Scheider et al v. Leeper et al

Filing 22

ORDER granting 9 Defendant, Angela Corey's Motion to Dismiss Plaintiffs' Complaint. The Clerk of the Court is directed to terminate this Defendant from the Court docket. Signed by Judge Marcia Morales Howard on 3/10/2016. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DAVID JOHN SCHEIDER and
CHRIS SCHEIDER, his wife,
Plaintiffs,
Case No. 3:15-cv-364-J-34JRK
vs.
BILL LEEPER, Sheriff of Nassau
County, Florida; and ANGELA COREY,
State Attorney, Fourth Judicial Circuit of
Florida,
Defendants.
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ORDER
THIS CAUSE is before the Court on Defendant, Angela Corey’s Motion to Dismiss
Plaintiffs’ Complaint (Doc. 9; Motion), filed on April 23, 2015. Plaintiffs David John Scheider
and Chris Scheider1 filed a response in opposition to the Motion on April 30, 2015. See
Plaintiffs’ Objection to Defendant, Corey’s Motion to Dismiss Plaintiffs’ Complaint and
Memorandum of Law (Doc. 10; Response). With leave of Court, see Order (Doc. 19),
Defendant Angela Corey filed a reply to Plaintiffs’ Response on July 2, 2015.

See

Defendant, Angela Corey’s Reply to Plaintiffs’ Objection Filed in Response to Defendant
Corey’s Motion to Dismiss (Doc. 21; Reply). Accordingly, the Motion is ripe for review.

1

Chris Scheider’s sole claim is for loss of consortium. See Complaint for Damages (Doc. 1; Complaint) at
6. Because her claim is derivative of David John Scheider’s claims, the Court will use “Scheider” to refer to
David John Scheider. When referring to his wife, the Court will use her full name, Chris Scheider.

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I.

Background2
On or about November 6, 2013, members or agents of the Nassau County Sheriff’s

Office (NCSO) videotaped a confidential informant’s illegal purchase of a controlled
substance from a then-unknown seller. See Complaint for Damages (Doc. 1; Complaint)
¶ 23, filed March 24, 2015.

This sale of a controlled substance violated section

893.13(1)(a) of the Florida Statutes. Id. On or about that same day, the “confidential
informant and/or members of the NCSO” identified the seller as Scheider. Id. ¶ 24.3
However, Scheider was not, in fact, the seller depicted in the video. Id. Over seven months
later, on June 26 or 27, 2014, NCSO officers arrested Scheider for violating section
893.13(1)(a) of the Florida Statutes. Id. ¶¶ 4, 25. NCSO conducted this arrest without a
warrant. Id. ¶¶ 29, 30. By virtue of the arrest, Scheider was “subjected to a loss of his
liberties,” forced to post bail and retain counsel, “subjected to public ridicule,” and
involuntarily committed to a mental health facility “under the Baker Act laws of the State of
Florida.” Id. ¶ 26. On September 9, 2014, the State Attorney’s Office filed a nolle prosequi,
dismissing the criminal charge against Scheider. Id. ¶ 27. Scheider maintains that he did
not commit the crime with which he was charged, and alleges that “the NCSO did not have
probable cause or even arguable probable cause to arrest him.” Id. ¶¶ 24, 28.
On March 24, 2015, Plaintiffs initiated this lawsuit by filing a three-count Complaint
against Defendant Angela Corey, in her official capacity as the State Attorney for the Fourth

2

In considering the Motion to Dismiss, the Court must accept all factual allegations in the Complaint
as true, consider the allegations in the light most favorable to the plaintiffs, and accept all reasonable
inferences that can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003);
Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). As such, the facts recited here are
drawn from the Complaint, and may well differ from those that ultimately can be proved.
3

The Complaint does not indicate whether the informant identified Scheider to the NCSO or whether
the NCSO determined that the seller was Scheider based on other information. See Complaint ¶ 24.

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Judicial Circuit of Florida (the State Attorney), and Defendant Bill Leeper, in his official
capacity as the Sheriff of Nassau County, Florida (the Sheriff). See generally id. As
relevant to the instant Motion, in Count II of the Complaint, Scheider asserts a claim
pursuant to 42 U.S.C. § 1983 against the State Attorney. Id. at 3-5.4 In Count III, Chris
Scheider, Scheider’s wife, alleges a loss of consortium claim against both Defendants. Id.
at 6. Plaintiffs seek compensatory damages and attorney’s fees and costs. Id. ¶ 6.
II.

Standard of Review
In ruling on a motion to dismiss, brought pursuant to Rule 12(b)(6), the Court must

accept the factual allegations set forth in the complaint as true. See 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 to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the

4
Although Count II is titled “Count II: 42 U.S.C. sections 1983 and 1988 (David John Scheider vs.
Corey),” the Count begins with allegations that Scheider brings a § 1983 claim “against Sheriff Leeper” and
that “Sheriff Leeper deprived [Scheider] of his Fourth Amendment right to be free from unreasonable
searches and seizures.” See Complaint ¶¶ 21-22. It appears that these references to Sheriff Leeper in
Count II of the Complaint are typographical errors. Compare id. ¶¶ 9-10 with ¶¶ 21-22.

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plaintiff pleads factual content that 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).
A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than 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 “[c]onclusory 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.” See Iqbal, 556 U.S. at 678, 68081. 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).5
III.

Analysis
A.

Scheider’s § 1983 Claim Against Corey in her Official Capacity

In the Motion, the State Attorney argues that Scheider fails to state a claim under §
1983 because Count II contains “absolutely no factual allegations against Corey,” except

5

Prior to Iqbal, Eleventh Circuit precedent instructed that a heightened pleading standard applied in
§ 1983 actions where “the defendants are individuals who may seek qualified immunity.” See Amnesty Int’l,
USA v. Battle, 559 F.3d 1170, 1179 (11th Cir. 2009). However, in Randall v. Scott, 610 F.3d 701 (11th Cir.
2010), the Eleventh Circuit determined that “[a]fter Iqbal it is clear that there is no ‘heightened pleading
standard’ as it relates to cases governed by Rule 8(a)(2), including civil rights complaints.” See Randall, 610
F.3d at 707–10. In light of this Eleventh Circuit precedent and because Corey does not assert that the
heightened pleading standard applies, the Court will apply the standard of review set forth in Twombly and
Iqbal. Id. at 710; see also Nettles v. City of Leesburg Police Dep’t, 415 F. App’x 116, 120–21 (11th Cir. 2010);
but see Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1233 (11th Cir. 2010) (applying the heightened
pleading standard post-Iqbal); Keating v. City of Miami, 598 F.3d 753, 762–63 (11th Cir. 2010) (same).

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that her office ultimately dropped the charges against Scheider. See Motion at 5. However,
regardless of the sufficiency of the allegations, Scheider’s claim against the State Attorney
is not viable under § 1983. Significantly, Plaintiffs bring the instant action for monetary
damages against Angela Corey “in her official capacity as the State Attorney for the Fourth
Judicial Circuit of Florida.” See Complaint at 1, 3 (emphasis added). A lawsuit against a
“government officer in [her] official capacity is the same as a suit against the entity of which
the officer is an agent.” Farrell v. Woodham, No. 2:01-CV-417-FTM29DNF, 2002 WL
32107645, at *2 (M.D. Fla. May 29, 2002); see also Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office. As such it is no different
from a suit against the State itself.”). “In Florida, the State Attorney and the State Attorney’s
Office are considered an ‘arm of the state’ . . . .” See Stevens v. Fort Myers Police Dep’t,
No. 2:12-CV-187-FtM-99AEP, 2012 WL 4478978, at *4 (M.D. Fla. Sept. 4, 2012); Rich v.
City of Jacksonville, No. 3:09-cv-454-J-34MCR, 2010 WL 4403095, at *3-4 (M.D. Fla. Mar.
31, 2010); Perez v. State Attorney’s Office, No. 6:08-cv-1199-Orl-31KRS, 2008 WL
4539430, at *2 (M.D. Fla. Oct. 8, 2008); Allen v. Moreland, No. 804-cv-2530-T17EAJ, 2005
WL 1572734, at *2 (M.D. Fla. June 30, 2005); Farrell, 2002 WL 32107645, at *3. Thus,
Scheider’s § 1983 claim against the State Attorney is treated as a claim against the State
of Florida.
Section 1983 allows claims against any “person,” acting under color of law, who
deprives another of his or her constitutional or statutory rights. 42 U.S.C. § 1983. In Will
v. Mich. Dep’t of State Police, 491 U.S. 58 (1989), the Supreme Court addressed the
question of whether a State can be considered a “person” for purposes of § 1983 liability,

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and ultimately decided that “a State is not a person within the meaning of § 1983.” Id. at
64. The Court further determined that “governmental entities that are considered ‘arms of
the State’ for Eleventh Amendment purposes,” as well as state officials sued in their official
capacity are also not considered “persons” within the meaning of § 1983. Id. at 70-71.
Because the State Attorney is considered an “arm of the state,” and therefore, not a
“person” under the statute, she cannot be held liable for damages under § 1983.6
Accordingly, Scheider fails to state a claim under § 1983 against Corey in her official
capacity as State Attorney, and as such, Count II is due to be dismissed.7
B.

Chris Scheider’s Consortium Claim Against the State Attorney

The spouse with a cause of action for loss of consortium has a claim that is
derivative of the injured spouse’s claim. Faulkner v. Allstate Ins. Co., 367 So.2d 214, 217
(Fla. 1979); Gates v. Foley, 247 So.2d 40, 45 (Fla. 1971); accord Stone v. United States,
373 F.3d 1129, 1132 (11th Cir. 2004). Accordingly, Chris Scheider’s loss of consortium
claim cannot survive against the State Attorney in light of the dismissal of Scheider’s cause
of action against this Defendant. Therefore, Chris Scheider’s claim against the State
Attorney is due to be dismissed as well. See Mandel v. McNesby, No. 3:08-cv-49-RV/MD,
2008 WL 5427738, at *5 (N.D. Fla. Dec. 29, 2008).

6

The Court notes that the State Attorney may also be immune from Plaintiffs’ claims for damages pursuant
to the Eleventh Amendment. See Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Com’n, 226 F.3d
1226, 1231 (11th Cir. 2000); Farrell, 2002 WL 32107645, at *2. However, because the State Attorney did
not raise this argument, and such immunity may be waived, the Court does not decide the case on that basis.
See McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1257 (11th Cir. 2001) (“[U]nlike other
jurisdictional bars, federal courts are required to consider whether the Eleventh Amendment strips them of
jurisdiction only if the state defendant insists that it does.”).
7

Notably, the State Attorney also moves for dismissal on the basis of prosecutorial immunity. However, in
an official-capacity suit such as this, “[t]he only immunities that can be claimed . . . are forms of sovereign
immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” See Kentucky v.
Graham, 473 U.S. 159, 167 (1985).

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C.

Leave to Amend

Last, the Court notes that, although Plaintiffs did not request leave to amend the
Complaint, Plaintiffs raise a number of factual allegations in their Response that were not
included in their pleadings. See Response at 1-2. However, a party cannot “use his
briefing to add new allegations and argue that those new assertions support his cause of
action.” See Michel v. NYP Holdings, Inc., ___ F.3d ___, No. 15-11453, 2016 WL 860647,
at *15 (11th Cir. Mar. 7, 2016). Nonetheless, in light of these new allegations, and having
found that Scheider’s claims against the State Attorney are due to be dismissed, the Court
sua sponte considers whether to grant Plaintiffs leave to amend the Complaint. Pursuant
to Rule 15(a)(2), the Court “should freely give leave [to amend a pleading] when justice so
requires.” Such leave, however, is not an automatic right. See Reese v. Herbert, 527 F.3d
1253, 1263 (11th Cir. 2008). Rather, the “decision whether to grant leave to amend is
within the sound discretion of the trial court.” Jameson v. Arrow Co., 75 F.3d 1528, 1534
(11th Cir. 1996). Moreover, in the Eleventh Circuit, “[a] district court is not required to grant
a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented
by counsel, never filed a motion to amend nor requested leave to amend before the district
court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002)
(en banc).
As Plaintiffs are represented by counsel and have chosen throughout this litigation
to stand on the Complaint, the Court is not inclined to grant that which they have not
requested. Regardless, any attempt to amend the Complaint would be futile. Upon review
of the Complaint and Response, Scheider’s claims against the State Attorney are premised
entirely on the decision of that office to charge Scheider with a crime. See Complaint at 4-

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6; Response at 2. Although unclear, Scheider’s theory of relief appears to be that the State
Attorney violated his constitutional rights either because she charged him without probable
cause, or because she failed to conduct a reasonable investigation, which would have
revealed a lack of probable cause, prior to filing charges. See Response at 2-3. However,
for the reasons stated above, Scheider cannot state a claim under § 1983 against the State
Attorney in her official capacity. Moreover, even if Scheider amended the Complaint to
name Angela Corey in her individual capacity, any claims premised on the foregoing theory
of relief would be plainly barred by prosecutorial immunity. See Rowe v. City of Fort
Lauderdale, 279 F.3d 1271, 1281 (11th Cir. 2002) (“It was only while he was in the
prosecutor’s role that [the defendant] allegedly did anything that violated [the plaintiff]’s
clearly established rights, such as: charging [the plaintiff] without probable cause . . . .”);
Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979) (holding that a prosecutor was
absolutely immune from a plaintiff’s claim that the prosecutor violated § 1983 by “filing an
information without investigation”).8 Accordingly, the Court will not sua sponte permit
Plaintiffs to amend the Complaint.
IV.

Conclusion
In sum, the Complaint fails to state a claim against the State Attorney for violating

Scheider’s constitutional rights because the State Attorney, in her official capacity, is not a
“person” within the meaning of § 1983. Because Scheider’s claim against the State

8

Plaintiffs’ reliance on Buckley v. Fitzsimmons, 509 U.S. 259 (1993) for the proposition that Corey is not
entitled to prosecutorial immunity is unavailing. See Response at 2. Buckley holds that a prosecutor is not
entitled to absolute immunity for actions taken in a purely investigatory role. See Buckley, 509 U.S. at 27276. However, neither the Complaint nor the Response include any facts indicating that Corey was involved
in the investigation of Scheider in any way. See generally Complaint; Response. Scheider’s damages claim
against Corey stems solely from her decision to charge him with a crime, and for such action, even absent
probable cause, Corey is absolutely immune. See Rowe, 269 F.3d at 1281; see also Buckley, 509 U.S. at
273 (noting that a prosecutor’s “professional evaluation of the evidence assembled by the police” is one of
the acts for which a prosecutor is absolutely immune).

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Attorney is due to be dismissed, Chris Scheider’s derivative consortium claim against the
State Attorney fails as well. Moreover, leave to amend is not warranted because Plaintiffs,
although represented by counsel, have failed to request such relief, and regardless, any
amendment would be futile. In light of the foregoing, the Court will grant the Motion and
dismiss Plaintiffs’ claims against Defendant Angela Corey, in her official capacity as the
State Attorney of the Fourth Judicial Circuit of Florida. Accordingly, it is
ORDERED:
1. Defendant, Angela Corey’s Motion to Dismiss Plaintiffs’ Complaint (Doc. 9) is
GRANTED.
2. Count II of the Complaint is DISMISSED.
3. Count III of the Complaint is DISMISSED as to Defendant Angela Corey, in her
official capacity.
4. The Clerk of the Court is directed to terminate Defendant Angela Corey, State
Attorney, Fourth Judicial Circuit of Florida from the Court docket. This case will
proceed solely on the claims against Bill Leeper, in his official capacity as Sheriff
of Nassau County, Florida.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of March, 2016.

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Copies to:
Counsel of Record

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