Lucas v. Belmonte et al

Filing 13

ORDER: Defendants Mark Belmonte and Brian Dugan's Motion to Dismiss (Doc. # 11 ) is GRANTED. Lucas's Motion for the Court to Order Full Discovery (Doc. # 12 ) is DENIED AS MOOT. Lucas's Complaint is DISMISSED with prejudice. The Clerk shall CLOSE THE CASE. Signed by Judge Virginia M. Hernandez Covington on 10/19/2018. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

GARY L. LUCAS,
Plaintiff,
Case No. 8:18-cv-1405-T-33CPT
v.
MARK BELMONTE, Deputy of Police,
and BRIAN DUGAN, Chief of Police,

Defendants.
_________________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Defendants Mark Belmonte and Brian Dugan’s Motion to Dismiss,
which was filed July 25, 2018. (Doc. # 11). In response, pro
se Plaintiff Gary Lucas filed a Motion for the Court to Order
Full Discovery on August 13, 2018. (Doc. # 12). For the
reasons set out below, Defendants’ Motion is granted, and
Plaintiff’s Motion is denied as moot.
I.

Background and Procedural History
Lucas claims that on January 18, 2014, at approximately

1:00 “in the morning,” he “had been drinking and had stopped
to relieve [him]self” at The Church of the Way in Tampa,

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Florida. (Doc. # 1 at 4). At that time, Officer Belmonte,
answering a silent alarm call at the church, spotted Lucas on
the scene entering his truck. (Id.). Officer Belmonte blocked
Lucas’s truck with his patrol car and commanded Lucas to exit
the truck, but Lucas did not. (Id.). In response, Officer
Belmonte broke the truck window with a flashlight. (Id.).
Lucas reversed his truck into a light pole, nearly breaking
the light pole in half and causing injury to himself. (Id.).
Lucas, who was 65-years old at the time, then drove away from
the scene. (Id.).

Lucas indicates: “There was no one else

present, in fear I drove away.” (Id.).

Lucas explains that

he was intoxicated, so he did not realize the extent of his
injuries at the time of the incident. (Id. at 5).
Shortly thereafter, Lucas was confronted by another
officer and he was arrested. (Id. at 4). On February 5, 2014,
the Hillsborough County State Attorney’s Office charged Lucas
by Information with burglary of an unoccupied structure,
grand theft third degree, fleeing and attempting to elude a
police officer, driving under the influence, and leaving the
scene of an accident. On June 4, 2014, after a jury trial,
Lucas was adjudicated guilty of burglary of an unoccupied
structure, fleeing and attempting to elude a police officer,
and leaving the scene of an accident. On July 10, 2014, the

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Court sentenced Lucas to ten years in Florida State Prison.
On June 10, 2016, Florida’s Second District Court of Appeal
reversed Lucas’s conviction for fleeing and attempting to
elude a police officer because the trial court erred when it
failed to instruct the jury on a lesser included offense. The
Second DCA remanded the fleeing to elude charge back to the
trial court for a new trial.

The Second DCA affirmed the

burglary and leaving the scene convictions.

On August 10,

2016, the State of Florida Nolle Pross’ed the charge of
fleeing to elude a police officer.
Almost two years later, on June 11, 2018, Lucas filed a
pro se Complaint against Officers Belmonte and Dugan alleging
violation of his Fourth, Eighth, and Fourteenth Amendment
rights under 42 U.S.C. § 1983. (Doc. # 1). Specifically, Lucas
alleges that his Fourth Amendment right against unreasonable
searches and seizures, his Fourteenth Amendment right to due
process, and his Eighth Amendment right against cruel and
unusual punishment were violated. (Id. at 3). Lucas seeks
$1,070,000 in damages. (Id. at 5).
Defendants now seek dismissal of the Complaint. (Doc. #
11). Lucas filed a Motion seeking discovery, which the Court
construes as his response to the Motion to Dismiss. (Doc. #
12).

As explained below, the Court finds that Lucas’s claims

3

are time-barred, and the Court dismisses the Complaint with
prejudice.
II.

Legal Standard
The Court construes pro se pleadings liberally and holds

them to a less stringent standard than those drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). But, “a pro se litigant is still required to conform
to procedural rules, and a district judge is not required to
rewrite a deficient pleading.” McFarlin v. Douglas County,
587 F. App’x 593, 595 (11th Cir. 2014).
On a motion to dismiss pursuant to Rule 12(b)(6), this
Court accepts as true all the 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).

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). But,
[w]hile 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.

4

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations
omitted). 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). “The scope of review must
be limited to the four corners of the complaint” and attached
exhibits. St. George v. Pinellas County, 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Legal Analysis
Officers Belmonte and Dugan argue that Lucas’s Complaint
should be dismissed because it is time-barred. (Doc. # 11).
Dismissal

under

Rule

12(b)(6)

on

statute

of

limitations

grounds “is appropriate only if it is ‘apparent from the face
of the complaint’ that the claim is time-barred.” La Grasta
v. First Union Sec., Inc., 358 F.3d 840, 945 (11th Cir.
2004)(citation

omitted).

The

applicable

statute

of

limitations for a § 1983 claim is that of the forum state,
because there is no statute of limitation prescribed by 42
U.S.C. § 1983. Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir.
2003). Florida Statute § 95.11 is applicable, which states
that the statute of limitations for assault, battery, false
arrest, malicious prosecution, malicious interference, false

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imprisonment, or any other intentional tort is four years.
Fla. Stat. § 95.11(3)(o).
Lucas’s arrest occurred on January 18, 2014. (Doc. # 1).
To be timely, Lucas was required to file his civil complaint
by January 14, 2018; however, it was filed on June 11, 2018.
(Id.)

Thus, from the face of the Complaint, it is clear that

the statute of limitations for Lucas’s claims has run.
Furthermore, Lucas has not asserted any facts in his
Complaint (or in his construed response to the Motion to
Dismiss), which would cause the statute of limitations to be
tolled or otherwise allow his claims to survive. See Heuer v.
Nissan N. Am., Inc., No. CV 17-60018-CIV, 2017 WL 3475063, at
*4 (S.D. Fla. Aug. 11, 2017) (“When the time-bar is apparent
from the face of the complaint, the plaintiff bears the burden
of pleading allegations sufficient to toll the statute of
limitations.”).

Lucas

mentions

the

delayed

discovery

doctrine, as well as Patten v. Winderman, 965 So.2d 1222,
1224 (Fla. 4th DCA 2007), but he does not provide any analysis
about that doctrine. In Patten, an attorney breached his
fiduciary duty to his client by failing to properly set up a
trust.

The

client

argued

that

he

did

not

discover

the

attorney’s wrongdoing until years later. The trial court
determined that the claims were time barred because the client

6

should have sooner realized that his money had been swindled.
The facts presented here are not remotely similar to those
presented

in

Patten.

The

“delayed

discovery

doctrine

generally provides that a cause of action does not accrue
until the plaintiff either knows or reasonably should know of
the tortious act giving rise to the cause of action.” Patten,
965 So.2d at 1224. The Florida Supreme Court has held that
the

delayed

involving

discovery
fraud,

doctrine

products

only

applies

liability,

to

cases

professional

malpractice, medical malpractice, or intentional torts based
on abuse. Davis v. Monahan, 832 So.2d 708, 709-10 (Fla. 2002).
Furthermore, the United States Supreme Court has held that
“the statute of limitations upon a § 1983 claim seeking
damages for false arrest in violation of the Fourth Amendment,
where the arrest is followed by criminal proceedings, begins
to run at the time the claimant becomes detained pursuant to
legal process.” Wallace v. Kato, 549 U.S. 384, 397 (2007).
Lucas’s mere mention of the delayed discovery doctrine does
not provide the Court with a basis for denying the Motion to
Dismiss.
Although Lucas, as a pro se litigant, is to be afforded
leniency

in

established

his
by

pleading,

Florida

“the

Statute

7

statute
§

of

95.11(3)

limitations
presents

an

absolute bar to [Lucas] bringing this cause of action.” Jones
v. Collier County Sheriff’s Dept., No. 95-232-CIV-FTM-17D,
1996 WL 172989, at *3 (M.D. Fla.

Apr. 9, 1996). Therefore,

Lucas’s complaint is time barred. The Court notes that Lucas
has filed a Motion requesting discovery. (Doc. # 12). His
Motion is denied as moot due to the finding that Lucas’s
claims are time barred. Fla. Stat. § 95.11(3)(o).
Additionally, Lucas asserts that his arrest was unlawful
due to a lack of probable cause; however, this claim is barred
by Heck v. Humphrey, 512 U.S. 477 (1994). Heck prohibits Lucas
from raising a § 1983 claim for “an allegedly unconstitutional
conviction or imprisonment . . . unless [the] Plaintiff can
show that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ
of habeas corpus.” Id. at 486-87.
Of the three crimes which Lucas was found guilty of at
the trial level—burglary, fleeing to elude, and leaving the
scene of an accident—two were affirmed by the Second District
Court of Appeal on direct appeal. (Doc. # 11). That conviction
establishes probable cause and therefore creates an absolute

8

bar to Lucas’s § 1983 action for false arrest. Marx v.
Gumbinner, 905 F.2d 1503 (11th Cir. 1990).
Because Lucas is precluded from bringing a § 1983 claim
per the applicable statute of limitations and precedent of
Heck, the Court grants the Motion to Dismiss and dismisses
the Complaint with prejudice.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants Mark Belmonte and Brian Dugan’s Motion to
Dismiss (Doc. # 11) is GRANTED.

(2)

Lucas’s Motion for the Court to Order Full Discovery
(Doc. # 12) is DENIED AS MOOT.

(3)

Lucas’s Complaint is DISMISSED with prejudice.

(4)

The Clerk shall CLOSE THE CASE.
DONE and ORDERED in Tampa, Florida on this 19th day of

October, 2018.

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