Mullane v. Rogers et al
Filing
23
ORDER granting 19 Motion to Dismiss for Failure to State a Claim. This case is dismissed with prejudice. The Clerk is directed to close the case. Signed by Judge Gregory A. Presnell on 1/15/2019. (TKW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GARY PATRICK MULLANE,
Plaintiff,
v.
Case No: 6:18-cv-599-Orl-31DCI
M. ROGERS,
Defendant.
/
ORDER
This cause is before the Court on the Motion to Dismiss (Doc. 19) filed by
Defendant M. Rogers. Petitioner filed a Response (Doc. 22) to the Motion to Dismiss. As
discussed below, Rogers’ Motion to Dismiss will be granted.
I.
FACTUAL BACKGROUND
Plaintiff filed a Second Amended Complaint (Doc. 9) pursuant to 42 U.S.C. § 1983
against Rogers. Plaintiff is incarcerated at the Brevard County Jail (“Jail”), and he alleges
that, on April 1, 2017, he was parked at a convenience store and was “arrested for
attaching [a] license plate not assigned . . . .” (Doc. 9 at 13). At the time of the arrest,
Plaintiff admitted to being in possession of .5 grams of methamphetamine, which
resulted in a drug possession charge. (Id. at 13). Plaintiff pled guilty to the unlawful tag
charge, and the drug possession charge remains pending. (Id.).
The arresting officer was Rogers, who was working for the Orlando Police
Department. (Id. at 2). Rogers had Petitioner’s vehicle towed. (Id. at 14). The vehicle
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was towed by Johnson Towing, and, after Plaintiff was released from prison, he contacted
Johnson Towing and was informed that the vehicle had been sold. (Id.). Plaintiff alleges
his vehicle was not the subject of a criminal investigation and that his vehicle was towed
in violation of § 715.07, Florida Statutes, because it was on private property. (Id.). As a
result, Plaintiff seeks compensatory damages in the amount of the value of the vehicle
and punitive damages. (Id. at 17).
II.
LEGAL STANDARD
When considering a motion to dismiss pursuant to Rule 12(b)(6), courts must
accept all factual allegations in the complaint as true and read them in the light most
favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89 (2007). A complaint must contain
a short and plain statement demonstrating an entitlement to relief, and the statement
must “give the defendant ‘fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.’” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007) (quoting
Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346 (2005)).
A plaintiff must supply “enough facts to state a claim to relief that is plausible on
its face,” rather than merely “conceivable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). Thus, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. at 545 (citations omitted).
“Factual allegations must be enough to raise a right to relief above the speculative level .
. . on the assumption that all the allegations in the complaint are true . . . .” Id. at 555
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(citations omitted). In the case of a pro se action, however, the Court should construe the
complaint more liberally than it would pleadings drafted by lawyers. Hughes v. Rowe, 449
U.S. 5, 9 (1980).
III.
ANALYSIS
Plaintiff has not indicated whether Rogers is liable in his official capacity or
individual capacity. A suit against a person in their official capacity is to be treated as a
suit against the entity. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). To hold a county
liable, a plaintiff must show that (1) “his constitutional rights were violated”; (2) the city
“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). Plaintiff has not alleged that a custom or policy caused
the constitutional violation. Consequently, the Motion to Dismiss is granted as to Rogers
in his official capacity.
As to liability in his individual capacity, Rogers alleges that he is entitled to
qualified immunity. (Doc. 19 at 3). To receive qualified immunity, the government
official must first prove that he was acting within his discretionary authority. Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir.2002). Once the defendant has established that he
was acting within his discretionary authority, the burden shifts to the plaintiff to show
that qualified immunity is not appropriate. Id. In resolving a claim for qualified immunity
the Court addresses two questions: (1) whether the facts, when taken in the light most
favorable to plaintiff, demonstrate that the officers' actions violated a constitutional right,
and (2) whether a reasonable officer could have believed that his conduct was lawful, in
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light of clearly established law and the information the officer possessed. Anderson v.
Creighton, 483 U.S. 635 (1987).
In the present case, Plaintiff’s allegations reflect that Rogers was acting within the
scope of his discretionary duties when the alleged constitutional violation occurred.
(Doc. 9 at 12).
The impoundment of a vehicle is a seizure under the Fourth Amendment, and
therefore must be reasonable. See Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir.
2005). Rogers alleges that, pursuant to his community caretaking function, he was
permitted to impound Plaintiff’s vehicle. (Doc. 19 at 5).
The Courts have recognized that “[i]n the interests of public safety and as part of
what the Court has called `community caretaking functions,’ automobiles are frequently
taken into police custody . . . . [As a result,] the authority of police to seize and remove
from the streets vehicles impeding traffic or threatening public safety and convenience is
beyond challenge.” S. Dakota v. Opperman, 428 U.S. 364, 368–69 (1976) (citation omitted).
Here, Rogers had the authority to impound Plaintiff’s vehicle under the
community caretaker doctrine. Once Rogers arrested Plaintiff, the doctrine allowed him
“to seize and remove any vehicle which may impede traffic, threaten public safety, or be
subject to vandalism.” United States v. Jensen, 425 F.3d 698, 706 (9th Cir. 2005). Plaintiff’s
unattended vehicle left in the parking lot of a commercial store could have been stolen or
vandalized. Plaintiff does not dispute that Rogers had the authority to arrest him, and
the decision to impound Plaintiff’s vehicle was not unreasonable.
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Although Plaintiff alleges that his girlfriend could have driven the vehicle away
from the parking lot, “[n]othing in the Fourth Amendment requires a police department
to allow an arrested person to arrange for another person to pick up his car to avoid
impoundment and inventory.” United States v. Agofsky, 20 F.3d 866, 873 (8th Cir. 1994).
Consequently, the availability of less intrusive alternatives, such as allowing Plaintiff’s
girlfriend to drive the car, does not make the course Rogers chose unreasonable or
unconstitutional. United States v. Moore, 655 F. App’x 531 (11th 2016). Moreover, it does
not appear than anyone else could have lawfully driven the vehicle from the scene since
it had a license plate attached to it which was not assigned.1
Under the circumstances, Plaintiff has failed to establish that Rogers’ actions
violated his constitutional rights. Thus, Rogers is entitled to qualified immunity, and his
Motion to Dismiss will be granted.
IV.
CONCLUSION
Accordingly, it is ORDERED and ADJUDGED as follows:
1.
Defendant M. Rogers’ Motion to Dismiss (Doc. 19) is GRANTED.
2.
This case is DISMISSED with prejudice.
3.
The Clerk of the Court is directed to enter judgment accordingly and to
close this case.
Plaintiff acknowledged that he pled guilty to “attaching license plate not
assigned.” (Doc. 9 at 13).
1
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DONE and ORDERED in Orlando, Florida on January 15, 2019.
Copies furnished to:
Counsel of Record
Unrepresented Party
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