Chery v. Barnard et al

Filing 56

ORDER: Barnard's Motion to Dismiss 34 , which the Court converted into a motion for summary judgment, is GRANTED TO THE EXTENT that he seeks summary judgment on Counts I and II. The Clerk is directed to enter judgment in favor of Defendants B arnard, the City, and the PCSO as to Counts I and II. The Court declines to exercise supplemental jurisdiction over Count III and dismisses Count III without prejudice. The Clerk is directed to close this case. Signed by Judge Susan C Bucklew on 3/8/2012. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JEAN CHERY,
Plaintiff,
v.

Case No. 8:11-cv-2538-T-24 TGW

DANIEL BARNARD, ET AL.,
Defendants.
___________________________/
ORDER
This cause comes before the Court on two motions: (1) Defendant Daniel Barnard’s
Motion to Dismiss (Doc. No. 34) and (2) Defendant Polk County Sheriff’s Office’s Motion to
Dismiss (Doc. No. 33). Plaintiff opposes these motions. (Doc. No. 40). The Court held a
hearing on these motions on February 9, 2012. Thereafter, the Court issued an order in which it
informed the parties that it was converting these motions to dismiss into motions for summary
judgment and allowing them an opportunity to submit any additional materials or evidence that
they wanted the Court to consider, including supplemental memorandums. (Doc. No. 49).
Defendants Barnard and the Polk County Sheriff’s Office filed supplemental materials (Doc. No.
50, 51, 54); however, Plaintiff did not submit anything further. The Court issued an order
reminding Plaintiff that he was given an opportunity to submit additional materials for the
Court’s consideration, but he chose not to file anything in response. (Doc. No. 55).
Accordingly, these motions are ripe for review.
I. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of
showing the Court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial. See id. (citation omitted). When a moving party has
discharged its burden, the non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate
specific facts showing there is a genuine issue for trial. See id. (citation omitted).
II. Background
Plaintiff Jean Chery was arrested by Defendant Daniel Barnard, a police officer
employed by Defendant Haines City (“City”), based on a warrant for someone else who had the
same name as Plaintiff. Thereafter, Plaintiff filed suit against Barnard, the City, and Defendant
Polk County Sheriff’s Office (“PCSO”).
Plaintiff was advised that the State of New York had issued a warrant for a person with
the same name as him, and he was told to go to the nearest police station to have his fingerprints
taken for comparison. Plaintiff did not follow the instructions to go to the police station to clear
the matter up. Instead, on August 26, 2008, while on his lunch break as a school bus driver,
Plaintiff approached Barnard at a grocery store. (Doc. No. 54, ¶ 4). Plaintiff asked Barnard how
he could clear his name, and Barnard took Plaintiff’s identification and contacted Janet Wilson at
Haines City Dispatch regarding the warrant.1 (Doc. No. 54, ¶ 9, 10; Doc. No. 51, ¶ 5).

1

On August 26, 2008, the City’s officers did not have a computer or other equipment in
their patrol cars to perform on-site identification verification, background checks, fingerprints, or
to determine whether there were any outstanding warrants for an individual. Officers would
2

Specifically, Barnard told Wilson that he was with Jean Chery, a black male that was
born on 6/7/1963. (Doc. No. 51, ¶ 6). Wilson ran Plaintiff’s information through the
FCIC/NCIC database. (Doc. No. 51, ¶ 8). According to the FCIC/NCIC database, there was an
outstanding warrant from New York for a black male named Jean Chery that was born on
7/6/1963. (Doc. No. 51, ¶ 8). The FCIC/NCIC database did not provide a Social Security
number or Driver’s License information for the Jean Chery sought in the warrant, nor did it
provide Jean Chery’s middle name or picture. (Doc. No. 51, ¶ 9). Wilson informed Barnard that
there was an outstanding warrant from New York for a black male named Jean Chery that was
born on 7/6/1963. (Doc. No. 51, ¶ 10; Doc. No. 54, ¶ 11).
There was a discrepancy between the birth dates of Plaintiff and the Jean Chery sought in
the warrant (the month and day were transposed), and Barnard asked Wilson to confirm the
warrant information and to confirm that New York would extradite Plaintiff pursuant to the
warrant. (Doc. No. 54, ¶ 14; Doc. No. 51, ¶ 11). Dispatch confirmed the warrant information
and that New York would extradite Plaintiff pursuant to the warrant. (Doc. No. 51, ¶ 12).
Wilson advised Barnard that New York police had asked that Plaintiff be held until his identity
could be confirmed by fingerprint. (Doc. No. 51, ¶ 13; Doc. No. 54, ¶ 16). As a result of this
information, Barnard arrested Plaintiff based on the outstanding New York warrant. (Doc. No.
54, ¶ 18).

contact Haines City Dispatch by police radio to have police dispatchers perform computer
searches regarding outstanding warrants through state and national databases, including the
Florida Crime Information Center (“FCIC”) and the National Crime Information Center
(“NCIC”). Dispatchers would retrieve, analyze, and convey information regarding outstanding
warrants to the officers via police radio or telephone. (Doc. No. 51, ¶ 7; Doc. No. 54, ¶ 8-9, 2224).
3

Barnard took Plaintiff to the City’s police department to be booked and processed. (Doc.
No. 54, ¶ 19). Thereafter, Barnard took Plaintiff to the Polk County jail, and they arrived at the
jail at approximately 4:30 p.m. on August 26, 2008. (Doc. No. 54, ¶ 20, 21).
At 2:30 p.m. on August 27, 2008, the PCSO submitted a request to New York law
enforcement to fax the fingerprints of the Jean Chery sought in the warrant so that the PCSO
could compare them to Plaintiff’s fingerprints. (Doc. No. 50, ¶ 5). The PCSO received the
faxed fingerprints from New York law enforcement at 6:38 p.m., and a fingerprint comparison
was immediately done at 6:40 p.m. (Doc. No. 50, ¶ 5). After the fingerprint comparison showed
that Plaintiff was not the person sought in the New York warrant, the process for releasing
Plaintiff began. (Doc. No. 50, ¶ 6). Plaintiff was released at 9:45 p.m. on August 27, 2008, after
being detained at the Polk County jail for slightly more than 29 hours. (Doc. No. 50, ¶ 7).
On September 15, 2008, the PCSO submitted a request to the Polk County state court to
have Plaintiff’s criminal record (as a result of this incident) expunged from their computer
system. This request was granted, and Plaintiff’s criminal record was expunged on September
17, 2008. However, on January 9, 2009, Plaintiff was terminated from his job as a result of the
erroneous arrest and incarceration. The loss of his employment caused Plaintiff significant
financial difficulties.
Thereafter, Plaintiff filed the instant lawsuit and asserted three claims. In Count I,
Plaintiff asserted a § 1983 false arrest claim against Barnard and the City. In Count II, Plaintiff
asserted a § 1983 illegal detention and confinement claim against Barnard, the City, and the
PCSO. In Count III, Plaintiff asserted state law claims of false arrest and false imprisonment
against Barnard, the City, and the PCSO.

4

In response, Barnard, the PCSO, and the City filed motions to dismiss. On February 9,
2012, the Court held a hearing on the motions. Thereafter, the Court granted the City and the
PCSO’s motions to the extent that they sought dismissal of the § 1983 claims asserted against
them. (Doc. No. 49). As such, only the state law claims remain against the City and the PCSO.2
(Doc. No. 49).
Additionally, the Court converted Barnard’s motion to dismiss, as well as the PCSO’s
motion to dismiss the state law false imprisonment claim, into motions for summary judgment.
(Doc. No. 49). The Court gave Barnard, the PCSO, and Plaintiff an opportunity to submit any
additional materials or evidence that they wanted the Court to consider. (Doc. No. 49).
III. Motions for Summary Judgment
Barnard moves for summary judgment as to all three claims asserted against him, and the
PCSO moves for summary judgment as to the state law false imprisonment claim. As explained
below, the Court finds that Barnard is entitled to summary judgment on the two § 1983 claims,
and the Court declines to exercise supplemental jurisdiction over the remaining state law claims
asserted against all three defendants in Count III.
Barnard argues that summary judgment on the § 1983 claims in appropriate, because: (1)
Plaintiff cannot show a constitutional violation, which is a necessary element of his § 1983
claims; and (2) he is entitled to qualified immunity. The Court agrees.
A. § 1983 Claim for Mistaken Arrest
A § 1983 claim based on a mistaken arrest pursuant to a valid warrant is asserted

2

The Court also dismissed the state law false arrest claim asserted against the PCSO,
because Plaintiff did not allege that the PCSO was involved in Plaintiff’s arrest.
5

pursuant to the Fourth Amendment’s right to be free from unreasonable seizures. Chapman v.
City of Atlanta, Georgia, 192 Fed. Appx. 922, 924 (11th Cir. 2006). In order to determine
whether Plaintiff’s arrest violated his constitutional right, the Court must examine the totality of
the circumstances surrounding the arrest to see whether the arrest was made pursuant to a
reasonable mistake. See Rodriguez v. Farrell, 280 F.3d 1341, 1347 (11th Cir. 2002). When the
police have a valid warrant to arrest one party, but the police reasonably mistake the second
party for the first party, the mistaken arrest of the second party is a valid arrest and cannot
support a § 1983 claim. See id. at 1345-46 (citing Hill v. California, 401 U.S. 797, 802 (1971)).
Plaintiff was arrested based on a warrant for a person with his same name. Plaintiff does
not challenge the validity of the warrant as to the “real” Jean Chery for whom the warrant was
issued; instead, he argues that there was no valid warrant to arrest him. Plaintiff, however,
misunderstands the focus of the Court’s inquiry, which is whether it was reasonable for Barnard
to mistake Plaintiff for the Jean Chery sought in the warrant.
The Court concludes, as a matter of law, that it was reasonable for Barnard to mistake
Plaintiff for the Jean Chery sought in the warrant. Both Plaintiff and the Jean Chery sought in
the warrant were black males of the same age and that had the same name. Furthermore, their
birth dates were almost identical (the month and day were transposed). Given the striking
similarities between the information available to Barnard about the Jean Chery sought in the
New York warrant and the information provided by Plaintiff, it was reasonable for Barnard to
mistakenly arrest Plaintiff pursuant to the warrant.3 See Rodriguez, 280 F.3d at 1347 (finding

3

In fact, courts have found mistaken arrests to be reasonable when glaring differences
exist, such as the person being arrested being of a different race than the person sought in the
warrant. See Chapman, 192 Fed. Appx. at 924 (finding that the arrest of the plaintiff, who was
6

that the mistaken arrest of the plaintiff, who had the same name, gender, birth year, and race as
the person sought in a valid warrant, was due to a reasonable mistake, despite the fact that the
person sought in the warrant was five inches shorter than the plaintiff); Ainsworth v. City of
Tampa, 2011 WL 1791291, at *6-7 (M.D. Fla. May 10, 2011)(finding that the mistaken arrest of
the plaintiff, who had the same name, gender, birth year, and race as the person sought in a valid
warrant, was due to a reasonable mistake).
Accordingly, the Court finds that Plaintiff’s mistaken arrest did not amount to a
constitutional violation. See Rodriguez, 280 F.3d at 1349. As such, Plaintiff’s § 1983 false
arrest claim fails, and Barnard is entitled to summary judgment on the claim.4
Alternatively, if Plaintiff’s arrest was not due to a reasonable mistake, the Court finds
that Barnard is entitled to qualified immunity as to this claim. This is because it was not clearly
established that misidentifying and arresting a person with the same name, gender, birth year,
and race as the person sought in a valid warrant violated the law. See id. at 1350.

white, was due to a reasonable mistake, despite the fact that the person sought in the warrant was
black); Robinson v. City of Atlanta, 2007 WL 1858407, at *4 (N.D. Ga. June 26, 2007)(finding
that the arrest of the plaintiff, who was white, was due to a reasonable mistake, despite the fact
that the person sought in the warrant was black and had a different first name).
4

The Court notes that Plaintiff made vague allegations in his amended complaint that
implied that he may have been arrested based on a warrant for an Indian male or a white female.
However, the Court asked Plaintiff at the hearing to clarify his allegations, and he stated that he
did not know what information Barnard had at the time that Barnard arrested him. Furthermore,
when the Court converted the instant motions into motions for summary judgment, the Court
gave Plaintiff an opportunity to provide the Court with further information or evidence to
support his claims and/or to refute Defendants’ proffered evidence. Plaintiff failed to submit any
additional evidence or to file a brief disputing the facts drawn from the evidence submitted by
Barnard and the PCSO. As such, the Court disregards the allegations in Plaintiff’s amended
complaint to the extent that they conflict with the evidence submitted in connection with the
pending motions.
7

B. § 1983 Claim Based on the Subsequent Confinement
Plaintiff’s § 1983 claim based on his confinement after the mistaken arrest is asserted
pursuant to the Fourteenth Amendment’s protection against deprivations of liberty without due
process, because Plaintiff is challenging his prolonged detention caused by the delay in
confirming his identity. See Baker v. McCollan, 443 U.S. 137, 142 (1979). As explained below,
the Court finds that Plaintiff’s subsequent confinement did not amount to a constitutional
violation.
In Baker, the Supreme Court stated that detention pursuant to a valid warrant, but in the
face of repeated protests of innocence, does not necessarily deprive a person of liberty without
due process. See id. at 144-45. This is because arresting officers and those responsible for
maintaining the custody of detainees are not constitutionally required to investigate every claim
of innocence based on mistaken identity. See id. at 145-46. As a result, the Baker Court found
that the plaintiff, who was mistakenly arrested pursuant to a valid warrant and detained for three
days over a holiday weekend, could not show a due process deprivation based on his prolonged
confinement. See id. at 145.
Based on Baker and this Court’s conclusion that Plaintiff’s mistaken arrest did not
amount to a constitutional violation, the Court finds that Plaintiff’s subsequent confinement for
slightly more than 29 hours was not a due process violation. The evidence shows that a
comparison of the fingerprints of Plaintiff and the person sought in the warrant was done
quickly, and thereafter, Plaintiff was released. As such, Plaintiff’s § 1983 claim due to his
confinement fails, and Barnard is entitled to summary judgment on this claim.

8

IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

Barnard’s Motion to Dismiss (Doc. No. 34), which the Court converted into a
motion for summary judgment, is GRANTED TO THE EXTENT that he seeks
summary judgment on Counts I and II.

(2)

The Clerk is directed to enter judgment in favor of Defendants Barnard, the City,
and the PCSO as to Counts I and II.

(3)

Pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise supplemental
jurisdiction over the remaining state law claims asserted against Defendants
Barnard, the City, and the PCSO in Count III, and as such, the Court declines to
consider the motions for summary judgment as to these claims and dismisses the
claims without prejudice.

(4)

The Clerk is directed to close this case.

DONE AND ORDERED at Tampa, Florida, this 8th day of March, 2012.

Copies to:
Counsel of Record

9