Bey et al v. Hillsborough County et al

Filing 63

ORDER: denying 56 to the extent that the document could operate as a motion for reconsideration; granting 58 and 59 --motions to dismiss; dismissing with prejudice claims against Hiles, Harrison, Mayor Buckhorn, the City of Tampa, and Sheriff Gee; setting 1/26/2016 as the service deadline for Ball and Zahn. Signed by Judge Steven D. Merryday on 1/6/2016. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NASSOR MOORUTS BEY, et al.,
Plaintiffs,
v.

CASE NO. 8:15-cv-545-T-23EAJ

DAVID GEE, et al.,
Defendants.
___________________________________/

ORDER
Both appearing pro se, Nassor Mooruts Bey and his wife, Nura A. N. H.
Washington Bey, sue Tampa police officers Stephen Hiles and W. C. Harrison, the
City of Tampa, Mayor Bob Buckhorn, and Hillsborough County Sheriff David Gee
under 42 U.S.C. § 1983 and state law. An August 11, 2015 order (Doc. 55) dismisses
with prejudice a number of claims and allows the plaintiffs to file a third amended
complaint. The plaintiffs file (Doc. 57) a third amended complaint and the
defendants again move (Doc. 58, 59) to dismiss. The plaintiffs respond (Doc. 60, 61)
and file a “Writ of Mandamus Affidavit of Fact.”1

1

In substance, the responses and the “Writ” contest earlier rulings, including the August 11,
2015 order. To the extent that the plaintiffs intend any of these filings or the plaintiffs’ earlier
“Affidavit of Objection” (Doc. 56) to operate as a motion for reconsideration, the motion is
DENIED.

BACKGROUND
The allegations in the third amended complaint are entirely consistent with the
allegations in the dismissed second amended complaint. The plaintiffs claim the
status of “Aboriginal/Indigenous Natural Beings” and invoke a “Constitutional
Right to Travel.” (Doc. 57 at 2, ¶ 1) On March 3, 2015, Hiles stopped Bey while
Bey was driving a truck with “common law Aboriginal/Indigenous Moorish
American tags.” (Doc. 57 at ¶ 1) After Bey produced “his Aboriginal/Indigenous
Moorish/American Nationality Identification” and refused to exit the truck, Hiles
charged Bey with violations of Section 322.212(1)(a), Florida Statutes (prohibiting
unauthorized possession of a driver license or identification card) and Section 843.02,
Florida Statutes (prohibiting obstruction of an officer without violence). (Doc. 57
at ¶¶ 3–5) During the arrest, Hiles searched Bey’s pockets. (Doc. 57 at ¶ 4) Harrison
authorized seizure of the truck. (Doc. 57 at ¶ 7)
The complaint alleges that Bey was transported against his will to Tampa
General Hospital and subjected to treatment, “interrogations,” and “psychiatric
experiments.” (Doc. 57 at ¶¶ 13–19) Bey was denied a telephone call to the
“Moorish consul” and “detained without judicial determination of probable cause.”
(Doc. 57 at ¶¶ 9, 11–12)
The complaint asserts nine claims. As explained below, the plaintiffs
effectively ignore the August 11, 2015 order, which advises the plaintiffs that they
“may not re-assert any claim that this order dismisses with prejudice” and which

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specifies that any claims against the City of Tampa or Sheriff Gee in his official
capacity “must include a factual and legal basis for municipal liability.” (Doc. 55
at 23)
DISCUSSION
1. Hiles and Harrison
Suing Hiles and Harrison in their individual capacity, the plaintiffs allege a
Fourth Amendment violation based on the traffic stop, Bey’s arrest, and the search of
Bey’s person (Count 1); a Fifth Amendment violation based on Bey’s incarceration,
seizure of private property without due process, and interrogation without a proper
Miranda warning (Count 2); a Sixth Amendment violation based on failure to
provide notice of the charges and an opportunity to confront witnesses (Count 3);
and state-law claims for intentional infliction of emotional distress, malicious
prosecution, and defamation (Counts 6, 8, 9). (Doc. 57 at ¶¶ 25–31, 37–46) The
August 11, 2015 order dismisses with prejudice each of these claims. (Doc. 55 at
22–23) The plaintiffs plead no additional facts to otherwise establish a plausible right
to relief.
Accordingly, the claims against Hiles and Harrison remain dismissed with
prejudice. Because the plaintiffs state no claim against Hiles or Harrison, Nura Bey’s
derivative claim for loss of consortium (Count 7) fails.
2. City of Tampa and Mayor Buckhorn

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The August 11, 2015 order dismisses with prejudice all claims against Mayor
Buckhorn. (Doc. 55 at 23) The plaintiffs persist in pleading against Buckhorn claims
that are charitably construed as claims against the City of Tampa. Under Section
1983, the plaintiffs purport to allege a Sixth Amendment violation (Count 3), an
Eighth Amendment violation (Count 4), and a failure to train and supervise
(Count 5).
Section 1983 applies to a municipality “only where the municipality itself
causes the constitutional violation at issue. Respondeat superior or vicarious liability
will not attach under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989)
(emphasis in original). To state a claim against the City under Section 1983, the
plaintiffs must allege “(1) that [Bey’s] constitutional rights were violated; (2) that the
municipality had a custom or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused the violation.” McDowell
v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
Even assuming that the plaintiffs adequately allege an underlying
constitutional violation, the plaintiffs identify no unconstitutional municipal policy
or custom that caused the challenged conduct. The plaintiffs identify three Standard
Operating Procedures, but plead no facts suggesting a constitutional deficiency.
(Doc. 57 at ¶ 36). Also, in their effort to plead a municipal custom, the plaintiffs
allege no pattern of civil rights abuses similar to the violations that Bey allegedly
suffered. Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005).
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Instead, the plaintiffs allege that the City failed to train the officers. (Doc. 57
at ¶ 36) A failure to train may amount to a “policy,” but the plaintiffs must establish
that the City knew of the need to train and deliberately chose inaction. Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Deliberate indifference may be
demonstrated by “[a] pattern of similar constitutional violations by untrained
employees” or by showing “that the unconstitutional consequences of failing to train
[are] patently obvious.” Connick v. Thompson, 563 U.S. 51, 62–64 (2011). The
plaintiffs allege that the need for further training is “plainly obvious,” which is a
mere conclusion without factual content or support and which is wholly insufficient.
(Doc. 57 at ¶ 36);Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1328–29
(11th Cir. 2015).
Accordingly, the plaintiffs state no plausible Section 1983 claim against the
City. Sovereign immunity bars the plaintiffs’ remaining claim for malicious
prosecution (Count 8). Fla. Stat. § 768.28(2), (9)(a);Weiland, 792 F.3d at 1330.
3. Sheriff Gee
The plaintiffs bring Section 1983 claims (Counts 3 and 4) and a state-law
defamation claim (Count 9) against the Sheriff in his official capacity. The
allegations include no plausible basis for municipal liability under Section 1983.
Absolute immunity bars the defamation claim. Crowder v. Barbati, 987 So. 2d 166,
168 (Fla. 4th DCA 2008). Absent a claim against the Sheriff, Nura Bey’s loss-ofconsortium claim fails.
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4. Unserved defendants
The plaintiffs allege that “Kristen Ball, Elise Zahn, Hillsborough County
Sheriff’s Jail personnel” violated the Eighth Amendment by subjecting Bey to
degrading and unnecessary treatment. (Doc. 57 at ¶ 33) The Sheriff represents (Doc.
58 at 4–5) that the plaintiffs have not effected service on Ball or Zahn and the docket
includes no issuance of a summons for Ball or Zahn. The plaintiffs respond that
“due to the overwhelming efforts to close the door in obtaining justice, the burden is
great and this particular task has not been possible at this point.” (Doc. 60 at 6)
If an amended complaint names a new defendant, the 120 days2 within which
to serve the new defendant begins the day after the filing of the amended complaint.
Lindley v. City of Birmingham, 452 Fed. Appx. 878, 880 (11th Cir. 2011). Because the
plaintiffs filed the third amended complaint on August 21, 2015, the plaintiffs were
required to serve the new defendants on or before December 21, 2015. Fed. R.
Civ. P. 4(m); Fed. R. Civ. P. 6.
CONCLUSION
The motions to dismiss (Doc. 58, 59) are GRANTED to the extent that the
claims against Hiles, Harrison, Mayor Buckhorn, the City of Tampa, and Sheriff Gee
are DISMISSED WITH PREJUDICE.

2

The amendments to Rule 4(m), effective December 1, 2015, reduce the time to 90 days.
The amendments govern pending actions only “insofar as just and practicable.” Fed. R. Civ. P.,
Order of April 29, 2015.

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The plaintiffs shall have through JANUARY 26, 2016, to cause the issuance
of a summons against Ball and Zahn, to serve the summons and the third amended
complaint against Ball and Zahn, and to file proof of service on Ball and Zahn.
Failure to comply with this order will result in the dismissal of this action (against
Ball and Zahn) for failure to prosecute without further notice.
ORDERED in Tampa, Florida, on January 6, 2016.

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