Harris v. Rambosk et al

Filing 75

OPINION and ORDER granting defendant's 63 motion to dismiss. Signed by Judge John E. Steele on 10/18/2018. (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, BRIAN
R.
WIEDEL,
individually,
SCOTT PEPIN, individually,
and
ROSS
ANTHONY,
individually,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
Ross Anthony’s Motion to Dismiss Amended Complaint (Doc. #63) filed
on June 8, 2018.

Plaintiff filed a Response in Opposition (Doc.

#66) on June 21, 2018.

For the reasons set forth below, the motion

is granted.
I.
This

case

arises

out

of

an

alleged

conspiracy

by

law

enforcement officials of the Collier County Sheriff’s Office (the
CCSO)

to

harass

plaintiff

Robert

Dale

Harris

(Plaintiff).

According to the Amended Complaint1 (Doc. #51): On March 9, 2014,
between the hours of 3:30 A.M. and 4:30 A.M., Plaintiff was a
customer at a McDonald’s located at 8875 Davis Boulevard in Naples,
Florida, and was seated at an outside table.

(Id. ¶¶ 17-18.)

Around that time, Deputy Michael D. Chapman (Defendant Chapman)
arrived at the McDonald’s to assist a McDonald’s customer who had
locked his keys inside of his vehicle. (Id. ¶ 19.) After assisting
that customer with his vehicle, Defendant Chapman

–

who had

encountered Plaintiff in the past – recognized Plaintiff and
threatened to trespass him from the McDonald’s “and any other
business establishment in Naples, whenever he would see him.” (Id.
¶¶ 20-21.)
Immediately

after

the

encounter

with

Defendant

Chapman,

Plaintiff called the CCSO to report Defendant Chapman’s threat.
(Id. ¶ 22.)

Sergeant Amengual was dispatched to the McDonald’s

and took Plaintiff’s complaint about Defendant Chapman.

(Id.)

On May 29, 2014, Deputy Ross Anthony (Defendant Anthony)
followed Plaintiff into a Waffle House restaurant located at 3824
Tollhouse Drive in Naples, Florida, and asked Plaintiff to speak
with him outside.

(Id. ¶ 65.)

Plaintiff asked Defendant Anthony

why he was being stopped, but Defendant Anthony “refuse[d] to give

Because this lawsuit involves multiple defendants who have each
separately responded to the Amended Complaint, the Court only
recounts the factual allegations relevant to the instant Motion to
Dismiss.
1

2

him a reason.”

(Id. ¶ 66.)

Plaintiff eventually complied with

Defendant Anthony’s request after Defendant Anthony “threaten[ed]
to pepper-spray [Plaintiff] if he d[id] not step outside . . . .”
(Id.)

Once Plaintiff stepped outside, Defendant Anthony placed

Plaintiff in handcuffs and issued him a trespass warning for the
Waffle House restaurant.

(Id. ¶ 67.)

While Plaintiff was in handcuffs outside of the Waffle House,
Defendant Anthony walked to the Shell gas station next to the
Waffle House and informed a Shell employee “that he intend[ed] to
issue [Plaintiff] a trespass warning” for the Shell gas station.
(Id. ¶ 68.)
not

That Shell employee later told Plaintiff “that he did

voluntarily

authorize

[Defendant

Anthony]

to

trespass

[Plaintiff], but felt that he had no choice, and did so ‘to keep
the peace’ with [the CCSO].”

(Id. ¶ 69.)

On the Waffle House and

Shell trespass warning reports, Defendant Anthony stated that
Plaintiff “was ‘bothering customers’” at a nearby Circle K gas
station.

(Id. ¶ 70.)

This lawsuit followed.
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)

3

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

4

Iqbal, 556

III.
The Amended Complaint asserts a First Amendment retaliation
claim under 42 U.S.C. § 1983 (Count XVI) against Defendant Anthony
in his individual capacity.

Defendant Anthony argues Count XVI

should be dismissed because he is entitled to qualified immunity.
The Court agrees.
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).

To be entitled to qualified

immunity, “a government official first must prove that he was
acting within his discretionary authority” when the allegedly
unlawful acts occurred.

Cottone v. Jenne, 326 F.3d 1352, 1357

(11th Cir. 2003).
Here,

the

Amended

Complaint

clearly

establishes

that

Defendant Anthony was acting within his discretionary authority as
a CCSO sheriff’s deputy.

Thus, the Court next considers whether

qualified immunity is appropriate in this case. Bailey v. Wheeler,
843 F.3d 473, 480 (11th Cir. 2016).
The Court conducts a two-step analysis to determine whether
qualified

immunity

is

appropriate.

Id.

First,

the

Court

determines whether the facts, viewed in the light most favorable

5

to

Plaintiff,

demonstrate

that

Defendant

Anthony’s

conduct

violated a constitutional right. Id. Second, the Court determines
whether the constitutional right was clearly established at the
time of the alleged violation.

Id.

To state 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

defendant's

connection

retaliatory

exists

between

actions.”

the

Bailey,

speech

843

F.3d

and

the

at

480.

Defendant Anthony argues that Plaintiff has failed to satisfy the
causal connection element.
To

establish

a

causal

connection

between

a

plaintiff’s

protected speech and a constitutional violation, the plaintiff
“must

show

discipline
rights.”

that
the

the

defendant

plaintiff

for

was

exercising

his

motivated

First

to

Amendment

Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)

(quotation and citation omitted).
the

subjectively

subjective

motivation

At the motion to dismiss stage,

requirement

is

satisfied

if

the

plaintiff identifies a sequence of events from which a retaliatory
motive can be inferred.

Smith v. Fla. Dep't of Corr., 375 F. App'x

905, 911 (11th Cir. 2010).
Here, the Court finds that Plaintiff has failed to allege
sufficient facts to satisfy the causal connection element.

While

Plaintiff contends that Defendant Anthony unlawfully threatened to

6

issue trespass warnings to Plaintiff on May 29, 2014 in retaliation
for Plaintiff’s complaint to Sergeant Amengual about Defendant
Chapman,

the

Amended

Complaint

alleges

no

facts

plausibly

indicating that Defendant Anthony was even aware of Plaintiff’s
complaint

to

Sergeant

Amengual.

The

Court

therefore

finds

Plaintiff has failed to sufficiently allege that Defendant Anthony
was

“subjectively

motivated

to

discipline

exercising his First Amendment rights.”

[Plaintiff]

for

Moton, 631 F.3d at 1341;

Abella v. Simon, 482 F. App'x 522, 523 (11th Cir. 2012) (noting
that the plaintiff failed to satisfy the causal connection element
when the complaint merely alleged that the defendant “might have
had

knowledge”

about

the

plaintiff’s

protected

speech).

Accordingly, Plaintiff has not stated a legally sufficient First
Amendment retaliation claim.
Because Plaintiff has failed to plausibly allege a First
Amendment violation, Defendant Anthony is entitled to qualified
immunity. See Williams v. Bd. of Regents of Univ. Sys. of Georgia,
477 F.3d 1282, 1300 (11th Cir. 2007) (“If a defendant asserts a
qualified immunity defense in a Rule 12(b)(6) motion to dismiss,
the court should grant qualified immunity if the plaintiff's
complaint fails to allege a violation of a clearly established
constitutional or statutory right.”).
dismissed without prejudice.

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Count XVI is therefore

Accordingly, it is now
ORDERED:
1.

Defendant’s Motion to Dismiss Amended Complaint (Doc.

#63) is GRANTED.
2.

Count XVI against defendant Ross Anthony is DISMISSED

WITHOUT PREJUDICE.
3.

Plaintiff may file an amended Count XVI within FOURTEEN

(14) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this ___18th___ day
of October, 2018.

Copies: Counsel of record

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