Topa v. Melendez et al

Filing 43

OPINION AND ORDER granting 8 Motion to Dismiss for Failure to State a Claim and the Complaint is dismissed without prejudice to filing an Amended Complaint within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 8/6/2018. (RKR)

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

Case No:

2:16-cv-737-FtM-29CM

TEOFILO
MELENDEZ,
Correctional
Officer
and
NICHOLAS SHAFFER, Deputy,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss (Doc. #8) filed on November 15, 2016.
filed a Response (Doc. #11) on December 15, 2016.
will be reviewed de novo in light of the remand. 1

Plaintiff
The motion

(Doc. #39.)

I.
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

1

Because the Court found that Heck v. Humphrey, 997 F.2d 355,
357 (7th Cir. 1993) barred plaintiff’s claims, the sufficiency of
the allegations were not previously reviewed.
(Doc. ##2, p. 4
n.4.)

formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

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).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
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,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

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 allegations,
a court should assume their veracity and then determine whether

2

they plausibly give rise to an entitlement to relief.”

Iqbal, 556

U.S. at 679.
II.
By way of a Civil Rights Complaint Form (Doc. #1), construed
as a Complaint, plaintiff Gelu Topa (Topa) filed suit against
defendants Teofilo Melendez and Nicholas Shaffer of the Collier
County Sheriff’s Office.

Under “Statement of Claim”, plaintiff

appears to assert four claims:

(1) a violation of his due process

rights,

Fourteenth

presumably

under

the

Amendment;

(2)

false

arrest in violation of his Fourth Amendment rights; (3) false
imprisonment because plaintiff alleges that he was unlawfully
imprisoned; and (4) conspiracy by the officers.
The facts set forth in the complaint, taken as true at this
stage of the proceedings are as follows:
On September 30, 2012, plaintiff was arrested for a domestic
disturbance involving his wife.

A temporary restraining order

(TRO) was issued against plaintiff on October 5, 2012.

On October

24, 2012, plaintiff called the Collier County Sheriff’s Office and
spoke to Sergeant Rodrigues about obtaining certain paperwork
because he had proof on a laptop that his wife was setting him up,
and he needed to get the registration and insurance information
from the car but the TRO prevented him going to the car because
the wife was driving it. Plaintiff also indicated that he believed

3

she would incur parking tickets because the insurance information
was expired, and he needed to update it. Sergeant Rodrigues stated
that she would send an officer to plaintiff’s home to help him.
Plaintiff waited and opened the door for the later identified
Officer Shaffer.

The officer entered the house, and initially

looked through all the rooms of the apartment.

After another 30

minutes “with officer Shaffer”, a younger officer with a different
colored

uniform

“forcefully”

plaintiff his Miranda rights.

entered

the

apartment

and

read

This younger officer stated that

plaintiff had been in his wife’s parking lot, which he denied, but
he was told to call his lawyer because “two people is enough for
me”. The unidentified younger officer jumped on plaintiff, tightly
handcuffed him, pulled him up from the carpet, and then pushed him
out of the house while plaintiff screamed in pain.

He was placed

in Shaffer’s car.
The younger officer’s vehicle was nowhere to be seen, “like
he did the night before”, so plaintiff knew he was in danger.
Plaintiff alleges that the officer wants to take the laptop because
the wife forgot to delete compromising information.

Plaintiff

alleges

Melendez,

that

a

Correctional

Officer,

Teofilo

masterminded the arrest to get the laptop because he knew plaintiff
was supposed to see his lawyer that morning.

4

Plaintiff

alleges

that

he

was

falsely

arrested

by

“Defendants” based on a false report by Officer Melendez who
coerced his wife and co-worker to give false statements. Plaintiff
alleges he spent 6 months in jail, 2 years of probation, doctors,
therapists, 6 months at David Lawrence youth program, and he had
to sleep in a shelter.

Plaintiff seeks $500,000 in monetary

damages for the 6 months of wrongful imprisonment, but also for
abuses while incarcerated by inmates and by solitary confinement,
and for destroying his family.
III.
A pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one drafted by an
attorney, and the Court will construe the documents filed as a
complaint and amended complaint liberally.

Jones v. Fla. Parole

Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015).

Nevertheless, “a

pro se pleading must suggest (even if inartfully) that there is at
least some factual support for a claim; it is not enough just to
invoke a legal theory devoid of any factual basis.”
Defendants

argues

that

Counts

I

through

Id.

III

should

be

dismissed because plaintiff fails to allege a policy or custom if
defendants were sued officially, and because plaintiff fails to
allege that defendants unlawfully restrained or detained plaintiff
against his will if the officers were sued individually. The Court

5

will assume for review purposes that defendants are sued in their
individual capacities as no allegations of an official policy,
procedure, or custom is at issue.

Defendants further argue that

Count IV should be dismissed for failure to make particularized
allegations of a conspiracy.
1. Due Process
The Fourteenth Amendment protects substantive and procedural
due process rights.

AFL-CIO v. City of Miami, Fla., 637 F.3d 1178,

1185 (11th Cir. 2011).

Liberally construed, plaintiff alleges a

due process violation based on the wrongful arrest.

The Court

finds no substantive due process claim, and a deficient procedural
due process claim.
Substantive due process protects only “fundamental” rights
under the United States Constitution like marriage, family, and
procreation, and the right has not been extended to the tort of
false arrest.

Albright v. Oliver, 510 U.S. 266, 272 & 275 (1994)

(citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.
833, 847–849 (1992)).

See also McKinney v. Pate, 20 F.3d 1550,

1556 (11th Cir. 1994).

As discussed below, false arrest is more

appropriately a Fourth Amendment issue.

See Graham v. Connor, 490

U.S. 386, 395 (1989) (“Because the Fourth Amendment provides an
explicit textual source of constitutional protection against this
sort of physically intrusive governmental conduct, that Amendment,

6

not the more generalized notion of “substantive due process,” must
be the guide for analyzing these claims.”).
“Procedural due process requires notice and an opportunity to
be

heard

before

interest.”
Cir. 1995).

any

governmental

deprivation

of

a

property

Zipperer v. City of Fort Myers, 41 F.3d 619, 623 (11th
Plaintiff alleges that he was given his Miranda 2

rights, what the basis for his arrest was, he noted there were two
witnesses, and states that he was imprisoned for 6 months.

The

Complaint does not allege whether the false arrest interfered with
his rights during the prosecution, or if he was jailed without
notice, a hearing, or trial. Frankly, there are insufficient facts
to support a procedural due process claim as currently pleaded.
The motion to dismiss will be granted.
2. False Arrest and False Imprisonment
Under Section 1983, any person who under color of state law
subjects a citizen “to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,” is liable.
42 U.S.C. § 1983.

This requires a showing of a state action, or

an act under color of state law attributable to the state that

2

Miranda v. Arizona, 384 U.S. 436, 444 (1966).

7

caused the deprivation of a federal right.

Flagg Bros. v. Brooks,

436 U.S. 149, 156 (1978).
In this case, plaintiff alleges false arrest in violation of
his Fourth Amendment rights by an officer operating under state
law.

Plaintiff also alleges false imprisonment, which is a claim

based

on

the

protection

of

the

Fourteenth

Amendment

deprivation of liberty without due process of law.
Christian, 85 F.3d 1521, 1526 (11th Cir. 1996).

against

Ortega v.

Both false arrest

and false imprisonment are related torts, and false arrest is but
one way of committing false imprisonment.

Eiras v. State Dep’t of

Bus. & Prof’l Regulation Div. of Alcoholic Bevs. & Tobacco, 239 F.
Supp. 3d 1331, 1344 n.15 (M.D. Fla. 2017) (collecting cases).
a. False Arrest
“A warrantless arrest without probable cause violates the
Constitution and provides a basis for a section 1983 claim. [ ]
The existence of probable cause at the time of arrest, however,
constitutes an absolute bar to a section 1983 action for false
arrest.”

Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th

Cir. 2004) (internal citation omitted).

The Complaint alleges

that plaintiff was read his Miranda rights, and the unidentified
officer stated that he had two witnesses to support his presence,
which was enough for him to place plaintiff under arrest.

These

allegations support probable cause to arrest under the “facts and

8

circumstances within the officer’s knowledge”, Kingsland, at 1226,
and potentially create an absolute bar to plaintiff’s claim of
false arrest. Further, the named defendants were not the arresting
officers under the facts of the Complaint.

Plaintiff alleges that

defendant Melendez was the “mastermind” behind the arrest but does
not explain what actions he individually took to effectuate the
arrest.

The motion to dismiss will be granted as to this claim.

b. False Imprisonment
To state a claim, plaintiff must allege an “(1)intent to
confine, (2) acts resulting in confinement, and (3) consciousness
of” the “confinement or resulting harm” by plaintiff.

Ortega v.

Christian, 85 F.3d 1521, 1526, n.2 (11th Cir. 1996).

Plaintiff

must also establish that the imprisonment resulted in a violation
of his due process.

Id. at 1526.

Plaintiff does allege an intent

to confine by an unidentified officer and possibly defendant
Melendez, his arrest and detention, and a consciousness of his
seizure and detainment.

However, as discussed above, any due

process violation is unclear because plaintiff does not allege
that

he

was

detained

without

an

opportunity

to

be

heard

or

knowledge of the charges before he was incarcerated.
3. Conspiracy
To establish a claim for conspiracy under Section 1983,
plaintiff

must

show

an

“underlying

9

actual

denial

of

[his]

constitutional rights.” GJR Invs., Inc. v. Cty. of Escambia, Fla.,
132 F.3d 1359, 1370 (11th Cir. 1998).

Plaintiff must show that

the conspirators “reached an understanding” to deny plaintiff his
rights, and the factual basis may be based on circumstantial
evidence.

Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260

(11th Cir. 2010) (citations omitted).

The conspiracy must have

also “resulted in an actual denial of one of his constitutional
rights.”

Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d

1313, 1327 (11th Cir. 2015) (citation omitted).

“Private parties

are generally not considered state actors for § 1983 purposes”
unless they “act in concert with state officials in violating the
plaintiff’s constitutional rights.”

Allaben v. Howanitz, 579 F.

App'x 716, 718 (11th Cir. 2014) (citations omitted).
Liberally construed, plaintiff alleges that Melendez knew
about

a

laptop

his

wife

wanted

to

get

a

hold

of

to

remove

compromising information, and masterminded the arrest to get the
laptop.

Plaintiff does not allege that the conspiracy was between

or included other officers, or what role an officer may have played
to

jointly

deny

his

constitutional

right

or

rights.

The

allegations are of an arrest based on the witness testimony of the
wife and another individual, and the current facts do not establish
a wrongful arrest.

The laptop did not play any obvious role in

the arrest or plaintiff’s imprisonment, and the allegations imply

10

a conspiracy between plaintiff’s wife – a private actor – and only
one of the defendants.

Since the laptop played no role in a

constitutional deprivation, it is irrelevant and plaintiff cannot
state a claim for conspiracy.

The motion to dismiss will be

granted.
The motion to dismiss for failure to state a claim will be
granted on all counts without prejudice to filing an amended
complaint.
IV.
The Court will take this opportunity to provide plaintiff
some guidance.

The amended complaint must allege facts supporting

each of plaintiff’s claims and name all parties he wishes to name
as defendants.

In doing so, plaintiff must specify the actions of

each defendant individually without lumping defendants together as
a collective “defendants” taking a collective action.

Pursuant to

Federal Rule of Civil Procedure 10, the allegations should be set
forth in separate numbered paragraphs, “each limited as far as
practicable to a single set of circumstances”
10(b).

Fed. R. Civ. P.

Further, each claim “founded on a separate transaction or

occurrence” must be stated in a separate “Count.”

Id.

For additional resources and assistance, plaintiff may wish
to consult the “Proceeding Without a Lawyer” resources on filing
a pro se complaint that are provided on the Court’s website, at

11

http://www.flmd.uscourts.gov/pro_se/default.htm.

The website has

tips, answers to frequently-asked questions, and sample forms.
There is also a link that, through a series of questions, may help
Plaintiff generate the amended complaint.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #8) is GRANTED and the
Civil Rights Complaint Form is dismissed without prejudice to
filing an Amended Complaint within FOURTEEN (14) DAYS of this
Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2018.

Copies:
Parties of record

12

6th

day of