BRIMAGE-NESMITH v. BAY CREDIT UNION

Filing 13

ORDER OF DISMISSAL re adopting 8 Report and Recommendation.The report and recommendation is accepted and adopted as the courts further opinion. The clerk must enter judgment stating, "This case is dismissed with prejudice for failure to state a claim on which relief can be granted." The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 8/17/2017. (jcw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
LATIEKA BRIMAGE-NESMITH,
Plaintiff,
v.

CASE NO. 5:17cv104-RH/GRJ

BAY CREDIT UNION et al.,
Defendants.
_____________________________/
ORDER OF DISMISSAL
State authorities prosecuted the plaintiff Latieka Brimage-Nesmith for
issuing a check on an account with insufficient funds. In the second amended
complaint, at least when read liberally, Ms. Nesmith asserts a maliciousprosecution claim and other claims against a credit union and two of its employees.
The defendants reported the insufficient-funds check to authorities.
The case is before the court on the magistrate judge’s report and
recommendation, which concludes that the second amended complaint should be
dismissed for failure to state a claim on which relief can be granted. No objections
have been filed.

Case No. 5:17cv104-RH/GRJ

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Ms. Nesmith does not deny that she issued a check drawn on an account
with insufficient funds. Ms. Nesmith seems to allege, at most, that she did know
the account had insufficient funds and thus did not intend to issue an insufficientfunds check. Ms. Nesmith seems to allege that the defendants had no basis to make
any contrary report to authorities.
Leaving aside other deficiencies in Ms. Nesmith’s malicious-prosecution
claim, the question is this: when a crime requires both an act and intent, does
evidence that a person committed the act provide probable cause to arrest the
person, even without further evidence of intent? The weight of authority indicates
the answer ordinarily is yes. In United States v. Everett, 719 F.2d 1119, 1120 (11th
Cir.1983), the court said, “While intent is an element of the crime [of passing
counterfeit currency], it is not necessary in order to establish probable cause to
arrest.” In McGuire v. City of New York, 142 F. App’x 1, 3 (2d Cir.2005)
(unpublished), the court said, “[W]hen an officer has evidence that a defendant has
engaged in conduct proscribed by law—whether transporting a quantity of drugs,
possessing a stolen item, or driving with a suspended license—he has probable
cause to arrest the person even without specific evidence on the elements of
knowledge and intent that will have to be proved to secure a conviction at trial.” In
United States v. Quintana, 594 F. Supp. 2d 1291, 1298 (M.D. Fla. 2009), the court
held that an officer had probable cause to arrest a person who was driving with a

Case No. 5:17cv104-RH/GRJ

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suspended license, even in the absence of any other evidence that the person knew
his license was suspended. This court reached the same result in Hanson v.
Greenfield, No. 4:13cv514-RH/CAS, 2014 WL 1664546 at *1 (N.D. Fla. Apr. 22,
2014) (unpublished order).
Probable cause is a complete defense to Ms. Nesmith’s maliciousprosecution claim. Her other claims also are unfounded for the reasons set out in
the report and recommendation. Accordingly,
IT IS ORDERED:
The report and recommendation is accepted and adopted as the court’s
further opinion. The clerk must enter judgment stating, “This case is dismissed
with prejudice for failure to state a claim on which relief can be granted.” The
clerk must close the file.
SO ORDERED on August 17, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 5:17cv104-RH/GRJ