Tozier v. City of Temple Terrace et al
Filing
20
ORDER granting 4 Defendants' Motion to Dismiss or in the Alternative Motion for a More Definite Statement; granting 19 Defendants' Motion for Sanctions. Plaintiff is directed to file a second amended complaint complying with the guide lines and restrictions discussed in the Order by September 22, 2011. Defendants shall file their motion for attorneys' fees and costs associated with their Motion for Sanctions by September 22, 2011. Any response thereto shall be filed within 14 days of the date of the motion. Signed by Judge Virginia M. Hernandez Covington on 9/8/2011. (CR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEITH E. TOZIER,
Plaintiff,
v.
Case No. 8:10-cv-2750-T-33EAJ
CITY OF TEMPLE TERRACE, et al.,
Defendants.
________________________________/
ORDER
This matter is before the Court pursuant to Defendants’1
Motion to Dismiss or in the Alternative Motion for a More
Definite Statement (Doc. # 4) and Motion for Sanctions (Doc.
# 19).
Plaintiff Tozier filed a brief Response in opposition
to the Motion to Dismiss (Doc. # 11), but has failed to file
a response to the Motion for Sanctions.
For the reasons
discussed herein, the Court finds that the motions are due to
be granted.
I.
Background
Tozier alleges that on or about June 24, 2006, he was
arrested by police officers of the Temple Terrace Police
Department.
1
Tozier
alleges
that
he
was
charged
with
City of Temple Terrace, City of Temple Terrace Police
Department, Michael Hensel, Robert Staley, Michael Desmarais, and
Marcus Hilebrand, individually and in their official capacities
(“Temple Terrace”).
“aggravated battery on a law enforcement officer with a deadly
weapon and ... resisting arrest without violence” and that he
was prosecuted by the State Attorney on those charges. Tozier
further asserts that “on December 4, 2008, the original charge
of aggravated battery on a law enforcement officer was reduced
with adjudication withheld.”
Tozier
subsequently
filed
an
removed
action
to
in
this
state
court,
Court.
which
Tozier’s
was
Amended
Complaint (Doc. # 2) alleges the following counts: Count I:
Violations of 42 U.S.C. § 1983: False Arrest; Count II:
Violations of 42 U.S.C. § 1983: False Detention-ConfinementImprisonment; Count III: Violations of 42 U.S.C. § 1983:
Excessive Force/Brutality; Count IV: Violations of 42 U.S.C.
§ 1983, § 1985: Conspiracy to Violate Civil Rights; Count V:
Violations of 42 U.S.C. § 1983: Refusing or Neglecting to
Prevent
-
Failure
to
Train
&
Supervise
Deliberate
Indifference; Count VI: Malicious Prosecution; Count VII:
Malicious
Abuse
of
Process;
Count
VIII:
False
Arrest
-
Confinement & Imprisonment; [there is no Count IX alleged];
Count X: Conspiracy; Count XI: Intentional Infliction of
Emotional Distress; Count XII: Trespass/Invasion; Count XIII:
Trespass/Invasion; [there is a second Count XIII alleged]
Count XIII: Assault - Battery; and Count XIV: Damages.
-2-
II.
Discussion
A.
Motion to Dismiss
i.
Standard of Review
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff.
Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further,
this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.
Health
&
Human
Servs.,
901
F.2d
Stephens v. Dep’t of
1571,
1573
(11th
Cir.
1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken as
true.”).
However, the Supreme Court explains that:
While 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 entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level...
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).
Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan
v.
Allain,
478
U.S.
265,
286
(1986).
In
all,
determining whether a complaint states a plausible claim for
-3-
relief will “be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
ii.
Analysis
Temple Terrace first argues that Temple Terrace Police
Department is not a proper defendant.2
This Court agrees.
Florida has examined the question as to the correct
party in interest as it pertains to police
departments and found the city or municipal
corporation to be the proper party. See Post v.
City of Fort Lauderdale, 750 F. Supp. 1131 (S.D.
Fla. 1990); Florida City Police Dept. v. Corcoran,
661 So.2d 409 (Fla. 3d DCA 1995). In so finding,
the courts have reasoned that the police department
is the vehicle through which the city fulfills its
policing functions. Therefore, the Florida courts
have found that the city police department is not a
legal entity and has no legal existence separate
and apart from the city. Corcoran, 661 So.2d at
410.
Mann v. Hillsborough County Sheriff’s Office, 946 F. Supp.
962, 970-71 (M.D. Fla. 1996). Under Florida law, police
departments are not legal entities amenable to suit.
See
Williams v. Miami-Dade Police Dep’t, 297 F. App’x 941 (11th
Cir. 2008); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.
1992); Post v. City of Fort Lauderdale, 750 F. Supp. 1131
(S.D. Fla. 1990); Eddy v. City of Miami, 715 F. Supp. 1553,
1556 (S.D. Fla. 1989); Shelby v. City of Atlanta, 578 F. Supp.
2
Tozier fails to respond to this argument in his response to
the Motion to Dismiss. See Doc. # 11.
-4-
1368, 1370 (N.D. Ga. 1984).
Accordingly, this action must be
dismissed as to the Temple Terrace Police Department.
Temple Terrace next moves to dismiss all the state tort
claims as to the City of Temple Terrace and the officers in
their official capacities because Tozier has failed to comply
with the notice provisions of Florida Statutes § 768.28.
Florida Statutes § 768.28(6)(a), in pertinent part,
states:
An action may not be instituted on a claim against
the state or one of its agencies or subdivisions
unless the claimant presents the claim in writing
to the appropriate agency ... within 3 years after
such claim accrues...
Fla. Stat. § 768.28(6)(a).
Temple Terrace does not contest that Tozier did in fact
mail a notice letter to the City of Temple Terrace Police
Department, which was stamped received on June 30, 2009.
Doc. # 4, Exh. A.
See
Additionally, the City of Temple Terrace
Police Department notes receiving an amended notice letter
from Tozier dated June 24, 2008, but received July 28, 2009.
See Doc. # 4, Exh. B.
Temple Terrace does argue, however,
that the incident/arrest of which Tozier complains occurred on
June 24, 2006, and Tozier, therefore, failed to comply with
the mandatory three-year period in which to serve the notice
on Temple Terrace.
This Court finds this argument to have
merit.
-5-
Tozier offers a very limited, one-paragraph response in
regard to the notice required under § 768.28.
Specifically,
Tozier argues that he had three years from the date the
charges were dismissed against him on December 4, 2008.
Tozier states that he served the notice well within this time
frame “and, if not, Plaintiff will assert equitable estoppel.”
Doc. # 11 at ¶ 4.3
The date upon which an action accrues for false arrest or
unlawful seizure is the date of the false arrest or unlawful
seizure.
See Diaz v. Metro Dade Police Dep’t, 557 So.2d 608,
609 (Fla. 3rd DCA 1990);
Hansen v. State, 503 So.2d 1324,
1326 (Fla. 1st DCA 1987);
Leatherwood v. City of Key West,
347 So.2d
441, 442 (Fla. 3d DCA 1977).
occurred on June 24, 2006.
Tozier’s arrest
As such, Tozier’s notice was
untimely as to his state law false arrest claim and the other
state law tort claims that accrued upon Tozier’s arrest
including trespass/invasion and assault-battery.
As
Tozier
failed
to
comply
within
the
statutorily
prescribed noticing period, which is a condition precedent to
filing
state
tort
causes
of
3
action
for
false
arrest,
The Court need not address Tozier’s equitable estoppel
argument, however, as Tozier does not even allude to a basis for
equitable estoppel. Assertion of equitable estoppel should have
been made in Tozier’s response to the Motion to Dismiss. The Court
is unsure of when Tozier otherwise expected an opportunity to
assert equitable estoppel in response to the Motion to Dismiss.
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trespass/invasion, and assault/battery against Defendant City
of Temple Terrace, Tozier is precluded from filing this suit
as to these state torts against the City of Temple Terrace or
any of the officers in their official capacities.
A claim for malicious prosecution generally accrues upon
prevailing in the criminal prosecution. See Cazares v. Church
of Scientology of Cal., Inc., 444 So.2d 442, 447 (Fla. 5th DCA
1983).
Accordingly, Tozier’s claim for malicious prosecution
would not have accrued until December 4, 2008.
Tozier’s
notice was served within three years of the accrual of the
malicious prosecution claim.
The City of Temple Terrace,
however, cannot be sued for malicious prosecution. Fla. Stat.
§ 768.28(9)(a); see City of Coconut Creek v. Fowler, 474 So.2d
820, 822 (Fla. 4th DCA 1985); Hambley v. State DNR, 459 So.2d
408, 411 (Fla. 1st DCA 1984)(malicious prosecution claim
barred by sovereign immunity); Johnson v. State Dep’t of
Health & Rehab. Servs., 695 So.2d 927, 930 (Fla. 2d DCA
1997)(sovereign immunity provisions of Fla. Stat. § 768.28(9)
bar an action for malicious prosecution against the state or
its subdivisions); Sebring Utils. Comm’n v. Sicher, 509 So.2d
968, 970 (Fla. 2d DCA 1987); Craven v. Metro Dade County, 545
So.2d 932, 933 (Fla. 3d DCA 1989). Accordingly, the state law
claims
for
malicious
prosecution
and
malicious
abuse
of
process must be dismissed as to the City of Temple Terrace.
-7-
In summary, the following counts must be dismissed as to
the City of Temple Terrace and the officers in their official
capacities for failing to comply with the notice requirements
of § 768.28, Counts VIII, XII and both Counts XIII. Counts VI
and VII for malicious prosecution and malicious abuse of
process are also dismissed as discussed above.
Temple Terrace next moves to dismiss Count IV (42 U.S.C.
§ 1983; 1985 - Conspiracy to Violate Civil Rights) and Count
X (Conspiracy pursuant to state law).
Temple Terrace argues
that the intracorporate conspiracy doctrine prevents recovery
under either count as to the City of Temple Terrace and as to
the officers in their official and individual capacities.
Tozier again failed to offer a response to this argument.
The intracorporate conspiracy doctrine holds that the
acts of corporate agents are attributed to the corporation
itself, thereby negating the multiplicity of actors necessary
for the formation of a conspiracy.
McAndrew v. Lockheed
Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000).
In other
words, a corporation cannot conspire with its employees, and
its employees cannot conspire among themselves when they are
acting within the scope of their employment as is alleged
numerous
times
in
the
Amended
Complaint.
Id.
The
intracorporate conspiracy doctrine applies to claims pursuant
to 42 U.S.C. § 1985, id. at 1037-38, and to civil rights
-8-
cases.
A.B.
v.
Seminole
County
Sch.
6:05CV802ORL31KRS, 2005 WL 2105961, at * 9
Bd.,
No.
(M.D. Fla. Aug.
31, 2005); Denney v. City of Albany, 247 F.3d 1172, 1190-91
(11th Cir. 2001).
corporations,
but
This doctrine applies not only to private
also
to
public,
government
entities.
Dickerson v. Alachua County Comm’n, 200 F.3d 761, 767 (11th
Cir. 2000).
As the only defendants in this case are the City of
Temple Terrace and the officers of the City of Temple Terrace
Police Department, there is not the multiplicity of actors
necessary to make a conspiracy possible.
The intracorporate
conspiracy doctrine necessitates dismissal of Counts IV and X.
Finally, Temple Terrace moves the Court to require a more
definite statement from Tozier as to the allegations in the
Amended Complaint.
Specifically, Temple Terrace points to
confusing and repetitive allegations that constitute a shotgun
pleading; counts that adopt previous counts; extraneous and
inapplicable federal claims; inappropriate allegations of
joint and several liability; and the use of a separate count
for damages.
The Court finds all these points well taken and
grants its motion for a more definite statement as to the
surviving counts.
-9-
B.
Motion for Sanctions
i.
Standard of Review
By presenting to the court a pleading, written motion, or
other
paper,
an
attorney
certifies
to
the
best
of
his
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, the legal contentions are
warranted by existing law or a nonfrivolous argument for
extending or modifying existing law or for establishing new
law and the factual contentions have evidentiary support (or
will
likely
have
evidentiary
support
after
a
reasonable
opportunity for further investigation or discovery).
Fed. R.
Civ. P. 11(b)(2-3); see also Lee v. Mid-State Land & Timber
Co., Inc., 285 F. App’x 601, 608 (11th Cir. 2008).
Sanctions are appropriate pursuant to Rule 11 “(1) when
a party files a pleading that has no reasonable factual basis;
(2) when the party files a pleading that is based on a legal
theory that has no reasonable chance of success and that
cannot be advanced as a reasonable argument to change existing
law; or (3) when the party files a pleading in bad faith for
an improper purpose.” Worldwide Primates, Inc. v. McGreal, 87
F.3d
1252,
1254
(11th
Cir.
1996)(quotation
and
citation
omitted).
“Sanctions may be imposed on the attorney, law firm, or
party if Rule 11 is violated, the offending party is provided
-10-
with an opportunity to withdraw the objectionable pleading and
fails to do so, and a motion for sanctions is filed with the
court.”
Lee, 285 F. App’x at 608 (citing Fed. R. Civ. P.
11(c)(1-2)).
A
court
generally
conducts
a
two-part
inquiry
when
considering a motion for sanctions: (1) whether the party’s
claims are objectively frivolous in view of the facts or law;
and if so, (2) whether the person who signed the pleadings
should
have
been
aware
that
they
Worldwide Primates, 87 F.3d at 1254.
were
frivolous.
See
Even if counsel had a
good faith belief that the claims were sound, sanctions must
be imposed if counsel failed to make a reasonable inquiry.
Id.
ii.
Analysis
Temple Terrace moves this Court for sanctions against
Tozier, his counsel, Daniel K. Schaffner, Luke Lirot, Ann
Allison and their respective law firms for violation of Rule
11(b) and Florida Statutes § 57.105.4
4
Temple Terrace argues
Section 57.105, Fla. Stat., states in pertinent part:
(1) Upon the court’s initiative or motion of any party, the
court shall award a reasonable attorney’s fee, including
prejudgment interest, to be paid to the prevailing party
in equal amounts by the losing party and the losing
party’s attorney on any claim or defense at any time
during a civil proceeding or action in which the court
finds that the losing party or the losing party’s
attorney knew or should have known that a claim or
(continued...)
-11-
that it has obtained a certified copy of a Judgment and
Sentence from the case file in the criminal case against
Tozier that reflects Tozier’s plea of guilty to the crime of
Assault on a Law Enforcement Officer, a misdemeanor of the
first degree under § 784.07, Fla. Stat.
A.
See Doc. # 19, Exh.
Based on this plea, Temple Terrace asserts that Tozier’s
Amended Complaint (Doc. # 2) and the allegations therein
violate the provisions of Rule 11 and § 57.105 of the Florida
Statutes. Again, Tozier has failed to file a response to this
motion.
Tozier alleges in the Amended Complaint that on or about
June 24, 2006, he was arrested by officers of the Temple
Terrace Police Department. Tozier alleges that he was charged
with “aggravated battery on a law enforcement officer with a
deadly weapon, resisting arrest with violence and resisting
arrest without violence” and that he was prosecuted by the
State Attorney on those charges.
See Doc. # 2 at ¶ 70.
Tozier further asserts that “[o]n December 4, 2008, the
original charge of aggravated battery on a law enforcement
4
(...continued)
defense when initially presented to the court or at any
time before trial:
(a) Was not supported by the material facts necessary
to establish the claim or defense; or
(b) Would not be supported by the application of thenexisting law to those material facts.
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officer
was
reduced
with
adjudication
withheld,
resisting arrest with violence was nolle prossed.”
# 2 at ¶ 94.
and
the
See Doc.
Temple Terrace now points to the omission by
Tozier that on that same date, Tozier, along with his criminal
defense attorney Luke Lirot (who now appears as co-counsel in
this action), entered a plea of guilty to the lesser charge of
Assault on a Law Enforcement Officer, as is reflected on the
Judgment and Sentence. See Doc. # 19, Exh. A. Temple Terrace
argues that most or all of Tozier’s claims in his Amended
Complaint are predicated upon his assertions that his arrest
on June 24, 2006, and his prosecution on charges stemming from
that arrest were not based upon probable cause, which is
belied by his plea of guilty to Assault on a Law Enforcement
Officer, a violation of § 784.07, Fla. Stat.
Under Florida law, a plea of guilty to the lesser charge
of Assault on a Law Enforcement Officer is equivalent to a
conviction.
Fla. Stat. § 960.291(3) (a conviction means a
guilty verdict by a judge or jury, or a guilty or nolo
contendre plea by a defendant, regardless of adjudication of
guilt); see also Behm v. Campbell, 925 So.2d 1070, 1072 (Fla.
5th DCA 2006)(no contest plea constituted conviction under
Florida law even though adjudication was withheld barring
false arrest and battery claims stemming from arrest).
-13-
Tozier entered a guilty plea to the charges that arose
out of his arrest and now seeks to have this Court review the
constitutionality of the seizure under § 1983.
This would
necessarily implicate the validity of the charges for which he
has already admitted guilt.
Under Heck v. Humphrey, 512 U.S.
477, 486-87 (1994), a plaintiff is precluded from bringing a
§ 1983 claim for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,
unless he shows that the conviction or sentence has been
reversed
on
direct
appeal,
expunged
by
executive
order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s
issuance of writ of habeas corpus, 28 U.S.C. § 2254.
The
Court is unaware that any of these pre-conditions to suit have
been met.
The “existence of probable cause at the time of
arrest ... constitutes an absolute bar to a section 1983
action for false arrest.”
Case v. Eslinger, 555 F.3d 1317,
1326-27 (11th Cir. 2009)(quotations and citations omitted).
In addition, a judgment of conviction is conclusive
evidence of probable cause, unless the judgment was obtained
by fraud, perjury, or other corrupt means. Behm, 925 So.2d at
1072 (citing Moody v. City of Key West, 805 So.2d 1018 (Fla.
3d DCA 2001); Carter v. City of St. Petersburg, 319 So.2d 602
-14-
(Fla. 2d DCA 1975)).
Again, the Court has no allegation or
evidence that Tozier’s plea was obtained by fraud or any
corrupt means.
As such, Tozier’s conviction establishes
probable cause for his arrest.
Accordingly, the conviction
and existence of probable cause are a bar to a false arrest
claim.
See Rushing v. Parker, 599 F.3d 1263, 1265 (11th Cir.
2010).
Likewise, Tozier’s claims of malicious prosecution and
abuse of process are barred as they also rely upon a claim of
absence of probable cause. See Williams, 297 F. App’x at 94647 (discussing absence of probable cause as an element of
malicious prosecution and § 1983 claims founded on malicious
prosecution); see also Sharp v. City of Palatka, 529 F. Supp.
2d 1342, 1350-51 (M.D. Fla. 2007).
Failure to establish any
element of malicious prosecution is fatal to the claim. Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).
Similarly, Tozier’s battery claim is foreclosed.
See Ojegba
v. Murphy, 178 F. App’x 888 (11th Cir. 2006)(allegations in
civil suit that contradict plaintiff’s plea of guilty to
criminal
charges
should
be
rejected).
In
summary
the
existence of probable cause forecloses Tozier’s claims under
Counts I, II, IV, VI, VII, VIII, X, XII, XIII and the second
misnumbered XIII.
-15-
As for the sanctionability of the assertion of these
claims, the Court finds that these claims are objectively
frivolous in view of the facts
specifically,
the
facts
that
presented to the Court;
Tozier
pled
guilty
to
a
misdemeanor crime stemming from the arrest and that plea
constitutes a conviction and conclusive proof of probable
cause for his arrest and prosecution.
The existence of
probable cause establishes the validity of the arrest and the
prosecution, and it forecloses, as a matter of law, claims
that rely upon the nonexistence of probable cause as a element
of the claim.
In addition, the Court finds that the person who signed
the pleadings should have been aware that they were frivolous.
Tozier pled guilty on December 4, 2008, and his counsel, Luke
Lirot, was present when the plea was taken.
Tozier did not
file his Amended Complaint in this action until November 22,
2010. Not only should Tozier’s counsel have been aware of the
frivolousness of these claims when they filed the initial
pleading but they have continued to advocate the claims
against Temple Terrace’s Motion to Dismiss.
Temple
Terrace
requests
that
the
Court
award
the
attorneys’ fees and costs associated with the Motion for
Sanctions and that the Court dismiss with prejudice those
-16-
claims that violation Rule 11(b). Such request is reasonable,
warranted, and hereby granted.5
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants’ Motion to Dismiss or in the Alternative
Motion for a More Definite Statement (Doc. # 4) is
GRANTED.
(2)
Defendants’ Motion for Sanctions (Doc. # 19) is
GRANTED.
(3)
Plaintiff is directed to file a second amended
complaint
complying
restrictions
2011.
with
discussed
the
herein
guidelines
by
September
and
22,
include
The Court notes that the claims remaining
a
claim
for
excessive
force/brutality
pursuant to 42 U.S.C. § 1983; a claim for failure
to train and supervise pursuant to 42 U.S.C. §
1983;
and
a
state
law
claim
for
intentional
infliction of emotional distress as to the officers
in their individual capacities only.
(4)
Defendants shall file their motion for attorneys’
fees and costs associated with their Motion for
5
The Court notes that counsel for Temple Terrace has certified
compliance with the safe harbor provision of Rule 11. See Doc. #
19 at 12.
-17-
Sanctions by September 22, 2011.
Any response
thereto shall be filed within 14 days of the date
of the motion.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of September, 2011.
Copies:
All Counsel of Record
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