Villar v. Aventura, FL, City of et al
Filing
97
ORDER granting 67 Motion for Summary Judgment. Signed by Judge Cecilia M. Altonaga on 7/11/2014. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 13-22708-CIV-ALTONAGA/O’Sullivan
JUAN C. VILLAR,
Plaintiff,
vs.
THE CITY OF AVENTURA, et al.,
Defendants.
_______________________________/
ORDER
THIS CAUSE came before the Court upon Defendants, the City of Aventura (the
“City”), Thomas Mundy (“Mundy”), Juan Gonzalez (“Gonzalez”), and Karyn Brinson’s
(“Brinson[’s]”) (collectively, “Defendants[’]”) Combined Motion for Summary Judgment
(“Motion”) [ECF No. 67], filed on April 29, 2014. The Court has carefully considered the
parties’ written submissions and applicable law.
I. BACKGROUND1
On the afternoon of September 4, 2009, Plaintiff, Juan C. Villar (“Villar”), was in front of
a Winn-Dixie supermarket in Aventura, Florida. (See Defs.’ SMF ¶¶ 2–3 (citation omitted)). A
Winn-Dixie manager, Levetieus Johnson (“Johnson”), informed another manager, David Ortiz
By Order dated May 15, 2014 (“May 15 Order”) [ECF No. 81], the Court noted Plaintiff’s Response to
Defendants’ Motion . . . (“Response”) [ECF No. 77] failed to comply with Local Rule 56.1(a), which
requires a Statement of Material Facts (“SMF”) in response to a motion for summary judgment. Plaintiff
was ordered to provide a SMF in response to Defendants’ Combined Joint Statement of Material Facts . . .
(“Defendants’ SMF”) [ECF No. 69]. The Court specifically reminded Plaintiff a failure to controvert the
material facts of Defendants’ SMF would result in deeming them admitted. (See May 15 Order 1 (citing
Local Rule 56.1(b))). Plaintiff subsequently filed a SMF (“Plaintiff’s SMF”) [ECF No. 84], which he
later advised was missing pages two through four as a result of a scanning error. (See Replacement
Sheets . . . (“Replacement Sheets”) [ECF No. 92]). The Court accepts the Replacement Sheets as if they
had been included in Plaintiff’s SMF and refers to the statements in both documents when referencing
“Plaintiff’s SMF.”
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(“Ortiz”), about a disturbance outside the store. (See id. ¶ 3 (citation omitted)). Outside, Ortiz
saw two individuals involved in a “scuffle” who looked like they were about to fight. (Id.
(citation omitted)).
Ortiz told the two to “knock if off” and called the police when they
continued. (Id. (citation omitted)). At some point, Johnson sat down next to Villar, who, he later
said, was so “seriously drunk” he fell on top of Johnson. (Id. ¶ 4 (citations omitted)). Villar
verbally harassed a woman exiting the Winn-Dixie store, tried to physically assault her, and then
pushed “a man dressed as if he were a [r]abbi to the ground” and punched him. (Id. (alteration
added; citations omitted)).
Aventura Police Department officers Mundy and Gonzalez responded to the Winn-Dixie
supermarket, where they learned from people on scene, including a Winn-Dixie employee, Villar
had been disturbing and harassing customers and had battered one of them. (See id. ¶ 5 (citations
omitted)).
Mundy and Gonzalez approached Villar to ask him some questions and for
identification, and Villar attempted to flee from them. (See id. ¶ 6 (citations omitted)). Johnson,
Gonzalez, and Mundy saw Villar strike Gonzalez. (See id. ¶ 7 (citations omitted)). Villar was
arrested for battery of a law enforcement officer in violation of Florida Statute section
784.07(2)(b) and the lesser-included offense of resisting arrest without violence in violation of
Florida Statute section 843.02. (See id. ¶ 8). Villar has described himself as either unconscious
or semi-conscious at the time of his arrest. (See id. ¶ 2).
Charges were filed against Villar for both offenses, and he was convicted of violating
section 843.02 after trial. (See id. ¶ 8 (citation omitted)). He was sentenced to 30 days in jail
and probation. (See id. (citation omitted)).
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Villar filed a complaint about the incident with the Internal Affairs department of the
Aventura Police Department.
(See id. ¶ 9).
Brinson conducted the investigation.
(See
Complaint ¶¶ 10–11 [ECF No. 4]). The City’s official custom and policy is to take all citizen
complaints seriously and perform an unbiased investigation. (See Defs.’ SMF ¶ 10). Brinson
concluded Villar’s allegations against the officers were unfounded because his allegations
conflicted with the officers’ version as well as that of “all known witnesses.” (Id.).
Villar disputes this version of the events. (See generally Pl.’s SMF). He denies being
“severely” intoxicated the day of his arrest, stating he was “under the influence of a normal
intoxication combined with a rise in blood sugar, known as hyperglycemia.” (Id. ¶ 2). His
unconscious or semi-conscious appearance that day was the result of suffering an injury to his
head and as a result of his undiagnosed diabetes.
(See id.).
Thus, he disputes the
characterization that he was self-intoxicated. (See id. ¶ 7).
Villar claims Ortiz did not witness a commotion and scuffle between Villar and another
individual on scene, and surveillance video shows Ortiz could not have witnessed such activity.
(See id. ¶ 3). According to Villar, Johnson is a perjurer. (See id. ¶ 4). So, too, are Mundy and
Gonzalez; Villar says they did not interview any witnesses at the scene of the incident. (See id. ¶
5 (citation omitted)). Villar admits fleeing from the officers, but says this did not occur when
Mundy asked for his identification, but later, after Gonzalez arrived and while the officers
discussed “what charge(s) they would bring against” Villar. (Id. ¶ 6 (citation omitted)).
Villar does not dispute Defendants’ assertion Mundy saw him strike Gonzalez, only
claiming “the jury said otherwise” and Johnson’s claim of having seen this is “absurd.” (Id. ¶ 7
(citation omitted)). Villar claims the verdict form in his criminal trial contained “three charges,”
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not the two charges Defendants state he was prosecuted for. (Id. ¶ 8 (citation omitted)). Villar
says the internal affairs investigation file was turned over to prosecutors and used in his
prosecution; additionally, Brinson spoliated evidence needed for his defense in accordance with
policy and custom by suppressing a video of events from the day of the incident. (See id. ¶¶ 9–
10 (citations omitted)).
Count I of Villar’s Complaint is asserted against all Defendants for violating 42 U.S.C.
section 1983 based on false arrest, malicious prosecution, and assault; conspiracy to commit all
three; and the City’s failure to properly train and oversee its officers. (See Compl. ¶¶ 14–23). In
Count II, Villar maintains a claim for common-law malicious prosecution against all Defendants.
(See id. ¶¶ 24–28). In Count III, he alleges Mundy, Gonzalez, and Brinson (collectively, the
“Officer-Defendants”) and the City have adopted a policy to falsely arrest and imprison
individuals using falsified evidence, although he does not state the legal theory under which
Count III is brought. (See id. ¶¶ 29–30).2 Defendants now move for summary judgment on all
of Villar’s remaining claims.
II. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered 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). A party asserting a fact cannot be genuinely disputed must cite to the record,
“including depositions, documents, electronically stored information, affidavits or declarations,
By Order entered on October 15, 2013 (“October 15 Order”) [ECF No. 36], the Court granted the City’s
Motion for Judgment on the Pleadings [ECF No. 33] as to Counts II and III of the Complaint, and as to
Plaintiff’s prayer for punitive damages, pre-judgment interest and attorney’s fees. (See October 15
Order). The Court subsequently declined to set aside the October 15 Order after permitting Villar to file
an opposition to the Motion for Judgment on the Pleadings. (See [ECF No. 46]). As such, the City
remains a Defendant as to Count I alone.
2
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stipulations . . ., admissions, interrogatory answers, or other materials,” or show “the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1) (alteration
added). The Court need only consider cited materials from the record. See FED. R. CIV. P.
56(c)(3). In making its assessment, the Court “must view all the evidence and all factual
inferences reasonably drawn from the evidence in the light most favorable to the nonmoving
party,” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997)
(citation omitted), and “must resolve all reasonable doubts about the facts in favor of the nonmovant.” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th
Cir. 1990) (citation omitted). “If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion . . . .” FED. R. CIV. P. 56(e) (alterations
added). Indeed, the “non-movant must adduce significant probative evidence that would be
sufficient for a jury to find for the non-movant.” Riebsame v. Prince, 267 F. Supp. 2d 1225,
1231 (M.D. Fla. 2003) (citations omitted).
“An issue of fact is material if it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case.” Burgos v. Chertoff, 274 F. App’x
839, 841 (11th Cir. 2008) (citation and internal quotation marks omitted)). “A factual dispute is
genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Channa Imps., Inc. v. Hybur, Ltd., No. 07-21516-CIV, 2008 WL 2914977, at *2 (S.D.
Fla. July 25, 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]here
is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber
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or quantity to allow a rational finder of fact to find” for the nonmoving party. Anderson, 477
U.S. at 254 (alteration added). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
The Motion addresses the qualified-immunity defense of the Officer-Defendants, and as
noted, the parties dispute whether the Officer-Defendants falsely arrested Villar, assaulted him,
maliciously prosecuted him, and conspired to undertake these actions. But “[t]o deny summary
judgment any time a material issue of fact remains . . . could undermine the goal of qualified
immunity to avoid excessive disruption of government and permit the resolution of many
insubstantial claims on summary judgment.” Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th
Cir. 2005) (some alterations added; footnote call number, citations, and internal quotation marks
omitted). Thus,
[w]hen conducting a qualified immunity analysis, district courts must take the
facts in the light most favorable to the party asserting the injury. . . . When a
district court considers the record in this light, it eliminates all issues of fact. By
approaching the record in this way, the court has the plaintiff’s best case before it.
With the plaintiff’s best case in hand, the court is able to move to the question of
whether the defendant committed the constitutional violation alleged in the
complaint without having to assess any facts in dispute.
Id. (alterations added; internal citation omitted).
III. ANALYSIS
Because a determination of Villar’s state common-law claims affects his remaining
claims, the Court first addresses Defendants’ summary judgment arguments as to Count II.
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A. State Law Malicious Prosecution Claim — Count II
Villar brings a common-law malicious prosecution claim against the Officer-Defendants
in Count II, claiming they “initiated or caused the initiation and/or continuation of battery
charges against” him. (Compl. ¶ 25).3 The elements of a claim for malicious prosecution in
Florida are as follows:
(1) an original criminal or civil judicial proceeding against the present plaintiff
was commenced or continued; (2) the present defendant was the legal cause of the
original proceeding against the present plaintiff as the defendant in 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 damage as a result of
the original proceeding.
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (citations omitted),
disapproved of on other grounds by Weingrad v. Miles, 29 So. 3d 406 (Fla. 3d DCA 2010).
While Villar is not explicit about the criminal prosecution underlying this claim, he
references the “battery charges” brought against him (Compl. ¶ 25), and the only criminal charge
for which he could pursue a claim is the violation of section 784.07(2)(b), for which he was not
convicted (see Defs.’ SMF ¶ 8 (citing Villar Dep. 11)). Section 784.07(2) forbids “knowingly
committing an assault or battery upon a law enforcement officer . . . engaged in the lawful
performance of his or her duties,” and section 784.07(2)(b) classifies the battery as a felony of
the third degree. FLA. STAT. § 784.07(2) (alteration added).
Defendants argue the existence of probable cause for the prosecution of the section
784.07(2)(b) offense requires summary judgment in their favor. (See Mot. 4). Defendants’ SMF
3
Villar also alleges the City permitted or established a policy allowing malicious prosecutions (see
Compl. ¶ 26), but as stated, judgment on the pleadings has already been entered in favor of the City on
Count II (see October 15 Order).
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notes Mundy saw Villar strike Gonzalez (see Defs.’ SMF ¶ 7 (citing Gonzalez Aff. ¶ 8)), a fact
Villar fails to dispute in his own SMF (see Pl.’s SMF ¶ 7). Obviously, the fact an officer
witnessed an individual strike another officer creates probable cause to prosecute that individual
for “knowingly committing an assault or battery upon a law enforcement officer” under section
784.07(2). See Alterra Healthcare Corp. v. Campbell, 78 So. 3d 595, 602 (Fla. 2d DCA 2011)
(defining lack of probable cause in malicious prosecution context as “without a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the person accused is guilty of the offense with which he is
charged.” (citation and internal quotation marks omitted)). Defendants cite to record evidence
establishing reasonable grounds of suspicion Villar battered a police officer; Villar fails to
adduce any probative evidence on this point. Because Villar fails to point to a genuine dispute of
material fact about the nonexistence of probable cause — required to pursue his claim for
malicious prosecution — summary judgment is granted in favor of Defendants on Count II.
B. Section 1983 Claims — Count I
Villar brings section 1983 claims against Defendants based on his alleged false arrest,
malicious prosecution, and assault, as well as conspiracy to commit these violations. (See
Compl. ¶¶ 15–17). Defendants seek summary judgment on this Count.
1. Malicious Prosecution Claim — All Defendants
“To establish a federal malicious prosecution claim under [section] 1983, a plaintiff must
prove (1) the elements of the common law tort of malicious prosecution, and (2) a violation of
her Fourth Amendment right to be free from unreasonable seizures.” Kingsland v. City of
Miami, 382 F.3d 1220, 1234 (11th Cir. 2004) (citation omitted; alteration added) (applying
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Florida law). As stated in Part III.A, supra, Villar fails to prove the elements of the Florida tort
of malicious prosecution, and therefore his section 1983 claim for malicious prosecution fails.4
2. False Arrest and Assault Claims — Mundy and Gonzalez
The Officer-Defendants argue they are entitled to qualified immunity from the section
1983 claims in Count I concerning Villar’s false arrest and assault.
(See Mot. 13–15).
“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, 382 F.3d at 1231 (citations and
internal quotation marks omitted).
To be entitled to the qualified-immunity defense, a
government official must demonstrate 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.” (alteration added; citations omitted)). This is embodied in the Eleventh Circuit’s twopart Zeigler/Rich analysis:
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.”
4
The malicious prosecution claim may also fail because conviction of a lesser-included offense precludes
a section 1983 action for malicious prosecution of the greater offense. See St. Germain v. Isenhower, 98
F. Supp. 2d 1366, 1372 (S.D. Fla. 2000). However, the parties appear to dispute whether Villar’s offense
of conviction was a lesser-included offense, and thus the Court does not address this argument.
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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, 1563–64 (11th Cir. 1988)); Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983) (per
curiam).5
In order to prevent dismissal of his claims under the doctrine of qualified immunity, a
plaintiff must show 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) (per curiam); McClish, 483 F.3d at 1237. Even if
the facts demonstrate a violation, the plaintiff still has the burden to show the constitutional
rights were “clearly established” at the time of the violation in order to survive summary
judgment. 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 v. Wilson, 311 F.3d 1340, 1351 (11th
Cir. 2002) (footnote call number omitted). 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 the light of
5
District court judges have the discretion to decide which of the two prongs of the qualified immunity
analysis should be addressed first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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preexisting law, the unlawfulness must be apparent: plain, clear, obvious. Unless
the government 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) (citation omitted);
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.” (alteration added; citation and internal quotation marks omitted)).
As for the false arrest and assault claims, it is undisputed that Mundy and Gonzalez were
government officials performing discretionary functions at the time they arrested Villar.
Although Villar does not challenge any part of Defendants’ qualified immunity argument in his
Response (see generally Resp.), the Court analyzes whether Villar can demonstrate the officers
violated a clearly established statutory or constitutional right to overcome the qualified-immunity
defense for the false arrest and assault claims.
In order to prove a false arrest, Villar must show officers lacked probable cause to arrest
him, as
an individual has a right to be free from unreasonable searches and seizures. In
Fourth Amendment terminology, an arrest is a seizure of the person, . . . and the
reasonableness of an arrest is, in turn, determined by the presence or absence of
probable cause for the arrest. Probable cause to arrest exists when law
enforcement officials have facts and circumstances within their knowledge
sufficient to warrant a reasonable belief that the suspect had committed or was
committing a crime.
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Skop v. City of Atlanta, GA., 485 F.3d 1130, 1137 (11th Cir. 2007) (internal citations and
quotation marks omitted).6 Villar, while not explicitly arguing Mundy and Gonzalez lacked
probable cause for his arrest, appears to argue the jury did not necessarily find the officers had
probable cause to arrest him. (See Resp. 2–3). Villar does dispute the veracity of some of the
Officer-Defendants’ statements, such as the existence of a rabbi he assaulted or that the officers
received credible information a crime had been committed. (See id. 3)
The facts taken in the light most favorable to Villar fail to support a finding there was no
probable cause to arrest him. According to Defendants’ Statement of Material Facts, upon
arriving at the scene, Mundy and Gonzalez “learned from one or more individuals, including an
employee of the Winn Dixie[,] that . . . Villar [] had been disturbing and harassing customers,
and that he assaulted and battered one of them.” (Defs.’ SMF ¶ 5 (alterations added; citations
omitted)). In response, Villar blithely states, “Pure perjury. Neither MUNDY nor GONZALEZ
interviewed any witnesses (Exhibit 07).” (Pl.’s SMF ¶ 5). Villar’s support for this fact is wholly
inadequate — Exhibit 7 is an unsworn and even unsigned motion to disqualify counsel Villar
made in the present litigation — and, moreover, the exhibit expressly contradicts Villar’s
statement. Villar’s motion, analyzing video surveillance of the incident, states, “MUNDY has
cracked open the driver side door and made contact with ORTIZ. . . . [T]he conversation between
MUNDY and ORTIZ comes to an abrupt end . . . .” (Pl.’s SMF Ex. 7 7 (alterations and emphasis
added)). The record does not support Villar’s statement Mundy did not interview any witnesses,
“A person is seized when, by means of physical force or a show of authority, his freedom of movement
is restrained such that, in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” United States v. House, 684 F.3d 1173, 1199 (11th
Cir. 2012) (alterations, citation and internal quotation marks omitted). For purposes of the false arrest
claim, the Court assumes without deciding Villar was arrested by the time Mundy and Gonzalez asked
Villar for identification. (See Defs.’ SMF ¶ 6).
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and the statement “Pure perjury,” without citation to any record support, fails to create a genuine
issue about the veracity of Defendants’ SMF. See Anderson, 477 U.S. at 254.
The facts viewed in the light most favorable to Villar thus indicate probable cause existed
to arrest Villar, because Mundy spoke to Ortiz, a witness to Villar’s actions. Based on the
totality of circumstances, Villar’s arrest was objectively reasonable, and therefore probable cause
to arrest him existed under federal law. See Skop, 485 F.3d at 1137; Rankin v. Evans, 133 F.3d
1425, 1435 (11th Cir. 1998) (“This [probable cause] 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, is committing, or is about to commit an offense.’” (quoting Williamson v.
Mills, 65 F.3d 155, 158 (11th Cir. 1995)) (alteration added; other citation omitted)).
Moreover, arguable probable cause is “all that is required for qualified immunity to be
applicable to an arresting officer.” Lee, 284 F.3d at 1195 (citation and internal quotation marks
omitted).
“In determining whether arguable probable cause exists, we apply an objective
standard, asking whether the officer’s actions are objectively reasonable regardless of the
officer’s underlying intent or motivation.”
alterations omitted).
Id. (citations, internal quotation marks, and
Having received information from a witness on scene about Villar’s
harassment and assault of passersby, the officers had at least arguable probable cause to arrest
Villar based on the totality of the circumstances. See id. (“Although probable cause requires
more than suspicion, it does not require convincing proof.” (citations and internal quotation
marks omitted)).
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Villar has not demonstrated Mundy or Gonzalez violated a clearly established statutory or
constitutional right, and therefore he fails to overcome the qualified-immunity defense. See
Courson, 939 F.2d at 1487 (citations omitted). Accordingly, Mundy and Gonzalez are entitled to
the qualified-immunity defense, and summary judgment is granted in their favor as to the false
arrest claim.
Villar does not mention Mundy and Gonzalez’s assault of him in his Response. (See
generally Resp.). And his SMF fails to properly assert necessary facts; its only mention of a
potential assault is Villar’s statement his unconscious or semi-conscious state was a result of “the
effects of being thrown down upon Plaintiff’s head and suffering a concussion.” (Pl.’s SMF ¶ 2
(citing id. Ex. 2, ¶ 3)). Villar does not state who threw him down or whether it was accidental;
moreover, the record citation Villar provides is irrelevant to his claim of assault, as it references
a motion for rehearing in his criminal case about counsel’s failure to introduce surveillance tapes
showing him to “have been unconscious or semi-conscious at the time of the alleged
‘resistance.’” (Id. Ex. 2 ¶ 3)). A statement of material facts must be “supported by specific
references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file
with the Court.” S.D. FLA. L.R. 56.1. As Villar fails to cite to any record evidence showing he
was assaulted by Mundy and Gonzalez, he has failed in his burden to show the Defendants’
actions “violated clearly established constitutional law.” Courson, 939 F.2d at 1487 (citations
and internal quotation marks omitted). Mundy and Gonzalez receive the qualified-immunity
defense on the assault claim, and summary judgment is granted in their favor.
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3. Conspiracy Claims — Mundy and Gonzalez
Villar brings conspiracy claims against Mundy and Gonzalez for his assault, false arrest,
and false prosecution. (See Compl. ¶¶ 15–17). To prove a section 1983 claim for conspiracy to
violate constitutional rights, a plaintiff “must show that the parties reached an understanding to
deny the plaintiff his or her rights. The conspiratorial acts must impinge upon the federal right;
the plaintiff must prove an actionable wrong to support the conspiracy.” Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010) (citation and internal quotation marks
omitted).
Defendants assert the conspiracy claims are precluded by the intracorporate conspiracy
doctrine. (See Mot. 16–17). “The intracorporate conspiracy doctrine holds that acts of corporate
agents are attributed to the corporation itself, thereby negating the multiplicity of actors
necessary for the formation of a conspiracy.” McAndrew v. Lockheed Martin Corp., 206 F.3d
1031, 1036 (11th Cir. 2000). The doctrine applies to public, governmental entities. See Denney
v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001); see also Grider, 618 F.3d at 1261
(collecting cases). The doctrine is only applicable if the employees acted “in the scope of their
employment.”
McAndrew, 206 F.3d at 1036.
A police officer acts within his scope of
employment when “the employee police officer was performing a function that, but for the
alleged constitutional infirmity, was within the ambit of the officer’s scope of authority (i.e., jobrelated duties) and in furtherance of the employer’s business.”
Grider, 618 F.3d at 1261
(footnote call number omitted). The inquiry is similar to that used in qualified immunity cases,
where courts “examine whether a public official’s acts fall within his ‘scope of authority’ and
thus his ‘discretionary functions,’ not whether he was authorized to commit an illegal act.” Id. at
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1262 n.33 (citations omitted). Indeed, “an officer who uses excessive force during the course of
an arrest is acting while in the scope of his or her employment as a law enforcement officer.”
Hung Phan v. City of St. Petersburg, Fla., Case No. 8:06-cv-01818-T-17-TGW, 2007 WL
1225380, at *6 (M.D. Fla. Apr. 25, 2007) (citation omitted).
Here, Mundy and Gonzalez’s duties and scope of authority included arresting and
apprehending Villar.
Accordingly, Mundy and Gonzalez acted within the scope of their
employment, negating the necessary multiplicity of actors required for conspiracy claims. See
McAndrew, 206 F.3d at 1036.7
Summary judgment is granted in their favor on Villar’s
conspiracy claims.
4. Manufacturing False Statements Claim — Brinson
Villar claims Officer Brinson manufactured false statements, falsely accused Villar of
assaulting a rabbi, and devised a cover story to justify Mundy and Gonzalez’s actions. (See
Compl. ¶ 21). Defendants argue Brinson should receive qualified immunity, as she was acting
within her discretionary authority in completing an investigation; Villar does not dispute she was
acting within the scope of her authority. (See Mot. 13 (citation omitted); see generally Resp.).
Defendants argue Villar cannot show Brinson violated any clearly established law, especially
because Villar admits Brinson did not fabricate a witness. (See Mot. 15). In response, Villar
asserts 1) Brinson must know a witness at the scene, Johnson, is a “perjurer,” and she should
have noted this in her report, because she saw the security camera video of the incident; 2)
7
Courts recognize several exceptions to the intracorporate conspiracy doctrine. See Dickerson v. Alachua
Cnty. Comm’n, 200 F.3d 761, 769–70 (11th Cir. 2000) (noting exceptions to the doctrine exist, for
example, in cases of criminal charges of conspiracy, or when corporate agents have an “independent
personal stake in the corporate action” (citations and internal quotation marks omitted)). Villar points to
no relevant exceptions, nor does the Court discern any from the parties’ briefing.
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Case No. 13-22708-CIV-ALTONAGA/O’Sullivan
Brinson was trying to exculpate Mundy and Gonzalez by including in her report the “Fantasy
tale of Levetieus Johnson”; and 3) Brinson’s improperly conducted investigation was presented
to the jury and, if properly done, would have caused prosecutors to drop the case. (Resp. 4–5).
Even assuming Brinson’s alleged wrongs constitute a violation of clearly established law,
Villar fails to establish his factual claims through record citations. For instance, he asserts
Brinson “spoliated evidence critical to the defense” in part by “suppress[ing] the video of events
prior to the officer’s arrival . . . .” (Pl.’s SMF ¶ 9 (alterations added) (citing id. Ex. 10)). Yet
Exhibit 10, Brinson’s affidavit, clearly states she “viewed all surveillance footage that Winn
Dixie produced in response to my request for all video. The video provided to me did not
capture any misconduct on the part of the officers . . . .” (Id. Ex. 10 ¶ 6 (alteration added)). This
does not support Villar’s assertion Brinson spoliated evidence or suppressed any videos.
Villar’s SMF cites to his criminal trial transcript showing the internal investigation’s
results were discussed in Villar’s criminal trial, but a reasonable jury could not infer from this
evidence Brinson manufactured false statements or spoliated evidence. (See id. Ex. 11). As for
Brinson’s knowledge Johnson is a perjurer, the only record citation Villar provides — one page
from Brinson’s deposition — merely illustrates Brinson saw a video that did not display “the
incident itself occurring,” referring to Villar’s harassment of individuals. (Resp. 4 (citing id. Ex.
D)). This barebones record citation fails to support Villar’s assertion Brinson spoliated evidence
or knew Johnson was lying. Villar has failed to support his assertions with citations from the
record such that, taken in the light most favorable to him, they would demonstrate Brinson
violated a constitutional right.
See Saucier, 533 U.S. at 201.
qualified immunity, and summary judgment is entered in her favor.
17
Brinson therefore receives
Case No. 13-22708-CIV-ALTONAGA/O’Sullivan
5. Failure to Train and to Provide Proper Internal Affairs Unit — City
Villar alleges the City has a policy of failing to train and oversee its police force,
permitting false arrest, and permitting the internal affairs unit to cover up police misconduct.
(See Compl. ¶ 22). The City maintains it is entitled to summary judgment on Villar’s section
1983 claim in Count I because Villar has not shown the City was deliberately indifferent to his
constitutional rights in the content or amount of training received by the officers. (See Mot. 20).
A municipality may be held liable for its own, independent violations of federal law
pursuant to section 1983. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
694 (1978). “Local governing bodies . . . can be sued directly under [section] 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers.” Id. at 690 (alterations added; footnote call number
omitted). A municipality may also be sued “for constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received formal approval through the
body’s official decisionmaking channels.” Id. at 690–91. To demonstrate a Monell claim, the
plaintiff must show: (1) the violation of a constitutional right occurred; (2) the existence of a
municipal policy or custom; and (3) a causal connection between the violation and the municipal
policy or custom. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
The circumstances giving rise to section 1983 liability under a theory of failure to train
are quite limited, requiring a showing of “deliberate indifference to the rights of persons with
whom the police come into contact.” Id. at 388 (footnote call number omitted). Deficient
training of one officer is not sufficient to meet this standard; rather, the alleged deficiency must
18
Case No. 13-22708-CIV-ALTONAGA/O’Sullivan
be shown to be widespread and the identified deficiency in training must be closely related to the
ultimate injury. See id. at 390–91. A showing of “deliberate indifference” requires a conscious
choice by policymakers among various options. See Young v. City of Augusta, Ga., 59 F.3d
1160, 1171–72 (11th Cir. 1995). To prove a municipality made a conscious choice, a plaintiff
must demonstrate either “the need for a particular type of training [is] obvious where [officials]
face clear constitutional duties in recurrent situations” or “the need for more or better training
[is] obvious where a pattern of constitutional violations exists such that the municipality knows
or should know that corrective measures are needed.” Id. at 1172 (alterations added; citations
omitted).
Villar argues based on Brinson’s affidavit “it is policy and custom of the City of
Aventura to not investigate matters outside of an ‘assignment.’” (Resp. 5 (footnote call number
omitted)). At the end of his Response, he asserts Brinson’s affidavit “admits of a Monell
situation,” without any support. (Id. 6). The only potentially relevant factual assertions in his
Statement of Material Facts are paragraphs nine and ten, which, as stated in Part III.B.4, supra,
lack support in the record. Villar has wholly failed to provide any proof of City officials facing
“clear constitutional duties in recurrent situations” or “a pattern of constitutional violations,” as
required to prove his claim. See Young, 59 F.3d at 1172 (citations omitted). Because there is no
genuine dispute of material fact on Villar’s claims against the City, summary judgment is
granted in favor of the City on Count I.
C. Count III
Villar styles paragraphs twenty-nine through thirty of the Complaint as a “Third Cause of
Action,” but he does not specify the legal theory under which his factual allegations entitle him
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Case No. 13-22708-CIV-ALTONAGA/O’Sullivan
to relief. (See Compl. ¶¶ 29–30). Villar alleges Defendants have adopted policies of arresting,
assaulting, falsely imprisoning persons, and falsifying evidence. (See id.). These allegations
have already been addressed in Part III.B, supra. Given Villar’s failure to provide “a short and
plain statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2),
summary judgment is granted in favor of Defendants on Count III.
IV. CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 67] is GRANTED.
DONE AND ORDERED in Chambers at Miami, Florida, this 11th day of July, 2014.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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