USA Entertainment Group, Inc. et al v. Israel et al

Filing 84

OMNIBUS ORDER ON MOTIONS TO DISMISS SECOND AMENDED COMPLAINT granting in part and denying in part 68 Motion to Dismiss; granting in part and denying in part 70 Motion to Dismiss for Failure to State a Claim. Signed by Judge Beth Bloom on 10/12/2017. (lan)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-60467-BLOOM/Valle

USA ENTERTAINMENT GROUP, INC.,
et al.,
Plaintiffs,
v.
SHERIFF SCOTT ISRAEL, et al.,
Defendants.
___________________________________/
OMNIBUS ORDER ON MOTIONS TO DISMISS
SECOND AMENDED COMPLAINT
THIS CAUSE is before the Court upon two Motions to Dismiss Plaintiffs’ Second
Amended Complaint filed by Defendants Captain Wayne Adkins and Sheriff Scott Israel, ECF
No. [68], and by Defendants Commissioner Charlotte Burrie (the “Commissioner”), the City of
Pompano Beach (the “City”), and Mayor Lamar Fisher (the “Mayor”), ECF No. [70] (together,
the “Motions”). The Court has carefully reviewed the Motions, all opposing and supporting
materials, the record in this case and the applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motions are granted in part and denied in part.
I.

Procedural Background
Plaintiffs commenced this action by filing their complaint on March 3, 2017, asserting

claims for violations of their constitutional rights pursuant to 42 U.S.C. § 1983 and the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq. (“RICO”). See ECF No.
[1]. Defendants filed motions to dismiss the complaint and after hearing, the Court granted the
motions with leave to replead the Section 1983 claims. Plaintiffs filed an amended complaint on

Case No. 16-cv-60467-BLOOM/Valle
May 12, 2017. ECF No. [42] (“Amended Complaint”). While the Amended Complaint was not
compliant with the Federal Rules of Civil Procedure and the law governing pleadings in this
District, after a second round of motion to dismiss briefings the Court found that Plaintiffs
appeared to state a plausible claim for retaliation in violation of the First Amendment, violation
of equal protection under the Fourteenth Amendment, and, to the extent not barred by the
applicable statute of limitations, malicious prosecution on behalf of Frontera. ECF No. [65] at
15. The Court thus granted Plaintiffs one final opportunity to amend their complaint. Id.
Plaintiffs filed their Second Amended Complaint, ECF No. [66] (“SAC”), on July 31,
2017. The SAC alleges five separate counts: First Amendment Retaliation Against the City
Defendants (Count I), First Amendment Retaliation Against Defendants Israel and Adkins
(Count II), Deprivation of Equal Protection Against the City Defendants (Count III), Deprivation
of Equal Protection Against Defendants Israel and Adkins (Count IV), and Malicious
Prosecution Against Defendants Israel and Adkins (Count V). The City Defendants have moved
to dismiss both counts against them, Counts I and III. ECF No. [70]. Defendants Israel and
Adkins have moved to dismiss Counts II and V, ECF No. [68], and have answered Count IV,
ECF No. [67].
II.

Factual Background
According to the SAC, Plaintiff USA Entertainment Group operates Club Cinema, a

nightclub and music venue in Pompano Beach, Florida. SAC ¶¶ 1, 9, 12. Club Cinema opened
in 2006 with a capacity for 2,500 patrons. Id. ¶ 10. Prior to 2013, it hosted approximately forty
concerts and shows per year. Id. ¶ 12. At some point in 2013, Commissioner Burrie, the
Commissioner for District 2 on the City Commission of the City of Pompano Beach, told
Plaintiff Frontera and managers of Club Cinema that “if Club Cinema wanted to continue in

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business peacefully,” it must donate a portion of Club Cinema’s property to the city to be
developed into a community center bearing Commissioner Burrie’s name. Id. ¶¶ 8, 16. Club
Cinema refused to do so. Id. ¶ 18, 121.
After this exchange with Commissioner Burrie, the SAC alleges that Defendants directed
an escalating practice of excessive and unwarranted police activity targeted at Club Cinema from
2013 to 2016 that included the deployment of tactical, SWAT, K-9, and patrol units to the
property in order to drive Club Cinema out of business. See, e.g., id. ¶¶ 19–37. These practices
were particularly severe when Club Cinema hosted events that drew primarily African-American
patrons. Id. ¶¶ 104, 106; see also ¶¶ 28, 85, 131, 192. The SAC details eleven separate incidents
where police officers engaged in the following conduct: threatening to make arrests if the Club
did not shut down by 2:00 a.m. (id. ¶21); telling customers not to patronize Club Cinema because
the “venue was going to be closed down” (id. ¶¶ 24–27, 30); selectively detaining, questioning,
inspecting, and ticketing patrons (id. ¶ 100); and closing down Club Cinema mid-concert by
walking on stage and instructing the performer to stop the concert (id. ¶ 34). The police presence
included unmarked vehicles and plain-clothes officers, some of whom entered Club Cinema. Id.
¶ 89, 97–98. According to the SAC, an officer told representatives of Club Cinema that the
“idea” behind the police activity was to reduce the number of patrons at Club Cinema. Id. ¶ 132.
Managers of Club Cinema contacted representatives at City Hall, the Mayor, and the
Commissioner to request that the City cease the excessive police presence. See, e.g., SAC
¶¶ 41–48. During one of these interactions, the Mayor allegedly admitted to being aware of, and
directing, the actions of the Broward Sherriff’s Office (“BSO”) and Defendant Adkins, his
longtime personal friend. Id. ¶ 45. The Mayor also informed the Club Cinema representatives

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that the City was enforcing a 2:00 a.m. close for Club Cinema because the City “viewed Club
Cinema in the same light as the adult entertainment establishments in the City.” Id. ¶ 47.
During a separate interaction with Commissioner Burrie, Plaintiff Frontera told the
Commissioner that he and managers of Club Cinema planned to support a different candidate for
mayor than Mayor Fisher. Id. ¶¶ 52–53. In response, the Commissioner, apparently angry that
Plaintiffs had both refused to donate land to the community center and to support the Mayor, told
the managers and Frontera that the excessive policing would not stop until Club Cinema was out
of business. Id.1
Despite Plaintiffs’ requests that Defendants cease the excessive and unwarranted police
activity against Club Cinema, the SAC alleges that the conduct continued as part of an official
policy, custom, or practice to destroy Club Cinema’s reputation, and ultimately to shut it down.
Id. ¶¶ 55, 98–102. Plaintiffs allege that Defendants’ actions constitute violations of Plaintiffs’
rights under the First and Fourteenth Amendments and state a claim for malicious prosecution.
Id. ¶¶ 117, 120–21, 127. Plaintiffs seek injunctive relief and monetary damages. Id. ¶¶ 48–49.
III.

Legal Standard
A pleading in a civil action must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint
“does not need detailed factual allegations,” it must provide “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, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
1

The SAC appears to additionally allege an alternative theory for Defendants’ conduct: that the City was
motivated to close Club Cinema in order to please certain voters and to convert the property into part of a Walmart
development. Id. ¶¶ 47, 65–66; see also City Commission Meeting Minutes, March 8, 2016, ECF No. 66-8 at 6
(“[S]outh of Club Cinema, there is a discussion to locate a Walmart Grocery Store . . . However, there have been
some delays in order to get some things cleaned up but they will be working on the south end . . . up to where the
club is located. Currently the club remains but when they get to that point, there will be future negotiations with the
club owners.”).

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that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557
(alteration in original)). “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.’” Id.
(quoting Twombly, 550 U.S. at 570).
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration
Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Pleadings that “are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at
679; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009)
(“‘[U]nwarranted deductions of fact’ in a complaint are not admitted as true for the purpose of
testing the sufficiency of plaintiff’s allegations.”). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful conduct
rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v.
Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). Through
this lens, the Court addresses the instant Motions.

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A. First Amendment Retaliation Claims
“To state a [First Amendment] retaliation claim, the commonly accepted formulation
requires that a plaintiff must establish first, that his speech or act was constitutionally protected;
second, that the defendant’s retaliatory conduct adversely affected the protected speech; and
third, that there is a causal connection between the retaliatory actions and the adverse effect on
speech.”

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005); see also Castle v.

Appalachian Tech. College, 631 F.3d 1194, 1197 (11th Cir. 2011) (To establish a First
Amendment free speech retaliation claim, a plaintiff must show that “(1) her speech was
constitutionally protected; (2) she suffered adverse conduct that would likely deter a person of
ordinary firmness from engaging in such speech; and (3) there was a causal relationship between
the adverse conduct and the protected speech.”)
a. Against the City Defendants (Count I)
In the SAC, Plaintiffs allege that the City Defendants retaliated against them in violation
of their First Amendment rights based on three instances of protected speech: expressing support
for a political candidate other than the Mayor, defending a nuisance lawsuit brought by the city,
and refusing the Commissioner’s demand that they donate a portion of land for her eponymous
community center. See, e.g., SAC ¶¶ 16, 42, 51, 63. This Court previously found that the
allegations in the Amended Complaint appeared to state a claim for retaliation in violation of the
First Amendment regarding Plaintiffs’ expression of support for a political candidate other than
the Mayor. ECF No. [65] at 12–13. With respect to the two other theories, both are protected by
the First Amendment. United States v. Siegelman, 640 F.3d 1159, 1174 (11th Cir. 2011) (noting
in an criminal bribery matter that “a campaign donation . . . is protected First Amendment
activity”); Abella v. Simon, 522 F. App’x 872, 874 (11th Cir. 2013) (noting that the First

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Amendment “affords the broadest protection to political expression, and protects the rights of
speech and to petition for redress” (citing McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,
346 and United Mine Workers of Am. v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967)); Slane v.
City of Sanibel, No. 2:15-CV-181-FTM-38CM, 2015 WL 4414111, at *7 (M.D. Fla. July 17,
2015)(citing Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 131 S. Ct. 2488, 180 L. Ed. 2d
408 (2011) (“The Supreme Court has long held that the Petition Clause protects the right of
individuals to appeal to courts and other forums established by the government for resolution of
legal disputes.” (internal quotation marks omitted)); see also ECF No. [65] at 12–13.
According to Plaintiffs, in response to the protected speech the City Defendants retaliated
by directing an official policy and practice of excessive and unwarranted police activity. SAC
¶ 67. When Frontera and Club Cinema management confronted both the Defendants regarding
the police activity, the City Defendants allegedly admitted that they knew of and directed the
activity and that the purpose of the police activity was to put Club Cinema out of business. Id.
¶¶ 43–48, 52–54. These allegations are sufficient to defeat the City Defendants’ motion to
dismiss the First Amendment Retaliation claims.
In their Motion, the City Defendants argue that the refusal to donate property to a
community center named after an elected official is not expressive speech protected by the First
Amendment because such conduct is not “intended to convey a particularized message . . . that
would be understood by others.” ECF No. [70] at 5 (quoting Texas v. Johnson, 491 U.S. 397,
404 (1989)). But charitable donations in support of a political figure are unequivocally protected
by the First Amendment. See Sec’y of State of Md. v. Munson Co., 467 U.S. 947, 959 (1984)
(“[C]haritable solicitations are so intertwined with speech that they are entitled the to the
protections of the First Amendment”); United States v. Siegelman, 640 F.3d 1159, 1174 (11th

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Case No. 16-cv-60467-BLOOM/Valle
Cir. 2011) (noting in an criminal bribery matter that “a campaign donation . . . is protected First
Amendment activity”); Cosac Found., Inc. v. City of Pembroke Pines, No. 12-62144-CV, 2013
WL 5345817, at *10 (S.D. Fla. Sept. 21, 2013) (“The Supreme Court has also made clear that the
First Amendment protects the solicitation of charitable donations.” (citing Village of Shumberg v.
Citizens for a Better Env’t, 444 U.S. 620, 632 (1980)). It logically follows that an expression of
lack of support by refusal to donate is similarly protected from retaliation. See Aiellos v. Zisa,
No. CIV.A. 09-3076, 2009 WL 3424190, at *4 (D.N.J. Oct. 20, 2009) (finding plaintiffs
sufficiently plead a First Amendment retaliation claim based on police officers’ refusal to donate
to the political campaigns of fellow officers).
The City Defendants also argue that Plaintiffs fail to allege causation since the excessive
police activity occurred both before and after Plaintiffs expressed their support for a mayoral
candidate other than Mayor Fisher and defended the nuisance lawsuit against the City. However,
the City Defendants once again cite to no authority for this proposition (see ECF No. [65] at 12–
13), and further admit that the excessive police activity occurred after Plaintiffs refused to donate
to Commissioner Burrie’s community center. ECF No. [73] at 6. Moreover, even if these
arguments were convincing, causation is an issue of fact not suitable for disposition upon a
motion to dismiss. ECF No. [65] at 13 (citing Skolweck v. Mayor & Councilmembers of Garden
City, Ga., 2012 WL 5183201, at *6 (S.D. Ga. Oct. 18, 2012)). Thus, the Court rejects these
arguments.
b. Against Defendants Israel and Adkins (Count II)
Plaintiffs allege that Defendants Israel and Adkins retaliated against them in violation of
their First Amendment rights by engaging in excessive and unwarranted policing at specific
events, namely hip-hop and rap music concerts that drew a primarily African-American crowd.

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SAC ¶¶ 104, 106. The SAC alleges that Defendants Israel and Adkins directed or participated in
excessive and unwarranted policing of Club Cinema during these events to halt an in-progress
performance and to force Club Cinema to cease hosting such events, efforts which were
ultimately successful. SAC ¶¶ 85, 99–100, 110. Plaintiffs allege Defendants’ content-based
actions violate their First Amendment right to host hip-hop and rap concerts. SAC ¶ 107.
The parties disagree about whether these allegations sound in a First Amendment
freedom of speech claim, as Plaintiffs have plead them, or freedom of association claim, as
Defendants claim is the correct interpretation. Defendants argue that Plaintiffs have no right to
expressive association based upon an association of club patrons and owners who prefer musical
genres that draw a primarily African-American audience. That may be true. See City of Dallas
v. Stanglin, 490 U.S. 19, 24–25 (1989). But here, Plaintiffs have plead a claim for content-based
violation of freedom of speech by alleging that Defendants Israel and Adkins directed or engaged
in excessive and unwarranted policing based on the content of the events hosted at Club Cinema
(namely hip-hop and rap shows). See SAC ¶¶ 85, 104–05. While Defendants urge this Court to
construe this claim as a right to associate claim, they cite no case law to support that construction
on these allegations. The Court finds that, at the motion to dismiss stage, these allegations are
sufficient to sustain a First Amendment retaliation claim.
B. Equal Protection Claims Against the City on Behalf of Mr. Frontera (Count III)
This Court has already found that Plaintiffs have stated an equal protection claim under a
“class of one” theory. While Defendants Israel and Adkins have answered the equal protection
claim, ECF No. [67], the City Defendants argue that Plaintiffs have failed to state an equal

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protection claim on behalf of Plaintiff Frontera. ECF No. [70] ¶ 3.2
The Court agrees that Frontera’s equal protection claim should be dismissed. As this
Court has already found, to state a claim for violation of equal protection under a “class of one”
theory, a Plaintiff must identify comparators in the pleading in order to show intentional,
discriminatory treatment different from others similarly situated.

See ECF No. [65] at 15

(citations omitted). A review of the SAC reveals that Plaintiffs have not alleged any comparators
to Plaintiff Frontera, and Plaintiffs make no argument to the contrary. As such, the equal
protection claim against the City Defendants on behalf of Frontera is dismissed.
C. Municipal and Supervisory Immunity (Counts I and III)
The City Defendants move to dismiss both counts against them based on municipal and
supervisory immunity. ECF No. [70] at 7–10. While the City of Pompano Beach cannot be held
liable under 42 U.S.C. § 1983 on a theory of respondeat superior (Scala v. City of Winter Park,
116 F.3d 1396, 1399 (11th Cir. 1997) (citing Monell v. Dep’t of Soc. Servs. of the City of N.Y.,
436 U.S. 658 (1978))), the City may be held liable for the execution of an official government
policy or custom, that is, acts “of the municipality.” Quinn v. Monroe Cnty., 330 F.3d 1320, 1325
(11th Cir. 2003); Scala, 116 F.3d at 1399. Contrary to the City Defendants’ argument (ECF No.
[70] at 8), “a ‘municipal act’ is not, however, limited to decisions made by the city’s official
legislative body or in written agreements. City policy also may be implicated by the acts of
individual policymaking officials or by pervasive city custom.” Brown v. City. of Fort
Lauderdale, 923 F.2d 1474, 1480 (11th Cir. 1991) (reversing district court’s dismissal of Section
1983 claims based on qualified immunity and lack of municipal liability). Thus, a municipal act
may include a “longstanding and widespread practice” which is “deemed authorized by the
2

The City Defendants further argue that the equal protection claims fail because there can be no municipal or
supervisory liability for the City Defendants. ECF No. [70] at 9–10. The Court addresses this argument in Part
III.C, infra.

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policymaking officials because they must have known about it but failed to stop it.” Id.; see also
Griffin v. City of OpaLocka, 261 F.3d 1295, 1308 (11th Cir. 2001) (“[A] municipality’s failure to
correct [ ] constitutionally offensive actions of its employees can rise to the level of a custom or
policy if the municipality tacitly authorizes these actions or displays deliberate indifference
towards the misconduct.”).
The City Defendants argue “Plaintiff’s [sic] assertion that the City Defendants ‘directed’
Sherriff Israel to engage in unwarranted and excessive police activities at the Club Cinema
property is unsupported by any factual statements.” ECF No. [70] at 8. While the SAC is
replete with conclusory statements regarding the City Defendants’ “direction” of the BSO,
Plaintiffs also allege specific conversations with City representatives, Mayor Fisher, and
Commissioner Burrie which support the allegations that the City Defendants were aware of the
excessive policing of Club Cinema and that they had at least some control over the continuation
of that policy. See, e.g., SAC ¶¶ 41–43, 45, 48, 52–53, 144–46, 148, 155–56. Plaintiffs further
allege that the Mayor stated that the City had classified Club Cinema as an “adult entertainment
establishment.” Id. ¶¶ 47, 150, 177. Taken as true, these allegations are sufficient to at least
plead an unofficial custom, if not official policy, directed by the City, Commissioner Burrie in
her individual capacity, and Mayor Fisher in his individual capacity. Accordingly, dismissal
based on municipal or supervisory immunity is denied.
However, the Court will dismiss Plaintiffs’ claims against Commissioner Burrie and
Mayor Fisher in their official capacities. The Eleventh Circuit has observed that “[b]ecause suits
against a municipal officer sued in his official capacity and direct suits against municipalities are
functionally equivalent, there no longer exists a need to bring official-capacity actions against
local government officials, because local government units can be sued directly.” Busby v. City

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of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Thus, where a plaintiff sues the municipality
and individual officials of the municipality in their official capacity on the same grounds, a court
may dismiss the suit against the individuals in their official capacity. Cosac Found., Inc. v. City
of Pembroke Pines, No. 12-62144-CV, 2013 WL 5345817, at *6 (S.D. Fla. Sept. 21, 2013)
(collecting cases). Since Plaintiffs have sued the City of Pompano Beach as well as Defendant
Fisher in his official capacity and Defendant Burrie in her official capacity under the same facts,
those claims against Defendant Burrie and Defendant Fisher in their official capacity are
dismissed.
D. Malicious Prosecution
To plead a claim for malicious prosecution under section 1983, a plaintiff must establish
(1) the elements of the common law tort of malicious prosecution and (2) a violation of his
fourth amendment right to be free from unreasonable seizures. Kingsland v. City of Miami, 382
F.3d 1220, 1234 (11th Cir. 2004). Under Florida law, in order to state a claim for malicious
prosecution, a plaintiff must allege that (1) an original judicial proceeding was commenced or
continued against him; (2) the defendants involved were the legal cause of the proceeding; (3) the
termination of the original proceeding constituted a bona fide termination of that proceeding in the
plaintiff’s favor; (4) there was an absence of probable cause for the original proceeding; (5) there was
malice on the part of the defendants; and (6) the plaintiff suffered damages as a result of the original
proceeding. Id. (citing Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002).
Previously this Court held that Plaintiffs’ allegations, to the extent they attempted to state a
claim for malicious prosecution, “f[e]ll woefully short of alleging a plausible claim for malicious
prosecution, as the only allegation with respect to any prosecution is that the charge for resisting
arrest was later dismissed.” ECF No. [65] at 11. The Court further noted that “without further
information . . .[it was] unable to determine whether a viable claim exists.” The SAC, however,

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repeats the same allegations found in the Amended Complaint (SAC ¶ 227) and only adds conclusory
allegations that “Frontera had done nothing illegal at the time this incident occurred,” “the decision
to arrest and prosecute Frontera was malicious,” and that “there was no basis to arrest Frontera.”
SAC ¶¶ 228–29. These sparse and conclusory allegations, without more, again fail to state a claim
for malicious prosecution. Thus, Frontera’s claim for malicious prosecution is dismissed.

IV.

CONCLUSION
Accordingly, the Motions, ECF Nos. [68] and [70], are GRANTED IN PART and

DENIED IN PART. Defendants shall file their Answers to the surviving counts no later than
October 20, 2017.
DONE AND ORDERED in Miami, Florida, this 12th day of October, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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