Thomas et al v. City of Palm Coast et al
Filing
74
ORDER granting in part and denying in part 40 Joint MOTION to Dismiss Amended Complaint; plaintiffs may file Second Amended Complaint by 12/21/2015; defendants shall respond by 1/21/2016; if defendants move to dismiss, plaintiffs shall respond by 2/16/2016; denying 62 MOTION to supplement; directing the Clerk to reopen the file. Signed by Judge Timothy J. Corrigan on 11/23/2015. (SRW)
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
Pro se Plaintiffs James and Linda Thomas allege Defendants, the City of Palm
Coast and eight of its employees, committed various violations of 42 U.S.C. § 1983 and
state law in their code enforcement efforts against the Thomases. (Doc. 37). Plaintiffs
moved for leave to amend their Complaint, (Doc. 32), and the Magistrate Judge
granted that relief but cautioned Plaintiffs that their Complaint was a “shotgun
pleading.” (Doc. 36). Plaintiffs filed their Amended Complaint,1 (Doc. 37), Defendants
moved to dismiss, (Doc. 40), and Plaintiffs responded, (Doc. 51). Plaintiffs later moved
to supplement that response, (Doc. 62), Defendants responded in opposition, (Doc. 63),
and Plaintiffs replied, (Doc. 67).
Plaintiffs’ Amended Complaint (Doc. 37) is titled “Second Amended
Complaint” but is the only amended complaint of record (an earlier proposed amended
complaint was not filed- see Doc. 32, Ex. 1 and Doc. 36).
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I.
FACTS
Before delving into the events that form the basis for Plaintiffs’ claims, a brief
summary of the City’s hierarchy is helpful. 2 Defendant Jim Landon is the City
Manager and was responsible for the training and supervision of all other individual
Defendants. (Doc. 37 at 17). Defendant Nestor Abreu, the City’s Director of
Community Development, supervises Defendant Barbara Grossman, the Code
Enforcement Manager. (Id. at 10). Grossman supervises the Code Enforcement
Supervisors, including Defendants Debra Chaudoin and Michael Donovan. (Id. at 11).
The Code Enforcement Supervisors are responsible for the training and supervision of
Animal Control Officers and Code Enforcement Officers, including Defendant Animal
Control Officers Shelly Adorante and Eva Boivin, and Defendant Code Enforcement
Officer Michael Hadden. (Id. at 17).
On February 25, 2010, Adorante responded to a call regarding two dogs locked
inside a vehicle in the Thomases’ driveway. (Id. at 5). The dogs were not in distress,
as the vehicle was in the shade and the windows were partially down. (Id. at 5, 6).
Adorante left an “Animal Control Courtesy Notice” and, after looking through the
Thomases’ living room window and seeing more dogs inside, called Linda Thomas. (Id.
at 5-6). Upon learning that Adorante had looked in her living room window, Thomas
became “totally irate” and complained of constitutional violations. (Id. at 6-7). The
phone call ended and, after approximately an hour and a half wherein Thomas did not
As this case is before the Court on a motion to dismiss, all facts alleged in the
Amended Complaint are accepted as true for the purposes of this Order. Doe v.
Wooten, 747 F.3d 1317, 1320 (11th Cir. 2014).
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arrive at the property, Adorante wrote a Notice of Violation charging Linda Thomas
with two counts of animal cruelty, with a fine of $100 for each dog. (Id. at 8).
Adorante ultimately stayed on the Thomases’ property for a little over two
hours, during which time she took photographs of the inside of the Thomases’ home
through the living room window and walked into the Thomases’ side yard to look into
their fenced back yard. (Id. at 7). In doing so, Adorante noticed a boat in their back
yard and called Hadden to have him write a citation. (Id. at 7, 8). As the boat was not
visible from a public place, Hadden went on the Thomases’ property to view the boat.
(Id. at 9). At some point, Adorante and Hadden were joined by Boivin, who likewise
walked on the Thomases’ property to observe the boat. (Id.). The Thomases had two
other boats on the property, barely visible from the street, and Hadden photographed
them as well. (Id.). Eventually, Hadden wrote a warning notice for the three boats.
(Id.).
On March 2, 2010, Hadden returned to the Thomases’ property and noted that
the two boats visible to the public were gone, but went on the Thomases’ property to
observe the third boat, which remained. (Id.). A couple of days later, the Thomases
met with Abreu to complain about the entries onto their land. (Id. at 10). Abreu showed
no concern, and referred them to Grossman. (Id.). On March 10, 2010, Hadden again
went on the Thomases’ property to see the boat, which was still on the property. (Id.).
Two days later, Linda Thomas met with Grossman to complain. (Id. at 10-11).
Grossman advised her that she could have a hearing on the matter. (Id. at 11).
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On four more occasions, Hadden walked on the Thomases’ land to see the boat.
(Id. at 11-12). On the last of these trips, Hadden’s seventh to the property, the
Thomases returned home to see Hadden on their neighbor’s property, taking pictures
of the Thomases’ backyard. (Id. at 12). Hadden then walked on the Thomases’
property, despite their protests. (Id.). In an e-mail about the incident on which he
copied Grossman, Hadden said “it could not have worked out better” and said that the
Thomases “went ballistic and became verbally abusive.” (Id. at 43). Grossman
responded by forwarding the e-mail to Donovan, Chaudoin, Boivin, Adorante, Abreu,
and Carol Hickey, advising them that they need to be careful and request a deputy if
they have any issues at the Thomases’ property. (Id.).
The Thomases requested hearings for both the boat and animal cruelty
citations. (Id. at 13). The Code Enforcement Board ruled in favor of the City on the
boat citation on May 5, 2010. (Id.). The Thomases appealed, and the state court
reversed and remanded the case. (Id.). The City dismissed the case on October 8, 2012.
(Id. at 14). Likewise, the Code Enforcement Board ruled in favor of the City with
respect to the animal control citation. (Id. at 16). The Thomases appealed, and the
state court reversed on June 22, 2012. (Id.).
II.
LAW
A.
Claims against the City and Defendants in Their Official
Capacities
A number of counts are brought against the City and other Defendants in both
their official and individual capacities. Suits against a municipality and against a
municipal officer in his or her official capacity are functionally equivalent, and
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therefore there is no need to name both the City and any City employee in his or her
official capacity. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).
Counts One, Two, Three and Seven through Thirteen are therefore dismissed with
prejudice to the extent they are brought against any individual Defendant in his or
her official capacity. 3 These claims may be repleaded against the City except as
otherwise stated below.
B.
The Federal Claims
Plaintiffs have brought claims in Counts One and Two under 42 U.S.C. § 1983
for violations of their Fourth Amendment rights as incorporated through the
Fourteenth Amendment. (Doc. 37 at 18, 19). Both counts incorporate the same
paragraphs from the factual basis and are brought against all Defendants. (Id.).
Counts Three through Six deal with the failure to train, supervise and discipline
employees, also in violation of 42 U.S.C. § 1983. (Id. at 21-28). Count Three brings
claims against the City, as well as against Landon in his official and individual
capacities. (Id. at 21). Count Four is brought against Abreu, Count Five against
Grossman, and Count Six against Chaudoin and Donovan, each in their official and
individual capacities. (Id. at 23-28). Each of Counts Three through Six explains why
Counts Seven through Eleven and Thirteen are brought against “All
Defendants” which includes both the City and all Defendants in their official
capacities. Count Three is against the City and Landon in both his official and
individual capacities. Counts One, Two, and Twelve list the City and certain
individual Defendants without specifying that they are only brought against the
individual Defendants in their individual capacities.
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Plaintiffs believe a certain Defendant can be held liable under the same statute (§
1983) for the same constitutional violations laid out in Count One.
In all, it appears that Counts Two through Six are elaboration upon the claim
made in Count One, rather than separate claims for relief. As such, they are dismissed
without prejudice. Plaintiffs may re-file the claims if they can explain how they differ
from Count One, may choose instead to include the additional factual allegations in
Counts Two through Six in an amended Count One, or may choose to separate Count
One into different counts for different groups of Defendants (but as noted above,
Plaintiffs may not bring any claim against a Defendant in his or her official capacity
if the same claim is brought against the City). As Plaintiffs must re-plead their federal
claim, the Court will wait to rule on Defendants’ arguments that Plaintiffs have failed
to sufficiently allege a municipal policy or custom and that individual Defendants are
entitled to qualified immunity.
C.
The State Claims
Plaintiffs assert a variety of state law claims against all Defendants: negligence
(Count Seven), intentional infliction of emotional distress (Count Eight), negligent
infliction of emotional distress (Count Nine), governmental intrusion on the Plaintiffs’
right of privacy and into the personal lives of the Plaintiffs (Count Ten), invasion of
privacy (Count Eleven), and malicious prosecution (Count Thirteen). (Id. at 30-34,
36).4 Plaintiffs also assert claims against specific Defendants: Count Twelve alleges
While Defendants have not moved for dismissal as to any particular
Defendant in any count, Plaintiffs should consider in drafting their Second Amended
Complaint whether each count is appropriate as to each Defendant in their individual
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negligent training and supervision against the City, Landon, Abreu, Grossman,
Chaudoin, and Donovan, (Id. at 35); Count Fourteen claims defamation per se against
Adorante, (Id. at 38); Counts Fifteen through Seventeen allege trespass against
Adorante, Boivin, and Hadden, respectively, (Id. at 39-40).
1.
The Negligence Claims
Plaintiffs bring three claims for negligent behavior, each incorporating all 100
predicate factual allegations. (Id. at 30-31, 32, 35-36). Count Seven alleges all
Defendants were negligent, Count Nine alleges all Defendants negligently inflicted
emotional distress on Plaintiffs, and Count Twelve alleges the City, Landon, Abreu,
Grossman, Chaudoin, and Donovan committed negligent training and supervision.
(Id.).
In Count Seven, Plaintiffs only generally list the elements of a negligence claim,
without providing any information about what alleged misconduct forms the basis of
the claim. (Id. at 30-31). To the extent the Court can determine what misconduct
underlies Plaintiffs’ claim for negligence, the claim is redundant to Plaintiffs’ claim for
negligent training and supervision. As such, Count Seven is dismissed without
prejudice.
Count Nine similarly fails to state what misconduct forms the basis for the
claim, instead simply incorporating all factual allegations against all Defendants and
generally alleging the elements of a claim for negligent infliction of emotional distress.
(Id. at 32). In any event, as pled, the claim is barred by the impact rule. Florida’s
capacity.
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impact rule prohibits a claim for emotional damages unless the plaintiff has either
sustained a physical impact or his emotional distress has manifested itself in the form
of a physical injury and certain other requirements are met. Willis v. Gami Golden
Glades, LLC, 967 So. 2d 846, 850 (Fla. 2007). 5 As Plaintiffs have neither pled a
physical impact nor a physical manifestation of any emotional distress, they cannot
bring a claim for negligent infliction of emotional distress. Count Nine is dismissed
without prejudice.
Plaintiffs’ Count Twelve alleges both negligent training and supervision. (Doc.
37 at 35). While the two torts are similar, they are distinct causes of action. Adler v.
WestJet Airlines, Ltd., 31 F. Supp. 3d 1381, 1387 (S.D. Fla. 2014). Accordingly, Count
Twelve is dismissed without prejudice to re-filing a claim that makes clear both the
tort Plaintiffs allege has been committed and the basis for that claim.
2.
Count Eight: Intentional Infliction of Emotional Distress
Count Eight alleges that all Defendants intentionally inflicted emotional
distress on Plaintiffs. (Doc. 37 at 31-32). The City asserts that it has sovereign
immunity from claims for intentional infliction of emotional distress. (Doc. 40 at 15).
Florida municipalities cannot be held liable for acts an employee “committed 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) (2014). Because the
reckless conduct required to establish a claim for intentional infliction of emotional
While there are certain other exceptions to the impact rule, Plaintiffs do not
argue that any exception applies, instead arguing only that Plaintiffs were involved in
the incident. (Doc. 51 at 23).
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distress is the equivalent of willful and wanton conduct, sovereign immunity protects
Florida municipalities from claims for intentional infliction of emotional distress.
Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1330 (11th Cir. 2015).
Count Eight is therefore dismissed with prejudice as against the City.6
Individual Defendants move to dismiss Count Eight for failure to state a claim.
To allege a claim for intentional infliction of emotional distress, a plaintiff must,
amongst other elements, allege that the defendants engaged in outrageous behavior.
Williams v. City of Minneola, 575 So. 2d 683, 691 (Fla. 5th DCA 1991). Behavior is
only outrageous where it is so extreme, so atrocious, and so beyond all bounds of
decency, that it is utterly intolerable in a civilized community. Liberty Mut. Ins. Co.
v. Steadman, 968 So. 2d 592, 594-95 (Fla. 2d DCA 2007). Whether conduct is
outrageous is a question of law. Jenks v. Naples Cmty. Hosp., Inc., 829 F. Supp. 2d
1235, 1256-57 (M.D. Fla. 2011).
Maliciously issuing repeated code enforcement violations against a property is
not sufficiently outrageous to form a claim for intentional infliction of emotional
distress. Callaway v. Hernandez, No. 207-CV-132-FTM-29SPC, 2010 WL 1249936, at
*10 (M.D. Fla. Mar. 25, 2010). Nor does an unlawful intrusion by a police officer into
a plaintiff’s home form the basis for a claim, even where the officer also falsely arrests
the plaintiff. Frias v. Demings, 823 F. Supp. 2d 1279, 1289 (M.D. Fla. 2011) (granting
The City’s sovereign immunity bars claims against the Defendants sued in
their official capacities too. Keck v. Eminisor, 104 So. 3d 359, 369 (Fla. 2012).
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summary judgment for the defendant on an intentional infliction of emotional distress
claim while denying summary judgment on a § 1983 claim for warrantless entry).
Given the scattershot nature of Count Eight, which incorporates all factual
allegations and is brought against all Defendants, it is unclear what the basis is for
the claim. (Doc. 37 at 31-32). Count Eight is due to be dismissed for that reason alone.
However, even considering all of the allegations, none of the alleged misconduct is
sufficiently outrageous to state a claim for intentional infliction of emotional distress.
Count Eight is therefore dismissed with prejudice as to the individual Defendants.
3.
Count Ten: Governmental Intrusion on the Right to
Privacy
Count Ten alleges that all Defendants committed governmental intrusion on
the Plaintiffs’ right to privacy as laid out in the Florida Constitution article I, Section
23. (Doc. 37 at 33-34).7 However, no cause of action exists for money damages under
article I, Section 23. Hanney v. Garcia, No. 8:13-CV-2928-T-36MAP, 2015 WL
1277991, at *3 (M.D. Fla. Mar. 20, 2015); see also Holcy v. Flagler Cnty. Sheriff, No.
3:05-CV-1324J-32HTS, 2007 WL 2669219, at *6 (M.D. Fla. Sept. 6, 2007) (holding that
Florida constitutional provisions do not support claims for damages in the absence of
an enabling statute). As such, Count Ten is dismissed with prejudice.
4.
Count Eleven: Invasion of Privacy
Plaintiffs allege in Count Eleven that all Defendants invaded their privacy.
(Doc. 37 at 34). Florida law recognizes the tort of invasion of privacy in three
To the extent Plaintiffs’ claims in Count Ten are for common law invasion of
privacy, they are redundant of Count Eleven. (See Doc. 37 at 34).
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circumstances including, as relevant here, the physical or electronic intrusion into
one’s private quarters. Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1308 (M.D.
Fla. 2010). A claim for intrusion, however, must allege the same kind of outrageous
behavior as required for intentional infliction of emotional distress. Id.; see also
Sprogis v. Suntrust Bank, No. 6:13-CV-365-ORL-37, 2013 WL 2456090, at *2 (M.D.
Fla. June 6, 2013). Thus, Plaintiffs’ claim for invasion of privacy fails for the same
reason as their claim for intentional infliction of emotional distress, and is dismissed
with prejudice.
5.
Count Thirteen: Malicious Prosecution
Count Thirteen, brought against all Defendants, alleges malicious prosecution.
(Doc. 37 at 36). Malicious prosecution requires that a defendant have acted with
malice. Olson v. Johnson, 961 So. 2d 356, 359 (Fla. 2d DCA 2007). As discussed above,
Florida municipalities cannot be held liable for acts an employee committed with
malicious purpose. § 768.28(9)(a). Accordingly, Plaintiffs’ claim for malicious
prosecution is dismissed with prejudice to the extent it is brought against the City.
Weiland, 792 F.3d at 1330. It can be repleaded against the individual Defendants.
6.
Count Fourteen: Defamation Per Se
Count Fourteen alleges that Adorante committed defamation per se when she
cited Linda Thomas with cruelty to animals. (Doc. 37 at 38). Public officials who make
statements within the course and scope of their employment are absolutely immune
from suit for defamation. Bates v. St. Lucie Cnty. Sheriff's Office, 31 So. 3d 210, 213
(Fla. 4th DCA 2010). This absolute privilege is available without regard to whether
the speaker had an honest and reasonable belief in the veracity of the matter, nor is
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it dependent on the absence of ill will. Cassell v. India, 964 So. 2d 190, 193-95 (Fla.
4th DCA 2007). The Amended Complaint alleges that Adorante was acting in the
course and scope of her employment as an animal control officer when she cited
Thomas for animal cruelty. (Doc. 37 at 3-4). Accordingly, Adorante is immune, and
Count Fourteen is dismissed with prejudice as against Adorante in her individual
capacity. Because Adorante is alleged to have acted with malice in issuing the citation,
this claim is not available against Adorante in her official capacity. See Fl. Stat. §
768.28.
7.
Counts Fifteen, Sixteen, and Seventeen: Trespass to Land
Counts Fifteen, Sixteen and Seventeen allege claims for trespass to land against
Adorante, Boivon and Hadden. Although the Amended Complaint does not state
whether these claims are brought against these Defendants in their individual or
official capacities, these claims cannot go forward against them in their official
capacities because they are each alleged to have acted with malice (Doc. 37 at ¶¶ 243,
248, 252). See Fla. Stat. § 768.28. To the extent Plaintiffs are attempting to bring
claims for trespass to land against these Defendants in their individual capacities,
Counts Fifteen, Sixteen and Seventeen are adequately pled. See Pitts Sales, Inc. v.
King World Prods., Inc., 383 F. Supp. 2d 1354, 1365 (S.D. Fla. 2005) (explaining that
nominal damages may be recovered for trespass under Florida law where no actual
damages are proven).
8.
Whether Adequate Notice was Provided
The City argues that each state law claim is barred insofar as it seeks relief
from the City or the other Defendants in their official capacities because Plaintiffs
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failed to comply with Florida’s mandatory notice requirements. (Doc. 40 at 9-10).
Before bringing suit against a municipality, Florida law requires claimants to present
their claims in writing to the appropriate agency within 3 years from the time the
claims accrue. § 768.28(6)(a). The Court has dismissed each state law claim against
the City and the Defendants in their official capacities. The Court therefore need not
address whether Plaintiffs provided the City with adequate notice. In the event
Plaintiffs choose to replead any of the state law claims the Court is dismissing without
prejudice, the City may renew the notice argument by motion or by affirmative
defense, as appropriate. See Cabral v. City of Miami Beach, 76 So. 3d 324, 326-27 (Fla.
3d DCA 2011).
D.
Punitive Damages
The Amended Complaint asks for punitive damages against the City. (See, e.g.,
Id. at 19). As Plaintiffs admit, the City is immune from punitive damages. (Doc. 51).
Accordingly, Plaintiffs may not seek punitive damages from the City in their Second
Amended Complaint.
E.
Conclusion
Plaintiffs may well have some claims which deserve to go forward. However,
Plaintiffs’ current complaint tries to do too much and suffers from numerous
deficiencies. Thus, the Court will dismiss it without prejudice in its entirety and will
allow Plaintiffs to file a second amended complaint that addresses these deficiencies.
Those claims that the Court has dismissed with prejudice may not be included in the
second amended complaint.
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Accordingly, it is hereby
ORDERED:
1.
Defendants' Motion to Dismiss (Doc. 40) is GRANTED to the extent
discussed above, but is otherwise DENIED. Plaintiffs have until December 21, 2015
to file a second amended complaint. Defendants have until January 21, 2016 to
respond. If all or some of the Defendants move to dismiss the second amended
complaint, Plaintiffs should respond no later than February 16, 2016. The Court will
wait until the pleadings are settled to set dates for the remainder of this case.
2.
Plaintiffs’ Motion to Supplement (Doc. 62) is DENIED.
3.
The Clerk shall reopen the file.
DONE AND ORDERED in Jacksonville, Florida the 23rd day of November,
2015.
w/s.
Copies to:
Counsel of record
Pro se parties
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