Swanson v. Scott et al
Filing
27
OPINION AND ORDER granting 16 , 19 Defendants' Motions to Dismiss. Count V of Plaintiff's Complaint is dismissed without prejudice to filing an Amended Complaint within fourteen (14) days of this Opinion and Order; denying as moot 8 defendants' Motion to Dismiss. Signed by Judge John E. Steele on 3/27/2017. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID LEE SWANSON, JR.,
Plaintiff,
v.
Case No: 2:17-cv-67-FtM-99MRM
MICHAEL J. SCOTT, in his
official capacity as Sheriff
of
Lee
County,
Florida,
ROBERT E. SMITH, ERIC M.
ZERCHER, and JONATHAN S.
ARMATO,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants’ Motions to
Dismiss (Doc. #16; Doc. #19) filed on February 23, 2017.
Plaintiff
David Lee Swanson, Jr. (plaintiff or Swanson) filed a response in
opposition (Doc. #26) on March 17, 2017.
For the reasons set
forth below, the motions are granted with leave to amend.
I.
On May 31, 2016, Swanson filed a five-count Complaint (Doc.
#2), alleging both common law and 42 U.S.C. § 1983 claims against
defendants for malicious prosecution, as well as a claim for civil
conspiracy pursuant to 42 U.S.C. § 1983 against all defendants.
The claims stem from plaintiff’s arrest on December 5, 2008, and
subsequent
alleges
criminal
that
he
was
prosecution
on
drug
arrested
based
on
charges.
false
Plaintiff
affidavits
of
defendants Smith, Zercher, and Armato, who are all police officers
with the Lee County Sheriff’s Office.
Plaintiff alleges that
following his arrest he was charged with six felony offenses and
found
guilty
Plaintiff’s
based
sentence
upon
was
the
officers’
subsequently
false
vacated
for
testimony.
ineffective
assistance of counsel, and the State Attorney’s Office ultimately
filed a nolle prosequi on the charges.
Defendants now move to dismiss Count V, civil conspiracy,
based upon the intracorporate conspiracy doctrine, and Sheriff
Scott moves to strike the prayer for punitive damages against him
from Count IV.
II.
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
an
unadorned,
This requires
the-defendant-unlawfully-harmed-me
- 2 -
accusation.”
Ashcroft
v.
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.”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
facially plausible.”
“Factual allegations that are merely
defendant’s
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal 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.”
Iqbal, 556 U.S. at 679.
III.
A.
Conspiracy and the Intracorporate Conspiracy Doctrine
In Count V, plaintiff alleges that all defendants subjected
him to a conspiracy to commit malicious prosecution in violation
of his Constitutional rights.
Under this Count, plaintiff alleges
that defendants filed a false sworn statement and testified falsely
- 3 -
at plaintiff’s trial.
(Doc. #2, ¶ 133).
Defendants move to
dismiss Count V for failure to state a claim upon which relief can
be
granted
because
insufficient
under
plaintiff’s
the
allegations
intracorporate
of
conspiracy
conspiracy
are
doctrine.
Defendants argue that because they are all government actors who
were acting within the course and scope of their employment at all
times, a conspiracy between them is a legal impossibility pursuant
to the doctrine.
In response, plaintiff argues that he is alleging
that defendants engaged in a criminal conspiracy, an exception to
the doctrine.
A plaintiff may state a § 1983 claim for conspiracy to violate
constitutional
rights
by
showing
a
conspiracy
existed
that
resulted in the actual denial of some underlying constitutional
right.
GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370
(11th Cir. 1998) (overruled on other grounds by Randall v. Scott,
610
F.3d
701
conspiracy
(11th
doctrine,
Cir.
“a
2010)).
Under
the
intracorporate
corporation
cannot
conspire
with
its
employees, and its employees, when acting in the scope of their
employment,
cannot
conspire
among
themselves.
The
doctrine
applies to public entities such as the City and its personnel.”
Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001)
(internal citations omitted) (intercorporate conspiracy doctrine
barred a claim that two city employees acting in their official
capacities conspired to deprive plaintiffs of their civil rights).
- 4 -
Specifically, “[t]he intracorporate conspiracy doctrine holds that
acts of corporate agents are attributed to the corporation itself,
thereby negating the multiplicity of actors necessary for the
formation of a conspiracy.”
McAndrew v. Lockheed Martin Corp.,
206 F.3d 1031, 1036 (11th Cir. 2000) (en banc).
However, the
Eleventh Circuit has recognized an exception to the intracorporate
conspiracy doctrine in civil rights cases when the alleged conduct
of the conspirators violates the federal criminal code.
Grider
v. City of Auburn, 618 F.3d 1240, 1263 (11th Cir. 2010).
Here,
the
only
conspirators
identified
by
Swanson
are
employed by the Lee County Sheriff’s Office, and the acts are
alleged to have been within the scope of their employment.
The
subject of their alleged conspiracy – prosecution of Swanson on
drug
charges
supported
by
signed
affidavits
and
testimony
–
involves job-related functions well within defendants’ scope of
employment as police officers.
“The scope-of-employment inquiry
is whether the employee police officer was performing a function
that, but for the alleged constitutional infirmity, was within the
ambit of the officer’s scope of authority (i.e., job-related
duties) and in furtherance of the employer’s business.”
618 F.3d at 1261 (emphasis added).
Grider,
Therefore, the intracorporate
conspiracy doctrine would bar plaintiff’s conspiracy claim unless
an exception applies.
- 5 -
Although Swanson invokes the exception to the intracorporate
conspiracy doctrine in his brief 1 , asserting that defendants’
conduct meets the elements of an information filed under 18 U.S.C.
§ 214 2 , nowhere in his Complaint does he make such specific
allegations of federal criminal code violations.
Furthermore,
plaintiff alleges in his brief that a violation of 42 U.S.C. §
1982(2), as referenced in paragraph 67 of his Complaint, may
satisfy the exception, citing McAndrew v. Lockheed Martin Corp.,
206 F.3d 1031, 1035 (11th Cir. 2000).
not discuss Section 1982(2).
Yet the McAndrew case does
It references 42 U.S.C. § 1985(2),
conspiracy to interfere with civil rights by obstructing justice;
intimidating
party,
witness,
or
juror.
Paragraph
67
of
plaintiff’s Complaint does not sufficiently state such allegations
against defendants.
Because the Court finds that the intracorporate conspiracy
doctrine bars plaintiff’s conspiracy claim and plaintiff has not
made sufficient allegations that an exception would apply, the
Court will dismiss Count V without prejudice and allow plaintiff
to amend his Complaint.
See Huls v. Llabona, 437 Fed. App’x 830,
1
Defendants do not address this exception nor its application
to this case in their Motions.
2
It does not appear that 18 U.S.C. § 214 is applicable to
this case as it applies to an “offer for procurement of Federal
Reserve bank loan and discount of commercial paper.” Plaintiff
probably means § 241.
- 6 -
832 n.5 (11th Cir. 2011) (holding that an argument raised for the
first time in response to defendant’s motion to dismiss, instead
of in an amended complaint, was not properly raised before the
district court and would not be considered on appeal).
B.
Punitive Damages – Count IV
Sheriff Michael J. Scott moves to dismiss or strike the
punitive damages request from Section 1983 malicious prosecution
claim (Count IV) because punitive damages are not available against
a Sheriff who is sued in his official capacity.
plaintiff states that he agrees.
(Doc. #26 at 3).
In response,
Therefore, the
punitive damages request will be stricken and plaintiff shall not
include such a request in his Amended Complaint.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
(1)
Defendants
Michael
J.
Scott,
Robert
E.
Smith,
and
Jonathan S. Armato’s Amended Motion to Dismiss (Doc. #16) is
GRANTED.
(2)
Defendant Erich M. Zercher’s Motion to Dismiss Count 5
(Doc. #19) is GRANTED.
(3)
Count V of Plaintiff’s Complaint (Doc. #2) is DISMISSED
without prejudice to filing an Amended Complaint within FOURTEEN
(14) days of this Opinion and Order.
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(4)
Defendants’ Motion to Dismiss (Doc. #8) is denied as
moot.
DONE and ORDERED at Fort Myers, Florida, this 27th day of
March, 2017.
Copies:
Counsel of Record
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