Thomas et al v. City of Palm Coast et al
Filing
124
ORDER granting 103 Defendants' Dispositive Motion for Summary Judgment, as to Counts One through Thirty Six of the 84 "Third Amended Complaint"; denying 114 Plaintiffs' Joint Motion for Summary Judgment on Enumerated Cla ims; denying 116 Plaintiffs' Motion to Strike Defendants' Filed Affidavits. The Clerk shall enter summary final judgment in favor of Defendants and against Plaintiffs, and close the file. Signed by Judge Timothy J. Corrigan on 3/30/2017. (ALB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMES R. THOMAS and LINDA S.
THOMAS,
Plaintiffs,
v.
Case No. 3:14-cv-172-J-32PDB
CITY OF PALM COAST, et al.,
Defendants.
ORDER
In this Section 1983 action, pro se Plaintiffs James and Linda Thomas allege
that Defendants, the City of Palm Coast and its employees, violated their Fourth
Amendment rights by coming on their property in connection with municipal
enforcement efforts. Pending before the Court are cross motions for summary
judgment (Docs. 103, 114) and Plaintiffs’ Motion to Strike Defendants’ Filed Affidavits
(Doc. 116).
I.
BACKGROUND & UNDISPUTED FACTS
On February 25, 2010, Plaintiffs locked two male dogs inside a vehicle in their
driveway so the males would be separated from female dogs in heat that remained in
the house. Around 12:30 p.m., a mail carrier called City of Palm Coast Animal Control
Officer Shelly Adorante to report the dogs locked inside the vehicle. About twenty
minutes later, Defendant Adorante arrived at the residence and saw two dogs inside
the vehicle. Adorante knocked on the front door of the Thomases’ home, but no one
answered. From her position on the front porch, through the front living room window
with open curtains, Adorante saw four additional dogs inside the home.
Adorante called a telephone number listed on a truck parked in the driveway
and left a message about the dogs. When Adorante called the number a second time,
she spoke with Linda Thomas, who advised that they locked the dogs in the car
because they did not want any unwanted puppies, and told Adorante that the
Thomases would be home in an hour. Adorante then brought up the number of dogs
inside the home, at which point Linda Thomas became angry and told Adorante that
she was not allowed to look inside the windows or in her backyard. Adorante took
photographs of the dogs inside the vehicle and the dogs inside the home, which also
show a large boat in the backyard, and thereafter posted a notice on the Thomases’
front door and left the property.
At about 1:45 p.m., Adorante returned to the Thomases’ home to follow up and
saw that the dogs were still locked inside the vehicle and no one was home. Adorante
then called fellow Animal Control Officer Eva Boivin and Animal Control/Code
Enforcement Officer Mike Hadden to assist. When Hadden arrived, he parked his
truck on the street in front of the house and was able to see a large catamaran in the
back yard and another boat on the back of the adjacent empty lot. Hadden also
observed two dogs inside the vehicle, and was advised that there were four other dogs
inside the home and a third boat in the back yard behind the house. Adorante, Hadden,
and Boivin walked around the right side of the house to determine if there were
additional dogs in the back yard.
2
Without entering the backyard, which was enclosed with a chain link fence,
Adorante, Hadden, and Boivin were able to observe from the side yard that there were
no additional dogs in the back yard, but observed the third boat, a large ski boat,
directly behind the home (the same boat Adorante had seen through the front living
room window). Hadden also saw three garbage cans and debris in front of the garage,
which violated City code. Hadden wrote a warning notice for the Thomases to remove
the boats from their property and put the garbage cans out of view. Because the dogs
in the vehicle did not appear to be in distress, Adorante did not take action to have the
dogs removed but posted a citation for animal cruelty on the Thomases’ garage door.
Adorante photographed the citation and left the residence at approximately 3:00 p.m.
The Thomases had still not returned home. When the Thomases finally returned home
shortly thereafter, no City employees were at the property.
James Thomas moved two of the boats soon after February 25, 2010, but the
boat that was located on the concrete slab directly behind the Thomases’ home
remained there until the end of April 2010. Neither Adorante nor Boivin ever returned
to the Thomases’ home for any reason. Hadden returned several times to determine if
the boats had been removed and the garbage cans placed out of sight. When Hadden
returned on March 2, 2010, the garbage cans were out of view and two of the three
boats had been removed. The large ski boat directly behind the home was still present
when Hadden made follow up visits on March 10, 25, and 30, and April 7, 2010. When
Hadden returned again on April 21, 2010, the large ski boat had finally been removed.
No other City employees accompanied Hadden on any of the follow up visits.
3
On Hadden’s five visits in March and April, he did not encroach on the
Thomases’ property, but instead walked onto an adjacent lot from which he could
observe whether the boats remained. On the final April 21, 2010 visit, after walking
onto the adjacent lot and determining the last boat was gone and the Thomases were
therefore in compliance, Hadden walked onto the Thomases’ property to post a notice
of hearing on their garage door, at which time the Thomases returned home. A Flagler
County Sheriff was also present at the Thomases’ property. After James Thomas
removed the notice of hearing from the garage and placed it onto the windshield of
Hadden’s vehicle, the Sheriff removed the notice and placed it onto the Thomases’
mailbox. Hadden then left the property and did not return.
The Thomases subsequently met with Nestor Abreu, Director of Community
Development, to resolve the citations for the dogs and boats. Abreu advised them that
the matter would be handled by the Code Enforcement Board. James Thomas did not
speak with Jim Landon, Barbara Grossman, Debra Chaudoin, Michael Donovan,
Adorante, Boivin, or any City employee, other than Hadden, while Hadden was at the
Thomases’ property. Linda Thomas met with Barbara Grossman, a Code Enforcement
Manager, to discuss her issues with Animal Control, and Grossman told Linda Thomas
to appeal.
After receiving unfavorable rulings from a Hearing Officer and the Code
Enforcement Board with respect to both the citation for the dogs and the citation for
the boats and garbage cans, the Thomases appealed to state court, which reversed the
findings in both cases. See Thomas v. City of Palm Coast, No. 2010 CA 001202 (Fla.
4
Cir. Ct.); Thomas v. City of Palm Coast, No. 2010 CA 001339 (Fla. Cir. Ct.). The court
determined that the facts presented at the hearing did not support the animal cruelty
citation, and that the Thomases were not afforded due process during the
administrative proceedings because they were not provided an opportunity to raise
the constitutional challenges that they now assert. On remand, rather than hold
another hearing, the City dismissed the citations.
Plaintiffs’ “Third Amended Complaint”1 (TAC), the operative complaint, was
filed on March 1, 2016. (Doc. 84.) The parties have now completed discovery and filed
cross motions for summary judgment.
II.
STANDARD OF REVIEW
Summary judgment is proper “when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Josendis v. Wall to Wall Residence Repairs, Inc., 662
F.3d 1292, 1314 (11th Cir. 2011); Fed. R. Civ. P. 56(a), (c). The inquiry is “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.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). The movant bears the burden of showing the
absence of dispute as to material facts, and upon such a showing the burden shifts to
the non-moving party to establish that a genuine dispute exists. Celotex Corp. v.
Although only the second amended complaint, it is erroneously titled “Third
Amended Complaint.” For ease of reference and clarity, the Court refers to the title as
it appears on the document.
1
5
Catrett, 477 U.S. 317, 323-24 (1986). The evidence must be viewed in favor of the nonmoving party, and all inferences drawn in his favor. Anderson, 477 U.S. at 255.
III.
DEFENDANTS’ DISPOSITIVE MOTION FOR SUMMARY JUDGMENT
(DOC. 103)
A.
42 U.S.C. § 1983 – Unreasonable Search
1.
Defendant City of Palm Coast
The TAC contains three Section 1983 claims against the City: Count One
(alleges unreasonable searches and violations of the right to be secure in their home);
Count Ten (violation of Plaintiffs’ right to substantive due process)2; and Count Twelve
(failure to train, supervise, and discipline employees). Count One alleges, in largely
conclusory fashion, that the City violated Plaintiffs’ rights by and through its customs,
policies, and practices, and the City’s failure to take disciplinary or corrective action
after the alleged events underlying this action. (Doc. 84 ¶¶ 144-49.) Count Twelve
alleges, again in conclusory fashion, that the City fails to train, supervise, and
discipline its employees, and that such failure resulted in violations of Plaintiffs’
constitutional rights. (Doc. 84 ¶¶ 203-07.)
A municipality generally cannot be held vicariously liable under Section 1983
for constitutional violations committed by its employees. Hoefling v. City of Miami,
811 F.3d 1271, 1279 (11th Cir. 2016). However, a municipality may be liable if a
plaintiff can show the municipality has an unconstitutional policy, custom, or practice,
or fails to train its employees; but, only a “long-standing and widespread practice” is
Count Ten is discussed more fully in part III.B., infra, but summary judgment
is also warranted on this count because the City cannot be held vicariously liable for
the reasons set forth in this section.
2
6
sufficient and plaintiffs cannot rely solely on their own alleged violations to prove the
existence of a widespread practice. Brown v. City of Fort Lauderdale, 923 F.2d 1474,
1480, 1481 (11th Cir. 1991); Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310-11 (11th
Cir. 2011). Here, there is no evidence of a City policy, custom, or practice that was
authorized or condoned by a City policymaker, and merely relying on their own
unsupported allegations is insufficient for Plaintiffs to overcome summary judgment.
To prevail on a Section 1983 failure to train claim, Plaintiffs must show a
history or pattern of constitutional violations by untrained City employees. Connick v.
Thompson, 563 U.S. 51, 62 (2011). Plaintiffs must establish that the City knew of a
specific training need and deliberately chose not to take action. Gold v. City of Miami,
151 F.3d 1346, 1350 (11th Cir. 1998). Even if Plaintiffs could show deliberate inaction,
they must still show that the alleged failure to train in a relevant respect amounts to
deliberate indifference to their rights. City of Canton v. Harris, 489 U.S. 378, 388-89
(1989). To demonstrate the requisite deliberate indifference, Plaintiffs must show that
the City had actual notice of an unconstitutional practice, or constructive notice as
established by a history of prior widespread abuse. Id. Without such notice, the City
cannot be held liable for failure to train and supervise as a matter of law. Gold, 151
F.3d at 1351.
While it appears that the City did not offer Fourth Amendment training per se,
Plaintiffs have not shown a history of unconstitutional actions by City Animal Control
or Code Enforcement or evidence that the City knew of a specific need for training and
deliberately chose not to provide it, and that the City was deliberately indifferent to
7
Fourth Amendment rights. Accordingly, the City is not liable for failure to train its
employees under Section 1983.
2.
Individual Defendants
a.
Landon, Abreu, Chaudoin, and Donovan
In Counts Two (Landon), Three (Abreu), Five (Chaudoin), and Six (Donovan),
Plaintiffs allege that Defendants, in their individual capacities, violated Plaintiffs’
Fourth and Fourteenth Amendment rights based on their “conduct and/or failure to
act.” Plaintiffs allege that Landon, by virtue of his position as City Manager, failed to
take any corrective or disciplinary action against any of his subordinates regarding
the alleged events underlying this action. (Doc. 84 ¶¶ 150-53.) Plaintiffs allege that
Abreu, as Director of Community Development, violated their constitutional rights
through his conduct and/or failure to act, which deprived Plaintiffs of their rights
under the Fourth Amendment. (Doc. 84 ¶¶ 154-58.) Plaintiffs include similar
allegations in Count Five against Chaudoin and Count Six against Donovan by virtue
of their roles as Code Enforcement Supervisors. (Doc. 84 ¶¶ 163-66, 167-70.)
Supervisory liability under Section 1983 must be based on more than
respondeat superior. Braddy v. Fla. Dep’t of Labor and Emp’t Sec., 133 F.3d 797, 80102 (11th Cir. 1998). To be liable, a supervisor must either personally participate in the
alleged constitutional violation or the plaintiff must show that there is a causal
connection between the supervisor’s actions and the alleged constitutional
deprivation. Matthews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007). To show the
requisite “causal connection,” a plaintiff can establish that: (1) a history of widespread
abuse puts the supervisor on notice of the need to correct the alleged deprivation; (2)
8
the supervisor’s custom or policy results in deliberate indifference to constitutional
rights; or (3) facts support an inference that the supervisor directed the subordinates
to act unlawfully, or knew they would do so and failed to stop them. Id.
The undisputed facts show that none of these individual Defendants personally
participated in the alleged unconstitutional search of Plaintiffs’ property, and there is
simply no evidence of a “history of widespread abuse” to put them on notice of a need
to correct the alleged deprivation. Nor is there evidence of a custom or policy of
deliberate indifference, or that any of these Defendants directed anyone to act
unlawfully or knew they would do so but failed to stop them.
b.
All named individual Defendants
In addition to the claims against supervisory employees discussed in Part
III.A.2.a, supra, Defendants Grossman, Adorante, Boivin, and Hadden are each
named in their individual capacities in Section 1983 claims alleging unreasonable
search and violations of Plaintiffs’ right to be secure in their home (Counts Four,
Seven, Eight, and Nine, respectively). All of the named individual Defendants claim
entitlement to qualified immunity.
To benefit from qualified immunity, Defendants must show that each was
acting within the scope of his or her discretionary authority when the alleged
constitutional deprivation occurred. Kingsland v. City of Miami, 382 F.3d 1220, 1231
(11th Cir. 2004). Here, Plaintiffs expressly allege that the individual Defendants were
acting within the scope of their employment with the City. (Doc. 84 ¶ 15.) Therefore,
the individual Defendants are entitled to qualified immunity unless Plaintiffs can
show that the facts, taken in the light most favorable to them, show: (1) a
9
constitutional violation; and (2) that the illegality of the individual Defendants’ actions
was clearly established at the time. Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012).
“[G]overnment officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“A constitutional right is clearly established if controlling precedent has
recognized the right in a ‘concrete and factually defined context.’” Chesser v. Sparks,
248 F.3d 1117, 1122 (11th Cir. 2001). Thus, in Florida, a plaintiff can show that a right
was clearly established by pointing to a materially similar case decided by the United
States Supreme Court, the Eleventh Circuit Court of Appeals, or the Florida Supreme
Court. Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). A plaintiff may also
demonstrate that a right was clearly established by showing that a “broader, clearly
established principle” should control the particular novel facts. Id. When relying on a
broad principle,
the principle must be established with obvious clarity by the
case law so that every objectively reasonable government
official facing the circumstances would know that the
official’s conduct did violate federal law when the official
acted. In other words, an official action is not protected
under qualified immunity simply because the very action in
question has not been held unlawful before, but in the light
of pre-existing law the unlawfulness must be apparent.
Id. at 1256 (citations and quotation marks omitted). Alternatively, “the conduct
involved in the case may so obviously violate[ ] th[e] constitution that prior case law
is unnecessary.” Id. at 1255 (alteration in original) (internal quotation marks omitted).
10
Plaintiffs rely in part on two Attorney General Opinions addressing the
authority of code enforcement personnel, which stand for the proposition that:
A local government code inspector is not authorized to enter
onto any private, commercial or residential property to
assure compliance with or to enforce the various technical
codes or to conduct any administrative inspections or
searches without the consent of the owner or the operator or
occupant of such premises, or without a duly issued search
or administrative inspection warrant.
2002 Op. Att’y Gen. 2002-27 (April 4, 2002); see also 1984 Op. Att’y Gen. 84-32 (April
2, 1984) (same). Though these Attorney General opinions are intended to offer
guidance to local governments, they are not binding Fourth Amendment precedent.
See, e.g., A.B.T. Corp., Inc. v. City of Fort Lauderdale, 664 F. Supp. 488, 492 (S.D. Fla.
1987) (“Attorney general Opinions are not binding on courts in Florida, but such
opinions are ‘entitled to weight’ when construing the Florida Statutes.” (quoting Fla.
Indus. Comm’n v. Schoenberg, 117 So. 2d 538, 543 n.5 (Fla. Dist. Ct. App. 1980)).
Moreover, even accepting that general Fourth Amendment requirements apply to
municipal code inspectors, there are other Fourth Amendment principles at play here
as well.
Clearly established Fourth Amendment law holds that which a person
knowingly exposes to public view is not subject to Fourth Amendment protections, and
that City employees are not required to close their eyes to avoid observing that which
is visible from a place where the public is lawfully able to be. See Florida v. Riley, 488
U.S. 445, 449 (1989) (“What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection.”); California v.
Ciraolo, 476 U.S. 207, 213 (1986) (“That the area was within the curtilage does not
11
itself bar all police observation. The Fourth Amendment protection of the home has
never been extended to require law enforcement officers to shield their eyes when
passing by a home on public thoroughfares. Nor does the mere fact that an individual
has taken measures to restrict some views of his activities preclude an officer’s
observations from a public vantage point where he has a right to be and which renders
the activities clearly visible.”); United States v. Whaley, 779 F.2d 585, 591 (11th Cir.
1986) (defendant did not have a reasonable expectation of privacy as to activity which
could be viewed with naked eye from position on neighboring property, and “could not
have reasonably expected the activity in his basement to be private as long as he failed
to cover his windows. He conducted his activity in plain view ….”).
Even where officers’ investigations took place in a constitutionally protected
area, courts address whether it was accomplished through an unlicensed physical
intrusion. Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013). The United States
Supreme Court has explained that, “[w]hile law enforcement officers need not ‘shield
their eyes’ when passing by the home ‘on public thoroughfares,’ an officer’s leave to
gather information is sharply circumscribed when he steps off those thoroughfares
and enters the Fourth Amendment’s protected areas.” Id. (quoting Ciraolo, 476 U.S.,
at 213). When making this inquiry,
“[a] license may be implied from the habits of the country,”
notwithstanding the “strict rule of the English common law
as to entry upon a close.” We have accordingly recognized
that “the knocker on the front door is treated as an
invitation or license to attempt an entry, justifying ingress
to the home by solicitors, hawkers and peddlers of all kinds.”
This implicit license typically permits the visitor to
approach the home by the front path, knock promptly, wait
12
briefly to be received, and then (absent invitation to linger
longer) leave. Complying with the terms of that traditional
invitation does not require fine-grained legal knowledge; it
is generally managed without incident by the Nation’s Girl
Scouts and trick-or-treaters. Thus, a police officer not armed
with a warrant may approach a home and knock, precisely
because that is “no more than any private citizen might do.”
Jardines, 133 S. Ct. at 1415-16 (footnote and citations omitted). See also LaFave, 1
Search & Seizure § 2.3(e) (5th ed. Oct. 2016) (“The route any visitor to a residence
would use is not private in the Fourth Amendment sense, and thus if police take that
route for the purpose of making a general inquiry or for some other legitimate reason,
they are free to keep their eyes open, and thus it is permissible for them to look into a
garage or similar structure from that location. On the other hand, if the police depart
from that route and go to other, more private parts of the curtilage in order to look
into a structure there, this constitutes a search, even if the police might have been
able to (but didn’t) make the same observation from outside the curtilage. … When the
conduct of the officer in gaining access to the vantage point is itself unobjectionable,
privacy interests are not threatened by allowing the officer so positioned to use his
naked eye to look into a garage, barn or shed through an open door or an uncovered
window. In such a case, it cannot be said that the occupant of those premises has done
as much as ordinary care requires.” (footnotes omitted)).
While Florida recognizes a constitutionally protected privacy interest in the
back and side yards of one’s home, “[u]nder Florida law, it is clear that one does not
harbor an expectation of privacy on a front porch where salesmen or visitors may
appear at any time.” State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981); cf. Lollie v.
State, 14 So. 3d 1078, 1079-80 (Fla. Dist. Ct. App. 2009) (“[T]he Florida Supreme
13
Court’s decision in Morsman … clearly establishes that residents have a
constitutionally-protected privacy interest in the side and backyard area of their
home.”). But see Manseau v. City of Miramar, 395 F. App’x 642, 645 (11th Cir. 2010),
in which the Court upheld the dismissal of pro se plaintiffs’ Section 1983 claim against
the city and city officials, stating:
Plaintiffs also argued that Defendants violated their Fourth
Amendment rights against unreasonable searches by
searching, without a warrant, their home and property for
code violations. Plaintiffs based this claim on the citations
they received for certain vehicles and their lack of an
occupational license. But no unreasonable search occurred
of the vehicles located in the Plaintiffs’ driveway. See
California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 1812, 90
L.Ed.2d 210 (1986) (explaining that the “Fourth
Amendment protection of the home has never been
extended to require law enforcement officers to shield their
eyes when passing by a home on public thoroughfares”).
Plaintiffs noted that they took measures to prevent people
from seeing into their yard by erecting a six-foot fence. But
code officers violated no Fourth Amendment right by
looking over the fence, especially given that Plaintiffs did
not allege that the officers were looking from a vantage
point where they did not have the right to be. See id.
(explaining that the mere fact that a person “has taken
measures to restrict some views of his activities” does not
preclude “an officer's observations from a public vantage
point where he has a right to be and which renders the
activities clearly visible”).
See also Archer v. Gipson, 108 F. Supp. 3d 895, 907-08 (E.D. Cal. 2015) (finding
summary judgment in favor of defendants warranted on plaintiffs’ Section 1983 claim
alleging Fourth Amendment violation because the items within the curtilage were
“readily visible” through a wire fence from code enforcement officer’s position on the
street).
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Although Plaintiffs attempt to show inconsistencies between Defendants’
factual assertions in earlier proceedings and now, none are “material.” Plaintiffs also
quarrel with Defendants’ “undisputed facts” but, to defeat summary judgment,
Plaintiffs must do more; they must come forward with actual evidence showing that
there is a genuine issue for trial.
What the undisputed facts show is that, while knocking on Plaintiffs’ front door
in the performance of her duties, Adorante observed through the front window dogs
and the large boat directly behind the home. Adorante could lawfully walk up to the
Thomases’ front door to knock and inquire of anyone therein about the dogs locked
inside the vehicle. From her lawful position on the front porch, she need not have
averted her eyes to items of potential evidentiary value. Ciraolo, 476 U.S. at 213;
Jardines, 133 S. Ct. at 1415. Adorante testified that the dogs in the front window were
visible from the front door and photographic evidence seems to confirm that. (Doc. 104
at 6; Doc. 114-24; Doc. 114-25.) Similarly, anything visible from the street – like
Plaintiffs’ two other boats observed by Hadden – is fair game.
Because Adorante was lawfully on the porch to begin with, her actions in
looking through the open window (depending on its proximity to the door) are at least
arguably within the framework of the “knock and talk” exception or in the performance
of her Animal Control duties. However, under cases such as Powell v. State, it is also
arguable they were not. 120 So. 3d 577, 580, 586 (Fla. Dist. Ct. App. 2013) (“Because
the officers intruded into a constitutionally protected area without a warrant and
peered into a window from a part of the property where they had no lawful right to be,
15
an unconstitutional search occurred.”; “Whether two feet or twenty, the distance
between the door and window matters little given that the officers said they could not
see the plants without leaving the front door step and positioning themselves at a spot
where they had no right to be.”). Also questionable are Defendants’ actions in walking
around the side of the house to the fence and looking into the back yard. However, by
the time Defendants walked to the side of the house to observe the back yard, they
had already seen everything they were going to see: Adorante saw the dogs in the
house and the large boat in the back yard, and Hadden observed the two other boats
from the position of his truck parked on the street. Nothing was gained by looking into
the back yard from their position at the side yard. Moreover, Hadden testified that on
his later visits to check on the boat removal, he did not intrude onto the Thomases’
property but rather observed the back yard from the adjacent lot. (Doc. 104 at 13.)
The Thomases have raised some legitimate Fourth Amendment concerns. If this
was a criminal case involving Fourth Amendment issues, or if the Court was required
to determine ab initio whether Defendants’ actions were unconstitutional, the Court
would undertake such inquiry; but, the very fact that some of Defendants’ actions were
inarguably permissible and others only arguably problematic, means that Plaintiffs
have not been able to show that Defendants violated their “clearly established”
constitutional rights. See, e.g., Storck v. City of Coral Springs, 354 F.3d 1307, 1314
(11th Cir. 2003) (“If reasonable public officials could differ on the lawfulness of a
defendant’s actions, the defendant is entitled to qualified immunity.” (citing Hunter v.
Bryant, 502 U.S. 224, 228 (1991)).
16
B.
42 U.S.C. § 1983 – Substantive Due Process
In Counts Ten and Eleven, Plaintiffs allege that the City and individual
Defendants violated their substantive due process rights under Section 1983 and the
Fourteenth Amendment. Count Ten alleges, in conclusory fashion, that the City
violated Plaintiffs’ substantive due process rights by allowing continual and repeated
violations by its employees, failing to take corrective and disciplinary actions, and
failing to provide a process whereby Plaintiffs could have their complaints of
constitutional violations heard. (Doc. 84 ¶¶ 183-93.) Similarly, in Count Eleven,
Plaintiffs allege that Defendants Landon, Abreu, Grossman, Chaudoin, and Donovan
violated their rights to substantive due process by virtue of their supervisory roles,
because each knew or should have known of the alleged repeated violations of
Plaintiffs’ rights but failed to stop them; each had authority to take corrective and/or
disciplinary action against their subordinates but failed to; and each “had little or no
knowledge of the Fourth [A]mendment” and “was in, or had the ability to be in,
communication withe [sic] each of the other named Defendants[,]” yet “repeatedly
chose, individually and/or in collaboration together, to disregard the Constitution.”
(Doc. 84 ¶¶ 194-202.)
“Conduct by a government actor will rise to the level of a substantive due
process violation only if the act can be characterized as arbitrary or conscienceshocking in a constitutional sense.” Davis v. Carter, 979, 982 (11th Cir. 2009). To that
end, “[t]o rise to the conscience-shocking level, conduct most likely must be intended
to injury in some way unjustifiable by any government interest[.]” Id. When
determining whether the alleged conduct rises to this level, courts are cautioned that
17
“[d]eterminations of what is egregious conduct must not be made in the glow of
hindsight” but instead must “shock the conscience” at the time of the government
actor’s conduct. Maddox v. Stephens, 727 F.3d 1109, 1119 (11th Cir. 2013).
None of the Defendants’ actions were “arbitrary” or “shock the conscience” in
the constitutional sense, nor is there any evidence that their conduct was “intended to
injure.”
C.
42 U.S.C. § 1983 – Failure to Train, Supervise, and Discipline
In Counts Thirteen through Sixteen, Plaintiffs allege that Defendants Landon,
Abreu, Grossman, Chaudoin, and Donovan, in their individual capacities, failed to
train, supervise, and discipline their employees. Plaintiffs seek punitive damages on
each count.
As discussed in Part III.A.2.a, supra, to impose supervisory liability under
Section 1983, Plaintiffs must demonstrate: “(1) a violation of a constitutional right, (2)
a custom or policy constituting deliberate indifference to that constitutional right, and
(3) a causal link between the policy or custom and the violation.” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). Plaintiffs must allege that Defendants “knew of
a need to train and/or supervise in a particular area” and “made a deliberate choice
not to take any action[,]” which resulted in the constitutional violation. Gold, 151 F.3d
at 1350, 1351 n.10. In the Eleventh Circuit, Plaintiffs must also offer proof that the
City was aware of a prior incident in which constitutional rights were similarly
violated. Church v. City of Huntsville, 30 F.3d 1332, 1342-46 (11th Cir. 1994).
Plaintiffs have not established a prior similar incident in the City. There is no
evidence that Defendants knew of a need to train or supervise in a particular area,
18
and therefore as a matter of law Defendants could not have made a deliberate choice
not to take any action.
D.
Plaintiffs’ State Law Claims
1.
Fla. Stat. § 768.28
a.
Pre-suit notice
Pursuant to section 768.28, Florida Statutes, “[a]n action may not be instituted
on a claim against the state or one of its agencies or subdivisions unless the claimant
presents the claim in writing to the appropriate agency … within 3 years after such
claim accrues and … the appropriate agency denies the claim in writing.” Fla. Stat. §
768.28(6)(a). Strict compliance with these conditions precedent is required. Rumler v.
Dep’t of Corrs., 546 F. Supp. 2d 1334, 1344 (M.D. Fla. 2008). While a complaint filed
without first providing the requisite statutory notice should be dismissed with leave
to amend, where the time to provide the requisite notice has expired such that strict
compliance with the statute is impossible, the complaint must be dismissed with
prejudice. Levine v. Dade Cnty. Sch. Bd., 442 So.2d 210, 213 (Fla. 1983).
Here, if the alleged events are viewed as one continuing event occurring
between February 25, 2010 and May 27, 2010, Plaintiffs were required to provide the
requisite statutory notice no later than May 26, 2013. By Plaintiffs’ own admission,
they did not provide notice to Jim Landon, in his capacity as City Manager, until April
1, 2014, nearly two months after Plaintiffs filed their initial complaint in this Court
and ten months after the three year limitations period expired. (See Doc. 84 ¶ 143.)
Plaintiffs assert that “[t]he claims did not begin to accrue until the [state] Court
reversed the decisions of the Code Enforcement Board and the Animal Control hearing
19
officer.” (Doc. 123 at 23.) However, the Florida Supreme Court has considered and
rejected this type of argument. In Department of Transportation v. Soldovere, the
court considered the question “when a cause of action accrues if a notice of claim for a
tort against the appropriate state agency must be filed before suit can be brought,”
and “rule[d] that the cause of action accrues upon the happening of an accident and
the attendant injuries.” 519 So. 2d 616, 616 (Fla. 1988). Although the incident
underlying Soldovere was a car accident, the court discussed the requirement for
negligence actions in Florida generally: “A cause of action for the negligence of another
accrues at the time the injury is first inflicted. This rule applies whether the action is
against a private party or the state.” Id. at 617 (citations omitted). Specifically, the
court explained that section 768.28(6) “is merely a procedural requirement and does
not abrogate the general rule that a cause of action accrues when the injury occurs
and the damage is sustained.” Id. This is particularly true where, as here, “the party
capable of being sued … has always been available.” Id.
Accordingly, Plaintiffs’ failure to provide the requisite pre-suit notice
necessitates summary judgment on their claims against the City (Counts Twenty
(Negligent Infliction of Emotional Distress, to the extent asserted against the City),
Twenty One (Negligent Supervision), and Twenty Seven (Negligent Training)).
The notice requirements in section 768.28(6) do not apply to claims against the
individual Defendants sued in their individual capacities. Lloyd v. Ellis, 520 So. 2d 59,
60 (Fla. Dist. Ct. App. 1988); Diversified Numismatics, Inc. v. City of Orlando, 783 F.
20
Supp. 1337, 1346 (M.D. Fla. 1990). However, those claims also fail. See Part III.D.1.b,
infra.
b.
Immunity
Florida’s sovereign immunity protects the individual Defendants from personal
tort liability “unless such officer, employee, or agent [of the state or any of its
subdivisions] acted in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.” Fla. Stat. §
768.28(9)(a). “[C]onduct committed in bad faith has been characterized as conduct
acted out with actual malice[,]” Kastritis v. City of Daytona Beach Shores, 835 F. Supp.
2d 1200, 1225 (M.D. Fla. 2011), and “bad faith” means acting with an “evil intent or
motive.” Btesh v. City of Maitland, Fla., No. 6:10-cv-71-Orl-19DAB, 2011 WL 3269647,
*27 (M.D. Fla. July 29, 2011) (citations omitted). Such conduct “must be worse than
gross negligence, and more reprehensible than mere intentional conduct.” Kastritis,
835 F. Supp. 2d at 1225 (citations and quotation marks omitted). Here, there is
evidence that the Code Enforcement officers may have responded to the Thomases’
hostility with some hostility of their own.3 But this evidence does not rise to the level
of actions taken in “bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.” Fla. Stat. §
768.28(9)(a). Defendants are therefore entitled to immunity from Plaintiffs’ state law
claims under Section 768.28.4
3
See Doc. 114-16 (email chain dated April 21 and 22, 2010).
Because the Court has determined that Plaintiffs’ state law claims fail due to
their failure to provide the requisite pre-suit notice to the City and the individual
4
21
IV.
PLAINTIFFS’ JOINT MOTION FOR SUMMARY JUDGMENT ON
ENUMERATED CLAIMS (DOC. 114)
For the reasons set forth in Part III, supra, Plaintiffs’ motion will be denied.
V.
PLAINTIFFS’
MOTION
AFFIDAVITS (DOC. 116)
TO
STRIKE
DEFENDANTS’
FILED
Plaintiffs move to strike Defendants’ affidavits filed in support of the motion for
summary judgment because: (1) issue preclusion applies; (2) the affidavits are sham
affidavits; and (3) the contents include inadmissible evidence. (Doc. 116.) At the outset,
the motion to strike is procedurally improper because motions to strike are only
appropriately addressed toward pleadings, and documents filed in support of
summary judgment are not pleadings. Cableview Commc’ns of Jacksonville, Inc. v.
Time Warner Cable Se., LLC, No. 3:13-cv-306-J-34JRK, 2016 WL 128561, *3 (M.D.
Fla. Jan. 12, 2016). The motion will also be denied on the following grounds.
A.
Issue preclusion
Federal courts apply the relevant state law of preclusion. Marrese v. Am. Acad.
of Orthopedic Surgeons, 470 U.S. 373, 382 (1985) (citing Kremer v. Chem. Constr.
Corp., 456 U.S. 461, 467 (1982), for the proposition that federal courts apply state rules
of issue preclusion). “The ‘essential elements’ of issue preclusion under Florida law are
‘that the parties and issues be identical, and that the particular matter be fully
litigated and determined in a contest which results in a final decision of a court of
competent jurisdiction.’” Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1332-33
Defendants’ entitlement to immunity, the Court need not address these claims on the
merits.
22
(11th Cir. 2010) (quoting Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945
So. 2d 1216, 1235 (Fla. 2006)).
Unlike the two administrative appeals, which involved only Plaintiffs and the
City, there are several named individual Defendants in this federal action so the
parties are not identical. Nor are the issues identical. Even if the parties and issues
were identical, the issues were not fully litigated. See Doc. 114-15 at 2-3; Thomas v.
City of Palm Coast, No. 2010 CA 1202, at 2-3 (Fla. Cir. Ct. June 22, 2012) (“The Court
in this case declines to make a ruling on whether the animal control officer’s acts
violated [the Thomases’] constitutional rights. A review of the record reveals very little
evidence of the animal control officer’s actions. … Based upon the record in this case,
there is insufficient evidence established for a determination of whether or not the
animal control officer engaged in an unlawful search and seizure.”). To resolve those
issues, the Circuit Court remanded the case back to the code enforcement board but
rather than relitigate the case, the City dismissed the actions. Plaintiffs thus cannot
satisfy all elements required for issue preclusion to apply.
B.
Sham affidavits
Courts may find that affidavits are shams when they inherently conflict with
prior deposition testimony without offering an explanation for the inconsistency. Van
T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 656 (11th Cir. 1984). Put
simply, “[w]hen a party has given clear answers to unambiguous questions which
negate the existence of any genuine issues of material fact, that party cannot
thereafter create such an issue with an affidavit that merely contradicts, without
explanation, previously given clear testimony.” Id. at 657. A court must find that the
23
prior testimony and affidavit contain inherent inconsistencies before it may disregard
the affidavit, and should only do so sparingly in light of the consequences. Allen v. Bd.
of Pub. Educ., 495 F.3d 1306, 1316 (11th Cir. 2007) (“[T]o allow every failure of memory
or variation in a witness’ testimony to be disregarded as a sham would require far too
much from lay witnesses and would deprive the trier of fact of the traditional
opportunity to determine which point in time and with which words the … affiant …
was stating the truth.” (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th
Cir. 1986))). Upon review of Defendants’ affidavits, they do not contain such “inherent
inconsistencies” to warrant striking them.5
C.
Inadmissible contents
To the extent that Plaintiffs contend that the Affidavits contain inadmissible
hearsay, “a district court may consider a hearsay statement in passing on a motion for
summary judgment if the statement could be reduced to admissible evidence at trial
or reduced to admissible form.” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir.
1999) (citations and quotation marks omitted). Here, the information is capable of
being reduced to admissible evidence.
None of the alleged “inconsistencies” can even be characterized as material.
Moreover, the alleged “inconsistencies” are not even really inconsistent, as in the case
of Defendant Hadden’s response to interrogatory number 18 (in which he states that
on the second through sixth visits to Plaintiffs’ property he “was adjacent to the
neighbor’s driveway on the City’s right of way to the left of the Thomases [sic] home”
(Doc. 122-11 at 10)) and statement in his Affidavit (that he “walked onto the adjacent
lot where [he] had a clear view …” (Doc. 104 at 13 ¶ 7)).
5
24
VI.
CONCLUSION
There was unbecoming animosity between the Thomases and the City officials.
It also appears that the City of Palm Coast had given little guidance to their officers
regarding how the Fourth Amendment applied to their duties. Nor did the City officers
show a proper sensitivity or respect for the Thomases’ Fourth Amendment rights.
There is certainly room for improvement in the City’s practices. Nevertheless, on these
facts, the actions of the City officers did not violate the Thomases’ clearly established
Fourth Amendment rights.
Accordingly, it is hereby
ORDERED:
1.
Defendants’ Dispositive Motion for Summary Judgment (Doc. 103) is
GRANTED as to Counts One through Thirty Six of the “Third Amended Complaint”
(Doc. 84).
2.
Plaintiffs’ Joint Motion for Summary Judgment on Enumerated Claims
(Doc. 114) is DENIED.
3.
Plaintiffs’ Motion to Strike Defendants’ Filed Affidavits (Doc. 116) is
DENIED.
4.
The Clerk shall enter summary final judgment in favor of Defendants
and against Plaintiffs, and close the file.
DONE AND ORDERED in Jacksonville, Florida the 30th day of March, 2017.
25
ab
Copies:
Counsel of record
Pro se Plaintiffs
26
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