Delvalle v. City of Hallandale Beach et al
ORDER granting in part and denying in part 25 Motion to Dismiss Amended Complaint. Second Amended Complaint or Notice of intent to proceed solely with malicious prosecution claim due by 1/9/2012. Please see Order for additional details. Signed by Judge James I. Cohn on 12/27/2011. (awe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-61196-CIV-COHN/SELTZER
NORA B. DELVALLE,
OFFICER A. SMITH/6146 and
CITY OF HALLANDALE BEACH,
a political subdivision of the State of Florida,
ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS AMENDED COMPLAINT
THIS CAUSE is before the Court on Defendants Officer A. Smith and City of
Hallandale Beach’s Motion to Dismiss Amended Complaint for Malicious Prosecution,
False Arrest and Battery [DE 25] (“Motion”). The Court has considered the Motion,
Plaintiff Nora B. Delvalle’s Response [DE 28], Defendants’ Reply [DE 29], and the
record in this case, and is otherwise fully advised in the premises.
On May 23, 2011, Plaintiff Nora B. Delvalle filed this action against Defendants
Officer A. Smith and the City of Hallandale Beach (“the City”). See Complaint [DE 1].
On November 14, 2011, after the Court granted Defendants’ motion to dismiss the
original Complaint [DE 19], Plaintiff filed her Amended Complaint [DE 24]. The
Amended Complaint brings four claims pursuant to 42 U.S.C. § 1983: malicious
prosecution against Officer Smith (Count I); false arrest or imprisonment against the
City (Count II); battery against the City (Count III); and failure to intervene against the
City (Count IV). See id.
The Amended Complaint alleges that on or about July 20, 2008, Officer Smith
stopped Plaintiff while she was driving. Am. Compl. ¶ 8. Plaintiff maintains that she
was driving her vehicle within her lane, id. ¶ 29, but Officer Smith’s Complaint Affidavit
[DE 24-1] indicates that he observed Plaintiff’s vehicle swerving in its lane and crossing
into the bicycle lane, Am. Compl. ¶ 9; Compl. Aff. After stopping Plaintiff, Officer Smith
administered roadside sobriety tests, but according to the Complaint, he did not
describe or explain the physical requirements associated with the tests, nor did he
provide Plaintiff with an opportunity to explain limitations that prohibited her from
performing the exercises properly. Am. Compl. ¶¶ 12, 13, 15.
Officer Smith ultimately charged Plaintiff with driving under the influence (“DUI”)
and with violation of a traffic control device, arrested her, and escorted her to the
Broward County Sheriff’s facility for breath analysis. Am. Compl. ¶¶ 10, 16-18. Though
the breath analysis test results were .027 and .025, within .02 of each other, and both
below the legal limit for DUIs, Officer Smith allegedly “used the result of the breath
analysis as probable cause to charge  Plaintiff with DUI, describing results as
inconsistent.” Id. ¶ 19-20. Officer Smith then required Plaintiff to submit a urine
sample, which Plaintiff claims to have witnessed Officer Smith mishandle. Id. ¶¶ 21-22.
Plaintiff contends that Officer Smith lacked probable cause to charge her with
DUI and violation of a traffic control device. Id. ¶¶ 25-26. As a result of Officer Smith’s
conduct, Plaintiff claims that she suffered sleep deprivation, harm to her reputation,
emotional distress, mental anguish, loss of enjoyment of life, public ridicule, loss of selfesteem, pain, suffering, and humiliation, among other damages. Id. ¶¶ 33-34. In
addition, she notes that she “had to post a bond, hire a criminal defense attorney and
endure uncertainty, fear and anxiety with respect to the arrest and charges issued by
Officer A. Smith.” Id. ¶ 35.
Plaintiff further alleges that the City is liable for Officer Smith’s conduct because
its “policies, practices, customs and procedures violated Plaintiff’s rights under the 4th,
5th, and 14th Amendments of the United States Constitution to be free from
unreasonable searches and seizures and to be free from the deprivation of her right to
liberty without due process of law.” Id. ¶ 37. The City allegedly “condoned, ratified and
ignored without remediation Officer A. Smith’s violation of Plaintiff’s right[s].” Id. ¶ 38.
Also, Plaintiff claims that Officer Smith’s supervisor, Sergeant T. Crevier, failed to
intervene in Plaintiff’s arrest, and that the City “directly or indirectly, under color of law,
approved or ratified this unlawful conduct.” Id. ¶ 67. Therefore, Plaintiff seeks
damages against Officer Smith and the City.
II. LEGAL STANDARD
Under Rule 12(b)(6), a motion to dismiss lies for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state a claim, Federal
Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “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 ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)
(citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).
At this stage in the litigation, the Court must consider the factual allegations in
the Complaint as true, and accept all reasonable inferences therefrom. Jackson v.
Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). Nevertheless, the Court
may grant a motion to dismiss when, “on the basis of a dispositive issue of law, no
construction of the factual allegations will support the cause of action.” Marshall Cnty.
Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
Defendants seek to dismiss the entire Amended Complaint for failure to state a
claim upon which relief can be granted. Plaintiff contends that her pleading is sufficient
to survive dismissal. In accordance with the below discussion, the Court finds that
Plaintiff has stated a claim for malicious prosecution, but has failed to state her
remaining claims against the City.
A. Malicious Prosecution
To plead a malicious prosecution claim, the plaintiff must allege that “(1) an
original judicial proceeding against the present plaintiff was commenced or continued;
(2) the present defendant was the legal cause of the original proceeding; (3) the
termination of the original proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff; (4) there was an absence of probable cause
for the original proceeding; (5) there was malice on the part of the present defendant;
and (6) the plaintiff suffered damages as a result of the original proceeding.” Durkin v.
Davis, 814 So. 2d 1246, 1248 (Fla. Dist. Ct. App. 2002) (citing Burns v. GCC
Beverages, Inc., 502 So. 2d 1217 (Fla. 1986)). Defendants contend that Plaintiff has
not and cannot plead the fourth element, lack of probable cause, because Officer Smith
had actual probable cause to arrest Plaintiff for DUI. Plaintiff maintains that she has
pled the lack of probable cause element regarding both the DUI charge and the
violation of traffic control device charge.
“[T]he standard for determining the existence of probable cause is the same
under both Florida and federal law—whether a reasonable man would have believed
probable cause existed had he known all of the facts known by the officer.” Rankin v.
Evans, 133 F.3d 1425, 1433 (11th Cir. 1998) (citations and quotations omitted).
Whether the facts in a case give rise to probable cause for an arrest depends on the
elements of the offense. See Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir.
2004). Here, Plaintiff was arrested for violation of a traffic control device and DUI.
Initially, the Court notes that although Defendants argue for dismissal of the
entire malicious prosecution claim, they do not specifically argue that Plaintiff has failed
to plead the absence of probable cause relating to the violation of a traffic control
device charge. The Complaint alleges, “Officer A. Smith failed to provide any facts
related to violation or disobeying a traffic control device.” Am. Compl. ¶ 49. In
responding to the instant Motion, Plaintiff reiterates, “[n]othing within the probable
cause affidavit submitted by Officer Smith supports a charge for violation of traffic
control device.” Resp. at 7. Defendants have not pointed to anything in the Complaint
Affidavit or Police Report refuting Plaintiff’s allegation. Defendants also do not argue
that Plaintiff has failed to allege any other required elements for her malicious
prosecution claim based on the violation of a traffic control device charge. Accordingly,
the malicious prosecution claim survives dismissal as it relates to the violation of a
traffic control device charge.
Further, the claim also survives dismissal as it relates to the DUI charge. Under
Florida law, a person is guilty of DUI if “the person is driving in actual physical control of
a vehicle within this state and . . . [t]he person is under the influence of alcoholic
beverages . . . when affected to the extent that the person’s normal faculties are
impaired.” Fla. Stat. § 316.193(1)(a). Defendants argue that Officer Smith had
probable cause to arrest Plaintiff for DUI based on his observations of her driving, his
contact with her, and her performance on the roadside sobriety tests. Plaintiff responds
that the initial stop was invalid, and therefore the subsequent sobriety tests were illegal.
“[T]o effect a valid stop for DUI, the officer need only have a ‘founded suspicion’
of criminal activity.” State v. Davidson, 744 So. 2d 1180, 1180-81 (Fla. Dist. Ct. App.
1999); see also State v. Carillo, 506 So. 2d 495, 497 (Fla. Dist. Ct. App. 1987). Plaintiff
maintains that Officer Smith did not have a founded suspicion that she was diving under
the influence. The Complaint Affidavit states that Officer Smith stopped Plaintiff when
he observed Plaintiff’s vehicle “swerving within its own lane and on three separate
occasions crossing over the solid white line into the bicycle lane.” Compl. Aff. at 1; see
also Police Report [DE 24-3]. Yet, the Amended Complaint disputes these statements,
alleging “Plaintiff maintains that she drove her vehicle within her lane at the time of her
operation of the vehicle going east on Hallandale Beach Boulevard on July 20, 2008,”
Am. Compl. ¶ 29. Accepting all alleged factual matter as true and making all
reasonable inferences therefrom, as this Court is required to do at the motion to dismiss
stage, the Amended Complaint alleges the absence of probable cause relating to the
DUI charge. Defendants do not argue that Plaintiff has failed to allege any other
required elements for her malicious prosecution claim based on the DUI charge.
Accordingly, the malicious prosecution claim survives dismissal as it relates to the DUI
charge. Therefore, the Court will deny Defendants’ request to dismiss the malicious
prosecution claim for failure to state a claim.
B. False Arrest or Imprisonment, Battery, and Failure to Intervene
(Counts II, III, and IV)
Plaintiff brings claims against the City for false arrest or imprisonment and
battery based on Officer Smith’s actions, and for failure to intervene based on Sergeant
Crevier’s actions. “[A] municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658, 691 (1978). “Instead, it is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Id. at 694; see also Brown v. City of Fort Lauderdale, 923
F.2d 1474, 1479 (11th Cir. 1991) (“It is well established that a municipality may be held
liable under § 1983 only when the deprivation at issue was undertaken pursuant to city
“custom” or “policy,” and not simply on the basis of respondeat superior”). Thus, to
state her claims against the City, Plaintiff must allege that the constitutional violations
were caused by the city’s unconstitutional custom, policy, or practice. As explained
below, the Court finds that Plaintiff has failed to plead these claims.
Previously, the Court dismissed the false arrest or imprisonment and battery
claims for Plaintiff’s failure to plead that Officer Smith acted pursuant to some custom
or policy of the City. The Amended Complaint includes identical counts except for the
additional allegation that the City “condoned, ratified and ignored without remediation
Officer A. Smith’s violation of Plaintiff’s right[s].” Compl. ¶ 38. The Amended Complaint
also adds a count for failure to intervene, alleging that the City “directly or indirectly,
under color of law, approved or ratified this unlawful conduct of Officer T. Crevier.” Id.
¶ 67. Defendants argue that these allegations remain insufficient because Plaintiff still
fails to provide any facts to support her contention that the City had a policy that
encouraged illegal arrests. Mot. at 10. The Court agrees. The Amended Complaint
once again concludes, without any factual support, that the City had a custom and
practice to permit and encourage illegal arrests. See Am. Compl. ¶ 37. Such an
allegation still fails to meet Plaintiff’s “obligation to provide the ‘grounds’ of h[er]
‘entitle[ment] to relief.’” Twombly, 550 U.S. at 545.
In her Response, Plaintiff does not suggest that she has any other facts to
support that Officer Smith and Sergeant Crevier acted pursuant to the City’s custom or
policy, but instead suggests that she should be permitted to engage in discovery to
obtain the facts she requires. See Resp. at 9. She cites Schuer v. Rhodes, 416 U.S.
232, 236 (1974) for the proposition that “[c]ase law supports allowing the Plaintiff to
acquire additional evidence to support the claims.” Resp. at 9. However, as
Defendants point out, the motion to dismiss standard has changed since Schuer was
decided. See Reply at 4. Under the current standard, conclusory allegations, without
any factual matter which, accepted as true would state a plausible claim to relief, will
not do. See Twombly, 550 U.S. at 545; Iqbal, 129 S. Ct. at 1949. Therefore, Plaintiff’s
false arrest or imprisonment, battery, and failure to intervene claims will be dismissed
for failure to state a claim.
Additionally, a claim for failure to intervene requires that “the officer must be ‘in a
position to intervene.’” Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998) (citing
Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996) (holding that officer who did not
observe fellow officer’s use of excessive force did not have a duty to intervene)). No
where in the Amended Complaint does Plaintiff plead that Sergeant Crevier was in any
position to intervene. See Am. Compl. The Amended Complaint does not allege that
Sergeant Crevier was at the scene of the arrest on July 20, 2008, or that he otherwise
knew of the arrest while it was occurring. See id. Thus, the Amended Complaint fails
to state a claim for failure to intervene against the City not only because the claim does
not allege that Sergeant Crevier acted pursuant to a city custom or policy, but also
because the claim does not allege that Sergeant Crevier was in any position to
Accordingly, because Plaintiff fails to satisfy the pleading standards to hold the
City liable for false arrest or imprisonment, battery, and failure to intervene, these
claims will be dismissed. In the interest of justice, the Court will permit Plaintiff one
more opportunity to replead her claims.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:
Defendants’ Motion to Dismiss Amended Complaint for Malicious
Prosecution, False Arrest and Battery [DE 25] is GRANTED in part and
DENIED in part as follows:
The Motion is DENIED as to Count I (malicious prosecution against
The Motion is GRANTED as to Count II (false arrest or
imprisonment against the City), Count III (battery against the City),
and Count IV (failure to intervene against the City), and each is
DISMISSED without prejudice;
By no later than January 9, 2012, Plaintiff may file a Second Amended
Complaint in accordance with the above findings, or alternatively, Plaintiff
may file a Notice of intent to proceed solely on the malicious prosecution
claim against Officer Smith.
Defendants’ Answer will be due 14 calendar days from the filing of a
Second Amended Complaint or a Notice.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 27th day of December, 2011.
Copies provided to:
Counsel of record via CM/ECF
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