Hastings v. City Fort Myers et al
Filing
101
ORDERED: Defendants' Motion for Summary Judgment (Doc. 97) is GRANTED. The Clerk is DIRECTED to enter judgment, deny any pending motions as moot, terminate any deadlines, and close the case. The Clerk is DIRECTED to terminate Defendants City of Fort Myers, Nicolas Mamalis, and Alesha Morel retroactively to March 11, 2021. Signed by Judge Sheri Polster Chappell on 11/16/2021. (AEH)
Case 2:18-cv-00081-SPC-MRM Document 101 Filed 11/17/21 Page 1 of 11 PageID 1496
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID SCOTT HASTINGS,
Plaintiff,
v.
Case No: 2:18-cv-81-SPC-MRM
STEPHEN B. RUSSELL and
NATALIE K. SAVINO,
Defendants.
/
OPINION AND ORDER1
Before the Court is Defendant Stephen B. Russell and Natalie K.
Savino’s2 Motion for Summary Judgment (Doc. 97).
Hastings, appearing pro se, has not responded.3
Plaintiff David Scott
The Court’s Summary
Judgment Notice informed Hastings he had 21 days to respond and his failure
to respond signifies that he does not oppose the Motion, that all properly
supported material facts submitted by Defendants will be admitted, and that
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1
The claims against the City of Fort Myers, Nicolas Mamalis, and Alesha Morel were
dismissed on March 11, 2021 (Doc. 72), but those Defendants were not terminated from the
case. The Court will direct the Clerk to terminate them.
2
Hastings was a prisoner when this case was filed but he has since been released. His
mailing address is in San Diego, California.
3
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he may not rely solely on allegations in the unverified pleadings. (Doc. 100).
Hastings has litigated several other cases in this Court, some through
summary judgment. Thus, Hastings knows how civil litigation proceeds and
there is a deadline to respond to motions. Thus, the Court will consider the
Motion on the merits without a response, deeming all properly supported
material facts admitted. After considering the Motion (Doc. 97), the record
(Doc. 99), and the law, the Court grants the Motion.
BACKGROUND
This is a civil rights case brought under 42 U.S.C. § 1983 against state
officials involved with a 2014 felony aggravated stalking case (14-CF-12), and
a 2017 misdemeanor stalking case (17-MM-389) against Hastings. The felony
stalking charges stem from his violation of a no contact order entered in Lee
County, Florida (13-DR-1298) between him and his ex-wife. What remains
following dismissal of multiple claims and defendants (Doc. 72, Doc. 90) are
two counts (Counts IV and V) against two defendants.
Count IV is against Stephen B. Russell, the former State Attorney for
the Twentieth Judicial Circuit, in his individual capacity,4 under the Fifth,
Sixth, and Fourteenth Amendments for interfering with Hastings’ right to
counsel by intimidating or influencing his counsel to withdraw. Hastings
4
The official capacity claim was dismissed on immunity grounds. (Doc. 45).
2
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contends that his counsel, W.F. “Casey” Ebsary, Jr., withdrew from
representation because he was unlawfully intimidated or influenced by
Russell. (Doc. 99-5 at 2). Hastings also asserts that Russell influenced and
intimidated attorney Douglas Molloy. (Doc. 99-5 at 2).
Count V is against Natalie K. Savino, the Assistant State Attorney who
prosecuted the misdemeanor case, in her individual capacity,5 for violating
Hastings’ due process rights under the Fifth and Fourteenth Amendments by
overstating to the state court the number of subpoenas issued to his ex-wife in
his divorce case. (Doc. 27). Hastings alleges that Savino “in an attempt to
have the presiding Judge deny [his] Motion to Issue Subpoenas and
Depositions, falsely stated under oath that the Plaintiff had ‘issued over 400
subpoenas against the alleged victim and used the process to harass the victim
in the divorce case.’” (Doc. 27 at 22-23).
LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it
“might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a material fact is in genuine
5
The official capacity claim was dismissed on immunity grounds. (Doc. 45).
3
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dispute “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. At this stage, courts must view all facts and
draw all reasonable inferences in the light most favorable to the nonmoving
party. Rojas v. Fla., 285 F.3d 1339, 1341-42 (11th Cir. 2002).
DISCUSSION
A. Influencing and intimidating counsel (Count IV) against
Stephen Russell
“Section 1983 creates a private cause of action for deprivations of federal
rights by persons acting under color of state law.” Laster v. City of Tampa
Police Dept., 575 F. App’x 869, 872 (11th Cir. 2014) (citing 42 U.S.C. § 1983).
To state a claim under 42 U.S.C. § 1983, Hastings must allege that: (1)
Defendants deprived him of a right secured under the United States
Constitution or federal law, and (2) such deprivation occurred under color of
state law. Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998); U.S.
Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001).
Although Hastings brings Count IV under the Fifth, Sixth, and
Fourteenth Amendments, the Court considers the claim under only the Sixth
Amendment.
The Fifth Amendment protects a citizen’s rights against
infringement by the federal government, not by the state government, which
we have here. Weiland v. Palm Beach Cty. Sheriff’s Ofc., 792 F.3d 1313, 1328
(11th Cir. 2015). As for the Fourteenth Amendment, “[w]here a particular
4
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Amendment provides an explicit textual source of constitutional protection
against a particular government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the guide for analyzing
these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994). Thus, the Court
considers Hastings’ claim against Russell under the Sixth Amendment right to
assistance of counsel.
The Sixth Amendment protects the rights of the accused in criminal
prosecutions. It provides that:
the right to a speedy and public trial, by an impartial jury ... and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
U.S. CONST. amend. VI. An element of the right to assistance of counsel is
“the right of a defendant who does not require appointed counsel to choose who
will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006).
“Deprivation of the right is ‘complete’ when the defendant is erroneously
prevented from being represented by the lawyer he wants, regardless of the
quality of the representation he received.” Id. at 146.
Hastings alleges that Russell’s actions unlawfully interfered with his
Sixth Amendment right to counsel of his choosing. Hastings states Ebsary was
“terminated” on June 5, 2017, because he was intimidated or influenced by
Russell. (Doc. 99-4 at 1).
Hastings bases this belief on Ebsary allegedly
5
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informing him that (1) “under no defense presented” would Hastings not be
found to have violated probation and that the State was seeking the maximum
sentence, (2) the State would sentence him to “shut him up” because of the civil
lawsuits Hastings filed, and (3) that “Steve Russell has a personal vendetta
against Plaintiff.” (Doc. 99-4 at 1).
Ebsary was deposed during this case. (Doc. 99-3). Hastings appeared
and questioned him. Ebsary, who is from Tampa, testified that he withdrew
from Hastings’ case when it became evident to him that Hastings’ preferred
resolution would require engaging in voluminous discovery, hiring an expert
witness, and conducting a lengthy hearing, and Hastings did not have the
funds to pay for the work that his preparation would require.6 (Ex. 99-3 at
15:11-15). A lengthy hearing would be required because Savino told Ebsary
there was no way the case could be resolved without prison time and that
meant a complex hearing was necessary. (Doc. 99-3 at 10).
Ebsary also
testified that he discussed this with Hastings and that they agreed the matter
should be handled by local counsel in Fort Myers (attorney Douglas Molloy) to
avoid travel time. (Doc. 99-3 at 15:11-23). Ebsary did not testify that any
contact with the prosecutor’s office swayed his decision to withdraw from the
case. (Doc. 99-3 at 12-13). He testified that he never had contact with Russell,
6
Hastings waived the attorney-client privilege during the deposition of Ebsary. (Doc. 99-3).
6
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that Russell never asked him to withdraw from a criminal case, and Russell
has never interfered with an attorney-client relationship of his. (Doc. 99-3 at
7-8).
In sum, Hastings’ claim that Ebsary’s withdrawal resulted from
intimidation by Russell lacks support in the record.
As for attorney Molloy, Hastings claims that Molloy represented him in
case 14-CF-12, between May 27, 2017, and June 6, 2017 (Doc. 99-4), but there
is no record of Molloy’s appearance in that case.
(Doc. 99-12).
Molloy
submitted a Declaration (Doc. 99-2), stating Russell has never intimidated him
or influenced him to withdraw from a case.
Russell submitted a Declaration (Doc. 99-1), stating that he only became
familiar with Hastings after this lawsuit was filed, and that he never intimated
or influenced any attorneys to withdraw from any criminal cases, including
Ebsary and Molloy. He confirms Ebsary’s recollection that the two have never
interacted or communicated.
In sum, the record shows no genuine issue of material fact whether
Russell violated Hastings’ Sixth Amendment right to the assistance of counsel
for his defense. Ebsary, Molloy, and Russell, all of whom are members of the
Bar, testified under oath that no intimidation or influence occurred, which is
unrefuted by Hastings.
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B. Perjury (Count V) against Prosecutor Savino
Hastings alleges that Savino violated his due process rights under the
Fifth and Fourteenth Amendments by committing perjury to gain a conviction.
As Savino is a state official, the Court examines the case under the procedural
Due Process Clause of the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment protects both
substantive and procedural due process. A claim for deprivation of procedural
due process must allege three elements: “(1) a deprivation of a constitutionallyprotected liberty or property interest; (2) state action; and (3) constitutionallyinadequate process.” J.R. v. Hansen, 736 F.3d 959, 965 (11th Cir. 2013) (citing
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)); Miccosukee Tribe of
Indians of Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013). “The
constitutional violation actionable under § 1983 is not complete when the
deprivation occurs; it is not complete unless and until the State fails to provide
due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990).
Hastings alleges that Savino committed perjury at a motion hearing on
July 31, 2017, by falsely stating under oath that Hastings had “issued over 400
subpoenas against the alleged victim and used the process to harass the victim
in the divorce case,” although she knew that only thirteen subpoenas had been
issued by Hastings in the divorce case. (Doc. 27 at 14, 22-23). Hastings says
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that Savino made false statements to prevent Hastings from issuing subpoenas
and taking depositions. (Doc. 27 at 14, 22-23).
The record refutes Hastings’ allegations he was afforded constitutionally
inadequate process. The Court has reviewed the transcript of the July 31, 2017
hearing on Hastings’ motion for issuing subpoenas. (Doc. 99-31). During the
hearing, Savino was not under oath but argued against the motion in her
official capacity on behalf of the State: “[A]fter that [divorce] case was
absolutely closed Mr. Hastings filed upwards of 300 to 400 pages of documents
… and filings in that case. Dozens and dozens of notices of subpoenas were
filed in that closed case that have absolutely nothing to do with the divorce
case.” (Doc. 99-31 at 9:10-12, 14-17). She did not state that over 400 subpoenas
were issued. Savino made the argument in support of the State’s position that
Hasting’s motion to issue subpoenas should be denied. In support of her
argument, Savino described Hastings’ conduct in his divorce case, which
included issuing dozens of subpoenas and filing hundreds of pages of
documents after the divorce was finalized to harass his ex-wife. (Doc. 99-31 at
9; Doc. 99-32 at 2-4). Savino cited to judicially noticeable facts supported by
the court record in the divorce case. (Doc. 99-32 at 2-4).
What’s more, Hastings was afforded the opportunity to challenge
Savino’s assertions at the hearing.
Specifically, the state court granted
Hastings’ request for a hearing on his motion. Hastings appeared and was
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represented by counsel. (Doc. 99-31). Hastings’ counsel made arguments on
his behalf, and after consideration the court denied the motion. (Doc. 99-31;
Doc. 99-33). The court also took judicial notice of a court order that prohibited
Hastings from issuing subpoenas against his ex-wife. (Doc. 99-31 at 12). Thus,
Hastings received a constitutionally adequate process to challenge Savino’s
allegedly false statements at a motion hearing.
C. Absolute Prosecutorial Immunity
The undisputed facts also establish that both Russell and Savino are
entitled to absolute prosecutorial immunity. Hastings’ claim against Savino
only survived dismissal on absolute immunity grounds because he alleged that
Savino made statements under oath. (Doc. 45 at 6). “A prosecutor is entitled
to absolute immunity for all actions he takes while performing his function as
an advocate for the government.” Rivera v. Leal, 356 F.3d 1350, 1353 (11th
Cir. 2004) (citation omitted).
“The prosecutorial function includes the
initiation and pursuit of criminal prosecution, and most appearances before
the court[.]” Id. (citation omitted). See also Henzel v. Gerstein, 608 F.2d 654,
657 (5th Cir. 1979) (absolute immunity for prosecutor in § 1983 case alleging
that he filed charges without jurisdiction, offered perjured testimony, and
suppressed exculpatory evidence).
Savino was acting in her capacity as a prosecutor when she appeared in
the July 31, 2017 hearing. The transcript shows that Savino was never placed
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under oath and never testified as a witness at that hearing. (Ex. 99-31).
Rather, Savino acted as a prosecutor for the State when arguing at a motion
hearing. Thus, she is absolutely immune from § 1983 damages.
Prosecutorial immunity also protects Russell. Hastings has shown no
conduct of Russell that falls outside the scope of his duties as a prosecutor.
CONCLUSION
In sum, Hastings’ claims are conclusory and not supported by the
material facts in the record. Hastings has offered no evidence that supports
his version of the facts.
After discovery, his case consists of purely wild
speculation. Defendants are entitled to summary judgment.
Accordingly, it is now ORDERED:
1. Defendants’ Motion for Summary Judgment (Doc. 97) is GRANTED.
2. The Clerk is DIRECTED to enter judgment, deny any pending
motions as moot, terminate any deadlines, and close the case.
3. The Clerk is DIRECTED to terminate Defendants City of Fort
Myers, Nicolas Mamalis, and Alesha Morel retroactively to March 11,
2021.
DONE and ORDERED in Fort Myers, Florida on November 16, 2021.
Copies: All Parties of Record
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