Wittenberg et al v. Judd et al
Filing
35
ORDER ATTACHED granting [27 & 28] Motions to Dismiss as to Count I with prejudice, and directing Clerk to enter judgment in favor of Defendants as to Count I, to remand case to state court, and to CLOSE this case. Signed by Judge Richard A. Lazzara on 6/30/2017. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SANDRA WITTENBERG and
HOWARD WITTENBERG,
Plaintiffs,
v.
CASE NO. 8:17-cv-467-T-26AEP
GRADY JUDD, in his official capacity
as the Sheriff of Polk County, Florida;
JASON VARNADORE; and
BRADFORD COPLEY,
Defendants.
/
ORDER
THIS CAUSE comes before the Court on Defendants Grady Judd and Jason
Varnadore’s Motion to Dismiss First Amended Complaint or, in the Alternative, Motion
for More Definite Statement (Dkt. 27), Plaintiffs’ Response in Opposition (Dkt. 29),
Defendant Bradford Copley’s Motion to Dismiss and to Strike (Dkt. 28), and Plaintiffs’
Response in Opposition (Dkt. 30). The Court previously granted Defendants’ Motions to
Dismiss (Dkts. 6 & 7) without prejudice to Plaintiffs filing an amended complaint, but
now must find that Plaintiffs’ second effort at pleading their causes of action fares no
better. Having carefully considered the allegations of Plaintiff’s first amended complaint
(Dkt. 2), the arguments of counsel, and the applicable law, the Court concludes that the
motions to dismiss are due to be granted.
BACKGROUND AND FACTUAL ALLEGATIONS
As set forth in the Court’s prior order of dismissal (Dkt. 21), Plaintiffs, Sandra
Wittenberg and Howard Wittenberg, husband and wife, (also referred to in this order as
“Mrs. Wittenberg” and “Mr. Wittenberg”) sue Grady Judd as the Sheriff of Polk County,
Florida, Jason Varnadore (“Varnadore”), a detective with the Polk County Sheriff’s
Office, and Bradford Copley (“Copley”), an assistant state attorney for the Tenth Judicial
Circuit of Polk County, Florida, for damages resulting from the detention and arrest of
Mrs. Wittenberg and unlawful detention of Mr. Wittenberg. Plaintiffs have added 44 new
paragraphs to their first amended complaint, most of which were added to the “Common
Allegations” section. These new allegations detail the alleged conduct of the officers in
carrying out the search of Plaintiffs’ home pursuant to a court-authorized search warrant.
Plaintiffs also now allege a theft during the search of either $400 or $435 (their
allegations in this regard are inconsistent) by Defendant Copley, which was never
mentioned in the original complaint.
The first amended complaint alleges that on March 10, 2013, Mrs. Wittenberg
mailed a letter to the Polk County Tax Collector that admittedly used “coarse language”
and was “rude, angry, and derogatory.”1 Plaintiffs allege, however, that the letter
1
See docket 22, ¶ 10. The letter is attached to the first amended complaint as Exhibit A
and reads as follows:
-2-
constituted “free speech that is completely protected under the First Amendment of the
U.S. Constitution.”2 Notwithstanding, the letter was evidently reported to the Polk
County Sheriff’s Office, thereby prompting an investigation. Plaintiffs allege that on
April 2, 2013, a search warrant was issued by a judge of the Circuit Court of the Tenth
Judicial Circuit in and for Polk County, Florida, and on April 3, 2013, “more than a dozen
To Whom it May Concern:
Per the advice of my attorney, Richard Friedman, I am enclosing a
check for $136.00 to be applied to the extortion fund of
Christopher Rudolph for tourist taxes that are not due. The only
reason I am paying this is because I am sick and tired of that son of
a b**** Rudolph’s d*** being stuck up my a** and want him out
of my life. He is an arrogant piece of garbage and a detriment to
society. This piece of garbage has yet to tell me what house this
supposed tax was for since I have repeatedly proven that I had
ONE house in Polk for the time period that he is going over and all
tourist taxes were paid but his ears must be clogged with all the
extra fat on his body.
Since my neighbors have told me that they witnessed on two
occasions someone at my front door taping a letter on the glass and
also putting their ears to the door, if anyone from Polk County tax
office steps foot on my property again, I will deem this as a threat
to my family and trespassing and will use whatever force I have to
against that person under the laws of Florida.
Hopefully now I am paid in full until Rudolph decides to extort
more money from me for houses that don’t exist. Now, take this
check and stick it up Rudolph’s a**.
Sincerely,
Sandra Wittenberg
2
See docket 22, ¶ 11.
-3-
Polk County Sheriff’s deputies arrived at Plaintiffs’ residence and executed the warrant."3
Defendant Copley also attended the execution of the search for the purpose of seeing that
it was carried out according to the law.
Plaintiffs allege that in the course of executing a search warrant of the Wittenberg
home, Mrs. Wittenberg was arrested without an actual warrant, and Mr. Wittenberg was
detained for several hours without probable cause.4 They add that numerous items were
seized at that time that were arguably within the permissible scope of the search warrant;
however, firearms were also seized that were outside the scope of the search warrant and
not reasonably contemplated by the scope of the search warrant.”5 As mentioned above,
Plaintiffs now allege that Defendant Copley seized either $400 or $435 from the console
of Mr. Wittenberg’s vehicle, never reported it on any inventory reports for the incidence,
and never returned the money to Plaintiffs. Plaintiffs allege that Mrs. Wittenberg was
later charged with corruption by threat against a public official in the Tenth Judicial
Circuit in and for Polk County, Florida.6 They add that the criminal case was terminated,
which “constituted a bona fide termination of that proceeding in her favor.”7
3
See docket 22, ¶¶ 15-16.
4
See docket 22, ¶¶ 32-41.
5
See docket 22, ¶ 42.
6
See docket 22, ¶ 52.
7
See docket 22, ¶ 86.
-4-
Plaintiffs’ first amended complaint seeks damages based on one federal claim for
relief and three state claims: violations of both Plaintiffs’ Fourth Amendment rights
pursuant to 42 U.S.C. §§ 1983 and 1988 against Detective Varnadore8 and Assistant State
Attorney Copley, in their individual capacity (Count I); false arrest and false
imprisonment of both Plaintiffs against Sheriff Judd, in his official capacity (Count II);
false arrest and false imprisonment of both Plaintiffs for acts committed by Detective
Varnadore, in his individual capacity and outside the scope of his employment (Count
III);9 and malicious prosecution of Mrs. Wittenberg only against Detective Varnadore, in
his individual capacity (Count IV).
DEFENDANTS’ ARGUMENTS
Defendants Sheriff Judd and Detective Varnadore’s motion to dismiss argues that:
1) the search warrant and the arrest affidavit establish probable cause; 2) the federal claim
against Detective Varnadore should be dismissed based on qualified immunity; 3) the
state law false arrest and imprisonment claims should be dismissed against Sheriff Judd in
his official capacity and Detective Varnadore because probable cause existed for the
arrest and detention; and 4) the state law malicious prosecution claim against Detective
Varnadore should be dismissed because the complaint does not allege that he was acting
8
Defendant Varnadore is the only officer to be sued by Plaintiffs individually,
presumably because he completed the search warrant application and arrested Mrs. Wittenberg.
9
Only Mrs. Wittenberg was actually arrested.
-5-
outside the scope of his employment or otherwise acting in bad faith, with malice, or
wantonly.
Defendant Assistant State Attorney Copley’s motion to dismiss for failure to state
a claim upon which relief can be granted and motion to strike argue that: (1) he is entitled
to Eleventh Amendment immunity in overseeing the legal and proper execution of a
search warrant signed and approved by a duly constituted Judge of the Tenth Judicial
Circuit in and for Polk County, Florida; (2) he is entitled to prosecutorial immunity, or, in
the alternative, qualified immunity for his involvement with the search warrant; (3)
paragraphs 56 through 59 of Count I (Fourth Amendment Violation against Varnadore &
Copley) set forth conclusory allegations against both Detective Varnadore and Copley
jointly rather than pleading specific allegations solely against Copley. (Dkt. ¶56 -59); (4)
the alleged theft in the amount of either $400 or $435 by Copley is a state law claim
belonging in small claims court or, alternatively, a state criminal court claim, and that the
alleged theft does not constitute a civil rights claim for violating the Fourth Amendment
of the U.S. Constitution; and (5) Plaintiffs’ damage claim for severe emotional distress,
pain and suffering, mental anguish, loss of capacity for enjoyment of life and punitive
damages should be stricken because Plaintiffs do not allege supporting facts.
Defendants attached the search warrant affidavit and the arrest affidavit to their
motions.10
10
See docket 27, Exhibit A; docket 28, Exhibits A & B. Only a search warrant was
ultimately issued in this matter, nevertheless, the Court observes that the factual basis of the
-6-
STANDARD FOR DISMISSAL
In order to overcome dismissal, the complaint must allege “enough” facts,
accepted as true and construed in the light most favorable to the plaintiff, to “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
570, 127 S.Ct. 1955, 1964-65, 1974, 167 L.Ed.2d 929 (2007). “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.” Twombly, 550 US. at 555, 127 S.Ct. at 1964-65 (internal citations
omitted). Legal conclusions “couched” as facts need not be accepted as true. Iqbal, 556
U.S. at 678, 129 S.Ct. at 1949. The conclusory legal allegations must first be separated
out, and then “the remaining well-pleaded factual allegations” may be accepted as true
and determined whether they state a plausible entitlement to relief. Franklin v. Curry, 738
F.3d 1246, 1251 (11th Cir. 2013). Determining whether the claim is plausible is “a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950.11
search and arrest warrant affidavits are almost identical.
11
The Eleventh Circuit has clarified that there is no more heightened pleading standard
in civil rights cases. Hoefling v. City of Miami, 811 F.3d 1271, 1276 (11th Cir. 2016) (“We
expressly held in Randall, and reaffirm today, that ‘whatever requirements our heightened
pleading standard once imposed have since been replaced by those of the Twombly-Iqbal
-7-
Generally, only the four corners of the complaint may be considered in ruling on a
motion to dismiss pursuant to Rule 12(b)(6). Cline v. Tolliver, 434 F. App’x 823, 824
(11th Cir. 2011) (unpublished opinion) (citing Speaker v. U.S. Dep’t of Health and Human
Servs. Ctrs. for Disease Control and Prevention, 623 F. 3d 1371, 1379 (11th Cir. 2010)).
The court may consider exhibits if referenced in the complaint and attached to the
defendant’s motion to dismiss, as is the case here with the arrest and search warrant
affidavits. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th
Cir. 1997). The court may “consider an extrinsic document if it is (1) central to the
plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc
of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). The Rule 12(b)(6) motion need
not be converted into a Rule 56 summary judgment motion “where certain documents and
their contents are undisputed.” Speaker, 623 F. 3d at 1379. When measured against this
standard, it is clear to this Court that the first amended complaint must be dismissed.
DISCUSSION
Qualified Immunity
In Count I of the first amended complaint, Plaintiffs sue Defendants Varnadore
and Copley, in their individual capacities, pursuant to 42 U.S.C. § 1983, for Fourth
Amendment violations. Their sole federal claim is founded on an alleged unlawful search
plausibility standard . . . [which] applies to all civil actions. . . .’”) (citing Randall v. Scott, 610,
F.3d 701, 707 n.2 (11th Cir. 2010)).
-8-
and seizure, an alleged unlawful detention of Mr. Wittenberg, and an alleged unlawful
arrest of Mrs. Wittenberg. Taking the pertinent factual allegations of the first amended
complaint as true, Defendants are clearly shielded from Plaintiffs’ federal claim by
qualified immunity.
The qualified immunity inquiry is intertwined with the Rule 12(b)(6) standard at
the dismissal stage. Keating v. City of Miami, 598 F.3d 753, 760 (11th Cir. 2010).
“Qualified immunity protection applies to all except the plainly incompetent or those who
knowingly violate the law and turns upon the ‘objective legal reasonableness’ of the
official’s action assessed in light of the legal rules that were ‘clearly established at the
time the action was taken.’” Gentile v. Bauder, 718 So. 2d 781, 784 (Fla. 1998) (internal
citations omitted). “Because qualified immunity shields government actors in all but
exceptional cases, courts should think long and hard before stripping defendants of
immunity.” Sanders v. Howze, 177 F.3d 1245, 1249 (11th Cir. 1999) (quotation marks
omitted). Qualified immunity is not only a shield from liability but also a shield from
suit. See Denno v. Sch. Bd. of Volusia Cty., Fla., 218 F.3d 1267, 1269 (11th Cir. 2000).
To receive qualified immunity, the public official “must first prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (citations and
quotation marks omitted). “The determination that an officer was acting within his or her
discretionary authority is a ‘low hurdle’ to clear.” Sims ex rel. Sims v. Forehand, 112 F.
-9-
Supp. 2d 1260, 1267 (M.D. Ala. 2000). If the defendant satisfies this “low hurdle,” the
burden shifts to the plaintiff to show that the official violated clearly established
constitutional law and qualified immunity is not appropriate. Id. at 1267; Vinyard, 311
F.3d at 1346. “Unless the plaintiff’s allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is entitled to dismissal before
the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see
also Burge v. Ferguson, 619 F. Supp. 2d 1225, 1234 (M.D. Fla. 2008) (quoting Gonzalez
v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (“Because qualified immunity is ‘an
entitlement not to stand trial or face the other burdens of litigation,’ questions of qualified
immunity must be resolved ‘at the earliest possible stage in litigation.’” ). “It is therefore
appropriate for a district court to grant the defense of qualified immunity at the motion to
dismiss stage if the complaint fails to allege the violation of a clearly established
constitutional right.” Burge, 619 F. Supp. 2d at 1234 (citations and quotation marks
omitted).
An arrest falls within the police officer’s discretionary function and requires only
“arguable probable cause” to fulfill the clearly-established element. See Case v. Eslinger,
555 F.3d 1317, 1327 (11th Cir. 2009) (citing Lee v. Ferraro, 284 F.3d 1188, 1195 (11th
Cir. 2002)). “Arguable probable cause exists ‘where reasonable officers in the same
circumstances and possessing the same knowledge as the defendant could have believed
that probable cause existed to arrest.’” Case, 555 F.3d at 1327 (citation omitted). After
-10-
establishing that the act is discretionary, the plaintiff must then show that the defendant
violated a constitutional right and that the right was clearly established at the time of the
alleged violation. Fish v. Brown, 838 F.3d 1153, 1162 (11th Cir. 2016) (citations
omitted). It does not matter which factor is considered first. Id. at 1162 (citing Pearson
v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).
Plaintiffs simply cannot meet their burden. Defendants Varnadore and Copley
have satisfied the “low hurdle” of demonstrating that they were acting within the scope of
their discretionary authority. This is undisputed inasmuch as the first amended complaint
alleges that they were so acting.12 Thus, the burden shifts to Plaintiffs to show that a
clearly established constitutional right was violated. Vinyard, 311 F.3d at 1346. The
evaluation at this stage involves two prongs: (1) whether Plaintiff has presented a prima
facie case of a constitutional deprivation and (2) whether the right violated was clearly
established at the time of the violation. Trammell v. Thomason, 335 F. App’x 835, 840
(11th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Turning to Plaintiffs’ prima facie case, the first amended complaint sets forth the
basis for the § 1983 claim against Detective Varnadore and Copley as an unlawful search
and seizure, an alleged unlawful detention of Mr. Wittenberg, and an alleged unlawful
arrest of Mr. Wittenberg, all in violation of the Fourth Amendment. These claims
necessarily rely on the terms of the search warrant. Plaintiffs did not attach the search
12
See docket 22, ¶ ¶ 8-9.
-11-
warrant to their first amended complaint, but Defendants Judd and Varnadore attached a
redacted version, which is also accessible to the public via an online request through the
Polk County Clerk of Court, to their motion to dismiss.13 The Court will consider the
warrant part of the pleadings for purposes of a Rule 12(b)(6) dismissal. Brooks v. Blue
Cross & Blue Shield of Fla., No. 95-405-CIV-MARCUS, 1995 WL 931702, at *5 (S.D.
Fla. Sept. 22, 1995), aff’d sub nom., 116 F.3d 1364 (11th Cir. 1997) (“[W]here the
plaintiff refers to certain documents in the complaint and those documents are central to
the plaintiff’s claim, . . . the Court may consider the documents part of the pleadings for
purposes of Rule 12(b)(6) dismissal, and the defendant’s attaching such documents to the
motion to dismiss will not require conversion of the motion into a motion for summary
judgment.”). The filing of the search warrant, a document already in the public record, is
compliant with Rule 5.2, Federal Rules of Civil Procedure, which governs such filings.
See Fed. R. Civ. P. 5.2(a).
With respect to the instant search and seizure, an examination of the search
warrant affidavit reveals that the Polk County Sheriff’s Office investigation of Plaintiffs
began when Detective Varnadore, then assigned to the Intelligence Unit of the Bureau of
Special Investigations for Homeland Security, received a forwarded email dated January
13
See docket 27, Exhibit B.
-12-
16, 2013, originally sent from Mr. Wittenberg to the Mayor of the City of Newtown,
Connecticut.14 The email included in the affidavit reads as follows:
From: Howard Wittenberg
>
Date: January 16, 2013 5:04:18 PM EST
To: “Pat.Llodra@newtown-ct.qov "
>
Subject: Fuck those 20 little dead bastards!!! and fuck that nigger in the
white house!!!! My gun rights here in Florida mean more to me than the
worm food rotting in those 20 graves!!! I do not give a shit!!! God bless
Florida and the 2nd amendment!!15
These statements are clearly inflammatory and disturbing and, thus, they prompted the
Sheriff's Office to send Detective Varnadore to visit Plaintiffs’ residence whereupon he
made contact with Mrs. Wittenberg, who expressed that she “agreed with the email” and
refused a consensual search of Plaintiffs’ residence.16
As further noted in the affidavit, Defendants’ public records search revealed that
Mr. Wittenberg had been arrested and convicted of a misdemeanor charge of the
Manufacturing of Explosives in Maryland in 1982 and that Mr. Wittenberg had since
purchased several weapons. Defendants’ belief that Mr. Wittenberg had been arrested
and convicted on an explosives charge consequently clearly factored into the decision to
detain the Wittenbergs during the search of their residence.
14
See docket 27, Exhibit B.
15
See docket 27, Exhibit B.
16
See docket 27, Exhibit B.
-13-
Two months later, the Polk Sheriff’s Office was notified of the threatening March
10, 2013, letter sent to the Polk County Tax Collector’s Office by Mrs. Wittenberg. This
letter evidently followed multiple derogatory letters and emails from Mrs. Wittenberg
pertaining to a tourist tax dispute with the Tax Collector’s Office. According to the
search warrant affidavit, the Tax Collector’s Office considered the letter to be threatening
and due to the escalation of the dispute, a supervisor in the office, Christopher Rudolph,
became involved personally with Mrs. Wittenberg’s case. The Tax Collector’s Office
was particularly concerned for employees who were required by law in some instances to
post notices at Plaintiffs’ residence. The supervisor stated in a sworn statement that there
was enough concern to solicit the involvement of law enforcement so that any future
visits to Plaintiffs’ residence would require a sheriff’s deputy to accompany any employee
of the Tax Collector’s Office. After a letter from the Tax Collector’s Office was posted
at Plaintiffs’ residence, Mrs. Wittenberg responded with a follow-up letter dated March
25, 2013, wherein she expressed her “complete hatred” for the supervisor.
According to Defendant Varnadore’s search warrant affidavit, Mrs. Wittenberg
used her letters “to threaten some type of force to influence the Tax Collector’s Office
employees from performing their lawful public duty of collecting taxes and providing
notices and correspondences in reference to the Wittenberg’s property.” Defendant
Varnadore then completed the search warrant application that was approved by Defendant
Copley and signed by a judge of the Tenth Judicial Circuit Court on April 2, 2013.
-14-
Pursuant to the search warrant, the purpose of the search was to find and seize any
instrumentality or means by which the felony had been committed or otherwise seize any
evidence of threats to public officials under section 838.021, Florida Statutes.
Plaintiffs claim that Defendants unlawfully seized firearms that were outside the
scope of the search warrant. However, as Defendants correctly assert, “when in the
course of performing a lawful search for an item listed on the warrant, the officers come
across other articles of an incriminatory character, that property may be seized under the
plain view doctrine.” United States v. Johnson, 713 F. 2d 654, 660 (11th Cir. 1983): see
also United States v. Roberts, 619 F. 2d 379 (5th Cir. 1980).17 It is not unreasonable to
interpret Mrs. Wittenberg’s March 10, 2013, letter as containing a threat to shoot, or
otherwise use force against, anyone from the Tax Collector’s Office who came onto her
property. Moreover, she and Mr. Wittenberg had both expressed contempt for anyone
who might be perceived as attempting to curb gun rights, notably in the disturbing email
to the Newtown, Connecticut Mayor. Plaintiffs were also known to own guns, the
legality of which was not known to Defendants. Under the circumstances, it was not
unreasonable for Defendant Varnadore to seize Plaintiffs’ firearms. See, e.g., United
States v. Story, 463 F. 2d 326 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34
L.Ed.2d 254 (1972) (holding that it is not a prerequisite for a legal seizure that the
17
In Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir. 1981)(en banc),
the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
rendered prior to October 1, 1981.
-15-
officers know at the time that the seized weapons were not registered.); United States v.
Canestri, 518 F.2d 269 (2d Cir. 1975) (holding that when an officer discovers a hidden
supply of loaded firearms, he has a duty to determine if the weapons are contraband.).
Because qualified immunity is intended to shield government actors in all but
“exceptional cases,” Plaintiffs cannot avoid qualified immunity on their unlawful search
and seizure claim unless they are able to show that Defendant Varnadore and Copley’s
actions were objectively unreasonable in light of the clearly established law at the time.
Plaintiffs fail to meet their burden.
With respect to the detention of Mr. Wittenberg, the law is clear that officers
executing a search warrant have the authority to detain the occupants of the premises
while a proper search is conducted. In Muehler v. Mena, 544 U.S. 93, 98, 125 S.Ct.
1465, 161 L.Ed.2d 299 (2005), the United States Supreme Court held as follows:
In Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340
(1981), we held that officers executing a search warrant for contraband
have the authority to detain the occupants of the premises while a proper
search is conducted. Such detentions are appropriate, we explained,
because the character of the additional intrusion caused by detention is
slight and because the justifications for detention are substantial. We made
clear that the detention of an occupant is surely less intrusive than the
search itself, and the presence of a warrant assures that a neutral magistrate
has determined that probable cause exists to search the home. Against this
incremental intrusion, we posited three legitimate law enforcement interests
that provide substantial justification for detaining an occupant: preventing
flight in the event that incriminating evidence is found; minimizing the risk
of harm to the officers; and facilitating the orderly completion of the search,
as detainees’ self-interest may induce them to open locked doors or locked
containers to avoid the use of force.
-16-
544 U.S. at 98 (internal quotation marks and citations omitted) (rejecting the argument
that an innocent detainee must be released once officers cease suspecting him or her of
wrongdoing, the Court found that “Mena’s detention for the duration of the search was
reasonable under Summers because a warrant existed to search [the premises] and she
was an occupant of that address at the time of the search.”); see also, Los Angeles Cnty.
v. Rettele, 550 U.S. 609, 616, 127 S.Ct. 1989, 167 L.Ed.2d 974 (2007) (“[W]hen officers
execute a valid warrant and act in a reasonable manner to protect themselves from harm,
however, the Fourth Amendment is not violated.”).
Once again, Plaintiffs fail to meet their burden to Defendants’ actions in detaining
Plaintiffs during the lawful search of their residence were objectively unreasonable.
Defendants are entitled to qualified immunity because their actions were entirely
reasonable in light of the perceived threat expressed in Mrs. Wittenberg’s letter alone,
even without considering the other information Defendants knew or believed about
Plaintiffs, including the fact that they knew that Plaintiffs owned firearms and believed
that Mr. Wittenberg had been convicted of an explosives charge.
Finally, the Court turns to Mrs. Wittenberg’s arrest with an understanding that
although an arrest without a warrant can form the basis of a § 1983 claim, “the existence
of probable cause at the time of arrest is an absolute bar to a subsequent constitutional
challenge to the arrest.” Brown v. City of Huntsville, Ala., 608 F. 3d 724, 734 (11th Cir.
2010). “Probable cause is a standard well short of absolute certainty.” Smith v. Sheriff,
-17-
Clay Cnty., Fla., 506 F. App‘x 894, 899 (11th Cir. 2013) (citing Los Angeles Cnty. v.
Rettele, 550 U.S. 609, 615 (2007)) (quotation marks omitted) (unpublished). “The
standard is met when the facts and circumstances within the officer’s knowledge, of
which he or she has reasonably trustworthy information, would cause a prudent person to
believe, under the circumstances shown, that the suspect has committed, is committing, or
is about to commit an offense.” Smith, 506 F. App’x at 899 (citations and quotation
marks omitted). “Probable cause requires more than mere suspicion, but does not require
convincing proof.” Id. (citing Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)).
“The probable cause analysis is undertaken in light of the totality of the circumstances,
and the standard must be judged not with clinical detachment, but with a common sense
view to the realities of normal life.” Smith, 506 F. App’x 899 (citing Craig v. Singletary,
127 F.3d 1030, 1042 (11th Cir. 1997)) (quotation marks omitted).
As previously discussed, the instant search warrant contains a wealth of “facts and
circumstances” that were within Defendant Varnadore’s knowledge to have given him
probable cause to arrest Mrs. Wittenberg. Moreover, the trial court judge found probable
cause to issue the search warrant based on the same facts and circumstances known to
Defendant Varnadore. The analysis required for him to determine whether there was
probable cause for the warrantless arrest was virtually identical to the analysis required by
the trial court judge herein to issue the warrant. See Barfield v. State, 396 So. 2d 793,
-18-
794 (Fla. Dist. Ct. App. 1981) (citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct.
584, (1969) (overruled on other grounds)).
Even if this Court only considers the letter Mrs. Wittenberg admittedly
wrote, there was sufficient probable cause for Defendant Varnadore to arrest Mrs.
Wittenberg. As Defendants assert, “[a]rguable probable cause exists where reasonable
officers in the same circumstances and possessing the same knowledge as the Defendants
could have believed that probable cause existed to arrest Plaintiff.” Brown, 608 F. 3d at
734 (quotation marks omitted). “Indeed, it is inevitable that law enforcement officials
will in some cases reasonably but mistakenly conclude that probable cause is present, and
in such cases those officials should not be held personally liable.” Id. at 734-35. “The
standard is an objective one and does not include an inquiry in to the officer’s subjective
intent or beliefs.” Id. at 735. “If the arresting officer had arguable probable cause to
arrest for any offense, qualified immunity will apply.” Id.
Defendant Varnadore is clearly entitled to qualified immunity because
Plaintiffs simply cannot show that “that the facts viewed in the light most favorable to the
plaintiff[s] establish a constitutional violation” by Detective Varnadore or that “the
unlawfulness of the defendant's actions was ‘clearly established’ at the time of the
incident.” Poulakis v. Rogers, 341 F. App’x 523, 525 (11th Cir. 2009) (unpublished). As
stated previously, it was not unreasonable to conclude that the letter from Mrs.
Wittenberg alone set forth a “Threat Against a Public Official” that violates section
-19-
838.021, Florida Statutes. See, e.g., Smith v. State, 532 So. 2d 50, 53 (Fla. Dist. Ct. App.
1988) (finding that the plaintiff’s letters crossed a threshold and he may not now claim
constitutional insulation for his actions. Although public figures must expect criticism
that may be untrue, unjustified, or hurtful, they do not have to passively accept statements
or conduct transcending mere criticism which threaten personal or family safety).
Moreover, Defendant Varnadore had the added benefit of being accompanied by an
assistant state attorney, Defendant Copley. See Drudge v. City of Kissimmee, 581 F.
Supp. 2d 1176, 1192 (M.D. Fla. 2008) (the agreement of a state attorney with an officer’s
probable cause determination provides additional support for the conclusion that a
reasonable officer would believe that an arrest could be appropriately effected).
As Defendants correctly argue, it is of no consequence to determining the validity
of an arrest itself if charges are dropped against the defendant or if the defendant is
subsequently acquitted. See Zozula v. Florida, 2011 WL 2531203, at *4 (M.D. Fla. June
24, 2011) (citations and quotation marks omitted). Neither is it “necessary that an officer
prove every element of the crime before making an arrest.” Rhodes v. Kollar, 503 F.
App’x 916, 924 (11th Cir. 2013) (unpublished). A law enforcement officer is not held to
the same standard as a prosecutor because the standard of conclusiveness and probability
for probable cause to arrest is less than that required to support a conviction or even a
civil judgment. See Gerstein v. Pugh, 420 U.S. 103, 121 (1975) (“the nature of the
[probable cause] determination itself . . . does not require the fine resolution of
-20-
conflicting evidence that a reasonable-doubt or even a preponderance standard
demands”). Plaintiffs’ federal claim necessarily fails because the first amended complaint
does not plausibly allege that Defendant Varnadore did not have a reasonable basis to
believe that there was probable cause to search, detain, and arrest. See Malley v. Briggs,
475 U.S. 335, 343-44, 106 S.CT. 1092, 89 L.Ed. 2d 271 (1986) (affirming that qualified
immunity is available to officers who have a reasonable basis for believing that there is
probable cause).
In light of the Court’s determination that Defendants Varnadore and Copley are
entitled to qualified immunity from Plaintiffs’ § 1983 claim in Count I, Defendants’
arguments in support of alternate forms of immunity from this cause of action need not be
addressed.
Supplemental Jurisdiction
Because the Court has resolved Plaintiffs’ federal claims in Count I in favor of
Defendants Varnadore and Copley, only Plaintiffs’ state law claims for false arrest and
false imprisonment against Defendants Judd and Varnadore, respectively, in Counts II
and III, and for malicious prosecution against Defendant Varnadore in Count IV remain
pending in this action. Plaintiffs’ alleged theft in the amount of either $400 or $435 by
Defendant Copley is also a state law claim belonging in small claims court or,
alternatively, a state criminal court claim, and that the alleged theft does not constitute a
civil rights claim for violating the Fourth Amendment of the U.S. Constitution.
-21-
Title 28 § 1367(c)(3) of the United States Code provides that the district courts
may decline to exercise supplemental jurisdiction over state claims where it has dismissed
all the underlying federal claims. In making this determination, the Court should
consider factors such as “comity, judicial economy, convenience, fairness, and the like.”
See May v. Boyd Bros. Transp., Inc., 241 F. App’x. 646, 647 (11th Cir. 2007) (quoting
Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999) (internal quotation omitted)
(unpublished). Although this decision is discretionary, see Englehardt v. Paul Revere
Life Ins Co., 139 F.3d 1346, 1350 (11th Cir. 1998), the dismissal of state law claims is
strongly encouraged where the federal claims are dismissed prior to trial. See
Farquharson v. Citibank, N.A., 664 F. App’x 793, 798, (11th Cir. 2016) (citing Baggett v.
First Nat’l Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997) (internal quotation
omitted) (unpublished). In the interest of judicial economy and convenience, the Court
declines to exercise supplemental jurisdiction over the remaining state law claims in this
action and remands this case to state court.
ACCORDINGLY, it is ORDERED AND ADJUDGED as follows:
(1) Defendants Grady Judd and Jason Varnadore’s Motion to Dismiss Plaintiffs’
Amended Complaint (Dkt. 27) and Defendant Bradford Copley’s Motion to Dismiss
Plaintiffs’ Amended Complaint and to Strike (Dkt. 28) are granted but only to the extent
that the federal claims in Count I of the Amended Complaint alleged against Defendants
-22-
Jason Varnadore and Bradley Copley are dismissed with prejudice. The motions are
otherwise denied without prejudice to being renewed in the Florida state court.
(2) The Clerk is directed to enter judgment in favor of Defendants Varnadore and
Copley as to Count I of the Amended Complaint.
(3) The Clerk is directed to remand this case to the Circuit of the Tenth Judicial
Circuit in and for Polk County, Florida, for resolution of the Plaintiffs’ state law claims
for theft, false arrest, false imprisonment, and malicious prosecution.
(4) The Clerk is directed to close this case.
DONE AND ORDERED at Tampa, Florida, on June 30, 2017.
s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
Pro se Plaintiffs
-23-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?