Hoelper et al v. Coats et al
Filing
70
ORDER granting 37 Motion for summary judgment; granting 51 Motion for summary judgment. The Clerk of Court is directed to enter judgment for the defendants William Wiltse and Mark Zirkel and to close this case. Signed by Judge Elizabeth A. Kovachevich on 11/14/2011. (SN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FRANCES BONNIE HOELPER.
and MICHAEL SWANN,
Plaintiff,
Case No. 8:10-cv-01324-EAK-EAJ
v.
JIM COATES, SHERIFF OF PINELLAS
COUNTY, et al,
Defendants.
ORDF.R ON DEFENDANTS' DISPOSITIVE MOTIONS FOR SUMMARY
JUDGMENT
THIS CAUSE comes before the Court upon Defendant, William Wiltse's,
("Deputy Wiltse") Motion for Summary Judgment (Doc. 51), Defendant, Mark Zirkel's,
Motion for Summary Judgment (Doc. 37). and Plaintiff, Frances Hoelper's, ("Hoelper"),
Response in Opposition to the motions (Doc. 60; Doc. 61). The Court, having considered
the motions, response, and being otherwise advised in the premises, concludes that the
Defendants' Motions for Summary Judgment should be GRANTED.
BACKGROUND
This matter involves claims brought under 42 U.S.C. § 1983 for violations of
Hoelper's Fourth Amendment rights and for malicious prosecution. Hoelper had
originally filed a four-count complaint against Deputy Wiltse, Deputy Mark Zirkel, and
Jim Coats, the Sheriff of Pinellas County. (Doc. 1). Three of the four counts have
subsequently been dismissed including the naming of Jim Coats as a party leaving only
Count II. (Doc. 21: Doc. 25). Count II of the Complaint essentially alleges that Daniel
Zirkel, Daniel's brother Deputy Mark Zirkel, and Deputy Wiltse entered into a
conspiracy to falsely arrest and maliciously prosecute Hoelper. (Doc. 1).
Prior to June 11, 2006, the Zirkels and Hoelper had been in a feud regarding
1Ioelper's complaints made to the Pinellas County Environmental Control and Code
Enforcement regarding a violation she observed at the Zirkels residence. On June 11.
2006. Daniel and Meranda Zirkel believed they observed Hoelper trespassing while
walking two dogs in a field. The Zirkels then began to take pictures of Hoelper
trespassing. The two parties got into an altercation that resulted in IIoelper being detained
against the Zirkels* Cherokee, partially inside the vehicle, until Mr. and Mrs. Locy,
arrived. The Locys were neighbors of both the Zirkels and Hoelper and, after hearing
IIoelper's screams for help, came to assist.
According to Hoelper, Daniel Zirkel started the altercation by reaching out,
picking her up. and dragging her into the vehicle. Alternatively, the Zirkels allege it was
Hoelper who initiated the altercation by lunging into the vehicle through the driver's side
window in an attempt to take the Zirkels' camera. Although both parties dispute who
started the incident, they agree that Hoelper was held partially inside of the vehicle until
the Locys' heard Hoelpers screams and came to assist at which point Daniel Zirkel
released her. The Locys later stated that at the time they came to assist Hoelper. they did
not see any scratches on Daniel Zirkel.
During the altercation. Hoelper alleges that Daniel Zirkel contacted his brother.
Deputy Mark Zirkel. with the intent to form a conspiracy between himself, his brother,
and Deputy Wiltse, who had been called by the dispatch to respond to the call, to have
Hoelper arrested. Portions of the conversation between Daniel and Mark Zirkel can be
heard via a 911 transcript as Meranda Zirkel was on the phone with a 911 operator while
her husband and Hoelper were involved in the physical conflict.
Deputy Wiltse and a second deputy arrived shortly after the dispute had calmed
down. Deputy Wiltse first talked to the Zirkels separately, and at that point, noticed
scratches on Daniel Zirkel's face and arm. The Zirkels each told Deputy Wiltse that it
was Hoelper who initiated the fight in an attempt to seize the camera.
Deputy Wiltse then spoke to Mr. and Mrs. Locy about what they had seen and
they both stated that neither one of them saw who initiated the attack. Deputy Wiltse then
spoke to Hoelper. Hoelper told Deputy Wiltse that it was Daniel Zirkel who initiated the
altercation by reaching out of the driver's side window, picking her up, and dragging her
halfway into the car with her blouse over her head.
Deputy Wiltse then requested a forensic specialist, Jennifer Hall, to be dispatched
to their location to collect evidence. Hall did not take any fingerprints or DNA samples
but did take a full length picture of Hoelper as well as pictures of the Zirkels and pictures
of the Zirkels digital camera viewer.
Based on his own experience and the information provided by all of the parties
involved, Deputy Wiltse placed I loelper under arrest for felony burglary and battery.
After the arrest Deputy Wiltse sent an e-mail to Deputy Zirkel letting him know of the
outcome stating "xl5 Burglary/Battery. OUTSTANDING!!!!!!!!, That would have been a
long ride, HA HA HA
yea definitely," which Hoelper alleges is further evidence of the
conspiracy. The State Attorney's Office later dropped the felony burglary charge and
lowered the battery to a misdemeanor battery, and in 2007 Hoelper was found not guilty
of the reduced charge.
DISCUSSION
Motions for summary judgment should only be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, show there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, All U.S. 317. 322. 106 S.Ct. 2548, 91 L.Ld.2d 265 (1986). The existence of
some factual disputes between the litigants will not defeat an otherwise properly
supported summary judgment motion: "the requirement is that there be no genuine issue
of material fact."////
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