Anderson v. Groveland Police Department et al

Filing 73

ORDER: Lake County's Motion to Dismiss 53 is GRANTED. The Clerk is directed to terminate Lake County as a Defendant in this case. The City of Groveland (the "City"), Officer John Moore, Officer Charles Russell, Officer John & quot;Flinn" (Flynn), Officer Andy Auld, and Officer Scott Penvose's Motion to Dismiss Plaintiff's Second Amended Complaint with Prejudice 56 is GRANTED in part and DENIED in part. Counts I, IV, VIII, X, XI, XIII are DISMISSED with p rejudice. Counts II, III, V, VII, and IX will proceed. Officer John Moore, Officer Charles Russell, and Officer Scott Penvose shall file an answer to the remaining claims (Counts II, III, and IX) of Plaintiff's complaint within fourteen (14) days of the date of this Order. Plaintiff's request for sanctions against counsel for the Officer Defendants (Doc. 64 at 8) is DENIED. Signed by Judge James S. Moody, Jr on 3/8/2016. (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 Motion to Dismiss (Doc.
53) and Plaintiff’s response (Doc. 64); 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 Second Amended Complaint with
Prejudice (Doc. 56) and Plaintiff’s response in opposition (Doc. 64). The Court, having
reviewed the motions, responses, and other relevant pleadings, and being otherwise fully
advised in the premises, concludes that Lake County’s motion should be granted and the
City and Officer Defendants’ motion to dismiss should be granted in part and denied in
part.
BACKGROUND
Plaintiff’s second amended complaint contains the following facts which are
accepted as true for the purposes of evaluating the 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 search
of his residence located in Groveland, Florida. According to Plaintiff, the officers, who
did not have a search warrant, told Plaintiff that he would be arrested for obstructing an
officer if he did not permit the search of his residence. Plaintiff acquiesced to the search
because he did not want to be arrested. The following day, January 23, 2011, GPD Officer
Scott Penvose returned to Plaintiff’s home and obtained Plaintiff’s consent to search his
residence by threatening to arrest Plaintiff for obstructing an officer if he did not permit
the search.
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 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 incident. On August
16, 2011, Plaintiff sent a “Notice of Claim” to the GPD Chief of Police.

2

On August 21, 2011, Plaintiff visited a home on 372 Beach Street. Plaintiff was
standing on the front porch of the home when Chris Craig, another visitor, starting taunting
Plaintiff. Plaintiff retrieved his bag and was leaving the premises when he was confronted
by several individuals from the home who insulted him, threw a full soda can at him, and
pushed him. Plaintiff walked four blocks away from the home and sat down along a curb.
About twenty minutes later, Officer Penvose arrived and told Plaintiff that the GPD
received a call that Plaintiff was causing a disturbance on Beach Street. Officer Penvose
arrested Plaintiff and transported him to the GPD jail.

While at the jail, 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 GPD 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.
Once Plaintiff was released from the hospital and transported to the Lake County
Detention Center, 1 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 was also denied access to his medications

1

Sheriff Borders is the sheriff of Lake County, Florida, and supervises the Lake County Detention

Center.

3

because the jail maintained a policy that medical treatment would not be provided to a
detainee until the jail obtained the detainee’s medical records. 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
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).

4

Plaintiff’s amended complaint asserted thirteen claims against 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). Lake County, the City
and Officer Defendants, and Sheriff Borders each filed a motion to dismiss Plaintiff’s
amended complaint. (Docs. 21, 22, 23). The Court dismissed all counts of Plaintiff’s
amended complaint except Count III, but provided Plaintiff leave to amend Counts I, II,
IV, V, VII, VIII, IX, X, XI, and XIII. 2 (Doc. 50). Plaintiff filed a second amended
complaint on December 3, 2015. (Doc. 51). Plaintiff seeks to recover compensatory
damages, punitive damages, attorney’s fees, and costs against each defendant. (Doc. 51 at
60). Lake County and the City and Officer Defendants now seek to dismiss Plaintiff’s
second amended complaint.

(Docs. 53, 56).

Sheriff Borders filed an answer and

affirmative defenses on December 10, 2015, to Counts V and VII. (Doc. 52).
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

2

Counts VI and XII were dismissed with prejudice. (Doc. 50).

5

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
“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. Lake County’s Motion to Dismiss (Doc. 53)
Plaintiff asserts two claims against Lake County under 42 U.S.C. § 1983 arguing
constitutional violations on the basis of his deprivation of the right to counsel by failure to
provide an initial appearance and deprivation of proper medical care during his detention
in the Lake County Detention Center (Counts V, VII). (Doc. 51). By its motion to dismiss,
Lake County asserts, among other things, that it does not control the day-to-day operations
of the Lake County Detention Center and that Sheriff Borders is an independent
constitutional officer who has absolute control over the employees of the Lake County
Detention Center. (Doc. 53). Plaintiff concedes that Sheriff Borders is the appropriate
defendant and consents to dismissal of Lake County as a defendant.

(Doc. 64).

Accordingly, Lake County’s motion to dismiss is granted and Lake County is dismissed as
a defendant in this case.

6

B. The City and the Officer Defendants’ Motion to Dismiss (Doc. 56)
By his second amended complaint, Plaintiff alleges the following claims against
various subsets of the Officer Defendants: (1) violation of the Fourth Amendment under
§ 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), (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), (5) battery against Officers Moore and
Russell related to the August 5, 2011 incident (Count VIII), (6) invasion of privacy against
Officers Moore and Russell related to the August 5, 2011 incident (Count IX), (7) false
arrest against Officer Moore related to Plaintiff’s August 21, 2011 arrest (Count X), (8)
false imprisonment against Officer Moore related to Plaintiff’s August 21, 2011 arrest
(Count XI), and (9) intentional infliction of emotional distress against Officer Moore
(Count XIII). (Doc. 51).
1. Section 1983 Claims against the Officer Defendants (Counts I-IV)
Among other things, 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:

7

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
8

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
second amended complaint demonstrates that the Officer Defendants violated a clearly
established constitutional right.
i. Counts I & II—Unreasonable Searches
In Counts I and II, Plaintiff asserts claims under § 1983 against officers Flinn, Auld,
and Penvose arguing that they searched his home on two occasions in violation of the
Fourth Amendment. Although Plaintiff consented to the searches, he alleges that his
consent was not voluntary because the officers threatened to arrest Plaintiff if he did not
permit the search.
As to Count I, the second amended complaint alleges the following facts: officers
from the GPD (Officers Flinn & Auld) 3 arrived at Plaintiff’s residence on January 22, 2011,

3

As the Officer Defendants highlight, Officers Flinn and Auld are not identified by name when
Plaintiff is describing the facts which support his claim for Count I. Rather, that Officers Flinn and Auld
were the officers who allegedly committed this violation is inferred from the fact that Officers Flinn and
Auld are named by Plaintiff in Count I.

9

and informed Plaintiff that they were looking for “Russell Drawdy.” When Plaintiff told
the officers that he did not know Russell Drawdy, the officers informed Plaintiff that they
believed he was hiding in Plaintiff’s home and told Plaintiff that they wanted to search his
residence. Plaintiff told the officers that they could not search his home without a warrant.
An officer then asked Plaintiff, “Are you going to let us search your house, or are we going
to have to arrest you?” (Doc. 51 at 10, ¶ 41). When Plaintiff asked what he would be
arrested for, the officer responded that the arrest would be for “obstructing an officer” and
“interfering in a criminal investigation.” (Id., ¶ 42). When Plaintiff asked for further
explanation, the officers said “we don’t have to explain ourselves to you. Now, we can go
round and round on this, but we will gladly arrest you, put you in jail, and then we can get
a search warrant to search your house.” (Id. at 11, ¶ 45). Plaintiff told the officers that he
believed they were trying to coerce him and that they needed a search warrant, but he
acquiesced to the search. The officers did not find Mr. Drawdy in Plaintiff’s house.
Plaintiff vaguely refers to Officers Auld and Flinn as “officer” and a “male police
officer,” and “another male officer.” In Plaintiff’s response, he essentially states that he
did not specifically identify which officer took which actions because the officers did not
identify themselves and he suggests that he should not bear the burden to identify the
actions taken by Officers Auld and Flinn. 4 (Doc. 64 at 4-5). The Court disagrees.

4

Plaintiff asserts that he named Officers Flinn and Auld as defendants because they were listed as
“backup” on the “call for service” placed on January 22, 2011. (Doc. 64 at 5). Plaintiff appears to be
indicating that he is not even sure if Officers Flinn and Auld are the correct defendants.

10

“To survive a 12(b)(6) motion to dismiss, the complaint does not need detailed
factual allegations, but must give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010)
(internal citations and quotation marks omitted) (emphasis added). By failing to identity
which officer took which actions, Plaintiff has failed to put Officers Flinn and Auld on
notice of the grounds upon which Plaintiff’s claim rests. Plaintiff cannot simply assert
vague allegations of fact that fail to apprise each defendant as to which allegedly unlawful
actions were taken on the off chance that the facts apply to at least one of the defendants.
The Court previously cautioned Plaintiff he needed to “clearly describe how each
defendant is involved in each alleged constitutional violation or tortious act and what relief
he seeks from each defendant.” (Doc. 50 at 25). Plaintiff has failed to fulfill this
requirement as to Count I. Having given Plaintiff several opportunities to amend his
complaint, the court need not determine whether the officers are entitled to qualified
immunity, and this claim is dismissed with prejudice.
Unlike Count I, in Count II, Plaintiff specifically identifies Officer Penvose and the
specific actions taken by him. Namely, Plaintiff alleges: On January 23, 2011, Officer
Penvose came to Plaintiff’s house looking for Russell Drawdy. Plaintiff told Officer
Penvose that GPD officers were at his house the day before and searched his home for
Russell Drawdy. Officer Penvose told Plaintiff that he would “search his house, period.”
(Id. at 12, ¶ 56). Plaintiff asked if Officer Penvose had a search warrant, and Officer
Penvose responded that he did not need one. Plaintiff informed Officer Penvose that “[t]he
law requires you to have a search warrant.” (Id., ¶ 57). Officer Penvose told Plaintiff that
11

if he did not allow the search he would be arrested for obstruction of justice, so Plaintiff
allowed the search of his house. Russell Drawdy was not found.
It is well-established that a warrantless search of an individual’s home is presumed
to be unreasonable and a violation of the Fourth Amendment. See Holmes v. Kucynda, 321
F.3d 1069, 1078 (11th Cir. 2003). But it is equally well-established that a warrantless
search conducted pursuant to voluntary consent is constitutional.

Schneckloth v.

Bustamonte, 412 U.S. 218, 222 (1973). “[T]o be considered voluntary, . . . consent to
search ‘must be the product of an essentially free and unconstrained choice.’” United
States v. Zapata, 180 F.3d 1237, 1241 (11th Cir. 1999) (quoting United States v. Garcia,
890 F.2d 355, 360 (11th Cir. 1989)). Whether consent is voluntary, and not the result of
coercion, express or implied, is assessed pursuant to the totality of the circumstances. Id.
at 248. Relevant factors include “whether the person is in custody, the existence of
coercion, the person’s awareness of his right to refuse consent, the person’s education and
intelligence, and whether person believes that incriminating evidence will be found.”
Johnston v. Tampa Sports Auth., 530 F.3d 1320, 1326 (11th Cir. 2008) (citing United States
v. Blake, 888 F.2d 795, 798 (11th Cir. 1989)).
Plaintiff’s facts supporting his claim that his consent was involuntary are thin, but
not so thin that Plaintiff has failed to assert a plausible claim for relief. According to
Plaintiff’s version of the facts, he was peaceably speaking to Officer Penvose and had not
committed a violation of the law when Officer Penvose told Plaintiff that he was going to
search his home. Although Plaintiff protested and demanded a search warrant, Officer
Penvose threatened to arrest Plaintiff for obstruction of justice if he did not comply. At
12

this time, upon the facts provided by Plaintiff, the court is unable to make a “heavily
fact-dependent” inquiry into the totality of the circumstances of Plaintiff’s consent and
determine whether his consent was voluntary.
This is not to say that Officer Penvose might not be entitled to qualified immunity
at the summary judgment stage. Rather, at the present juncture, the Court possesses
insufficient facts to assess the voluntariness of Plaintiff’s consent. Count II will not be
dismissed.
ii. Count III—Unreasonable Search
Defendants ask that the Court reconsider its decision not to dismiss Count III. In
Count III, Plaintiff alleges that Officers Moore and Russell violated the Fourth Amendment
when they entered his home in response to a call from a neighbor that a burglary was being
committed in Plaintiff’s residence. (Doc. 51 at 29-30). It is well-established that the Fourth
Amendment prohibits a warrantless entry of an individual’s home. Payton v. New York,
445 U.S. 573, 586 (1980). However, an exception exists if there are exigent circumstances.
Exigent circumstances arise when “the inevitable delay incident to obtaining a warrant
must give way to an urgent need for immediate action.” United States v. Satterfield, 743
F.2d 827, 844 (11th Cir. 1984), superseded on other grounds by statute as recognized by
United States v. Edwards, 728 F.3d 1286, 1292 (11th Cir. 2013) (citing United States v.
Burgos, 720 F.2d 1520 (11th Cir. 1983)). To justify the warrantless entry into a home
under the exigent circumstances exception, there must be both probable cause and exigent
circumstances. United States v. Rodgers, 924 F.2d 219, 222 (11th Cir. 1991).

13

In the present case, Plaintiff asserts that Officers Moore and Russell entered his
home in response to a call from a neighbor reporting a burglary in progress. A burglary in
progress may present an exigent circumstance justifying a warrantless entry so long as the
officers possess probable cause to believe a burglary is taking place. United States v.
Blasco, 702 F.2d 1315, 1324 (11th Cir. 1983). Taking the facts alleged in the light most
favorable to Plaintiff, the only evidence of a burglary possessed by the officers was the call
from Plaintiff’s neighbor reporting a burglary.
Under Florida law, probable cause exists to believe a burglary is being committed
if the totality of the circumstances support the likelihood that a burglary may be in progress.
See Florida v. Yee, 177 So. 3d 72, 76 (Fla. 3d DCA 2015); Guin v. City of Riviera Beach,
388 So. 2d 604, 606 (Fla. 4th DCA 1980); cf. United States v. Porter, 288 F. Supp. 716,
720-21 (W.D. Va. 2003) (summarizing cases where the totality of the circumstances
demonstrated the likelihood of a burglary in progress justifying a warrantless entry under
the exigent circumstances exception). For example, such circumstances may include
physical indication of forced entry, i.e., an open door, broken window, tool marks around
a door or window, evidence of other burglaries or crimes nearby, or knowledge that the
residence’s usual occupants are not home. See Yee, 177 So. 2d at 76; Guin, 388 So. 2d at
606; cf. Dockery v. Doyle, 237 F. App’x 426, 428-29 (11th Cir. 2007) (concluding that
probable cause existed to believe a burglary was in progress where there was a visibly
unsecured door, rampant burglaries and crimes in the same complex, noises were heard in
the residence, and there were “small tool marks on the doorframe, which appeared to be
indicative of the use of some small, sharp tool”).
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Because the information possessed by the officers was only a tip from a neighbor,
and, at the present time, there is no indication that the officers possessed corroborating
information that a burglary was in progress, Plaintiff has demonstrated a constitutional
violation.
Next, the Court must consider whether the right was clearly established such that a
reasonable officer would be aware that his conduct violated a constitutional right. As
discussed above, the principles involving exigent circumstances and probable cause are
clearly established and control the instant case. Because Plaintiff has demonstrated the
violation of a clearly established constitutional right at this stage of the proceedings,
dismissal is not warranted.
However, as with Count II, that is not to say that the officers might not be entitled
to qualified immunity at the summary judgment stage. Rather, currently, the facts do not
warrant the application of qualified immunity.
iii. Count IV—False Arrest
In Count IV, Plaintiff asserts a claim of false arrest in violation of the Fourth
Amendment against Officer Moore, but Plaintiff has failed to establish a constitutional
violation because he has not demonstrated that Officer Moore lacked arguable probable
cause for the arrest.
A warrantless arrest made without probable cause violates the Fourth Amendment
and is actionable under both federal and state law. See Ortega v. Christian, 85 F.3d 1521,
1525 (11th Cir. 1996). “[B]ut the 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
15

Huntsville, 608 F.3d 724, 734 (11th Cir. 2010); see also Marx v. Gumbinner, 905 F.2d
1503, 1505-06 (11th Cir. 1990). An officer has probable cause for an arrest when the arrest
is “objectively reasonable based on the totality of the circumstances.” Wood v. Kesler, 323
F.3d 872, 878 (11th Cir. 2003) (internal quotation marks omitted). In determining whether
an arrest is objectively reasonable, thereby triggering qualified immunity, the issue is
whether the officer had arguable probable cause. See Lee v. Ferraro, 284 F.3d 1188, 1195
(11th Cir. 2002) (explaining that “arguable probable cause . . . is all that is required for
qualified immunity to be applicable to an arresting officer”). “Arguable probable cause”
is a lower standard than actual probable cause and only requires that “under all of the facts
and circumstances, an officer reasonably could—not necessarily would—have believed
that probable cause was present.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir.
2004).
Officer Moore prepared an arrest affidavit recounting eyewitness reports from the
victims allegedly assaulted, battered, and burglarized by Plaintiff.5

These

eyewitness/victim statements would be a sufficient basis to establish arguable probable
cause precluding a claim for false arrest under § 1983. See Rankin v. Evans, 133 F.3d
1425, 1441 (11th Cir. 1998) (stating that an officer is entitled to rely on a victim’s statement

5

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)).

16

or criminal complaint as support for probable cause); see also Chancey v. Wells, No. 8:04cv-1884-T-24MSS, 2005 WL 2663492, at *5 (M.D. Fla. Oct. 19, 2005) (“A police officer
is generally entitled to rely on a victim’s criminal complaint as support for probable
cause.”).
Plaintiff asserts that the victims’ accusations were false, but does not demonstrate
that Officer Moore had reason to believe the accusations were false. To demonstrate that
the victims’ statements were unreliable, Plaintiff has added a litany of facts to the second
amended complaint regarding the character of his accusers, referring to them as
“drop-outs,” “drug dealers,” and “hoodlums,” and recounting their numerous interactions
with GPD police officers. (Doc. 51 at 15-20). But these additions do not demonstrate a
lack of credibility for two reasons. First, even if the accusers were individuals of ill repute,
of which Officer Moore was aware, their character would not necessarily be reason for
Officer Moore to discount their accusations. 6 Second, while Plaintiff has alleged that GPD
officers were called to the accusers’ residence on several occasions and were thus familiar
with the accusers, Plaintiff has not demonstrated that Officer Moore himself was familiar
with the accusers and had reason to disbelieve their accusations.
In attempting to demonstrate a lack of probable cause, Plaintiff also points out that
the arrest affidavit indicates that there was no physical evidence. But physical evidence is
not required to establish probable cause. Eye-witness testimony, standing alone, can be
sufficient to demonstrate arguable probable cause. Foreman v. City of Port St. Lucie, 294

6

The Court further notes that there were also several victims/eyewitnesses with corroborating
statements.

17

F. App’x 554, 557 (11th Cir. 2008) (citing United States v. Bell, 457 F.2d 1231, 1238 (5th
Cir. 1972)). 7
Because Plaintiff has not demonstrated that Officer Moore lacked arguable probable
cause for arresting him, he has failed to establish the violation of a constitutional right.
Officer Moore is therefore entitled to qualified immunity on this claim and Count IV should
be dismissed with prejudice.
2. State-Law Claims against the Officer Defendants
i. Count VIII—Battery against Officers Moore and Russell
Plaintiff alleges that Officers Moore and Russell committed battery upon Plaintiff
when they apprehended Plaintiff in his residence on August 5, 2011, in response to a report
of a burglary. (Doc. 51 at 17-18). Plaintiff alleges that on August 5, 2011, GPD officers
“kicked the Plaintiff while he lay on the floor. One officer jumped on the Plaintiff’s back
and handcuffed Plaintiff.” Plaintiff asserts that Officer Moore “directed the other officers.”
(Id. at 18). As with Count I, Plaintiff’s claim for Count VIII fails for a lack of specificity.
Plaintiff does not allege which actions were taken by Officer Moore and which by Officer
Russell that amounted to a battery. The Court previously cautioned Plaintiff that if he were
to allege a claim for battery 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.” (Doc. 50 at 25).

7

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.

18

Plaintiff has failed to allege which acts were committed by Officer Moore and which
were committed by Officer Russell that amounted to a battery. Plaintiff cannot simply
lump the actions of the two officers together and impute those actions to both Officer
Moore and Officer Russell. Having provided Plaintiff several opportunities to amend his
complaint, Count VIII will be dismissed with prejudice.
ii. Count IX—Invasion of Privacy against Officers Moore and Russell
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
burglary. (Doc. 51 at 46-47). Florida recognizes a tort action for invasion of privacy,
including for “intrusion upon the plaintiff’s physical solitude or seclusion, as by invading
his home.” Guin, 388 So. 2d at 606 (internal quotation marks omitted). Thus, if Officers
Moore and Russell improperly entered Plaintiff’s home, then Plaintiff may have a claim
for invasion of privacy under Florida law.
As discussed above, under the facts alleged by Plaintiff, it appears that Officers
Moore and Russell lacked probable cause to enter Plaintiff’s home in response to a call
reporting a burglary, without something more. Thus, Officers Moore and Russell were not
justified in entering Plaintiff’s home. Plaintiff’s claim for invasion of privacy is therefore
sufficiently pled.
However, Officers Moore and Russell contend as a general principle that Plaintiff’s
state-law claims should be dismissed because the Officer Defendants are entitled to
immunity under state law. (Doc. 56 at 8). Namely, Florida Statute § 768.28(9) allows
claims against officers in their individual capacities only where facts demonstrate that
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officers acted with “bad faith, malicious purpose, or in a manner exhibiting wanton and
willful disregard for human rights and safety.” Officers Moore and Russell argue that
Plaintiff has not alleged any facts showing that they acted with “bad faith, malicious
purpose, or in a manner exhibiting wanton and willful disregard for human rights and
safety.”
Generally, however, the issues of bad faith and malicious purpose are questions for
the jury. See McGhee v. Volusia Cnty., 679 So. 2d 729, 733 (Fla. 1996) (stating that under
the facts at hand the question of malice must be submitted to the fact-finder); see also
Burnett v. Miami Dade Cnty., No. 07-20207-CIV-SEITZ/MCALILEY, 2007 WL 1225451,
at *2 (M.D. Fla. Apr. 25, 2007) (declining to determine at the motion-to-dismiss stage
whether the plaintiff sufficiently alleged bad faith or malicious purpose); Williams v. City
of Daytona Beach, No. 6:04-cv-1879-ORL-19, 2006 WL 354635, at *21 (M.D. Fla. Feb.
15, 2006) (stating that there was a material issue of fact as to whether the officers’ acts
constituted malice). Once again, however, Officers Moore and Russell may succeed on
their arguments at the summary judgment stage if it turns out that they possessed additional
facts demonstrating the existence of probable cause which would warrant entry of
Plaintiff’s home under the exigent circumstances theory.
iii. Counts X & XI—False Arrest and False Imprisonment against
Officer Moore
Plaintiff alleges that Officer Moore unlawfully detained him when he arrested him
on August 21, 2011. (Doc. 51 at 47-56). Generally, under Florida law, false arrest and
false imprisonment “are different labels for the same cause of action.” Weissman v. K20

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.
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, 294 F. App’x at 557 (citing Bell, 457 F.2d
at1238); see also Miami-Dade Cnty. v. Asad, 78 So. 3d 660, 670 (Fla. 3d DCA 2012).
As discussed above with respect to Plaintiff’s claim for false arrest under § 1983
against Officer Moore, Plaintiff has not demonstrated that Officer Moore lacked probable
cause for his arrest on August 21, 2011. Because Plaintiff has not demonstrated a lack of
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probable cause, Plaintiff’s claims for false arrest and false imprisonment fail and should be
dismissed with prejudice.
iv. Count XIII—Intentional Infliction of Emotional Distress against
Officer Moore
Plaintiff’s claim for intentional infliction of emotional distress (“IIED”) remains
insufficiently pled. Under Florida law, a claim for IIED 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 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 on (1) January 22 and 23, 2011, when Officers
Flinn, Auld, and Penvose searched Plaintiff’s residence, (2) August 5, 2011, when Officers
Moore and Russell entered Plaintiff’s residence, kicked Plaintiff, handcuffed him, and
yelled insults at him, and (3) 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,
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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 remain too sparse to allow the Court to determine whether the conduct
of Officers Moore and Russell surpassed the threshold of outrageousness. 8 This claim is
dismissed with prejudice. 9
3. Punitive Damages
The Officer Defendants argue that Plaintiff is not entitled to recover punitive
damages against them. As to Plaintiff’s § 1983 claims against Officer Penvose (Count II)
and Officers Moore and Russell (Count III), punitive damages are available against an
individual officer “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).
As to Plaintiff’s claim for invasion of privacy, Florida law permits recovery of
punitive damages for a claim for invasion of privacy, but requires the plaintiff to show
more than an intent to commit a tort or violate a statute, i.e., it requires a showing of malice.
See Genesis Publ’ns, Inc. v. Goss, 437 So. 2d 169, 170 (Fla. 3d DCA 1983).

8

Plaintiff’s allegations are too sparse because he failed to allege the actions taken by Officers Moore
and Russell individually, and, as the Court explained in greater detail above, such failure warrants dismissal
of Plaintiff’s claim.
9
The Court notes that it would also dismiss Plaintiff’s claim for IIED because it is confusing and
therefore insufficiently pled. Plaintiff’s claim for IIED is confusing because he asserts the claim against
Officer Moore but then appears to assert the claim against all the Officer Defendants because he argues
facts related to incidents in which Officer Moore was not involved. (Doc. 51 at 56-59). Thus, his claim
fails to properly apprise the Officer Defendants of the grounds upon which his claim rests.

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If the issue of damages need be reached, whether Plaintiff is entitled to punitive
damages will be determined at that time.
CONCLUSION
The Court provided Plaintiff several opportunities to file a complaint that stated
cognizable claims. Having been provided these opportunities, most of Plaintiff’s claims
are deficient and should be dismissed with prejudice, including Counts I, IV, VIII, X, XI,
and XIII.
Plaintiff is also warned for the final time that the Court will not tolerate disrespectful
behavior toward opposing counsel. (See Doc. 64 at 4, 5, 8, 13 (referring to counsel’s
arguments as “just plain stupid,” asserting that counsel’s argument is an “idiotic theory,”
calling counsel “arrogant,” and suggesting that counsel supports police brutality)). The
Court finds it strange that Plaintiff submitted an apology of sorts and then continued to
behave in the same offending manner. (Doc. 64 at 21). None of the explanations provided
by Plaintiff excuse his conduct. He is entitled to dispute Defendants’ arguments and
zealously defend his position without resorting to name-calling and derogatory remarks.
Pleadings filed with the Court shall be respectful. If Plaintiff cannot behave respectfully
toward opposing counsel, he may be sanctioned.
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Lake County’s Motion to Dismiss (Doc. 53) is GRANTED.
2. The Clerk is directed to terminate Lake County as a Defendant in this case.
3.

The City of Groveland (the “City”), Officer John Moore, Officer Charles

Russell, Officer John “Flinn” (Flynn), Officer Andy Auld, and Officer Scott Penvose’s
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Motion to Dismiss Plaintiff’s Second Amended Complaint with Prejudice (Doc. 56) is
GRANTED in part and DENIED in part.
4. Counts I, IV, VIII, X, XI, XIII are DISMISSED with prejudice.
5. Counts II, III, V, VII, and IX will proceed.
6. Officer John Moore, Officer Charles Russell, and Officer Scott Penvose shall file
an answer to the remaining claims (Counts II, III, and IX) of Plaintiff’s complaint within
fourteen (14) days of the date of this Order.
7. Plaintiff’s request for sanctions against counsel for the Officer Defendants (Doc.
64 at 8) is DENIED.
DONE and ORDERED in Tampa, Florida, this 8th day of March, 2016.

Copies furnished to:
Counsel/Parties of Record

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