Kangro v. City of Port St. Lucie
Filing
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OPINION AND ORDER granting 9 Motion to Dismiss. Signed by Judge Kenneth A. Marra on 3/29/2017. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-14307-CIV-MARRA
OLOF MARCUS KANGRO and
KANAN SHETH,
Plaintiffs,
vs.
THE CITY OF PORT ST. LUCIE, and
OFFICER JAMES BECKER,
Defendants.
_________________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendants City of Port St. Lucie and Officer James
Becker’s Motion to Dismiss Plaintiff’s Complaint (DE 14). The motions are fully briefed and
ripe for review. The Court has carefully considered the motions and is otherwise fully advised in
the premises.
I. Background
Plaintiffs’ Olof Marcus Kangro (“Kangro”) and Kanan Sheth (“Sheth”) six-count
Complaint brings claims against Officer James Becker (“Officer Becker”) and the City of Port St.
Lucie (collectively “Defendants”) for false arrest, wrongful imprisonment, and malicious
prosecution pursuant to 42 U.S.C. § 1983 (count one), negligence of Becker (count two), loss of
consortium (count four), false imprisonment (count five), and malicious prosecution (count six).
Plaintiffs’ Complaint further brings a claim against the City of Port St. Lucie for negligence of
the Police Department (count three).
According to the allegations of the Complaint, on or about May 26, 2014, Kangro was
dining with his family at a restaurant in the Club Med Resort in St. Lucie County, where he and
his family were visiting from New York. (DE 1 ¶¶ 11-13. During dinner, Kangro’s two-yearold-son “was a little rambunctious and was placed in time out.” (DE 1 ¶ 13.)
Shortly thereafter, to the family’s surprise, several police officers appeared from the Port
St. Lucie Police Department, including Officer Becker. (DE 1 ¶ 14.) The officers, including
Officer Becker, contacted the Florida Department of Children and Families (“FDCF”). Kangro
and Sheth were detained for four hours until FDCF agents arrived. (DE 1 ¶ 15.) After meeting
with Kangro and Sheth, FDCF determined that no abuse had occurred. (DE 1 ¶ 15.) Despite
FDCF’s findings, Officer Becker continued the detention, eventually arresting and transporting
Kangro to the police station. (DE 1 ¶ 16.) Kangro was arrested and charged with a violation of
section 827.03(2)3, Fla. Stat. for knowingly or willfully abusing a child, a felony. (DE 1 ¶ 18.)
Officer Becker’s arrest affidavit describes that he met with the complainants, Lisa Helton
and Ryan Mattingly, and that they observed that Nikkhil Kangro was crying and acting up in a
café area of the Club Med resort. (DE 1 ¶ 17.) It attests that the complainants observed Kangro
as he shook the child’s high chair violently, grabbed the child by the chin and shook his face back
and forth while shouting loudly and threateningly, placed a cloth napkin over the child’s face to
muffle his crying, and threw the napkin at his face. (DE 1 ¶ 17.) It further attests that a server at
the café, Elisabeth Witkowski, observed the child start to fuss after being placed in a high chair
and that Kangro shook the high chair to stop him and then flicked him twice in the face with a
linen dinner napkin. (DE 1 ¶ 17.) Officer Becker’s affidavit describes a small bruise that he
observed on the child’s left cheek. (DE 1 ¶ 17.) It then describes placing Kangro under arrest,
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telephoning FDCF, waiting until an FDCF investigator responded and conducted an initial
investigation, and transporting Kangro to St. Lucie County Jail for processing and booking. (DE
1 ¶ 17.)
In making his arrest affidavit, Officer Becker failed to disclose all of the relevant
witnesses. (DE 1 ¶ 17.) Officer Becker was investigated by the Police Department internal
affairs department in connection with this arrest. (DE 1 ¶ 24.) Dr. Pereira and Abby Pereira
were exculpatory witnesses that were not disclosed in Officer Becker’s arrest affidavit. (DE 1 ¶
25.) The Police Department found Officer Becker incompetent for failure to include these
witnesses in his report and affidavit. ((DE 1 ¶ 25.) That investigation included statements from
Dr. Pereira that he told Officer Becker that he did not see anything significant between Kangro
and his child and did not specifically see Kangro rub a napkin in his child’s face in an aggressive
manner. (DE 1 ¶ 24.) The investigation also included a statement from Abby Pereira relating
that she spoke with Officer Becker, that Kangro’s child was shouting and throwing things in the
restaurant, that Kangro and Sheth were disciplining him, and that she did not see either Kangro
of Sheth touch the child. (DE 1 ¶ 24.) Abby Pereira was not watching Kangro and Sheth the
whole time. (DE 1 ¶ 24.) Further, Abby Pereira communicated that Kangro’s child had a bruise
on its face from a prior fall while at a swimming pool, that she was present during the accidental
fall, and that she noticed a bruise on the child’s face later that day. (DE 1 ¶ 24.)
The charges against Kangro were dismissed. (DE 1 ¶ 22.) The child welfare
investigations in both Florida and New York were also dismissed. (DE 1 ¶ 22.) As a result of
the charges, Kangro was prohibited from having contact with his family, was forced out of his
home, and the corresponding New York agency to the FDCF conducted home visits. (DE 1 ¶ 20.)
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Further, Kangro was forced to expend monies on defense counsel and investigation into the
claims. (DE 1 ¶ 23.) Finally, Kangro also expended monies in an attempt to clean up his name
and remove newspaper stories placed on the internet as a result of the charges. (DE 1 ¶ 23.)
The Complaint alleges that had Officer Becker been truthful, accurate, and complete in
the arrest affidavit, by including statements from Dr. Pereira and Abby Pereira, no charges
would have been brought against Kangro. (DE 1 ¶ 19.) Further, had Officer Becker relied upon
the DFCF’s statements that no abuse had occurred, Mr. Kangro would never have been placed in
jail. (DE 1 ¶ 19.)
Defendants moves to dismiss on the following grounds. First, addressing the Count I
claim under § 1983, Officer Becker moves to dismiss Kangro’s claim under § 1983 based on the
defense of qualified immunity. Specifically, Officer Becker asserts that arguable probable cause
existed at the time of the arrest or detention of Kangro and thus Kangro’s claims for false arrest
and false imprisonment are barred. Relatedly, the City of Port St. Lucie moves to dismiss
Kangro’s claim under § 1983 against it based on the holding in Monell v. Department of Social
Services, 436 U.S. 658 (1978), and its rejection of government liability under § 1983 on a theory
of respondeat superior. The City of Port St. Lucie asserts that the Complaint fails to specifically
allege any custom of policy in this matter, fails to allege who the final policymaker was, and have
failed to identify a clearly established constitutional right that was allegedly violated. As such,
the City of Port St. Lucie concludes that Plaintiffs have failed to state a cause of action.
Addressing Count II, Plaintiffs note that Count II was titled against Officer Becker but
also note that Plaintiffs press liability under respondeat superior and pray for damages from both
Officer Becker and the City of Port St. Lucie. Defendants urge that Plaintiffs have failed to
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allege the duty owed by Officer Becker, that there is no duty to have included additional
information or report information to prosecutors, and that a tort for negligent arrest or negligent
investigation simply does not exist. Accordingly, Defendants urge Count II to be dismissed as a
matter of law.
Similarly, Defendant City of Port St. Lucie asserts that Count III, alleging the negligence
of the City of Port St. Lucie, is subject to dismissal. Defendants argue that the City of Port St.
Lucie cannot be liable for negligent training as a result of its employment of Officer Becker.
Defendants emphasize that the Complaint fails to allege sufficient facts to state a cause of action
for negligent training or supervision. Further, Defendant City of Port St. Lucie asserts that the
Complaint fails to plead facts sufficient to maintain a cause of action under a theory of negligent
retention. As such, the City of Port St. Lucie urges that Count III should be dismissed as a matter
of law.
Additionally, Defendants urge that Count IV, the loss of consortium claim, is derivative
of other claims, and as those claims must be dismissed as a matter of law, so too should Count IV
be dismissed. Defendants further urge that Counts V and VI, for false imprisonment and
malicious prosecution, respectively, should be dismissed as a matter of law. Defendants argue
that the existence of probable cause to arrest Kangro requires these claims be dismissed as a
matter of law.
Finally, the City of Port St. Lucie raises sovereign immunity under the Eleventh
Amendment as to Plaintiffs claims in tort for negligence in Counts II and III, false imprisonment
in Count V, and malicious prosecution in Count VI. The City of Port St. Lucie argues that it is
immune from suit under Florida’s sovereign immunity law and that Officer Becker is immune
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from suit under the same statute for actions taken within the scope of employment and without
bad faith of malicious purpose.
II. Legal Standard
Rule 8(a) of the Federal Rules of Civil Procedure requires “a short and plain statement of
the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground
upon which it rests.” Fed.R.Civ.P. 8(a). The Supreme Court has held that “[w]hile a complaint
attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a
plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).
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III. Discussion
A. Section 1983 Claim Against Officer Becker
The Court will first address Officer Becker’s arguments for dismissal of Kangro’s section
1983 claim–the only claim brought under federal law in Plaintiffs’ Complaint (DE 1). In moving
to dismiss, Officer Becker states that probable cause existed for the arrest of Kangro and that
qualified immunity protects Officer Becker from liability. The Court begins by noting that
section 1983 provides a cause of action for constitutional violations committed under color of
state law. A violation of the Fourth Amendment is cognizable under section 1983. Reyes v.
Maschmeier, 446 F.3d 1199, 1202 (11th11th Cir. 2006). When evaluating claims of qualified
immunity, the court must consider whether a constitutional right has been violated and whether
the right was clearly established by the law at the time of the violation. Saucier v. Katz, 533 U.S.
194, 201 (2001). A court may exercise its “discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.” Pearson v. Callahan, 129 S. Ct. 808,
817-18 (2009).
An arrest without probable cause clearly violates the rights enshrined under the Fourth
Amendment of the Constitution. Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir.
1998). Probable cause exists where the facts and circumstances presented to a law enforcement
officer “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.” Rankin v. Evans, 133
F.3d 1425, 1435 (11th Cir. 1998). However, law enforcement officers who make arrests without
probable cause are “‘entitled to qualified immunity if there was arguable probable cause for the
arrest.’” Durruthy, 351 F.3d 1080, 1089 (11th Cir. 2003) quoting Jones v. Cannon, 174 F.3d
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1271, 1283 (11th Cir. 1999). Arguable probable cause exists when “an officer reasonably could
have believed that probable cause existed, in light of the information the officer possessed.”
Durruthy, 351 F.3d at 1089 (quotation marks and citations omitted). “Arguable probable cause
does not require an arresting officer to prove every element of a crime or to obtain a confession
before making an arrest, which would negate the concept of probable cause and transform
arresting officers into prosecutors.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002)
(quotations marks and citations omitted). Further, “arresting officers, in deciding whether
probable cause exists, are not required to sift through conflicting evidence or resolve issues of
credibility, so long as the totality of the circumstances present a sufficient basis for believing that
an offense has been committed.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir. 2002).
Based on the allegations of the First Amended Complaint, viewing the facts in the light
most favorable to Kangro, the Court finds that there was arguable probable cause to arrest
Kangro. When Officer Becker arrived on scene, he went about interviewing witnesses, including
complainants Lisa Helton and Ryan Mattingly. In multiple witness interviews conducted, Officer
Becker was toldthat an incident had occurred during which Kangro acted “aggressively” or
“violently” toward his child, shook the child’s high chair, covered the child’s face with a cloth
napkin, and “flicked” the child’s face with a cloth napkin. (DE 1 ¶ 17.) Officer Becker
discussed the allegations with Kangro and obtained a denial of those allegations from Plaintiff
Kangro. (Id.) Additionally, Officer Becker saw a bruise on the child’s cheek. (Id.) Assessing
the totality of these circumstances, arguable probable cause existed to arrest Kangro.
The existence of arguable probable cause was not dissipated or nullified by the
conflicting witness statements provided by Dr. Pereira and Abby Pereira or by the FDCF initial
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investigation. See Elmore v. Fulton Cty. Sch. Dist., 605 F. App'x 906, 912 (11th Cir. 2015)
(finding arguable probable cause “[d]espite the conflicting witness statements,” where “the facts
could have led a prudent officer to believe that reasonably trustworthy information established
probable cause for [the offense]”). To hold otherwise would require Officer Becker “to sift
through conflicting evidence or resolve issues of credibility” in clear contravention of this
Circuit’s precedent on the existence of probable cause. See Dahl, 312 F.3d at 1234.
Indeed, Plaintiffs allege only that Officer Becker “failed to disclose all of the relevant
witnesses when making the arrest” and improperly failed to “re[ly] upon FDCF’s statements that
no abuse had occurred” in making the arrest. (DE 1 ¶ ¶ 17, 19.) Neither of these issues, though,
necessarily nullify the existence of arguable probable cause. Rather, it is clear from the pleadings
that Officer Becker obtained both the witness statements and FDCF initial investigation at the
time of his investigation and made his probable cause determination with the knowledge of the
conflicting witness statements and result of the FDCF initial investigation. (DE 1 ¶ 17.)
Circumstances in which probable cause was found absent as a result of a law enforcement
officers failure to investigate the incident or obtain witness statements provide stark contrast to
the events alleged. See Howard v. Gee, 538 F. App'x 884, 890–91 (11th Cir. 2013) (denying
qualified immunity where a law enforcement officer made little or no attempt to investigate the
incident, ignored arrested’s recitation of events, and declined to speak with available witnesses);
Kingsland v. City of Miami, 382 F.3d 1220, 1233 (11th Cir. 2013) (denying qualified immunity
where arresting officers declined to take statements from arrested or available witnesses).
Officer Becker’s probable cause determination, though, was not the result of an alleged failure to
investigate but instead was undertaken after having obtained witness statements, including
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conflicting witness statements, and proceeding with the arrest of Kangro.
The fact that Officer Becker may have been negligent in “fail[ing] to disclose all of the
relevant witnesses when making the arrest” and in failing to “re[ly] upon FDCF’s statements that
no abuse had occurred” does not eliminate the arguable probable cause that existed for the arrest.
(DE 1 ¶ ¶ 17, 19.) Negligence does not give rise to a constitutional deprivation. See Rooney v.
Watson, 101 F.3d 1378, 1381 (11th Cir.1996) (neither negligence or gross negligence rises to the
level of a constitutional deprivation); Harris v. Coweta County, 21 F.3d 388, 392 (11th Cir.1994)
(negligence is not a constitutional tort under section 1983). As such, claims of negligence are not
cognizable under Section 1983. Daniels v. Williams, 474 U.S. 327 (1986).
Accordingly, having found Officer Becker’s determination of probable cause reasonable
in light of the circumstances, the Court concludes that Officer Becker is entitled to qualified
immunity and Count I, as it relates to Officer Becker, must be dismissed.
B. Count I: Section 1983 Claim Against the City of Port St. Lucie
Because the claim against Officer Becker under § 1983 is barred by qualified immunity,
Plaintiffs’ claim against the City of Port St. Lucie necessarily fails. Additionally, however, even
assuming a valid claim had been asserted against Officer Becker, Plaintiffs failed to allege a valid
§ 1983 claim against the City.
While municipalities and other local government entities are included among those
persons to whom Section 1983 applies, such entities may not be held liable on a respondeat
superior theory. Board of County Comm'r v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137
L.Ed.2d 626 (1997). The municipality itself must have caused the constitutional violation at
issue. Skop v. City of Atlanta, GA, 485 F.3d 1130, 1145 (11th Cir.2007). Thus, Plaintiffs can
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only succeed on their Section 1983 claim against the City of Port St. Lucie by showing that their
injuries were the result of an unwritten unlawful “policy or custom” of the Sheriff's Office.
Monell v. Dep't of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
“An act performed pursuant to a ‘custom’ that has not been formally approved by an
appropriate decisionmaker may fairly subject a municipality to liability on the theory that the
relevant practice is so wide-spread as to have the force of law.” Brown, 520 U.S. at 404. The
custom must be “so well settled and wide-spread that the policymaking officials of the
municipality can be said to have either actual or constructive knowledge1 of it yet did nothing to
end the practice.” Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.1989); Wakefield v. City
of Pembroke Pines, 269 Fed. App'x. 936, 939, (11th Cir.2008); see also Spell v. McDaniel, 824
F.2d 1380, 1386–88 (4th Cir.), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765
(1988). Moreover, the custom must have been the cause of and the moving force behind the
deprivation of constitutional rights. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 819–20,
105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 694–95; Kibbe v. City of Springfield,
777 F.2d 801, 809–10 (1st Cir.1985); see also City of Canton, Ohio v. Harris, 489 U.S. 378,
390–91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Normally, random acts or isolated incidents
are insufficient. Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir.1994).
Plaintiffs have failed to allege that the purported constitutional violation was the result of
a custom or practice of the Port St. Lucie Police Department. Plaintiffs’ claim against the City is
based on an untenable respondeat superior theory for municipal liability under Section 1983. As
such, Plaintiffs cannot sustain a Section 1983 claim against the City of Port St. Lucie.
Accordingly, Count I must be dismissed as it relates to the City of Port St. Lucie.
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C. Counts II - VI: Remaining Claims
With the dismissal of the federal claim against both Officer Becker and the City of Port
St. Lucie, the Court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over
the remaining state law claims. (“The district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which
it has original jurisdiction.”) 28 U.S.C. 1367(c)(3).
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
(1)
Defendants’ Motion to Dismiss (DE 9) COUNT I as it relates to Officer Becker is
GRANTED. COUNT I is DISMISSED WITH PREJUDICE as to Defendant
Officer Becker.
(2)
Defendants Motion to Dismiss (DE 9) COUNT I as it relates to City of Port St.
Lucie is GRANTED. COUNT I is DISMISSED WITH PREJUDICE as to
Defendant City of Port St. Lucie.
(3)
COUNTS II, III, IV, V, and VI of Plaintiffs’ Complaint (DE 1) are DISMISSED
WITHOUT PREJUDICE. Having dismissed the federal action, the Court
declines to exercise its supplemental jurisdiction over these claims. Plaintiffs may
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bring these actions in a Florida state court of appropriate jurisdiction.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 29th day of March, 2017.
______________________________________
KENNETH A. MARRA
United States District Judge
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