Allison v. Parise et al
Filing
58
ORDER granting 37 motion to dismiss, with prejudice; denying as moot 37 Motion for More Definite Statement. The Clerk of Court shall close this case. Signed by Judge Elizabeth A. Kovachevich on 8/27/2013. (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANN M.ALLISON,
Plaintiff,
CASE NO. 8:12-CV-1313-T-17EAJ
v.
DOMINIQUE PARISE,
etal.,
Defendants.
ORDER
This cause is before the Court on:
Dkt. 37
Motion to Dismiss Fourth Amended Complaint;
Motion For More Definite Statement
Defendants City of Temple Terrace, Carlos Lopez and Kenneth Albano, in their
official and individual capacities, move the Court to dismiss the Fourth Amended
Complaint (Dkt. 33) pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, move for
a More Definite Statement pursuant to Fed. R. Civ. P. 12(e).
Plaintiff Allison did not file a response to Defendants' Motion, and the Court has
declined to grant Plaintiff additional time to file a response. Failure to oppose a motion
raises an inference that there is no objection to the motion. In an abundance of
caution, the Court will consider the merits of Defendants' Motion.
The Fourth Amended Complaint includes the following:
Count I
Civil Conspiracy
Case No. 8:12-CV-1313-T-17EAJ
Count II
Intentional Infliction of Emotional Distress
Count III
Section 1983 Claim For Unconstitutional Custom or Policy
Due Process Violation/Failure to Reasonably Investigate
Count IV
Section 1983 Claim Failure to Train and Supervise
I. Standard of Review
"Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short
and plain statement of the claim showing that the pleader is entitled to relief." "[D]etailed
factual allegations" are not required, Bell Atlantic v. Twomblv. 550 U.S. 544, 555 (2007),
but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to
relief that is plausible on its face," jd,, at 570. A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. \±, at 556. Two working principles
underlie Twombly. First, the tenet that a court must accept a complaint's allegations as
true is inapplicable to threadbare recitals of a cause of action's elements, supported by
mere conclusory statements. icL, at 555. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense. kL, at 556. A court considering a motion to dismiss
may begin by identifying allegations that, because they are mere conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the complaint's
framework, they must be supported by factual allegations. When there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v.
Igbal. 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twomblv. 550 U.S. 544
(2007).
Case No. 8:12-CV-1313-T-17EAJ
II. Background
In the Court's Order (Dkt. 30) on Defendants' Motion to Dismiss Third Amended
Complaint, the Court noted that Plaintiff Allison agreed that claims asserted against the
individual officers in their official capacity may be dismissed. The Court dismissed
Plaintiffs claims against Defendants Albano and Lopez in their official capacity. (Dkt.
30, p. 8).
As to Plaintiff's claims against the City of Temple Terrace, for willful and/or
malicious acts of its employees done in their official capacity, the Court noted that the
City of Temple Terrace cannot be sued for the willful and/or malicious conduct of its
employees pursuant to Florida Statute 768.28(9)(a). As to Count V, civil conspiracy,
Count VI, tortious interference with business relationship, Count VII, intentional infliction
of emotional distress, Count VIII, false arrest and false imprisonment, and Count IX,
malicious prosecution, the Court granted the Motion to Dismiss as to City of Temple
Terrace for acts of Temple Terrace employees in their official capacity. (Dkt. 30, p. 8).
As to Plaintiff's civil conspiracy claim, Count V of the Third Amended Complaint,
the Court noted that Defendants Lopez and Albano were named in their individual
capacity. The Court granted the Motion to Dismiss, with leave to file an amended
complaint describing the conspiracy with particularity.
As to Count X, Plaintiffs claim for Unconstitutional Custom or Policy Due
Process Violation/Failure to Reasonably Investigate, the Court concluded that Plaintiff
did not allege facts sufficient to show the presence of an unconstitutional custom or
policy. The Court granted the Motion to Dismiss, with leave to file an amended
Complaint. (Dkt. 30, p. 11).
As to Count XI, Plaintiff's claim for Section 1983 Failure to Train and Supervise,
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the Court concluded that the allegations of the Third Amended Complaint did not show
how the alleged custom and policy of the City of Temple Terrace was the moving force
behind the alleged constitutional violation. The Court granted the Motion to Dismiss,
with leave to file an amended complaint.
Plaintiff attached the Criminal Report Affidavit of Officer Lopez to the Third
Amended Complaint. (Dkt. 2, pp. 42-43). The Criminal Report Affidavit indicates that
the State Attorney's Office will "direct file." The Court takes judicial notice of court
records (Case No. 08-CF-006887). The Criminal Report Affidavit was provided to the
State Attorney's Office, which filed an Information on April 7, 2008, after which a capias
was issued and served. Officers Lopez and Albano did not arrest Plaintiff. The Court
dismissed Plaintiff's claims for false imprisonment and malicious prosecution. (Dkt. 30).
III. Dkt. 33 Fourth Amended Complaint
Plaintiff Allison did not include Defendant Albano and Defendant Lopez in the
caption of the Fourth Amended Complaint. In the Preliminary Statement, Plaintiff
alleges:
1. This action arises under the Fourth and Fourteenth Amendments to
the United States Constitution and under 42 U.S.C. Sees. 1983 and 1988.
2. Defendants were acting in the scope of their employment and under
color of state law.
3. Action is also brought against the City of Temple Terrace for its failure
to properly train and supervise their officers in the methods of reasonable
investigation to ascertain and verify facts and truthfulness of allegations
prior to filing charges and effecting an arrest of an innocent person, such
as that which led to the incident at issue, and its establishment of policies,
procedures, practices and customs related to this, including a decision by
a final decision maker.
Case No. 8:12-CV-1313-T-17EAJ
In Plaintiff's allegations of jurisdiction, Plaintiff invokes jurisdiction under 42
U.S.C. Sees. 1983 and 1988, seeking damages as a result of the alleged violation of
Plaintiff's constitutional rights. Plaintiff alleges that this is a civil rights action against
City of Temple Terrace, FL raising constitutional claims under the Fourth and
Fourteenth Amendments against law enforcement agents acting under color of law, and
seeking redress for deprivations occurring under color of state statute, ordinance,
regulation, custom, practice, usage and the actions of a final decision maker that
contravened the rights and immunities clearly established and protected by the Fourth
and Fourteenth Amendments of the United States Constitution.
Plaintiff identifies the parties as Plaintiff Allison, Defendant Dominique Parise,
Defendant Joseph Parise, and Defendant City of Temple Terrace.
Plaintiff alleges
that Defendant City of Temple Terrace is a municipal corporation organized under the
laws of the State of Florida, and it is responsible for the policies, procedures, and
practices implemented through its various agencies, agents, departments and
employees, and for injury occasioned thereby. Plaintiff alleges that the City of Temple
Terrace is the public employer of Officers Lopez and Albano, and the Temple Terrace
Police Department ("TTPD") is an agency of Defendant City of Temple Terrace. (Dkt.
33, pp. 2-3). Based on this allegation, the Court will refer to Lopez and Albano as
"Officer Lopez" and "Officer Albano."
Based on Plaintiff's agreement that the claims against the individual officers in
their official capacity could be dismissed, the Court's dismissal of claims against Officer
Lopez and Officer Lopez Albano in their official capacity (Dkt. 30), and the above
allegations, the Court understands that the claims against Officer Lopez and Officer
Albano in their official capacity are included in the claims against Defendant City of
Temple Terrace.
Because Officer Lopez and Officer Albano are not included in the
caption of the Fourth Amended Complaint, the Clerk of Court terminated Officer Lopez
and Officer Albano from the docket on 3/25/2013.
Case No. 8:12-CV-1313-T-17EAJ
The Court's understanding is that Plaintiff intentionally omitted Officer Lopez and
Officer Albano as named parties to this case, intentionally asserting only "official
capacity" claims and not individual capacity claims. If Plaintiff's omission of Officer
Lopez and Officer Albano had not been intentional, the Court could construe the
omission as a technical defect. The Court will take Plaintiffs Fourth Amended
Complaint as the Court finds it. Due to the Plaintiff's non-response to the current
Motions, any further amendment the Complaint is severely disfavored.
A.
Count 3
Claim for Unconstitutional Custom or Policy Due Process
Violation/Failure to Reasonably Investigate
Plaintiff names Officer Lopez, Officer Albano and Defendant City of Temple
Terrace in Count 3.
Since Officer Lopez and Officer Albano are not parties to this
case, the Court understands that this claim is directed to Defendant City of Temple
Terrace as the employer of Lopez and Albano for injuries alleged to be caused by acts
taken within the scope of their employment with Defendant City of Temple Terrace
which amount to an official policy of Defendant City of Temple Terrace.
In Count 3, Plaintiff Allison alleges that Plaintiff has a constitutional right to a
police agency conducting a reasonable investigation of allegations against her and the
right to be free from substantial permanent yet wholly unwarranted damages to
Plaintiff's protected property interests, . (Dkt. 33, pp. 20-22). Plaintiff alleges that
Lopez, Albano and City of Temple Terrace, acting through TTPD supervisory
personnel, had a duty of care to properly train and supervise its officers and agents
acting within the scope of their employment. Plaintiffalleges that Officer Albano was a
final decision maker in his role as chief of detectives, and a direct supervisor of Officer
Lopez. Plaintiff further alleges that Officer Albano and City of Temple Terrace had
complete control over TTPD's training program and development of its customs and
policies yet failed to adequately maintain policies and customs that would not operate to
violate constitutional rights, and particularly regarding the investigations of criminal
Case No. 8:12-CV-1313-T-17EAJ
allegations of theft and fraud, and had access to Florida Statutes and legal counsel to
verify the proper procedure and nature of a writ of replevin and the ownership authority
over property. Plaintiff Allison further alleges that Lopez, Albano and City of Temple
Terrace, acting through TTPD supervisory personnel, knew that Plaintiff has a
constitutional right to a reasonable investigation of charges against her, and the right to
be free from substantial permanent damage to Plaintiffs protected property interests
suffered if they act improperly, in violation of Plaintiffs due process rights. Plaintiff
further alleges that Officer Albano as a final decision maker, and City of Temple
Terrace, acting through TTPD supervisory personnel, knew that Plaintiff has a
constitutional right to a reasonable investigation of charges against her so as not to
permanently damage Plaintiffs reputation, that this right is well established in the
Eleventh Circuit, and that Officer Lopez was deliberately indifferent to the right of
Plaintiff to be free from unconstitutionally inadequate investigation. (Dkt. 33). Plaintiff
alleges that Officer Lopez's deliberate indifference to Plaintiff's right to be free from
unconstitutional inadequate investigations was the moving force behind Plaintiff's
injuries.
In Count 3, Plaintiff alleges that Officers Lopez and Albano are liable under 42
U.S.C. Sec. 1983 for constitutional injuries to Plaintiff caused by their conduct, as
described, and they are jointly and severally liable with all other Defendants for injuries
their conduct caused. Plaintiff seeks a judgment for compensatory damages in excess
of $100,000, and the award of costs of suit and reasonable attorney's fees, pursuant to
42 U.S.C. Sec. 1988.
B. Count 4
Section 1983 Claim Failure to Train and Supervise
Plaintiff names Officer Lopez, Officer Albano, and Defendant City of Temple
Terrace. Since Officer Lopez and Officer Albano are not parties to this case, the Court
understands Count 4 to be directed to Defendant City of Temple Terrace, as the
Case No. 8:12-CV-1313-T-17EAJ
employer of Lopez and Albano, for injuries alleged to be caused by acts taken within
the scope of their employment with Defendant City of Temple Terrace which amount to
a policy of the City of Temple Terrace.
Plaintiff alleges a Section 1983 claim against Officer Albano and Defendant City
of Temple Terrace. Plaintiff alleges that Plaintiff had a constitutionally protected
property interest in her reputation and good name and a right to be free from false
allegations that damage Plaintiff's reputation and negatively affect her income, and
Plaintiff was deprived of that interest without due process of law. (Dkt. 33, p. 22).
Plaintiff further alleges that Defendant City of Temple Terrace owed a duty of care to
Plaintiff to properly train and supervise its agents, the officers and the City, acting in the
course and scope of their employment by the City, and knew the failure to train likely
would result in the employee making a wrong decision. Plaintiff further alleges that
Officer Albano and City of Temple Terrace, acting through TTPD supervisory
personnel, had complete control over all detectives in TTPD and had the duty and
authority of supervision over those detectives. Plaintiff alleges that Defendant Albano,
a final decision maker, and City of Temple Terrace acting through TTPD supervisory
personnel, [controlled] TTPD's training program and development of its customs and
policies regarding investigations of criminal allegations, particularly of theft and fraud,
and had access to legal counsel to verify the proper procedure and the nature of a writ
of replevin and the ownership authority over property. Plaintiff further alleges that
Officer Albano, and City of Temple Terrace, acting through TTPD supervisory
personnel, knew that Officer Lopez was deliberately indifferent to the rights of Plaintiff
to be free from unconstitutional inadequate investigations, but failed in their duties to
properly train and supervise Officer Lopez so that Plaintiff would not suffer the
repercussions. Plaintiff further alleges that Officer Albano's and Defendant City of
Temple Terrace's deliberate indifference to the rights of Plaintiff to be free from
unconstitutional inadequate investigations was the moving force behind Plaintiff's
injuries.
Case No. 8:12-CV-1313-T-17EAJ
Plaintiff alleges that Officer Albano and Defendant City of Temple Terrace
breached their duties to Plaintiff, caused Plaintiff to suffer damages, and are liable
under 42 U.S.C. Sec. 1983 for constitutional injuries to Plaintiff caused by their conduct,
and jointly and severally liable with all other Defendants for injuries their conduct
caused.
Plaintiff seeks a judgment for compensatory damages in excess of $100,000, the
costs of suit and the award of reasonable attorney's fees under 42 U.S.C. Sec. 1988.
C. Count I - Civil Conspiracy
Plaintiff names Dominique Parise, Joseph Parise and City of Temple Terrace as
parties to the alleged conspiracy. (Dkt. 33, p. 12).
Plaintiff alleges that Defendant Dominique Parise and Defendant Joseph Parise
knowingly supplied false statements to Officer Lopez, and that thereafter Officer Lopez
and Officer Albano conspired to publish false allegations against Plaintiff before making
a reasonable investigation. (Dkt. 33, p. 12). Plaintiff further alleges that Dominique
Parise, Joseph Parise and Temple Terrace through Officer Lopez and Officer Albano
conspired to create false criminal allegations against Plaintiff which would result in
improper criminal charges against Plaintiff, improperly causing Plaintiff to lose her
license to practice law, and resulting in an unjustified arrest causing an unconstitutional
taking of Plaintiffs good name and reputation. (Dkt. 33, pp. 12-13). Plaintiff further
alleges that Plaintiff provided information to Officer Lopez and Officer Albano as to the
legal action Plaintiff was performing for her client. (Dkt. 33, pp. 13-14). Plaintiff alleges
that Officer Lopez wrote a report that directly misrepresented and conflicted certain
aspects of Plaintiff's written statement given to Officer Lopez. (Dkt. 33, p. 14). Plaintiff
alleges that the following overt acts were committed in furtherance of the conspiracy: 1)
As to Dominique Parise and Joseph Parise, knowingly supplying false information that
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appeared as [if] Plaintiff committed crimes; 2) As to Officer Lopez and Officer Albano,
Officer Lopez and Officer Albano breached the duty to reasonably investigate the false
allegations and knowingly charged Plaintifffor crimes they knew she did not commit, in
an organized effort to improperly convict Plaintiff of serious crimes and permanently
ruin Plaintiff's reputation. Plaintiff further alleges that Defendants' conspiracy and their
respective overt acts, of which Officer Albano was a final decision maker, violated
Plaintiff's due process rights and caused Plaintiff to suffer damages.
IV.
A.
Discussion
Constitutional Violations
Plaintiff has identified the basis of the Court's jurisdiction as the Fourth and
Fourteenth Amendments to the United States Constitution.
The Fourth Amendment
provides that "[t]he right of the people to be secure ... against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause[.]" U.S. Const. Amend. IV. The Fourteenth Amendment provides "...No State
shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
U.S. Const. Amend XIV.
B. Basis of Municipal Liability
Section 1983 liability is limited to situations in which the acts complained of are
the acts "of the municipality"-acts which the municipality has officially sanctioned or
ordered. Brown v. City of Fort Lauderdale. 923 F.2d 1474, 1479 (11th Cir. 1991). A
plaintiff may establish a case of municipal liability under Section 1983 by following one
of several routes, including a showing of a local government's policy, custom or
practice, or a failure to train its employees, id. at 1481 (city policy of discrimination
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based on actions of a "final policymaker"negates need to prove custom or practice of
discrimination). "Official policy" may refer to formal rules which are intended to, and do,
establish fixed plans of action.
Pembaur v. City of Cincinnati, 475 U.S. 469. 480-81
(1986). A decision maker vested with final authority to create a policy can open the
government to Section 1983 municipal liability for government employees' actions taken
pursuant to that policy, id, at 481-483. To prove Section 1983 liability against a
municipality based on custom, a plaintiff must establish a widespread practice that,
although not authorized by written law or express municipal policy, is so permanent and
well settled as to constitute a "custom or usage" with force of law. Brown. 923 F.2d at
1481. A custom sufficient to sustain municipal liability under Section 1983 must be
sufficiently "widespread," "permanent and well settled," such that it is "deemed
authorized by the policymaking officials because they must have known about it but
failed to stop it." id.
Municipal liability under Section 1983 for failure to train may be established when
a failure to train is tantamount to a municipality's "deliberate indifference' to the rights of
a Section 1983 plaintiff such that the failure is properly considered to be the
municipality's "policy or custom." City of Canton v. Harris. 489 U.S. 378, 387
(1989)(holding that there are limited circumstances in which a "failure to train" can be
basis for liability under Section 1983).
B. Supervisory Liability
Theories of respondeat superior and vicarious liability cannot be used to hold
supervisory officials liable under Section 1983 for subordinate employees' violations of
federal law or the Constitution. See Hartlvv. Parnell. 193F.3d 1263, 1269 (11th Cir.
1999). Supervisory liability inures under Section 1983 when: 1) the supervisor
personally participates in the alleged violation; or 2) when the supervisor's actions are
causally connected to the alleged violation of federal statutory or federal constitutional
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law. See Brown v. Crawford. 906 F.2d 667, 671 (11,hCir. 1990).
C. Count 3 Section 1983 Claim for Unconstitutional Custom or Policy Due
Process Violation/Failure to Reasonably Investigate
The constitutional violation Plaintiff alleges is Officer Lopez's alleged "failure to
perform a reasonable investigation." Plaintiff further alleges that Officer Albano, as
Officer Lopez's direct supervisor, is liable for Officer Lopez's alleged "failure to perform
a reasonable investigation," and Defendant City of Temple Terrace is liable for the acts
of Officer Lopez and Officer Albano, based on an alleged policy of allowing officers to
file serious felony charges without first performing a reasonable investigation, and a
failure to adequately train and supervise.
The Court notes that the Criminal Report Affidavit of Officer Lopez, dated
1/25/2008, states:
On 11/27/07 Def with two others w/o authority or permission did remove
property from a safe belonging to victim/decedent, to wit, approx 600
pieces of assorted jewelry, valued at $261,000 and One Rolex valued at
$22,750.00 w/o
or permission of court appointed probate. Def with
two others, did engage in a scheme to defraud and obtain property from
the estate of victim valued at over $260,000/00. Def did use her position
as an Attorney to provide documents and misleading statements alleging
that Def McCullars did have the authority and permission to open the safe
at the location and remove property with one other involved. Def did also
knowingly and willingly give false information to a LEO conducting a felony
investigation with intent to mislead the officer. V1 is deceased and V2 is
currently the assigned probate to the estate of V1.
(Dkt. 2, pp. 42-43).
Officer Lopez had received an itemized list of missing property
from counsel for Dominique Parise on 12/20/2007 (Dkt. 2, p. 41). Officer Lopez
furnished witness statements and other documents, and recorded DVD interviews, in
connection with the Criminal Report Affidavit.
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As the Court has noted, it is undisputed that Officer Lopez provided the Criminal
Report Affidavit to the State Attorney's Office, who filed an Information.
The decision
to prosecute was made by the State Attorney's Office; an Information charging a felony
is signed by the State Attorney, or designated assistant, under oath stating his/her good
faith in instituting the prosecution and certifying that he/she has received testimony
under oath from the material witness or witnesses for the offense. Fla. R. Crim P.
3.140(g).
Plaintiff does not allege that the Criminal Report Affidavit furnished to the
State Attorney's Office contains false statements or material omissions that were made
deliberately or with reckless disregard for the truth. The factual allegations of the
Fourth Amended Complaint refer only to the "failure to perform a reasonable
investigation," which the Court understands to involve negligence.
Negligent
misrepresentations or negligent omissions do not undermine the sufficiency of an
affidavit supporting an arrest warrant. Smith v. Sheriff, Clay County, 506 Fed. Appx.
894, 898 (11th Cir. 2013).
Plaintiff does not allege that the statements in Criminal Report Affidavit do not
establish probable cause, or arguable probable cause. An arresting officer is required
to conduct a reasonable investigation to establish probable cause.
Rankin v. Evans.
133 F.3d 1425, 1435 (11th Cir. 1998). Dominique Parise, Joseph Parise and their
counsel, inter alia, provided information to the investigating Officers, as did Plaintiff
Allison. Officer Lopez and Officer Albano were not required to give credence to
Plaintiff's explanation. Criss v. City of Kent. 867 F.2d 259, 263 (6,h Cir. 1988). See
also Williams v. City of Homestead. FL. 206 Fed. Appx. 886 (11,h Cir.2006)
(unreported).
As the Supreme Court states:
The Constitution does not guarantee that only the guilty will be arrested. If
it did, § 1983 would provide a cause of action for every defendant
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acquitted-indeed, for every suspect released. Nor are the manifold
procedural protections afforded criminal defendants under the Bill of
Rights "without limits." Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct.
2319, 2326, 53 L.Ed.2d 281 (1977). "Due process does not require that
every conceivable step be taken, at whatever cost, to eliminate the
possibility of convicting an innocent person." Ibid.
Bakerv. McCollan. 443 U.S. 137, 145, 99 S.Ct. 2689, 2695 (1979).
Plaintiff alleges that, during the course of Defendants' investigation, Plaintiff
appeared before Officer Lopez and Officer Albano, and provided information to them.
After the Information was filed, Plaintiff was served with a capias, posted a cash bond,
entered a written plea of not guilty, and was arraigned in Hillsborough County Circuit
Court on May 5, 2008. The Court does not infer a violation of due process from these
facts. As to Plaintiff's allegation that the alleged due process violation violated
Plaintiff's constitutional right to be free from damage to Plaintiff's reputation, the Court
notes that, to the extent that unconstitutional conduct has caused injury to a party's
personal or business reputation, the injury is compensable as an element of damages
flowing from the unlawful conduct. Marerro v. City of Hialeah. 625 F.2d 499, 514 (5th
Cir. 1980). Section 1983 permits a remedy for the deprivation of federal rights without
creating any substantive rights. Since Plaintiff does not allege facts sufficient to state a
due process violation, the allegations of damage to Plaintiff's reputation fail.
Because the claim against Defendant City of Temple Terrace on the basis of
Officer Lopez's alleged failure to perform a reasonable investigation fails, the claim
against Defendant City of Temple Terrace based on the supervisory liability and/or
deliberate indifference of Officer Albano also fails.
Since Plaintiff has not stated a
claim for a constitutional deprivation to Plaintiffs property interests, Plaintiff's municipal
liability claim on that basis fails.
After consideration, the Court grants the Motion to Dismiss as to Count 3.
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D.
Count 4
Section 1983 Claim Failure to Train and Supervise
In the Eleventh Circuit, a Section 1983 failure to train claim against a municipality
is valid only where a plaintiff can show that: 1) the municipality inadequately trained or
supervised its officers; 2) the failure to train or supervise is a city policy; and 3) the city's
policy caused the officer to violate the plaintiff's constitutional rights.
Williams v. City of
Homestead. Fla.. 206 Fed. Appx. 886, 890 (11* Cir. 2006).
As noted above, Plaintiff's allegations of injury to Plaintiff's personal or business
reputation are compensable as an element of damages flowing from the alleged
unlawful conduct. Plaintiff Allison does not allege that the arrest was made without
probable cause or arguable probable cause, or that Officer Lopez's Criminal Report
Affidavit contains false statements or material omissions made deliberately or with
reckless disregard for the truth. The Court has determined that Plaintiff has not stated
sufficient facts to state a due process violation, based on the presence of probable
cause or arguable probable cause at the time at the time of Plaintiff's arrest. Since
there is no underlying constitutional violation, the Section 1983 claim against City of
Temple Terrace for failure to train and supervise fails.
After consideration, the Court grants the Motion to Dismiss as to Count 4.
E. Count 1
Civil Conspiracy
The Court must disregard Plaintiff's conclusory factual allegations which are in
conflict with the document attached to the Complaint, the Criminal Report Affidavit.
Officer Lopez and Officer Albano did not knowingly "charge Plaintiff with a crime" that
Plaintiff did not commit. Officer Lopez provided the Criminal Report Affidavit to the
State Attorney's Office, which filed an Information.
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The Court notes the factual allegations of Count I as to the alleged failure of
Officer Lopez and Officer Albano to perform a reasonable investigation, which the Court
understands to be allegations of negligent acts. There is no allegation that Criminal
Report Affidavit of Officer Lopez contains false statements or material omissions that
were made deliberately or with reckless disregard for the truth. A civil conspiracy
requires an agreement between the co-conspirators to do some unlawful act, in this
case allegedly to violate the due process rights of Plaintiff. The conclusory allegations
of an agreement between Dominique Parise and Joseph Parise, who allegedly
provided false information Officer Lopez and Officer Albano, and the alleged failure to
perform a reasonable investigation are not sufficient to show an intentional agreement
to violate Plaintiffs due process rights.
In the Court's prior Order, the Court dismissed Plaintiff's claim against City of
Temple Terrace to the extent that it was based on the acts of its employees in their
official capacity as police officers, pursuant to Florida Statute 768.28.
Defendant City
of Temple Terrace is entitled to sovereign immunity from claims of negligent
investigation pursuant to Florida Statute Sec. 768.28. Under Florida law, negligent
conduct in police investigations does not give rise to a cause of action because the duty
to protect the public is owed to the public generally. Pritchett v. City of Homestead, 855
So.2d 1164, 1165 (Fla. 3d DCA 2003). There is no legal duty of care to the person who
is the subject of a criminal investigation. Stephen v. State, 659 So.2d 705 (Fla. 3d DCA
1995); Sequine v. City of Miami. 627 So.2d 14 (Fla. 3d DCA 1993).
To the extent that Plaintiff alleges in Count I that Officer Lopez and Officer
Albano conspired with each other, each acting in their official capacity, the
intracorporate conspiracy doctrine prohibits any such claim.
The Court granted leave to Plaintiff to amend the complaint as to Count I to
describe the alleged civil conspiracy with particularity, as to Officer Lopez and Officer
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Albano in their individual capacity. Plaintiff's Fourth Amended Complaint does not
include an individual capacity claim for civil conspiracy as to Officer Lopez and Officer
Albano, only a claim as to Defendant City of Temple Terrace.
After consideration, for the above reasons, the Court grants the Motion to
Dismiss as to Count 1.
F. Count 2
Intentional Infliction of Emotional Distress
Count 2 is a state law claim. Florida law recognizes the tort of intentional
infliction of emotional distress:
1) The wrongdoer's conduct was intentional or reckless, that is,
intended his behavior when he knew or should have known that emotional
distress would likely result;
2) the conduct was outrageous, that is, as to go beyond all bounds of
decency, and to be regarded as odious and utterly intolerable in a civilized
community;
3) the conduct caused emotional distress; and
4) the emotional distress was severe.
LeGrande v. Emmanuel. 889 So.2d 991, 994-995 (Fla. 3d DCA 2004). The
Restatement of Torts defines the requisite extreme and outrageous conduct as that
which is:
so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which
the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim,
'Outrageous!'
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Restatement (Second) of Torts, Sec. 46 cmt. d (1965).
This cause of action requires proof of willful and wanton conduct.
"Reckless
conduct" is the equivalent of "willful and wanton conduct." Williams v. City of Minneola.
619 So.2d 983, 986 (Fla. 5th DCA 1993). Sovereign immunity under Florida Statute
768.28(9) bars this claim against Defendant City of Temple Terrace.
After consideration, the Court grants the Motion to Dismiss Count 2.
Accordingly, it is
ORDERED that Defendants' Motion to Dismiss (Dkt. 37) is granted; the Motion
for More Definite Statement is denied as moot. The Fourth Amended Complaint is
dismissed with prejudice.
DONE and ORDERED in Chambers, in Tampa, Florida on this 27th day of
August, 2013.
Copies to:
All parties and counsel of record
18
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