Rossy v. Reid et al
Filing
61
ORDER granting 42 Motion to Dismiss for Failure to State a Claim; granting 43 Motion to Dismiss for Failure to State a Claim; granting 44 Motion to Dismiss for Failure to State a Claim; dismissing Defendant Matthew Herring; vacating the Court's Order 60 , with directions to the Clerk to close the case. Signed by Judge Marcia Morales Howard on 5/17/2017. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FRANCIS O. ROSSY,
Plaintiff,
v.
Case No. 3:14-cv-396-J-34PDB
SGT. LUPKIN,
et al.,
Defendants.
ORDER
I. Status
Plaintiff Francis O. Rossy, a former inmate of the Florida
penal system, initiated this action on April 7, 2014, by filing a
Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. He
filed an Amended Complaint (Doc. 11) on November 28, 2014, and a
Second Amended Complaint (SAC; Doc. 38) on January 9, 2017. In the
SAC, Rossy names the following individuals as Defendants: (1)
Clinch County, Georgia, Deputy Sheriff Gary Allen, (2) Hamilton
County, Florida, Sheriff J. Harrell Reid, (3) Hamilton County
Deputy Sergeant Lupkin, (4) Hamilton County Deputy Matthew Cribbs,
(5) Florida Department of Corrections (FDOC) Detainer and Release
Coordinator Helen Arrington, and (6) FDOC Senior Counselor Matthew
Herring. He asserts that the Defendants violated his Fourteenth
Amendment
right
to
procedural
due
process
of
law
when
they
unlawfully arrested, detained, and extradited him to Georgia. He
sues the Defendants in their individual and official capacities. As
relief,
Rossy
seeks
compensatory
and
punitive
damages
and
declaratory and injunctive relief.
This matter is before the Court on the following motions to
dismiss: Defendants Reid, Lupkin, and Cribbs' Motion to Dismiss
Amended Complaint (Motion; Doc. 42) with exhibits (Def. Ex.);
Defendant Clinch County Deputy Sheriff Gary Allen's Motion to
Dismiss Plaintiff's Amended Complaint (Allen Motion; Doc. 43); and
Motion to Dismiss of Defendant Helen Arrington (Arrington Motion;
Doc. 44). The Court advised Rossy that granting a motion to dismiss
would
be
an
adjudication
of
the
case
that
could
foreclose
subsequent litigation on the matter, see Order (Doc. 17), and gave
him an opportunity to respond, see Orders (Docs. 46, 49). Plaintiff
filed responses in opposition to the motions to dismiss. See
Plaintiff's Answer to Defendants Reid, Lupkin and Cribbs Motion to
Dismiss (Response; Doc. 52); Brief in Support of His Answer to
Defendant Allen's Motion to Dismiss (Brief; Doc. 54) with exhibits
(P. Ex.); Brief in Support of His Answer to Defendant Arrington's
Motion to Dismiss (Brief II; Doc. 58). The motions to dismiss are
ripe for judicial review.
- 2 -
II. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med.
Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all
reasonable inferences should be drawn in favor of the plaintiff.
See Omar ex. rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.
2003) (per curiam). Nonetheless, the plaintiff must still meet some
minimal pleading requirements. Jackson v. BellSouth Telecomm., 372
F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed,
while "[s]pecific facts are not necessary[,]" the complaint should
"'give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face." Twombly, 550
U.S. at 570. "A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see Miljkovic v.
Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015)
(citation and footnote omitted). A "plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than
- 3 -
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do[.]" Twombly, 550 U.S. at 555
(internal quotations omitted); see also Jackson, 372 F.3d at 1262
(explaining that "conclusory allegations, unwarranted deductions of
facts or legal conclusions masquerading as facts will not prevent
dismissal") (internal citation and quotations omitted). Indeed,
"the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions[,]"
which simply "are not entitled to [an] assumption of truth." Iqbal,
556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the
Court must determine whether the complaint contains "sufficient
factual matter, accepted as true, to 'state a claim to relief that
is plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S.
at 570).
III. Second Amended Complaint1
Rossy asserts that Defendants Reid, Lupkin, Cribbs, Allen, and
Arrington violated his Fourteenth Amendment right to procedural due
process
of
law
when
they
unlawfully
arrested,
detained,
and
extradited him to Georgia. According to Rossy, the FDOC released
1
The SAC is the operative pleading. In considering a motion
to dismiss, the Court must accept all factual allegations in the
SAC as true, consider the allegations in the light most favorable
to the plaintiff, and accept all reasonable inferences that can be
drawn from such allegations. Miljkovic v. Shafritz and Dinkin,
P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (quotations and
citations omitted). As such, the recited facts are drawn from the
SAC and may differ from those that ultimately can be proved.
- 4 -
him
from
Hamilton
Correctional
Institution
(HCI)
in
Hamilton
County, Florida, on the morning of March 14, 2012, after Rossy had
served a six-year term of incarceration, see SAC at 5; Defendant
Herring "turned over" the custody of Rossy to Defendant Cribbs
"without any papers, but under the oral view that an extradition
warrant
had
been
issued,"
id.;
Cribbs
frisked,
shackled
and
handcuffed Rossy and transported him to the Hamilton County Jail
(HCJ) "under the apparent properly processed Governor's warrant"
that the Georgia Governor requested, id.; Rossy requested to see
documents supporting his detention, see id.; the documents were
memoranda from Clinch County District Attorney Cathy Helms to
Hamilton County Captain Williams stating that procedures had been
initiated to obtain a Governor's warrant, see id.; Defendant
Arrington instructed the FDOC to transfer Rossy to the custody of
the Hamilton County Sheriff while the Governor's warrant and
requisition were processed, see id. at 6; Rossy challenged his
detention, pending extradition, and "authenticity of the documents"
by filing a habeas petition in state court on April 9, 2012, id.;
Rossy also requested counsel to assist him in litigating his case
in state court, see id.; Defendant Allen, in the presence of
Defendant Lupkin and other deputies, unlawfully removed Rossy from
the HCJ before he had an opportunity to litigate his case in state
court, see id.; Defendants Lupkin and Cribbs knew Rossy's habeas
petition was still pending in state court when Rossy was extradited
- 5 -
to Georgia, see id.; and Rossy objected to the extradition as a
violation of the Fourteenth Amendment and Florida law, see id.
IV. Defendants' Motions to Dismiss
Defendants Reid, Lupkin, and Cribbs seek dismissal of Rossy's
claims against them because Rossy fails to state a claim upon which
relief can be granted. See Motion at 1. They assert that: (1)
Rossy's detention in the HCJ and subsequent extradition to Clinch
County, Georgia, was lawful in accordance with Florida's Uniform
Criminal
Extradition
law
and
did
not
violate
a
federal
constitutional right, see id. at 5-7; (2) Rossy's SAC is the
"functional equivalent" of a second habeas corpus petition, and
therefore, the Court must dismiss it as a second or successive
petition, id. at 7-8; (3) the defense of res judicata bars Rossy's
action, see id. at 9-11; and (4) Rossy is neither entitled to
monetary damages nor equitable relief, see id. at 11-13.
Defendant Allen seeks dismissal of Rossy's claim against him.
He asserts that Rossy's claim: (1) fails because the asserted facts
do not show that Allen violated a right protected by the United
States Constitution or federal law, see Allen Motion at 5-6; (2) is
barred by qualified immunity to the extent Rossy sues Allen in his
individual capacity, see id. at 7-8; and (3) is barred by the
Eleventh Amendment to the extent Rossy sues Allen in his official
capacity for monetary damages, see id. at 8-10. Allen also states
that, even if Rossy's claim against him was allowed to proceed,
- 6 -
Rossy would not be entitled to the requested relief because: (a)
the
Prison
Litigation
Reform
Act
(PLRA)
prevents
Rossy
from
recovering compensatory or punitive damages, see id. at 11-12; (b)
declaratory relief is not available because Rossy has not alleged
the existence of a continuing controversy or that the threat of
future injury is immediate and definite, see id. at 12-13; and (c)
neither a preliminary nor a permanent injunction is available
because Rossy has not pled that irreparable harm will ensue if the
Court does not grant injunctive relief, see id. at 13-14.
Defendant Arrington seeks dismissal of Rossy's claims against
her. She asserts that Rossy's claims for: (1) injunctive and
declaratory relief should be dismissed as moot, see Arrington
Motion at 4-5; (2) compensatory and punitive damages are barred by
the PLRA, see id. at 5-6; and (3) monetary damages against her in
her official capacity are barred by the Eleventh Amendment, see id.
at 7-8. She also states that: Rossy's claim against her does not
allege any action on her part which led to denial of his procedural
due process rights, see id. 8-10; he was given the due process
required under the circumstances, see id. at 10-11; and the action
is barred by a one-year statute of limitations, see id. at 11-12.
Rossy filed responses in opposition to the motions to dismiss. See
Response; Brief; Brief II.
- 7 -
V. Extrinsic Evidence
At the outset, the Court notes that the parties submitted
several exhibits in support of, and in opposition to, the motions
to dismiss. See generally Motion; Allen Motion; Brief. In addition,
Defendants request that the Court take judicial notice of public
records, including records maintained by the Superior Court, Clinch
County,
Georgia
and
"information
available
on
the
database
maintained by the Hamilton County Florida Clerk of Court," Motion
at 2-3 n.1, as well as the state court's order denying Rossy's
habeas petition, see Allen Motion at 6 n.1. When a party moves to
dismiss under Rule 12(b)(6) for failure to state a claim upon which
relief can be granted, and matters outside of the pleadings are
presented
to
and
not
excluded
by
the
court,
the
motion
is
ordinarily treated as if it were a motion for summary judgment
under Rule 56. See SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600
F.3d 1334, 1337 (11th Cir. 2010); Jones v. Auto. Ins. Co. of
Hartford,
Conn.,
917
F.2d
1528,
1531-32
(11th
Cir.
1990).
Nevertheless, the Eleventh Circuit has instructed that a district
court may consider extrinsic evidence in ruling on a motion to
dismiss "if it is (1) central to the plaintiff's claim, and (2) its
authenticity is not challenged." SFM Holdings, 600 F.3d at 1337;
see also Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267-68
(11th Cir. 2002). The Court, in its discretion, declines to
consider any documents beyond those which comply with the above
- 8 -
exceptions, and thus, the motions to dismiss will not be converted
to motions for summary judgment. Harper v. Lawrence Cty., Ala., 592
F.3d 1227, 1232 (11th Cir. 2010); Jones, 917 F.2d at 1531-32.
Under appropriate circumstances, a court may take judicial
notice of and consider documents attached to a motion to dismiss or
response,
which
are
public
records
that
are
"central"
to
a
plaintiff's claims, without converting the motion to dismiss into
a motion for summary judgment. Day v. Taylor, 400 F.3d 1272, 1276
(11th Cir. 2005) (citation omitted). This is so, as long as such
documents are "public records that [are] 'not subject to reasonable
dispute'
because
determination
by
they
resort
[are]
to
'capable
sources
of
accurate
and
ready
whose
accuracy
[can]
not
reasonably be questioned.'" Horne v. Potter, 392 F. App'x 800, 802
(11th Cir. 2010) (per curiam) (quoting Fed. R. Evid. 201(b)).
Moreover, "a court may take notice of another court's order . . .
for the limited purpose of recognizing the 'judicial act' that the
order represents or the subject matter of the litigation." United
States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).
Upon review of the motions to dismiss and Rossy's Brief, the
Court notes that most of the exhibits submitted are public records
which
are
not
capable
of
reasonable
dispute,
and
therefore
appropriate for judicial notice. See Beepot v. J.P. Morgan Chase
Nat'l Corp. Servs., Inc., 57 F. Supp. 3d 1358, 1366 (M.D. Fla.
2014), aff'd, 626 F. App'x 935 (11th Cir. 2015). Notably, some of
- 9 -
the exhibits attached to the motions to dismiss are documents that
were filed in Rossy's prior state court criminal proceedings in the
Superior Court of Clinch County, Georgia,2 out of which the instant
claims arose, as well as state court records in the Third Judicial
Circuit, in and for Hamilton County, Florida.3 Therefore, they are
public records not capable of reasonable dispute, and appropriate
for judicial notice. See Horne, 392 F. App'x at 802 ("The district
court
properly
took
judicial
notice
of
the
documents
in
[plaintiff's] first case . . . ."). Moreover, because the prior
state court proceedings are central to Rossy's claims in this
action, the Court will consider this evidence in ruling on the
motions to dismiss. See Talley v. Columbus, Ga. Hous. Auth., 402 F.
App'x 463, 465 n.4 (11th Cir. 2010) ("Although the district court
was ruling on a motion to dismiss, the court properly examined
extrinsic documents detailing [plaintiff's] previous state and
federal court cases that related to the condemnation of his
property: the cases were central to [plaintiff's] instant federal
claim.").
2
See Def. Exs. 1, State of Georgia v. Francis O. Rossy, Case
No. 09CR105, Criminal Warrant Nos. 07-284, 07-285, 07-286, 07-287,
07-288, 07-289, 07-290, 07-291, Indictment; 7, Verdict.
3
See Def. Exs. 3, 5, 6.
- 10 -
VI. Law and Conclusions
A. Lack of Jurisdiction
Defendants Reid, Lupkin, and Cribbs assert that the Court
should dismiss Rossy's case for lack of jurisdiction because it is
the "functional equivalent" of a second or successive habeas corpus
petition that is not cognizable under 42 U.S.C. § 1983. See Motion
at 7-8. Rossy opposes the request for dismissal, and asserts that
he is entitled to litigate the issues underlying the alleged
unlawful detention and extradition in a civil rights complaint
under 42 U.S.C. § 1983. See Response at 5-6. Rossy's civil rights
action is properly before this Court. See Harden v. Pataki, 320
F.3d
1289,
asserting
1299
a
(11th
violation
Cir.
of
2003)
a
(recognizing
prisoner's
that
federally
a
claim
protected
extradition rights is properly brought pursuant to 42 U.S.C. §
1983). As such, Defendants Reid, Lupkin, and Cribbs' request to
dismiss the case for lack of jurisdiction is due to be denied.
B. Statute of Limitations
Defendant Arrington asserts that the applicable statute of
limitations is the one-year limitations period found in Florida
Statutes section 95.11(5)(g). See Arrington Motion at 11-12. That
section states in pertinent part: "[A]n action brought by or on
behalf of a prisoner . . . relating to the conditions of the
prisoner's confinement" must be brought within one year. Fla. Stat.
§ 95.11(5)(g). Rossy opposes Arrington's request to dismiss the
- 11 -
action. See Brief II at 15. He asserts that the applicable statute
of limitations is four years. See id. This Court agrees. "Claims
brought pursuant to 42 U.S.C. § 1983 are subject to the statute of
limitations period governing personal injury actions in the state
where the action is brought." Wellons v. Comm'r, Ga. Dep't of
Corr., 754 F.3d 1260, 1263 (11th Cir. 2014) (citation omitted); see
Ealy v. GEO Grp., Inc., 667 F. App'x 739, 740 (11th Cir. 2016) (per
curiam) ("This Court has on several occasions applied the four-year
residual
limitations
period
under
Florida's
personal
injury
statute, Florida Statutes § 95.11(3)(p), to 42 U.S.C. § 1983
claims."). A four-year limitations period under Florida Statutes
section 95.11(3)(p) is applicable to Rossy's 42 U.S.C. § 1983
claims. Therefore, Defendant Arrington's request to dismiss the
action as barred by Florida's one-year statute of limitations is
due to be denied.
C. Eleventh Amendment Immunity
To the extent Defendant Arrington asserts that she is entitled
to Eleventh Amendment immunity, this Court agrees.
The Eleventh Amendment provides that
"[t]he Judicial power of the United States
shall not be construed to extend to any suit
in law or equity, commenced or prosecuted
against one of the United States by Citizens
of another State, or by Citizens or Subjects
of any Foreign State." U.S. Const. amend. XI.
It is well established that, in the absence of
consent, "a suit in which the State or one of
its agencies or departments is named as the
defendant is proscribed by the Eleventh
Amendment." Papasan v. Allain, 478 U.S. 265,
- 12 -
276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)
(quotation omitted). The Eleventh Amendment
also prohibits suits against state officials
where the state is the real party in interest,
such that a plaintiff could not sue to have a
state officer pay funds directly from the
state treasury for the wrongful acts of the
state. Summit Med. Assocs., P.C. v. Pryor, 180
F.3d 1326, 1336 (11th Cir. 1999). . . .
Hayes v. Sec'y, Fla. Dep't of Children & Families, 563 F. App'x
701, 703 (11th Cir. 2014) (per curiam).
In Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986)
(per curium), the Eleventh Circuit noted:
It is clear that Congress did not intend
to abrogate a state's eleventh amendment
immunity in section 1983 damage suits. Quern
v. Jordan, 440 U.S. 332, 340-45, 99 S.Ct.
1139,
1144-45,
59
L.Ed.2d
358
(1979).
Furthermore,
after
reviewing
specific
provisions of the Florida statutes, we
recently concluded that Florida's limited
waiver of sovereign immunity was not intended
to encompass section 1983 suits for damages.
See Gamble,[4] 779 F.2d at 1513-20.
Accordingly, in Zatler, the court found that the FDOC Secretary was
immune from suit in his official capacity. Id. Insofar as Rossy may
be
seeking
monetary
damages
from
Defendant
Arrington
in
her
official capacity, the Eleventh Amendment bars suit. Therefore,
Defendant Arrington's Motion is due to be granted as to Rossy's
claim for monetary damages from her in her official capacity.
4
Gamble v. Fla. Dep't of Health & Rehab. Serv., 779 F.2d 1509
(11th Cir. 1986).
- 13 -
D. Declaratory and Injunctive Relief
Defendants assert that Rossy's claims for declaratory and
injunctive relief should be dismissed as moot since he is no longer
in the custody of the Hamilton County Sheriff or FDOC. This Court
agrees. According to the offender network, the FDOC released Rossy
on March 14, 2012. See http://www.dc.state.fl.us/offenderSearch.
On April 11, 2012, Clinch County Deputy Sheriff Allen picked up
Rossy for extradition to Georgia. See Def. Ex. 2; SAC at 6. Rossy
currently resides at the Hays State Prison in Trion, Georgia. See
http://www.dcor.state.ga.us./GDC/OffenderQuery
(as
of
May
11,
2017). The general rule in this Circuit is that a transfer or a
release of a prisoner from prison will moot that prisoner's claims
for injunctive and declaratory relief. Zatler, 802 F.2d at 399. The
rationale underlying this rule is that injunctive relief is "a
prospective remedy, intended to prevent future injuries," Adler v.
Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997), and, as
a result, once the prisoner has been released or transferred, the
court lacks the ability to grant injunctive relief and correct the
conditions of which the prisoner complained. See Wahl v. McIver,
773 F.2d 1169, 1173 (11th Cir. 1985) (per curiam) (stating that a
prisoner's past exposure to sub-par conditions in a prison "does
not constitute a present case or controversy involving injunctive
relief
if
unaccompanied
by
any
continuing,
present
adverse
effects"). Thus, Rossy's claims for declaratory and injunctive
- 14 -
relief concerning events arising while in the custody of the FDOC
or
the
Hamilton
County
Sheriff
fail
to
present
a
case
or
controversy. Additionally, to the extent Rossy requests that the
Court direct the Defendants to provide him with a letter of apology
for their alleged unlawful actions, see SAC at 7, the Court does
not have the authority to grant such relief. Therefore, Defendants'
request to dismiss Rossy's claims for declaratory and injunctive
relief as moot is due to be granted.
E. Procedural Due Process of Law
Defendants seek dismissal of Rossy's claims against them for
violations of due process of law under the Fourteenth Amendment.
They assert that Rossy's detention in the HCJ and subsequent
extradition to Clinch County, Georgia, were lawful, and therefore
did not violate Rossy's right to due process of law under the
Fourteenth Amendment. See Motion at 5-7; Arrington Motion at 8-11;
Allen Motion at 5-6. Rossy opposes the requests to dismiss. See
Response at 3-4; Brief at 3-8; Brief II at 10-14. The following
factual chronology is relevant to Rossy's due process claims
against the Defendants.
On March 9, 2012, the District Attorney's Office for Clinch
County, Georgia, informed the FDOC and Hamilton County Sheriff's
Office that the District Attorney had applied for a Governor's
Requisition for Rossy. Def. Ex. 1, District Attorney's Memorandum
- 15 -
(DA Memorandum); see also SAC at 5-6; P. Ex. B. The DA Memorandum
states in pertinent part:
Our office has applied for a Governor's
Requisition for Florida DOC inmate Francis
Oscar Rossy. Mr. Rossy is scheduled to be
released from Florida DOC on March 14, 2012
and will be transferred to the custody of the
Hamilton County Sheriff's Office while the
Governor's Warrant is being processed. As per
instructions from Helen Arrington, Florida
Department of Corrections Detainer & Release
Coordinator, I have attached for your records
a copy of the following:
1.
Cover
letter
to
Georgia
Department of Corrections [1 pg]
2.
Application
and
supporting
documents for Governor's Requisition
[31 pgs]
3. Fax to Helen Arrington [FL
DOC/Detainer Release Coordinator] [1
pg]
4. Notice of release date from FL
DOC [4 pgs]
Once the Governor's Warrant has been issued
and processed, the Clinch County Sheriff's
Office will be in contact with you to assume
custody of Mr. Rossy. . . .
Def. Ex. 1 at 1; see SAC at 5-6. The DA Memorandum included the
following supporting documents: the Application for Governor's
Requisition, and Affidavits, State Criminal Warrant Numbers 07-284,
07-285, 07-286, 07-287, 07-288, 07-289, 07-290, 07-291, and the
Indictment in State of Georgia v. Francis O. Rossy, Case No.
09CR105. See Def. Ex. 1.5 The March 16, 2009 Indictment charged
5
Federal Rule of Evidence 201(b) provides that "[t]he court
may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's
- 16 -
Rossy with four counts of aggravated child molestation, two counts
of enticing a child for indecent purposes, two counts of incest,
and two counts of rape for offenses allegedly occurring in Georgia.
See id.
As a result of the Governor's Requisition Application, a
Hamilton County Deputy Sheriff transferred Rossy on March 14,
2012,6 to the HCJ where the Hamilton County Sheriff held Rossy on
a detainer for extradition to Georgia. See SAC at 5-6; see also
Def. Ex. 2, Hamilton County Jail, Inmate Transmittal Form. That
same day, Rossy appeared before Judge Scaff for First Appearance;
the court informed Rossy of the Georgia warrant and the charges
against him. See Def. Ex. 3.7
On
March
21,
2012,
the
Governor
of
Georgia
signed
a
Requisition Demand and Agency Authorization (GA Requisition). See
territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned." The documents supporting the DA Memorandum are public
records which are not capable of reasonable dispute, and therefore
appropriate for judicial notice. See Beepot, 57 F. Supp. 3d at
1366.
6
According to the FDOC offender network, the FDOC released
Rossy on March 14, 2012, after he served a six-year term of
incarceration
for
lewd
and
lascivious
molestation.
See
http://www.dc.state.fl.us/offenderSearch.
7
The Court takes judicial notice of County Judge Sonny
Scaff's "First Appearance Order" and "Judge's Record of First
Appearance," which are public records in the County Court, Third
Judicial Circuit, in and for Hamilton County, Florida. See Def. Ex.
3.
- 17 -
Def. Ex. 4. In the GA Requisition, the Georgia Governor stated in
pertinent part:
Now, therefore, pursuant to the provisions of
the Constitution and laws of the United
States, and the laws of the State of Georgia,
and the laws of the State of Florida, in such
case made and provided, I respectfully demand
that Francis O. Rossy a/k/a Rossy-Soto a/k/a
Francis Oscar Rossy, said fugitive from
justice, be arrested and secured and delivered
to Sheriff Winston C. Peterson, Clinch County
Sheriff's Department, and/or a designated
agent, who is hereby authorized to receive,
convey and transport him/her to this State,
here to be dealt with according to law.
Def. Ex. 4 at 2 (selected capitalization and emphasis deleted). On
April 11, 2012,8 pursuant to the GA Requisition, a Clinch County
Deputy Sheriff picked up Rossy for extradition to Georgia. See SAC
at 6; see also Def. Exs. 2; 5 (noting Rossy's mail was returned to
the court on or about April 16, 2012).
While still detained at the HCJ on April 6, 2012, Rossy filed
a habeas petition in state court. See Def. Ex. 5 at 3-12; SAC at 6.
He asserted that his jail detention was unlawful because the
Hamilton County Sheriff detained him prior to the issuance of a
Governor's warrant. See Def. Ex. 5 at 3-12. In the petition, Rossy
states:
"Upon
request
at
first
appearance
with
Judge
Scaff
Petitioner was shown the supporting documents that invoked his
8
Rossy asserts that a Clinch County Deputy Sheriff picked him
up for extradition to Georgia on April 18, 2012. See Brief at 1.
However, it appears that Deputy Sheriff Allen picked Rossy up on
April 11th, not April 18th. See Def. Ex. 2. Nevertheless, the exact
date does not affect the Court's resolution of the issues.
- 18 -
detention." Id. at 4. As relief, he requested that the state court
direct the sheriff to release him from custody. See id. at 1, 7, 8.
On December 5, 2012, the court denied Rossy's petition as moot and
without merit. See Def. Ex. 6.9 In doing so, the court stated in
pertinent part:
On March 14, 2012, the Petitioner was
released from the custody of the Department of
Corrections (DOC) and transferred to the
Hamilton County Jail where he was held on a
detainer for extradition to the State of
Georgia. It appears from a search of the
Clinch County, Georgia, Jail records that the
Petitioner has since been transferred to the
Clinch County Jail and continues to remain
there as he awaits prosecution on his Georgia
criminal case.
In the instant petition, the Petitioner
alleges his detainer in the Hamilton County
Jail was unlawful because he was detained
prior to the issuance of a Governor's Warrant,
in contravention of Sections 941.03 and
941.07, Florida Statutes. Specifically, the
Petitioner alleges that he was being illegally
detained because of a communication made to
DOC and the Hamilton County Sheriff by the
Chief Assistant District Attorney of Georgia
(District Attorney). In that communication,
the District Attorney informed DOC and the
Hamilton County Sheriff that the District
Attorney's Office had applied for a Governor's
Requisition and was awaiting for [sic] the
issuance of [a] Governor's Warrant.
The
Petitioner
attached
the
above
referenced communication to the instant
petition. The attachment is a letter from the
District Attorney, dated March 9, 2012, to
9
The Court takes judicial notice of Rossy's habeas petition,
the criminal case docket, and the state court's order denying the
petition. See Def. Exs. 5, 6.
- 19 -
Captain Don Williams of the Hamilton County
Sheriff's Office, in which Captain Williams is
notified
of
the
District
Attorney's
application for a Governor's Requisition and
Warrant. In that letter, the District Attorney
attached, among other things, the following
documents: (1) an application and supporting
documents for Governor's Requisition (a 31
page document); (2) a fax to DOC's Detainer
Release Coordinator, and (3) a notice of
release
date
from
DOC.
According
to
Petitioner, this communication alone - in the
absence of a Governor's Warrant - was not
legally sufficient to support his detainer in
the Hamilton County Jail.
Florida law permits the warrantless
arrest of a defendant for purposes of
extradition to another state. Section 941.14,
Florida Statutes, states that:
[t]he arrest of a person may be
lawfully made also by any peace
officer or a private person, without
a
warrant
upon
reasonable
information that the accused stands
charged in the courts of a state
with a crime punishable by death or
imprisonment for a term exceeding 1
year, but when so arrested the
accused must be taken before a judge
with all practicable speed and
complaint must be made against the
accused under oath setting forth the
ground for the arrest . . . and
thereafter his or her answer shall
be heard as if the accused had been
arrested on a warrant.
The purpose of a detention pursuant to Section
941.14 is to "permit[] time for the procedures
required for production of a governor's
warrant." Lewis v. Boone, 418 So.2d 319, 320
(Fla. 1st DCA 1982). In the instant petition,
the Petitioner admits that subsequent [to] his
transfer to the Hamilton County Jail he was
taken before a judge for First Appearance.
According to the Petitioner:
- 20 -
[u]pon request at First Appearance
with Judge Scaff Petitioner was
shown the supporting documents, that
invoked his detention. This [sic]
documents [were] mainly memorandums
from Cathy Helms, District Attorney,
Alapaha Judicial Circuit, State of
Georgia,
informing
Hamilton
Sheriff[']s Office, Captain Williams
that procedures had been initiated
to obtain a Governor's Warrant on
Petitioner . . . .[]
Petition at 2. It appears that after his
release from DOC, and after the Petitioner's
transfer
to
the
Hamilton
County
Jail,
officials promptly took the Petitioner before
a judge to determine the legality of his
detainer,
in
accordance
with
941.14.
Accordingly, the Petitioner's detainer in the
Hamilton County Jail was not unlawful.
Moreover, the Petitioner is currently outside
the jurisdiction of this Court, as he is being
held in the Clinch County Jail for criminal
charges arising out of the State of Georgia.
Therefore, the instant petition is not only
meritless, but it is also moot.
Def. Ex. 6 at 1-2 (emphasis deleted and added). The court notified
Rossy that he could appeal the court's denial to the First District
Court of Appeal within thirty days of the effective date of the
order. See id. at 2. However, Rossy did not appeal the postconviction court's denial. See Def. Ex. 5 at 2.
On December 18, 2012, a jury found Rossy guilty of aggravated
child molestation, enticing a child for indecent purposes, incest,
and rape. See Def. Ex. 7, State of Georgia v. Francis O. Rossy,
Case No. 09CR105, Verdict, Counts 1-10. Rossy is serving a term of
imprisonment in Georgia; his estimated release date is April 7,
- 21 -
2092. See http://www.dcor.state.ga.us/GDC/OffenderQuery (as of May
11, 2017).
According to Rossy, Defendant Arrington instructed the FDOC to
transfer Rossy to the custody of the Hamilton County Sheriff while
the Georgia Governor's warrant and requisition were processed;
Defendant Cribbs took custody of Rossy and transported him to the
HCJ on March 14, 2012; and Defendant Allen, in the presence of
Defendant Lupkin, unlawfully removed Rossy from the HCJ before
Rossy had an opportunity to litigate his habeas case in state
court. Florida Statutes section 941.02 states in pertinent part:
[I]t is the duty of the Governor of [Florida]
to have arrested and delivered up to the
executive authority of any other state of the
United States any person charged in that state
with treason, felony, or other crime, who has
fled from justice and is found in this state.
See Fla. Stat. § 941.02. A warrantless pre-requisition arrest is
permitted by Florida Statutes section 941.14 provided that three
elements are satisfied. See France v. Judd, 932 So. 2d 1263, 1266
(Fla. 2nd DCA 2006). The applicable statute provides:
The arrest of a person may be lawfully made
also by any peace officer or a private person,
without a warrant upon reasonable information
that the accused stands charged in the courts
of a state with a crime punishable by death or
imprisonment for a term exceeding 1 year, but
when so arrested the accused must be taken
before a judge with all practicable speed and
complaint must be made against the accused
under oath setting forth the ground for the
arrest . . .; and thereafter his or her answer
shall be heard as if the accused had been
arrested on a warrant.
- 22 -
Fla. Stat. § 941.14. Thus, an alleged fugitive may be arrested
without a warrant based on reasonable information that the person
stands charged in the courts of a state with a crime punishable by
death or imprisonment for a term exceeding one year. See France,
932 So. 2d at 1266. Detention pursuant to Florida Statutes section
941.14 "permits time for the procedures required for production of
a governor's warrant." Lewis, 418 So. 2d at 320.
Rossy's detention in the HCJ and his subsequent extradition to
Clinch
County,
Georgia,
was
lawful
and
did
not
violate
his
procedural due process rights. Rossy neither asserts that the
Defendants were aware of any procedural defects in the extradition
paperwork or proceedings nor that they thwarted his ability to
initiate and litigate his habeas issues in the state courts.
Indeed, the state court ultimately decided that his habeas claims
relating to his alleged unlawful detention at HCJ were meritless.
Shortly after his transfer to the HCJ, Rossy appeared before a
state court judge,10 at which time the court informed Rossy of the
charges, the out-of-state warrant, and his right to counsel. A week
later, the Governor of Georgia issued the requisition to arrest,
secure, and deliver Rossy to Clinch County, Georgia. The Defendants
were simply performing their duties for the purpose of Rossy's
extradition to Georgia where he was ultimately convicted. In doing
10
Rossy made an appearance by videoconferencing from the HCJ.
See Def. Ex. 3; see also Response at 3 (stating that the documents
were shown to Rossy after the video hearing).
- 23 -
so,
Rossy
was
provided
the
due
process
of
law
required
for
extradition to Georgia. Given the record, the Defendants neither
violated Rossy's procedural due process rights under the Fourteenth
Amendment nor Florida's Uniform Extradition law.11
Next, Rossy neither provides any factual assertions relating
to Sheriff Reid nor allegations as to how he may have violated
Rossy's federal constitutional rights. To the extent Rossy asserts
a supervisory claim against Sheriff Reid, the United States Court
of Appeals for the Eleventh Circuit has stated:
"Supervisory officials are not liable under
section 1983 on the basis of respondeat
superior or vicarious liability." Belcher v.
City of Foley, Ala., 30 F.3d 1390, 1396 (11th
Cir. 1994) (internal quotation marks and
citation omitted). "The standard by which a
supervisor is held liable in her individual
capacity for the actions of a subordinate is
extremely rigorous." Gonzalez, 325 F.3d at
1234 (internal quotation marks and citation
omitted).[12] "Supervisory liability occurs
either
when
the
supervisor
personally
participates in the alleged constitutional
violation or when there is a causal connection
between actions of the supervising official
and the alleged constitutional deprivation."
11
On April 18, 2014, the Court transferred Rossy's case to the
United States District Court for the Middle District of Georgia
where Rossy resided. See Order of Transfer (Doc. 4). The Honorable
Hugh Lawson of the Middle District of Georgia found that Rossy's
assertions against Defendant Allen in the original complaint (Doc.
1) failed to state a claim upon which relief could be granted, and
therefore dismissed Defendant Allen. See Order (Doc. 6), filed May
29, 2014. That Court then transferred the case back to this Court
since Allen was the only defendant residing in the Middle District
of Georgia. See id.
12
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).
- 24 -
Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990).
"The necessary causal connection can be
established 'when a history of widespread
abuse puts the responsible supervisor on
notice of the need to correct the alleged
deprivation, and he fails to do so.'" Cottone,
326 F.3d at 1360 (citation omitted).[13] "The
deprivations that constitute widespread abuse
sufficient to notify the supervising official
must be obvious, flagrant, rampant and of
continued duration, rather than isolated
occurrences." Brown, 906 F.2d at 671. A
plaintiff can also establish the necessary
causal connection by showing "facts which
support an inference that the supervisor
directed the subordinates to act unlawfully or
knew
that
the
subordinates
would
act
unlawfully and failed to stop them from doing
so," Gonzalez, 325 F.3d at 1235, or that a
supervisor's "custom or policy . . . resulted
in deliberate indifference to constitutional
rights," Rivas v. Freeman, 940 F.2d 1491, 1495
(11th Cir. 1991).
Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008); see Keith v.
DeKalb Cty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014). In sum,
To state a claim against a supervisory
defendant, the plaintiff must allege (1) the
supervisor's personal involvement in the
violation of his constitutional rights,[14] (2)
the existence of a custom or policy that
resulted in deliberate indifference to the
plaintiff's constitutional rights,[15] (3)
13
Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003).
14
See Goebert v. Lee Cty., 510 F.3d 1312, 1327 (11th Cir.
2007) ("Causation, of course, can be shown by personal
participation in the constitutional violation.") (citation
omitted).
15
See Goebert, 510 F.3d at 1332 ("Our decisions establish that
supervisory liability for deliberate indifference based on the
implementation of a facially constitutional policy requires the
- 25 -
facts supporting an inference that the
supervisor directed the unlawful action or
knowingly failed to prevent it,[16] or (4) a
history of widespread abuse that put the
supervisor on notice of an alleged deprivation
that he then failed to correct. See id. at
1328–29 (listing factors in context of summary
judgment).[17] A supervisor cannot be held
liable under § 1983 for mere negligence in the
training or supervision of his employees.
Greason v. Kemp, 891 F.2d 829, 836–37 (11th
Cir. 1990).
Barr v. Gee, 437 F. App'x 865, 875 (11th Cir. 2011) (per curiam).
Thus, any supervisory claim against Sheriff Reid fails because
Rossy has failed to allege any facts suggesting that he was
personally involved in, or otherwise causally connected to, the
alleged violations of his federal statutory or constitutional
rights. Moreover, "[i]n light of the Court's determination that
there was no constitutional deprivation, there is no basis for
supervisory liability." Dang v. Sheriff, Seminole Cty. Fla., No.
15-14842, 2017 WL 1856069, at *7 (11th Cir. May 9, 2017) (quoting
Gish v. Thomas, 516 F.3d 952, 955 (11th Cir. 2008); Beshers v.
Harrison, 495 F.3d 1260, 1264 n.7 (11th Cir. 2007)). Therefore,
plaintiff to show that the defendant had actual or constructive
notice of a flagrant, persistent pattern of violations.").
16
See Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)
("Douglas's complaint alleges that his family informed Yates [(an
Assistant Warden)] of ongoing misconduct by Yates's subordinates
and Yates failed to stop the misconduct. These allegations allow a
reasonable inference that Yates knew that the subordinates would
continue to engage in unconstitutional misconduct but failed to
stop them from doing so.").
17
West v. Tillman, 496 F.3d 1321 (11th Cir. 2007).
- 26 -
Defendants Reid, Lupkin, Cribbs, Allen and Arrington's Motions are
due to be granted as to Rossy's procedural due process claims
against them.
F. Defendant Matthew Herring
Rossy asserts that Defendant Herring "turned over" the custody
of Rossy to Defendant Cribbs "without any papers, but under the
oral view that an extradition warrant had been issued." SAC at 6.
On February 23, 2017, service of process was returned unexecuted as
to Herring with an explanation that there is no employee with that
name at HCI. See Return of Service (Doc. 48). On March 16, 2017,
the FDOC notified the Court that there is no employee with that
name at the FDOC. See FDOC Notice to Court (Doc. 53). As such, the
Court found that reasonable efforts to locate Herring had been
exhausted and directed Rossy to show satisfactory cause, by May 26,
2017, why Herring should not be dismissed from the action. See
Order (Doc. 57). When Rossy provided documents to the Court signed
by Herring, see Doc. 59, the Court directed the FDOC to review the
documents and, if able to do so, provide the last known address of
record for Herring by June 2, 2017, see Order (Doc. 60). Given the
record and the Court's granting of the motions to dismiss, the
Court
will
vacate
its
Order
(Doc.
60)
and
address
Rossy's
assertions as to Defendant Herring.
The Prison Litigation Reform Act requires the Court to dismiss
this case at any time if the Court determines that the action is
- 27 -
frivolous, malicious, fails to state a claim upon which relief can
be granted or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Additionally, the Court must read Plaintiff's pro se allegations in
a liberal fashion. Haines v. Kerner, 404 U.S. 519 (1972).
"A claim is frivolous if it is without arguable merit either
in law or fact." Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001) (citing Battle v. Central State Hosp., 898 F.2d 126, 129
(11th Cir. 1990)). A complaint filed in forma pauperis which fails
to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically
frivolous. Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section
1915(e)(2)(B)(i) dismissals should only be ordered when the legal
theories are "indisputably meritless," id. at 327, or when the
claims rely on factual allegations which are "clearly baseless."
Denton v. Hernandez, 504 U.S. 25, 32 (1992). "Frivolous claims
include claims 'describing fantastic or delusional scenarios,
claims with which federal district judges are all too familiar.'"
Bilal, 251 F.3d at 1349 (quoting Neitzke, 490 U.S. at 328).
Additionally, a claim may be dismissed as frivolous when it appears
that a plaintiff has little or no chance of success. Id.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured under
the United States Constitution or federal law, and (2) such
deprivation occurred under color of state law. Salvato v. Miley,
- 28 -
790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam)
(citations
omitted).
Moreover,
the
Eleventh
Circuit
"'requires proof of an affirmative causal connection between the
official's
acts
or
omissions
and
the
alleged
constitutional
deprivation' in § 1983 cases." Rodriguez v. Sec'y, Dep't of Corr.,
508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright,
802 F.2d 397, 401 (11th Cir. 1986)). More than conclusory and vague
allegations are required to state a cause of action under 42 U.S.C.
§ 1983. See L.S.T., Inc. v. Crow, 49 F.3d 679, 684 (11th Cir. 1995)
(per curiam); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.
1984).
Additionally,
"conclusory
allegations,
unwarranted
deductions of facts, or legal conclusions masquerading as facts
will not prevent dismissal." Rehberger v. Henry Cty., Ga., 577 F.
App'x 937, 938 (11th Cir. 2014) (per curiam) (internal quotations
and citation omitted). In the absence of a federal constitutional
deprivation or violation of a federal right, Plaintiff cannot
sustain a cause of action against Defendant Herring.
Like
the
other
Defendants
who
were
involved
in
Rossy's
detention and ultimate extradition to Georgia, Defendant Herring
was simply performing his corrections duties for the purpose of
Rossy's extradition to Georgia. As such, Rossy was provided the due
process of law required for extradition to Georgia. Given Rossy's
- 29 -
assertions in the SAC, Defendant Herring neither violated Rossy's
procedural due process rights under the Fourteenth Amendment nor
Florida's Uniform Extradition law. For the foregoing reasons, the
Court will dismiss Defendant Herring, pursuant to 28 U.S.C. §
1915(e)(2)(B), because Rossy has failed to provide sufficient
factual allegations to support a claim under § 1983 against
Herring.
Therefore, it is now
ORDERED:
1.
Defendants Reid, Lupkin, and Cribbs' Motion to Dismiss
Amended Complaint (Doc. 42) is GRANTED to the extent provided in
the Order, and Rossy's claims against them are DISMISSED.
2.
Defendant Clinch County Deputy Sheriff Gary Allen's
Motion to Dismiss Plaintiff's Amended Complaint (Doc. 43) is
GRANTED to the extent provided in the Order, and Rossy's claims
against him are DISMISSED.
3.
Defendant Helen Arrington's Motion to Dismiss (Doc. 44)
is GRANTED to the extent provided in the Order, and Rossy's claims
against her are DISMISSED.
4.
Defendant Matthew Herring is DISMISSED from this action.
5.
The Court vacates the Order (Doc. 60) directing the FDOC
to provide the last known address for Defendant Herring.
- 30 -
6.
The Court directs the Clerk to provide a copy of this
Order to Alexandria Williams, Assistant General Counsel for the
Florida Department of Corrections.
7.
The Clerk shall enter judgment dismissing this case and
terminating any pending motions.
8.
The Clerk shall close the case.
DONE AND ORDERED at Jacksonville, Florida, this 17th day of
May, 2017.
sc-jax1 5/17
c:
Francis O. Rossy
Counsel of Record
- 31 -
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