Amanieh v. Maura et al

Filing 35

OPINION AND ORDER granting 28 Motion for Summary Judgment. Signed by Judge Beth Bloom on 5/10/2017. (yha)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-61813-BLOOM/Valle
SIAVASH AMANIEH,
Plaintiff,
v.
JORGE MAURA, and
CITY OF FORT LAUDERDALE,
Defendants.
__________________________________________/
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendants Jorge Maura and the City of Fort
Lauderdale’s (collectively “Defendants”) Motion for Final Summary Judgment, ECF No. [28]
the “Motion”). The Court has carefully reviewed the Motion, the record, all supporting filings,1
the exhibits attached thereto, and is otherwise fully advised in the premises. For the reasons that
follow, Defendants’ Motion is granted.

1

Plaintiff did not file a Response in Opposition to Defendants’ Motion, ECF No. [28], or a Response to
Defendants’ Statement of Material Facts, ECF No. [29]. His Responses were originally due by April 19,
2017. Having failed to file anything by the deadline, the Court ordered Plaintiff to file his Response no
later than April 24, 2017. See ECF No. [33]. In the Order, Plaintiff was warned that “[f]ailure to respond
by the above deadline may result in Defendant’s Motion being granted without further notice.” Id. As of
the date of this Order, Plaintiff has yet to file a Response to the Motion or to Defendants’ Statement of
Material Facts. The Court also notes that, according to Defendants’ Certificate of Service, Defendants
served Plaintiff with the Motion and the Statement of Material Facts via e-mail to [e-mail].
See ECF No. [28] at 12; ECF No. [29] at 5. In addition, the Clerk of Court separately delivered notice of
these filings via mail at Plaintiff’s address of record. Therefore, Plaintiff’s failure to respond is not due to
lack of notice. The Court also issued an Order Providing Instructions to Pro Se Litigants in which
Plaintiff was informed that, if he wishes to oppose a motion, he must do so in writing within the time
periods provided by the rules of procedure. See ECF No. [27] at 2. Plaintiff was sufficiently made aware
of the requirement to file a timely response – a response that was due more than two weeks ago - and he
chose to forego that opportunity.

Case No. 16-cv-61813-BLOOM/Valle
I.

BACKGROUND2
This case involves an investigation into a building code violation initiated by Robert J.

Masula (“Masula”), a Building Inspector and Code Officer for the City of Fort Lauderdale
(“City”), involving a property located at 3233 N.E. 34th Street Unit 1614 (the “property”). See
ECF No. [31], Ex. 3. On November 5, 2014, Masula visited the property and found that the
kitchen and bathroom were under demolition without the necessary permits or inspections. Id. at
Ex. 3. For that reason, Masula immediately issued a stop work order. Id. Masula maintained a
log where he documented his investigation. Id. at Ex. 14. In that log, he documented that Mary
Varvarigos owned the property, but her son Dean Varvarigos, who claimed to have a power of
attorney for his mother, was overseeing the renovation project. Id. Mr. Varvarigos advised
Masula that Plaintiff was the main person working on the project at the property along with a
man named Francisco. Id. Masula made numerous efforts to speak with Plaintiff and, on
January 22, 2015, Plaintiff and Masula met briefly. Id. On April 14, 2015, Plaintiff returned to
meet with Masula and Detective Jorge Maura (“Maura”). Id. Maura is employed by the City as
a police officer and has been assigned to the code enforcement division for the last eight years.
Id. at 15.3 During this meeting, Plaintiff informed Masula and Maura that he prepared a contract
to perform work on the property and he hired Francisco to work on the project. Id. at 53; Ex. 14.
Plaintiff also admitted that he was not a licensed contractor. Id. at Ex. 1; ECF No. [30] at 31.

2

Local Rule 56.1(b) provides that “[a]ll material facts set forth in the movant’s statement filed and
supported as required above will be deemed admitted unless controverted by the opposing party’s
statement, provided that the Court finds that the movant’s statement is supported by evidence in the
record.” See S.D. Fla. L.R. 56.1(b). To date, Plaintiff has not responded or otherwise controverted
Defendants’ Statement of Material Facts. Thus, to the extent that record evidence supports Defendants’
Statement of Material Facts, these facts are deemed admitted and are undisputed.
3
The pinpoint citations refer to the page of the applicable deposition transcript, not the CM-ECF page
number.

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Based on Plaintiff’s admissions to Maura that he had entered into a written contract with
Mr. Varvarigos to remodel the property, that he hired at least one worker to assist in the
demolition of the property without the required permits, and that he was not a licensed
contractor, Maura issued a Notice to Appear to Plaintiff.4 See ECF No. [31] at 22, Ex. 1. The
Notice to Appear cited Plaintiff for violations of working without a permit and working as an
unlicensed contractor. Id. at Ex. 1. During their meeting, Plaintiff was not in Maura’s custody.
Id. at P. 40-41. Plaintiff could leave the meeting and decline to sign the Notice to Appear
without a resulting arrest. Id. at 43, 45. The municipal prosecutor eventually charged Plaintiff
under a Municipal Information with “Alteration without Permit FBC 104.1” and “Unlawful
Contracting MO 16-1 (17).” See ECF No. [29] at 7. More specifically, Plaintiff was charged
with performing demolition and remodeling work without filing an application and obtaining a
permit in violation of Florida Building Code 105.15 and Municipal Ordinance 16-1 and with
engaging in a business or acting in a capacity of a contractor without being duly registered or
certified in violation of Municipal Ordinance 16-1 and Florida Statute § 489.127(1)(f). Id. On
September 4, 2015, the Disposition Order reflects the charges were nolle pros. See ECF No. [31]
at Ex. 16.

4

In their Statement of Material Facts, Defendants also claimed that Maura’s arrest was based on Masula’s
investigation and Masula’s Witness Affidavit. The Court’s independent review of Maura’s deposition
testimony reveals otherwise. Maura testified that he is aware that Masula brought his investigatory file to
the meeting with Plaintiff, but he did not remember seeing any part of the file. See ECF No. [31] at 12.
He also believes he spoke with Masula about scheduling the meeting on a specific date, but did not recall
whether Masula shared any specific case-related information with him in advance of the meeting. Id. at
51. Thus, Maura did not testify that he relied on any information from Masula’s investigation. His
testimony suggests he did not have any specific information from Masula, much less that he relied on that
information. Similarly, Maura testified that he received Masula’s affidavit within one or two weeks of
issuing the Notice to Appear. Id. at 23. Therefore, when issuing the Notice to Appear, Maura could not
have possibly relied on this affidavit as he had not yet received it.
5
The Municipal Information’s reference to Florida Building Code 104.1 appears to be a typographical
error as the corresponding provision of the Florida Building Code is 105.1.

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Case No. 16-cv-61813-BLOOM/Valle
After the charges were dropped, Plaintiff filed a Complaint against Maura and the City. See
ECF No. [1]. Count I asserts a claim against Maura individually under 42 U.S.C. § 1983 for
violating his rights under the Fourth and Fourteenth Amendments to be free from unreasonable
search and seizure. Id. All remaining claims are pled under state law for false arrest/false
imprisonment against the City in Count II, false arrest/false imprisonment against Maura in
Count III, and malicious prosecution against Maura in Count IV. Id. Defendants’ Motion
followed. See ECF No. [28].
II.

LEGAL STANDARD
A court may grant a motion for summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The parties may support their positions by citation to the record,
including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P.
56(c).

An issue is genuine if “a reasonable trier of fact could return judgment for the

non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F. 3d 1235, 1243
(11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The court views the facts in the light most favorable to the
non-moving party and draws all reasonable inferences in the party’s favor.

See Davis v.

Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The
Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,

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Case No. 16-cv-61813-BLOOM/Valle
1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352,
1356 (11th Cir. 1986)).
The moving party shoulders the initial burden to demonstrate the absence of a genuine
issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each
essential element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designating specific facts to suggest that a reasonable jury could find in
the non-moving party’s favor. Shiver, 549 F.3d at 1343. But even where an opposing party
neglects to submit any alleged material facts in controversy, a court cannot grant summary
judgment unless it is satisfied that all of the evidence on the record supports the uncontroverted
material facts that the movant has proposed. See Reese v. Herbert, 527 F.3d 1253, 1268-69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).
III.

DISCUSSION

Defendants argue that Maura is entitled to summary judgment on grounds of qualified
immunity with respect to Plaintiff’s § 1983 claim asserting violations of the Fourth and
Fourteenth Amendments because there was probable cause to believe that Plaintiff violated the
Florida Building Code and the municipal ordinance.

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Similarly, Defendants argue that the

Case No. 16-cv-61813-BLOOM/Valle
existence of probable cause is also dispositive of Plaintiff’s false imprisonment and malicious
prosecution claims. The Court agrees.
A. Qualified Immunity
“Qualified immunity offers complete protection for government officials sued in their
individual capacities if their conduct ‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Kingsland v. City of
Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346
(11th Cir. 2002); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “This formulation of the
qualified immunity inquiry is intended to protect government officials ‘from undue interference
with their duties and from potentially disabling threats of liability.’” Jordan v. Doe, 38 F.3d
1559, 1565 (11th Cir. 1994) (quoting Harlow, 457 U.S. at 806); see also Jackson v. Humphrey,
776 F.3d 1232, 1241-42 (11th Cir. 2015) (“The purpose for qualified immunity is to permit
officials to act without fear of harassing litigation as long as they can reasonably anticipate
before they act whether their conduct will expose them to liability.”). The doctrine “‘gives ample
room for mistaken judgments’ but does not protect ‘the plainly incompetent or those who
knowingly violate the law.’” Kingsland, 382 F.3d at 1231-32 (quoting Malley v. Briggs, 475 U.S.
335, 343, 341 (1986)). “Qualified immunity is an immunity from suit rather than a mere defense
from liability.” McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).
“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.”
Kingsland, 382 F.3d at 1232 (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)); see
also O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004) (“To be even potentially eligible
for qualified immunity, the official has the burden of establishing that he was acting within the

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Case No. 16-cv-61813-BLOOM/Valle
scope of his discretionary authority.”) (citation omitted). Here, it is undisputed that Maura was
acting in his discretionary capacity when he issued the Notice to Appear. Once a defendant
raises the issue of qualified immunity and demonstrates that the acts complained of were
committed within the scope of his or her discretionary authority, “the burden then shift[s] to the
[plaintiff] to show that qualified immunity should not apply because: (1) the officers violated a
constitutional right; and (2) that right was clearly established at the time of the incident.”
Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009). “Additionally, the standard for
determining if an officer violated clearly established law is an objective one and does not include
inquiry into the officer’s subjective intent or beliefs.” Jackson, 206 F.3d at 1165 (citing Von
Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990)). “Thus, a police officer is entitled to
qualified immunity if a reasonable police officer could have believed his or her actions were
lawful in light of clearly established law and the information possessed by the officer at the time
the conduct occurred.” Id. (citing Stewart v. Baldwin Cty. Bd. of Educ., 908 F.2d 1499, 1503
(11th Cir. 1990)). In this case, Plaintiff has not filed a Response, despite ample opportunity to
do so, thereby failing to demonstrate a violation of a clearly established constitutional right.
Nonetheless, the Court will independently review the record evidence and analyze whether
Maura violated Plaintiff’s constitutional rights.
1. Fourth Amendment Violation
Count I of the Complaint alleges that Maura caused Plaintiff’s seizure in the absence of
probable cause or, alternatively, that he caused Plaintiff’s temporary detention in the absence of
reasonable suspicion. See ECF No. [1] at 5. It is this conduct that Plaintiff alleges violated his
Fourth and Fourteenth Amendment rights. Id. From the outset, the Court finds that Plaintiff has
not demonstrated a seizure of his person. The Eleventh Circuit has rejected the notion that the

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Case No. 16-cv-61813-BLOOM/Valle
issuance of a Notice to Appear is, in effect, an arrest. Youngblood v. Florida Dep’t of Health,
224 Fed. App’x 909, 914-15 (11th Cir. March 28, 2007) (granting summary judgment on
unlawful search and seizure claims because the Notice to Appear did not “seize” the plaintiff and
only required that he appear in court at a later date).

“A person is ‘seized’ for Fourth

Amendment purposes only if ‘a reasonable person would have believed that he was not free to
leave.’” Id. at 915 (quoting U.S. v. Mendenhall, 446 U.S. 544 (1980)). It is undisputed that
Plaintiff was never arrested and was only issued a Notice to Appear. The notice did not even
require that Plaintiff appear in court on a date certain – only that he appear on a future
undetermined date and time. Further, Maura testified that all individuals who met with him
pertaining to this investigation, including Plaintiff, were not in his custody, were free to leave the
meeting, and could refuse to sign the notice without a resulting arrest. See ECF No. [31] at 4041, 43, and 45. Plaintiff has not come forward with any evidence to suggest otherwise, failing to
satisfy his burden to prove that he was ever “seized” in violation of his constitutional rights.
2. Probable Cause
An individual’s right to be free from unreasonable seizures under the Fourth Amendment
is violated when a law-enforcement officer arrests the individual without probable cause.
Rushing v. Parker, 599 F.3d 1263, 1265 (11th Cir. 2010). Probable cause exists “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.” Myers v. Bowman, 713
F.3d 1319, 1328 (11th Cir. 2013) (citations and internal quotation marks omitted). An officer
has probable cause to arrest when the arrest is “objectively reasonable based on the totality of the
circumstances.” Id. The officer is not required, however, “to prove every element of a crime

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Case No. 16-cv-61813-BLOOM/Valle
before making an arrest.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007).

The

existence of probable cause is an “absolute bar” to an action for false arrest under § 1983.
Myers, 713 F.3d at 1328 (citing Kingsland, 382 F.3d at 1226). When probable cause is the key
issue, “all that is required for qualified immunity to be applicable to an arresting officer is
‘arguable probable cause to believe that a person is committing a particular public offense.’”
Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (quoting Redd v. City of Enterprise,
140 F.3d 1378, 1384 (11th Cir. 1998)).
Plaintiff was charged with violating Florida Building Code 105.1 and Florida Statute §
489.127(1)(4).6 Florida Building Code 105.1 states, in relevant part, that:
Any owner or authorized agent who intends to construct, enlarge, alter, repair
move, demolish, or change the occupancy of a building or structure, or to erect,
install, enlarge, alter, repair, remove, convert or replace any impact-resistant
coverings, electrical, gas, mechanical or plumbing system, the installation of
which is regulated by this code, or to cause any such work to be done, shall first
make application to the building official and obtain the required permit.
As to § 489.127(1)(4), it states that no person shall:
Engage in the business or act in the capacity of a contractor or advertise himself
or herself or a business organization as available to engage in the business or act
in the capacity of a contractor without being duly registered or certified.
Here, the Court must determine whether Maura had at least arguable probable cause to
believe Plaintiff violated these provisions of the Florida Building Code and the Florida Statutes
when he issued Plaintiff a Notice to Appear. Maura based his decision on (1) Plaintiff’s
admissions that he had entered into a written contract with Mr. Varvarigos to remodel the
property, (2) Plaintiff’s admission that he hired at least one worker to assist in the demolition of
the property without the required permits, and (3) Plaintiff’s admission that he was not a licensed
6

The Municipal Information, which was the charging document, also references Fort Lauderdale
Municipal Ordinance 16-1. It provides in relevant part: “State misdemeanor. It shall be unlawful for any
person to commit, within the corporate limits of the city, any act which is or shall be recognized by the
laws of the state as a misdemeanor.”

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Case No. 16-cv-61813-BLOOM/Valle
contractor. See ECF No. [31] at 22, Ex. 1. Plaintiff has not presented any evidence to controvert
Maura’s version of events. Based on these undisputed facts, the Court finds that reasonable
officers under the same circumstances and possessing the same knowledge as Maura would
believe that Plaintiff violated Florida Building Code 105.1 when he hired at least one person to
perform demolition work at the property without the required permits. Likewise, the Court finds
that Maura had probable cause to believe that Plaintiff, who admitted to entering into a contract
with Mr. Varvarigos to remodel the property even though he was not a licensed contractor, did
engage in the capacity of a contractor without being duly certified as required by §
489.127(1)(4). Because the existence of probable cause is an absolute bar to a § 1983 claim, the
Court finds that Maura has qualified immunity.
B. False Arrest/False Imprisonment Claims
In Counts II and III, Plaintiff asserts false arrest/false imprisonment claims against the
City and Maura. Under Florida law, the tort of false imprisonment requires an unlawful restraint
on an individual against his or her will. Johnson v. Barnes & Noble Booksellers, Inc., 437 F.3d
1112, 1116 (11th Cir. 2006) (quoting Escambia Cty. Sch. Bd. v. Bragg, 680 So. 2d 571, 572 (Fla.
5th DCA 1996)). A plaintiff asserting a false imprisonment claim must prove “imprisonment
contrary to his [or her] will and the unlawfulness of the detention.” Id. (quoting Rivers v.
Dillards Dep’t Store, Inc., 698 So. 2d 1328, 1331 (Fla. 1st DCA 1987)). Once the plaintiff
establishes a detention by one without authority to detain, the defendant may present evidence of
the lawfulness of the detention, including evidence of probable cause. Id. (citing Rivers, 698 So.
2d at 1331). In this Circuit, “the 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,

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133 F.3d 1425, 1435 (11th Cir. 1998) (quoting U.S. v. Ullrich, 580 F.2d 765, 769 (5th Cir.
1978)) (alterations in original).7 For the reasons explained in Section III(A) supra, the Court
finds there is no evidence that Plaintiff was unlawfully restrained against his will. Moreover,
even if there was such record evidence, Maura had probable cause to believe Plaintiff violated
Florida Building Code 105.1 and Florida Statute § 489.127(1)(4).

Maura, therefore, had

probable cause to issue the Notice to Appear to Plaintiff.
C. Malicious Prosecution
Finally, in Count IV, Plaintiff asserts a malicious prosecution claim under state law
against Maura. To prevail on a claim of malicious prosecution under Florida law, a plaintiff
must establish the following six elements:
(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.
Kingsland, 382 F.3d at 1234 (citing Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA
2002)) (emphasis added).
In order for Count IV to survive summary judgment, Plaintiff must demonstrate that
Maura did not have probable cause to issue the Notice to Appear, which led to the eventual filing
of the Municipal Information by the prosecutor. For the reasons explained in Section III(A)
supra, the Court concludes that Maura had probable cause. This finding is fatal to Plaintiff’s
malicious prosecution claim.

7

All decisions issued by the former Fifth Circuit prior to October 1, 1981, have been adopted as binding
precedent for the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en
banc ).

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IV.

CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED that Defendants’

Motion for Summary Judgment, ECF No. [28], is GRANTED. To the extent not otherwise
disposed of, all pending motions are DENIED as moot. Final Judgment will be entered by
separate order.
DONE AND ORDERED in Miami, Florida this 10th day of May, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Siavash Amanieh
PO Box 212523
West Palm Beach, FL 33421
PRO SE

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