Marshall et al v. Regions Bank et al

Filing 30

ORDER granting 7 Motion to Dismiss; Count V of the Complaint is Dismissed with leave to amend the Complaint by 1/17/12. Signed by Judge Cecilia M. Altonaga on 1/5/2012. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-24302-CIV-ALTONAGA/Simonton
SHEVEN J. MARSHALL, et al.,
Plaintiffs,
vs.
REGIONS BANK, et al.,
Defendants.
_______________________________/
ORDER
THIS CAUSE came before the Court on Defendants, Officer James Washington
(“Washington”) and Officer Orlando Lazaro Fleites (“Fleites”) (collectively, “Officers[’]”)
Motion to Dismiss (“Motion”) [ECF No. 7], filed December 7, 2011. Plaintiffs, Sheven J.
Marshall (“Marshall”) and Zuleyka Bremer (“Bremer”), filed a Complaint [ECF No. 1-2] against
the Officers and Defendant Regions Bank on November 3, 2011. The Complaint contains five
counts: (1) false imprisonment as to Regions Bank; (2) intentional infliction of emotional distress
as to Regions Bank; (3) negligence as to Regions Bank on behalf of Plaintiff Marshall; (4)
negligence as to Regions Bank on behalf of Plaintiff Bremer; and (5) false arrest, false
imprisonment, and unlawful detention in violation of 42 U.S.C. § 1983 (“section 1983”), as to
Washington and Fleites. Washington filed a Notice of Removal [ECF No. 1], with Regions
Bank’s consent, on November 30, 2011. At the time the Notice of Removal was filed, Fleites
had not yet been served. Fleites filed a notice of consent to removal on December 12, 2011 (see
[ECF No. 9]), and a notice of joinder in the Motion on December 14, 2011 (see [ECF No. 14]).
The Officers move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure

Case No. 11-24302-CIV-ALTONAGA/Simonton

12(b)(6). Plaintiffs filed a Response in Opposition (“Response”) [ECF No. 17] on December 17,
2011, to which the Officers filed a Reply [ECF No. 28] on January 3, 2012. The Court has
carefully considered the Motion, the parties’ submissions, and applicable law.
I.

BACKGROUND1

Plaintiff Marshall is an African-American man and Florida resident. (See Compl. ¶ 2).
Plaintiff Bremer is a biracial Hispanic woman, also a Florida resident. (See id. ¶ 3). Defendant
Regions Bank is a bank incorporated under Alabama law and maintains 49 offices to transact
business within Miami-Dade County. (See id. ¶¶ 4–5). Defendant Washington is a Miami-Dade
County resident and at all relevant times was employed as a Miami-Dade Police Department
Officer. (See id. ¶ 7). Fleites is also a Miami-Dade County resident, and also was employed at
all relevant times as an Officer for the Miami-Dade Police Department. (See id. ¶ 8).
On January 31, 2011, Marshall entered a Regions Bank branch office in Miami, Florida,
with his girlfriend Bremer, to open a checking account and deposit his federal income tax return
check. (See id. ¶ 14). Marshall provided Regions Bank his driver’s license and offered other
forms of identification, along with the check. (See id. ¶¶ 15–16). Regions Bank informed
Marshall it needed a couple of minutes to verify the authenticity of the check. (See id. ¶ 17).
Regions Bank determined that the check was possibly fraudulent. (See id. ¶ 19). Regions Bank
kept the check so Marshall would not leave the branch and called the Miami-Dade Police
Department to report that Marshall was attempting to deposit a possibly fraudulent check. (See
id. ¶¶ 22–23).

Regions Bank “advised the Miami-Dade Police Department that Plaintiff

Marshall had attempted to deposit a fraudulent check.” (Id. ¶ 24).
Washington arrived at the branch and told Marshall to stand and put his hands behind his
1

The factual background is taken from the allegations in the Complaint, which are accepted as true for
the purposes of the Motion.

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back. (See id. ¶ 25). Marshall “stood up calmly and said that he had not done anything.” (Id. ¶
26). Washington again asked Marshall to put his hands behind his back, then “grabbed him by
the collar and pulled him through the lobby, which was full of customers and bank employees,”
toward a room near the branch entrance. (Id. ¶ 27). Holding Marshall by the collar, Washington
instructed Marshall to open the door and turn on the lights, which Marshall did. (See id. ¶ 28).
Washington then removed a Taser from his waistband and pointed it at Marshall, telling him to
sit down. (See id. ¶ 29). Marshall then tried to telephone Bremer to inform her of the situation,
but he hung up when Washington demanded it. (See id. ¶ 30). Washington told Marshall to
stand and put his hands behind his back, after which Marshall again asked what he had done.
(See id. ¶ 31). Fleites then entered the room, “pushed Plaintiff Marshall by the middle of his
back, and slammed him chest first into a desk.” (Id. ¶ 32). Fleites “yelled profanely” at Marshall
and “forcefully grabbed” his wrists, handcuffing and pushing him into a chair. (Id. ¶ 33).
Bremer had accompanied Marshall to the branch, but left to go to work while Regions
Bank was supposedly verifying the authenticity of the check. (See id. ¶ 34). Bremer then
returned to the branch and “was promptly handcuffed upon entering.” (Id.). Regions Bank
accused Bremer of being Marshall’s accomplice to alleged check fraud, and she was led to a
room for questioning. (See id. ¶ 35). Marshall saw Bremer in handcuffs and asked why she was
detained, to which one of the Officers responded that she was an accomplice to check fraud.
(See id. ¶ 36). Marshall offered to show his tax paperwork with the name and address of his tax
preparer, and Fleites kept telling Marshall “to tell the truth,” as check fraud was a felony. (Id. ¶
37).
Detective Hernandez (“Hernandez”) of the Miami-Dade Police Department then arrived
and read Marshall his Miranda rights. (See id. ¶ 38). At this point, three hours had passed

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during which Plaintiffs were confined at the branch against their will. (See id. ¶ 39). Hernandez
questioned Marshall about the check. (See id. ¶ 40). Marshall explained to Hernandez that there
was a blue folder in Bremer’s automobile containing the completed tax return. (See id. ¶ 41).
Hernandez then questioned Bremer.

(See id. ¶ 42).

After Bremer was allowed to show

Hernandez the blue folder containing the tax return, Hernandez visited the residence of the tax
preparer for further investigation. (See id. ¶ 43). Hernandez then concluded the check was
legitimate, returned to the Regions Bank branch, returned Marshall’s check, told Marshall that
Regions Bank had made a mistake, and released Marshall from the handcuffs. (See id. ¶¶ 44–
45). Plaintiffs were ultimately detained and interrogated at the Regions Bank branch for over
four hours. (See id. ¶ 47).
II.

LEGAL STANDARD

“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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550
U.S. at 555). Pleadings must contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Indeed,
“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal,
129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a
plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at
556). “The mere possibility the defendant acted unlawfully is insufficient to survive a motion to

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dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citing Iqbal, 129
S. Ct. at 1949).
III.

ANALYSIS

The Officers argue that Count V of the Complaint, alleging a violation of section 1983
for false arrest, false imprisonment, and unlawful detention, is barred by the doctrine of qualified
immunity. (See Mot. 4). 2 “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)).

In order to illustrate entitlement to the qualified-immunity

defense, a government official must demonstrate that the acts complained of were committed
within the scope of the officer’s discretionary authority. Id. at 1232. Once the officer has done
so, “the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002); see also McClish v. Nugent, 483 F.3d 1231, 1237
(11th Cir. 2007); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) (“[O]nce an officer or
official has raised the defense of qualified immunity, the burden of persuasion as to that issue is
on the plaintiff.”). This is embodied in the Eleventh Circuit’s two-part Zeigler/Rich analysis:

Plaintiffs’ Count V section 1983 claim is not a model of clarity. The Court accepts the Officers’
characterization of the claim, particularly as Plaintiffs do not object to it in their Response; moreover, the
two arguments made in the Response focus on the reasonableness of Plaintiffs’ detention, as well as the
existence of probable cause for arrest. (See generally Resp.).
2

The Court treats a claim for false arrest, false imprisonment, and unlawful detention, as a single claim for
false arrest. “[U]nder Florida law false arrest and false imprisonment are different labels for the same
cause of action.” Rankin v. Evans, 133 F.3d 1425, 1430 n.5 (11th Cir. 1998). Moreover, “[i]n Florida,
the tort of false imprisonment is defined as ‘the unlawful restraint of a person against his will, the gist of
which action is the unlawful detention of the plaintiff and the deprivation of his liberty.’” Johnson v.
Barnes & Noble Booksellers, Inc., 437 F.3d 1112, 1116 (11th Cir. 2006) (quoting Escambia Cnty. Sch.
Bd. v. Bragg, 680 So. 2d 572, 572 (Fla. 1st DCA 1996)).

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1. The defendant public official must first prove that “he was
acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.”
2. Once the defendant public official satisfies his burden of
moving forward with the evidence, the burden shifts to the plaintiff
to show lack of good faith on the defendant’s part. This burden is
met by proof demonstrating that the defendant public official’s
actions “violated clearly established constitutional law.”
Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d
1558, 1563 (11th Cir. 1988); Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983) (per
curiam)).
In order to prevent dismissal of his or her claims under the doctrine of qualified
immunity, a plaintiff must first show that the facts, taken in the light most favorable to the
plaintiff, demonstrate the defendant violated a constitutional right. See Saucier v. Katz, 533 U.S.
194, 201 (2001); Sharp v. Fisher, 532 F.3d 1180, 1183 (11th Cir. 2008); McClish, 483 F.3d at
1237. Even if the facts demonstrate a violation, the plaintiff still has the burden to show that the
constitutional rights were “clearly established” at the time of the violation. See Saucier, 533
U.S. at 201; Sharp, 532 F.3d at 1183; McClish, 483 F.3d at 1237. Decisions of the United States
Supreme Court, the Eleventh Circuit, and the Supreme Court of Florida can clearly establish law
in this jurisdiction. See McClish, 483 F.3d at 1237. For the law to be “clearly established,” it
must be so clear that every objectively reasonable official understands it to prohibit the
challenged act. See Vinyard, 311 F.3d at 1353. The purpose of this requirement is to “ensure
that before they are subjected to suit, officers are on notice their conduct is unlawful.” Saucier,
533 U.S. at 206.
That the very act (or something materially similar to it) in question
has previously been held unlawful by a court is not always
necessary. But in light of preexisting law, the unlawfulness must
be apparent: plain, clear, obvious. Unless the government

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official’s act is so obviously wrong, in the light of preexisting law,
that only a plainly incompetent official or one who was knowingly
violating the law would have committed the act, the official is
entitled to qualified immunity.
Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1328 (11th Cir. 2003); Montoute, 114 F.3d
at 184 (“[T]he qualified immunity standard is broad enough to cover some ‘mistaken judgment,’
and it shields from liability ‘all but the plainly incompetent or those who knowingly violate the
law.’” (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).
Here, Plaintiffs do not dispute that the Officers were government officials performing
discretionary functions at the time of the events at issue, nor does the Court find any indication in
the Complaint to the contrary. Therefore, the burden shifts to Plaintiffs to demonstrate that the
Officers violated a clearly established statutory or constitutional right to overcome the qualified
immunity defense. They fail to do so.
Plaintiffs allege that the Officers subjected them to a false arrest in violation of section
1983.
A warrantless arrest without probable cause violates the
Fourth Amendment and provides the basis for a Section 1983
claim. See Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th
Cir.1990). The existence of probable cause, however, is an
absolute bar to such a claim. Id. at 1505–06. The standard for
determining the existence of probable cause is the same under
both Florida and federal law. Rankin v. Evans, 133 F.3d 1425,
1433 (11th Cir.1998). Probable cause exists where “a reasonable
man would have believed probable cause existed had he known
all of the facts known by the officer.” Id. (quotation and brackets
omitted). “[T]he subjective belief of the arresting officer plays no
role in a probable cause analysis under either Florida or federal
law.” Id. at 1434 n.11.
Sada v. City of Altamonte Springs, 434 F. App’x 845, 849 (11th Cir. 2011). “Probable cause is
‘judged not with clinical detachment but with a common sense view to the realities of normal
life.’” Lorenzo v. City of Tampa, 259 F. App’x 239, 242 (11th Cir. 2007) (quoting Rankin, 133

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F.3d at 1436). “This standard is met 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 . . . an
offense.” Rankin 133 F.3d at 1435. Moreover, if an officer lacked probable cause for arrest, the
existence of “arguable probable cause” may be a successful defense to a false arrest claim.
Poulakis v. Rogers, 341 F. App’x 523, 526 (11th Cir. 2009) (citing Case v. Eslinger, 555 F.3d
1317, 1327 (11th Cir. 2009) (“If a constitutional violation occurred because the officer lacked
probable cause, we next consider whether arguable probable cause existed. The officer may still
be shielded from liability because his actions did not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”)).
As an initial matter, the Court addresses the question of whether an arrest occurred in the
first place.
In determining “when” a person is arrested, we ask at what point,
“in view of all the circumstances surrounding the incident, a
reasonable person would have believed he [she] was not free to
leave.” United States v. Hammock, 860 F.2d 390, 393 (11th
Cir.1988). Circumstances which indicate an arrest include: the
blocking of an individual’s path or the impeding of his progress;
the display of weapons; the number of officers present and their
demeanor; the length of the detention; and the extent to which the
officers physically restrained the individual. This list is not
exclusive. United States v. Hammock, at 393.
United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989).

“[I]f the totality of

circumstances indicates that an encounter has become too intrusive to be classified as an
investigative detention, the encounter is a full-scale arrest, and the government must establish
that the arrest is supported by probable cause.” Id. (citation omitted).
Plaintiffs contend that their detention was not an arrest, but an investigatory detention, or

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“Terry 3 stop.” “[A]n officer may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is
afoot.”

United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000) (quoting Illinois v.

Wardlow, 528 U.S. 119, 120 (2000)). Plaintiffs argue, however, that the Terry stop, lasting four
hours, was unconstitutional. (See Resp. 2). They concede the Officers may have had the
necessary initial reasonable suspicion, but contend that keeping Plaintiffs handcuffed and
detained for four hours while Hernandez investigated the check was unnecessarily lengthy and
unconstitutional. (See id. 2–3). Plaintiffs quote United States v. Place, 462 U.S. 696 (1983), in
which the Court stated, “although we decline to adopt any outside time limitation for a
permissible Terry stop, we have never approved a seizure of the person for the prolonged 90minute period involved here and cannot do so on the facts presented by this case.” 462 U.S. at
709–10. Plaintiffs assert, “[w]hen a good explanation is not provided,” a lengthy investigatory
detention is unwarranted. (Resp. 3).
The Officers insist that the detention, even if an investigatory stop, was lawful. (See
Reply 2). They cite United States v. Gil, 204 F.3d 1347 (11th Cir. 2000), in support for the
proposition that the length of the detention did not exceed that of an investigatory stop. In Gil,
the police engaged in a Terry stop lasting seventy-five minutes, or the length of time to
investigate a house, and did not arrest Gil until after her house was searched and probable cause
found. See id. at 1350. The Eleventh Circuit held that as “[t]he police were diligent in their
investigation of the residence and did not detain Ms. Gil without formally arresting her for any
amount of time longer than it was necessary to complete that investigation,” the length of the
Terry stop did not render it invalid. Id. at 1351. The Officers also cite United States v.
Cherubin, No. 2001-216/223, 2010 WL 924272 (D. V.I. Mar. 9, 2010), in which the court held a
3

Terry v. Ohio, 392 U.S. 1 (1968).

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Terry stop lasting four hours to be valid where the “police acted diligently” in investigating a
potentially illegal entry into the United States. 2010 WL 924272, at *5. The court in Cherubin
did acknowledge, however, that four hours was “unusually lengthy for Terry purposes.” Id.
The Court finds that although the investigatory stop was lengthy, Plaintiffs have not met
their burden to demonstrate a violation of clearly established constitutional law on the part of the
Officers. Even in the authority cited by Plaintiffs on this point, United States v. Place, the
Supreme Court expressly declined to impose a bright-line rule as to the outside time limit of an
investigation, but made its finding “on the facts presented by [that] case.” 462 U.S. at 709–10.
While four hours is certainly lengthy, the Complaint states the time was spent in investigating the
information provided by Plaintiffs about the tax return and check, including the visit to the tax
preparer’s home. The parties do not dispute there was at least reasonable suspicion to detain
Plaintiffs, and nothing in the Complaint suggests the Officers or Hernandez were not diligent in
their investigation. See Gil, 204 F.3d at 1350. The Court has no authority before it allowing it to
conclude that the investigatory stop in the instant action, as presented in the Complaint, was a
violation of clearly-established law.
Moreover, even if the detention were a full-blown arrest, the allegations of the Complaint
establish that there was probable cause, and at least arguable probable cause, to arrest Plaintiffs.
Plaintiffs state, “[r]easonable officers could not have believed that probable cause existed to
arrest a man for merely attempting to deposit a legitimate check. And no reasonable officer
would believe that probable cause existed to arrest a woman who simply witnessed a legitimate
financial transaction.”

(Resp. 4).

Plaintiffs additionally argue that their race, along with

Marshall’s build, constituted the real cause for their arrest. (See Resp. 2). This, however, is not
alleged in the Complaint, which clearly states the Officers were responding to Regions Bank’s

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call regarding a fraudulent check. (See Compl. ¶¶ 24–25). The Complaint alleges no facts
suggesting that the Officers took Plaintiffs’ race into account for any reason — Plaintiffs cannot
now argue this in the Response as a reason to defeat the Motion.
The reason stated in the Complaint itself for Plaintiffs’ detention is that “Defendant
Regions [Bank] called the Miami-Dade Police Department to report that Plaintiff Marshall was
attempting to deposit a possibly fraudulent check. Upon information and belief, Defendant
Regions [Bank] advised the Miami-Dade Police Department that Plaintiff Marshall had
attempted to deposit a fraudulent check.” (Compl. ¶¶ 23–24). These allegations establish
probable cause. See Hebron v. Touhy, 18 F.3d 421, 422 (7th Cir. 1994) (complaints from selfdescribed victims of crimes “ordinarily establish probable cause,” unless “information from or
about” reporting victim creates reasonable suspicion “making further investigation prudent”);
Miloslavsky v. AES Eng’g Soc’y, Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992) (“[I]t is wellestablished that a law enforcement official has probable cause to arrest if he received his
information from some person, normally the putative victim or eyewitness, who it seems
reasonable to believe is telling the truth.”) (citation omitted)). The Officers had no information
about Regions Bank or the teller reporting the fraud to cause suspicion, and none is alleged in the
Complaint; it was not unreasonable to rely on the account of the teller who had examined the
check. The Officers nevertheless conducted further investigation on the basis of Marshall’s
information, but probable cause for arrest existed at the moment of Plaintiffs’ detention.
As to Bremer, the Complaint makes clear Marshall and Bremer attempted to deposit the
check together (see Compl. ¶ 14), and Regions Bank “accused Bremer of being an accomplice to
Plaintiff Marshall’s alleged check fraud” (id. ¶ 35). There was probable cause to arrest Bremer
along with Marshall.

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The Court finds that Officers Fleites and Washington are shielded from liability for
Plaintiffs’ false arrest claim, by virtue of qualified immunity — the claim in Count V of the
Complaint therefore fails as pleaded.
IV.

CONCLUSION

Based on the foregoing, it is
ORDERED AND ADJUDGED that the Motion to Dismiss [ECF No. 7] is GRANTED.
Count V of the Complaint [ECF No. 1] is DISMISSED with leave to amend. Plaintiffs shall
have until January 17, 2012 to file an amended complaint.
DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of January, 2012.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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