Harris v. Rambosk et al

Filing 175

OPINION and ORDER granting in part and denying in part defendant's 113 Motion for Summary Judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 11/5/2019. (CMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT DALE HARRIS,
Plaintiff,
v.

Case No:

2:18-cv-17-FtM-29MRM

KEVIN
RAMBOSK,
in
his
official capacity as Sheriff
of Collier County, Florida,
KASEY
P.
WINGO,
individually,
MICHAEL
D.
CHAPMAN, individually, SCOTT
PEPIN,
individually,
and
ROSS ANTHONY, individually,
Defendants.

OPINION AND ORDER
This matter comes before the Court on defendant Scott Pepin’s
Motion for Summary Judgment (Doc. #113) filed on June 10, 2019.
Plaintiff filed a Response (Doc. #128) on June 24, 2019.

For the

reasons set forth below, the motion is granted in part and denied
in part.
I.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004)(citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.
Co.

v.

M/V

Nan

Fung,

695

F.2d

1294,

1296-97

(11th

Cir.

1983)(finding summary judgment “may be inappropriate even where
the parties agree on the basic facts, but disagree about the
factual inferences that should be drawn from these facts”)).

“If

a reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant

2

summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).
Qualified

immunity

provides

“complete

protection

for

individual public officials performing discretionary functions
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”

Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th

Cir. 2012) (quotation omitted).
immunity

must

show

discretionary
occurred.”

that

authority

he

A defendant claiming qualified

acted

when

the

“within

the

allegedly

scope

of

wrongful

his
acts

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.
1991)). If that showing is made, then the plaintiff must establish
“(1) that the facts, when construed in the plaintiff's favor, show
that the official committed a constitutional violation and, if so,
(2) that the law, at the time of the official's act, clearly
established the unconstitutionality of that conduct.”

Singletary

v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015)(citation omitted).
It

is

undisputed

discretionary

that

authority

Deputy
as

a

Pepin
law

relevant times.

3

was

acting

enforcement

within

officer

at

his
all

II.
On May 2, 2018, Plaintiff filed an Amended Complaint (Doc.
#51) against defendant Scott Pepin1 (Deputy Pepin), a Collier
County Sheriff’s Office (CCSO) deputy, and others.

The Amended

Complaint asserts claims against Deputy Pepin for false arrest and
excessive force under 42 U.S.C. § 1983 (Count VIII); malicious
prosecution under § 1983 (Count IX); malicious prosecution under
Florida law (Count X); assault and battery under Florida law (Count
XI); and First Amendment retaliation under § 1983 (Count XVI).
This case – as it relates to Deputy Pepin – centers on three
events occurring on March 9, 2014, April 4, 2014, and June 10,
2014.
A.

The undisputed facts are as follows:

The March 9, 2014 Complaint to the CCSO
On March 9, 2014, Plaintiff called the CCSO to complain about

Deputy Michael D. Chapman (Deputy Chapman).
Doc. #128, p. 3.)
outside

of

a

(Doc. #113, p. 3;

Plaintiff complained that while he was sitting

McDonald’s

in

Naples,

Florida,

Deputy

Chapman

threatened to trespass Plaintiff from “all local businesses.”
(Id.)

Sergeant Bartolome Amengual (Sergeant Amengual) and Deputy

Kasey P. Wingo (Deputy Wingo) arrived at the scene and took

Deputy Pepin was not named as a defendant in the original
Complaint (Doc. #1).
1

4

Plaintiff’s complaint.

(Id.)

Deputy Pepin was not present for

Plaintiff’s March 9, 2014 complaint to the CCSO.
B.

(Id.)

The April 4, 2014 Arrest
On April 4, 2014, Plaintiff was repairing his friend Randy

Leon Sulwilcowski’s motorcycle that was warehoused at a storage
facility in Naples, Florida.
3.)

(Doc. #113, pp. 3-4; Doc. #128, p.

Deputies Chapman and Wingo encountered Plaintiff as he was

exiting the storage facility.
ultimately

arrested

(Id.)

Plaintiff

and

Deputies Wingo and Chapman
engaged

in

a

physical

altercation with Plaintiff while placing him under arrest.
#113, pp. 5-7; Doc. #128, pp. 3-4.)

(Doc.

Deputy Pepin arrived at the

scene to assist Deputies Wingo and Chapman with Plaintiff’s arrest.
(Doc. #113, p. 6; Doc. #128, pp. 3-4.)

Deputy Pepin struck

Plaintiff’s back several times with a baton and deployed his Taser
into Plaintiff’s back.

(Doc. #113, p. 6; Doc. #128, p. 4.)

Plaintiff was ultimately charged with three (3) counts of
battery on a police officer; one (1) count of assault on a police
officer; one (1) count of resisting an officer without violence;
and one (1) count of loitering and prowling.
62; Doc. #128, p. 4.)

(Doc. #51, ¶¶ 59-

On April 17, 2014, the State Attorney’s

Office filed a “Not Filing Charge” on all six counts.
p. 8; Doc. #128, p. 4.)

5

(Doc. #113,

C.

The June 10, 2014 Trespass Warning
On June 10, 2014, Plaintiff purchased donuts from Dunkin

Donuts in Naples, Florida; Plaintiff then took the donuts to the
neighboring McDonald’s, purchased a coffee from the McDonald’s,
and used his computer at an outside table.
#128, p. 5.)

(Doc. #113, p. 9; Doc.

Deputy Pepin and Deputy Sean Ellis (Deputy Ellis)

arrived at the scene, and Deputy Ellis ultimately issued Plaintiff
a trespass warning for the Dunkin’ Donuts.
#128, p. 6.)

(Doc. #113, p. 9; Doc.

Under “Reason for Contact/Other Comments” the

trespass warning states, “Trespass.
does not consent to this.”

Robert Harris stated that he

(Doc. #116-1, p. 23.)

Deputy Pepin testified at deposition that he and Deputy Ellis
were

dispatched

to

the

McDonald’s

because

the

management wanted Plaintiff to leave the premises.
pp. 75-76.)
at

the

McDonald’s
(Doc. #116,

Deputy Pepin further testified that when he arrived

McDonald’s,

Sara

Wolin,

a

Dunkin’

Donuts

employee,

approached him and asked that Deputy Pepin and Deputy Ellis2
trespass

Plaintiff

from

the

Dunkin’

Donuts

“‘harassing customers and stealing stuff.’”

because

he

was

(Doc. #116, p. 76.)

Sarah Wolin testified at deposition that she “had seen the cop
next to [Dunkin’ Donuts] at the McDonald's and [] called him over

It is unclear to the Court which other deputies were present
at the scene.
2

6

and [] asked him to have [Plaintiff] trespassed.”
18.)

(Doc. #117, p.

Sarah Wolin testified that, earlier on June 10, 2014,

Plaintiff “got upset because [she] told him that [she] couldn't
give him [free food]” and that Plaintiff “got very mad and stormed
out and then came back in and then stormed back out again.”
pp. 17-18.)

(Id.

Sarah Wolin further testified that she requested that

Plaintiff be trespassed from Dunkin’ Donuts because he had “been
coming to [her] place of employment for several months, getting
free food, making [her] uncomfortable, and [she] did not want
[Plaintiff] at [her] place of employment anymore.”

(Id. p. 21.)

III.
Deputy

Pepin

now

moves

for

summary

judgment.

As

to

Plaintiff’s claims for false arrest and excessive force (Count
VIII), malicious prosecution (Counts IX, X), and assault and
battery (Count XI), Deputy Pepin moves for summary judgment because
(1) these Counts are time-barred; and (2) Deputy Pepin is otherwise
entitled to judgment on the merits.

As to Plaintiff’s claim for

First Amendment retaliation, Deputy Pepin argues (1) there is no
evidence establishing that Deputy Pepin was motivated to issue
Plaintiff a trespass warning by Plaintiff’s March 9, 2014 complaint
about

a

fellow

officer;

(2)

“there

7

was

objective

lawful

justification for issuance of the trespass warning”; and (3) he is
entitled to qualified immunity.3
A.

(Doc. #113, p. 23.)

Whether the April 4, 2014 Arrest Claims are Time-Barred
As to the April 4, 2014 arrest, Plaintiff asserts claims

against Deputy Pepin for false arrest and excessive force (Count
VIII), malicious prosecution under § 1983 (Count IX), malicious
prosecution under Florida law (Count X), and assault and battery
under Florida law (Count XI).

Deputy Pepin argues that these

claims are time-barred.
(1)

The False Arrest Claim (Count VIII)4

Count VIII includes a claim for false arrest under § 1983.
The statute of limitations for a federal false arrest claim is
governed by Florida’s four-year statute of limitations.

Boyd v.

Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017);
Fla. Stat. § 95.11(3)(o).

This limitations period began to run on

April 6, 2014 – the date Plaintiff appeared before a magistrate in

Plaintiff argues in his Response that Deputy Pepin is not
entitled to summary judgment on Plaintiff’s § 1983 civil conspiracy
claim. (Doc. #128, pp. 17-18.) The Amended Complaint, however,
does not assert a civil conspiracy claim against Deputy Pepin.
Thus, the Court does not discuss this issue below.
3

Count VIII
excessive force.
force are separate
address each claim
4

asserts a claim for both false arrest and
Federal claims for false arrest and excessive
causes of action, and the Court will therefore
separately.

8

state court for first appearance.5

White v. Hiers, 652 F. App’x.

784, 786 (11th Cir. 2016); Wallace v. Kato, 549 U.S. 384, 388
(2001).

Thus, Plaintiff’s false arrest claim

appears to be

untimely because Plaintiff filed the Amended Complaint on May 2,
2018 – more than four years after the limitations period began to
run.
(2)

The Excessive Force and Assault and Battery Claims
(Counts VIII and XI)

Count VIII also includes an excessive force claim under §
1983, and Count XI asserts a claim for assault and battery under
Florida law.

These claims are both subject to Florida’s four-year

statute of limitations.

Boyd, 856 F.3d at 872; Scullock v. Gee,

161 So. 3d 421, 422 (Fla. 2d DCA 2014); Fla. Stat. § 95.11(3)(o).
The limitations period for these claims began to run on April 4,
2014,

when

Deputy

Pepin

allegedly

committed the assault and battery.

used

excessive

force

and

Mullinax v. McElhenney, 817

The Court takes judicial notice of Plaintiff’s first
appearance date in the public docket of his criminal case #112014-CF-000711-AXXX-XX in the Collier County Clerk of the Circuit
Court records. See Kerruish v. Essex Holdings, Inc., 777 F. App'x
285, 293 (11th Cir. 2019)(“Under Federal Rule of Evidence 201, a
court ‘may judicially notice a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.’” (quoting Fed. R. Evid. 201(b)(2)).
5

9

F.2d 711, 716 (11th Cir. 1987); Scullock, 161 So. 3d at 422.

Thus,

Plaintiff’s claims for excessive force and assault and battery
appear untimely because Plaintiff filed the Amended Complaint on
May 2, 2018 – more than four years after the limitations period
began to run.
(3)

The Malicious Prosecution Claims (Counts IX and X)

Count IX asserts a claim for malicious prosecution under §
1983 and Count X asserts a malicious prosecution claim under
Florida law.

Both malicious prosecution claims are governed by

Florida’s four-year statute of limitations.

Uboh v. Reno, 141

F.3d 1000, 1002 (11th Cir. 1998); Olson v. Johnson, 961 So. 2d
356, 359 (Fla. 2d DCA 2007); Fla. Stat. § 95.11(3)(o).

The

limitations period on Plaintiff’s federal and state malicious
prosecution claims began to run when the State filed its “Not
Filing Charge” on April 17, 2014.
961 So. 2d at 359.

Uboh, 141 F.3d at 1002; Olson,

The Court thus finds Counts IX and X appear to

be untimely because Plaintiff filed the Amended Complaint on May
2, 2018 – more than four years after the limitations period began
to run.
(4)

Whether Equitable Estoppel Applies

Although Counts VIII, IX, X, and XI appear untimely, Plaintiff
contends these Counts are not time-barred under the doctrine of
equitable

estoppel.

The

Court

inapplicable in this case.

10

finds

equitable

estoppel

The “doctrine of equitable estoppel acts as a bar to a statute
of limitations defense.”
2d DCA 2009).

Meyer v. Meyer, 25 So. 3d 39, 42 (Fla.

It is premised upon “principles of fair play and

essential justice and arises when one party lulls another party
into a disadvantageous legal position . . . .”

Major League

Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001).
doctrine

“presupposes

that

the

plaintiff

knows

of

the

The
facts

underlying the cause of action but delayed filing suit because of
the defendant's conduct.”

Ryan v. Lobo De Gonzalez, 841 So. 2d

510, 518 (Fla. 4th DCA 2003).

For a plaintiff to successfully

assert an equitable estoppel defense, the defendant’s wrongdoing
– “such as fraud [or] concealment” – must cause the plaintiff’s
delay in filing his lawsuit.

Fla. Dep't of Health & Rehab. Servs.

v. S.A.P, 835 So. 2d 1091, 1097 (Fla. 2002).
Plaintiff contends equitable estoppel applies because, after
being released from jail in January of 2017 for a December 2016
arrest, he “was looking for a place to live, which made it
difficult to communicate and review the facts and issues in this
case and to determine the true extent of [Deputy] Pepin's role in
his case.” (Doc. #128, p. 19.) Plaintiff further argues equitable
estoppel applies because Deputy Pepin’s “willingness to change his
sworn PRB testimony at deposition [] is an indication that he was
willing to conceal his actions in this case.”

11

(Id.)

The Court is unpersuaded that equitable estoppel applies in
this case.

Plaintiff has failed to establish how his housing

situation in 2017 is attributable to Deputy Pepin and resulted in
a “delayed filing [] because of [Deputy Pepin’s] conduct.”
De Gonzalez, 841 So. 2d at 518.

Lobo

Similarly, Plaintiff has failed

to establish how Deputy Pepin’s “willingness to change his sworn
PRB testimony at deposition” (Doc. #128, p. 19) constitutes a
“fraud [or] concealment” that delayed Plaintiff in timely filing
Counts VIII, IX, X, and XI.

S.A.P, 835 So. 2d at 1097.

Plaintiff

obviously knew of Deputy Pepin’s conduct when it occurred since he
was the alleged victim.

The Court thus finds Plaintiff has not

established that equitable estoppel applies in this case.
(5)

The Amended Complaint Relates Back to the Original
Complaint

While Counts VIII, IX, X, and XI appear to be untimely as
discussed above, and although equitable estoppel does not apply in
this case, the Court does not agree with Deputy Pepin that Counts
VIII, IX, X, and XI are time-barred.

Rather, the Court finds these

Counts are timely because they relate back to the timely claims
set forth in the January 9, 2018 original Complaint (Doc. #1).
Rule 15(c)(1) provides that “[a]n amendment to a pleading
relates back to the date of the original pleading” under three
circumstances:

12

(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out-or attempted to be set out--in the original pleading;
or
(C) the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will
not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.
Under Rule 15(c)(1)(B), Plaintiff’s claims against Deputy Pepin
arise out of the same conduct set forth in the original Complaint
(Doc. #1).

As in the Amended Complaint, the original Complaint

alleges that (1) Deputy Pepin “was one of the responding deputies
to [Plaintiff’s] April 4, 2014 arrest”; (2) Deputy “Pepin [] use[d]
his baton to strike [Plaintiff] on his back several times”; and
(3) Deputy “Pepin was also present during the Dunkin' Donuts'
trespass.”

(Doc. #1, ¶¶ 52, 66.)

The Court thus finds that Counts

VIII, IX, X, and XI in the Amended Complaint relate back to the
original

Complaint.

See

Mayle

v.

Felix,

545

U.S.

644,

659

(2005)(“[R]elation back depends on the existence of a common core
of operative facts uniting the original and newly asserted claims.”
(citation and quotation omitted)).

13

Because Counts VIII, IX, X, and XI in the Amended Complaint
relate back to the original Complaint, and since the original
Complaint was filed within the applicable four-year statute of
limitations, the Court finds Counts VIII, IX, X, and XI are timely.
See Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285
(11th Cir. 2000)(“If the new claims relate back to the original
claims, [courts] must consider the new claims as having been filed
at the time of the original claims.”).

Thus, the Court next

considers whether Deputy Pepin is entitled to summary judgment on
the merits of these claims.
B.

Whether Deputy Pepin is Entitled to Summary Judgment on the
Merits of Plaintiff’s April 4, 2014 Claims
(1)

The Excessive Force Claim (Count VIII)

Count VIII includes an excessive force claim6 under § 1983.
Deputy Pepin moves for summary judgment on Plaintiff’s claim for
excessive force because (1) Deputy Pepin’s use of force was
objectively

reasonable;

and

(2)

Deputy

Pepin

is

entitled

to

qualified immunity because it was not clearly established as of
April

4,

2014

that

Deputy

Pepin’s

use

of

force

constituted

excessive force.

As discussed earlier, Count VIII asserts claims for both
false arrest and excessive force, which are distinct causes of
action.
The Court will therefore address the false arrest and
excessive force claims separately.
6

14

A claim that a law enforcement officer used excessive force
in the course of an arrest is analyzed under the Fourth Amendment
and its objective reasonableness standard.

Graham v. Connor, 490

U.S. 386, 395 (1989); Wilson v. Northcutt, 987 F.2d 719, 722 (11th
Cir. 1993).

“The Fourth Amendment's freedom from unreasonable

searches and seizures encompasses the plain right to be free from
the use of excessive force in the course of an arrest.”

Lee v.

Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)(citation omitted).
In

determining

whether

an

officer

used

excessive

force

in

effectuating an arrest, the Court considers “[1] the severity of
the crime at issue, [2] whether the suspect poses an immediate
threat to the safety of the officers or others, and [3] whether he
is actively resisting arrest or attempting to evade arrest by
flight.”

Graham v. Connor, 490 U.S. 386, 396 (1989)(citation

omitted).
Here, the video footage from Sergeant Amengual’s dashcam
shows that Deputy Pepin struck Plaintiff’s back several times with
a baton and deployed his Taser into Plaintiff’s back as Plaintiff
was on the floor with two deputies on top of him.

(Amengual

Dashcam Video, at 4:34-4:55.) Deputy Pepin argues his use of force
was reasonable because he “could reasonably believe that the
[deputies at the scene] were fighting [with Plaintiff] and that
use of pain compliance in the form of asp baton strikes or taser
applications was warranted.”

(Doc. #113, p. 19.)

15

Deputy Pepin

asserts that when he used the baton and Taser, Plaintiff “did not
have his hands behind his back for handcuffing and was still
actively, physically resisting arrest.”

(Id. p. 7.)

Plaintiff,

however, testified at deposition that Pepin struck him with the
baton and deployed the Taser into his back while he had his hands
behind his back and was being handcuffed.

(Doc. #114, p. 177.)

The video footage from Sergeant Amengual’s dashcam does not
definitively corroborate either Plaintiff’s or

Deputy Pepin’s

version of events, as it is unclear whether Plaintiff was resisting
while Deputy Pepin deployed his Taser and struck Plaintiff with
the baton.

Viewing the facts in the light most favorable to

Plaintiff, a jury may reasonably determine that Deputy Pepin used
excessive force by Tasering Plaintiff and striking him with a baton
as Plaintiff was on the floor, with two deputies on top of him,
and with his hands behind his back during handcuffing.

Indeed,

under Plaintiff’s version of events, such “gratuitous use of force
when

a

criminal

excessive force.”
Cir. 2008).

suspect

is

not

resisting

arrest

constitutes

Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th

Given the disputed record and inconclusive video

footage, a jury must ultimately resolve the material issues of
fact relating to Deputy Pepin’s use of force.
Further, as to the issue of qualified immunity, it was clearly
established as of April 4, 2014 that an officer uses excessive
force by “beating” an arrestee laying on the ground who “[a]t no

16

point was [] fighting back or attempting to escape.”
Herbert, 527 F.3d 1253, 1273 (11th Cir. 2008).

Reese v.

Thus, on this

record, the Court cannot conclude that Deputy Pepin is entitled to
qualified immunity on Plaintiff’s claim for excessive force.
(2)

The False Arrest Claim (Count VIII)

Count VIII also includes a false arrest claim under § 1983.
Deputy Pepin argues he is entitled to summary judgment because he
had probable cause to arrest Plaintiff on April 4, 2014.

Deputy

Pepin alternatively argues that even if he lacked probable cause
to arrest Plaintiff, he had arguable probable cause to arrest
Plaintiff and is thus qualified immunity on Plaintiff’s false
arrest claim.

The Court disagrees.

“Probable cause to arrest exists . . . when an arrest is
objectively

reasonable

circumstances.”

based

on

the

totality

of

the

Coffin v. Brandau, 642 F.3d 999, 1006 (11th Cir.

2011)(citation and quotation omitted).

This standard is satisfied

where “the facts within the collective knowledge of law enforcement
officials, derived from reasonably trustworthy information, are
sufficient to cause a person of reasonable caution to believe that
a criminal offense has been or is being committed.”

Brown v. City

of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010).
Eleventh Circuit has recently stated:
“Because
probable
cause
deals
with
probabilities and depends on the totality of
the circumstances, it is a fluid concept that

17

The

is not readily, or even usefully, reduced to
a neat set of legal rules.” District of
Columbia v. Wesby, ––– U.S. –––, 138 S. Ct.
577, 586, 199 L.Ed.2d 453 (2018) (quotation
marks omitted). It “requires more than mere
suspicion, but does not require convincing
proof.” Bailey v. Bd. of Cty. Comm’rs, 956
F.2d 1112, 1120 (11th Cir. 1992); see Wesby,
138 S. Ct. at 586 (“It requires only a
probability or substantial chance of criminal
activity, not an actual showing of such
activity.”) (quotation marks omitted). All in
all, it’s “not a high bar.” Wesby, 138 S. Ct.
at 586.
Gill, as Next Friend of K.C.R. v. Judd, No. 17-14525, 2019 WL
5304078, at *6 (11th Cir. Oct. 21, 2019).
Although

an

arrest

without

probable

cause

“violates

the

Fourth Amendment, this does not inevitably remove the shield of
qualified immunity.”

Skop v. City of Atlanta, GA, 485 F.3d 1130,

1137 (11th Cir. 2007).

Indeed, an officer who “make[s] an arrest

without probable cause [is] entitled to qualified immunity if there
was arguable probable cause for the arrest.”

Kingsland v. City of

Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)(citation omitted).
Arguable probable cause exists “where reasonable officers in the
same

circumstances

and

possessing

the

same

knowledge

as

the

Defendant[] could have believed that probable cause existed to
arrest.”

Lee

v.

Ferraro,

284

F.3d

1188,

1195

(11th

Cir.

2002)(citation and quotation omitted).
The arguable probable cause standard “is an objective one and
does not include an inquiry [into] the officer's subjective intent

18

or beliefs.”

Brown v. City of Huntsville, Ala., 608 F.3d 724, 735

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

Whether an officer possessed

arguable probable cause “depends on the elements of the alleged
crime and the operative fact pattern.”

Id. (citation omitted).

Deputy Pepin contends he had probable cause or arguable
probable cause to arrest Plaintiff for resisting an officer with
violence under Fla. Stat. § 843.01, and resisting an officer
without violence under Fla. Stat. § 843.02.

The resisting with

violence statute provides that:
Whoever knowingly and willfully resists, obstructs, or
opposes [a law enforcement] officer . . . in the
execution of legal process or in the lawful execution of
any legal duty[] by offering or doing violence to the
person of such officer or legally authorized person, is
guilty of a felony of the third degree.
Fla. Stat. § 843.01.

The resisting without violence statute

provides that:
Whoever shall resist, obstruct, or oppose [a law
enforcement] officer . . . in the execution of legal
process or in the lawful execution of any legal duty,
without offering or doing violence to the person of the
officer, shall be guilty of a misdemeanor of the first
degree.
Fla. Stat. § 843.02.
Deputy

Pepin

asserts

he

had

probable

cause

or

arguable

probable cause to arrest Plaintiff for these offenses because “from
[Deputy] Pepin's perspective it appeared that [Plaintiff] was
physically resisting commands to allow himself to be handcuffed”
and “it would objectively have appeared to [Deputy] Pepin that

19

[Plaintiff] was non-compliant with commands to turn over or to
give up his arm so as to be handcuffed.”

(Doc. #113, p. 7.)

As

noted supra, Sergeant Amengual’s dashcam does not definitively
corroborate

either

Plaintiff’s

or

Deputy

Pepin’s

version

of

events, as it is unclear whether Plaintiff was resisting during
handcuffing.

Thus, on this record, the Court cannot conclude that

Deputy Pepin had probable cause or arguable probable cause to
arrest Plaintiff for resisting an officer with or without violence
on the basis asserted by Deputy Pepin.

Deputy Pepin’s motion is

therefore denied as to the false arrest claim included in Count
VIII.
(3)

The Malicious Prosecution Claims (Counts IX and X)

Count IX asserts a federal malicious prosecution claim under
§ 1983 and Count X asserts a malicious prosecution claim under
Florida law.

Deputy Pepin argues he is entitled to summary

judgment on Counts IX and X because Plaintiff has not established
the element of causation.

The Court disagrees.

Both federal and state law claims for malicious prosecution
are comprised of six elements:
(1) an original judicial proceeding against the present
plaintiff was commenced or continued; (2) the present
defendant was the legal cause of the original
proceeding; (3) the termination of the original
proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff; (4) there
was an absence of probable cause for the original
proceeding; (5) there was malice on the part of the

20

present defendant; and (6) the plaintiff suffered
damages as a result of the original proceeding.
Kingsland

v.

City

of

Miami,

2004)(citations omitted).

382

F.3d

1220,

1234

(11th

Cir.

An officer is the “legal cause of the

original proceeding” when his conduct “was the proximate and
efficient cause of putting the law in motion.”

Harris v. Lewis

State Bank, 482 So. 2d 1378, 1381 (Fla. 1st DCA 1986).
As to Plaintiff’s charge for battery on a law enforcement
officer, Deputy Pepin’s Supplemental Narrative Report authored on
April 4, 2014 states that Plaintiff “actively fought against Cpl
Guth and Cpl Wingo” and that Plaintiff was “trying to move his
arms to defeat the deputies.”

(Doc. #113-4, p. 64.)

Deputy Pepin

argues this Supplemental Narrative Report cannot establish the
legal causation element because Deputy Chapman, not Deputy Pepin,
authored the initial Incident Report detailing Plaintiff’s arrest.
The

Court

is

unpersuaded,

however,

because

Deputy

Chapman’s

Incident Report, in detailing Plaintiff’s physical resistance,
references Deputy Pepin’s account as set forth in his Supplemental
Narrative Report.
Viewing

this

(Doc. #113-4, p. 57.)
evidence

in

the

light

most

favorable

to

Plaintiff, a jury may reasonably find that Deputy Pepin “was the
proximate and efficient cause of putting the law in motion.”

21

Harris, 482 So. 2d at 1381.

For the foregoing reasons, Deputy

Pepin’s motion is denied as to Counts IX and X.7
(4)

The Assault and Battery Claim (Count XI)

Count XI asserts a claim for assault and battery under Florida
law.

Deputy Pepin argues he is entitled to summary judgment on

Count XI because (1) Deputy Pepin’s use of force was objectively
reasonable

under

the

circumstances;

and

(2)

Deputy

Pepin

is

entitled to immunity under Florida law pursuant to Fla. Stat. §
768.28(9).
A Florida law claim for assault and battery against a law
enforcement officer is governed by the objective reasonableness
standard of a federal excessive force claim.

See Christie ex rel.

estate of Christie v. Scott, 923 F. Supp. 2d 1308, 1328 (M.D. Fla.
2013)(“[T]he crux of a state-law assault and battery claim against
[] officers is whether a reasonable officer would believe that
this level of force is necessary in the situation at hand.”
(citation and quotation omitted)).

Thus, because of the material

issues of fact discussed supra, the Court cannot determine whether
Deputy Pepin’s use of force was objectively reasonable.

As to the state law claim for malicious prosecution, Deputy
Pepin also argues he is entitled to immunity under Florida law
pursuant to Fla. Stat. § 768.28(9). However, given the issues of
fact concerning Plaintiff’s resistance discussed infra, the Court
cannot conclude that Deputy Pepin is entitled to such state-law
immunity.
7

22

As to the issue of immunity under state law, Fla. Stat. §
768.28(9) “protects an officer from personal liability for acts
within the scope of his employment, unless the officer ‘acted in
bad faith or with malicious purpose or in a manner exhibiting
wanton

and

property.’”

willful

disregard

of

human

rights,

safety,

or

Claridy v. Golub, 632 F. App'x 565, 571 (11th Cir.

2015)(quoting Fla. Stat. § 768.28(9)).

However, such immunity is

inapplicable where “a reasonable trier of fact could possibly
conclude that the conduct was willful and wanton . . . .”

Furtado

v. Yun Chung Law, 51 So. 3d 1269, 1277 (Fla. 4th DCA 2011).
As

discussed

Amengual’s

dashcam

earlier,
does

the

not

video

footage

definitively

from

Sergeant

corroborate

either

Plaintiff’s or Deputy Pepin’s version of events, as it is unclear
whether

Plaintiff

was

resisting

when

Deputy

Plaintiff and struck his back with a baton.

Pepin

Tasered

Under Plaintiff’s

version of events, Deputy Pepin used such force when Plaintiff had
his hands behind his back and was being handcuffed.

If true, a

jury may reasonably “conclude that [Deputy Pepin’s] conduct was
willful and wanton . . . .”

Furtado, 51 So. 3d at 1277.

Given

the issues of fact concerning Deputy Pepin’s use of force, the
Court cannot conclude that Deputy Pepin is entitled to state-law
immunity pursuant to Fla. Stat. § 768.28(9).

See Golub, 632 F.

App'x at 571(“Defendant is not entitled to summary judgment . . .
based on immunity provided by § 768.28(9)(a)” where there is “a

23

question of fact as to whether Defendant acted willfully or with
malice.”).
C.

Plaintiff’s First Amendment Retaliation Claim (Count XVI)
Relating to the June 10, 2014 Trespass Warning
Count XVI8 asserts a First Amendment retaliation claim under

§ 1983.

It alleges that Defendant Pepin had a Dunkin’ Donuts

employee “agree to issue a trespass warning to [Plaintiff] even
though he had just purchased two donuts and had left without being
asked” in retaliation for Plaintiff’s March 9, 2014 complaint to
the CCSO.

(Doc. #51, ¶¶ 363, 369).

Defendant Pepin argues Count

XVI should be dismissed because he is entitled to qualified
immunity.9
To

The Court agrees.

establish

a

First

Amendment

retaliation

claim,

“a

plaintiff must demonstrate that (1) he engaged in protected speech;
(2)

the

defendant's

conduct

adversely

affected

the

protected

speech; and (3) a causal connection exists between the speech and

The Amended Complaint uses “Count XVI” twice, with one Count
XVI asserting a First Amendment retaliation claim against Deputy
Pepin (Doc. #51, p. 60), and the other Count XVI asserting an
excessive force and false arrest claim against Deputy Wingo (Doc.
#51, p. 67).
The following analysis applies to the Count XVI
asserted against Deputy Pepin.
8

Deputy Pepin also argues he is entitled to summary judgment
because there is no evidence establishing that Deputy Pepin was
motivated to issue Plaintiff a trespass warning by Plaintiff’s
March 9, 2014 complaint. However, the Court need not reach that
issue for the reasons set forth below.
9

24

the defendant's retaliatory actions.”
473,

480

(11th

Cir.

Bailey v. Wheeler, 843 F.3d

2016)(citations

omitted).

It

is

“well

established” that “state officials can act lawfully even when
motivated by a dislike or hostility to certain protected behavior
by a citizen . . . .”

Foy v. Holston, 94 F.3d 1528, 1534 (11th

Cir. 1996)(citation omitted).
for

summary

judgment

purposes

Thus, “[w]here the facts assumed
in

a

case

involving

qualified

immunity show mixed motives (lawful and unlawful motivations) and
pre-existing law does not dictate that the merits of the case must
be decided in plaintiff's favor, the defendant is entitled to
immunity.”

Id. at 1535(emphasis in original).

Here, the uncontroverted testimony in this case establishes
that Sarah Wolin asked Deputies Pepin and Ellis to issue Plaintiff
a trespass warning for the Dunkin’ Donuts.10 This justifies issuing
a trespass warning.

See Gestewitz v. State, 34 So. 3d 832, 834-

35 (Fla. 4th DCA 2010)(“[A] police officer . . . may issue a
trespass warning for unauthorized entrance into a structure” at

Plaintiff disputes that Deputy Pepin was dispatched to
McDonald’s before Dunkin’ Donuts, arguing the CAD Detail Report
“show[s] that there was no call for service to McDonalds, but only
a field-initiated call to Dunkin Donuts.”
(Doc. #128, p. 7)
(emphasis in original.) The CAD Audit Report, however, clearly
notes that Deputy Pepin first arrived at McDonald’s in an “Incident
Initiated By: SO/MONPLAISIR, NATALIE” at 8:56 P.M. (Doc. #116-1,
p. 29.) The CAD Audit Report further reflects that the “Incident
Type” was changed from a suspicious person at McDonald’s to a “43:
Trespassing” at Dunkin’ Donuts at 9:02 P.M. (Id.)
10

25

the

request

of

“a

‘person

authorized’

to

issue

a

trespass

warning.”); Fla. Stat. § 810.08(3)(defining “the term ‘person
authorized’” to include “any owner or lessee, or his or her
agent.”).
Even assuming Deputy Pepin was motivated to issue the trespass
warning by Plaintiff’s March 9, 2014 complaint, Deputy Pepin is
entitled to qualified immunity unless it was clearly established
as of June 10, 2014 that a law enforcement officer could not issue
a trespass warning under the circumstances of this case.
F.3d at 1534.

Foy, 94

Plaintiff cites to no legal authority – and the

Court is aware of none – establishing that a law enforcement
officer violates the First Amendment by issuing a trespass warning
at the request of a business establishment’s employee, even if the
officer

had

an

unlawful

motive

for

issuing

the

warning.

Accordingly, Deputy Pepin is entitled to qualified immunity on
Plaintiff’s

First

Amendment

retaliation

claim.

Id.

at

1536

(holding that where “[d]efendants' conduct [was] arguably proper
even if [d]efendants were motivated in substantial part by unlawful
motives, [d]efendants' conduct was objectively reasonable for the
purposes of qualified immunity” and defendants were entitled to
summary judgment on the plaintiff’s First Amendment retaliation
claim).

Deputy Pepin’s motion is therefore granted as to Count

XVI.
Accordingly, it is now

26

ORDERED:
1.

Defendant Scott Pepin’s Motion for Summary Judgment

(Doc. #113) is GRANTED IN PART AND DENIED IN PART.
2.

The motion is GRANTED as to Count XVI.

3.

The motion is DENIED as to Counts VIII, IX, X, and XI.

4.

The Clerk shall withhold the entry of judgment until the

conclusion of the case.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2019.

Copies: Counsel of record

27

5th

day of