Lacy v. City of St. Petersburg, Florida et al
Filing
48
ORDER: Defendants' Dispositive Motion to Dismiss 30 is GRANTED to the extent provided herein. Count I is dismissed without prejudice as it is not ripe for this Court's review and Count II is dismissed with prejudice. The Clerk is directed to remand the remaining state law claims to state court. After remand has been effected, the Clerk is directed to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 9/4/2014. (KNC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTINE LACY,
Plaintiff,
v.
Case No. 8:14-cv-252-T-33TGW
CITY OF ST. PETERSBURG,
Florida, a municipal corporation;
WILLIAM FOSTER, Former Mayor; and
CHIEF OF POLICE CHUCK HARMON,
Defendants.
________________________________/
ORDER
This
matter
comes
before
the
Court
pursuant
to
Defendants City of St. Petersburg, Florida; Former Mayor
William Foster; and Former Chief of Police Chuck Harmon’s
Dispositive Motion to Dismiss (Doc. # 30), filed on May 7,
2014. Plaintiff Christine Lacy filed a response in opposition
to the Motion on June 2, 2014. (Doc. # 41). For the reasons
that follow, Count I is dismissed without prejudice as it is
not ripe for this Court’s review; Count II is dismissed with
prejudice; and the remaining state law claims are remanded to
state court.
I.
Background
Plaintiff initiated this action on January 27, 2014, in
state court.1 (Doc. # 2). Defendants filed a Notice of Removal
on February 3, 2014, contending that this Court has federal
question jurisdiction over this action. (Doc. # 1). This Court
granted Defendants’ Motion to Dismiss on April 8, 2014 (Doc.
# 24), and Plaintiff filed an Amended Complaint on April 25,
2014 (Doc. # 28).
According to the Amended Complaint, in January of 2011,
St. Petersburg police officers and other law enforcement
officers came to Plaintiff’s residence in St. Petersburg,
Florida looking for Plaintiff’s husband in order to execute
a felony arrest warrant against him. (Id. at ¶¶ 15, 17). When
Plaintiff answered the door, she informed police that her
husband was home and that he was armed or may have been armed.
(Id. at ¶ 18). Plaintiff further indicated that she was in
fear of her husband and what he may do to her and others.
(Id.).
Law
enforcement
directed
Plaintiff
to
leave
her
residence immediately, and Plaintiff complied. (Id. at ¶ 19).
Law
enforcement
began
to
search
the
residence
for
Plaintiff’s husband, which led to a shoot-out between law
1
The Court notes that on May
parties’ Stipulation of Dismissal
33), this action was dismissed
Insurance Group without prejudice
2
20, 2014, pursuant to the
Without Prejudice (Doc. #
against Defendant Balboa
(Doc. # 35).
enforcement and Plaintiff’s husband. (Id. at ¶ 20). The shootout culminated in the “tragic death of two law enforcement
officers as well as the death” of Plaintiff’s husband. (Id.).
After the shoot-out and recovery of the law enforcement
officers from Plaintiff’s residence, “[t]he St. Petersburg
Police Department, through Chief Harmon and/or Mayor Bill
Foster made an abrupt decision to [demolish] Plaintiff’s home
and remove the entire contents prior to allowing [Plaintiff]
back to the residence.” (Id. at ¶¶ 23-25).
According to the
Amended Complaint, “the house [was] completely leveled to the
ground and all of its contents were destroyed and/or removed
and demolished.” (Id. at ¶ 26).
Plaintiff contends that subsequent to the destruction of
her home, Mayor Foster promised, among other things, that
“[t]he City will make sure [Plaintiff] is made whole.” (Id.
at ¶ 29). Plaintiff submits that she wrote to Mayor Foster
directly requesting he honor this promise. (Id. at ¶ 30).
Furthermore, the Amended Complaint provides that “Plaintiff
has complied with all administrative and statutory conditions
precedent to filing her complaint.” (Id. at ¶ 14).
In
the
Amended
Complaint,
Plaintiff
following claims against Defendants:
3
sets
forth
the
Count I: 42 U.S.C. § 1983, Fifth and Fourteenth
Amendment claim (City of St. Petersburg, Mayor
Foster, Chief Harmon);
Count II: 42 U.S.C. § 1983 and Fourteenth Amendment
claim (City of St. Petersburg, Mayor Foster, Chief
Harmon);
Count III: Breach of Oral Agreement (City of St.
Petersburg, Mayor Foster);
Count IV: Promissory Estoppel claim (City of St.
Petersburg, Mayor Foster);
Count V: Inverse Condemnation claim (City of St.
Petersburg, Mayor Foster, Chief Harmon); and
Count VI: Negligence (City of St. Petersburg).
(See Doc. # 28).
Defendants filed the present Motion on May 7, 2014,
pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. # 30). Plaintiff
filed a response in opposition to the Motion on June 2, 2014.
(Doc. # 41). The Court has reviewed the Motion and the
response
thereto
and
is
otherwise
fully
advised
in
the
premises.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
4
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In
accordance
with
Twombly,
Federal
Rule
of
Civil
Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
5
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
III. Analysis
A. Count I
Count I is a constitutional “Takings” claim pursuant to
42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments to
the United States Constitution. (See Doc. # 28). According to
Defendants, Count I is not ripe for this Court’s review. (Doc.
# 30 at 5).
To
establish
a
constitutional
takings
violation,
a
plaintiff must prove that the challenged action denied the
plaintiff - the property owner - of any viable economic use
of the property. BFI Waste Sys. of N. Am. v. Dekalb Cnty.,
Ga., 303 F. Supp. 2d 1335, 1347 (N.D. Ga. 2004). “In other
words, the governmental action must have made the property
worthless.”
Agripost,
Inc.
v.
Miami–Dade
Cnty.
ex
rel.
Manager, 195 F.3d 1225, 1231 (11th Cir. 1999). In addition,
“the property owner must allege either that the state law
provides him no process for obtaining just compensation (such
as an action for inverse condemnation) or that the state law
appears to provide such process, but due to state court
interpretation, the process is inadequate.” Id. (emphasis
added). If the plaintiff cannot show either of these latter
6
requirements, the case is not ripe and the court lacks subject
matter jurisdiction over the claim. Williamson Cnty. Reg'l
Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S.
172, 194 (1985). Defendants argue that Plaintiff’s Takings
claim is not ripe as Plaintiff has failed to demonstrate that
state law provides her with no process for obtaining the just
compensation she desires. (Doc. # 30 at 5).
Plaintiff argues that Defendants have failed to state
what “procedures” are available to Plaintiff that she has
failed
to
exhaust.
(Doc.
#
41
at
4).
To
the
contrary,
Plaintiff contends that she did comply with the available
state procedures before filing this lawsuit and alleged so in
her Amended Complaint – “Plaintiff has complied with all
administrative and statutory conditions precedent to filing
her complaint” (Doc. # 28 at ¶ 14), which included filing a
notice under Fla. Stat. § 768.28 and waiting the six month
period for the state to consider her claim. (Doc. # 41 at 4).
Plaintiff indicates that she knows of no other options
for her to obtain relief from the alleged constitutional
deprivations but for her to bring a § 1983 action. To that
end, Plaintiff submits that the remedies under a tort theory
are “far from equal to remedies available under [42 U.S.C. §]
1983” as the state caps damages, limits attorneys’ fees and
7
affords
other
immunities
to
government
employees
and
agencies. (Id.). However, the Court notes that in addition to
her
federal
Takings
claim,
Plaintiff
has
simultaneously
brought a claim of inverse condemnation against Defendants,
“for the taking of private property rights protected under
Article X, Section 6 and Article I, Section 9, of the Florida
Constitution as well as Articles V and XIV of the United
States Constitution.” (See Doc. # 28 at 9-11).
Neither
party
disputes
that
Florida
law
provides
a
procedure for seeking just compensation under an inverse
condemnation
arguments
claim.
The
regarding
the
Court
acknowledges
“inadequacy”
remedies for her alleged deprivation.
of
the
Plaintiff’s
state
law
However, Plaintiff has
failed to provide any legal authority demonstrating this
alleged inadequacy or that she has been previously denied
relief on her state law takings claim. Thus, Plaintiff’s
federal Takings claim is not ripe, and will not be “until
[she] has used the [state] procedure and been denied just
compensation.” Williamson Cnty. Reg’l. Planning Com'n, 473
U.S. at 195; Watson Constr. Co. v. City of Gainesville, 244
F. App'x 274, 277-78 (11th Cir. 2007)(“Because Florida law
provides an adequate procedure for seeking just compensation
under an inverse condemnation claim, [plaintiff’s] federal
8
claim is not ripe ‘until it has used the procedure and been
denied just compensation.’”); New Port Largo, Inc. v. Monroe
Cnty., 873 F.Supp. 633, 640 (S.D. Fla. 1994) aff'd, 95 F.3d
1084
(11th
Cir.
1996)(finding
that
the
plaintiff’s
just
compensation claim was not ripe as the plaintiff failed to
pursue an inverse condemnation remedy in state court to obtain
just compensation for the alleged taking); E.-Bibb Twiggs
Neighborhood Ass'n v. Macon Bibb Planning & Zoning Comm'n,
896 F.2d 1264, 1266 (11th Cir. 1989) (finding that when the
plaintiffs filed their section 1983 action, they had not
exhausted the process leading toward “just compensation”
because they failed to seek compensation through state law
procedures).
Plaintiff
initiated
this
action
in
state
court
and
Defendants subsequently removed this action on the basis of
federal question jurisdiction. Because Plaintiff has not been
able
to
pursue
her
claim
for
deprivation
without
just
compensation, specifically by way of her inverse condemnation
claim, this Court lacks jurisdiction over the Takings claim.
See generally BFI Waste Sys. of N. Am., 303 F. Supp. 2d at
1347-48
(remanding
the
plaintiff’s
takings
and
inverse
condemnation claims as the “plaintiff has not been able to
pursue its inverse condemnation claim in state court.”);
9
Bickerstaff Clay Prods. Co., Inc. v. Harris Cnty., Ga. By &
Through Bd. of Comm'rs, 89 F.3d 1481, 1491 (11th Cir. 1996)(A
Takings Clause claim does not become ripe unless the state
provides no remedy to compensate the landowner for the taking
(i.e., inverse condemnation claim)). Accordingly, Defendants’
Motion is granted as to Count I. However, Count I is dismissed
without
prejudice
constitutional
so
that
Takings
Plaintiff
claim
once
she
may
has
raise
exhausted
her
all
available state law remedies.
B. Count II
Defendants insist that it still remains unclear as to
whether Plaintiff is alleging substantive due process or
procedural due process violations in Count II. (Doc. # 30 at
11). However, a review of the language provided in the Amended
Complaint
demonstrates
that
Count
II
is
a
claim
for
a
violation of Plaintiff’s procedural due process rights. (See
Doc. # 28 at ¶ 40).
Defendants
argue
that
Plaintiff’s
Amended
Complaint
fails to state a claim for procedural due process. (Doc. # 30
at 11). Specifically, Defendants submit that:
The
deprivation
by
state
action
of
a
constitutionally protected interest is not itself
unconstitutional. What is unconstitutional is the
deprivation of the interest without due process of
10
law. The constitutional violation is not complete
until the state fails to provide due process. The
Plaintiff was required, and failed, to plead or
allege what state remedies were inadequate. This
failure requires dismissal.
(Id. at 11)(internal citations omitted).
Furthermore, Defendants contend that Mayor Foster and
Chief Harmon are entitled to qualified immunity on Count II,
and Plaintiff fails to fulfill the requirements of Monell v.
Department of Social Services of City of New York, 436 U.S.
658 (1978) to assert a § 1983 claim against the City of St.
Petersburg. (Doc. # 30 at 12). The Court will address each
argument in turn.
1. Failure to State a Claim
Defendants contend that Plaintiff has failed to state a
cause of action as Plaintiff has failed to plead or allege
the inadequacy of the state remedies available to her. (Id.
at 11).
In the Amended Complaint, Plaintiff suggests that:
The City of St. Petersburg, through its Mayor
and/or Chief of Police, as official policy makers
on behalf of the City and Mayor Foster, in his
individual capacity, acting under color of law,
and/or Chief Harmon, in his individual capacity,
acting under color of law, ordered other employees
or contractors to completely destroy Plaintiff’s
home and all of its contents and remove the entire
11
contents of the home including 100% of the personal
property inside without her permission or consent,
without due process of law.
* * *
Plaintiff was denied access to her home from the
point she was ordered to leave and was not allowed
to return.
As a result of the course of action directed by
Mayor Foster, and/or Chief Harmon, both of whom had
actual and apparent authority to order the tak[ing]
of her property without due process of law,
Plaintiff has suffered damages. . . .
(Doc. # 28 at ¶¶ 41, 43-44).
As this Court previously determined, Count II is a claim
for
the
alleged
violation
of
Plaintiff’s
procedural
due
process rights. To prevail on a procedural due process claim,
Plaintiff must establish: (1) a constitutionally protected
interest
in
life,
liberty
or
property;
(2)
governmental
deprivation of that interest; and (3) the constitutional
inadequacy of procedures accompanying the deprivation. Bank
of Jackson Cnty. v. Cherry, 980 F.2d 1362, 1366 (11th Cir.
1993). The essential elements of procedural due process are
notice and an opportunity to be heard before one is deprived
of a protected interest. Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 542–43 (1985).
12
Unlike substantive due process violations, procedural
due process violations do not become complete “unless and
until the state refuses to provide due process,” (i.e., make
available
a
means
to
remedy
the
alleged
deprivation).
McKinney v. Pate, 20 F.3d 1550, 1562 (11th Cir. 1994)(“[T]he
presence of a satisfactory state remedy mandates that we find
that no procedural due process violation occurred.”); Cotton
v.
Jackson,
216
F.3d
1328,
1331
n.2
(11th
Cir.
2000)(“[P]rocedural due process violations do not even exist
unless no adequate state remedies are available.”); Angle v.
Dow, 822 F. Supp. 1530, 1545 (S.D. Ala. 1993) (“[w]here an
adequate state law remedy is provided to vindicate federal
due process rights, there can be no denial of procedural due
process, and thus no constitutional violation.”).
In
Count
II,
Plaintiff
makes
numerous
general
allegations and legal conclusions. However, these allegations
are insufficient to satisfy the pleading requirements of Fed.
R. Civ. P. 8(a)2 because they do not allow the Court to
2
Defendants urge this Court to apply a heightened pleading
requirement to Plaintiff’s § 1983 claim. (Doc. # 30 at 2).
However, as stated in Randall v. Scott, 610 F.3d 701, 709-10
(11th Cir. 2010), “Pleadings for § 1983 cases involving
defendants who are able to assert qualified immunity as a
defense shall now be held to comply with the standards
described in Iqbal . . . After Iqbal it is clear that there
is no ‘heightened pleading standard’ as it relates to cases
13
evaluate the sufficiency of Plaintiff’s constitutional claim.
Although
Plaintiff
pleads
some
specific
facts
in
the
background section of her Amended Complaint, followed by
allegations
of
constitutional
violations,
she
fails
to
explain how the state law remedies available to her, namely
a state law claim for inverse condemnation, are insufficient
and provide her inadequate process. See Auburn Med. Ctr.,
Inc.,
9
F.
Supp.
2d
at
1302
(The
plaintiff's
general
allegation that defendant’s actions deprived it of procedural
due process is insufficient).
To
the
extent
Plaintiff
argues
that
the
state
law
procedures are inadequate as the state places caps on the
amount of damages recoverable, limits attorneys’ fees, and
affords Defendants with additional protections, the Court
notes that these arguments are made in Plaintiff’s response
in opposition to Defendants’ Motion. Upon review of a Motion
to Dismiss, the Court is bound to limit its analysis to the
four corners of the complaint. See Kinsey v. MLH Fin. Servs.,
Inc., 509 F. App’x 852, 853 (11th Cir. 2013)(“In resolving a
motion to dismiss under Rule 12(b)(6), the court generally
limits itself to a consideration of the pleadings and exhibits
governed by Rule 8(a)(2), including civil rights complaints.
All that remains is the Rule 9 heightened pleading standard.”
14
attached thereto.”). Further, Plaintiff has failed to provide
legal
authority
demonstrating
that
even
if
the
state
procedures provide such limitations and defenses, that the
procedures should be deemed inadequate.
Florida courts possess the power to remedy Plaintiff’s
loss. Plaintiff has not sufficiently demonstrated how such
procedures would be inadequate or deficient. Accordingly,
Plaintiff has failed to state a claim under Count II.
2. Qualified Immunity: Mayor Foster & Chief Harmon
Irrespective
of
its
determination
as
to
whether
Plaintiff stated a procedural due process claim, the Court
will discuss Defendants’ position that Mayor Foster and Chief
Harmon are entitled to qualified immunity as to Count II.
“Qualified
immunity
protects
government
officials
performing discretionary functions as long as their conduct
‘does
not
violate
clearly
established
statutory
or
constitutional rights of which a reasonable person would have
known.’” Sharp v. Fisher, 532 F.3d 1180, 1183 (11th Cir. 2008)
(quoting Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir.
2007)). “It is well established that a plaintiff seeking to
overcome the defendant’s privilege of qualified immunity must
show (1) that the officer violated her federal constitutional
or statutory rights, and (2) that those rights were clearly
15
established at the time the officer acted.” Douglas Asphalt
Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008);
Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003)(A
government
official
is
immune
from
suit
in
his
or
her
individual capacity unless their conduct violates clearly
established
constitutional
or
federal
rights
of
which
a
reasonable person would have known); Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993) modified, 14
F.3d
583
(11th
Cir.
1994)(A
plaintiff
facing
qualified
immunity must produce evidence that would allow a fact-finder
to find that no reasonable person in the defendant's position
could have thought the facts were such that they justified
defendant's acts). “Qualified immunity ‘gives ample room for
mistaken
judgments’
but
does
not
protect
‘the
plainly
incompetent or those who knowingly violate the law.’” Gentile
v. Bauder, 718 So. 2d 781, 784 (Fla. 1998)(citing Malley v.
Briggs, 475 U.S. 335, 343 (1986)).
To be entitled to qualified immunity, the government
official must first establish that he was acting within his
discretionary authority. Dalrymple, 334 F.3d at 995.
If the
alleged conduct arises from the discharge of a defendant’s
discretionary
functions,
then
the
burden
shifts
to
the
plaintiff to prove: (1) that the facts alleged show that the
16
government official’s conduct violates a constitutional or
federal right; and (2) that the constitutional or federal
right “was clearly established at the time of the violation.”
Id.
In this case, Plaintiff does not dispute that Defendants
were acting within their discretionary authority as the Chief
of Police and Mayor of the City of St. Petersburg when the
individuals carried out the actions described in the Amended
Complaint.
Therefore the Court is left to determine whether
Plaintiff sufficiently established that Mayor Foster and
Chief Harmon’s conduct violated a constitutional or federal
right and whether that constitutional or federal right was
clearly established at the time of the violation. As will be
discussed below, the Court determines that Mayor Foster and
Chief Harmon are entitled to qualified immunity.
Plaintiff argues that Defendants violated Plaintiff’s
procedural due process rights when they “acting under color
of law, ordered other employees or contractors to completely
destroy Plaintiff’s home and all of its contents and remove
the entire contents of the home including 100% of the personal
property inside without her permission or consent, without
due process of law.” (Doc. # 28 at ¶ 41). This Court has
previously found that Plaintiff failed to adequately allege
17
a violation of her procedural due process rights, and thus,
has failed to establish that Defendants violated Plaintiff’s
constitutional or federal right.
However, even assuming that
Plaintiff did establish Defendants violated a constitutional
or federal right, Plaintiff does not point to any authority
that shows Plaintiff’s right was “clearly established” at the
time of the alleged violation.
Instead, Plaintiff suggests that “[T]his is a case of
violation of rights so basic and well established that no
reasonable person could honestly argue they were unaware.”
(Doc. # 41 at 11). Plaintiff further submits that “The
principal of law for which the Defendants are attempting to
claim qualified immunity is so well settled that the average
5th grader is well aware of it much less the Mayor of a City
and the Chief of Police of the City’s Police Department.”
(Id. at 13)(citing to Beckwith v. Webb’s Fabulous Pharmacies,
Inc., 374 So. 2d 951, 952 (1979)(“We begin our analysis by
reviewing rules of law so well established as not to require
citation.”).
Therefore,
according
to
Plaintiff,
“[w]hen
something is so clearly stated and well established there
tends not to be cases specifically holding the obvious, namely
that the state cannot take a citizen[’]s property without due
18
process of law and just compensation because it violates
rights guaranteed by the Constitution.” (Doc. # 41 at 13).
A right can be considered “clearly established” if, in
light of preexisting law, the unlawfulness of the official’s
conduct is “apparent.” Cooper v. Dilon, 403 F.3d 1208, 1220
(11th Cir. 2005).
Thus, an official is entitled to qualified
immunity unless the official has fair warning that his conduct
is unlawful. Id.
The Eleventh Circuit has identified three
categories of fair warning:
First, . . . whether the federal statute or
constitutional provision is so clear, and the
conduct is so bad, that it precludes qualified
immunity even in the total absence of case
law. Second, if the conduct is not bad enough
that it violates a constitutional provision on
its face, [a court] look[s] to case law that
can be applied broadly to a number of factual
situations. Third, and finally, if no broad
case law is applicable, [the court] turns to
case law precedent that is tied to the facts.
Kesinger v. Herrington, 381 F.3d 1243, 1250 n.6 (11th Cir.
2004).
As
stated
by
the
Eleventh
Circuit,
“For
qualified
immunity to be surrendered, pre-existing law must dictate,
that is, truly compel (not just suggest or allow or raise a
question about), the conclusion for every like-situated,
reasonable government agent that what the defendant is doing
19
violates federal law in the circumstances.” Lassiter v. Ala.
A & M Univ., 28 F.3d 1146, 1150 (11th Cir. 1994). Further,
the Eleventh Circuit has warned that “courts must not permit
plaintiffs to discharge their burden by referring to general
rules and to the violation of ‘abstract rights.’” Id.; Hunter
v. City of Warner Robins, Ga., 842 F. Supp. 1460, 1469 (M.D.
Ga. 1994)(“Unless it can be said that the state of the law
was of such clarity that a reasonable official should have
been
on
notice
that
his
or
her
challenged
conduct
was
unlawful, that official is entitled to qualified immunity.”);
Saucier v. Katz, 533 U.S. 194, 201 (2001) (To determine
whether qualified immunity applies the Court looks to whether
the
plaintiff’s
allegations
establish
a
constitutional
violation, and more significantly, whether such right in
question was “clearly established.”).
Plaintiff in this case has not carried her burden of
showing
that
Defendants
violated
a
clearly
established
federal right. Plaintiff fails to assert specific facts to
allow
this
Court
to
make
a
threshold
determination
by
comparing the facts of this case versus facts in cases where
courts have clearly identified constitutional violations.
Plaintiff must provide either United States Supreme Court
decisions, Eleventh Circuit cases, or Florida Supreme Court
20
cases that clearly establish a violation of federal law, and
Plaintiff
has
failed
to
do
so.
Instead,
Plaintiff
has
demonstrated that the case law in this area is not clear, but
instead requires a detailed factual analysis of each set of
circumstances. (See Doc. # 41)(citing Certain Interested
Underwriters At Lloyd's London Subscribing to Certificate No.
TPCLDP217477 v. City of St. Petersburg, 864 So. 2d 1145 (Fla.
2nd DCA 2003); In re Forfeiture of 1976 Kenworth Tractor
Trailer Truck, Altered VIN 243340M, 576 So. 2d 261 (Fla.
1990); Joint Ventures, Inc. v. Dep't of Transp., 563 So. 2d
622 (Fla. 1990); Case v. Eslinger, 555 F.3d 1317 (11th Cir.
2009)).
Accordingly, as Plaintiff has failed to provide legal
authority demonstrating that Mayor Foster and Chief Harmon
clearly violated Plaintiff’s federal or constitutional right,
the Court determines that these Defendants are entitled to
qualified immunity as to Count II.
3. Monell: City of St. Petersburg
In Monell, the Court concluded that a municipality or
local government entity “cannot be held liable under 42 U.S.C.
§ 1983 on a respondeat superior theory.” 436 U.S. at 691.
However, “a municipality or other local government may be
liable under [§ 1983] if the government body itself subjects
21
a person to a deprivation of rights or causes a person to be
subjected to such deprivation.” Connick v. Thompson, 131 S.
Ct. 1350, 1359 (2011).
A
plaintiff
seeking
to
impose
liability
on
a
governmental entity under § 1983 must identify a “municipal
‘policy or custom’ that caused the plaintiff’s injury.” Bd.
Of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S.
397,
403
(1997);
see
Ky.
v.
Graham,
473
U.S.
159,
166
(1985)(stating that “to establish personal liability in a §
1983 action, it is enough to show that the official, acting
under color of state law, caused the deprivation of a federal
right.
More
is
required
in
an
official-capacity
action,
however, for a governmental entity is liable under § 1983
only when the entity itself is a ‘moving force’ behind the
deprivation.” (internal citation omitted)).
A
plaintiff
may
establish
liability
pursuant
to
a
municipal policy when “a deliberate choice to follow a course
of action is made from among various alternatives by the
official or officials responsible for establishing final
policy with respect to the subject matter in question.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
Alternatively,
“to
prove
§
1983
liability
against
a
municipality based on custom, a plaintiff must establish a
22
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 the force of
law.’” Brown v. City of Ft. Lauderdale, 923 F.2d 1474, 1481
(11th Cir. 1991)(quoting City of St. Louis v. Praprotnik, 485
U.S. 112, 123 (1988)). Furthermore, municipality liability
can be imposed based on an isolated decision by a municipal
employee only if that employee has “final policy making
authority
for
the
challenged
act
under
state
law.”
Praprotnik, 485 U.S. at 123.
Defendants argue that “Plaintiff fails to fulfill the
requirements of Monell to assert a [42 U.S.C. § 1983] claim
against the municipality.” (Doc. # 30 at 12).
agrees.
factual
This Court
In her Amended Complaint, Plaintiff fails to provide
allegations
that
establish
the
City
of
St.
Petersburg’s liability by identifying a policy or custom
adhered to by its employees – Mayor Foster and Chief Harmon
- in allegedly depriving Plaintiff without due process of
law, or that the employees had the “final policy making
authority for the challenged act under state law.” Instead,
Plaintiff alleges legal conclusions without the necessary
factual support:
23
Bill Foster, as Mayor, was a policy maker with
actual and apparent decision making authority on
behalf of the City of St. Petersburg.
* * *
Chuck Harmon was a policy maker with actual and
apparent decision making authority on behalf of the
City of St. Petersburg for its Police Department.
* * *
The City of St. Petersburg, through its Mayor
and/or Chief of Police, as official policy makers
on behalf of the City and Mayor Foster, in his
individual capacity, acting under color of state
law, and/or Chief Harmon, in his individual
capacity, acting under color of law, ordered other
employees or contractors to completely destroy
Plaintiff’s home and all of its contents and remove
the entire contents of the home including 100% of
the personal property inside without her permission
or consent, without due process of law.
(Doc. # 28 at ¶¶ 5, 7, 41).
As Plaintiff has failed to allege sufficient factual
allegations demonstrating that a policy or custom of the City
of St. Petersburg was the “moving force” behind the alleged
constitutional violation suffered by Plaintiff or that Mayor
Foster
or
Chief
Harmon
had
the
“final
policy
making
authority,” this Court grants Defendants’ Motion to Dismiss
as it relates to Count II against the City of St. Petersburg.
C. State Law Claims
24
Having granted Defendants’ Motion as to Counts I and II,
the
Court
presently
concerns
finds
that
remains.
of
no
basis
Therefore,
comity,
judicial
for
federal
taking
into
economy,
jurisdiction
consideration
convenience
and
fairness, this Court, in its discretion, declines to exercise
supplemental
jurisdiction
over
the
remaining
state
law
claims. See, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343 (1988) (recognizing that “in the usual case in which all
federal-law claims are eliminated before trial, the balance
of factors to be considered under the pendent jurisdiction
doctrine . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims”). Thus, the
Court remands the remaining state law claims to state court.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants City of St. Petersburg, Former Mayor William
Foster,
and
Former
Police
Chief
Chuck
Harmon’s
Dispositive Motion to Dismiss (Doc. # 30) is GRANTED to
the extent provided herein.
(2)
Count I is dismissed without prejudice as it is not ripe
for this Court’s review and Count II is dismissed with
prejudice.
25
(3)
The Clerk is directed to remand the remaining state law
claims to state court. After remand has been effected,
the Clerk is directed to CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 4th
day of September, 2014.
Copies: All Counsel of Record
26
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