Perez v. Harrelson et al
Filing
56
ORDER granting in part and denying in part 36 Motion to Dismiss. On or before Monday, March 21, 2016, Plaintiff may file a Second Amended Complaint consistent with the strictures of this Order. Signed by Judge Roy B. Dalton, Jr. on 3/7/2016.(SN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAVIER PEREZ,
Plaintiff,
v.
Case No. 6:15-cv-879-Orl-37GJK
BOBBY CRAIG HARRELSON, JR.;
CONSTANTINE PROCOS; and
JOSHUA SANTOS,
Defendants.
ORDER
This cause is before the Court on:
1. Defendants’, Constantine Procos and Joshua Santos, Motion to Dismiss
Plaintiff’s Amended Complaint and Incorporated Memorandum of Law
(Doc. 36), filed August 13, 2015.
2. Response to Defendant[s] Constantive [sic] Procos and Santos [sic] Motion to
Dismiss Plaintiffs [sic] Complaint (Doc. 40), filed September 16, 2015. 1
Upon consideration, the Court finds that the motion is due to be granted in part and denied
in part.
1
As an initial matter, Plaintiff’s response was grossly untimely. Plaintiff’s response
was due on August 31, 2015. See Local Rule 3.01(b) (allocating fourteen days to
respond); Fed. R. Civ. P. 6(d) (allocating an additional three days to respond). Without
any justification, Plaintiff responded more than two weeks after the applicable deadline.
(Doc. 40 (“Response”).) Consequently, the Court did not consider the Response in ruling
on the Motion. Going forward, counsel is warned that failure to abide by the deadlines set
forth in the Federal Rules of Civil Procedure, the Local Rules, and the Court’s Case
Management and Scheduling Orders may result in the striking of late filings or the
consideration of motions with late responses as unopposed.
BACKGROUND 2
On January 22, 2012, in DeLand, Florida, Plaintiff Javier Perez (“Plaintiff”) and his
friends, Leobigildo Espinoza and Arnulfo Mendoza, (collectively, “the Men”) used a BB
gun (“BB Gun”) to shoot at an orange in Plaintiff’s backyard. (Doc. 30, ¶ 7.) A neighbor
saw the Men shooting the orange and called 911 (“911 Call”). (Id.) The neighbor falsely
reported to 911 that the Men had aimed a rifle at her and her property. (Id. ¶ 9.) Three
DeLand Police Department officers—Bobby Craig Harrelson, Jr. (“Officer Harrelson”),
Constantine Procos (“Officer Procos”), and Joshua Santos (“Officer Santos”)
(collectively, “the Officers”)—reported to the scene. (Id.)
After the 911 Call, but before the Officers arrived, the Men ceased shooting the
orange and placed the BB Gun on top of an unplugged stove located outside Plaintiff’s
house. (Id. ¶ 8.) They did not touch the BB gun again. (Id.) The Men remained in Plaintiff’s
backyard, sitting around and talking. (Id. ¶ 9.)
The Officers subsequently arrived on the scene. (Id.) The Officers did not
announce themselves, but instead, formed a perimeter behind the fence around Plaintiff’s
backyard, without his knowledge. (Id., see also id. ¶ 12.) The Officers observed the BB
Gun on the stove. (Id. ¶ 10.) At this time, Plaintiff and Espinoza were sitting behind the
stove and had no access to the BB Gun. (Id.) Mendoza stood twenty feet away from the
stove, watering a garden. (Id.)
Officer Harrelson began shooting at the Men, “fir[ing] numerous rounds” and
injuring them (“the Shooting”). (Id. ¶ 11.) Plaintiff sustained injuries to his right bicep,
2
The following facts are taken from Plaintiff’s Amended Complaint (Doc. 30), taken
as true, and construed in the light most favorable to Plaintiff. See Hill v. White,
321 F.3d 1334, 1335 (11th Cir. 2003).
2
right shoulder, and face. (Id.) Officer Harrelson also caused property damage to Plaintiff’s
house and to personal property in his backyard. (Id.) A bullet was also gouged through
the BB Gun. (Id.)
Officers Santos and Procos (“Standby Officers”) stood by and watched the
Shooting take place and failed to take any action to intervene. (Id. ¶ 12.) The Standby
Officers never saw Plaintiff lift, aim, or shoot the BB Gun, which remained on the stove
during the Shooting (id. ¶¶ 11, 12).
The Officers subsequently lied under oath, falsified police records, and signed
sworn documents regarding the Shooting, which led to Plaintiff’s arrest, incarceration, and
prosecution for aggravated assault of a law enforcement officer. (Id. ¶ 13.) Plaintiff spent
three years and three months in the Volusia County Jail awaiting a jury trial. In the interim,
Plaintiff incurred legal fees among other damages. (Id.) Ultimately, a jury found Plaintiff
not guilty of aggravated assault of a law enforcement officer. (Id.)
Based on the foregoing, Plaintiff filed a civil rights action against the Officers
pursuant to 42 U.S.C. § 1983. (See Doc. 1.) In his Amended Complaint (hereinafter,
“Complaint”), Plaintiff asserts separate § 1983 claims for excessive force, false
arrest/false imprisonment, and malicious prosecution against each Officer in their
individual capacities. (Doc. 30.) The Standby Officers move to dismiss Counts IV through
IX of the Complaint on grounds of qualified immunity and failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6). (Doc. 36.) The Court now takes the matter
under consideration.
3
STANDARDS
I.
Pleading Standards
Rule 8(a)(2) provides that a claimant must plead “a short and plain statement of
the claim.” On a motion to dismiss pursuant to Rule 12(b)(6), the Court limits its
consideration to “the well-pleaded factual allegations.” La Grasta v. First Union Sec., Inc.,
358 F.3d 840, 845 (11th Cir. 2004). The factual allegations in the complaint must “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In making this plausibility determination, the Court must accept the factual
allegations as true; however, this “tenet . . . is inapplicable to legal conclusions.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers mere “labels and conclusions”
is therefore insufficient. Twombly, 550 U.S. at 555.
II.
42 U.S.C. § 1983 and Qualified Immunity
Section 1983 provides aggrieved persons with a procedural mechanism to seek
redress for constitutional violations that are committed while a defendant is acting under
color of state law. 42 U.S.C. § 1983. Acts performed by law enforcement officers—even
if illegal or unauthorized—are considered to have been performed under color of state
law so long as the acts are done in the defendant’s capacity as a law enforcement officer.
See West v. Atkins, 487 U.S. 42, 49–50 (1988). To avoid an individual liability claim under
§ 1983, law enforcement officers may invoke the defense of qualified immunity, which
protects “all but the plainly incompetent or one who is knowingly violating federal law.”
See Depalis-Lachaud v. Noel, 505 F. App’x 864, 867 (11th Cir. 2013). Courts should
resolve qualified immunity issues at the pleading stage, if possible. See Pearson v.
Callahan, 555 U.S. 223, 232 (2009).
4
“[T]o 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.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). “Once the defendant
establishes that he was acting within his discretionary authority, the burden shifts to the
plaintiff to show that qualified immunity is not appropriate.” Id.; see also Terrell v. Smith,
668 F.3d 1244, 1250 (11th Cir. 2012). To do so, the plaintiff must make the following twopart showing: (1) that the facts of the case make out a violation of a constitutional right;
and (2) that the constitutional right was “clearly established” at the time of the putative
misconduct. 3 See Pearson, 555 U.S. at 232. “This inquiry is undertaken in light of the
specific context of the case, not as a broad general proposition.” Terrell, 668 F.3d at 1250
(citation omitted). “When conducting a qualified immunity analysis, district courts must
take the facts in the light most favorable to the party asserting the injury.” Robinson v.
Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005). This construction “eliminates all issues
of fact” such that “the court has the plaintiff’s best case before it.” Id.
DISCUSSION
Counts IV through IX of the Complaint assert identical claims against the Standby
Officers for: (1) excessive force based on a failure-to-intervene theory (Counts IV and
VII); (2) false arrest/false imprisonment (Counts VI and IX); (3) and malicious prosecution
(Counts V and VIII). 4 (Doc. 30, ¶¶ 46–110.) The Standby Officers contend that they are
3
The Court may address the prongs of the qualified immunity inquiry in any order.
Pearson, 555 U.S. at 236. However, the United States Supreme Court encourages courts
to address the constitutional violation prong first so as to develop a body of clearly
established law on the often fact-specific inquiries that arise in the context of § 1983
claims. See id.
4 The Complaint incorrectly labels two counts as “Count VII.” The Court’s citation
to the counts in this Order reflects the correct numbering.
5
entitled to qualified immunity on the foregoing counts because Plaintiff failed to sufficiently
allege constitutional violations. (Doc. 36, p. 4.) Specifically, the Standby Officers argue
that: (1) Plaintiff fails to allege that they personally engaged in conduct that directly
violated Plaintiff’s clearly established constitutional rights; and (2) Plaintiff fails to state a
claim for excessive force, false arrest/false imprisonment, or malicious prosecution (id.
at 5–11.) The Court will discuss the viability of each claim in turn.
I.
Excessive Force Claims (Counts IV and VII)
The Standby Officers move for dismissal of Plaintiff’s excessive force claims on
the grounds that: (1) neither Standby Officer “participat[ed] in any use of unlawful
excessive force” (“No Participation Argument”); (2) “the alleged use of deadly force by
[Officer] Harrelson was not objectively unreasonable under the circumstances” (“No
Excessive Force Argument”); and (3) even if Officer Harrelson had employed excessive
force, the Standby Officers did not “witness[] any excessive force firsthand” or have ample
time or justification to intervene (“No Opportunity to Intervene Argument”). (Doc. 36,
pp. 4–6.)
A.
No Participation Argument
The Standby Officers’ No Participation Argument is not well taken. The crux of
Plaintiff’s excessive force claims against the Standby Officers is that the Standby Officers
failed to intervene in the Shooting, not that they personally used any unlawful force
against Plaintiff. (See Doc. 30, ¶¶ 51, 84.) An officer need not personally use force to be
liable for an excessive force claim. See Priester v. City of Riviera Beach, Fla., 208 F.3d
919, 924–25 (11th Cir. 2000) (recognizing that an officer may be liable for failing to
intervene when another officer uses excessive force). The Court, therefore, rejects the
6
Standby Officers’ No Participation Argument.
B.
No Excessive Force Argument
Next, the Standby Officers maintain that Officer Harrelson was not using excessive
force. (See Doc. 36, p. 7.) Ergo, they argue—correctly—that if Officer Harrelson was not
using excessive force, then the claims against them must fail. (Id.); see also Crenshaw v.
Lister, 556 F.3d 1283, 1294 (11th Cir. 2009) (recognizing that a claim for failure to
intervene must be based on a sufficiently pled claim for excessive force). For purposes
of a Rule 12(b)(6) attack, however, the Complaint sufficiently alleges that Officer
Harrelson violated Plaintiff’s clearly established constitutional right to be secure in his
person and free from the use of unreasonable and excessive force.
It is undisputed that Officer Harrelson was acting within his discretionary authority
at all relevant times; thus, the Court must afford him qualified immunity unless the factual
allegations in the Complaint—viewed in the light most favorable to Plaintiff—support
reasonable inferences that: (1) Officer Harrelson’s conduct during the Shooting violated
the Fourth Amendment; and (2) the illegality of such conduct “was clearly established” on
the date of the Shooting—January 22, 2012. See Epps v. Watson, 492 F.3d 1240, 1243
(11th Cir. 2007) (noting that a defendant is entitled to qualified immunity unless “the
plaintiff’s allegations state a claim of violation of clearly established law”). The Court finds
that they do.
As pled, Officer Harrelson’s conduct during the Shooting violated the Fourth
Amendment because it was an unconstitutional application of deadly force. The Eleventh
Circuit has clearly proscribed that a police officer may use deadly force only where the
police officer:
7
(1) has probable cause to believe that the suspect poses
a threat of serious physical harm, either to the officer or to
others or that he has committed a crime involving the
infliction or threatened infliction of serious physical harm;
(2) reasonably believes that the use of deadly force was
necessary to prevent escape; and (3) has given some
warning about the possible use of deadly force, if feasible.
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009) (quoting Vaughan v. Cox,
343 F.3d 1323, 1329–30 (11th Cir. 2003)). Such factors frame the Court’s analysis under
an objective reasonableness standard. Id. at 1205.
The Standby Officer’s contend that Officer Harrelson had arguable probable cause
to believe that the Men posed an imminent threat of danger to the Officers or others
(Doc. 36, p. 6), but they fail to establish the remaining factors necessary to justify Officer
Harrelson’s use of deadly force. Indeed, the facts alleged in the Complaint demonstrate
that the Men were neither attempting to escape nor given any warning that the Officers
had arrived and were posed to use deadly force. Therefore, the Complaint alleges facts
which, if true, would permit a jury to determine that Officer’s Harrelson’s use of deadly
force was objectively unreasonable under the circumstances.
Additionally, Plaintiff’s right to be free from the use of such excessive force was
clearly established on January 22, 2012. If the “state of the law” provided the defendant
officer with “fair warning that [his] alleged treatment [of the plaintiff] was unconstitutional,”
then the right is “clearly established” for purposes of a qualified immunity analysis. See
Hope v. Pelzer, 536 U.S. 730, 741 (2002); Anderson v. Creighton, 483 U.S. 635, 640
(1987). Since the early 1980s, the law has been clear that “shooting a suspected felon
who was apparently neither fleeing nor threating the officers or others [is] . . . an
unreasonable seizure and clearly violate[s] Fourth Amendment law.” Lundgren v.
8
McDaniel, 814 F.2d 600, 603 (11th Cir. 1987). Thus, Officer Harrelson had fair warning
that it was a Fourth Amendment violation to shoot numerous rounds at Plaintiff, who was
neither fleeing nor threating others (see Doc. 30, ¶¶ 8, 11).
The circumstances alleged in the case at bar are analogous to those presented in
St. George v. Pinellas County. 285 F.3d 1334 (11th Cir. 2002). In finding that the St.
George officers were not entitled to qualified immunity at the motion to dismiss stage, the
court considered, inter alia, the following alleged facts: (1) the officer fired shots through
the decedent’s kitchen window without informing himself of what the decedent was doing;
(2) the decedent—who was holding a holstered gun at his side while opening the
refrigerator door—was neither threatening the officer, nor in a position of flight; and (3) the
decedent was not facing the officer when he was shot. Id. at 1338. Here, Plaintiff alleges
that the Men were sitting in the backyard of Plaintiff’s residence, which was enclosed by
fence (see Doc. 30, ¶¶ 7, 10); thus, they were not in a position of flight. Officer Harrelson
fired shots from behind the fence without inquiring as to what the Men were doing or
warning them of his presence. (See id. ¶¶ 10, 11.) Lastly, the Men were not threatening
the Officers as the BB Gun, sitting on a nearby appliance, was out of their reach. (See id.
¶¶ 8, 10.) These circumstances render the instant action sufficiently analogous to St.
George; as such, Officer Harrelson had fair warning that the Shooting was unlawful. The
Court, therefore, finds that Officer Harrelson is not entitled to qualified immunity at this
stage of the proceedings. Consequently, the Standby Officers’ No Excessive Force
Argument fails.
C.
No Opportunity to Intervene Argument
Finally, the Standby Officers contend that Plaintiff fails to state a claim for failure
9
to intervene. (Doc. 36, pp. 6–8.) The Court agrees.
Though an officer may be liable for failing to intervene when another officer uses
excessive force, liability “only arises when the officer is in a position to intervene and fails
to do so.” Priester, 208 F.3d at 924–25. An officer may be in a position to intervene when
an unconstitutional use of force occurs in the officer’s presence and is prolonged or
anticipated by the officer. See id. (holding bystander officer liable based on evidence that
he was at the scene with a flashlight and was in “voice contact” with the co-defendant
officer during a two minute K-9 officer attack); see also Ensley v. Soper, 142 F.3d 1402,
1407–08 (11th Cir.1998) (finding no liability absent evidence that the defendant “had an
opportunity to observe or halt” the excessive force).
The Standby Officers argue that Plaintiff’s factual allegations fail to demonstrate
that they were in a position to see any force used by Officer Harrelson or that they had
ample time, ability, or justification to intervene. (Doc. 36, p. 7.) Plaintiff alleges that:
(1) upon their arrival at his residence, the Officers formed a perimeter around Plaintiff’s
backyard without Plaintiff’s knowledge and without announcing themselves; (2) the
Officers observed the BB Gun sitting on the stove; (3) the BB Gun never left the top of
the stove; (3) during this time, the Men never touched the BB Gun, which was beyond
their reach; (4) Officer Harrelson began firing numerous rounds at the Men, causing them
injury; and (5) the Standby Officers watched the Shooting take place and failed to take
any action to stop Harrelson from firing the shots. (Doc. 30, ¶¶ 9, 10, 12.)
Here, Plaintiff sufficiently alleges that the Shooting took place in the Standby
Officers’ presence and that they “had an opportunity to observe . . . excessive force
directed at [Plaintiff].” See Ensley, 142 F.3d at 1407–08. Plaintiff, however, fails to allege
10
that the Standby Officers were in a positon to intervene. Notably, the Complaint is devoid
of any allegations as to: (1) the duration of the Shooting; or (2) the relative location of the
Standby Officers to that of Officer Harrelson. The absence of such allegations warrants
dismissal of Counts IV and VII. See Terry v. Bailey, 376 F. App’x 894, 896 (11th Cir. 2010)
(finding that the plaintiff’s failure to allege facts indicating the duration of the alleged
constitutional violation or that the defendants were positioned in a manner that would
have allowed them to intervene was fatal to the plaintiff’s claim for failure to intervene).
Because Plaintiff could conceivably allege facts to cure these deficiencies, the Court will
provide him an opportunity to replead, pursuant to the limitations set forth in Rule 11. See
Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir.1985) (“A district court should give a
plaintiff an opportunity to amend his complaint rather than dismiss it when it appears that
a more carefully drafted complaint might state a claim upon which relief could be
granted.”)
II.
False Arrest/False Incarceration Claims (Counts VI and IX)
A warrantless arrest without probable cause violates the Constitution and provides
a basis for a § 1983 false arrest claim. Kingsland v. City of Miami, 382 F.3d 1220, 1226
(11th Cir. 2004). A detention on the basis of a false arrest presents a viable § 1983 false
imprisonment claim. Ortega v. Christian, 85 F.3d 1521, 1526 (11th Cir. 1996). The
existence of probable cause at the time of arrest, however, constitutes an absolute bar to
a §1983 action for false arrest. 5 Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th
5
Similarly, because “a claim of false imprisonment, absent misidentification,
depends on an absence of probable cause,” Plaintiff’s claim for false imprisonment
wil also fail if the Officers had probable cause to arrest him. Case v. Eslinger, 555 F.3d
1317, 1330 (11th Cir. 2009).
11
Cir. 2004). A police officer may also be held liable under § 1983 for submitting an
application for an arrest warrant that contains false information. Holmes v. Kucynda,
321 F.2d 1069, 1083 (11th Cir. 2003).
The Standby Officers move for dismissal of Plaintiff’s claims for false arrest and
false imprisonment because: (1) Plaintiff was arrested pursuant to a judicially-issued
warrant (“Warrant”), which they argue constitutes a conclusive showing of probable
cause; (2) neither Standby Officer participated in procuring the Warrant or effectuating
Plaintiff’s arrest; and (3) several factual allegations within the Complaint demonstrate
probable cause for the arrest. (Doc. 36, pp. 8–10.) The Court is unpersuaded.
A. Warrant
The Standby Officers first assert that they had conclusive probable cause because
Plaintiff was arrested pursuant to a Warrant, which they submit to the Court as part of
Plaintiff’s public criminal records (“Submission”). 6 (Doc. 36, pp. 9, 13–14.)
The Submission does not constitute a conclusive finding of probable cause
because, according to Plaintiff, the Officers knowingly submitted false information to
obtain the Warrant. (Doc. 1, ¶ 13.) At this stage of the litigation, these allegations must
be taken as true. See Hill, 321 F.3d at 1335. Consequently, the Standby Officers’ reliance
on the Warrant is insufficient to escape liability. See Holmes, 321 F.2d at 1083; Crisante
v. Coats, No. 8:11-cv-2007-T-17TBM, 2012 WL 1565424, at *8 (M.D. Fla. May 2, 2012).
6
Although the Court is ordinarily limited to the four corners of the complaint in
considering a motion to dismiss, “a district court may take judicial notice of matters of
public record without converting a Rule 12(b)(6) motion into a Rule 56 motion.” Halmos
v. Bomardier Aerospace Corp., 404 Fed. App’x 376, 377 (11th Cir. 2010) (citing Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (11th Cir. 1999)).
12
B. Participation in Arrest
The Standby Officers also assert that the Complaint lacks any factual allegations
to demonstrate that they participated in either procuring the Warrant or effectuating
Plaintiff’s physical arrest. (Doc. 36, pp. 9–10.) Not so. Plaintiff alleges that all three
Officers “falsified arrest and police reports,” “lied under oath,” and otherwise fabricated
police records, which led to Plaintiff’s arrest. (Doc. 30, ¶ 30.) Additionally, Plaintiff alleges
that the Standby Officers assisted in handcuffing and arresting Plaintiff. 7 (Id., ¶¶ 51, 84.)
These allegations are sufficient to demonstrate that the Standby Officers participated in
procuring the Warrant and procuring Plaintiff’s physical arrest.
C. Allegations Within the Complaint
Finally, the Standby Officers contend that the following allegations establish that
probable cause existed for Plaintiff’s arrest: (1) the neighbor called and notified law
enforcement that the Men were aiming a rifle at her and her property; (2) the BB Gun was
in plain sight; (3) Plaintiff was “surrounding” the BB Gun; and (4) the Men had been
shooting the BB gun at Plaintiff’s residence earlier that day. (Doc. 36, p. 10.) This
argument also fails.
Probable cause exists if, “at the moment the arrest was made, ‘the facts and
circumstances within [the officers'] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing’ that [the
suspect] had committed or was committing an offense.” Holmes, 321 F.2d at 1079.
7
To be sure, these allegations were included in Counts IV and VII—Plaintiff’s
claims for excessive force. Such allegations would have more appropriately been
included in Counts VI and IX—Plaintiff’s claims for false arrest/false imprisonment.
However, as Counts IV and VII were also directed at the Standby Officers, they were
adequately put on notice of Plaintiff’s allegations as to their involvement in his arrest.
13
Additionally, arguable probable cause—which is all that is required to entitle an officer to
qualified immunity—exists “where reasonable officers in the same circumstances and
possessing the same knowledge as the [Officers] could have believed that probable
cause existed to arrest.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). Therefore,
“if arguable probable cause is evident on the face of a complaint, then pre-discovery
dismissal is appropriate based on qualified immunity.” Bloom v. Alvereze, 498 F. App'x
867, 880 (11th Cir. 2012).
Here, Plaintiff was arrested for aggravated assault of a law enforcement officer.
(Doc. 1, ¶ 13.) Therefore, the Standby Officers must point to allegations in the Complaint
that establish probable cause, or arguable probable cause, for this particular crime.
Aggravated assault of a law enforcement officer consists of the following elements:
(1) an intentional unlawful threat by word or act to do violence to a law enforcement
officer; (2) the apparent ability to carry it out; (3) the creation of a well-founded fear that
the violence is imminent; and (4) specific intent to do violence to a law enforcement officer.
Swift v. State, 973 So.2d 1196, 1199 (Fla. 2d DCA 2008). The allegations in the Complaint
do not demonstrate any of the requisite elements for this crime. Indeed, Plaintiff alleges
that the Men were unaware of the Officers’ presence until the Shooting began and never
touched—nor were within reach of—the BB Gun after the Officers arrived. (Doc. 30, ¶¶ 9,
10.) Accepting these allegations as true, it is readily apparent that no prudent or
reasonable officer could have believed that probable cause existed to arrest Plaintiff for
aggravated assault of a law officer under these circumstances.
In light of the foregoing, the Motion is due to be denied as to Counts VI and IX.
14
III.
Malicious Prosecution (Counts VI and VIII)
The Standby Officers also contend that Plaintiff fails to state claims for malicious
prosecution. (Doc. 36, pp. 10–12.) “To establish a § 1983 malicious prosecution claim,
the plaintiff must prove two things: (1) the elements of the common law tort of malicious
prosecution; and (2) a violation of his Fourth Amendment right to be free from
unreasonable seizures.” Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010).
In Florida, the common law tort of malicious prosecution requires Plaintiff to demonstrate
that: (1) a proceeding commenced against the plaintiff; (2) the defendant was the legal
cause of the proceeding; (3) the proceeding terminated in the plaintiff’s favor; (4) there
was no probable cause for the proceeding; (5) the defendant acted with malice; and
(6) the plaintiff suffered damages as a result of the proceeding. Williams v. Miami-Dade
Police Dep’t, 297 F. App’x 941, 946 (11th Cir. 2008). Here, only the second and fifth
factors of common law malicious prosecution are at issue.
The Standby Officers first argue that Plaintiff does not allege sufficient facts to
show that they were the legal cause of the proceeding against Plaintiff. (Id. at 11.) The
Court disagrees. Plaintiff alleges that the Officers “lied under oath,” “falsified police
records,” and “signed sworn documents including arrest and or police reports which
caused the Plaintiff to be arrested, incarcerated for almost three years, and prosecuted
by the State of Florida.” (Doc. 30, ¶ 13.) Such allegations are sufficient to demonstrate
that the Standby Officers were the legal cause of the proceeding against Plaintiff.
The Court also rejects the Standby Officers’ contention that Plaintiff fails to
sufficiently allege that they acted with malice. (Doc. 36, p. 11.) In addition to averring
malice generally (Doc. 30, ¶¶ 61, 93), Plaintiff alleges that the Standby Officers knew that
15
the police reports and statements indicating that Plaintiff had committed a crime were
false but failed to come forward with this information. (Id. ¶¶ 63, 95.) Because malice may
be alleged generally, Fed. R. Civ. P. 9(b), the Court finds that the Complaint more than
sufficiently alleges malice on the part of the Standby Officers. Thus, the Motion is due to
be denied as to Plaintiff’s malicious prosecution claims.
As a final matter, the Court finds that, at this stage of the litigation, the Standby
Officers are not entitled to qualified immunity on Plaintiff’s false arrest, false
imprisonment, and malicious prosecution claims. In Kingsland, which was decided in
2004, the Eleventh Circuit held that “falsifying facts to establish probable cause is patently
unconstitutional” and was so long before the Kingsland plaintiff’s arrest in 1995.
Kingsland, 382 F.3d at 1232. By extension, the illegality of such conduct was also clearly
established on January 22, 2012. However, the Standby Officers are not precluded from
reasserting this defense at the close of discovery, if warranted.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Defendants’, Constantine Procos and Joshua Santos, Motion to Dismiss
Plaintiff’s Amended Complaint and Incorporated Memorandum of Law
(Doc. 36) is GRANTED IN PART AND DENIED IN PART.
a.
b.
2.
Counts IV and VII are DISMISSED WITHOUT PREJUDICE.
In all other respects, the Motion is DENIED.
On or before Monday, March 21, 2016, Plaintiff may file a Second Amended
Complaint consistent with the strictures in this Order. Failure to timely file
will result in dismissal of Counts IV and VII with prejudice.
16
DONE AND ORDERED in Chambers in Orlando, Florida, on March 7, 2016.
Copies:
Counsel of Record
17
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