McCulley et al v. Jones et al
Filing
17
ORDER granting 9 Motion to Dismiss as to federal claims and dismissing without prejudice state claims. The Clerk is directed to enter judgment in favor of Defendant Jones in accordance with the attached order, to terminate any pending motions, and to CLOSE the case. Signed by Judge Richard A. Lazzara on 11/22/2017. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ADELINA MCCULLEY,
CLARENCE J. MCCULLEY, and
JOHN M. RICHMOND,
Plaintiffs,
v.
CASE NO. 8:17-cv-1681-T-26MAP
DETECTIVE JEFFREY JONES (PCSO),
individually, and GRADY JUDD, in his
official capacity as Sheriff of the Polk
County Sheriff’s Office,
Defendants.
/
ORDER
BEFORE THE COURT is Defendants’ Motion to Dismiss Complaint (Dkt. 9),
and Plaintiff’s Response in Opposition with Exhibit A attached (Dkt. 16). After careful
consideration of the allegations of the Complaint (Dkt. 1), the amended arrest warrants
attached to the motion (Dkt. 9-1), and the applicable law, the Court concludes the motion
is due to be granted as to the federal claims.
ALLEGATIONS
The circumstances giving rise to the arrests of the three Plaintiffs involved the
theft of approximately 80 citrus hauling trailers valued at between $5,000 and $10,000.1
Three other individuals, including Donald Mosley, were identified in the actual theft of
the trailers.2 Mr. Mosley admitted in his post-Miranda statement that some of the trailers
were sold to T&M Salvage (T&M), a licensed secondary metals recycler owned by
Plaintiff Adalina McCulley.3 Plaintiff John Richmond was the scale operator of T&M,
and Plaintiff Clarence McCulley was the manager of American Salvage and Trading, a
business that shared office space with T&M.4
At T&M, Mr. Mosley dealt only with Bernhard Powell, who was the buyer of
materials there.5 When Mr. Mosley was asked for paperwork, he responded that he
bought the trailers from individuals who did not have titles for the trailers.6 According to
1
See docket 1, paragraph 17, and docket 9-1 (Amended Arrest Warrants).
2
See docket 1, paragraph 18.
3
See docket 1, paragraphs 16 and 19.
4
See docket 1, paragraph 16.
5
See docket 1, paragraphs 16 and 21 (“When Mr. Mosely conducted the
transactions at T&M Salvage, the transactions were conducted only with Mr. Powell. Mr.
Mosely would specifically ask for Mr. Powell and only deal with Mr. Powell.”).
6
See docket 1, paragraph 22 (“When asked for paperwork for the trailers, Mr.
Mosely would respond that he couldn’t provide the paperwork because the individual he
bought them off of didn’t have the titles. Other times, Mr. Mosely would represent that
he did have titles for the trailers.”).
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Plaintiffs, the stolen trailers were “barely in working order” and were “missing multiple
tires.”7 Nevertheless, when the Polk County Sheriff’s Office asked for the records of
T&M, all Plaintiffs cooperated and also gave statements to Defendant Detective Jones.8
With respect to Mr. Richmond, there was allegedly no evidence that Mr.
Richmond made management decisions for T&M.9 The complaint even alleges that the
“evidence suggests and the discovery is expected to show that Mr. Richmond was
charged to extract favorable testimony from him against the McCulley’s.”10 Although not
expressly alleged in the complaint, Plaintiffs contend that none of the individuals at the
other two scrap yards to which Mr. Mosely sold the trailers were ever arrested.11 Out of
the 80 trailers stolen, Plaintiffs were charged with acquiring 40 of them.12 Each Plaintiff
7
See docket 1, paragraph 27 (“The trailers brought into T&M Salvage were
barely in working order and missing multiple tires. As a result, the trailers were treated as
unprepared steel.”). Plaintiffs also claim that when the Polk County Sheriff’s Office and
the State Attorney’s Office hosted a meeting with the secondary metals recycler and
salvage industries, the officers not only failed to advise them how to treat citrus trailers
but wholly failed to mention trailers at all. See docket 1, paragraphs 28-30.
8
See docket 1, paragraph 25.
9
See docket 1, paragraph 36 (“ . . .Despite a complete lack of evidence that Mr.
Richmond made management decisions, interacted with the trailer thieves, or in any way
colluded to commit criminal acts, Detectives included Mr. Richmond as a defendant. . .
.”).
10
See docket 1, paragraph 36.
11
See docket 1, paragraph 19 (“Mr. Mosely also admitted to selling citrus trailers
to a scrap yard in Hardee County and another scrap yard in Plant City.”).
12
See docket 9-1 (“Based on the printed copies of the transaction records
including photos of the transactions, the defendant and three co-defendants committed the
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and Mr. Powell were charged with 40 counts of unlawful purchase of a motor vehicle, 40
counts of grand theft of motor vehicle, and 40 counts of dealing in stolen property.13 The
grand theft charges against the Plaintiffs were dropped, and six of the remaining 80
counts were dropped.14 Mrs. McCulley was found not guilty at her jury trial.15
Eventually all the charges were dropped against Mr. Richmond and Mr. Powell.16 Mr.
McCulley pleaded guilty to one misdemeanor count of transferring a trailer without
delivering a certified title.17
ARREST WARRANTS
Detective Jones reviewed the records of T&M which contained photographs of the
transactions. The records did not contain certificates of title, salvage certificates,
certificates of destruction, or derelict vehicle certificate applications from the sellers of
the trailers.18 The records showed that T&M classified the trailers as “unprepared steel.”
unlawful destruction of a motor vehicle (40 counts) by circumventing the statutory
requirements of 319.30 by not obtaining a certificate of title, salvage certificate,
certificate of destruction or a derelict motor vehicle certificate application from the seller
of the trailers.”).
13
See docket 1, paragraph 33.
14
See docket 1, paragraph 34.
15
See docket 1, paragraph 35.
16
See docket 1, paragraph 36.
17
See docket 1, paragraph 35.
18
Section 319.30(7)(a)(4) of the Florida Statutes requires that a secondary metals
recycler who purchases citrus hauling trailers must obtain a certificate of title, a salvage
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Each Plaintiff and Mr. Powell stated that they bought the trailers as scrap metal and did
not obtain any paperwork or titles nor did they obtain a derelict motor vehicle certificate
application from the sellers. Detective Jones further noted that the Plaintiffs and Mr.
Powell cut the trailers up into scrap metal and resold the metal to other secondary metals
recyclers to eliminate the possibility of inspecting the trailers for identifying numbers or
markings. Each arrest affidavit has a dated signature of the assistant state attorney in the
economic crimes division. The Defendants urge this Court to dismiss the complaint
because each Plaintiff was arrested pursuant to a valid arrest warrant and there was
probable cause for the arrests. Detective Jones argues that the § 1983 claim should be
dismissed based on qualified immunity because there was no constitutional violation and
there was arguable probable cause for the arrests.
STANDARD
Allegations of the Complaint
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
Alt. 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’
certificate, a certificate of destruction, or a derelict motor vehicle certificate.
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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 U.S. 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 1950.19 The factual allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
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
19
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 plausibility standard . . . [which] applies to all civil actions . . .’”) (citing
Randall v. Scott, 610 F.3d 701, 702 n.2 (11th Cir. 2010)).
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defendant’s motion to dismiss. 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) 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.
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 shields government officials from individual liability as long as the
acts were committed within their discretionary authority “unless the official’s conduct
violates clearly established [federal] statutory or constitutional rights of which a
reasonable person would have known.” Id., 598 F.3d at 762 (citations and internal
quotation marks omitted).20 An arrest falls within the officer’s discretionary function and
requires only “arguable probable cause” to fulfill the clearly-established element. Case v.
Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009) (citing Lee v. Ferraro, 284 F.3d 1188,
20
“Qualified immunity only protects public officials from lawsuits brought
against them in their individual capacity.” Young Apartments, Inc. v. Town of Jupiter,
529 F.3d 1027, 1047 (11th Cir. 2008) (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40
F.3d 1176, 1184 n. 16 (11th Cir. 1994)). A § 1983 claim brought against a sheriff in his
official capacity imposes liability against the department he or she represents. Welch v.
Laney, 57 F.3d 1004, 1008 (11th Cir. 1995) (citing Brandon v. Holt, 469 U.S. 464, 47172, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878 (1985)).
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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 establishing that the public official was acting within the scope of his discretionary
authority, then the plaintiff must show that the official violated a constitutional right and
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. Fish, 838 F.3d at 1162 (citing Pearson v. Callahan, 555 U.S. 223, 236,
129 S.Ct. 808, 172 L.Ed.2d 2009)).
COUNTS I, IV, and VII
§ 1983 FALSE ARREST AGAINST DETECTIVE JONES
Plaintiffs alleges three separate counts as to each Plaintiff for false arrest pursuant
to § 1983. Plaintiffs specifically allege that the Plaintiffs were unlawfully arrested when
Detective Jones “caused and authorized” their detention “when he submitted an arrest
affidavit . . . and applied for an arrest warrant, which led to [the] arrest” of Plaintiffs.21
Plaintiffs allege the arrest was without arguable probable cause.22 According to Plaintiffs,
the facts and circumstances within Detective Jones’ knowledge “would not cause a
prudent person to believe” that Plaintiffs had committed an offense.23 “[B]ased on the
21
See docket 1, paragraphs 45, 61, and 77.
22
See docket 1, paragraphs 46, 62 and 78.
23
See docket 1, paragraphs 47, 63 and 79.
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condition of the trailers and ambiguity of the law no criminal intent to violate the law
could have been perceived by a reasonable officer” in the same circumstances and
possessing the same knowledge as Detective Jones.24
Although not addressed by either party, the § 1983 count is labeled false arrest and
not malicious prosecution. Plaintiffs were arrested pursuant to arrest warrants and
therefore, even if the arrest warrants were invalid, their claim is one of malicious
prosecution. Carter v. Gore, 557 F.App’x 904, 906 (11th Cir. 2014) (citing Whiting v.
Traylor, 85 F.3d 581, 585 (11th Cir. 1996)).25 Although the complaint does not use the
term “maliciously prosecuted” as it did in Carter, it alleges that Detective Jones caused
the arrest warrants to be issued without arguable probable cause. “[A]n officer’s liability
for malicious prosecution flows from initially securing an invalid warrant . . . .” Carter,
557 F.App’x at 907. The complaint therefore technically alleges a § 1983 malicious
prosecution claim, which must be decided on the existence of arguable probable cause
24
See docket 1, paragraphs 48, 64 and 80.
25
See also Smith v. City of Fairburn, No. 16-11800, 2017 WL 603840, at *4 n.6
(11 Cir. Feb. 15, 2017); Shew v. Horvath, No. 8:16-cv-766-T-33JSS, 2017 WL
1399797, at *8 (M.D. Fla. Apr. 19, 2017), aff’d, No. 17-12023, 2017 WL 4417592 (11th
Cir. Oct, 4, 2017) (unpublished order); Towns v. Beseler, No. 3:15-cv-140-J-34JBT, 2016
WL 5933400 (M.D. Fla. Oct. 12, 2016). Defendants cite Mack v. Mazzerella, 554
F.App’x 800 (11th Cir. 2014), for the proposition that the existence of arguable probable
cause provides qualified immunity for Detective Jones from false arrest claims. Mack
characterizes the claim as one for malicious prosecution, not false arrest, without
discussing the distinction.
th
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Detective Jones raises the affirmative defense of qualified immunity in the motion
to dismiss. The arrests occurred within the scope of his discretionary authority as a
deputy with the sheriff’s office investigating the crimes associated with the citrus trailer
thefts. Plaintiffs admit there is no dispute that Detective Jones was acting within his
discretionary authority when he arrested Plaintiffs.26 The burden now rests with the
Plaintiffs to show that Detective Jones violated a constitutional right and that the
constitutional right was clearly established at the time of the alleged violation, in either
order. Fish, 838 F.3d at 1162 (citing Pearson, 555 U.S. at 236). Only if the law
enforcement officer presented evidence to an independent intermediary, like a magistrate,
that was insufficient to establish probable cause, and the officer would have known this
fact, would his qualified immunity defense be unsuccessful. Carter, 557 F.App’x at 908
(citing Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271
(1986)).
Plaintiffs do not contend that Detective Jones fabricated evidence in the arrest
affidavits, but that he recklessly disregarded and omitted material facts from the affidavits
and therefore lacked arguable probable cause to arrest. Plaintiffs cite the following
recklessly omitted facts. Detective Jones knew from Mr. Mosely’s statement that none of
the Plaintiffs participated in the actual transactions involving the citrus trailers. He knew
that Mr. Mosely dealt only with Mr. Powell and none of the Plaintiffs. He should have
26
See docket 16, page 11.
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known that Mr. Richmond did not have the authority to make management decisions and
there was no evidence that Mr. Richmond ever had any interaction with Mr. Mosely or
the other two thieves. Detective Jones should have investigated the ownership of T&M
so that he would have discovered Mrs. McCulley was listed as the owner of the business,
not Mr. McCulley. Plaintiffs claim that all of these facts were recklessly disregarded
sufficient to prevent a finding of arguable probable cause. The affidavits assume,
according to Plaintiffs, that they were actively involved in dealing in stolen property
based on the volume of purchases and destruction of the trailers; however, no arrests were
made from the other two metal recyclers who purchased the remainder of the 80 citrus
trailers. Plaintiffs even go so far as to allege that Mr. Richmond was arrested in order to
put pressure on him to disclose facts about the other Plaintiffs.
Plaintiffs take issue with Detective Jones’ failure to disclose his basis for
concluding that the Plaintiffs knew or should have known about the conspiracy to steal
citrus trailers. They challenge his assertion that the sheer volume of trailers purchased
and destroyed, together with the trailers’ dilapidated appearance, evidence Plaintiffs’
active participation in dealing in stolen citrus trailers. The percentage of scrap metal from
Mr. Mosely is minuscule, according to Plaintiffs, in comparison to T&M and American
Salvage Trading’s overall business. Plaintiffs claim the affidavits are devoid of any facts
specifically tying Mrs. McCulley to the scheme other than her presence in the shop.
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The essence of Plaintiffs’ argument is that Detective Jones should have conducted
a more thorough investigation, one that would have led to their exoneration. An officer,
however, does not have the duty to “track down every lead” or to “seek out exculpatory
evidence of which the officer is not aware.” Shew v. Horvath, No. 17-12023, 2017 WL
4417592, at *3 (11th Cir. Oct, 4, 2017) (unpublished order) (quoting Kelly v. Curtis, 21
F.3d 1544, 1551 (11th Cir. 1994)). Nor does an officer have a duty “to prove every
element of a crime before making an arrest,” Pierce v. Clayton Ctny., Ga., No. 17-10815,
(11th Cir. Nov. 21, 2017) (unpublished order) (quoting Jordan v. Mosley, 487 F.3d 1350,
1355 (11th Cir. 2007)).27 Likewise, it is not necessary to prove each and every element of
the crime with the facts recited in the affidavits. See Rhodes v. Kollar, 503 F.App’x 916,
924 (11th Cir. 2013). That all charges were dropped against John Richmond and that Mrs.
McCulley was found not guilty on all counts, does not bar qualified immunity. See
Zozula v. Florida, No. 6:10-cv-1588-Orl-28GJK, 2011 WL 2531203, at *4 (M.D. Fla.
June 24, 2011).
Detective Jones knew that the stolen citrus trailers were sold to T&M. This fact is
uncontested. He knew that all three Plaintiffs were located at or near T&M. Whether a
27
In Pierce, unlike this case, the detective was allegedly the very person who
removed from the stolen vehicle list the vehicle which the plaintiffs were accused of
stealing. He allegedly told them that he mistakenly removed the vehicle from the list
based on a clerical error; yet, he did not reveal these facts in the arrest affidavit, which
facts were held to be material to a finding of probable cause. No such allegations of
intentional wrongdoing on the part of Detective Jones were made in this case.
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search would have revealed the owner of T&M as Mrs. McCulley instead of Mr.
McCulley does not tend to either prove or disprove the issue of arguable probable cause.
Plaintiffs contest Detective Jones’ finding in the affidavits that the trailers were not
scrap when presented for purchase. Mr. Mosely told Detective Jones that he sold some of
the trailers to T&M, and the records of T&M, which contained photographs, confirmed
this statement and showed that the transactions classified the trailers as unprepared metal,
or scrap. Detective Jones, as stated in his affidavits, relied on the photographs of the
actual trailers taken from the Plaintiffs’ own records to substantiate that the trailers were
not originally scrap.28 Although the records contained photographs and documented the
transactions, there were no certificates of title, salvage certificates, certificates of
destruction, or applications for derelict motor vehicle certificates as required by Florida
law. The Plaintiffs acknowledged they did not collect paperwork. In the interviews of
the Plaintiffs conducted by Detective Jones, each referred to the items brought in as
“trailers,” not scrap metal. The absence of any statutory paperwork in conjunction with
the sales does not create an inference that the trailers were scrap, rather the opposite
inference would be reasonable. The Plaintiffs’ purchase of the trailers at below market
price, cutting them up into scrap metal, and later reselling the scrap to other secondary
28
The officer in Shew was permitted to rely on the engineer’s report regarding
prior sinkhole damage and was not required to personally inspect the house himself to
observe whether sinkhole damage was obvious. Detective Jones could not have viewed
the trailers upon presentment to T&M, but he relied on the photographs in the Plaintiffs’
records.
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metal recyclers creates an even greater objective inference that the Plaintiffs may have
had something to hide.
Finally, Plaintiffs’ urging that Detective Jones should have relied on one of the
thief’s statements is also unconvincing. Probable cause, a standard higher than arguable
probable cause, requires that the law enforcement official have “reasonably trustworthy
information” to believe that an offense has been committed. Wilson v. Attaway, 757 F.2d
1227, 1235 (11th Cir. 1985). Mr. Mosely, a thief of the 80 citrus trailers, gave a
statement that T&M did not know anything about the stolen citrus trailers – “I just bring
‘em in there and they buy ‘em.”29 The word of a defendant, however, is not inherently
trustworthy and certainly does not constitute trustworthy information that the Plaintiffs
unequivocally did not know or should not have even questioned the trailers brought to
them for purchase.30
Looking at the sufficiency of the factual allegations of the complaint, and taking
them as true, there are no facts to plausibly suggest that Detective Jones secured arrest
warrants without arguable probable cause. The affidavits contain more than mere
conclusory assertions that the Plaintiffs committed the crimes of theft, unlawful purchase
29
See docket 16-1, page 4.
30
Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004), relied on by
Plaintiffs is distinguishable. Plaintiffs’ allegations do not show that Detective Jones
conducted a biased investigation as was the case in Kingsland. Kingsland involved an
arrest made for DUI, after the driver suffered injuries obviously resulting from the
collision and the plaintiff tested negative for both alcohol and cannabis, which further
investigation would have revealed.
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of a motor vehicle, and dealing in stolen property. The only information Detective Jones
could have allegedly ignored was the statement of Mr. Mosely that the Plaintiffs did not
know about the theft ring, which information could not be assumed as trustworthy.
Missing are any allegations that the Plaintiffs tried to insure the trailers were not stolen.
While the Plaintiffs may believe they were targeted apart from the other two companies
that purchased the stolen trailers and may believe that Detective Jones should have
investigated further, the Court finds that these two factors do not change the analysis.
Thirty-seven of the 80 stolen trailers were sold to T&M. Although this number may be
small in comparison to all of T&M’s scrap metal purchases, it constituted almost 50 per
cent of the trailers stolen, which was the information Detective Jones knew for a fact
based on the Plaintiffs’ own records at the time he applied for the arrest warrants. In the
context of probable cause, much less arguable probable cause, a reasonable officer in
Detective Jones’ same circumstances and possessing the same knowledge could have
reasonably believed that probable cause existed to arrest them for the crimes. While it is
possible that the arrests could have constituted a violation of the Fourth Amendment had
there been intentional or reckless omissions in the affidavits, the allegations of the
complaint do not establish that any such constitutional right to be free from seizures was
clearly established on these alleged facts, including the ones missing from the affidavits,
at the time of the alleged violation.
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SUPPLEMENTAL JURISDICTION
Because the Court has resolved Plaintiffs’ federal claims against Detective Jones
in favor of him, only Plaintiffs’ state law claims against Detective Jones (Counts II, V,
and VIII) and Sheriff Judd (Counts III, VI, and IX) remain pending. Title 28, section
1367 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. See 28 U.S.C. § 1367(c)(3). In making this determination, the Court
should consider factors such as “comity, judicial economy, convenience, fairness, and the
like.” Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999) (quoting Roche v. John
Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996)). Although this decision is
discretionary, see Englehart 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. Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir.
2004); Baggett v. First Nat’l Bank, 117 F.3d 1342, 1353 (11th Cir. 1997). Where the
Court declines to exercise supplemental jurisdiction over such claims, the claims should
be dismissed without prejudice so they can be refiled in the appropriate state court.
Crosby, 187 F.3d at 1352. Section 1367(d) gives “the plaintiff at least 30 days to re-file
in state court after a federal court declines to exercise supplemental jurisdiction.”
Personalized Media Commc’ns, LLC v. Scientific-Alt., Inc., 493 F. App’x 78, 82 n.1 (11th
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Cir. 2012) (unpublished opinion).31 In the interest of judicial economy and convenience,
the Court declines to exercise supplemental jurisdiction over the remaining state law
claims in this action.
IT IS therefore ORDERED AND ADJUDGED as follows:
(1)
Defendants’ Motion to Dismiss Complaint (Dkt. 9) is GRANTED but only
to the extent that the federal claims in Counts I, IV, and VII of the Complaint alleged
against Defendant Jones are dismissed with prejudice. The motion is otherwise denied
without prejudice as to all other counts.
(2)
Counts II, III, V, VI, VIII, and IX are dismissed without prejudice to
bringing them in state court.
(3)
The Clerk is directed to enter judgment in favor of Defendant Jones as to
Counts I, IV, and VII of the Complaint and against Plaintiffs, terminate any pending
motions, and close the case.
DONE AND ORDERED at Tampa, Florida, on November 22 , 2017.
s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
31
State law claims initially brought in federal court with “related” federal claims
“shall be tolled while the claim is pending and for a period of 30 days after it is dismissed
unless State law provides for a longer tolling period.” 28 U.S.C. § 1367(d).
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COPIES FURNISHED TO:
Counsel of Record
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