Carter v. Orange County, Florida Sheriff's Office

Filing 42

ORDER granting 34 Motion for Summary Judgment and directing the Clerk to enter judgment and close the case. Signed by Judge John Antoon II on 9/20/2013. (EK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KEVIN S. CARTER,
Plaintiff,
-vs-

Case No. 6:11-cv-1640-Orl-28DAB

JERRY L. DEMINGS, in his official
capacity as Sheriff of Orange County,
Florida,
Defendant.
______________________________________

ORDER
Kevin S. Carter brings the instant action pursuant to 42 U.S.C. §§ 1981 and 1983
against his former employer, the Sheriff of Orange County, Florida.1 Carter alleges race
discrimination under § 1981, denial of due process in violation of the Fifth and Fourteenth
Amendments, and arrest without probable cause in violation of the Fourth and Fourteenth
Amendments. The case is now before the Court on the Sheriff’s Case-Dispositive Motion
for Summary Judgment (Doc. 34) and Carter’s Memorandum in Opposition (Doc. 35).2 As
set forth below, the Sheriff’s motion must be granted as to all three of Carter’s claims.

1

Kevin Beary was the Sheriff at the time of the events at issue in this case. Jerry
Demings was elected to his first term as Sheriff in November 2008, and he is sued only in
his official capacity here. (See Doc. 35 at 2). “Official-capacity suits . . . ‘generally represent
only another way of pleading an action against an entity of which an officer is an agent.’”
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. N.Y.C. Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978)).
2

The Sheriff did not file a reply to Plaintiff’s opposition memorandum, though one is
permitted. (See Am. Case Management & Scheduling Order, Doc. 33, at 6).

I. Background
After serving in the United States Army for more than twenty years, in January 2000
Carter began his employment at the Orange County Sheriff’s Office as a Deputy Trainee.
Carter then worked in the Field Services Division as a Deputy II until transferring to the
Narcotics Unit within the Special Investigations Division in January 2004. While in the
Narcotics Unit, Carter largely worked undercover making drug-related arrests, though he
sometimes worked on the “takedown team”—the support team that arrested those who
engaged in drug transactions with the undercover officers. In late 2006, Carter transferred
from the Narcotics Unit to the Fugitive Division.
In early 2007, after Carter had transferred out the Narcotics Unit, the Sheriff’s Office’s
Professional Standards Division (“PSD”) began investigating a November 2003 Narcotics
Unit case in which Deputy Jeffrey Lane was the acting undercover agent. The arrestee’s
attorney suspected that Lane had given false testimony regarding whether a confidential
informant had been used in that case, and the attorney sent a letter of complaint to the
Sheriff’s Office about the matter.
Larry Krantz, then a lieutenant in PSD, asked Charles Deisler, a PSD sergeant, to
look into the attorney’s allegations. (Deisler Dep., Docs. 34-13 & 34-14, at 44; Krantz Dep.,
Ex. 1 to Doc. 35, at 36, 40).3

After reviewing the court file and discovering some

3

In his summary judgment motion, the Sheriff refers to exhibits lettered A through O.
(See Doc. 34 passim). These exhibits were filed as attachments to the summary judgment
motion (Docs. 34-1 through 34-24), but in the record they are not labeled with letters.
Although they are labeled in that manner in the courtesy copy binders that were provided to
the Court, the courtesy copies are not the official record. As noted by Carter, no index to the
Sheriff’s exhibits has been filed either; in his response memorandum Carter has provided
-2-

inconsistencies that concerned him, Deisler reported back to Krantz that there could indeed
have been an issue regarding perjury in Lane’s deposition. (Deisler Dep. at 44-45). Krantz
instructed Deisler to continue a criminal investigation of Lane and to obtain a statement from
Lane. (Id. at 45, 47). Lane acknowledged a practice of lack of disclosure of informant
involvement in undercover drug transactions. (Id. at 48).
PSD then became concerned about whether the case reported was an isolated
incident or a systemic problem, and Deisler was instructed to begin a criminal investigation
of other Narcotics Unit cases. (Id. at 48-49). Once the investigation expanded beyond Lane,
PSD Sergeant Cami Stough assisted Deisler with the investigation. (Id. at 57). In the
expanded investigation, Stough and Deisler examined 2003 and 2004 Narcotics Unit cases.
Stough reviewed records looking for cases similar to the problematic Lane case, in which no
informant was noted in the report and it appeared that the Narcotics Unit had just happened
upon drugs. (Stough Dep., Doc. 34-15, at 33). When such cases were discovered, further
inquiry was made. (Id. at 41).
During the 2003-2004 time frame, the Narcotics Unit consisted of approximately
twenty-five officers. (Deisler Dep. at 64-65). The supervisors in the unit included Chief Ron
Otterbacher, Captain Mark Lang, and Sergeants Lisa Green, Wayne Calarco, and Grantham
McMillan, all of whom were Caucasian. (Id. at 65). Approximately twenty-five percent of the

a correct listing of the Sheriff’s exhibits. (See Doc. 35 at 2-3 n.2). The citations to the
Sheriff’s summary judgment evidence in this Order are to the locations in the electronic
record where the evidence can be found—not to lettered exhibits. Carter has submitted
three exhibits—Exhibits 1, 2, and 3 to his response memorandum (Doc. 35)—and they are
referred to as such.
-3-

Narcotics Unit was made up of minority employees: Carter, Lane, Jerold White, and
Collington Campbell, who were African-American; and Alejandro Ferrer and Nicholas Ortiz,
who were Hispanic. (Id. at 65-67). PSD did not find improprieties in the reports of White or
Campbell, but the case report review led to further investigation of some other Narcotics Unit
deputies, including Carter, Ortiz, Ferrer, McMillan, and Green.4 During their investigation of
the Narcotics Unit, Deisler and Stough became aware that there was an accepted practice
within the unit of officers signing reports in a stack and signing reports for arrests of which
they were not a part. (Id. at 72). Additionally, they learned that it was a common practice
within the Narcotics Unit—acknowledged by some of the supervisors—not to list a
confidential informant in a report unless the informant had actually touched the drugs or
money. (Stough Dep. at 54; Deisler Dep. at 89-91). Another issue reported by those who
were interviewed was that “deputies were evaluated strictly on numbers” and statistics and
that to that end, the undercover agents were put back on the street as soon as possible,
even at the expense of accurate paperwork. (Deisler Dep. at 85-86).
One of Carter’s cases that caught the attention of PSD involved the January 20, 2004
arrest of Ricky Stubbs for the sale of cocaine behind an ABC store on Silver Star Road in
Orlando. Carter’s report and charging affidavit regarding Stubbs recounted a hand-to-hand
exchange of drugs for money between Carter and Stubbs and did not mention an informant.
(See Incident Report, part of Ex. 7 to Carter Dep.,5 at 3-4). Carter also testified at Stubbs’s

4

Deisler was the lead investigator regarding the conduct of Ortiz and Lane, and
Stough was the lead investigator regarding the conduct of Carter and Green.
5

(Docs. 34-1 through 34-9).
-4-

trial that “[i]t was just me and him standing right back there in the back.” (Id. at 6). However,
when Stough reviewed the court file for Stubbs’s case, she noticed that a witness named
Susan6 was listed for the defense, and she also found Susan’s name written on an evidence
envelope for an incident involving an informant on the same date in the area where Stubbs
was arrested. (Id. at 4-7).
Stough then undertook to locate Susan to question her about these incidents, sending
letters and otherwise trying to contact her. In response to Stough’s inquiries, Susan
eventually telephoned Stough. (Id. at 8). According to one of Stough’s reports, during their
May 10, 2007 phone conversation Susan expressed concern about why Stough wanted to
talk to her, but Stough assured Susan she merely wanted to discuss the work that Susan
had done with the Narcotics Unit in 2004. (Id.). Susan then stated, “I didn’t do nothing [sic]
wrong! I did what they told me. But I don’t know the cops’ names. One was a black guy,
real muscular in a green Mustang. I only bought from Rick behind the ABC and I did (1)
other.” (Id. (alteration in original) (emphasis removed)). Susan elaborated that the black
deputy—who meets the description of Carter—gave her twenty dollars and walked with her
to the back of the ABC, where she asked Ricky Stubbs for twenty dollars’ worth of crack.
(Id.). Susan further reported that that same day, she assisted the deputies by purchasing
crack from a residence. (Id.). Deisler and Stough met with Susan in person later that day,
and she reiterated what she had told Stough on the phone. (Id.).
The next day, May 11, 2007, Deisler called Carter and asked him to come to the PSD.

6

In most of the record, Susan is identified only by her first name, and the Court will
refer to her in this manner as well.
-5-

(Id. at 8-9). When Carter arrived, Deisler told him he had been summoned for a noncustodial interview but was not obligated to participate and was free to leave.7 (Id. at 9).
Carter opted not to participate. (Id.). Also on May 11, Mark Lang, as Acting Chief of the
Special Investigations Division, issued a memo to Carter relieving him of duty with pay
pending a criminal investigation.8 (Ex. 1 to Carter Dep.). Three days later, on May 14,
Deisler and Stough drove to the Holmes Correctional Institution in Bonifay, Florida, and
talked to inmate Ricky Stubbs. (Incident Report at 9). Stubbs stated that on the day of his
arrest, Susan had approached him behind the ABC store with a black male and asked him
for twenty dollars’ worth of cocaine. (Id.).
On May 17, 2007, Stough submitted to the state attorney’s office her Incident Report
and a charging affidavit accusing Carter of perjury in an official proceeding in violation of
section 837.02(1), Florida Statutes, based on Carter’s testimony at Stubbs’s January 2005
trial. (See Ex. 7 to Carter Dep.).9 The state attorney’s office then sought a capias from the
circuit court, and the capias was issued on May 23, 2007.10 (See id.; see also Joint Pretrial
7

Krantz explained in his deposition that employees are obligated to cooperate in
administrative investigations but could not be compelled to do so in criminal investigations.
(Krantz Dep. at 96-98). Once the criminal investigation of Lane began, several officers
declined to cooperate. (Id. at 95-97; see also Stough Dep. at 139).
8

(See Sheriff’s General Order 342.0 § 4.E, Doc. 34-19 (providing for suspension with
pay during investigative period)).
9

PSD had previously submitted two of Lane’s cases to the state attorney’s office for
assessment of charges of perjury in an official proceeding, and the state attorney’s offices
filed charges against Lane in those cases on May 9, 2007. (See Administrative Investigation
Report, Ex. 10 to Carter Dep., at 15).
10

One of the attorneys who represented Stubbs in 2004 and 2005 had, by 2007,
become a circuit court judge. Carter suggests in his response memorandum that that judge
-6-

Statement, Doc. 39, at 10; Carter’s Resp. Mem., Doc. 35, at 19 n.8). Upon being informed
of the capias that same day, Carter went to the Sheriff’s Office to turn himself in and was
arrested by Stough and Deisler on the capias. On May 24, Carter was relieved from duty
without pay pending an internal investigation.11 (See Ex. 3 to Carter Dep.).
On May 25, 2007, Carter, accompanied by an attorney, was interviewed by Stough
regarding the Stubbs case. (Interview Tr., Ex. 6 to Carter Dep.). Carter denied that Susan
was present during the transaction with Stubbs and explained that that was why her name
was not listed on the Stubbs case report. (Id. at 2-3).12 Carter has maintained that
position–and his innocence—throughout the investigation and this case.

was involved in the issuance of the capias for Carter’s arrest. (See Doc. 35 at 7-8). It is
undisputed that Stough and Deisler talked to that judge about the Stubbs case in the course
of gathering information about it. (See Incident Report, part of Ex. 7 to Carter Dep., at 9-10).
No evidence has been brought to the Court’s attention that would support Carter’s
suggestion that that judge had any involvement with the issuance of the capias. The only
involvement by the judge borne out by the record is that he was a fact witness as a result of
knowledge he gained in representing Stubbs on the criminal charges that arose from the
cocaine transaction.
11

(See Sheriff’s General Order 342.0 § 4.F, Doc. 34-19 (providing for suspension
without pay where an employee is arrested for or charged with a felony or misdemeanor)).
12

According to Carter, he had met Susan at a bus stop across the street from the ABC
earlier that day, and his supervisors instructed him to see if he could pick her up on a
prostitution charge. Carter and Susan went to Carter’s nearby car, but the supervisors then
intervened. After the supervisors’ intervention, Susan assisted the officers with a purchase
of cocaine from a house, and after that, Carter never saw her again. Carter then went back
to the bus stop and tried to buy crack cocaine from a man there. The man told him he did
not do drugs and that if Carter wanted drugs he should go behind the ABC store. Carter
then went behind the store and made the buy from Stubbs. Carter denied any involvement
of Susan in the Stubbs transaction, maintaining that his interaction with Susan that day was
completely separate from his interaction with Stubbs and that he was by himself when he
bought the drugs from Stubbs. (See Tr. of May 26, 2007 Interview, Ex. 6 to Carter Dep.).
-7-

Following Carter’s arrest, PSD submitted two other cases involving Carter to the state
attorney’s office for review for possible prosecution, but the state attorney’s office did not file
charges in those cases. (See Carter Dep. at 118; Ex. 11 to Carter Dep., at 3; Administrative
Investigation Report, Ex. 10 to Carter Dep., at 22-23). PSD also investigated a fourth case
involving Carter but did not submit it to the state attorney’s office. (Ex. 11 to Carter Dep., at
3; Administrative Investigation Report at 23-24).

On September 27, 2007, the state

attorney’s office dropped the perjury charge that arose from the Stubbs case, citing inability
to locate a key witness. (Ex. 7 to Carter Dep., at 1). Carter then returned to work at the
Sheriff’s Office and was transferred to the Records Division pending an administrative
investigation by PSD. (Carter Dep. at 119-22).
Beginning on October 9, 2007, PSD conducted an administrative investigation of the
Narcotics Unit as a whole. That investigation included allegations against and investigation
of Chief Otterbarcher, Commander Stonebreaker, Green, McMillan, Ferrer, Ortiz, Carter, and
Lane. PSD compiled a 251-page administrative report that was signed by Deisler, Stough,
and PSD supervisors on March 13, 2008. (Ex. 10 to Carter Dep.). With regard to Carter,
the report included the notation that Deputy Ortiz—another member of the Narcotics Unit
who was investigated and arrested13—told Carter’s attorney on May 24, 2007 that Ortiz had,
as a member of the takedown team, observed the transaction between Carter and Stubbs
and that Carter conducted the buy directly with Stubbs. (See id. at 150). Additionally, the
report notes that on June 4, 2007, Sergeant Green stated that Susan was in her presence

13

The state attorney’s office filed charges against Ortiz for perjury in an official
proceeding on September 15, 2007. (Administrative Investigation Report at 18).
-8-

at the time of the arrest of Stubbs, suggesting that Susan was not at the scene. (See id.).14
The report ultimately concluded that based on a preponderance of the evidence, in
the Stubbs case Carter had committed perjury in official proceedings and that therefore the
allegation that Carter had violated a Sheriff’s Office’s written directive regarding
“Conformance to Laws” was sustained. Four other policy violation allegations against Carter
based on other cases were also sustained, and one was not sustained.15 The Report’s
conclusions regarding Carter were summarized in a memorandum to Carter that same day
from PSD Captain Larry Krantz, (Ex. 12 to Carter Dep.), and on April 1, 2008, Carter
received Notices of Intention to Discipline with regard to the five policy violations that were
sustained in the administrative report; in four of these, the intended disciplinary action
noticed was termination.16 (Doc. 34-16). Carter then requested an administrative review.
(See id.).
Pursuant to the Sheriff’s General Order 5.1.0, the disciplinary appeal process consists
of two phases—first, review before an Administrative Review Captain, and second, review
before a Disciplinary Appeals Board. (See General Order 5.1.0, Doc. 34-18). After

14

Stough testified in her deposition that Ortiz and Green gave these statements to
Carter’s attorney—after Carter’s arrest—but not to PSD. (Stough Dep. at 137-39). PSD had
called them in prior to Carter’s arrest, but they declined to talk. (Id. at 139).
15

Three of the four other sustained policy violations against Carter were also for
violations of the “conformance to laws” directive—two for perjury in an official proceeding and
one for perjury not in an official proceeding. The fourth sustained policy violation was
“unsatisfactory performance” based on a lack of documentation in support of a case. (See
Administrative Investigation Report at 237-40).
16

In the fifth, the intended discipline was forty-one hours’ suspension without pay.
(Doc. 34-16 at 1).
-9-

submitting an appeals packet to Administrative Review Captain Sandy Carpenter on May 10,
2008, Carter appeared before Carpenter for a hearing on May 16, 2008. (See Ex. 13 to
Carter Dep.). Following that hearing, Carpenter found Carter’s appeals regarding all five of
the alleged policy violations to be without merit. (See id.).
On June 4, 2008, Carter was issued Notices of Disciplinary Action that advised of
termination.

(Ex. 14 to Carter Dep.).

Carter then requested the second phase of

review—review before a three-member Disciplinary Appeals Board. (See id.). Carter’s
public Disciplinary Appeals Board hearing was held on August 26, 2008.17 (See Ex. 15 to
Carter Dep.). By one unanimous vote and four two-to-one votes, the Disciplinary Appeals
Board upheld four of the five findings of policy violations by Carter.18 (See Exs. 15 & 16 to
Carter Dep.). The Sheriff, as “the ultimate authority in all matters of discipline,” (see General
Order 5.1.0 at 21), then reviewed the Disciplinary Appeals Board’s results and, in a letter
dated September 3, 2008, informed Carter that he agreed with the Board’s conclusions. (Ex.
16 to Carter Dep.). Carter was terminated effective June 5, 2008. (Id.).
Carter filed this lawsuit on October 12, 2011. (Doc. 1). In the three-count Second
Amended Complaint (Doc. 29), Carter alleges that in terminating him the Sheriff

17

As provided for in General order 5.1.0, each three-member Disciplinary Appeals
Board consists of one captain, one commander, and one deputy sheriff. (General Order
5.1.0, Doc. 34-18). The members of Carter’s Disciplinary Appeals Board were Captain Tom
Foster, Commander Brenda Brandenburger, and Deputy First Class Mike Walsh. (See Ex.
15 to Carter Dep.).
18

Board member Walsh found merit to four of Carter’s five appeals, including the
appeal regarding the Stubbs case. (See Ex. 15 to Carter Dep.). Walsh noted that the
Stubbs case came down to the word of three deputy sheriffs versus the word of Stubbs and
Susan. (See id.).
-10-

discriminated against him based on his race in violation of 42 U.S.C. § 1981 (Count I); that
he was deprived of a liberty interest without due process of law (Count II); and that he was
arrested without probable cause (Count III). The Sheriff now seeks summary judgment in
his favor on all of these counts.
II. Summary Judgment Standards
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the Court construes the
facts and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However,
when faced with a “properly supported motion for summary judgment, [the nonmoving party]
must come forward with specific factual evidence, presenting more than mere allegations.”
Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997).
Summary judgment is mandated “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “Summary judgment may be granted if the non-moving party’s evidence is merely
colorable or is not significantly probative.” Sawyer v. Southwest Airlines Co., 243 F. Supp.
2d 1257, 1262 (D. Kan. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51
(1986)).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
-11-

issue for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence
presents a sufficient disagreement to require submission to the jury or whether it is so onesided that one party must prevail as a matter of law.’” Sawyer, 243 F. Supp. 2d at 1262
(quoting Anderson, 477 U.S. at 251-52); see also Laroche v. Denny’s, Inc., 62 F. Supp. 2d
1366, 1371 (S.D. Fla. 1999) (“The law is clear . . . that suspicion, perception, opinion, and
belief cannot be used to defeat a motion for summary judgment.”). “[T]he summary
judgment rule applies in job discrimination cases just as in other cases. No thumb is to be
placed on either side of the scale.” Chapman v. AI Transp., 229 F.3d 1012, 1026 (11th Cir.
2000).
III. Discussion
A. Count I—§ 1981
In his first claim, Carter contends that the Sheriff’s Office discriminated against him
based on his race in violation of 42 U.S.C. § 1981 when it arrested him and terminated him.19
The Sheriff has established entitlement to summary judgment on this claim.
The parties agree that the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 344 U.S. 792 (1973), and its progeny that applies in Title VII cases also applies to
Carter’s § 1981 claim. See, e.g., Jefferson v. Burger King Corp., 505 F. App’x 830, 832
(11th Cir. 2013). Under this three-part framework, the plaintiff in a disparate treatment case
has the initial burden to establish a prima facie case of discrimination by a preponderance

19

In his motion, the Sheriff also addresses Carter’s relief from duty and his transfer,
but Carter clarifies in his response memorandum that he does not take issue with either of
those actions and is only challenging his arrest and termination. (See Doc. 35 at 11).
-12-

of the evidence. McDonnell Douglas, 411 U.S. at 802. “Demonstrating a prima facie case
is not onerous; it requires only that the plaintiff establish facts adequate to permit an
inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). If the
plaintiff establishes a prima facie case, a presumption of discrimination arises. See, e.g.,
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
If the plaintiff presents a prima facie case and its attendant presumption, the burden
“[s]hifts to the employer to articulate some legitimate, nondiscriminatory reason” for its
actions. McDonnell Douglas, 411 U.S. at 802. The employer’s “burden is one of production,
not persuasion; it ‘can involve no credibility assessment.’” Reeves, 530 U.S. at 142 (quoting
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). “If the defendant articulates one
or more such reasons, the presumption of discrimination is eliminated and ‘the plaintiff has
the opportunity to come forward with evidence, including the previously produced evidence
establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that
the reasons given by the employer were not the real reasons for the adverse employment
decision.’” Chapman, 229 F.3d at 1024 (quoting Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997)).
A plaintiff can establish a prima facie case of disparate treatment by showing that he
was: (1) a member of a protected class; (2) subjected to an adverse employment action; (3)
treated less favorably than similarly situated employees outside of his protected group; and
(4) qualified for his job. Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir.
2006). It is undisputed that Carter is a member of a protected class, was subjected to an
adverse employment action, and was qualified. The Sheriff challenges only whether Carter
-13-

can establish the “similarly situated” element of a prima facie case.
The Sheriff notes that in his interrogatory responses, Carter identified three purported
similarly situated employees who were not arrested or terminated: Chief Ron Otterbacher
and Sergeants Lisa Green and Grantham McMillan, all of whom were Caucasian supervisors
in the Narcotics Unit. (See Carter’s Interrog. Resp. 23, Doc. 34-20 at 25). The Sheriff
maintains that none of these three is a proper comparator because none engaged in the
same or similar conduct of which Carter was accused. The Court agrees.
It is undisputed that PSD conducted criminal investigations of Green and McMillan.
(See Joint Pretrial Statement, Doc. 39, at 9; see also Administrative Investigation Report at
19 & 25). In August 2007, PSD submitted a prosecutive summary to the state attorney’s
office regarding Green, alleging that Green had committed perjury while not in an official
proceeding when she wrote a misleading report regarding a drug transaction involving a
defendant named Gordon. (See Administrative Investigation Report at 25). The state
attorney’s office declined to file charges against Green, noting that the facts presented were
not sufficient evidence to prove the case beyond a reasonable doubt. (See id.). Green was
also administratively investigated regarding her actions in the Gordon case, and PSD
determined that Green knew or should have known that her report was misleading; however,
the allegation against her regarding “conformance to laws” in that case was found “not
sustained” because of the evidence uncovered during the investigation showing that there
was a widespread practice in the Narcotics Unit of improper report-writing. (See id. at 194208). The administrative investigation did result in a charge of “unsatisfactory performance”
being sustained against Green. (Id. at 209). Green appealed that finding and, after not
-14-

prevailing at the Administrative Review Captain phase, prevailed at her Disciplinary Appeals
Board hearing, which was conducted by different board members than those who conducted
Carter’s Disciplinary Appeals Board. (Carter Dep. at 150-53).
McMillan was investigated for perjury in an official proceeding based on his deposition
testimony in a case involving a defendant named Melendez.

(See Administrative

Investigation Report at 19). The March 2008 Administrative Report notes that “the criminal
case is currently inactive pending the receipt of additional information,” (id.), and the
administrative investigation regarding the Melendez matter resulted in the allegation of
violation of “conformance to laws” being not sustained due to a lack of sufficient evidence,
(id. at 236).

McMillan was also administratively investigated in two other cases for

“unsatisfactory performance” and “unbecoming conduct,” and both of those charges were
sustained in the report. (Id. at 233-35). Like Green, McMillan appealed and prevailed at the
Disciplinary Appeals Board level after losing before the Administrative Review Captain.
(Carter Dep. at 150-53).
Carter’s final proposed comparator is Chief Otterbacher.

Otterbacher was

investigated administratively but not criminally. Administrative charges regarding “violation
of rules” and “informants” were sustained against Otterbacher based on his failure to
designate a custodian for confidential informant files. (Administrative Investigation Report
at 226, 228).
In arguing that Green, McMillan, and Otterbacher are not appropriate comparators,
the Sheriff notes that to be similarly situated in a misconduct case, comparators must have
been involved in the same or similar misconduct. Indeed, the Eleventh Circuit has held that
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“[w]hen the plaintiff alleges, as here, that other employees engaged in similar misconduct
but were not similarly disciplined, the plaintiff must produce evidence that ‘the quantity and
quality of the comparator’s misconduct [was] nearly identical.’” Wolfe v. Postmaster Gen.,
488 F. App’x 465, 468 (11th Cir. 2012) (alteration in original) (quoting McCann v. Tillman,
526 F.3d 1370, 1373 (11th Cir. 2008)).
Carter contends that Green, McMillan, and Otterbacher were “non-minority
supervisors who condoned the practices identified in the [administrative] report” and that
because “all three were assigned to assist with the Narcotics Unit, they were similarly
situated in all relevant respects.” (Doc. 35 at 12-13 (citation, internal quotation, and
emphasis omitted)). He acknowledges, however, that “it is true, as the Sheriff notes, that the
alleged comparators to Carter were not charged with the identical allegations.” (Id. at 13).
Carter relies heavily on the Eleventh Circuit’s opinion in Smith v. Lockheed-Martin
Corp., 644 F.3d 1321 (11th Cir. 2011), asserting that that decision is a “recent expansion of
‘comparator.’” (Doc. 35 at 13). However, Smith does not assist Carter. The Smith plaintiff
was a white supervisory employee who was terminated for violating Lockheed’s “zero
tolerance” workplace conduct policy by forwarding a racially offensive email. Presented with
evidence that two black non-supervisors who transmitted an email offensive to whites were
not terminated, the district court concluded that the plaintiff failed to identify an appropriate
comparator because there was not a more favorably treated black supervisory employee.
See 644 F.3d at 1326.
The district court granted summary judgment for Lockheed, but the Eleventh Circuit
reversed. In doing so, the appellate court explained that “[i]f the record contained no
-16-

circumstantial evidence from which a jury could otherwise infer that [the plaintiff] was fired
because of his race, our discussion would end here, and we would affirm the district court’s
judgment.” 644 F.3d at 1327-28 (footnote omitted). The court then noted, however, that “the
plaintiff will always survive summary judgment if he presents circumstantial evidence that
creates a triable issue concerning the employer’s discriminatory intent.” Id. at 1328.
Continuing, the Smith panel opined that “[a] triable issue of fact exists if the record, viewed
in a light most favorable to the plaintiff, presents ‘a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the decisionmaker.’”
Id. (footnote omitted) (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011)).
The court concluded that the plaintiff in that case “did not need to rely on the McDonnell
Douglas presumption to establish a case for the jury” because “the record contained
sufficient evidence to allow a jury to infer that Lockheed fired [him] because he is white.” Id.
This Court does not read Smith as standing for the expansion of the concept of a
similarly-situated comparator as asserted by Carter. Instead, the court held that the plaintiff
in that case did not need to rely on the McDonnell Douglas prima facie case elements to
survive summary judgment because of other circumstantial evidence supporting an inference
of race-based discrimination.20

Carter has not identified a similarly-situated

comparator—one who engaged in the same misconduct but received more favorable

20

Moreover, in Smith the court noted that white non-supervisors were also terminated
and thus were treated less favorably than black non-supervisors, supporting an inference
that the plaintiff was also discriminated against because of his race and undermining the
defendant’s explanation that the plaintiff was treated more harshly because he was a
supervisor. See 644 F.3d at 1341-44. And, in Smith, the misconduct was identical—a
circumstance that Carter concedes does not exist in this case.
-17-

treatment—and thus he has not satisfied the third prima facie element.
Carter also argues that “the chaotic atmosphere of the [Narcotics] Unit” and the fact
that minority officers were more often used as undercover officers led to him and other
minority officers having to testify—as in the Stubbs case, for which he was ultimately
terminated for being found to have been untruthful. (Doc. 35 at 14). As the Sheriff aptly
notes, “[b]asically, Carter claims that if he was not African-American, he would not have been
working undercover, and he would not have been put in a position to lie about confidential
informants.” (Doc. 34 at 20 n.16).
Carter’s contentions in this regard are rejected. It is undisputed that there was a
chaotic atmosphere in the Narcotics Unit and that many troubling practices—from top to
bottom—were discovered during the PSD investigation of the entire unit. These included
improper report writing, failure to disclose and document informants, and an undue emphasis
on the number of arrests made.

Nevertheless, Carter has not presented evidence

suggesting that the investigation was conducted in any racially discriminatory way. Those
whose reports looked troubling were investigated, and those whose reports did
not—including at least two of the four black deputies in the Unit—were not investigated.
White employees were also criminally investigated and reported to the state attorney’s office,
and administrative allegations were sustained against whites as well. Carter has not
presented “a convincing mosaic of circumstantial evidence”21 as in Smith,22 and his claim

21

Carter has not identified any direct evidence of discrimination, which is defined as
“evidence that establishes the existence of discriminatory intent behind the employment
decision without any inference or presumption.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1330 (11th Cir. 1998). He does identify, as circumstantial evidence, one comment
-18-

does not survive summary judgment on this basis either.
Even if Carter had presented a prima facie case of race-based disparate treatment
with regard to his arrest or termination, the Sheriff has presented a legitimate
nondiscriminatory reason for these actions—its investigation of several cases involving
alleged misconduct by Carter, which led to the conclusion by the Sheriff’s Office that there
was probable cause to believe that Carter had committed perjury and, ultimately, that Carter
had indeed committed most of the policy infractions charged. Thus, the Sheriff is entitled to
summary judgment unless Carter presents evidence creating a genuine issue of material fact
regarding whether the Sheriff’s asserted reasons are a mere pretext for race discrimination.
See, e.g., Chapman, 229 F.3d at 1024-25 (“If the plaintiff does not proffer sufficient evidence
to create a genuine issue of material fact regarding whether each of the defendant
employer’s articulated reasons is pretextual, the employer is entitled to summary judgment
on the plaintiff’s claim.”).
In determining whether an issue has been raised as to pretext, this Court “must, in

allegedly made to him by Deisler. (See Doc. 35 at 13). According to Carter, during an
interview Deisler, acting unprofessionally and with an intimidating demeanor, told Carter that
it was going to go “[t]he same way your boy went down,” in apparent reference to Lane.
(Carter Dep. at 86). Deisler denies making this comment, (see Deisler Dep. at 103), but
even accepting Carter’s version of events, this isolated comment does not amount to a
“convincing mosaic of circumstantial evidence” sufficient to create a prima facie case. Even
Carter characterizes this remark as one that “could” be deemed a racist comment, (see Doc.
35 at 13), but one isolated, arguable remark is not enough. Carter also notes that he, Lane,
and Ortiz were the only officers terminated as a result of the investigation, but that fact also
fails to create an inference of race-based discrimination.
22

The facts of Smith are indeed highly distinguishable. As recounted in the Eleventh
Circuit’s opinion, there was a history of racial tension and violence at the company involved
there that is unlike any circumstance present in the record of the case at bar.
-19-

view of all the evidence, determine whether the plaintiff has cast sufficient doubt on the
defendant’s proffered nondiscriminatory reasons to permit a reasonable factfinder to
conclude that the employer’s proffered legitimate reasons were not what actually motivated
its conduct.” Combs, 106 F.3d at 1538 (citation and internal quotation omitted). This
determination involves an “evaluat[ion of] whether the plaintiff has demonstrated ‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could find
them unworthy of credence.’” Id. (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100
F.3d 1061, 1072 (3d Cir. 1996)). “The inquiry into pretext centers upon the employer’s
beliefs, and not the employee’s own perceptions of [her] performance.” Holifield, 115 F.3d
at 1565.
Under these standards, Carter has failed to present evidence creating a genuine issue
of material fact regarding pretext. See Tidwell v. Carter Prods., 135 F.3d 1422, 1427 (11th
Cir. 1998) (finding no issue raised as to pretext where evidence presented did “not provide
the needed ‘more than a mere scintilla of evidence’ to survive a motion for judgment as a
matter of law” and did “not present a substantial conflict in the evidence as to [the
employer’s] purported reason for terminating [the plaintiff] . . . as to support a jury question”).
Carter suggests that the Sheriff’s Office did not follow its progressive discipline
policy—Carter had not previously been issued any discipline—but Carter does not assert
that the “nonconformance to laws” violations that he was found to have committed, including
perjury during a trial, were not severe enough to warrant termination despite his lack of prior
discipline.
-20-

Carter also argues that “[t]he Sheriff’s justification [for his termination] has become
a ‘moving target,’” asserting that the Sheriff shifted from criminal allegations to, after the
state attorney dropped the Stubbs-based charges, policy violation allegations. (Doc. 35 at
16-17). However, the facts that the state attorney’s office dropped the criminal charge and
that the Sheriff’s Office thereafter administratively investigated Carter—along with the rest
of the Narcotics Unit—does not render the Sheriff’s proffered reason “a moving target.” On
the contrary, the reason for the Sheriff’s investigation and termination of Carter has remained
consistent, and the dismissal of the criminal charge due to an unavailable witness did not
preclude the Sheriff from administratively investigating the same conduct under its internal
standards.
Finally, Carter asserts that “the bulk of the performance issues identified by the Sheriff
were, in fact, the result of Carter’s training by his non-minority supervisors . . . , a fact
acknowledged even by Deisler.” (Doc. 35 at 17 (citing Deisler Dep. at 87)). The cited
deposition testimony of Deisler pertains to report writing; Deisler agreed that “[w]hat [Carter]
was doing with his reports was what everyone else was doing with their reports.” (Deisler
Dep. at 87). However, Carter was terminated because he was found to have violated
policies by being untruthful in trial and deposition testimony, not because he wrote his
reports in the manner that was found by PSD to be common—though improper—in the
Narcotics Unit.
In sum, Carter has not presented evidence creating a genuine issue of material fact
as to whether his arrest or termination was due to a race-based discriminatory animus. The
record evidence instead reflects that PSD investigated the entire Narcotics Unit after an
-21-

attorney complained about the conduct of another agent. Results of that investigation varied
from deputy to deputy, but there is no evidence of any race-based differentiation among
those who were investigated and disciplined.23 See Weston-Smith v. Cooley Dickinson
Hosp., Inc., 282 F.3d 60, 70 (1st Cir. 2002) (affirming summary judgment for employer,
noting that the “proffered reasons for [the plaintiff’s] termination are plausible and coherent,
and neither [the plaintiff’s] criticisms of those reasons nor her independent circumstantial
evidence of an improper motive, whether taken apart or together, are sufficient to require a
jury trial”). Accordingly, the Sheriff is entitled to summary judgment on Carter’s claim of
race-based arrest and termination.
B. Count II—Due Process
The due process claim that Carter brings in Count II is based on damage to his
reputation allegedly caused by the charges against him and their placement in his personnel
records. “While damage to reputation, standing alone, does not provide the basis for an
action under Section 1983, when such damage is sustained in connection with a termination
of employment . . . it may give rise to a claim for deprivation of liberty actionable under

23

Carter also avers that there was “an alarming trend towards terminating minority
officers” between 2004 and 2008, contending that 68% of the Sheriff’s Office employees
arrested during that time were minorities. (Doc. 35 at 15 (citing Sheriff’s Interrog. Resp. 1,
Ex. 2 to Doc. 35 at 3)). However, Carter does not explain how arrests correlate to
terminations, nor has he presented any evidence of why these employees were arrested,
who arrested them, or whether the Sheriff had any involvement whatsoever in them being
arrested. Moreover, Carter suggests only that “upon information and belief,” a majority of
sworn law enforcement officers—not even “employees” as stated in the interrogatory—during
that time period were non-minorities. (Id. at 15 & n.7). Carter’s attempt to rely on
inconsistent, nonprobative statistics is unavailing; this “data” does not present a triable issue
as to pretext either.
-22-

Section 1983.” Campbell v. Pierce Cnty., 741 F.2d 1342, 1344 (11th Cir. 1984) (citation
omitted). As the Sheriff correctly argues in its motion, however, this claim does not survive
summary judgment.
To establish a claim for deprivation of a liberty interest without due process of law, a
plaintiff must show: “(1) a false statement (2) of a stigmatizing nature (3) attending a
governmental employee’s discharge (4) made public (5) by the governmental employer (6)
without a meaningful opportunity for name clearing.” Buxton v. City of Plant City, 871 F.2d
1037, 1042-43 (11th Cir. 1989) (footnotes omitted). The Sheriff challenges Plaintiff’s
satisfaction of the first and last elements, asserting that no false statements are involved
here and that in any event Carter was afforded multiple name-clearing hearings.
First, the Sheriff argues that no false statement attendant to Carter’s termination was
published because the Sheriff’s Office determined that Carter committed policy violations.
In other words, the Sheriff avers that because it is literally true that the Sheriff’s Office
investigated Carter’s actions and concluded that he committed the alleged acts, no false
statement is in Carter’s personnel file. However, as noted by Carter, the Eleventh Circuit has
held in a similar case that a discharged deputy was entitled to a name-clearing hearing
where the published allegations evidenced the sheriff’s belief that the deputy had committed
a crime. See Andreu v. Sapp, 919 F.2d 637, 645 (11th Cir. 1990) (“The effect of the
defendants’ actions was to convey the message that [the plaintiff] was being considered for
discharge despite the dismissal [of criminal charges against him] because the defendants
thought he was guilty. . . . Under these circumstances, the plaintiff was entitled to a hearing
to allow him an opportunity to rebut the charges.”); accord Blair v. Martin Cnty. Sheriff’s
-23-

Dep’t, No. 92-14107-CIV-KEHOE, 1993 WL 757478, at *2 (S.D. Fla. Mar. 1, 1993)
(“Statements which impugn [a terminated employee’s] honesty and integrity trigger the
employee’s due process right to a name clearing hearing.” (alteration in original) (internal
quotation marks omitted)). Under Andreu, an issue of fact remains as to the falsity of the
statements in Carter’s personnel file, and summary judgment cannot be granted on this
basis.
The Sheriff also contends that even if the first five elements are met, Carter’s due
process claim fails on the sixth element because he was afforded multiple name-clearing
hearings. The Court cannot conclude that the hearings that Carter was afforded were
insufficient to satisfy due process, and for that reason the Sheriff is entitled to summary
judgment on this claim.
“[W]here a liberty interest arising from reputational damage is implicated, . . . [t]he
hearings granted in such cases serve not to avert the unjustified denial of a specific benefit,
but to allow the aggrieved party to ‘clear his name.’” Campbell, 741 F.2d at 1345 (quoting
Codd v. Velger, 429 U.S. 624, 627 (1977)). “In cases involving only liberty interests, the
courts have required only that the claimant be accorded notice of the charges against him
and an opportunity ‘to support his allegations by argument[,] however brief, and, if need be,
by proof, however informal.’” Id. (quoting Memphis Light, Gas & Water Div. v. Craft, 436
U.S. 1, 16 n.17 (1978)).
It is undisputed that Carter received two levels of review—an Administrative Review
Captain hearing and a Disciplinary Appeals Board hearing. Prior to both hearings, he
submitted material in support of his arguments, and he appeared in person at both hearings,
-24-

accompanied by counsel at the second. Carter challenges the Administrative Review
Captain hearing on the basis that Administrative Review Captain Carpenter allegedly did not
read the entire Administrative Investigation Report but makes no responsive argument
regarding the Disciplinary Appeals Board hearing. (See Doc. 35 at 18). The Court rejects
Carter’s contention that the hearings he was afforded were constitutionally inadequate, and
Count II fails.
C. Count III—Probable Cause for Arrest
In his final claim, Carter asserts that he was arrested without probable cause in
violation of the Fourth Amendment. In seeking summary judgment on this claim, the Sheriff
relies on the facially valid capias and also asserts that even absent the capias, probable
cause existed for Carter’s arrest. Because Carter was arrested pursuant to a capias
regarding which no constitutional impropriety has been shown, this claim fails.
It is undisputed that after conducting a criminal investigation regarding Carter’s
actions in the Stubbs case, Stough submitted her criminal investigation Incident Report and
a charging affidavit to the state attorney’s office for its consideration. It is further undisputed
that the state attorney’s office then sought a capias from the circuit court, and the court
issued the capias. When Carter learned of the capias, he turned himself in at the Sheriff’s
Office and was arrested by Stough and Deisler on that capias.24
The Sheriff’s Office thus played two distinct roles in Carter’s arrest—it arrested him

24

Cf. Albright v. Oliver, 510 U.S. 266, 271 (1994) (noting that petitioner’s surrender
upon learning of warrant issued for his arrest “constituted a seizure for purposes of the
Fourth Amendment”).
-25-

after issuance of the capias, and it also prepared the charging affidavit and investigative
report that was presented to the state attorney’s office prior to the issuance of the capias.
Carter’s Fourth Amendment claim clearly fails to the extent it is based solely on the former
event. An arrest on a facially valid capias will not support a false arrest claim. See, e.g.,
Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir. 1982) (“Where an arrest is made under
authority of a properly issued warrant, the arrest simply is not a false arrest.”). As Carter
acknowledged in his deposition, the Sheriff’s Office could not legally ignore a capias that
directed that an accused be arrested. (Carter Dep. at 238).
Carter asserts, however, that the charging affidavit falsely accused him of committing
perjury and that the Sheriff can be held liable on that basis. In support, Carter relies on
Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir. 2008), which involved the
investigation, arrest, and prosecution of three police officers. In addressing the city’s
argument that the prosecutor’s filing of a criminal complaint immunized the investigating
officers from a false arrest claim because it is presumed that the prosecutor exercised
independent judgment in determining that probable cause existed, the Ninth Circuit noted
that “[a] § 1983 plaintiff may rebut this presumption . . . by ‘showing that the district attorney
was pressured or caused by the investigating officers to act contrary to his independent
judgment.’” Id. at 1027 (quoting Smiddy v. Varney, 655 F.2d 261, 266 (9th Cir. 1981)).
The Harper court found that the presumption of independent prosecutorial judgment
was rebutted in that case, noting “unrebutted testimony that the District Attorney was not, in
fact, ‘independent’ but worked ‘hand-in-hand’ with the [investigating] Task Force throughout
the investigation”—entitling the jury “to believe that the Task Force and District Attorney were
-26-

engaged in an essentially joint investigation, which interfered with the District Attorney’s
independent judgment and tainted the prosecution’s ultimate decision to file charges.” Id.
at 1027-28. The court also noted evidence that “the Task Force improperly exerted pressure
on the District Attorney’s office and failed to turn over evidence.” Id. at 1028.
Carter contends that “Harper is analogous” because Stough testified in her deposition
that the Sheriff’s Office generally dealt with two prosecutors—including those involved in this
case—most of the time. (Doc. 35 at 20 (citing Stough Dep. at 21)). Carter avers that “a jury
could reasonably conclude [that] the State Attorney did rely almost entirely on Stough and
Deisler’s [administrative investigation] due to the working relationship between the Sheriff
and State Attorney.” (Id.).
Carter’s reliance on Harper is misplaced. Even if that Ninth Circuit decision were
binding on this Court, which it is not, it is factually distinguishable. The fact that the Sheriff’s
Office generally dealt with the two prosecutors at issue in submitting charging affidavits is
not akin to the evidence of a “joint investigation” as in Harper. Carter has not identified any
evidence—as opposed to pure conjecture—that the state attorney’s office was involved with
PSD in the investigation of Carter or that anyone at the Sheriff’s Office pressured the state
attorney’s office to file criminal charges.25 Harper does not support denial of summary
judgment on Count III.
Carter also alleges that probable cause was lacking because Stubbs and Susan were

25

Indeed, as earlier noted, in the two other cases that PSD submitted to the state
attorney’s office regarding Carter, the state attorney’s office declined to prosecute, as it did
with some cases involving other deputies.
-27-

not reasonably trustworthy and could not provide a basis for probable cause, but Carter’s
assertions fall short of meeting the legal standard for imposition of liability. The exception
to the general rule governing arrests pursuant to a warrant is that “[a] magistrate’s issuance
of the warrant will not shield an officer when the warrant affidavit is ‘so lacking in indicia of
probable cause as to render official belief in its existence unreasonable,’ nor will it shield an
officer when the underlying affidavit includes deliberate and reckless misstatements and
omissions.” Miller v. Prince George’s Cnty., 475 F.3d 621, 632 (4th Cir. 2007) (quoting
Malley v. Briggs, 475 U.S. 335, 345 (1986)); accord Mannoia v. Farrow, 476 F.3d 453, 458
(7th Cir. 2007) (explaining that where defendant was arrested pursuant to a facially valid
warrant, detective could violate defendant’s rights “only if a reasonable well-trained officer
in [detective’s] position should have known that the information he provided in support of the
warrant would have failed to establish probable cause and that he should not have applied
for the warrant in the first place”).
Carter has not established that the charging affidavit was “so lacking in indicia of
probable cause as to render official belief in its existence unreasonable,” nor has he
identified “deliberate and reckless misstatements and omissions” in the charging affidavit.
In that affidavit, Stough reported the facts known to her at the time, and Carter has not
presented a basis for invalidating the arrest made pursuant to the capias. The Sheriff is
entitled to summary judgment on Count III.
IV. Conclusion
Carter continues to maintains his innocence of all criminal and administrative charges,
and most of his arguments involve alleged flaws with the Sheriff’s Office’s investigations and
-28-

review decisions, including credibility determinations. It is not, however, the task of this
Court to assess wholesale the investigative methods or findings of the Sheriff’s Office. The
only issues before this Court are whether Carter’s claims of violations of his federal rights
survive summary judgment. As set forth herein, they do not.
Accordingly, it is ORDERED and ADJUDGED as follows:
1.

Defendant’s Case-Dispositive Motion for Summary Judgment (Doc. 34) is

GRANTED as to all of Plaintiff’s claims.
2. Any other pending motions are DENIED as moot.
3. The Clerk is directed to enter a judgment providing that Plaintiff takes nothing on
any of his claims against Defendant. Thereafter, the Clerk shall close this case.
DONE and ORDERED in Orlando, Florida this 20th day of September, 2013.

Copies furnished to:
Counsel of Record

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