Head v. The City of Jacksonville et al
Filing
58
ORDER denying 15 Defendants' Motion to Dismiss; directing Defendants to respond to the Second Amended Complaint by October 21, 2019; setting deadlines for discovery (February 21, 2020), and the filing of dispositive motions (April 6, 2020). See Order for details. Signed by Judge Marcia Morales Howard on 9/16/2019. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DERIEL HEAD,
Plaintiff,
v.
Case No. 3:18-cv-108-J-34MCR
OFFICER DALE D. CULLEN
AND AUTHOR L. PRATER, III,1
Defendants.
ORDER
I. Status
Deriel Head, an inmate of the Florida penal system, initiated
this action on January 16, 2018, by filing a pro se Civil Rights
Complaint (Doc. 1). He filed an Amended Complaint (Doc. 7) on March
6, 2018, and a Second Amended Complaint (SAC; Doc. 10) on March 13,
2018.2 In the SAC, Head names the following Defendants: (1) Dale D.
Cullen, an officer of the Jacksonville Sheriff's Office (JSO), and
(2) Author L. Prater, III, a JSO officer. He asserts that the
Defendants violated his federal constitutional rights when they
1
The Clerk shall change the docket to reflect the correct
spelling of Defendant's surname as "Cullen." See Motion to Dismiss
(Doc. 15) at 1.
2
Head filed requests for leave to amend his complaint, see
Docs. 31, 34, 41, which the Magistrate Judge denied on August 23,
2019, see Amended Order (Doc. 53). Thus, the SAC is the operative
complaint.
unlawfully stopped the vehicle he was driving, falsely arrested
him, and illegally searched the vehicle on the morning of August 3,
2016. As relief, he seeks compensatory and punitive damages as well
as declaratory and injunctive relief.
Defendants filed a Motion to Dismiss (Motion; Doc. 15). The
Court advised Head that granting a motion to dismiss would be an
adjudication of the case that could foreclose subsequent litigation
on the matter, and gave him an opportunity to respond. See Order
(Doc. 12). Plaintiff filed a response in opposition to the Motion.
See Response to Defendants' Motion to Dismiss (Response; Doc. 17);
Reconsider
Plaintiff's
Conclusion
to
Plaintiff's
Response
to
Defendants' Motion to Dismiss (Supplemental Response; Doc. 18).3
Head attaches the following documents to his Response: State of
Florida v. Deriel Head, case number 2016-CF-006867, Head's Amended
Motion to Suppress Evidence and Statements (Doc. 17-1), May 11,
2017 Order Denying the State's Motion for Rehearing on Head's
Amended Motion to Suppress Evidence and Statements (Doc. 17-2 at
2), Head's medical records (Docs. 17-2 at 3-20), and Cullen and
Prater's Depositions (Docs. 17-3, 17-4).
3
In his Supplemental Response (Doc. 18), Head asks that the
Court "consider this conclusion" as part of his October 16, 2018
Response (Doc. 17). See Supplemental Response at 2. Thus, the Court
treats Head's initially-filed Response to Defendants' Motion to
Dismiss (Doc. 16) as withdrawn, and considers Head's Response and
Supplemental Response.
2
The Honorable Monte C. Richardson, United States Magistrate
Judge, entered a Report and Recommendation (Report; Doc. 50) on
August 15, 2019. In the Report, the Magistrate Judge recommends
that Defendants' Motion be denied as to Counts I and II, and
granted to the extent that the SAC be dismissed with prejudice as
to Count III.4 See Report at 30.
Specifically, the Magistrate Judge recommends that the Court
conclude that the Defendants are not entitled to qualified immunity
as to Head's claims relating to the alleged unlawful stop (Count
I). See id. at 23. Next, the Magistrate Judge recommends that the
Court find that Defendants' arguments relating to Head's claims
concerning the asserted illegal search (Count II) "are better
suited for summary judgment." Id. at 25. Last, the Magistrate Judge
recommends that the Court conclude that the Defendants are entitled
to qualified immunity as to Head's claims that the Defendants
falsely arrested (Count III) him "because Defendants had arguable
probable cause to arrest [Head] after locating the weapon and
contraband in the black bag . . . ." Id. at 29. On August 27, 2019,
Head filed objections to the Report. See Plaintiff's Motion to
Object to the Magistrate's Report and Recommendation (Objections;
Doc. 55). In the Objections, Head urges the Court to reject the
Magistrate Judge's findings and recommendation as to Count III. See
4
The Magistrate Judge construes Head's claims as Counts I
(unlawful stop), II (illegal search), and III (false arrest). See
Report at 19 n.9; 24 n.12; 26 n.13.
3
Objections at 3-7. He asserts that the Defendants are not entitled
to qualified immunity as to his false arrest claims against them.
See id. at 7.
The Court "may accept, reject, or modify, in whole or in part,
the findings or recommendations by the magistrate judge." 28 U.S.C.
§ 636(b)(1). If no specific objections to findings of facts are
filed, the district court is not required to conduct a de novo
review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779
n.9 (11th Cir. 1993); see also 28 U.S.C. § 636(b)(1). However, the
district court must review legal conclusions de novo. See CooperHouston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994) (per
curiam).
II. Plaintiff's Assertions5
As to the underlying facts of his claims, Head asserts that
Defendants Cullen and Prater "randomly check[ed]" the vehicle's
license tag when he had not committed a traffic infraction. SAC at
7. According to Head, Defendants maintained that they saw Head's
vehicle cross over to another lane two or three times in a one-
5
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
minute period.6 See id. at 8. Head states that he "pulled over"
without any "difficulty" or "impairment." Id. He avers that he
neither evaded the officers nor destroyed any evidence. See id. He
also asserts that he gave Prater his license and registration
without any "difficulty," and neither officer tried to determine if
he was impaired or medically distressed. Id. at 12. According to
Head, Prater claimed that he "smelled a burnt odor of marijuana,"
and Cullen said that he saw "in plain view" a black bag under
Head's leg. Id. Prater then removed Head from the vehicle based on
Cullen's
verbal
directive.
See
id.
Head
asserts
that
Prater
handcuffed and arrested him, and then placed him in a locked patrol
car while the two officers searched his vehicle. See id. at 12-13.
Head states that Cullen and Prater found contraband during the
search. See id. at 13. He avers that he answered one of Cullen's
questions, and then invoked his right to counsel. See id. The
officers later transported him to the pretrial detention facility.
See
id.
According
to
Head,
law
enforcement
officers
"never
determined to whom the car was registered," and there were not any
items in the black bag (where they found the contraband) that
identified Head. Id. He complains that the citation for his alleged
failure
to
drive
in
a
single
6
lane
was
not
written
until
In the SAC, Head refers to Defendants' deposition testimony
in his state-court criminal case. See SAC at 7-8, 12. Nevertheless,
the Court predominantly focuses on Head's asserted facts based on
his knowledge or observation of how the events transpired that
morning.
5
approximately an hour later. See id. According to Head, the statecourt trial judge set an excessive bond that same day, and he
retained private counsel a few weeks later. See id. Ultimately,
Head maintains that the trial judge granted his motion to suppress
the evidence. See id. at 14.
III. 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. 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 Randall v. Scott, 610 F.3d 701, 705 (11th Cir.
2010). 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
6
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
"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." See 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). And, while "[p]ro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore,
be liberally construed," Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998), "'this leniency does not give the
court a license to serve as de facto counsel for a party or to
rewrite an otherwise deficient pleading in order to sustain an
action.'" Alford v. Consol. Gov't of Columbus, Ga., 438 F. App'x
7
837, 839 (11th Cir. 2011)7 (quoting GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal
citation omitted), overruled in part on other grounds as recognized
in Randall, 610 F.3d at 706).
A court considering a motion to dismiss under Rule 12(b),
Federal Rules of Civil Procedure (Rule(s)), is generally limited to
the facts contained in the operative complaint and any attached
exhibits, including documents referred to in the complaint that are
central to the plaintiff's claims. See Wilchombe v. TeeVee Toons,
Inc., 555 F.3d 949, 959 (11th Cir. 2009). Nevertheless, when
reviewing a motion to dismiss under Rule 12(b)(6), "a document
outside the four corners of the complaint may still be considered
if it is central to the plaintiff's claims and is undisputed in
terms of authenticity." Maxcess, Inc. v. Lucent Techs., Inc., 433
F.3d 1337, 1340 n.3 (11th Cir. 2005) (citing Horsley v. Feldt, 304
F.3d 1125, 1135 (11th Cir. 2002)); Day v. Taylor, 400 F.3d 1272,
1275-76 (11th Cir. 2005) (citation omitted).
7
"Although an unpublished opinion is not binding
is persuasive authority." United States v. Futrell, 209
1289 (11th Cir. 2000) (per curiam); see generally Fed.
32.1; 11th Cir. R. 36-2 ("Unpublished opinions are not
binding precedent, but they may be cited as
authority.").
8
. . . , it
F.3d 1286,
R. App. P.
considered
persuasive
IV. Judicial Notice
At any stage of the proceeding, a court may take judicial
notice of "a fact that is not subject to reasonable dispute because
it: (1) is generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned." Fed. R.
Evid. 201(b). The United States Court of Appeals for the Eleventh
Circuit has cautioned that judicial notice should be employed
sparingly because it "bypasses the safeguards which are involved
with the usual process of proving facts by competent evidence."
Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). "[T]he kinds
of things about which courts ordinarily take judicial notice are
(1) scientific facts: for instance, when does the sun rise or set;
(2) matters of geography: for instance, what are the boundaries of
a state; or (3) matters of political history: for instance, who was
president in 1958." Id.
Recently, in a habeas corpus case in which the district court
addressed the issue of timeliness, the Eleventh Circuit held that
the dates that the district court noticed from the online statecourt dockets constituted "judicially noticed facts under Rule
201." Paez v. Sec'y, Fla. Dep't of Corr., 931 F.3d 1304, 1307 (11th
Cir. 2019). Moreover, the Eleventh Circuit has determined that a
court may take judicial notice of public records when ruling on a
motion to dismiss. See Lozman v. City of Riviera Beach, Fla., 713
9
F.3d 1066, 1077 at n.9 (11th Cir. 2013) (taking judicial notice of
state court documents for purposes of a Rule 12(b)(6) motion to
dismiss in a § 1983 case). Generally, the Eleventh Circuit has
distinguished between taking judicial notice of the fact that court
records or court rulings exist and taking judicial notice of the
truth of the matters stated within those court records or court
filings. See Grayson v. Warden, Comm'r, Ala. DOC, 869 F.3d 1204,
1225 (11th Cir. 2017). Thus, judicial notice of related court cases
can only be taken either to recognize the judicial act that the
order represents or the subject matter of the litigation. See
Thomas v. Sec'y, Fla. Dep't of Corr., 644 F. App'x 887, 888 (11th
Cir. 2016) (per curiam) (taking "judicial notice of another court's
order for the limited purpose of recognizing the 'judicial act'"
that the order represented) (citation omitted); McDowell Bey v.
Vega, 588 F. App'x 923, 926–27 (11th Cir. 2014) (per curiam)
(finding that district court properly took judicial notice of
entries appearing on state court's docket sheet).
V. Summary of Arguments
In the Motion, Defendants assert that they are entitled to
qualified immunity. See Motion at 4-7. In the Response, Head
maintains that he has sufficiently stated federal constitutional
claims against the Defendants, and that they are not entitled to
qualified immunity. See Response; Supplemental Response. To the
extent Head requests that the Court consider specific documents
10
from his state-court criminal case (State of Florida v. Deriel
Head, case number 2016-CF-006867), see Docs. 17-1 through 17-4, the
Court takes judicial notice of the fact(s) of such litigation and
its docket entries. Insofar as Head refers to Cullen and Prater's
deposition testimony in case number 2016-CF-006867, the Court
declines to consider these documents which are outside of the
pleadings at the motion-to-dismiss stage of the litigation. Because
in his arguments to the Magistrate Judge Head relied significantly
on these and other matters that are beyond the pleadings and which
the Court declines to consider, the Court will address the parties'
arguments anew.8
VI. Discussion
A. Traffic Stop
Head asserts that Defendants Cullen and Prater "performed an
illegal traffic stop with no reasonable suspicion or probable
cause." SAC at 10. Defendants maintain that they had arguable
probable cause for the traffic stop. See Motion at 5-6. They state
that "it was not unreasonable for [them] to have conducted an
investigatory stop, when they were unsure if [Head] was driving
impaired at 2:45 a.m." Id. at 6. In his Response, Head urges the
Court to deny the Motion, stating that the officers lacked a
reasonable suspicion to stop his vehicle. See Response at 2.
8
The Clerk of the Court is directed to terminate the Report.
11
Recently, the Eleventh Circuit stated:
"[L]aw enforcement officers may seize a
suspect for a brief, investigatory Terry stop
where (1) the officers have a reasonable
suspicion that the suspect was involved in, or
is about to be involved in, criminal activity,
and (2) the stop 'was reasonably related in
scope to the circumstances which justified the
interference in the first place.'" United
States v. Jordan, 635 F.3d 1181, 1186 (11th
Cir. 2011) (quoting Terry, 392 U.S. at 19–20,
88 S. Ct. at 1878–79).[9] The reasonable
suspicion standard "is a less demanding
standard than probable cause and requires a
showing considerably less than preponderance
of the evidence." Id. (quoting Illinois v.
Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,
676, 145 L.Ed.2d 570 (2000)). Nonetheless,
"the Fourth Amendment requires at least a
minimal level of objective justification for
making [a] stop." Id. (quoting Wardlow, 528
U.S. at 123, 120 S. Ct. at 676). We consider
the totality of the circumstances when
determining
whether
reasonable
suspicion
existed and note that "[d]efensive behavior
toward police is a relevant factor in this
inquiry." Id. at 1186–87. When an officer
asserts the defense of qualified immunity to a
claim of an unconstitutional investigatory
stop, "the issue is not whether reasonable
suspicion existed in fact, but whether the
officer had 'arguable' reasonable suspicion to
support an investigatory stop." Jackson v.
Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000).
Thus, the relevant inquiry is whether the
officers' seizure of [the suspect . . . ] was
supported by "arguable reasonable suspicion."
Id.
Davis v. Edwards, No. 18-11695, 2019 WL 3814435, at *3 (11th Cir.
Aug. 14, 2019)
(per curiam). According to Head, he did not commit
a traffic infraction that could have justified the stop, and no
9
Terry v. Ohio, 392 U.S. 1 (1968).
12
reasonable officer could have suspected that he was driving while
impaired or medically distressed. See SAC at 7-8. Taking Head's
allegations in the SAC as true, as the Court must, he provides
sufficient facts to state a Fourth Amendment claim for an unlawful
traffic
stop
Defendants'
against
Motion
is
Defendants
due
to
be
Cullen
denied
and
as
to
Prater.
Thus,
Head's
Fourth
Amendment claim relating to the alleged illegal traffic stop.
B. Arrest
Head also asserts that Prater alleged he "smelled a burnt odor
of marijuana," and Cullen alleged that he saw a black bag under
Head's leg. SAC at 12. Defendants maintain that they had arguable
probable cause to arrest Head. See Motion at 7. They state that
they "were considering more than [Head]'s traffic violations when
they arrested him, and "[a]ny reasonable officer would arrest a
suspect in possession of evidence of criminal activity." Id. The
Eleventh Circuit has stated:
An arrest made without arguable probable cause
violates the arrestee's clearly established
Fourth Amendment right to be free from
unreasonable seizures. Skop v. City of
Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007).
"A detention on the basis of a false arrest
presents a viable section 1983 action" for
false imprisonment. Ortega v. Christian, 85
F.3d 1521, 1526 (11th Cir. 1996). "Probable
cause exists where the facts within the
collective knowledge of law enforcement
officials, derived from reasonably trustworthy
information, are sufficient to cause a person
of reasonable caution to believe that a
criminal offense has been or is being
committed." Brown v. City of Huntsville, 608
13
F.3d 724, 734 (11th Cir. 2010). An officer
need not have actual probable cause to receive
qualified immunity, but may merely have
arguable probable cause. Id. Arguable probable
cause exists where "reasonable officers in the
same circumstances and possessing the same
knowledge as the Defendant[] could have
believed that probable cause existed to arrest
Plaintiff." Id. (quotation marks omitted).
Hails v. Dennis, No. 18-15030, 2019 WL 3283279, at *2 (11th Cir.
July 22, 2019) (per curiam). According to Head, Prater could not
have smelled "a burnt odor of marijuana" when he had no training as
a drug recognition expert, and no "burnt or consumed marijuana" was
ever found. SAC at 12. Additionally, liberally construing Head's
assertions, he questions Cullen's ability to see the black bag
because Cullen and Prater were using flashlights to illuminate the
inside of the vehicle since the stop occurred in the early-morning
hours before daylight. See
id.
Thus, according to Head, the
officers could not have smelled burnt marijuana or seen contraband
in the vehicle, and as a result did not have even arguable probable
cause to arrest him. Taking Head's allegations in the SAC as true,
as the Court must, he provides sufficient facts to state a Fourth
Amendment false arrest claim against Defendants Cullen and Prater.
Therefore, Defendants' Motion is due to be denied as to Head's
Fourth Amendment false arrest claim against the Defendants.
14
C. Post-Arrest Vehicle Search
Head asserts that Defendants Cullen and Prater unlawfully
searched the vehicle after they arrested and detained him. See SAC
at 13. Defendants maintain that they had probable cause to search
the vehicle because of the burnt marijuana smell. See Motion at 7.
"Probable
cause
exists
when,
under
the
totality
of
the
circumstances, there is a fair probability that contraband or
evidence of a crime will be found in the vehicle. Probable cause
may arise when an officer, through training or experience, detects
the smell of marijuana." United States v. Smith, 596 F. App'x 804,
807 (11th Cir. 2015) (per curiam) (citations omitted). Notably, in
the SAC, Head states that Prater would not have been able to smell
marijuana emitting from the vehicle interior. See SAC at 12. Taking
Head's allegations in the SAC as true, as the Court must at this
motion-to-dismiss stage of the litigation, Head provides sufficient
facts to state a Fourth Amendment claim against Defendants Cullen
and Prater. Thus, Defendants' Motion is due to be denied as to
Head's
Fourth
Amendment
illegal-search
claim
against
the
Defendants.
In light of the foregoing, it is now
ORDERED:
1.
Defendants' Motion to Dismiss (Doc. 15) is DENIED.
2.
Defendants, no later than October 21, 2019, must answer
or otherwise respond to the SAC.
15
3.
The parties shall conduct discovery so the due date of
any discovery requested is no later than February 21, 2020. Any
motions relating to discovery shall be filed by March 4, 2020.
4.
All motions to dismiss and/or for summary judgment shall
be filed by April 6, 2020.10 This deadline is also applicable to the
filing of any motions or the raising of any affirmative defenses
based on qualified immunity.
5.
Responses to any motions to dismiss and/or for summary
judgment shall be filed by April 30, 2020.
6.
The parties are encouraged to discuss the possibility of
settlement and notify the Court if their efforts are successful. In
doing so, Plaintiff and Defendants are encouraged to maintain a
realistic approach in making and/or considering any settlement
offers. If the parties are unable to settle the case privately, and
want a Magistrate Judge to conduct a settlement conference, they
should notify the Court.
7.
As to the taking of Plaintiff's deposition, if necessary,
the Court grants permission to Defendants' counsel. Defendants'
counsel must contact the Warden of Plaintiff's institution to
arrange an appropriate time and place for the deposition.
10
Any DVDs submitted as exhibits to a summary judgment motion
should not contain a sticker-type label. Such labels inhibit the
Court's ability to view the video footage. The case number and
other relevant information should be written with a black marker on
the DVD itself. Additionally, the Court requires the complete
transcript of any deposition submitted as an exhibit.
16
8.
The Court expects strict compliance with the Court's
deadlines.
DONE AND ORDERED at Jacksonville, Florida, this 16th day of
September, 2019.
sc 9/16
c:
Deriel Head, FDOC #302012
Counsel of Record
17
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