Topa v. Melendez et al

Filing 61

OPINION AND ORDER granting 51 Motion to Dismiss and the Second Amended Complaint is dismissed with prejudice. The Clerk shall enter judgment accordingly, terminate all pending deadlines and motions, and close the file. Signed by Judge John E. Steele on 2/28/2019. (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 Plaintiff's Second Amended Complaint
filed on October 9, 2018.

(Doc. #51)

Plaintiff sought an extension of time

to respond, and the motion was granted through November 5, 2018.
(Doc. #55.)
filed.

This deadline has now passed, and no response was

Defendant filed a Notice of Plaintiff’s Failure to Comply

(Doc. #59) on January 14, 2019.

For the reasons stated below, the

motion to dismiss is due to be granted.
I.

STANDARD OF REVIEW

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

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

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

a

Iqbal,

“Factual allegations that are merely consistent

defendant’s

plausible.”

action,

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
they plausibly give rise to an entitlement to relief.”
U.S. at 679.

2

Iqbal, 556

II.
Plaintiff

initiated

BACKGROUND

this

case

on

September

28,

2016.

Defendants moved to dismiss the Complaint (Doc. #1) for failure to
state a claim, and also moved for summary judgment arguing that
the claims were barred under Heck v. Humphrey, 512 U.S. 477 (1994).
On September 18, 2017, the Court found that Heck barred plaintiff’s
claims and therefore the Court declined to address whether the
allegations in the Complaint were otherwise sufficiently pled
under Fed. R. Civ. P. 12(b)(6).

(Doc. #32, p. 4 n.4.)

The

Complaint was dismissed without prejudice to plaintiff having his
conviction vacated.

(Id.)

Judgment (Doc. #33) was entered and

the case was closed.
Plaintiff filed a Notice of Appeal (Doc. #37), and on June
19, 2018, the Eleventh Circuit reversed and remanded the case to
consider the other grounds for dismissal finding a lack of notice
to plaintiff of a dismissal based on Heck, which was not argued on
the motion to dismiss.

On remand, the Court vacated the Opinion

and Order (Doc. #32) and Judgment (Doc. #33), reopened the case,
and reactivated defendants’ motion to dismiss.

(Doc. #42.)

The

Eleventh Circuit noted that plaintiff is no longer incarcerated.
On August 6, 2018, the Court issued an Opinion and Order (Doc.
#43) finding a failure to state a claim, and dismissing the
Complaint without prejudice to filing an Amended Complaint in
compliance with certain guidelines to comply with Fed. R. Civ. P.

3

10(b).

On August 16, 2018, plaintiff filed his Amended Complaint

(Doc. #44).

On September 14, 2018, the Court entered an Order

(Doc. #47) striking the Amended Complaint without prejudice to
amending because “[a]s currently pled, the Amended Complaint fails
to state any plausible claims for relief. The Amended Complaint is
in

fact

not

an

improvement

from

the

original

Complaint,

and

blatantly ignores the Court’s guidance on how to improve the
original pleading.”

(Doc. #47, p. 3.)

On September 27, 2018, plaintiff filed a Second Amended
Complaint (Doc. #48), and defendants have once again moved to
dismiss the pleading.
III. SECOND AMENDED COMPLAINT
Plaintiff presents his “Statement of Claim” as a violation of
due process rights because he was falsely arrested, as a violation
of his Fourth Amendment right to be free from unreasonable seizure
for false imprisonment, and a conspiracy between defendant Teofilo
Melendez, plaintiff’s own lawyer, and his wife’s lawyer.

The only

named defendants are Teofilo Melendez, a Correctional Officer, and
Nicholas A. Shaffer, a Deputy.
Plaintiff alleges that his lawyer called him on October 23,
2012, about viewing a video on his laptop for the third time at
his office on October 25, 2012.

Plaintiff alleges that his lawyer

liked to see his wife on video because she is young and beautiful.
That same night, Melendez was in plaintiff’s parking lot trying to

4

put something illegal in his minivan so plaintiff could be pulled
over two days later while he was on his way to see his attorney
with the laptop with incriminating evidence about his wife.

The

wife had the spare keys so Melendez had the keys.
Plaintiff alleges that defendant Deputy Nicholas Schaffer 1
did not write a police report, rather, Melendez wrote the report
but did not put his name on it because he is a correctional officer.
Plaintiff alleges that Schaffer is an accomplice to the conspiracy
because he went along with it.
On October 24, 2012, plaintiff called the Sheriff’s Office
for assistance and talked to a Sergeant M. Rodrigues.
agreed to send an officer to help.

Rodrigues

As plaintiff was waiting,

looking through the blinds, he saw a police vehicle driving slow
on the street and stopping a distance away.

Schaffer was with a

nurse because Rodrigues thought he was high on illegal drugs.
However, he was simply on medication that impedes his speech.
nurse remained in the vehicle.

The

Plaintiff invited Schaffer into

his home, and he looked around his apartment without speaking.
After some time, a different officer entered forcefully into the
apartment, and started reading plaintiff his Miranda rights from
the front door.

1

When plaintiff inquired why, the officer said

Schaffer is also later referred to as Corporal.

5

that plaintiff had been in his wife’s parking lot. Plaintiff tried
to argue otherwise, but the officer told plaintiff to call his
lawyer, and “two people is enough for me.”

Schaffer transported

plaintiff to jail.
Plaintiff asserts that his lawyer Salim Bazaz was the only
person who knew of the incriminating evidence on the laptop.
Plaintiff asserts that he spent an unnecessary 6 months in jail,
two years of probation, 6 months at David Lawrence, and he had to
sleep in a shelter.

Plaintiff is seeking $500.00 in damages for

the wrongful imprisonment, “for the abuse of some bilingual inmates
and the bilingual snitch” used to monitor plaintiff because “[h]e
used his position in jail because he works in jail.”

Also, for

the pain and suffering of not having his medication for his
inguinal hernia surgery because of Melendez, who liked his wife.
IV.
Liberally

MOTION TO DISMISS

construed,

plaintiff

alleges

false

arrest,

a

seizure of his person in violation of his Fourth Amendment rights,
false imprisonment, and conspiracy.
The false arrest and false imprisonment claims fail for the
same reasons previously stated in the August 6, 2018, Opinion and
Order.

(Doc. #42, pp. 7-9.)

The claims are related as plaintiff

alleges that the imprisonment was a result of the false arrest.
Rankin v. Evans, 133 F.3d 1425, 1431 n.5 (11th Cir. 1998) (“[U]nder
Florida law ‘false arrest and false imprisonment are different

6

labels for the same cause of action.’” (citation omitted)).

As a

preliminary matter, plaintiff does not clearly identify actions
attributable to the named defendants that lead to the arrest or
his imprisonment.

Plaintiff alleges that Schaffer was the driver

of the vehicle that transported plaintiff to jail, but makes no
effort to allege what actions Schaffer took to contribute to his
false arrest or false imprisonment.

Neither Melendez or Schaffer

are alleged to have taken part in the arrest itself.
“To state a claim for conspiracy under § 1983, a plaintiff
must allege that (1) the defendants reached an understanding or
agreement

that

they

would

deny

the

plaintiff

one

of

his

constitutional rights; and (2) the conspiracy 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).

To

the extent that plaintiff asserts an unlawful seizure of his laptop
without

a

warrant

or

probable

cause

as

the

conspiracy, the allegations remain insufficient.

object

of

the

Plaintiff argues

that the arrest was orchestrated for the sole purpose of obtaining
the laptop, but plaintiff does not allege anything to negate the
fact that the arrest was made by an unidentified officer based on
the testimony of two individuals.

Further, the actual arresting

officer is not a named defendant, and plaintiff does not argue
that the witnesses were paid or were not real, or that defendants
falsified police reports.

See Hadley v. Gutierrez, 526 F.3d 1324,

7

1332 (11th Cir. 2008) (Faced with the allegation of falsified
police reports on summary judgment, the Court noted “[i]t is not
our job to divine a constitutional violation to support Hadley’s
conspiracy claim” in finding no violation of his constitutional
rights).

As no understanding or agreement to deny plaintiff his

constitutional rights is adequately alleged, the claim fails.
“Generally, where a more carefully drafted complaint might
state a claim, a plaintiff must be given at least one chance to
amend the complaint before the district court dismisses the action
with prejudice.”

Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.

2001) (citation omitted).

Exceptions to freely granting leave to

amend include “undue delay, bad faith or dilatory motive”, a
“repeated failure to cure deficiencies by amendments previously
allowed,

undue

prejudice

to

the

opposing

party

by

virtue

allowance of the amendment, [and] futility of amendment.”
v. Davis, 371 U.S. 178, 182 (1962).

of

Foman

The Court finds that plaintiff

has been provided numerous opportunities to amend and to state a
claim. The Court finds that further opportunities would be futile,
and that a dismissal with prejudice is appropriate.
Accordingly, it is now
ORDERED:
1.

Defendant’s Motion to Dismiss Plaintiff's Second Amended

Complaint

(Doc. #51) is GRANTED and the Second Amended Complaint

is dismissed with prejudice.

8

2.

The Clerk shall enter judgment accordingly, terminate all

pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2018.

Copies:
Parties of record

9

28th

day of