Hoelper et al v. Coats et al

Filing 21

ORDER granting 5 Motion to dismiss with prejudice as to defendant Coats who is dismissed from this action; denying 9 Motion to dismiss; denying 11 Motion to dismiss. The remaining defendants have 10 days to answer the complaint. Signed by Judge Elizabeth A. Kovachevich on 10/27/2010. (SN)

Hoelper et al v. Coats et al

Doc. 21

UNITED S T A T E S D I S T R I C T C O U R T MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

FRANCES HOELPER, and MICHAEL SWANN,
Plaintiffs,
v.

Case No.: 8:10-cv-01324-EAK-EAJ

JIM COATS, SHERIFF
OF PINELLAS COUNTY, et al.
Defendants.

ORDER

T h i s c a u s e is b e f o r e the C o u r t on D e f e n d a n t , J i m C o a t s ' , R u l e 1 2 ( b ) ( 6 ) M o t i o n to

Dismiss (Doc. 5) Plaintiffs, Frances Hoelper and Michael Swann's, 42 U.S.C. § 1983 civil rights complaint on Count I and III (Doc. 1), and response thereto (Doc. 18) and Defendants,
Mark Zirkel and William W i l t s e ' s , Rule 12(b)(6) Motions to Dismiss (Doc. 9, 11) the Plaintiffs' 42 U.S.C. § 1983 civil rights complaint (Doc. 1), and responses thereto (Doc. 14.
15).

BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs, Frances Hoelper and Michael Swann, filed this action on June 10. 2010, in
the U n i t e d S t a t e s D i s t r i c t C o u r t for the M i d d l e District o f F l o r i d a . T a m p a Division.

Dockets.Justia.com

This lawsuit arises from Defendant, Deputy Mark Zirkel and William Wiltse's,

alleged unlawful arrest, detention, and criminal prosecution of Plaintiff Hoelper stemming
from an i n c i d e n t w h e r e D a n i e l Z i r k e l . D e f e n d a n t Z i r k e P s b r o t h e r , a l l e g e d l y a t t a c k e d h e r

(Compl. Til 2-3, 17). Plaintiff Hoelper alleges that Defendant Coats, Sheriff of Pinellas
County, is liable for the deprivation ol'her constitutional rights since Defendant Coats' policy and/or custom, ignoring a misconduct of his deputies and protecting them from discipline, allowed his deputies' alleged unlawful activities (Compl. ffi[ 37, 43). In the Pinellas County Criminal proceedings. Plaintiff Hoelper was found not guilty b y j u r y on December 12, 2007
( C o m p l . II 3).

Under 42 U.S.C. § 1983, Plaintiff Hoelper asserts municipal liability against Defendant Coals in his official capacity, in violation o f the Fourth and Fourteenth
A m e n d m e n t s o f the U n i t e d S l a t e s C o n s t i t u t i o n ( C o u n t I and III). S h e a l s o c l a i m s m a l i c i o u s

prosecution against Defendants Wiltse and Zirkel, in their capacities as deputy sheriffs, in
violation o f the F o u r t h A m e n d m e n t ( C o u n t II). P l a i n t i f f M i c h a e l S w a n n , P l a i n t i f f H o e l p e r ' s husband, s u e s all D e f e n d a n t s for loss o f c o n s o r t i u m ( C o u n t IV).

Defendants move to dismiss the complaint for failure to state a claim under the
Federal Rules o f Civil P r o c e d u r e 12(b)(6). D e f e n d a n t Jim C o a t s filed a m o t i o n to d i s m i s s

(Doc 5) on July 7, 2010, Defendant Mark Zirkel filed a motion to d i s m i s s (Doc. 9) on July 19,
2010. and D e f e n d a n t W i l l i a m Wiltse filed his m o t i o n to d i s m i s s ( D o c . 11) on J u l y 23, 2010.
P l a i n t i f f s r e s p o n d e d ( D o c . 14. 15, 18) in o p p o s i t i o n .

STANDARD O F R E V I E W

Under the Federal Rules o f Civil Procedure 8(a)(2). a complaint must contain "a short

and plain statement of the claim showing that the pleader is entitled to relief," to give the
defendant fair notice o f both the claim and the supporting grounds. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A defendant may move to dismiss a complaint under Rule 12(b)(6) for "failure to state a claim on which relief can be granted." Fed. R. Civ. P.

12(b)(6). To survive a defendant's Rule 12(b)(6) motion to dismiss, a plaintiffs complaint

must include enough "factual allegations to raise a right to relief above the speculative level,"
and those facts must "state a claim to relief that is plausible on its face." Id. at 570. While a

complaint attacked by a Rule 12(b)(6) need not be buttressed by detailed factual allegations, the plaintiff's pleading obligation "requires more than labels and conclusions, and a
f o r m u l a i c r e c i t a t i o n o f t h e e l e m e n t s o f a c a u s e o f a c t i o n w i l l n o t d o . " IcL a t 5 5 5 . T h e R u l e 8

pleading standard does not require "detailed factual allegations," but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal. 129 S. Ct.
1937. 1 9 4 9 ( 2 0 0 9 ) .

A complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of circumstances that would entitle him to
relief." Conlev v. Gibson. 355 U.S. 41, 45-46 (1957). On a motion to d i s m i s s , the complaint

shall be viewed in the light most favorable to the plaintiff. Ill, ex Rel. Madlgan v.
T e l e m a r k e t i n u A s s o c . Inc.. 538 U.S. 6 0 0 . 618 ( 2 0 0 3 ) . T h e c o u r t l i m i t s its c o n s i d e r a t i o n s to

the pleadings and exhibits attached thereto. GSW, Inc. v. Long Co., Ga., 999 F. 2d 1508,
1510 (11th Cir. 1993).

On a motion to dismiss, "the qualified immunity inquiry and the Rule 12(b)(6)
standard b e c o m e i n t e r t w i n e d . " G J R Invs.. Inc. v. C o u n t y o f E s c a m b i a , Fla., 1 3 2 F. 3d 1359,

1366 (1 lth Cir. 1998). In order to protect public officials from meritless claims, the Eleventh

Circuit tightened the Rule 8 pleading requirement with respect to a § 1983 claim against a person arguably entitled to qualified immunity. Id. at 1367. The complaint must have "specific, non-conclusory allegations of fact that will enable the district court to determine
that those facts, if proved, will overcome the defense of qualified immunity." Dalrymple v.
Reno. 3 3 4 F. 3d 9 9 1 . 9 9 6 (1 l t h Cir. 2 0 0 3 ) .

DISCUSSION

I.

Municipal Liability A. C o u n t I: C u s t o m , P o l i c y , a n d P r a c t i c e C l a i m

In Count I o f the complaint. Plaintiff Hoelper asserts a 42 U.S.C. § 1983 claim that Defendant Sheriff Coats' custom, policy, and practice caused the violation o f the P l a i n t i f f s rights under the Fourth and Fourteenth Amendments o f the United States Constitution.
D e f e n d a n t C o a t s m o v e d to d i s m i s s (Doc. 5) for failure to s t a t e a c a u s e o f a c t i o n u n d e r 42 U.S.C. § 1983.

When a plaintiffsues a county sheriff in his official capacity under 42 U.S.C. § 1983. the suit is effectively a suit against the county. Cook ex reI. Estate of Tessier v. Sheriff of
M o n r o e C o u n t y . 402 F. 3d 1092. 1 115-16 (1 l t h Cir. 2005). T h e d o c t r i n e o f r e s p o n d e a t

superior is not attached under § 1983. City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Thus, a county is liable under § 1983 only where the execution of its "official policy" or
""custom" serves as the "moving force" of a constitutional violation. Monell v. Dept. of Soc.
Services., 436 U.S. 658, 694, 698 (1978); City of Canton, 489 U.S. at 385. A § 1983 plaintiff

must identify a particular municipal policy or a custom that directly caused the plaintiffs
constitutional injury. Board o f County Comm'rs v. Brown, 520 U.S. 397, 403-04 (1997).

A § 1983 plaintiff may prove a policy by "an unofficial custom or practice of the

[municipality] shown through repealed acts of a final policymaker for the county." Grech v.
Claton County, 335 F. 3d 1326, 1329 (1 l t h Cir. 2003). The E l e v e n t h Circuit defined custom

as "a practice that is so settled and permanent that it lakes on the force o f the law." Sewell v.
Town o f Lake Hamilton. 117 F. 3d 488. 489 (11th Cir. 1997). Thus, a m u n i c i p a l i t y ' s failure

to train constitutes a policy if "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights." that the failure to train
amounts to deliberate indifference to a constitutional right. Arroyo v. J u d d . No. 8:10-cv-911T-23TBM, 2010 WL 3044053 at *2 (M.D. Fla. Jul. 30, 2010) (citing City o f Canton, 489 U.S.
at 3 9 0 ( 1 9 8 9 ) ) .

To establish a "deliberate indifference." a plaintiff must provide some evidence that

the municipality made a conscious choice not to act, regardless of notice of a need to train or supervise in a particular area. Gold v. Citv of Miami, 151 F.3d 1346, 1350 (1 lth Cir. 1998).
"Normally random acts or isolated incidents are insufficient to establish a custom or policy."
P e n e w v. C i t v o f St. M a r y s . 787 F. 2d 1496, 1499 (1 l t h Cir. 1 9 8 6 ) : s e e G o l d . 151 F. 3d at
1350-51.

Plaintiff Hoelper fails to state a proper § 1983 claim against Defendant Coats, Sheriff of Pinellas County, because she fails to sufficiently allege the existence of Defendant Coats' policy or custom that allowed Defendants Wiltse and Zirkel's alleged violation of the
P l a i n t i f f s constitutional rights. At best, the Plaintiff provides two (2) factual allegations as to the existence o f a "protect deputies at all costs" policy or custom: 1) Defendant Wiltse's inappropriate investigations (Compl. ^ | 21-26. 38) and 2) Defendant Wiltse's report-writing deficiencies in the past (Compl. *j 37). Other than that, Plaintiff Hoelper merely repeats "a policy o f protecting [the S h e r i f f s ] deputies, at all costs, from discipline or criticism for their
improper acts, . . . " without any accompanying facts (Compl. *\\ 43).
A m u n i c i p a l i t y m a y not be held liable for § 1983 c l a i m " s o l e l y b e c a u s e it e m p l o y s a t o r t f e a s o r . " B o a r d o f C o u n t y C o m m ' r s v. Brown. 520 U.S. 3 9 7 at 397. A l t h o u g h a § 1983

plaintiff may satisfy a policy identification by showing a custom as a widespread practice known to the governance o f the institution, the P l a i n t i f f s allegations do not s h o w more than
individual deputies" i s o l a t e d w r o n g d o i n g s , and fail to e s t a b l i s h D e f e n d a n t C o a t s ' i n a d e q u a t e training or s u p e r v i s i o n o f D e f e n d a n t s Wiltse and Zirkel as a s e t t l e d and p e r m a n e n t p r a c t i c e .

Thus, the Plaintiff fails to allege Defendant Coats' deliberate indifference because she foils to

show a widespread practice and the obvious need to stop it. a prerequisite allegation to show
Defendant Coats' deliberate choice not to act.

Even i f this Court assumes Plaintiff Hoelper's allegations are sufficient to establish

Defendant Coats' policy, the Plaintiffs complaint nonetheless fails to show a direct causal link between the policy and the deprivation of her constitutional rights. In Count II, the
Plaintiff alleges the motive of malicious prosecution so as to punish her for complaining
about Defendant Zirkel's brother, Daniel Zirkel's. illegal business (Compl. *\\ 50). Accepting

the Defendant deputies' malicious intent, the Plaintiffs allegation of Defendant Coats' policy
or custom as a c a u s e o f the violation o f her constitutional rights loses its p o w e r to be a

··moving force" behind the violation. Therefore, under the pleading standards of Twomblv and Iqbal, Plaintiff Hoelper fails to state a plausible cause of her § 1983 municipal liability
a c t i o n in C o u n t 1. T w o m b l v . 5 5 0 U . S . at 5 7 0 : I q b a l . 129 S. C t . at 1 9 4 9 .

B.

Count III: False Arrest/False Imprisonment Claim

P l a i n t i f f s Count III alleging false arrest against Defendant Coats is lacking reference

to governing law. This Court construes Count III as alleged under 46 U.S.C. § 1983,

considering both the Plaintiffs allegations and unfavorable consequences under Florida law.1

In the Stale of Florida. Plaintiff Hoelper's false arrest/imprisonment claim
a g a i n s t D e f e n d a n t C o a t s u n d e r r e s p o n d e a t s u p e r i o r theory w o u l d be b a r r e d b e c a u s e o f the P l a i n t i f f s a l l e g a t i o n o f the D e f e n d a n t d e p u t i e s ' a c t i o n s w i t h m a l i c e ( C o m p l . 1j 6 3 ) , and the a g e n c y is not liable u n d e r s l a t e l a w for the m a l i c i o u s a c t s o f its e m p l o y e e s . S e e B o g g e s s v.
School Board of Sarasota County. No. 8:06-CV-2245-T-27EA.I. 2008 WL 564641 at *5

(M.D. Fla. Feb. 29. 2008): FLA. STAT. § 768.28(9)(a) (2009).

Under 42 U.S.C. § 1983, the framework for Count III is the s a m e as C o u n t I. As discussed before, the P l a i n t i f f fails to claim sufficient factual allegations as to a policy or

custom. The P l a i n t i f f s allegations o f the "deputy protection priority first over citizen justice

policies," "we are a family policy," and "nepotism continuance policy" lack any factual support to infer those policies (Compl. Iflj 63, 64). Additionally, Plaintiff Hoelper fails to identify a custom as a persistent and settled practice. Without identifying a policy or custom, the Plaintiff merely repeats a conclusory allegation of a causal link between the alleged policies and her constitutional injury. Therefore, the Plaintiffs Count III fails to state a
plausible cause o f action under 46 U.S.C. § 1983.

II.

Malicious Prosecution

Plaintiff Hoelper asserts a § 1983 claim for malicious prosecution (Count II) against
Defendants Zirkel and Wiltse based on the Defendants" alleged unlawful arrest, detention,

and participation on the subsequent criminal prosecution o f Plaintiff in the absence o f
probable cause.

To s t a t e a § 1 9 8 3 c l a i m for m a l i c i o u s p r o s e c u t i o n , t h e r e m u s t be an i n d e p e n d e n t s o u r c e for the federal right a l l e g e d l y violated. W h i t i n g v. Traylor, 85 F. 3d 5 8 1 , 583 ( 1 1 t h

Cir. 1996) The Eleventh Circuit has recognized that the Fourth A m e n d m e n t right to be free
from an unlawful s e i z u r e can s e r v e as the b a s i s for a § 1983 m a l i c i o u s p r o s e c u t i o n c l a i m .
W o o d v. K e s l e r . 3 2 3 F. 3 d 8 7 2 . 881 (1 l t h C i r . 2 0 0 3 ) . T o e s t a b l i s h a f e d e r a l m a l i c i o u s

prosecution c l a i m u n d e r § 1983, a p l a i n t i f f m u s t p r o v e " ( 1 ) the six e l e m e n t s o f the c o m m o n

law tort of malicious prosecution,2 and (2) a violation of her Fourth Amendment right to be
free from u n r e a s o n a b l e s e i z u r e s . " K i n g s l a n d v. C i t v o f M i a m i , 3 8 2 F. 3d 1 2 2 0 , 1 2 3 4 (1 l t h Cir. 2 0 0 4 ) .

A § 1983 claim for malicious prosecution under the Fourth Amendment requires that the deprivation of liberty -the seizure- must have been effected "pursuant to legal process"
because the essence o f malicious prosecution is "the perversion o f proper legal procedures."
Singer v. Fulton County S h e r i f f 63 F. 3d 110, 116-117 (2d Cir. 1995). Generally, the legal

process will be "either in the form of a warrant, in which case the arrest itself may constitute
the seizure, or a subsequent arraignment [after the arrest], in which case any postarraignment deprivation o f liberty" may satisfy the seizure under the Fourth Amendment, jd;
see also Whiting v. Traylor, 85 F. 3d 581, 585 (11th Cir. 1996). Thus, in a c a s e o f a

warrantless arrest, a p l a i n t i f f s arrest cannot serve as the predicate deprivation o f liberty for malicious prosecution "because the judicial proceeding does not begin until the parly is arraigned or indicted." Kingsland. 382 F. 3d at 1235; see also Singer. 63. F. 3d at 117 (explaining a warrantless deprivation of liberty from the moment o f arrest to the time o f arraignment is analogous in the tort o f false arrest, while the tort o f malicious prosecution

Under Florida law. a tort o f malicious prosecution requires " ( 1 ) an original judicial proceeding against the present p l a i n t i f f was commenced or continued; (2) the present defendant was the legal cause o f the original proceeding; (3) the termination o f the original proceeding constituted a bona fide termination o f that proceeding in favor o f the present plaintiff: (4) there w a s an a b s e n c e o f p r o b a b l e c a u s e for the o r i g i n a l p r o c e e d i n g ; (5) there was m a l i c e on the part o f the present d e f e n d a n t ; and (6) the p l a i n t i f f s u f f e r e d d a m a g e s as a
r e s u l t o f t h e o r i g i n a l p r o c e e d i n g . " K i n g s l a n d , 3 8 2 F. 3 d a t 1 2 3 4 .

will implicate post-arraignment deprivations of liberty.) Accordingly, a seizure occurring as
the result of an initiation of legal proceeding -arraignment or indictment- may serve as a

predicate for a § 1983 malicious prosecution claim. Kingsland, 382 F. 3d at 1235-36.
Defendants incorrectly argue that Plaintiff cannot state a cause of action as to a § 1983 claim for malicious prosecution because Plaintiffs arrest occurred prior to the commencement of criminal proceedings. However, in the case of warrantless arrest, an
arrestee can claim for false arrest for the pre-arraignment deprivation o f l i b e r t y , as well as

malicious prosecution for the post-arraignmenl deprivation ofliberty. Id. at 1234-36; Reys v.
City o f Miami. No. 07-22680-CTV, 2 0 0 8 WL 6 8 6 9 5 8 at *7-8 ( S . D . Fla. M a r . 13. 2 0 0 8 ) .

I [ere, Plaintiff claims for malicious prosecution only. Thus, if P l a i n t i f f s post-arraignment

deprivation ofliberty rises up to the level of the unreasonable seizure, her § 1983 claim for
malicious prosecution can be cognizable under the Fourth Amendment. In Kingsland, although the plaintiff failed to show a sufficient level of post-arraignment unreasonable
seizure, the Eleventh Circuit acknowledged that "continuing seizure" for post-arraignment would be "some significant, ongoing deprivation ofliberty, such as a restriction on the
d e f e n d a n t ' s right to travel interstate." 382 F. 3d at 1236.

Plaintiff alleges thai Defendants' false arrest and false charges caused pretrial condition to be imposed on her including a large bond and travel restrictions, and about

eighteen (18) months o f criminal proceeding, which ultimately resulted in acquittal (Compl.
ffif 2,3. 28. 30). On its face. P l a i n t i f f s complaint does not clarify the time o f initiation o f the legal process as lo malicious prosecution. However, the c o m p l a i n t ' s allegation o f arrest.

incarceration, and subsequent criminal proceeding, along with the elements of malicious

prosecution under Florida law, adequately encompass her post-arraignment deprivation of
liberty, which may constitute unreasonable seizure. Thus, if favorably construed, the

complaint sufficiently alleges Plaintiffs post-arraignment deprivation ofliberty and states her §1983 claim for malicious prosecution based on a violation of the Fourth Amendment
right to be free from unreasonable seizure.
III. Conspiracy

Plaintiff Hoelper alleges that Defendants, William Wiltse and Mark Zirkel, conspired
with Mark Z i r k e l ' s brother. Daniel Zirkel, to unlawfully cause P l a i n t i f f s arrest, detention,

and criminal prosecution as a punishment for Plaintiffs lawful complaint about Daniel Zirkel's illegal car and junk repair business to Pinellas County Code Enforcement (Count II). To establish a conspiracy claim under 42 U.S.C. § 1983. a plaintiff must allege three
(3) elements: "(1) a violation of [Plaintiffs'] federal rights: (2) an agreement among the
Defendants to violate such a right; and (3) an actionable wrong." Geidel v. Citv o l ' B r a d e n t o n

Beach. 56 F. Supp. 2d 1359, 1367 (M.D. Fla. 1999). Further, a plaintiff must plead a § 1983 conspiracy claim with particularity, and "merely conclusory, vague and general allegations of
conspiracy are not sufficient." to survive a motion to dismiss. Fullman v. Graddick. 738 F. 2d
5 5 3 . 5 5 6 - 5 7 (I l t h C i r . 1 9 8 4 ) .

D e f e n d a n t s a r g u e t h a t P l a i n t i f f s c o n s p i r a c y claim in C o u n t II s h o u l d be d i s m i s s e d based on c i t h e r the i n t r a c o r p o r a t e c o n s p i r a c y d o c t r i n e , or the failure to a l l e g e a c o n s p i r a c y with s u f f i c i e n t p a r t i c u l a r i t y . T h e i n t r a c o r p o r a t e c o n s p i r a c y d o c t r i n e is i n a p p l i c a b l e in this

11

case because Plaintiff clearly designates Mark Zirkel, a non-employee o f the Pinellas County

Sheriffs Office, as a part of the conspiracy and her factual allegations satisfy the elements of
a §1983 conspiracy claim. Here, P l a i n t i f f s complaint sufficiently alleges an agreement
between Defendants and Daniel Zirkel more than mere conclusory statements. According to

P l a i n t i f f s allegation, after her successful protest to the county about Daniel Zirkel's illegal
business, Daniel Zirkel and his wife attacked Plaintiff. After beating Plaintiff, Daniel Zirkel called to his brother. Defendant Deputy Zirkel, asking whether " i t ' s all worked out" and

"fh]e knows where h e ' s going." (Compl. 1| 19) Another Defendant, Deputy Wiltse, arrived
shortly thereafter and unlawfully arrested Plaintiff without probable cause.

Although Defendants argue that Plaintiffs allegations regarding Daniel Zirkel's
participation in the conspiracy are conclusory, her allegations are particular enough to suggest Daniel Zirkel as a part o f the conspiracy. Accepting the P l a i n t i f f s complaint as true,
Daniel Zirkel is the one who is affected by P l a i n t i f f s successful protest a g a i n s t his illegal business, who affirmatively attacked Plaintiff, and called to his Deputy brother after beating Plaintiff. Furthermore, the allegations o f Defendant W i l t s e ' s one-sided b e h a v i o r during his investigation, multiple phone calls belween Defendants, and family relationship o f Defendant Zirkel with Daniel Zirkel, sufficiently support allegations o f Daniel Z i r k e l ' s participation in conspiracy. Therefore, the complaint successfully alleges the existence o f an agreement among Defendants and Daniel Zirkel and satisfies the required e l e m e n t s to plead a § 1983
conspiracy claim.

12

IV.

Consortium

Plaintiff Michael Swann. husband o f Plaintiff Hoelper asserts a claim for loss o f

consortium. (Count IV) "Generally, loss of consortium is a derivative claim which must arise out some tort liability to the spouse." Crawford v. Citv of Tampa. No. 8:08-cv-927-T-26EAJ,
2009 WL 64905 at *2 (M.D. Fla. Jan. 9. 2009). Because Plaintiff Hoelper's § 1983 claim for

malicious prosecution survives Defedants' motions to dismiss. Plaintiff Swarm's loss of
consortium can be sustained as a derivative claim. Accordingly, it is O R D E R E D that Defendant, Jim C o a t s ' , Motion to Dismiss (Doc. 5) as to Plaintiffs'

complaint Count I and III is GRANTED with prejudice, and he is dismissed as a defendant
in this case. Defendants, Mark Zirkel and William W i l t s e ' s , M o t i o n s to Dismiss (Doc. No. 9, 11) as lo Plaintiffs' c o m p l a i n t Count II and Count IV are D E N I E D . T h e r e m a i n i n g defendants have ten (10) days from this date lo answer the complaint.

DONE AND ORDERED at Tampa, Florida, on (UAJT&SStL ^?*7 , 2010.

·hi

C o p i e s to: All parties and c o u n s e l o f record.