Crisante et al v. Coats et al
Filing
46
ORDERED that the Defendants Motion to Dismiss (Dkt. 26) be DENIED as to Count I, GRANTED WITH PREJUDICE as to Counts II and IV, and GRANTED WITHOUT PREJUDICE as to Counts III and V. Additionally, Defendants motion is GRANTED WITHOUT PREJUDICE as to all claims against Defendants Coats in his individual and official capacities. Plaintiffs have ten (10) days to file an amended complaint. If none is filed within ten (10) days, Defendants have ten (10) days thereafter to answer the complaint as it now stands. Signed by Judge Elizabeth A. Kovachevich on 5/2/2012. (SS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MEGAN CRISANTE
and PMP CAFE,
Plaintiffs,
v.
Case No. 8:11-CV-2007-T-17TBM
JIM COATS, individually and in his
official capacity as Sheriff of Pinellas
County, Florida, et al.,
Defendants.
/
ORDER ON MOTION TO DISMISS
This cause is before the Court on:
Dkt. 26
Motion to Dismiss
Dkt. 34
Response
For the reasons set forth below, Defendants' Motion to Dismiss (Dkt. 26) is
denied as to Count I (Due Process), but granted with prejudice as to Counts II (First
Amendment) and IV (Injunctive Relief), and granted without prejudice as to Counts III
(Equal Protection) and V (Replevin). Further, Defendants' motion to dismiss all claims
against Sheriff Coats in his official and individual capacities is granted. The following
facts, taken as true for purposes of the instant motion, are gleaned from Plaintiffs'
Verified Complaint (Dkt. 2).
Case No. 8:11-CV-2007-T-17TBM
BACKGROUND
Plaintiffs, Megan Crisante and PMP Cafe, LLC (hereinafter referred to as
"Crisante" or "Plaintiffs"), filed the instant action against Jim Coats, individually and in
his official capacity as Sheriff of Pinellas County, Florida, and Jason Bahret and Paul J.
Giovanni, two detectives with the Pinellas County Sheriffs Office (hereinafter
collectively referred to as "Defendants"), on September 2, 2011. Crisante seeks
declaratory and injunctive relief preventing Defendants from taking any further
enforcement action against either her personally or against her business, Palm Harbor
Internet, pursuant to Florida's anti-gambling laws. Crisante claims Palm Harbor Internet
runs a legitimate sweepstakes promotion under Florida law and that her actions are
protected by the First, Fourth, Fifth, and Fourteenth Amendments to the Untied States
Constitution.
"Palm Harbor Internet sells prepaid long distance telephone cards, prepaid
cellular phones, cellular accessories, internet access time, and ... printing, faxing, and
copying services." (Dkt. 2, at H 18). It also operates a game promotion whereby
customers receive entries to a promotional "sweepstakes" proportionate to the number
of phone card minutes they purchase. (Dkt. 2, at U30). Customers can receive a free
entry by mailing a request to Phone-Sweeps, the sweepstakes sponsor, or by making a
request in person at Palm Harbor Internet itself. (Dkt. 2, at U 30).
[Cjustomers may use the computers on site to access the results of the
sweepstakes. Customers who use the computers to access their results
ordinarily do so because the computers display the results in connection
with an entertaining video game. This method of showing the results is
Case No. 8:11-CV-2007-T-17TBM
commonly called "game display," and it is the images used by the game
display to communicate the results of the sweepstakes that has caused
Defendants to pursue [enforcement] action.
The "game display" uses video games to animate raw computer data and
inform the customer whether a sweepstakes entry contains a winning
value. The video games use alphanumeric text, graphic icons, and
animations, some of which include simulations of casino games, to covey
the information.... [Customers may interact with the games but cannot
affect the results of the entries.
(Dkt. 2, at H 36-37). If customers do not wish to partake in the "game display" method
of learning their sweepstakes result, they can "learn if they have won the sweepstakes
by requesting the cashier to reveal the results via alphanumeric text, without fanfare on
the point of sale computer." (Dkt. 2, at H 38). In any event, customers who win the
sweepstakes are paid a cash prize, ostensibly on premises at Palm Harbor Internet.
Crisante claims the State of Florida has engaged in a pattern of harassment
against sweepstakes promotions through baseless criminal prosecutions and property
seizures. To that end, she cites nineteen criminal prosecutions against similar
sweepstakes retailers throughout the state, none of which were successful, and five
civil forfeiture actions, all of which were voluntarily dismissed, but in one of which the
property was not returned to its owner. (Dkt. 2, fl 48-49). Crisante also notes a
specific case brought by the Pinellas County Sheriffs Office against Mike's Internet
Cafe, and points out that said prosecution ended in dismissal of the charges by the
state attorney and voluntary dismissal of the Sheriffs forfeiture complaint. (Dkt. 2, at
U 50-54). Crisante accordingly claims that "[i]f prosecution ensues in the instant case,
there is no reasonable likelihood of the Defendants' obtaining a valid conviction." (Dkt.
Case No. 8:11-CV-2007-T-17TBM
2, U 70). With specific regard to Sheriff Coats, Crisante claims that Coats' comments to
the news media evince "a custom and policy with [the Sheriffs] office specifically
targeting Palm Harbor Internet's business model." (Dkt. 2, U 74).
Crisante contends that "[t]he Sheriff, intentionally, or with reckless disregard for
the truth, made material misrepresentations of fact in the Search Warrant Affidavit"
leading up to the issuance and execution of a search warrant at Palm Harbor Internet,
pursuant to which Defendants seized some eighty personal computers from
Defendants' business. (Dkt. 2, ffij 79-81). Detectives Bahret and Giovannoni
presented a Search Warrant Affidavit (hereinafter "affidavit") to The Honorable Thomas
McGrady, Pinellas County Circuit Judge, on July 14, 2011; Judge McGrady issued the
warrant that same day. (Dkt. 2, fl 99). Crisante avers that the affidavit included various
representations that Bahret and Giovannoni knew to be false, including:
a.
"said business ... offers a sole product for sale .. ."
b.
"after the free [sweepstakes] points are used additional points can
be purchased."
c.
"'sweepstakes points' can be purchased on the device with the
winnings . .."
d.
"the product being offered ... is not in the forefront of the
business
e.
"While there is some indication within the business of the consumer
product offered it is over whelmed [sic] by the advertisement within
the business to play sweepstakes and win cash."
f.
"the employee did not attempt to sell your Affiants a phone
card .. . ."
Case No. 8:11-CV-2007-T-17TBM
g.
"Your Affiants also found that they could purchase additional
chances to play the device ...."
h.
"they [the games] all allowed the wagering of funds."
i.
"There was little or no indication in the business of the consumer
service offered."
j.
"By entering the PIN, the user's account is accessed via the
network and the electronic funds are available to be wagered."
(Dkt. 2, U 81). Crisante claims each of the statements above is false and that Bahret
and Giovannoni knew as much when they swore to the affidavit; she also contends that,
but for these misrepresentations, the search warrant would not have issued.
Based upon the foregoing, Crisante urges that Defendants' seizures pursuant to
the search warrant were made without probable cause. (Dkt. 2, U 86). She also claims
that the items Defendants seized (which include numerous personal computers, a safe,
a sum of United States currency, a fax machine, a digital video recorder, and a
scanner) exceeded the scope of the search warrant, further violating Crisante's Fourth
Amendment right to be free from unreasonable searches and seizures.
The true gravamen of the complaint, however, is Crisante's contention that "[t]he
Defendants undertook this enforcement action to prohibit Palm Harbor Internet's
method and substance of communication relating to its [legal] sweepstakes." (Dkt. 2,
H 103). Crisante essentially argues that her sweepstakes promotion is consistent with
Florida law and that Defendants' enforcement action amounts to an unconstitutional
content-based restriction on lawful speech. (Dkt. 2, ffll 103-09). This Court described
Case No. 8:11-CV-2007-T-17TBM
the relevant gambling statutes, as well as Florida's game promotion exemption, in its
previous order denying Plaintiffs' motion for a preliminary injunction:
Section 849.08, Fla. Stat., which is entitled "Gambling," states: "[w]hoever
plays or engages in any game at cards, keno, roulette, faro or other game
of chance, at any place, by any device whatever, for money or other thing
of value, shall be guilty of a misdemeanor of the second degree,
punishable as provided in s. 775.082 or s. 775.083."
Under Florida law, sweepstakes or '"game promotion' means ... a
contest, game of chance, or gift enterprise, conducted within or
throughout the state and other states in connection with the sale of
consumer products or services, and in which the elements of chance and
prize are present." Fla. Stat. § 849.094(1 )(a).
"Any machine or device is a slot machine or device within the provisions of
this chapter if it is one that is adapted for use in such a way that, as a
result of the insertion of any piece of money, coin, or other object, such
machine or device is caused to operate or may be operated and if the
user, by reason of any element of chance or of any other outcome of such
operation unpredictably by him or her, may: (a) [r]eceive or become
entitled to receive any piece of money, credit, allowance, or thing of value,
or any check, slug, token, or memorandum, whether of value or otherwise,
which may be exchanged for any money, credit, allowance, or thing of
value . ..; or (b) [sjecure additional chances or rights to use such
machine, apparatus, or device, even though it may, in addition to any
element of chance or unpredictable outcome of such operation, also sell,
deliver, or present some merchandise,... or other thing of value." Fla.
Stat. §849.16(1).
Florida law prohibits the use of slot machines or devices, "pursuant to
which the user thereof, as a result of any element of chance or other
outcome unpredictable to him or her, may become entitled to receive any
money, credit, allowance, or thing of value or additional chance or right to
use such machine or device, or to receive any check, slug, token or
memorandum entitling the holder to receive any money, credit, allowance
or thing of value." Fla. Stat. § 849.15(1)(b).
(Dkt. 45, at 14-15).
Case No. 8:11-CV-2007-T-17TBM
In Count I of the complaint, Crisante sets forth a claim under 42 U.S.C. § 1983
for violation of her Fourth Amendment rights. (Dkt. 2, U 117-19). She contends that
the search warrant was insufficient to establish probable cause with regard to a
violation of Florida's gambling laws and that Defendants' seizure of Plaintiffs' property
exceeded the scope of the warrant. (Dkt. 2, U 120). She further argues that "[t]he
Sheriff has a custom and policy of unjustified and unlawful enforcement against
businesses like Palm Harbor Internet that... caused the violation of [her] constitutional
rights." (Dkt. 2, U 122).
Count II sets forth a § 1983 claim for violation of Crisante's First Amendment
rights. Here, Crisante claims that "use of Plaintiffs' computers to electronically
communicate the results of a contest, promotion, or sweepstakes and to provide
entertaining video games in connection therewith is both pure speech and expressive
activity ... within the ambit of the First Amendment. Defendants' enforcement actions
have completely eliminated Plaintiffs' customers' ability to engage in this activity." (Dkt.
2, H127).
According to Crisante, Defendants' enforcement actions have abridged
her right to engage in lawful game promotions under Florida law, even ifthose
sweepstakes promotions "include[] video game displays of images of Las Vegas slot
games." (Dkt. 2, H 137).
Count III contains a § 1983 claim under the Equal Protection Clause of the
Fourteenth Amendment. Cristante's theory here is that "Defendants have violated
Plaintiffs* rights to equal protection under the law, as similarly situated busiensses are
Case No. 8:11-CV-2007-T-17TBM
permitted to conduct sweepstakes pursuant to Florida law[, and] Plaintiffs have been
unreasonably classified and discriminated against based upon their chosen method of
revealing sweepstakes entries." (Dkt. 2, at U 143). In particular, Crisante claims that
"Defendants have irrationally discriminated against [her,] presumably because [she]
display[s] casino images in connection with informing participants in [her] sweepstakes
whether they have won." (Dkt. 2, fl 147). She further contends that "Defendants permit
countless other promotion sweepstakes in their jurisdiction that are offered online and
that pay cash as a prize," including the "Challenge Butter '100 Years, 100 Days of
Winners' Sweepstakes," the "Cheez-lt 'Real American Roadtrip' Sweepstakes," and the
"American Family '$50,000 in Cold, Hard Cash' Sweepstakes." (Dkt. 2, U 147).
Crisante claims Defendants are discriminating against her and her business "to harass
Plaintiffs and extinguish their First Amendment activity because of Defendants' dislike
for the content of the communications." (Dkt. 2, U 150).
Crisante styles Count IV as "Temporary and Permanent Injunctive Relief," and
alleges that "Defendants' actions, with the resulting closure of Palm Harbor Internet, will
result in a substantial loss of First Amendment freedoms - even if Plaintiffs eventually
prevail in the trial on the merits." (Dkt. 2, H 153). She claims the "threat of civil and
criminal penalties ... creates an imminent risk of irreparable harm" due to the potential
loss of Plaintiffs' purported First Amendment freedoms, that she has no adequate
remedy at law, and that the public interest favors issuance of an injunction. (Dkt. 2, U
153-58). Crisante prays for a preliminary injunction as well as "a permanent injunction
Case No. 8:11-CV-2007-T-17TBM
enjoining, restraining, and prohibiting Defendants, their agents, officers, servants, and
employees from taking further action against Plaintiffs for their business operation."
(Dkt. 2, U 158). This Court denied Plaintiffs' request for a preliminary injunction in an
order dated April 17, 2012, leaving only the permanent injunction element of Count IV
for resolution here. (Dkt. 45).
In each of Counts I through IV, Crisante seeks declaratory judgments
pronouncing Defendants' actions unconstitutional, in addition to costs and attorneys'
fees as per 42 U.S.C. § 1988.
Finally, in Count V, Crisante requests a Writ of Replevin "pursuant to 42 U.S.C.
§ 1983 and Fla. Stat. § 78.01 etseq." She seeks to replevy all the property taken
pursuant to the search warrant, arguing that the Defendants seized said property "under
the false pretense that it constitutes illegal gambling paraphernalia." (Dkt. 2, U 163-66).
In addition to the writ of replevin, Crisante also requests monetary damages, costs, and
attorneys'fees. (Dkt. 2, H 166).
STANDARD OF REVIEW
Federal Rule of Civil Procedure Rule 8(a)(2) requires that a plaintiffs complaint
lay out "a short and plain statement of the claim showing that the pleader is entitled to
relief in order to "give the defendant fair notice of what the ... claim is and the grounds
upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). That said, "[w]hile a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief
Case No. 8:11-CV-2007-T-17TBM
requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S 544, 555 (2007)
(internal quotation marks and citation omitted).
Therefore, "to survive a motion to dismiss, a complaint must now contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on
its face."' Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010)
(quoting Twombly, 550 U.S. at 570). In considering a motion to dismiss, courts follow a
simple, two-pronged approach: "1) eliminate any allegations in the complaint that are
merely legal conclusions; and 2) where there are well-pleaded factual allegations,
'assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.'" Id. at 1290 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
In sum, the "pleading standard Rule 8 announces does not require 'detailed factual
allegations,' but demands more than an unadorned, the defendant-unlawfully-harmedme accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
DISCUSSION
Defendants essentially wage a three-pronged attack on the sufficiency of
Crisante's complaint. First, Defendants claim Crisante has failed to demonstrate a
municipal policy sufficient to support § 1983 liability with regard to the claims against
Sheriff Coats in his official capacity. Next, they contend Crisante has failed to state a
claim upon which relief can be granted with respect to the substantive allegations in
each of Counts I through V. And finally, Defendants argue that Crisante's claims
10
Case No. 8:11-CV-2007-T-17TBM
against Sheriff Coats and Detectives Bahret and Giovannoni in their individual
capacities must be dismissed because each is qualifiedly immune from damages. As
will be shown, though Defendants' third argument is unavailing, the former two are welltaken; the Court will accordingly grant Defendants' motion in part and dismiss Counts II
and IV with prejudice and Counts III and V without prejudice. The Court also denies
Defendants' motion as to Count I, but grants Defendants' motion to dismiss all counts
against Sheriff Coats in his official and individual capacities without prejudice.
1. Claims Against Sheriff Coats
Defendants first argue that Crisante's complaint fails to allege the official custom
or policy necessary to sustain § 1983 liability against Sheriff Coats in his official
capacity. "Official-capacity suits ... 'generally represent only another way of pleading
an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473
U.S. 159, 165 (1985) (quoting Monellv. N.Y.C. Dep'tof Social Servs., 436 U.S. 658,
690 n.55 (1978)). Therefore, Crisante's claims against Coats in his official capacity are
in actuality claims against either Pinellas County or the Pinellas County Sheriffs Office.
See Samarco v. Neumann, 44 F. Supp. 2d 1276, 1287 (S.D. Fla. 1999) (""[A]cts of
Sheriff Neumann found violative of § 1983 are capable of imputing liability upon the
Palm Beach County Sheriffs Office."). As the Eleventh Circuit itself has noted,
however, its "decisions have not been entirely consistent on whether the relevant entity
in an official-capacity suit against a sheriff in Florida is the County or the Sheriffs
Department (as a unit operating autonomously from the County)." Brown v. Neumann,
11
Case No. 8:11-CV-2007-T-17TBM
188 F.3d 1289, 1290 n.2 (11th Cir. 1999). But the determination of which entity is the
proper defendant in an official-capacity suit against the sheriff is of no moment here;
because Crisante's official capacity claims fail for a more fundamental reason, this
Court need not—and will not—pass upon that more peripheral question to resolve the
instant dispute.
That is so because, regardless of all else, in order to prevail on her claims
against Coats in his official capacity under § 1983, Crisante must prove that actions
taken under color of state law deprived her of her federal rights, and that an official
policy—"a municipal policy of some nature"—caused the constitutional tort. Monell, 436
U.S. at 691. "In other words, a municipality may not be found liable simply because
one of its employees committed a tort." Bd. ofCnty. Comm'rs v. Brown, 520 U.S. 397,
405 (1997). Put yet another way:
Section 1983 liability may not be premised solely upon a respondeat
superior theory—i.e., a county may not be held liable solely by virtue of
the employment relationship linking itto the offending employee. Rather,
only deprivations undertaken pursuant to governmental "custom" or
"policy" may lead to the imposition of governmental liability.
Mandel v. Doe, 888 F.2d 783, 791 (11th Cir. 1989). To be sure, in certain situations
municipal liability can be imposed for the single decision of a municipal official, but only
ifthat official is endowed with final policymaking authority. Id. at 792 (citing Cityof St.
Louis v. Praprotnik, 485 U.S. 112,127 (1988)).
Given those elementary principles, the Court need not belabor the point,
because Crisante's Verified Complaint contains none of the predicate facts necessary
12
Case No. 8:11-CV-2007-T-17TBM
to support a claim against Defendant Coats in his official capacity. Though Crisante
points to her citation of various comments Sheriff Coats made to the news media as
evidence of a policy or custom, such statements are insufficient to show a plausible
claim that the Sheriff maintained an unconstitutional custom or practice. (Dkt. 2, ffij
74-80). There is nothing remotely objectionable—let alone unconstitutional—about the
Sheriffs statements. And without those statements, the only discussion at all of Sheriff
Coats in Crisante's entire complaint consists of conclusory assertions such as, "The
Sheriff has a custom and policy of unjustified and unlawful enforcement against
business like Palm Harbor Internet that constituted deliberate indifference to Plaintiffs'
constitutional rights, and that policy caused the violation of Plaintiffsf] constitutional
rights." (Dkt. 2, fl 122). This Court disregards such unadorned legal conclusions,
leaving Crisante with nothing at all upon which to base § 1983 liability against Coats.
See Am. Dental Ass'n, 605 F.3d at 1290 (explaining that the first step in any court's
Rule 12(b)(6) inquiry is to "eliminate any allegations in the complaint that are merely
legal conclusions"); see also Rosario v. Miami-Dade Cnty, 490 F. Supp. 2d 1213, 1221
(S.D. Fla. 2007) (noting that, "[a]s a general rule, conclusory allegations and
unwarranted deductions of fact are not admitted as true in a motion to dismiss."
(alteration in original) (internal quotation marks omitted)). Because Crisante's
allegations against Defendant Coats in his official capacity contain no more than a
"formulaic recitation of the elements of a cause of action," the Court grants Defendants'
motion to dismiss those claims without prejudice. See Twombly, 550 U.S at 555. And
13
Case No. 8:11-CV-2007-T-17TBM
because Crisante does not actually allege that Defendant Coats did anything at all
personally (other than make a few immaterial comments to the news media, (Dkt. 2, ffi[
74-80)), the claims against Sheriff Coats in his individual capacity will also be
dismissed without prejudice. If and when Plaintiffs amend their complaint, they can
attempt to correct these deficiencies in order to state a claim for municipal liability and
individual liability as to Sheriff Coats under § 1983.
2. Failure to State a Claim
A. Count I: Fourth Amendment
Crisante next alleges that her property was seized in violation of the Fourth
Amendment because Detectives Bahret and Giovannoni included intentional
misrepresentations in their search warrant affidavit. Defendants claim that, even if
there are falsehoods in the search warrant, such misstatements are immaterial
because, even excluding those components of the affidavits, there was sufficient
probable cause to support the seizure of Plaintiffs' property.
Defendants' theory rests on the assumption that, "to determine whether the
movant's Fourth Amendment rights were violated, the Court must consider: (1) whether
the alleged misstatements in the affidavit were made either intentionally or in reckless
disregard for the truth and, if so, whether, after deleting the misstatements, the affidavit
is insufficient to establish probable cause." (Dkt. 26, at 9) (citing Franks v. Delaware,
438 U.S. 154, 171-72 (1978)). But "[n]othing in the [Franks] opinion suggests that the
Supreme Court intended to establish pleading requirements for a section 1983 claim
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against a law enforcement officer or agency for an allegedly unlawful arrest" or,
presumably, for an allegedly unlawful search or seizure. Gordon v. Beary, No. 6:08-cv73-ORL-19KRS, 2008 WL 3258496, at *6 (M.D. Fla. Aug. 6, 2008) (Fawsett, C.J.).
"Rather, to maintain a section 1983 claim[, Plaintiffs] must establish the violation of an
underlying federal right as it has been defined by the controlling case law." Id.
"When the Fourth Amendment demands a factual showing sufficient to comprise
'probable cause,' the obvious assumption is that there will be a truthful showing."
Franks, 438 U.S. at 164-65 (citation omitted) (emphasis in original). And though this
truthfulness requirement does not mean "that every fact recited in the warrant affidavit
is necessarily correct... [it does mean, at a minimum,] that the information put forth is
believed or appropriately accepted by the affiant as true." Id. at 165. "Thus, a police
officer may be held liable under 42 U.S.C. § 1983 for submitting an application for an
arrest warrant that contains false information." Holmes v. Kucynda, 321 F.3d 1069,
1083 (11th Cir. 2003); see Kingsland v. Miami, 382 F.3d 1220, 1229 (11th Cir. 2004)
("[Falsifying facts to establish probable cause is patently unconstitutional and has been
so long before [the plaintiffs] arrest in 1995.").
In their complaint, Plaintiffs assert that Defendants made material
misrepresentations of fact in the search warrant affidavit such that they fabricated the
probable cause necessary to sustain the seizure of Plaintiffs' property. (Dkt. 2, at
ffll 81-86). Taken as true, as they must be at this stage of the litigation, these
allegations are sufficient to state a claim for the violation of Cristante's Fourth
15
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Amendment rights. See Holmes, 321 F.3d at 1083-84 (reversing district court's grant
of summary judgment on this issue because "the facts support a conclusion that [the
officer's] warrant application included deliberately false statements"); Kelly v. Curtis, 21
F.3d 1544,1554 (11th Cir. 1994) (noting that "a police officer violates the Constitution
by obtaining a warrant based on perjurious or recklessly false testimony"); see also
Gordon, 2008 WL 3258496, at *6 ("[Plaintiff] contends that her property was seized
without probable cause and retained even after criminal charges were dropped ... Her
allegations are sufficient to establish a violation of the Fourth Amendment."). True
enough, Crisante's Fourth Amendment claim will ultimately fail if she cannot show that
knowing or reckless misrepresentations were made, but to make such a determination
here would be to place the cart before the horse because, as any first-year civil
procedure student knows, the Court must take all of Crisante's allegations as true in
ruling on the instant motion to dismiss. Twombly, 550 U.S. at 555 (explaining that, on a
Rule 12(b)(6) motion, the assumption is "that all the allegations in the complaint are true
(even if doubtful in fact)"). Defendants' motion to dismiss Count I is denied.
i. Qualified Immunity
Defendants also argue that, even if Detectives Bahret and Giovannoni might
ordinarily be liable for the alleged violation of Crisante's Fourth Amendment rights, the
Court should dismiss the claims against them under a theory of qualified immunity.
First, it is axiomatic that "qualified immunity may not be effectively asserted as a
defense to a claim for declaratory or injunctive relief." Ratliffv. DeKalb Cnty, 62 F.3d
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338, 340 n.4 (11th Cir. 1995). At the same time, it is equally clear that "for qualified
immunity purposes, the term 'damages' includes costs, expenses of litigation, and
attorneys' fees claimed by a plaintiff against a defendant in the defendant's personal or
individual capacity." D'Aguanno v. Gallagher, 50 F.3d 877, 881 (11th Cir. 1995).
In this case, Crisante seeks declaratory relief, costs and attorneys' fees against
all Defendants as to Counts I through IV. Based upon the foregoing, it is plain that
qualified immunity will not shield Detectives Bahret and Giovannoni from declaratory
judgments that their conduct was constitutionally offensive. Qualified immunity,
however, might well preclude Crisante's recovery of the prayed-for costs and fees, but
only ifthe right Defendants allegedly violated was not clearly established at the time of
the constitutional violation.
"Qualified immunity offers complete protection for government officials sued in
their individual capacities as long as their conduct violates no clearly established
statutory or constitutional rights of which a reasonable person would have known."
Hoytv. Cooks, 672 F.3d 972, 977 (11th Cir. 2012) (internal quotation marks omitted).
"The purpose of this immunity is to allow government officials to carry out their duties
without the fear of personal liability or harassing litigation, protecting from suit 'all but
the plainly incompetent orone who is knowingly violating the federal law.'" Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal citations omitted) (quoting
Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001)).
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Crisante accuses Detectives Bahret and Giovannoni of intentionally or recklessly
submitting a false affidavit in support of the warrant that led to the seizure of the Palm
Harbor Internet property. (Dkt. 2, at ffl[ 81-86). Ifthe detectives intentionally falsified
the search warrant affidavit (and this Court must assume as much here), then, they
would have knowingly violated the law, and even the broad shroud of qualified immunity
will not protect them. Holmes, 321 F.3d at 1084 ("If a reasonable officer would have
known that [the officer's] testimony was not just negligently false, but recklessly so, then
[that officer] is not entitled to qualified immunity." (internal quotation marks omitted));
Kelly, 21 F.3d at 1554 (noting that "a police officer violates the Constitution if, in order to
obtain a warrant, she perjures herself or testifies in reckless disregard of the truth"); see
also Garmon v. Lumpkin Cnty, 878 F.2d 1406, 1410-11 (11th Cir. 1989) (holding that
qualified immunity did not protect sheriff who directed an investigator to submit a
warrant application containing knowingly false statements). The Court pauses to note
that its determination is not a finding that Defendants will not eventually be entitled to
qualified immunity; to the contrary, once Plaintiffs are put to their proof, and in the event
they fail to create a material issue of fact as to whether the alleged misstatements were
intentionally or recklessly made, or whether the warrant would have issued in any event,
summary judgment may well be appropriate.
B. Count II: First Amendment
The true locus of Crisante's cause of action is her argument that, by seizing the
Palm Harbor Internet property, property she alleges was being used to carry out her
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wholly lawful game promotion enterprise, Defendants unconstitutionally suppressed her
ability to engage in speech related to gambling and, as such, violated the First
Amendment. Just as it did at the preliminary injunction stage, however, see Dkt. 45,
Crisante's argument here too must fail. As this Court explained in holding that Crisante
had failed to demonstrate a substantial likelihood of success on the merits:
[T]his court has recently decided a similar case, Allied Veterans of the
World, Inc.: Affiliate 67 v. Seminole County, that illuminates many of the
issues at play here. 783 F. Supp. 2d 1197 (M.D. Fla. 2011) (Antoon, J.)
(hereinafter "Allied Veterans /"), afTd, No. 11-12185, 2012 WL 933342
(11th Cir. Mar. 21, 2012) (per curiam) (hereinafter "Allied Veterans ///").
The plaintiffs in Allied Veterans operated Phone-Sweeps businesses
nearly identical to those implicated in the case subjudice, and sued to
challenge a Seminole County ordinance that prohibited "simulated
gambling devices"1 as repugnant to the First Amendment guarantee to
freedom of speech. Allied Veterans I, 783 F. Supp. 2d at 1199-1201.
More specifically, and of particular import to the instant case, the plaintiffs
"assert[ed] that the Ordinance violate[d] the First Amendment as applied
to them because it [was] a content-based restriction on speech." Id. at
1202. This court rejected that argument, noting:
[T]he Ordinance in no way prohibits access to the internet; it
only regulates the simulated gambling devices.
Furthermore, although the games played at OperatorPlaintiffs' establishments may constitute protected speech,
the Ordinance only bans the games if all elements of the
definition of "simulated gambling device" are present. As
noted above, a device must entitle the player to the
possibility of a payoff in order to constitute a "simulated
gambling device." None of the video games at issue is
banned on its own—only the playing of such a game in
1The ordinance defined "simulated gambling devices" as "any device that, upon
connection with an object, is available to play or operate a computer simulation of any
game, and which may deliver or entitle the person or persons playing or operating the
device to a payoff." Allied Veterans I, 783 F. Supp. 2d at 1201.
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conjunction with the possibility of a payoff is banned.
Therefore, Operator-Plaintiffs are free to provide the video
games to their patrons and their patrons are free to play
them—and thus make and receive whatever protected
message is communicated by the video game—so long as
the games are not associated with a payoff.
Operator-Plaintiffs also argue that the Ordinance bans
speech that is "associated with gambling." This argument
takes the Ordinance out of context. The "associated with
gambling" language is part of the definition of "game." A
"game" as defined by the Ordinance includes games that
are, or could be, associated with gambling. The ordinance
in no way bars all speech associated with gambling; it only
bans games associated with gambling if those games also
provide the possibility of a payoff.
Id. (emphasis in original) (footnote omitted).
Further, in a subsequent order denying the Allied Veterans plaintiffs'
motions to stay trial court proceedings pending appeal and for an
injunction pending appeal, this court rejected the plaintiffs' assertion that
Brown v. Entertainment Merchants Association, — U.S. —, 131 S. Ct.
2729 (2011), and Citizens United v. Federal Election Commission, — U.S.
—, 130 S. Ct. 876 (2010) alter the constitutional analysis, again noting
that the Ordinance did not outlaw the speech underlying the sweepstakes
games itself, but rather proscribed the conduct of providing a payoff when
facilitating the use of a simulated game device. Allied Veterans of the
World, Inc.: Affiliate 67 v. Seminole Cnty, No. 6:11-CV-155-Orl-28DAB,
2011 WL 3958437, at **1-3 (M.D. Fla. Sept. 8, 2011) (hereinafter Allied
Veterans //").
The Eleventh Circuit affirmed the denial of plaintiffs motion for a
preliminary injunction
This Court concurs with Judge Antoon's reasoning in both Allied Veterans
I and //; therefore, and applying the teachings of those cases to the facts
at hand, it quickly follows that any potential enforcement of Florida's
gambling laws pursued by Defendants here restricts conduct, not speech.
The state of Florida is merely investigating a potential violation of its
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gambling laws. In that regard, the instant case is simply beyond the pale
of the First Amendment's protection.
(Dkt. 45, at 18-21). Nothing has changed since the Court's order denying a preliminary
injunction in this case, and Judge Antoon's mode of analysis in Allied Veterans I and II
still rings true today. At bottom, no matter how many times Crisante amends her
complaint, the fact will remain that the conduct she alleges to be constitutionally
repugnant is simply not contemplated by the First Amendment. And though the Court is
mindful of the liberal pleading standards adhered to in this Circuit, because Crisante's
First Amendment claim is foundational^ deficient, it fails to "state a claim to relief that is
plausible on its face.'" Twombly, 550 U.S. at 570. Defendants' motion to dismiss
Count II is granted with prejudice.
C. Count III: Equal Protection
In Count III, Crisante alleges that Defendants violated her equal protection rights
by singling her out for prosecution and thereby "unreasonably classified and
discriminated against [her] based upon [her] chosen method of revealing sweepstakes
entries." (Dkt. 2, U143). This type of equal protection claim is commonly referred to as
a "class-of-one" claim; it is implicated "where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and thatthere is no rational
basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000).
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The Eleventh Circuit has enunciated an exacting standard for the pleading of
class-of-one claims: the plaintiff must allege the existence of some similarly situated
individual who was treated more favorably than the plaintiff herself. Griffin Indus., Inc.
v. Irvin., 496 F.3d 1189, 1204-05 (11th Cir. 2007). Moreover, this similarly situated
requirement requires plaintiffs "to demonstrate that they were treated differently than
establishments who are 'prima facie identical in all relevant respects.'" George's Place,
LLC v. Smith, No. 3:11-cv-1096-J-37JBT, 2012 WL WL 360161, at *8 (M.D. Fla. Feb. 2,
2012) (quoting Griffin Indus., Inc., 496 F.3d at 1204). "The rationale behind this
requirement is to allow the court to determine whether the plaintiffs treatment was
actually the result of discrimination, as opposed to a decision based on facts peculiar to
the plaintiffs situation." Hawkins v. Eslinger, No. 6:07-cv-1261-Orl-19GJK, 2008 WL
2074409, at*1 (M.D. Fla. May 15, 2008) (Fawsett, C.J.).
The instant equal protection claim is specifically predicated upon Crisante's
allegation that Defendants have engaged in selective law enforcement action against
her. "'[F]or selective and reverse-selective enforcement claims, the plaintiff must
provide compelling evidence of other similarly situated persons who were in fact treated
differently, because the multiplicity of relevant (nondiscriminatory) variables involved in
law enforcement decisions are not readily susceptible to the kind of analysis courts are
competent to undertake in assessing equal protection claims.'" Id. at *2 (quoting Grubbs
v. Gailes, 445 F.3d 1275, 1282 (10th Cir. 2006)).
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In her complaint, Crisante appears to cite the "Challenge Butter '100 Years, 100
Days of Winners' Sweepstakes," the "Cheez-lt 'Real American Roadtrip' Sweepstakes,"
and the "American Family '$50,000 in Cold, Hard Cash' Sweepstakes" as her similarly
situated comparators. (Dkt. 2, H 147). In the Court's view, however, these
sweepstakes are only marginally (if at all) similar to the internet cafe sweepstakes that
lie at the heart of this case. Whatever the case, they certainly fall short of the "prima
facie identical" comparator standard necessary to state a claim upon which relief can be
granted. George's Place, LLC, 2012 WL WL 360161, at *8. Crisante's claim is further
belied by the fact that the only actual similarly situated established referenced in the
entire complaint, Mike's Internet, was prosecuted by Defendants in exactly same way
as were Plaintiffs. (Dkt. 2, U 52). In other words, and though the Court recognizes that
inconsistent pleadings are acceptable on their face, see Fed. R. Civ. P. 8(d), the class-
of-one legal theory upon which Crisante bases her equal protection claim finds no
support whatsoever in her complaint. Crisante has therefore failed to state a claim
upon which relief can be granted. See Douglas Asphalt Co. v. Gore, Inc., 541 F.3d
1269, 1275 (11th Cir. 2008) (affirming district court's dismissal on the pleadings
because "the complaint fails to allege that [the supposed comparator] was similarly
situated "in light of all the factors that would have been objectively reasonable" to [state]
officials); Hawkins, 2008 WL 2074409, at *4 ("Plaintiffs failure to allege the existence of
a factually-similar comparator means there is no way to determine whether Yolanda
Anderson was discriminated against as a 'class of one,' or whether she was simply the
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Case No. 8:11-CV-2007-T-17TBM
victim of poor law enforcement. The first scenario is actionable under section 1983; the
second is not." (emphasis in original)); see also George's Place, LLC, 2012 360161, at
*9 ("There is insufficient evidence from which the Court could derive that the
'comparators' Plaintiffs cites are 'prima facie identical.'"). Defendants' motion to dismiss
Count III is granted without prejudice.
D. Count IV: Injunctive Relief
Count IV of Plaintiffs' complaint sets forth a claim under § 1983 for "Temporary
and Permanent Injunctive Relief." (Dkt. 2, U 152). The Court first notes that neither
§ 1983 nor the mechanism of injunctive relief is capable of conferring substantive rights.
Rather, § 1983 "merely provides a remedy for deprivations of federal statutory and
constitutional rights." Almandv. DeKalb Cnty, 103 F.3d 1510, 1512 (11th Cir. 1997).
And it goes without saying that injunctive relief, along with money damages, is a
quintessential form of judicial remedy, not a rights-conferring device in and of itself.
A close reading of Plaintiffs' Count IV, however, reveals that it is actually just a
rehashed version of Plaintiffs' First Amendment claim (Count IV). See Dkt. 2,
1H1153-56 (requesting injunctive relief to protect Plaintiffs' "First Amendment freedoms"
and "rights of free speech and expression"). Despite being clad in different clothing, the
substance of this claim is equally unavailing. And because the Court has already
granted Defendants' motion to dismiss Count II of Plaintiffs' complaint, it necessarily
follows that Count IV fails, too. Defendants' motion to dismiss Count IV is granted with
prejudice. That said, if they amend their complaint, Plaintiffs are free to add prayers for
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Case No. 8:11-CV-2007-T-17TBM
injunctive relief to the "wherefore" clauses of whatever claims survive the instant motion
to dismiss, as they should have done in styling their complaint in the first instance.
E. Count V: Replevin
Count V of Plaintiffs' complaint is purportedly a claim for a "Petition for Writ of
Replevin" "pursuant to 42 U.S.C. § 1983 and Fla. Stat. § 78.01." (Dkt. 2, fl 160). The
Court begins by noting that, because replevin is a cause of action sounding in state law,
§ 1983 provides no basis upon which to bring such a claim. See Albright v. Oliver, 510
U.S. 266, 269 (1994). All § 1983 claims require that "the plaintiff... assert the violation
of a federal right." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103,
106 (1989) (emphasis supplied). Because Plaintiffs' replevin action does not seek to
cure the violation of a federal right, § 1983 is not the proper vehicle with which to
pursue this claim. This Court accordingly construes Count V as a mislabeled state law
action for replevin.
Having made that determination, the Court next takes judicial notice of the fact
that the State instituted criminal proceedings against Crisante for violation of its
gambling laws on April 18, 2012. See Fed. R. Evid. 201. The Court accordingly finds
itself without jurisdiction over Crisante's replevin claim. See Gordon, 2008 WL
3258496, at *7 ("Florida law generally precludes a property owner from maintaining a
replevin action for the return of property seized as evidence in a criminal prosecution."
(citing Pondella Hall for Hire, Inc. v. City of St. Cloud, 837 So. 2d 510, 511-12 (Fla. Dist
Ct. App. 2003))); Oleandi v. State, 731 So. 2d 4, 6 (Fla. Dist. Ct. App. 1999) ("Once a
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criminal prosecution is instituted, the court in which that prosecution is pending acquires
jurisdiction over that property to hear and determine all questions concerning its
ownership ifthe property seized has an evidentiary purpose."). And insofar as Plaintiffs
seek money damages for the wrongful seizure of their property, they are free to amend
their complaint to add prayers for damages to those claims that survive this order.
Defendants' motion to dismiss Count V is granted without prejudice.
Given the dispositions outlined above, Defendants' motion for a more definite
statement and motion to strike are moot and denied as such. Having said that, it is
ORDERED that the Defendants' Motion to Dismiss (Dkt. 26) be DENIED as to
Count I, GRANTED WITH PREJUDICE as to Counts II and IV, and GRANTED
WITHOUT PREJUDICE as to Counts III and V. Additionally, Defendants' motion is
GRANTED WITHOUT PREJUDICE as to all claims against Defendants Coats in his
individual and official capacities. Plaintiffs have ten (10) days to file an amended
complaint. If none is filed within ten (10) days, Defendants have ten (10) days
thereafter to answer the complaint as it now stands.
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Case No. 8:11-CV-2007-T-17TBM
DONE AND ORDERED in Chambers, in Tampa, Florida this^^JpSay of May,
2012.
Copies to: All parties and counsel of record.
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