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
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