Darnell v. Rivera et al
Filing
58
ORDER granting 56 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 5/25/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JASON DARNELL,
Plaintiff,
v.
Case No: 6:15-cv-999-Orl-37TBS
ALEJANDRO RIVERA; ALPHONSO
WILLIAMS; JOHN DOES 1–5; DAVID
OGDEN; and the TOWN OF
WINDERMERE,
Defendants.
ORDER
This matter is before the Court on the following:
1.
Defendants Town of Windermere and David Ogden’s Motion to Dismiss
Plaintiff’s First Amended Complaint and Supporting Memorandum of Law
(Doc. 56), filed March 30, 2016; and
2.
Plaintiff’s Memorandum of Law in Opposition to Defendants Town of
Windermere and David Ogden’s Motion to Dismiss First Amended
Complaint (Doc. 57), filed April 13, 2016.
BACKGROUND 1
Jason Darnell served as a police officer with the Windermere Police Department
(“WPD”) from September 2008 until his suspension in November 2012. (See Doc. 48
¶ 15.) In 2012, Plaintiff was assigned as a Field Training Officer to newly hired officer,
1
The following facts are taken from Plaintiff’s Amended Complaint (Doc. 48), taken
as true, and construed in the light most favorable to Plaintiff. See Hill v. White,
321 F.3d 1334, 1335 (11th Cir. 2003).
Alejandro Rivera (“Officer Rivera”). Around that time, a leadership vacuum developed
within the WPD due to the departure of Police Chief Daniel Saylor (“Police Chief
Saylor”), which precipitated the emergence of intra-departmental rivalry and unsavory
practices. (Id. ¶¶ 17–18.) One of those practices included the filing of frivolous internal
affairs complaints against rival officers in an attempt to remove them from the WPD. (Id.
¶ 26.)
In the summer of 2012, Plaintiff and fellow WPD officers Robert German and Ryan
Miller approached the Windermere Town Council (the “Town Council”) and informed its
members about the emergence of unethical practices within the WPD. (Id. ¶ 25.) In
retaliation,
Officer
Rivera
conspired
with
several
unidentified
individuals
(“John Does 1–5”) to have Plaintiff removed from the WPD. (Id. ¶ 27.) To facilitate this
conspiracy, on November 8, 2012, Officer Rivera submitted a false internal affairs
complaint to then-interim police chief, Ted Brown, alleging that Plaintiff had racially
profiled black minorities and ordered Officer Rivera to conduct three traffic stops without
probable cause. (Id. ¶ 28.) In response, Ted Brown contacted the Florida Department of
Law Enforcement (“FDLE”), which began investigating the matter. (Id. ¶ 29.) FDLE Agent
Alphonso Williams (“Agent Williams”)—Plaintiff’s former co-worker at the Altamonte
Springs Police Department (“APD”)—became the lead agent assigned to the
investigation. (Id. ¶ 30.)
Plaintiff and Agent Williams did not get along while employed at APD, and
developed unresolved tension. Thus, Williams “proceeded with his investigation with an
‘axe to grind.’” (Id. ¶¶ 30–31.) To justify charging Plaintiff with criminal misconduct,
Williams deliberately ignored obvious discrepancies in the evidence collected during his
2
investigation and erroneously concluded that Plaintiff had committed a felony. (Id. ¶¶ 32–
33.) As a result, on April 12, 2013, current WPD chief of police, David Ogden (“Officer
Ogden”), ordered Plaintiff to appear at the Windermere police station, where Agent
Williams promptly arrested him. (Id. ¶¶ 36–37.)
Agent Williams subsequently submitted an official police report to the State
Attorney, and Plaintiff was charged with “three counts of official misconduct and two
counts of threatening a public servant with the intent to influence a public duty.” (Id. ¶¶ 34,
65.) Sometime thereafter, the Orange County Sheriff’s Office (“OCSO”) conducted an
independent internal investigation, which revealed that Officer Rivera fabricated the
allegations against Plaintiff (“OCSO Findings”) (Id. ¶ 41.) After the OCSO Findings were
presented to the State Attorney, all charges against Plaintiff were dropped, and the OCSO
cleared Plaintiff of all wrongdoing. (Id.) Plaintiff was briefly reinstated as a WPD officer,
but he was unable to serve as a functional member of the WPD due to the reputational
harm that had occurred. (Id. ¶ 42.)
Armed with these allegations, Plaintiff filed a six-count Complaint, asserting
several state and federal claims against Agent Williams, Officer Rivera, and Officer
Ogden (collectively, “the Officers”). The Officers moved for dismissal of Plaintiff’s initial
Complaint (Docs. 18, 24, 29), which the Court granted in part (Doc. 40.) Plaintiff has now
filed an Amended Complaint asserting claims for: (1) malicious prosecution against
Officer Rivera in his individual capacity under 42 U.S.C. § 1983 and state law (Count I);
(2) civil conspiracy against Officer Rivera, in his individual and official capacity, and John
Does 1–5 under state law (Count II); (3) malicious prosecution against Agent Williams in
his individual capacity under § 1983 and state law (Count II”); (4) false arrest/false
3
imprisonment against Agent Williams, in his individual capacity under 42 U.S.C. § 1983,
and in his individual and official capacity under state law (Count IV); (5) municipal liability
against the Town of Windermere (“the Town”) (Count V); and (6) violation of procedural
due process against Officer Ogden in his individual and official capacity under § 1983 and
state law (Count VI). (See Doc. 48.).
On March 30, 2016, the Town and Officer Ogden filed a motion to dismiss
Counts V and VI of the Amended Complaint (Doc. 56), to which Plaintiff responded
(Doc. 57). The Motion is now ripe for adjudication. 2
STANDARDS
A complaint must contain “a short and plain statement of the claim showing the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When a complaint “fails to state a
claim to relief that is plausible on its face,” the defendant may seek dismissal of the
complaint under Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 672, 678–79 (2009). When
considering a Rule 12(b)(6) motion, courts must limit their consideration to the complaint,
the written instruments attached to it as exhibits, “documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323 (2007). Courts also must accept
all well-pled factual allegations—but not legal conclusions—in the complaint as true.
Tellabs, 551 U.S. at 323. After disregarding allegations that “are not entitled to the
assumption of truth,” the court must determine whether the complaint includes “factual
content” sufficient to “draw the reasonable inference that the defendant is liable for the
2
Officer Rivera and Agent Williams have filed answers to the Amended Complaint.
(Docs. 49, 52).
4
misconduct alleged.” Iqbal, 556 U.S. at 679 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555–56 (2007)).
DISCUSSION
I.
Municipal Liability (Monell) Claim Against the Town of Windermere (Count V)
Town contends that “Plaintiff’s Complaint regarding municipal liability under Monell
fails in that it does not properly allege a pattern or practice that is permanent or
widespread.”
“[T]o impose § 1983 liability on a municipality, a plaintiff must [allege]: (1) that his
constitutional rights were violated; (2) that the municipality had a custom or policy that
constituted deliberate indifference to that constitutional right; and (3) that the policy or
custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
A municipality is liable for such violations only if the municipality adopted policies and
customs that were the “moving force” behind the officer’s violations of Plaintiff’s rights.
See City of Canton, Ohio v. Harris, 109 U.S. 378, 385 (1989) (quoting Monell v. N.Y.C.
Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)). “Thus, ‘[a] single incident of a
constitutional violation is insufficient to prove a policy or custom even when the incident
involves several employees of the municipality.’” Marantes v. Miami-Dade Cty.,
No. 15-13333, 2016 WL 1696838, at *6 (11th Cir. Apr. 28, 2016) (quoting Craig v. Floyd
Cty., 643 F.3d 1306, 1311 (11th Cir. 2011). Instead, “[a] pattern of similar constitutional
violations ... is ‘ordinarily necessary.’” Connick v. Thompson, 563 U.S. 51, 74 (2011)
(quoting Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 409 (1997)).
Plaintiff does not allege the existence of an official policy within the WPD; rather,
he asserts that the WPD had an unofficial custom or practice of “filing unsubstantiated
5
and false internal affairs complaints, which were then escalated to the status of criminal
investigations into alleged ‘wrongdoing.’” (Doc. 48 ¶¶ 26, 83; Doc. 57, p. 2.) In support of
this theory, Plaintiff vaguely describes instances of police misconduct that primarily relate
to the actions of former Police Chief Saylor. (See Doc. 48 ¶¶ 19–22). Notably, however,
none of the alleged instances of police misconduct involve the “filing false and
unsubstantiated internal affairs complaints,” nor do these incidents bear any factual
similarity to the violation allegedly suffered by Plaintiff. Hence, the Amended Complaint is
devoid of sufficient facts plausibly demonstrating that the WPD had a widespread custom
or practice of filing unsubstantiated and false internal affairs complaints. See Mercado v.
City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005) (holding that the plaintiff failed to
show a custom because he did not identify “factual situations that [were] substantially
similar to the case at hand”); see also Connick v. Thompson, 563 U.S. 51, 63 (2011)
(explaining that incidents that are dissimilar to the violation at issue cannot establish a
pattern of violations that would provide notice to the municipality and the opportunity to
conform to constitutional dictates).
Indeed, aside from the complaint that Officer Rivera filed against Plaintiff, the
Amended Complaint provides no facts showing any other occasions where WPD officers
filed frivolous internal affairs complaints against their counterparts in an attempt to have
them removed from the department. As the Court previously explained, “[t]his event—
standing alone—cannot support a finding that the WPD had adopted a custom or policy.”
(Doc. 40, p. 12 (citing City of Okla. City v. Tuttle, 471 U.S. 808, 823–24 (1985)). Because
Plaintiff is still unable to state a claim for municipal liability against the Town, the Court
finds that Count V is due to be dismissed with prejudice.
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II.
Procedural Due Process Claim Against Officer Ogden (Count VI)
Turning to Count VI, Plaintiff claims a liberty interest in his reputation in connection
with his employment as a WPD officer, as recognized by the Florida legislature and
codified in the Law Enforcement Officer’s Bill of Rights (“Bill of Rights”), Florida Statutes,
§ 112.532. (Id. ¶¶ 92–93.) Plaintiff further alleges that by failing to give him a meaningful
opportunity to clear his name, either before or after his termination, Officer Ogden violated
numerous portions of the Bill of Rights and deprived Plaintiff of his liberty interests without
procedural due process. (Id. ¶ 101.) Officer Ogden argues that Count VI should be
dismissed with prejudice due to Plaintiff’s failure to allege that state law does not provide
an adequate remedy for his alleged procedural deprivation. (Doc. 56). The Court agrees.
The Eleventh Circuit has held that “when reputational damage is sustained in
connection with a termination of employment, it may give rise to a procedural due process
claim for deprivation of liberty which is actionable under section 1983.” Cotton v. Jackson,
216 F.3d 1328, 1330 (11th Cir. 2000). However, “in procedural due process claims, the
deprivation by state action of a constitutionally protected interest in ‘life, liberty, or
property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such
an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990).
Accordingly, if adequate state remedies were available, but the plaintiff did not avail
himself of them, then he “cannot rely on that failure to claim that the state deprived him
of procedural due process.” Cotton, 216 F.3d at 1331.
In his response, Plaintiff spends an inordinate amount of time arguing that the
scope of the remedy for violations of the Bill of Rights is considerably more limited than it
was prior to 2009 and “Plaintiff could not, therefore, draw succor from the provisions of
7
the [Bill of Rights] to force Chief Ogden to afford [him] a meaningful opportunity to cleanse
his reputation once criminal charges were dismissed.” (Doc. 57, p. 12.)
However, whether the Bill of Rights provides Plaintiff with an adequate remedy is
not dispositive, as the Bill of Rights is only one remedial process by which an officer may
remedy violations of his due process rights. See Fla. Sta. §§ 112.532, 112.534 (2009).
Indeed, “Florida law provides, through certiorari review by Florida courts, an adequate
means for review of a public employee’s termination of employment.” Dingle v. City of
Coleman, No. 5:10-cv-53-OC-10GRJ, 2010 WL 4366886, at *4 (M.D. Fla. Oct. 28, 2010)
(citing McKinney v. Pate, 20 F.3d 1550, 1563–64 (11th Cir. 1994). 3 Furthermore, as the
Court noted in its January 26, 2016 Order, “Florida circuit courts routinely review—
sometimes by way of a complaint for a writ of mandamus—the decisions of Florida sheriffs
to terminate deputies, both in permanent positions and in probationary positions.”
(Doc. 40, p. 14 (quoting Sammons v. Cameron, No. 2:04-cv-161-FTM29DNF,
2005 WL 1027509, at *4 (M.D. Fla. Apr. 15, 2005)). Nonetheless, Plaintiff wholly fails to
include in his Amended Compliant any facts demonstrating that he pursued or exhausted
these state remedies.
As state law provides adequate remedies for the violations allegedly suffered by
Plaintiff, he has failed to adequately state a claim for violation of his procedural due
process rights. See McKinney, 20 F.3d at 1565 (finding that a plaintiff could not claim that
he was deprived of procedural due process “[s]ince the Florida courts possess the power
to remedy any deficiency in the process by which [the plaintiff] was terminated”); see also
3
See e.g., Park v. City of W. Melbourne, 769 So. 2d 397, 398 (Fla. 5th DCA 2000);
Grice v. City of Kissimmee, 697 So. 2d 186 (Fla. 5th DCA 1997).
8
Cotton, 216 F.3d at 1330–31 (holding that the plaintiff failed to state a claim for procedural
due process where he could have sought a writ of mandamus directing the defendants to
hold a name-clearing hearing). Accordingly, Count VI is also due to be dismissed until
such time as Plaintiff exhausts his state law remedies.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.
Defendants Town of Windermere and David Ogden’s Motion to Dismiss
(Doc. 56) is GRANTED.
2.
Counts V is DISMISSED WITH PREJUDICE for failure to state a claim.
3.
Count VI is DISMISSED WITHOUT PREJUDICE. Plaintiff may not reassert
this claim until he has exhausted his state law remedies.
4.
The Clerk is DIRECTED to terminate Defendants Town of Windermere and
David Ogden as Defendants in this action.
DONE AND ORDERED in Chambers in Orlando, Florida, on May 25, 2016.
Copies:
Counsel of Record
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