Gray v. Ivey et al

Filing 28

ORDER granting 12 Motion to Strike ; adopting 25 Report and Recommendations. The Sixth Affirmative Defense in Defendant's Answer (Doc. 3, 29) is STRICKEN. Plaintiff's false arrest claim will be limited at trial to the absence of probable cause as presently alleged in Count II. Signed by Judge Roy B. Dalton, Jr. on 4/27/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JEFFREY MARCUS GRAY,
Plaintiff,
v.

Case No. 6:17-cv-118-Orl-37GJK

WAYNE IVEY; and BRIAN STOLL,
Defendants.
_____________________________________
ORDER
On February 16, 2017, Plaintiff moved to strike Defendant Wayne Ivey’s (“Sheriff
Ivey”) 1 sixth affirmative defense. (Doc. 12 (“Motion to Strike”).) After Sheriff Ivey
responded (Doc. 15), U.S. Magistrate Judge Gregory J. Kelly issued a Report
recommending that the Court grant the Motion to Strike (Doc. 25 (“R&R”)). Defendant
objected to the R&R (Doc. 26 (“Objection”)), and Plaintiff responded to the Objection
(Doc. 27). For the reasons set forth below, the Objection is due to be overruled, the R&R
adopted, and the Motion to Strike granted.
I.

PROCEDURAL HISTORY

In this action, Plaintiff alleges that police officer Brian Stoll (“Officer Stoll”)
unlawfully arrested Plaintiff for the crime of trespassing and failing to leave private
property after warning by the property owner. (Doc. 2, ¶ 8.) In the Complaint, Plaintiff
asserts claims against Defendants for false arrest under Florida law and Fourth

1 Mr.

Ivey is Sheriff of Brevard County, Florida. (Doc. 2, p. 1; Doc. 3, p. 1.)
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Amendment violations under 42 U.S.C. §§ 1983 and 1988. (Doc. 1.) Germane to the instant
Order is Count II of the Complaint, which asserts a state law false arrest claim against
Sheriff Ivey based on a theory of vicarious liability for Officer Stoll’s alleged actions—
namely, the arrest or detention of Plaintiff without probable cause or reasonable
suspicion. (Doc. 2, ¶¶ 29–35 (“Count II”).) In his sixth affirmative defense to the
Complaint, Sheriff Ivey claims entitlement to sovereign immunity “to the extent that
discretionary governmental actions are implicated” in Count II. (Doc. 3, ¶ 29
(“Sixth AD”).)
On February 16, 2017, Plaintiff moved to strike Sheriff Ivey’s Sixth AD on the
ground that there is no sovereign immunity for a false arrest claim under Florida law.
(Doc. 12.) In his response, Sheriff Ivey points the Court to allegations in the Complaint
that he contends are “pregnant with the possibility that something more than the simple
issue of the presence or absence of probable cause for the arrest of Plaintiff might end up
being in play as to [Count II].” (Doc. 15, pp. 3–4.) Specifically, the response highlights the
allegations that: (1) at all material times, “Sheriff Ivey had the power, right[,] and duty to
train and control its officers, agents[,] and employees to conform to the Constitution of
the United States” (Doc. 2, ¶ 6); and (2) Officer Stoll induced the property owner to
demand that Plaintiff be removed from the property (id. ¶ 14). (Doc. 15, pp. 3–4.) Sheriff
Ivey argues that these allegations may leave room for future arguments concerning:
(1) issues as to the type or frequency of training, which he maintains “flirt with notions
of discretionary governmental functions”; and (2) Officer Stoll’s decision to contact the
property owner, which he also maintains was a discretionary government function
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immune from tort liability (collectively, “Discretionary Allegations”). (Id.)
On April 3, 2017, Magistrate Judge Kelly issued an R&R recommending that the
Court grant the Motion to Strike. (Doc. 25.) In doing so, Magistrate Judge Kelly reasoned
that: (1) sovereign immunity is not a defense to a state law false arrest claim based solely
on the assertion of lack of probable cause; (2) “[a]s the pleadings now stand, . . . the basis
for the false arrest claim in Count II is that [Officer Stoll] lacked probable cause”; and
(3) based on the foregoing, the Sixth AD “has no possible relationship to the controversy.”
(Id. at 3.)
Sheriff Ivey’s Objection largely repeats the arguments made in response to the
Motion to Strike. (Doc. 26.) The gist, however, is that: (1) the Discretionary Allegations
may “potentially implicate discretionary governmental activity which would be immune
from liability under state law”; and, therefore, (2) the Sixth AD has a possible relationship
to the controversy. (Id. at 2.) Plaintiff counters that: (1) because R&R is well reasoned, it
should be adopted as drafted; (2) sovereign immunity is not a bar to a claim for false
arrest; and (3) the allegations in Count II are based on Officer Stoll’s actions in arresting
Plaintiff without probable cause within the course and scope of the officer’s employment
under Sheriff Ivey and not due to any alleged failure to train and supervise law
enforcement officers. (Doc. 27.) As the matter has now been fully briefed, it is ripe for the
Court’s resolution.
II.
A.

LEGAL STANDARDS

Report and Recommendations

When a party objects to a magistrate judge’s findings, the district court must
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“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 513 (11th Cir. 1990).
B.

Motions to Strike

Under Federal Rule of Civil Procedure 12(f), a district court may strike an
insufficient defense from a pleading. “To the extent that a defense puts into issue relevant
and substantial legal and factual questions, it is sufficient and may survive a motion to
strike, particularly when there is no showing of prejudice to the movant.” Reyher v. Trans
World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995). “An affirmative defense will be
held insufficient as a matter of law only if it appears that the defendant cannot succeed
under any set of facts which it could prove.” Id. Generally, courts do not strike pleadings
under Rule 12(f) “unless the matter sought to be omitted has no possible relationship to
the controversy, may confuse the issues, or otherwise prejudice a party.” Id.
III.

ANALYSIS

In Florida, the tort of false arrest “is defined as the unlawful restraint of a person
against his will, the gist of which action is the unlawful detention of the plaintiff and the
deprivation of his liberty.” Escambia Cty. Sch. Bd. v. Bragg, 689 So. 2d 571, 572
(Fla. 1st DCA 1996). “A police officer is invested with discretion to decide whether to
arrest, or not to arrest, a person who is properly the subject of an arrest”; thus, “[f]or
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discretionary immunity to attach, the governmental agency must possess the requisite
legal authority to do the act.” Lester v. City of Tavares, 603 So. 2d 18, 19 & n.4
(Fla. 5th DCA 1992). “Nevertheless, a police officer does not have the discretionary
authority to arrest a citizen whom the officer does not have probable cause to believe has
committed an offense. This is why there is a body of law in Florida recognizing liability
for false arrest by a law enforcement officer.” Id. at 19.
Pursuant to this distinction, it logically follows that, under Florida law, “[t]here is
no sovereign immunity for false arrest.” Lester v. City of Tavares, 603 So. 2d 18, 19
(Fla. 5th DCA 1992); accord Jessup v. Miami-Dade Cty., 440 F. App’x 689, 693
(11th Cir. 2011) 2 (“Under Florida law, a city is liable for a false arrest claim based upon
the actions of its officers. A city may not rely on the defense of sovereign or qualified
immunity under Florida law”); Andrews v. Fla. Parole Comm’n, 768 So. 2d 1257, 1266
(Fla. 1st DCA 2000) (“Sovereign immunity is not a bar to a claim for false arrest); Thomas
v. Fla. Game & Fresh Water Comm’n, 627 So. 2d 541, 542 (Fla. 2d DCA 1993) (same).
Notwithstanding

Sheriff

Ivey’s

argument

concerning

the

Discretionary

Allegations, a claim for false arrest based on the absence of probable cause leaves no room
to infer the existence of a discretionary function because “a police officer does not have
the discretionary authority to arrest a citizen [without probable cause].” See Lester,
603 So. 2d at 19. The Court’s review of the Complaint reveals that the lack of probable
cause to arrest (or reasonable suspicion to detain) is the sole basis for the false arrest claim

In the Eleventh Circuit, “[u]npublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.” 11TH CIR. R. 36-2.
2

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asserted in Count II. 3 Therefore, Sheriff Ivey’s Sixth AD is foreclosed as a matter of law
and will be stricken.
IV.

CONCLUSION

Having conducted an independent, de novo review of the portions of the record
to which Sheriff Ivey objected, the Court agrees with the findings and conclusions set
forth in the R&R. Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Objection by Defendant Sheriff to Report and Recommendation
(Doc. 26) is OVERRULED.

2.

U.S. Magistrate Judge Gregory J. Kelly’s Report and Recommendation
(Doc. 25) is ADOPTED, CONFIRMED, and made a part of this Order.

3.

Plaintiff’s Second Motion to Strike Defendant Ivey’s Sixth Affirmative
Defense and Incorporated Memorandum of Law (Doc. 12) is GRANTED.

4.

The Sixth Affirmative Defense in Defendant’s Answer (Doc. 3, ¶ 29) is
STRICKEN.

5.

Plaintiff’s false arrest claim will be limited at trial to the absence of probable
cause as presently alleged in Count II.

DONE AND ORDERED in Chambers in Orlando, Florida, on April 27, 2017.

Moreover, in light of his insistence that Count II is premised on the lack of
probable cause alone, Plaintiff is now bound by this representation and may not argue
otherwise going forward.
3

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Copies to:
Counsel of Record

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