Anderson v. Groveland Police Department et al
Filing
50
ORDER: Lake County's Corrected Motion to Dismiss 25 is GRANTED. The City of Groveland, Officer John Moore, Officer Charles Russell, Officer John "Flinn" (Flynn), Officer Any Auld, and Officer Scott Penvose's Motion to Dis miss Plaintiff's Amended Complaint with Prejudice 22 is GRANTED in part and DENIED in part. Sheriff Gary S. Borders's Motion to Dismiss Amended Complaint 23 is GRANTED. Count III is the only count of the amended complaint that is not dismissed. The following claims of Plaintiff's amended complaint are dismissed WITHOUT PREJUDICE: Counts I, II, IV, V, VII, VIII, IX, X, XI, and XIII. The following claims are dismissed WITH PREJUDICE: Counts VI and XII. Plaintiff's req uest to add a claim for negligence against Sheriff Borders and Lake County is DENIED. Plaintiff's claims for punitive damages against Sheriff Borders, the City, and Lake County are STRICKEN. Within thirty (30) days of the date of this Order, P laintiff may file a second amended complaint correcting the deficiencies noted above, if possible, as to Counts I, II, IV, V, VII, VIII, IX, X, XI, and XIII. If Plaintiff does not file a second amended complaint within thirty (30) days, this case wi ll proceed as to Count III only and Officers Moore and Russell shall file an answer to Count III of the amended complaint within fourteen (14) days of the expiration of Plaintiff's deadline for filing a second amended complaint. Signed by Judge James S. Moody, Jr on 11/2/2015. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GEOFFREY H. ANDERSON,
Plaintiff,
v.
Case No: 5:15-cv-26-Oc-30PRL
CITY OF GROVELAND, et al.,
Defendants.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Lake County’s Corrected Motion to
Dismiss (Doc. 25) and Plaintiff’s response in opposition (Doc. 32); the City of Groveland
(the “City”), Officer John Moore, Officer Charles Russell, Officer John “Flinn” (Flynn),
Officer Andy Auld, and Officer Scott Penvose’s Motion to Dismiss Plaintiff’s Amended
Complaint with Prejudice (Doc. 22) and Plaintiff’s response in opposition (Doc. 34); and
Sheriff Gary S. Borders’s Motion to Dismiss Amended Complaint (Doc. 23), Plaintiff’s
response in opposition (Doc. 33), and Sheriff Borders’s reply (Doc. 38). The Court, having
reviewed the motions, responses, and other relevant pleadings, and being otherwise fully
advised in the premises, concludes that Lake County and Sheriff Borders’s motions to
dismiss should be granted and the City and Officer Defendants’ motion to dismiss should
be granted in part and denied in part.
BACKGROUND
Plaintiff’s complaint contains the following facts which are accepted as true for the
purposes of evaluating Defendants’ motions to dismiss.
Plaintiff, who is proceeding pro se, alleges that on January 22, 2011, Officers John
Flinn and Andy Auld from the Groveland Police Department (“GPD”) conducted a “raid”
on his residence located in Groveland, Florida. According to Plaintiff, the officers, who
did not have a search warrant, used intimidation and coercion to obtain Plaintiff’s consent
to search his home for a fugitive. The following day, January 23, 2011, GPD Officer Scott
Penvose returned to Plaintiff’s home and obtained Plaintiff’s consent to search his
residence in a similar manner.
Plaintiff subsequently moved to a new residence for individuals fifty-five and older,
also located in Groveland, Florida, where he shared a residence with Joseph Jurewicz, Jr.
Plaintiff asserts that Mr. Jurewicz often caused disturbances resulting in officers from the
GPD being repeatedly called to the residence. The GPD officers warned Plaintiff that if
they were called to the residence again, they would arrest everyone on the premises,
including Plaintiff.
On August 5, 2011, in response to a call from a neighboring apartment falsely
reporting a break-in, officers from the GPD, including GPD Officers John Moore and
Charles Russell, broke through the window at Plaintiff’s new residence, threw Plaintiff to
the floor, kicked him, handcuffed him, and berated him with insults. The officers then
interrogated Plaintiff for an hour. No charges were filed against Plaintiff as a result of this
2
incident. On August 16, 2011, Plaintiff sent a “Notice of Claim” to the GPD Chief of
Police.
On August 21, 2011, Officer Moore arrested Plaintiff without an arrest warrant
while Plaintiff was sitting along a curb and charged him with thirteen felonies. 1 According
to Plaintiff, the arrest affidavit, prepared by Officer Moore, specifically noted that no
physical evidence existed showing that Plaintiff committed the felonies. Plaintiff asserts
that Officer Moore was aware that the charges were unsubstantiated. Due to the stress
caused by the arrest, Plaintiff experienced chest pain and was transported to the hospital.
During his hospitalization, Plaintiff was shackled to the hospital bed by his feet and
observed by GDP officers.
Plaintiff alleges that a first appearance was held on August 22, 2011, which he was
unable to attend due to his hospitalization. According to Plaintiff, the first appearance was
not rescheduled. Officer John Moore and a representative from the state attorney’s office
for the Fifth Judicial Circuit were present at the first appearance hearing. Plaintiff was
never given an opportunity to attend a first appearance hearing.
1
Sheriff Borders submitted a copy of the arrest affidavit prepared by Officer Moore, which shows
that Plaintiff was arrested based on three, not thirteen, felony charges, including battery, assault, and
burglary. (Doc. 23, Ex. 1). The arrest affidavit is a matter of public record, which may be considered by
the Court on a motion to dismiss. See Watson v. Bally Mfg. Corp., 844 F. Supp. 1533, 1535 n.1 (S.D. Fla.
1993) (“In determining whether to grant a Rule 12(b)(6) motion, the Court primarily considers the
allegations in the complaint, although matters of public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint, also may be taken into account.” (internal quotation marks
omitted)).
3
Once Plaintiff was released from the hospital and transported to the Lake County
Detention Center, 2 he claims that jail personnel denied him proper medical care. He also
alleges that the jail placed him in maximum security isolation and denied him use of a
wheelchair. Without the wheelchair, Plaintiff was unable to move about his cell to retrieve
food or take care of personal needs. Plaintiff contends that, as a result of the treatment he
received, his ongoing physiological and psychological impairments were exacerbated, and
he attempted suicide on the second day of his jail stay. After two days, the jail provided
Plaintiff with a walker. After ten days, Plaintiff was released from maximum security
isolation and moved to the medical ward.
On September 7, 2011, the state attorney for the Fifth Judicial Circuit issued a notice
that no information would be filed against Plaintiff because the case could not be proven
beyond a reasonable doubt. Plaintiff was released from jail on September 8, 2011. Plaintiff
asserts that he was unable to walk unassisted out of the jail, and it was not until he was
crawling on the floor that jail personnel provided him with a cane.
Plaintiff filed his original complaint on January 16, 2015, and requested to proceed
in forma pauperis. (Doc. 1). The Court conducted a preliminary review of Plaintiff’s
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and determined that it suffered from a
number of pleading deficiencies, including, among other things, that several causes of
action were frivolous or failed to state a claim and that the complaint named as defendants
individuals immune from suit or entities not subject to suit. (Doc. 5). The Court provided
2
Sheriff Borders is the sheriff of Lake County, Florida, and supervises the Lake County Detention
Center.
4
Plaintiff with an opportunity to file an amended complaint and renew his motion to proceed
in forma pauperis. Plaintiff filed an amended complaint on May 1, 2015, and renewed his
request to proceed in forma pauperis. (Docs. 8, 9). The Court granted Plaintiff’s request,
and Defendants were served with the amended complaint. (Doc. 10).
Plaintiff’s amended complaint asserts a total of thirteen claims against the
Defendants arising from the events of January 22, 2011, through September 8, 2011,
including Plaintiff’s August 21, 2011 arrest and his seventeen-day jail stint. (Doc. 8). As
relief, Plaintiff requests compensatory damages, punitive damages, and attorney’s fees and
costs. (Doc. 8 at 36). Lake County, the City along with the Officer Defendants, and Sheriff
Borders have each filed a motion to dismiss Plaintiff’s amended complaint for various
reasons. (Docs. 21, 22, 23).
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed
for failure to state a claim upon which relief can be granted. In considering a motion to
dismiss under Rule 12(b)(6), a court must accept the factual allegations of the complaint
as true and evaluate all inferences derived from those facts in the light most favorable to
the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Conclusory allegations,
unwarranted factual deductions, or legal conclusions masquerading as facts, however, are
not entitled to the assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009);
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
In recognition of Plaintiff’s pro se status, the Court affords Plaintiff wide latitude
when construing his pleadings. Although the Court holds Plaintiff as a pro se litigant to a
5
“a less stringent standard,” Plaintiff may not rely on conclusory allegations or legal
conclusions in the place of factual allegations to overcome a motion to dismiss. See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
DISCUSSION
A. The City and the Officer Defendants’ Motion to Dismiss
By his amended complaint, Plaintiff alleges the following claims against various
subsets of the Officer Defendants: (1) violation of the Fourth Amendment under 42 U.S.C.
§ 1983 against Officers Flinn and Auld regarding the January 22, 2011 search of Plaintiff’s
residence (Count I), (2) violation of the Fourth Amendment under § 1983 against Officer
Penvose regarding the January 23, 2011 search of Plaintiff’s residence (Count II), (3)
violation of the Fourth Amendment under § 1983 against Officers Moore and Russell
regarding entry of Plaintiff’s residence on August 5, 2011 (Count III), and (4) violation of
the Fourth Amendment under § 1983 for false arrest against Officer Moore with respect to
Plaintiff’s arrest on August 21, 2011 (Count IV). (Doc. 8). Plaintiff also alleges claims
under Florida law against the City for (1) battery (Count VIII), (2) invasion of privacy
(Count IX), (3) false arrest (Count X), (4) false imprisonment (Count XI), (5) malicious
prosecution (Count XII), and (6) intentional infliction of emotional distress (Count XIII).
1. Section 1983 Claims against the Officer Defendants (Counts I-IV)
The Officer Defendants assert that Plaintiff’s claims under § 1983 are conclusory
and fail to contain factual allegations establishing a constitutional violation. Because
Plaintiff has not stated a constitutional violation, the Officer Defendants argue that they are
entitled to qualified immunity. Section 1983 provides, in pertinent part:
6
Every person who, under color of any statute, ordinance, regulation, custom,
or usage . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983. To state a prima facie claim under § 1983, Plaintiff must establish that
(1) the Officer Defendants’ conduct caused the constitutional violation, and (2) the
challenged conduct was committed “under color of state law.” See Focus on the Family v.
Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003).
“Qualified immunity offers complete protection for government officials sued in
their individual capacities if their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Kingsland v. City
of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (internal quotation marks omitted). “This
formulation of the qualified immunity inquiry is intended to protect government officials
‘from undue interference with their duties and from potentially disabling threats of
liability.’” Jordan v. Doe, 38 F.3d 1559, 1565 (11th Cir. 1994) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982)).
“To receive qualified immunity, ‘the public official must first prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred.’” Kingsland, 382 F.3d at 1232 (quoting Lee v. Ferraro, 284 F.3d 1188, 1194
(11th Cir. 2002)).
Once a defendant raises the issue of qualified immunity and
demonstrates that the acts complained of were committed within the scope of his or her
discretionary authority, “the burden then shift[s] to the [plaintiff] to show that qualified
7
immunity should not apply because: (1) the officers violated a constitutional right, and (2)
that right was clearly established at the time of the incident.” Garczynski v. Bradshaw, 573
F.3d 1158, 1166 (11th Cir. 2009). “While qualified immunity is typically addressed at the
summary judgment stage, the defense may be raised and considered on a motion to
dismiss.” Walker v. Prieto, 414 F. Supp. 2d 1148, 1151 (S.D. Fla. 2006) (citing Williams
v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997)).
With respect to each § 1983 claim raised by Plaintiff, it is undisputed that the Officer
Defendants were acting within their discretionary authority in investigating criminal
activity and effectuating an arrest. Thus, the determinative issue is whether Plaintiff’s
complaint demonstrates that the Officer Defendants violated a clearly established
constitutional right.
Plaintiff’s complaint contains insufficient factual allegations to establish that the
Officer Defendants violated a constitutional right as to Counts I, II, and IV. In Counts I
and II, Plaintiff asserts claims against Officers Flinn, Auld, and Penvose, alleging that the
officers violated the Fourth Amendment by obtaining Plaintiff’s consent to search his home
by coercion. Plaintiff alleges that the officers “intimidated and threatened Plaintiff . . . with
arrest,” and coerced Plaintiff into allowing them to search his home. (Doc. 8 at 7, 8). But
beyond this conclusory allegation, Plaintiff does not describe the conduct of the officers
that was threatening or coercive such that he felt his will was overborne. Because Plaintiff
has not adequately alleged any facts showing that the officers’ conduct in obtaining his
consent to search his home violated the Fourth Amendment, Plaintiff has failed to state a
§ 1983 claim against Officers Flinn, Auld, and Penvose.
8
Similarly, with regard to Count IV, alleging false arrest in violation of the Fourth
Amendment against Officer Moore, Plaintiff has failed to establish that Officer Moore
lacked probable cause for the arrest. Plaintiff asserts in a conclusory fashion that Officer
Moore did not have probable cause to arrest him, but Plaintiff provides no facts regarding
the circumstances surrounding his arrest. Therefore, Plaintiff does not demonstrate that
Officer Moore lacked probable cause for arresting him. Plaintiff must provide sufficient
factual allegations establishing the violation of a constitutional right. He has failed to do
so, and consequently has not stated a claim against Officer Moore for violation of the
Fourth Amendment under § 1983. 3
However, as to Count III, Plaintiff has sufficiently alleged a constitutional violation.
Plaintiff alleges that Officers Moore and Russell violated the Fourth Amendment by
entering his home in response to a call from a neighbor reporting a break-in at Plaintiff’s
apartment. Plaintiff asserts that the officers possessed no other facts justifying the entry of
his home. These facts, construed in the light most favorable to Plaintiff, are sufficient to
state a violation of the Fourth Amendment against Officers Moore and Russell. Thus,
Officers Moore and Russell are not entitled to qualified immunity on this count at this stage
of the proceedings.
3
In fact, the arrest affidavit prepared by Officer Moore recounting the eyewitness reports from the
victims allegedly assaulted, battered, and burglarized by Plaintiff would be a sufficient basis to establish
probable cause precluding a claim for false arrest under § 1983. (Doc. 23, Ex. 1). “[T]he existence of
probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest.”
Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010); see also Marx v. Gumbinner, 905 F.2d
1503, 1505-06 (11th Cir. 1990). Plaintiff asserts that the victims’ accusations were false, but provides no
factual allegations demonstrating that the accusations were false or, more important, that Officer Moore
had reason to believe the accusations were false.
9
Because Plaintiff has failed to adequately plead a violation of his constitutional
rights as to Counts I, II, and IV, these claims should be dismissed. However, Plaintiff will
be given a final opportunity to amend these claims under § 1983 provided he can allege
facts showing a constitutional violation and that would defeat the Officer Defendants’
entitlement to qualified immunity. 4 Count III may proceed as alleged.
2. Battery against the City 5 (Count VIII)
Plaintiff alleges that the City is responsible for battery committed upon Plaintiff
when Officers Moore and Russell apprehended Plaintiff in his residence on August 5, 2011,
in response to a report of a break-in. (Doc. 8 at 25-26). Because Plaintiff asserts that the
acts of Officers Moore and Russell were “willful, wanton, reckless, or malicious,” the City
contends that it cannot be held liable for the acts of the officers pursuant to Florida Statute
§ 768.28(9)(a), which provides: “The state or its subdivisions shall not be liable in tort for
the acts or omissions of an officer, employee, or agent . . . committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of human rights,
safety, or property.”
Under Florida Statute § 768.28(9)(a), Florida has not waived
4
In his responses, Plaintiff repeatedly asserts that his claims are supported by “corroborating
documentation.” (Doc. 33 at 4; Doc. 34 at 4). But Plaintiff has not incorporated this documentation into
his complaint by filing copies with his complaint. Since Plaintiff has not provided this documentation, his
mere assertion that his claims are supported by documentation is insufficient to save his claims from
dismissal.
5
The City and Officer Defendants assert that Plaintiff’s state law claims are barred because Plaintiff
did not comply with Florida Statute § 768.28(6)(a) by providing notice of his claims to the appropriate state
agency. (Doc. 22 at 9). Based on Plaintiff’s allegations and the copy of the notice provided by Plaintiff
(Doc. 26), the Court declines at this time to determine whether Plaintiff provided proper notice to the City
and Officer Defendants. The City and Officer Defendants may revisit this issue, if necessary.
10
sovereign immunity for the malicious, willful, or wanton acts of its employees. Therefore,
the City is correct, and it is entitled to sovereign immunity from Plaintiff’s claim of battery.
By way of explanation to Plaintiff, who appears to misunderstand the distinction
between an action against an officer in his or her individual and official capacities, an action
can be instituted against an officer in either the officer’s individual capacity or official
capacity. Florida Statute § 768.28(9)(a) provides:
No officer, employee, or agent of the state or of any of its subdivisions shall
be held personally liable in tort or named as a party defendant in any action
for any injury or damage suffered as a result of any act, event, or omission
of action in the scope of her or his employment or function, unless such
officer, employee, or agent acted in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human rights, safety, or
property. . . . The exclusive remedy for injury or damage suffered as a result
of an act, event, or omission of an officer, employee, or agent of the state or
any of its subdivisions or constitutional officers shall be by action against the
governmental entity, or the head of such entity in her or his official capacity,
or the constitutional officer of which the officer, employee, or agent is an
employee, unless such act or omission was committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property. The state or its subdivisions shall not be
liable in tort for the acts or omissions of an officer, employee, or agent
committed while acting outside the course and scope of her or his
employment or committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property.
Stated differently, an officer is entitled to immunity in his or her individual capacity
for conduct taken within the scope of his or her employment and not done with a “malicious
purpose or in a manner exhibiting wanton and willful disregard for human rights, safety,
or property,” and this type of claim is more properly brought against an officer in his or
her official capacity, i.e., against the government entity of which the officer is an employee.
Fla. Stat. § 768.28(9)(a). On the other hand, if the officer acted with “bad faith or with
11
malicious purpose or in a manner exhibiting wanton and willful disregard for human rights,
safety, or property,” the action is barred against the governmental entity and may only be
brought against the officer individually. Id.
Based on Plaintiff’s allegations that Officers Moore and Russell acted with
malicious purpose and their conduct was wanton and willful, the Court infers that Plaintiff
intended to assert this claim of battery against the officers in their individual capacities.
Plaintiff may therefore amend his claim for battery to assert the claim against Officers
Moore and Russell in their individual capacities. Plaintiff should be mindful that if he
reasserts this claim against Officers Moore and Russell he should take care to allege
specifically the acts each officer took in committing the alleged battery and should ensure
that he alleges facts demonstrating that the officers acted with malicious purpose or that
their conduct was wanton and willful.
3. Invasion of Privacy against the City (Count IX)
Plaintiff asserts that Officers Moore and Russell violated his right to privacy when
they entered his home on August 5, 2011, in response to a call from a neighbor reporting a
break-in. (Doc. 8, at 26-27). It is unclear whether Plaintiff intends to assert a claim for
invasion of privacy under article I, section 23 of the Florida Constitution, or seeks to assert
a tort action for invasion of privacy. As the City and Officer Defendants argue, under
Florida law, a plaintiff cannot recover monetary damages for “governmental intrusion” into
private life arising under the Florida Constitution because article I, section 23 of the Florida
Constitution “fails to sufficiently delineate a rule by which the right to money damages can
be determined, enjoyed, or protected.” See Tucker v. Resha, 634 So. 2d 756, 759 (Fla. 1st
12
DCA 1994), approved, 670 So. 2d 56 (Fla. 1996) (internal quotation marks omitted). But
Florida does recognize a tort action for invasion of privacy, including for “intrusion upon
the plaintiff’s physical solitude or seclusion, as by invading his home.” Guin v. City of
Riviera Beach, 388 So. 2d 604, 606 (Fla. 4th DCA 1980) (internal quotation marks
omitted).
Because the basis of Plaintiff’s claim cannot be determined from the amended
complaint, this claim should be dismissed with leave to amend for Plaintiff to clarify the
basis under which he alleges his right to privacy was violated. Additionally, Plaintiff is
reminded that to the extent he alleges that Officers Moore and Russell’s conduct was
willful, wanton, or malicious, his claim cannot proceed against the City.
4. False Arrest and False Imprisonment against the City (Counts X-XI)
Plaintiff alleges that Officer Moore unlawfully detained him when he arrested him
on August 21, 2011. (Doc. 8 at 27-30). Generally, under Florida law, false arrest and false
imprisonment “are different labels for the same cause of action.” Weissman v. K-Mart
Corp., 396 So. 2d 1164, 1164 n.1 (Fla. 3d DCA 1981); see also Andrews v. Fla. Parole
Comm’n, 768 So. 2d 1257, 1266 (Fla. 1st DCA 2000) (noting that false arrest and false
imprisonment are “essentially the same tort”) (Benton, J., concurring in part and dissenting
in part); but see Mathis v. Coats, 24 So. 3d 1284, 1289 (Fla. 2d DCA 2010) (“False arrest
and false imprisonment are closely related, but false imprisonment is a broader common
law tort; false arrest is only one of several methods for committing false imprisonment.”).
Because Plaintiff’s claims for false arrest and false imprisonment are based on identical
allegations, the Court addresses them simultaneously.
13
False arrest is “the unlawful restraint of a person against his will, the gist of which
action is the unlawful detention of the plaintiff and the deprivation of his liberty. A plaintiff
must show that the detention was unreasonable and unwarranted under the circumstances.”
Rivers v. Dillards Dep’t Store, Inc., 698 So. 2d 1328, 1331 (Fla. 1st DCA 1997) (internal
quotation marks and citation omitted). Under Florida law, the existence of probable cause
is an absolute bar to a claim for false arrest or false imprisonment. See Bolanos v. Metro.
Dade Cnty., 677 So. 2d 1005, 1005 (Fla. 3d DCA 1996); Miller v. City of Jacksonville, 603
So. 2d 1310, 1312 (Fla. 1st DCA 1992); see also Von Stein v. Brescher, 904 F.2d 572, 584
n.19 (11th Cir. 1990). “Probable cause for an arrest exists when an eyewitness reports
witnessing a crime to police.” Foreman v. City of Port St. Lucie, 294 F. App’x 554, 557
(11th Cir. 2008) (citing United States v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972)). 6
Here, the arrest affidavit reflects that Plaintiff was arrested based on the eyewitness
accounts of several individuals who were allegedly victimized by Plaintiff. (Doc. 23,
Ex. 1). Plaintiff asserts that the account of the incidents by the victims was false, but he
has provided no facts demonstrating that the victim’s accounts were false or that Officer
Moore had reason to doubt them. On the facts as alleged in the amended complaint and
supplemented by the arrest affidavit, it appears that probable cause existed for Plaintiff’s
arrest.
6
In Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.
14
Because probable cause existed, Plaintiff’s claims for false arrest and false
imprisonment fail and should be dismissed. However, Plaintiff will be given leave to
amend his claims for false arrest and false imprisonment provided he can allege facts
showing that Officer Moore lacked probable cause. Additionally, as discussed previously
regarding Plaintiff’s claims of battery and invasion of privacy, Plaintiff’s claim for false
arrest cannot proceed against the City to the extent he contends that Officer Moore’s
conduct was malicious, willful, or wanton. Plaintiff must determine whether he intends to
assert this claim against Officer Moore in his individual capacity; in which case Plaintiff
would have to allege facts establishing that Officer Moore acted in bad faith, maliciously,
or in a wanton and willful manner.
5. Malicious Prosecution against the City (Count XII)
Plaintiff asserts a claim for malicious prosecution against the City based on Officer
Moore’s arrest of Plaintiff on August 21, 2011. (Doc. 8 at 30-33). Under Florida law, a
plaintiff must allege the following elements to establish a claim for malicious prosecution:
(1) a judicial proceeding was instituted or continued against the plaintiff, (2) the defendant
commenced or caused the commencement of such proceeding, (3) the judicial proceeding
had a bona fide termination in the plaintiff’s favor, (4) there was no probable cause for
initiating the proceeding, (5) the defendant acted maliciously, and (6) the plaintiff suffered
damages as a result. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla.
1994). “If any one of the elements is lacking, an action for malicious prosecution will not
lie.” Union Oil of Cal. Amsco Div. v. Watson, 468 So. 2d 349, 353 (Fla. 3d DCA 1985).
15
As an initial matter and as the Court previously explained to Plaintiff (Doc. 5), a
claim for malicious prosecution cannot proceed against the City. A claim for malicious
prosecution requires as an element malicious conduct. See Mancusi, 632 So. 2d at 1355.
Pursuant to Florida Statute § 768.28(9)(a), governmental entities are immune from claims
based on conduct of their employees that is motivated by a malicious purpose. Because a
claim for malicious prosecution requires proof of malicious conduct, Plaintiff’s claim for
malicious prosecution against the City should be dismissed with prejudice. See Johnson v.
Fla. Dep’t of Health & Rehabilitative Servs., 695 So. 2d 927, 930 (Fla. 2d DCA 1997).
To the extent Plaintiff intended to assert this claim against Officer Moore
individually, Plaintiff’s claim is defective on several fronts. Plaintiff has first failed to
establish that a judicial proceeding was commenced against him. “In the case of a
warrantless arrest, the judicial proceeding does not begin until the [defendant] is arraigned
or indicted.” Kingsland, 382 F.3d at 1235. Although Plaintiff was arrested, the charges
against him were ultimately dropped and no judicial proceeding was ever commenced.
Even if a judicial proceeding had been commenced, Plaintiff has alleged no facts
showing that Officer Moore commenced or caused to be commenced a judicial proceeding
against Plaintiff. An officer may be the legal cause of a judicial proceeding where it is
shown that he or she had something to do with the decision to prosecute or improperly
influenced that decision. Williams v. Miami-Dade Police Dep’t, 297 F. App’x 941, 947
(11th Cir. 2008). Plaintiff has provided no facts demonstrating that Officer Moore had any
influence over the decision to commence a judicial proceeding against Plaintiff.
16
Because Plaintiff could not state a claim for malicious prosecution against the City
or Officer Moore, this claim is dismissed with prejudice, and Plaintiff will not be provided
leave to amend.
6. Intentional Infliction of Emotional Distress against the City (Count XIII)
As the Court previously informed Plaintiff in ruling on Plaintiff’s initial motion to
proceed in forma pauperis (Doc. 5), because a claim for intentional infliction of emotional
distress requires either intent or reckless conduct, which has been deemed equivalent to
“willful and wanton conduct” as described in Florida Statute § 768.28(9)(a), this type of
claim is barred by sovereign immunity. See Zabriskie v. City of Kissimmee, No. 6:10-cv70-Orl-19KRS, 2010 WL 3927658, at *4 (M.D. Fla. Oct. 4, 2010); see also Williams v.
City of Minneola, 619 So. 2d 983, 987 (Fla. 5th DCA 1993) (concluding that the
“intentional or reckless” element of a claim for intentional infliction of emotional distress
under Florida law equates to “wanton and willful” conduct for which Florida has not
waived sovereign immunity). Thus, Plaintiff’s claim for intentional infliction of emotional
distress against the City is barred by sovereign immunity and should be dismissed with
prejudice.
If Plaintiff intended his claim of intentional infliction of emotional distress to be
directed against the Officer Defendants in their individual capacities, Plaintiff’s claim is
insufficiently pled. Under Florida law, a claim for intentional infliction of emotional
distress requires a plaintiff to show (1) the conduct was intentional or reckless, (2) the
conduct was outrageous, (3) the conduct caused emotional distress, and (4) the emotional
distress was severe. Horizons Rehabilitation, Inc. v. Healthcare & Retirement Corp., 810
17
So. 2d 958, 964 (Fla. 5th DCA 2002). The issue of whether allegations rise to the required
level of outrageous conduct is a question of law, not of fact, and is determined by the Court.
Ponton v. Scarfon, 468 So. 2d 1009, 1011 (Fla. 2d DCA 1985); Baker v. Fla. Nat’l Bank,
559 So. 2d 284, 287 (Fla. 4th DCA 1990). The standard for establishing outrageous
conduct is extremely high. See Williams v. City of Minneola, 575 So. 2d 683, 691 (Fla. 5th
DCA 1980) (defining outrageous conduct as “extreme behavior, beyond all bounds of
decency, atrocious and utterly intolerable in a civilized community”).
Plaintiff asserts that the Officer Defendants are liable for intentional infliction of
emotional distress related to their conduct (1) on January 22 and 23, 2011, when Officers
Flinn, Auld, and Penvose searched Plaintiff’s residence, (2) on August 5, 2011, when
Officers Moore and Russell entered Plaintiff’s residence, kicked Plaintiff, handcuffed him,
and yelled insults at him, and (3) on August 21, 2011, when Officer Moore arrested
Plaintiff. As to the alleged conduct of the officers on January 22 and 23, 2011, and August
21, 2011, Plaintiff has not demonstrated that the officers’ conduct was outrageous. As to
his claim of intentional infliction of emotional distress by the events of August 5, 2011,
Plaintiff’s factual allegations are too sparse to allow the Court to determine whether the
conduct of Officers Moore and Russell surpassed the threshold of outrageousness. For
Plaintiff’s claim to survive, he must plead it with more factual specificity.
Thus, Plaintiff’s claim for intentional infliction of emotional distress against the
City is dismissed. Plaintiff may amend this claim to the extent he intended to assert it
against Officers Moore and Russell related to the alleged incident on August 5, 2011.
18
7. Punitive Damages
The City and the Officer Defendants also argue that Plaintiff is not entitled to
recover punitive damages against them. Since none of Plaintiff’s claims against the City
were adequately pled, whether Plaintiff could recover punitive damages against the City is
moot. For the record, however, punitive damages are not recoverable from a municipality
under Florida law. See Fla. Stat. § 768.28(5) (stating that “[t]he state and its agencies and
subdivisions shall be liable for tort claims in the same manner and to the same extent as a
private individual under like circumstances, but liability shall not include punitive
damages” (emphasis added)).
With respect to Plaintiff’s § 1983 claims against the Officer Defendants, punitive
damages are available “under § 1983 when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves reckless or callous indifference to
federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). However, if
Plaintiff files a second amended complaint, he is encouraged to more specifically allege
the damages he seeks to recover from each defendant.
B. Sheriff Borders’s Motion to Dismiss & Lake County’s Motion to Dismiss
Because Plaintiff’s claims against Sheriff Borders and Lake County are essentially
parallel and based upon the same conduct, the Court addresses these motions
simultaneously. Plaintiff alleges claims against Sheriff Borders in his official capacity and
Lake County for (1) violation of the Fifth Amendment under § 1983 related to his inability
19
to attend a first appearance hearing (Count V), 7 (2) violation of the Sixth Amendment under
§ 1983 for deprivation of counsel caused by the lack of a first appearance (Count VI), and
(3) violation of the Fourteenth Amendment under § 1983 for deliberate indifference to a
serious medical need (Count VII). Plaintiff also asserts claims under Florida law against
Lake County for (1) malicious prosecution (Count XII), and (2) intentional infliction of
emotional distress (Count XIII).
As a preliminary matter, Lake County argues that it is not a proper party to this
action. (Doc. 25). Rather, Lake County asserts that Sheriff Borders alone is the proper
party because Sheriff Borders is an independent constitutional officer who has final
policymaking authority and control over the employees of the Lake County Detention
Center where Plaintiff was held. As discussed below in greater detail, however, Plaintiff
has failed to state a prima facie claim against Lake County under § 1983 or Florida law for
malicious prosecution or intentional infliction of emotional distress.
It is therefore
unnecessary to determine at this time whether Lake County is properly named as a
defendant.
1. Section 1983 Claims against Sheriff Borders and Lake County (Counts
V-VII)
Both Sheriff Borders and Lake County contend that Plaintiff’s claims against them
under § 1983 should be dismissed because Plaintiff has not alleged that the deprivation of
7
The Fifth Amendment applies only to deprivation of due process by the federal government; the
Fourteenth Amendment applies to the states. See Buxton v. City of Plant City, 871 F.2d 1037, 1041 (11th
Cir. 1989). The Court therefore construes Plaintiff’s claim for deprivation of due process as brought
pursuant to the Fourteenth Amendment instead of the Fifth Amendment.
20
his constitutional rights was the result of a policy, custom, or practice of the Sheriff’s Office
or Lake County. A governmental entity, such as Sheriff Borders and Lake County, cannot
be held liable for the constitutional violations of its employees on a theory of vicarious
liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978). A local
government is, however, liable under § 1983 “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury.” Id. at 694. The official policy or custom
may be established by identifying an officially promulgated policy or by identifying an
unofficial policy shown by persistent and widespread practice. McDowell v. Brown, 392
F.3d 1283, 1290 (11th Cir. 2004). Generally, “random acts and isolated incidents” are not
enough to establish municipal or governmental liability pursuant to a policy, custom, or
practice. Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994) (internal
quotation marks omitted).
To attribute liability to Sheriff Borders or Lake County under § 1983, Plaintiff must
demonstrate that Sheriff Borders or Lake County had in place an official policy or custom
that was “the moving force of the constitutional violation.” Vineyard v. Cnty. of Murray,
990 F.2d 1207, 1211 (11th Cir. 1993) (internal quotation marks omitted). With regard to
each of Plaintiff’s counts against Sheriff Borders and Lake County under § 1983, Plaintiff
has not alleged with specificity that the deprivation of his rights was caused by an official
policy, custom, or practice. Rather Plaintiff asserts, in a conclusory fashion, that the acts
of the officers, agents, and employees of the Sheriff’s Office were taken pursuant to an
official policy, practice, or custom, but he fails to bolster his conclusion with any factual
21
allegations. (Doc. 8 at 7). The allegations of the complaint show nothing more than
isolated wrongdoings. Accordingly, Plaintiff has failed to establish a prima facie case
under § 1983 against Sheriff Borders or Lake County and his claims should be dismissed.
Additionally, as to Plaintiff’s claim that Sheriff Borders and Lake County violated
his Sixth Amendment right to counsel by failing to provide him with a first appearance
(Count VI), Plaintiff’s claim fails on the merits. The Sixth Amendment guarantees the
right to the assistance of counsel for the preparation and presentation of a defense,
including any ancillary proceedings prior to a trial. See Sanchez v. Campbell, No. 4:09CV-420-SPM-WCS, 2010 WL 547620, at *2 (N.D. Fla. Feb. 10, 2010). It does not
guarantee the right to a first appearance within a specified amount of time. Id.; see also
United States v. Montaner, No. 10-20289-CR, 2012 WL 442985, at *5 (S.D. Fla. Jan. 23,
2012) (noting that the “right [to counsel] attaches ‘at or after the initiation of adversary
judicial proceedings—whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.’” (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).
Plaintiff’s assertion that he was deprived of assistance of counsel by the alleged deprivation
of a first appearance is not cognizable under the Sixth Amendment and therefore fails as a
matter of law. This claim should be dismissed with prejudice.
2. Malicious Prosecution against Lake County (Count XII)
Just as Plaintiff’s claim for malicious prosecution was barred against the City under
Florida Statute § 768.28(9)(a), Plaintiff’s claim for malicious prosecution against Lake
County is also barred by Florida Statute § 768.28(9)(a). See Johnson, 695 So. 2d at 930.
In his response to Lake County’s motion to dismiss, Plaintiff recognizes that this claim is
22
barred against Lake County; albeit under a different theory. (Doc. 32 at 5, 11). Thus,
Plaintiff’s claim for malicious prosecution is dismissed with prejudice against Lake
County.
3. Intentional Infliction of Emotional Distress (Count XIII)
Although Sheriff Borders is not named as a defendant with regard to Plaintiff’s
state-law claim for intentional infliction of emotional distress, Sheriff Borders argues that
to the extent Plaintiff’s allegations are directed at the conduct of Sheriff’s Office
employees, Plaintiff has failed to state a claim against Sheriff Borders for intentional
infliction of emotional distress. 8 First, Sheriff Borders asserts that Plaintiff did not provide
notice of the claim as required by Florida Statute § 768.28(6)(a), which directs that “[a]n
action may not be instituted on a claim against the state or one of its agencies or
subdivisions unless the claimant presents the claim in writing to the appropriate agency,
and also . . . presents such claim in writing to the Department of Financial Services, within
3 years after such claim accrues.” Plaintiff asserts that he sent notice to the City, but does
not assert that he sent such notice to Sheriff Borders or Lake County. Plaintiff also
provided a copy of the notice to the Court (Doc. 26), and it reflects that the notice was not
provided to Sheriff Borders or Lake County. Any state-law claims against Sheriff Borders
and Lake County are barred by Plaintiff’s failure to comply with Florida Statute
§ 768.28(6)(a).
8
In the complaint, Plaintiff only identifies the City and Lake County as defendants with respect to
his claim for intentional infliction of emotional distress. But in his response to Sheriff Borders’s motion to
dismiss, Plaintiff asserts that Sheriff Borders and Lake County are also defendants as to that count. (Doc.
33 at 11).
23
Even if Plaintiff complied with Florida Statute § 768.28(6)(a), Sheriff Borders
argues that he is entitled to sovereign immunity under Florida Statute § 768.28(9)(a). As
discussed above regarding Plaintiff’ claim for intentional infliction of emotional distress
against the City, Plaintiff’s claim for intentional infliction of emotional distress is similarly
barred by sovereign immunity against Sheriff Borders and Lake County. See Zabriskie,
2010 WL 3927658, at *4; see also Williams, 619 So. 3d at 986-87 (concluding that the
“intentional or reckless” element of a claim for intentional infliction of emotional distress
under Florida law equates to “wanton and willful” conduct for which Florida has not
waived sovereign immunity). Thus, Plaintiff’s claim for intentional infliction of emotional
distress fails against both Sheriff Borders and Lake County and should be dismissed with
prejudice.
In his responses to the motions to dismiss, Plaintiff recognizes that his claim for
intentional infliction of emotional distress cannot proceed against Sheriff Borders or Lake
County, and he consents to its dismissal. (Doc. 32 at 11-12; Doc. 33 at 11). Instead
Plaintiff requests permission to file a second amended complaint adding a claim for
negligence against Sheriff Borders and Lake County. (Doc. 32 at 12; Doc. 33 at 11).
However, as discussed above, Plaintiff did not provide notice to Sheriff Borders or Lake
County regarding his claims as required by Florida Statute § 768.28(6)(a). Because the
time for filing such notice has expired, this deficiency cannot be cured and any Florida law
claims asserted against Sheriff Borders or Lake County would be barred. Plaintiff’s request
to add a claim for negligence against Sheriff Borders and Lake County is therefore denied.
24
4. Punitive Damages
Last, both Sheriff Borders and Lake County request that Plaintiff’s claims for
punitive damages be stricken because Plaintiff is not entitled to punitive damages against
a governmental entity. Neither federal law nor Florida law permits the recovery of punitive
damages against a municipality. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
271 (1981) (“[W]e hold that a municipality is immune from punitive damages under 42
U.S.C. § 1983.”); Colvin v. McDougall, 62 F.3d 1316, 1319 (11th Cir. 1995) (holding that
a sheriff’s department is immune from punitive damages on a § 1983 claim); Fla. Stat.
§ 768.28(5) (stating that “[t]he state and its agencies and subdivisions shall be liable for
tort claims in the same manner and to the same extent as a private individual under like
circumstances, but liability shall not include punitive damages”). Sheriff Borders’s and
Lake County’s requests to strike Plaintiff’s claims for punitive damages should be granted.
CONCLUSION
Most of the claims contained in Plaintiff’s amended complaint are deficient and
should be dismissed, some with prejudice and some without. Plaintiff may file a second
amended complaint limiting his allegations to the facts pertinent to Counts I, II, III, IV, V,
VII, VIII, IX, X, XI, and XIII, and within the limitations as described above. Plaintiff
should refrain from incorporating all allegations of the complaint into each count,
referencing only the allegations pertinent to the claim contained in that count. Plaintiff
should also clearly describe how each defendant is involved in each alleged constitutional
violation or tortious act and what relief he seeks from each defendant.
25
Plaintiff is cautioned that § 1983 claims against municipalities, which in this case
include the City, Lake County, and Sheriff Borders in his official capacity, require Plaintiff
to allege facts showing that the deprivation of his constitutional right was the result of a
policy, custom, or practice of the municipality.
Plaintiff is also warned that the Court will not tolerate disrespectful behavior toward
opposing counsel. (See Doc. 34 at 3 (suggesting that “opposing counsel has difficulty with
the English language”)). Pleadings filed with the Court shall be respectful and pertain only
to the legal and factual disputes at issue.
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Lake County’s Corrected Motion to Dismiss (Doc. 25) is GRANTED.
2. The City of Groveland, Officer John Moore, Officer Charles Russell, Officer
John “Flinn” (Flynn), Officer Any Auld, and Officer Scott Penvose’s Motion to Dismiss
Plaintiff’s Amended Complaint with Prejudice (Doc. 22) is GRANTED in part and
DENIED in part.
3. Sheriff Gary S. Borders’s Motion to Dismiss Amended Complaint (Doc. 23) is
GRANTED.
4. Count III is the only count of the amended complaint that is not dismissed. The
following claims of Plaintiff’s amended complaint are dismissed WITHOUT
PREJUDICE: Counts I, II, IV, V, VII, VIII, IX, X, XI, and XIII.
5. The following claims are dismissed WITH PREJUDICE: Counts VI and XII.
6. Plaintiff’s request to add a claim for negligence against Sheriff Borders and Lake
County is DENIED.
26
7. Plaintiff’s claims for punitive damages against Sheriff Borders, the City, and
Lake County are STRICKEN.
8. Within thirty (30) days of the date of this Order, Plaintiff may file a second
amended complaint correcting the deficiencies noted above, if possible, as to Counts I, II,
IV, V, VII, VIII, IX, X, XI, and XIII.
9. If Plaintiff does not file a second amended complaint within thirty (30) days, this
case will proceed as to Count III only and Officers Moore and Russell shall file an answer
to Count III of the amended complaint within fourteen (14) days of the expiration of
Plaintiff’s deadline for filing a second amended complaint.
DONE and ORDERED in Tampa, Florida, this 2nd day of November, 2015.
Copies furnished to:
Counsel/Parties of Record
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