – as a matter of law - Plaintiff’s arrest was
supported by “arguable probable cause” (Doc. #30, pp. 8-10), which
“constitutes an absolute bar to both state tort and section 1983
claims for false arrest.” (Id. p. 7 (citations omitted).)
4

Because Heck bars Plaintiff’s claims, the Court does not herein
address whether the allegations in the Complaint are otherwise
sufficient to state causes of action for wrongful arrest, false
imprisonment, and conspiracy, or whether probable cause to arrest
Plaintiff existed as a matter of law.
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wrongful conviction or imprisonment may proceed, the plaintiff
must prove that the conviction has already been reversed, expunged,
invalidated, or called into question by issuance of a writ of
habeas corpus.

Heck, 512 U.S. at 486-87.

Because the plaintiff’s

manslaughter conviction was still valid, and because his “damages
claims challenged the legality of th[at] conviction” the Supreme
Court affirmed dismissal of the civil lawsuit.

Id. at 490.

Where a plaintiff seeks damages for something other than an
alleged wrongful conviction or imprisonment – for example, a false
arrest – the court asks whether success with that claim will
“necessarily impl[y] the invalidity of th[e] conviction” that
resulted from the allegedly-false arrest, and which has not yet
been invalidated.
Cir. 2003).

Hughes v. Lott, 350 F.3d 1157, 1160 & n.2 (11th

To answer this question, the court “look[s] both to

the claims raised under § 1983 and to the specific offenses for
which the § 1983 claimant was convicted.”

Id. at 1160 n.2.

In sum, “[i]f a successful § 1983 suit for damages would
necessarily imply the invalidity of a conviction or sentence, and
that conviction or sentence has not been invalidated before the
commencement of the § 1983 suit, the suit must be dismissed.”
Towbridge v. Tacker, 488 F. App'x 402, 403 (11th Cir. 2012) (per
curiam).

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III.
Applying the Heck rule here compels a finding that Plaintiff’s
lawsuit must be dismissed.

As to Plaintiff’s Section 1983 claims

for false arrest and false imprisonment, 5 the singular basis for
both is the assertion that Plaintiff never violated the TRO.
#1, p. 5.)

(Doc.

In other words, Plaintiff “challenge[s] his role in

the offense conduct that led to his arrest and convictions, the
arrest itself, and his eventual conviction,” as opposed to “the
constitutionality of the procedure by which his arrest was carried
out.”

Towbridge, 488 F. App'x at 404-05.

Notwithstanding Plaintiff’s contention that he is innocent,
the

reality

is

that

Plaintiff

pled

no

contest

to,

and

was

subsequently convicted of and imprisoned for, violating the TRO. 6

5

In light of Plaintiff’s pro se status, the Court briefly explains
why Plaintiff’s claims are deemed “Section 1983 claims,” despite
the absence of these words in the Complaint. Plaintiff alleges
that Defendants have violated his due process rights, as well as
his Fourth Amendment right to be free from unreasonable seizure.
But while constitutional violations are the source of Plaintiff’s
grievance, the Constitution does not itself provide the legal
“vehicle” by which to seek redress in court; rather, his right to
sue for damages arises, if at all, under 42 U.S.C. § 1983 - often
referred to as “Section 1983.” Bates v. Harvey, 518 F.3d 1233,
1242 (11th Cir. 2008); Johnson v. City of Arcadia, 450 F. Supp.
1363, 1377 (M.D. Fla. 1978). Accordingly, the Court interprets
Plaintiff’s constitutional claims as Section 1983 claims.
See
Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014) (“[N]o
heightened pleading rule requires plaintiffs seeking damages for
violations of constitutional rights to invoke § 1983 expressly in
order to state a claim.” (citations omitted)).
6

A plea of no contest “constitutes a conviction under Florida
law.” Quinlan v. City of Pensacola, 449 F. App'x 867, 870 (11th
Cir. 2011) (per curiam) (citing Fla. Stat. § 960.291(3)).
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This conviction has not been overturned and remains valid in the
eyes of the law.

Yet Plaintiff’s success on the claims for false

arrest and imprisonment would necessarily imply the invalidity of
that still-valid conviction.

Consequently, those claims are Heck-

barred and must be dismissed.

Hughes, 350 F.3d at 1161; see

Towbridge, 488 F. App'x at 405 (affirming dismissal of wrongful
arrest claim under Heck where claim was based on plaintiff’s
assertion

of

innocence

and

his

conviction

remained

valid);

Quinlan, 449 Fed. App’x at 870 (agreeing that Heck warranted
dismissal of claim that police lacked probable cause to execute
traffic stop where plaintiff pled nolo contendere to resisting an
officer); Hawthorne v. Sheriff of Broward Cty., 212 F. App'x 943,
947 (11th Cir. 2007) (per curiam) (Heck barred claim that police
falsely stated that plaintiff committed crime for which plaintiff
subsequently pled no contest and was incarcerated).
Dismissal of Plaintiff’s conspiracy claim is required for the
same reason.

The basis for this claim appears to be the allegation

that Officer Melendez coerced Plaintiff’s wife and the wife’s
coworker

into

giving

false

written

statements

that

they

had

observed Plaintiff lurking in the wife’s parking lot, in violation
of the TRO.

In other words, the purpose of the alleged conspiracy

was to facilitate Plaintiff’s arrest and conviction for a crime
Plaintiff supposedly did not commit.

But because that conviction

is still valid, Heck bars this claim too.

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Abella v. Rubino, 63

F.3d 1063, 1065 (11th Cir. 1995) (affirming district court’s
dismissal

of

plaintiff’s

claim

“that

the

defendants

unconstitutionally conspired to convict him of crimes he did not
commit” where plaintiff’s conviction had not been invalidated);
see also Heck, 997 F.2d at 356-37 (claim that law enforcement
“engineered
proceed

the

where

plaintiff’s
murder

conviction

conviction

had

for

murder”

not

been

could

not

vacated).

Plaintiff’s claims will be dismissed without prejudice to refile,
should Plaintiff subsequently have his conviction vacated.
Accordingly, it is now
ORDERED:
1.

Defendants’ Motion to Dismiss (Doc. #8) is GRANTED and

Plaintiff’s Complaint (Doc. #1) is dismissed without prejudice to
refile, should Plaintiff subsequently have his conviction vacated.
2.

Defendants’

Dispositive

Motion

for

Summary

Judgment

(Doc. #30) is denied as moot.
3.

The Clerk shall enter judgment accordingly, terminate

all pending deadlines as moot, and close the case.
DONE AND ORDERED at Fort Myers, Florida, this 18th day of
September, 2017.

Copies:
Parties and Counsel of record

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