K.S. v. Town Of Palm Beach Shores et al

Filing 61

ORDER granting 39 Defendant's Motion to Dismiss Count II. Signed by Judge Robin L. Rosenberg on 10/6/2017. (nkl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:17-CV-80357-ROSENBERG/HOPKINS
K.S.,
Plaintiff,
v.
TOWN OF PALM BEACH SHORES
and CHARLES HOEFFER,
Defendants.
/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COUNT II
THIS CAUSE is before the Court on Defendant, Town of Palm Beach Shores’, Motion
to Dismiss Count II of Plaintiff’s First Amended Complaint and Memorandum of Law in
Support [DE 39]. The Court has carefully considered Defendant’s Motion, Plaintiff’s
Memorandum of Law in Opposition thereto [DE 47], and Defendant’s Reply [DE 50], and is
otherwise fully advised in the premises. For the reasons set forth below, Defendant’s Motion is
GRANTED and Count II of Plaintiff’s First Amended Complaint [DE 31] is DISMISSED
WITHOUT PREJUDICE.
I.

INTRODUCTION

This action arises out of two alleged incidents of sexual assault committed against
Plaintiff by Defendant Charles Hoeffer while he was employed as a police officer with the Town
of Palm Beach Shores Police Department. In her First Amended Complaint, Plaintiff asserts
claims against Defendant Hoeffer for violation of her civil rights, battery, assault, and intentional
infliction of emotional distress, and against Defendant Town of Palm Beach Shores for violation
of her civil rights and negligent hiring, supervision, retention, and training. Only one of these

claims is at issue for purposes of the Motion presently before the Court: Plaintiff’s claim against
Defendant Town of Palm Beach Shores for violation of her civil rights pursuant to 42 U.S.C.
§ 1983, asserted in Count II of Plaintiff’s First Amended Complaint.
Defendant Town of Palm Beach Shores argues that this claim must be dismissed because
Plaintiff has not sufficiently alleged (1) that Defendant Hoeffer was acting under color of state
law at the time of the alleged incidents and (2) that Defendant Town of Palm Beach Shores
exhibited deliberate indifference in failing to train its police officers not to commit sexual
assaults. The Court concludes that Plaintiff has not alleged sufficient facts to establish that
Defendant Hoeffer was acting under color of state law at the time of the alleged incidents. For
that reason, Count II of Plaintiff’s First Amended Complaint must be dismissed. Having reached
that conclusion, the Court does not address Defendant’s alternate argument concerning the
sufficiency of Plaintiff’s allegations of deliberate indifference and failure to train. 1
II.

BACKGROUND 2

Defendant Hoeffer was employed as a police officer with the Town of Palm Beach
Shores Police Department from 2008 to 2016. DE 31, First Amended Complaint ¶ 7. The Town
of Palm Beach Shores Police Department follows a “community policing philosophy” with a
focus on “excellent community involvement and support.” Id. ¶ 41. Officers are encouraged to
interact with residents, get to know them, and provide a friendly face. Id. ¶ 42. It is common for
officers to engage in friendly conversation with residents while they walk their dogs, exercise, or
ride bicycles around the Town. Id. ¶ 43.
1

While the Court notes that Plaintiff’s First Amended Complaint sets forth a number of allegations relevant to
deliberate indifference and failure to train, the Court does not include those allegations in this Order because it does
not reach those issues.
2
The background facts set forth herein are drawn from Plaintiff’s First Amended Complaint. For purposes of the
Motion presently before it, the Court views the First Amended Complaint in the light most favorable to Plaintiff and
accepts all of Plaintiff’s well-pleaded facts as true. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066
(11th Cir. 2007) (citing St. Joseph’s Hosp. v. Hospital Corp. of America, 795 F.2d at 954 (11th Cir. 1986)).

2

Plaintiff, who is legally blind, first met Defendant Hoeffer in October 2013 when she and
her fiancée were preparing to take a walk around the Town. Id. ¶¶ 3, 52. As Plaintiff was
speaking to another officer, Defendant Hoeffer approached and joined the conversation. Id.
Whenever Plaintiff took walks around the Town after that initial meeting, Defendant Hoeffer—
who asked Plaintiff to call him “Charlie”—often engaged her in conversations. Id. ¶¶ 53–54.
Shortly after she first met Defendant Hoeffer in October 2013, Plaintiff took her dog for a
walk around the Town, during which she lost the dog’s jacket. Id. ¶¶ 52, 54. Plaintiff reported
the lost jacket to the Town of Palm Beach Shores Police Department and asked that she be called
if the jacket were recovered. Id. A couple of hours later, Defendant Hoeffer called Plaintiff, told
her that the jacket had been found, and offered to bring the jacket to her home. Id. ¶ 55. Plaintiff
wanted to pick up the jacket at the Town of Palm Beach Shores Police Department, but
Defendant Hoeffer demanded Plaintiff’s address and insisted on bringing the jacket to her home,
which he did. Id. ¶ 55.
On or about March 5, 2014 3—about five months after Plaintiff and Defendant Hoeffer
first met—Defendant Hoeffer called Plaintiff, who had just exited the shower. Id. ¶ 56.
Defendant Hoeffer questioned Plaintiff about her showers, asking: “Why are you taking such
long showers? What, do you masturbate in there?” Id. Hours later, Defendant Hoeffer called
Plaintiff again and told her that he was on his way to her house, was already in her
neighborhood, and was about to arrive at her door. Id. ¶ 57. Without permission or an invitation
from Plaintiff, Defendant Hoeffer had been granted access to Plaintiff’s neighborhood—entrance

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It is unclear precisely when Defendant Hoeffer returned the lost dog jacket to Plaintiff, as Plaintiff alleges only that
it occurred “[s]hortly after” she and Defendant Hoeffer first met in October 2013. See DE 31, First Amended
Complaint ¶¶ 52, 54. However, Plaintiff appears to allege that Defendant Hoeffer returned the jacket at some point
prior to March 5, 2014. In other words, the return of the jacket is distinct from the incident that allegedly occurred
on March 5, 2014.

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to which was restricted by a guarded security gate—because he was wearing his police uniform
and driving a marked police vehicle. Id. ¶¶ 57–58. When he arrived at her house, Defendant
Hoeffer knocked on Plaintiff’s front door. Id. ¶ 57.
Defendant Hoeffer then “invited himself in [Plaintiff’s] home, pushed his police issued
firearm into [her] body,” exposed his penis, and demanded that Plaintiff perform oral sex on him.
Id. ¶ 59. Defendant Hoeffer grabbed Plaintiff’s hands and attempted to place them on his penis,
while Plaintiff “loudly and unequivocally” resisted. Id. Defendant Hoeffer became more
aggressive, grabbed Plaintiff by the legs, rubbed her left leg against his police issued firearm “as
a show of force and intimidation,” and vaginally penetrated Plaintiff. Id. ¶ 60. During this
assault, Defendant Hoeffer made a number of sexual comments to Plaintiff. Id. ¶ 61. Afterward,
Defendant Hoeffer used Plaintiff’s sink to clean himself off and left her home without another
word. Id. ¶ 62.
On or about April 11, 2014, Defendant Hoeffer called Plaintiff’s cell phone. Id. ¶ 63.
Believing the call was from her fiancée, with whom she had been fighting, Plaintiff answered. Id.
Defendant Hoeffer heard Plaintiff crying and said “I wish I was there. I could give you a hug.”
Id. Defendant Hoeffer then insisted that he come to Plaintiff’s home to comfort her, but Plaintiff
told him that he was not welcome in her home. Id. Minutes later, Defendant Hoeffer arrived at
Plaintiff’s home and “commit[ed] another sexual battery against [her] by vaginally penetrating
her.” Id. ¶ 64.
III.

LEGAL STANDARD

To adequately plead a claim for relief, Rule 8(a)(2) requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule
12(b)(6), a motion to dismiss should be granted only if the plaintiff is unable to articulate

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“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). When
determining whether a claim has facial plausibility, “a court must view a complaint in the light
most favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as true.” Am.
United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir. 2007).
However, the court need not take allegations as true if they are merely “threadbare
recitals of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556
U.S. at 663. “Mere labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do, and a plaintiff cannot rely on naked assertions devoid of further factual
enhancement.” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). “[I]f allegations are
indeed more conclusory than factual, then the court does not have to assume their truth.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). In sum, “[t]he plausibility
standard ‘calls for enough fact to raise a reasonable expectation that discovery will reveal
evidence’ of the defendant’s liability.” Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th
Cir. 2013) (quoting Twombly, 550 U.S. at 556).
IV.

DISCUSSION

“A successful section 1983 action requires that the plaintiff show she was deprived of a
federal right by a person acting under color of state law.” Almand v. DeKalb Cty., Ga., 103 F.3d
1510, 1513 (11th Cir. 1997) (citing Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)). “A
person acts under color of state law when he acts with authority possessed by virtue of his
employment with the state.” Id. (citing Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522

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(11th Cir. 1995)). However, “not all acts by state employees are acts under color of law. The
dispositive issue is whether the official was acting pursuant to the power he/she possessed by
state authority or acting only as a private individual.” Id. (internal quotation marks and citations
omitted).
“[U]under certain circumstances, a rape of a person by a police officer or other state actor
could violate the constitution.” Id. (citing Parker v Williams, 862 F.2d 1471 (11th Cir. 1989)). In
such cases, a state employee acts under color of law when he uses his authority to create the
opportunity for or to facilitate a sexual assault. See Griffin v. City of Opa-Locka, 261 F.3d 1295,
1305 (11th Cir. 2001). On the other hand,
where the performance of a state actor’s official duties merely facilitated the
meeting of or development of a relationship between the state actor and another
person; and the state actor later, on his own time and wholly independent of his
official duties, commits an assault or other constitutional tort against that
person . . . the law is clear that the state actor is not acting under color of law.
Id. at 1306 (citing Almand, 103 F.3d at 1514); see also id. at n.12 (“Although subtle, we again
reiterate the critical distinction in the color of law analysis between those cases where a state
actor directly uses his official authority to create the opportunity to sexually assault a victim and
those cases where a state actor merely uses his authority to develop or facilitate a relationship of
trust with a victim, even though that relationship in some attenuated sense serves as a but for
cause of a later sexual assault).
For example, in Almand, the Eleventh Circuit Court of Appeals concluded that the
defendant police officer was not acting under color of law when he raped the plaintiff, with
whom he had become acquainted through his official duties, at her home. See 103 F.3d at 1514.
On the day of the rape, the defendant initially gained access to the plaintiff’s home on the
pretense of discussing police business—the progress of an investigation into the rape of the
plaintiff’s daughter. See id. When the defendant made sexual advances toward the plaintiff, she
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demanded that he leave her apartment. Id. The defendant complied and the plaintiff closed the
front door behind him. Id. The defendant then forced open the front door and raped the plaintiff
inside her apartment. Id.
The court noted that, while the defendant was not in uniform and was off-duty at the
time, his initial entry into the plaintiff’s apartment probably occurred under color of law because
he gained access by virtue of his role as a police officer and his professed intention to discuss
police business. Id. at 1514–15 & n.10. However, when the defendant forcibly reentered the
plaintiff’s apartment after having been directed to leave, “he was no different from any other
ruffian.” Id. at 1515. As the court explained,
[the defendant’s] act of breaking into the apartment and, by force, raping [the
plaintiff] was a private act not accomplished because of power possessed by
virtue of state law and made possible only because the wrongdoer [was] clothed
with the authority of state law. Considering that [the defendant] gained entry to
the apartment by forcibly breaking in, any thug or burglar could have committed
the same violent acts. Once [the defendant] resorted to sheer force to break, to
enter, and to rape, his status as a police officer had no bearing on his wicked
behavior.
Id. (internal quotation marks and citations omitted). The court therefore concluded that the
defendant was not acting under color of state law when he raped the plaintiff; his conduct was
instead the act of a private citizen and, as such, did not violate the Constitution. Id.
By contrast, in Griffin, the Eleventh Circuit Court of Appeals concluded that the
defendant, a city manager, was acting under color of law when he raped the plaintiff, a city
employee. See 261 F.3d at 1304–05. In reaching that conclusion, the court relied on the
following facts: The rape occurred following a Rotary Club meeting, which was not an official
function, but which city employees were expected to attend. Id. at 1304. After learning that the
plaintiff was having car trouble and had arranged for the police chief to drive her home, the
defendant invoked his authority as city manager to create an opportunity to be alone with the

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plaintiff, to drive her home, and to rape her. Id. The defendant told the plaintiff that he would
drive her home and that she should inform the police chief of that fact; the defendant himself
also instructed the police chief that he would drive the plaintiff home and that the situation had
been taken care of. Id. The defendant used his authority to permit the plaintiff to park her car
inside the police department and told her that he would arrange for the city to fix it. Id. While
driving to the plaintiff’s home, the plaintiff and the defendant discussed her work for the city,
and the defendant attempted to dissuade her from leaving her job. Id. When they arrived at the
plaintiff’s home, the defendant insisted on helping the plaintiff with equipment she had used for
a musical performance during the Rotary Club meeting. Id. Inside her apartment, the defendant
began making sexual advances; when the plaintiff resisted, the defendant reminded her of his
authority. Id. The defendant then raped the plaintiff. Id.
While the court explained that these facts were sufficient on their own to conclude that
the defendant was acting under color of state law at the time of the rape, the court also noted that
it was viewing these facts in light of a persistent pattern of the defendant’s abuse of authority and
harassment of the plaintiff from the day the defendant began his employment as city manager in
June 1995 until the plaintiff left her job with the city toward the end of that year. Id. at 1305. The
court concluded that the defendant’s official interactions with the plaintiff as her boss during and
after work hours, his continual sexual harassment of her during those interactions, and the
ultimate rape constituted an indivisible, ongoing series of events. Id. “[W]ithin this context of
[the defendant’s] continual exploitation of and leverage of his authority over [the plaintiff],”
the court found “a sufficient nexus between his duties and obligations as City Manager and [the
plaintiff’s] boss and the abuse of that authority to facilitate his harassment and ultimate sexual
assault of her.” Id.

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In the instant case, the Court concludes that Plaintiff has not alleged sufficient facts to
establish that Defendant Hoeffer was acting under color of state law during either of the two
alleged incidents of sexual assault. Plaintiff’s allegations may establish that Defendant Hoeffer’s
role as a police officer facilitated the development of a relationship with Plaintiff. For example,
Defendant Hoeffer was expected to establish a friendly relationship with all Town residents in
his role as a police officer and, consistent with that expectation, Defendant Hoeffer often
engaged Plaintiff in conversation as she walked around the Town. In addition, Defendant
Hoeffer visited Plaintiff at her home in the course of official police business when he returned
the dog jacket that she had reported as lost. However, Plaintiff’s allegations do not establish that
Defendant Hoeffer’s role as a police officer created the opportunity for either alleged incident of
sexual assault to occur. This is a critical distinction. See Griffin, 261 F.3d at 1306 & n.12.
With respect to the first incident, which occurred on or about March 5, 2014, 4 Plaintiff
alleges that Defendant Hoeffer gained access to her neighborhood through a guarded security
gate because he was in uniform and was driving a marked police vehicle. However, Plaintiff
does not allege that she allowed Defendant Hoeffer into her home because he was in uniform and
driving a marked police vehicle. Nor does Plaintiff allege that she allowed him into her home on
the pretense of discussing official police business. (Given the alleged content of the two
telephone calls immediately preceding Defendant Hoeffer’s arrival at Plaintiff’s home, it does
not appear that Defendant Hoeffer attempted any such pretense.) In fact, there is no allegation
that Plaintiff allowed Defendant Hoeffer into her home at all. Plaintiff specifically alleges that
Defendant Hoeffer knocked on Plaintiff’s front door, then “invited himself” into her home. See
4

The Court again notes that this incident is distinct from the time when Defendant Hoeffer returned the lost dog
jacket to Plaintiff, which occurred “[s]hortly after” she and Defendant Hoeffer first met in October 2013. See DE 31,
First Amended Complaint ¶¶ 52, 54. The Court also notes the absence of allegations about any other official police
business to which Defendant Hoeffer’s visit to Plaintiff’s home on March 5, 2014 may have related.

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DE 31, First Amended Complaint ¶¶ 57, 59. There is no allegation, for example, that Plaintiff
saw Defendant Hoeffer arrive and, recognizing him as a police officer, opened her door and
allowed him inside. 5
Without additional facts concerning the circumstances under which Defendant Hoeffer
entered Plaintiff’s home, Plaintiff’s allegations appear more analogous to the assault in Almand
than to that in Griffin. While the facts alleged in the instant case are certainly distinguishable
from those surrounding the assault in Almand, they are similar to the extent that Defendant
Hoeffer does not appear to have used his official authority to persuade Plaintiff to allow him into
her home and to create an opportunity for sexual assault. As alleged, Plaintiff’s First Amended
Complaint contains neither the type of facts immediately surrounding the assault on which the
Griffin court relied to find that the defendant was acting under color of state law, nor the history
of persistent abuse and harassment that provided a context for those facts. Accordingly, the
allegations concerning this incident fail to state a plausible claim. The Court is not persuaded
otherwise by Doe v. Mann, No. 605CV259-ORL-31DAB, 2006 WL 3060036, at *2 (M.D. Fla.
Oct. 26, 2006), another case on which Plaintiff relies, which is not binding on this Court and
relies on facts distinguishable from those alleged in the instant case. Finally, the allegation that
Defendant Hoeffer used a police issued firearm during the incident does not require the Court to
conclude that he was acting under color of state law. See Myers v. Bowman, 713 F.3d 1319, 1330
(11th Cir. 2013) (quoting Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1267 (11th Cir.
2012)).

5

The Court notes that Plaintiff alleges she is “legally blind.” See DE 31, First Amended Complaint ¶ 3. However,
Plaintiff does not allege whether she is completely without vision. To the extent that she is, the Court notes the
absence of any allegation that, for example, Plaintiff heard Defendant Hoeffer knock on her door, inquired about the
visitor’s identity, and, upon learning that it was a police officer, opened her door and allowed him inside.

10

With respect to the second incident, which occurred on or about April 11, 2014,
Plaintiff’s First Amended Complaint is devoid of any allegations concerning whether Defendant
Hoeffer was in uniform, driving a marked police vehicle, or on duty at the time. Nor does
Plaintiff allege how Defendant Hoeffer gained access to Plaintiff’s home, creating the
opportunity to sexually assault her. Once again, given the alleged content of the telephone call
immediately preceding Defendant Hoeffer’s arrival, it appears that Plaintiff did not allow him
into her home on the pretense of discussing official police business. Plaintiff’s allegations that
Defendant Hoeffer insisted on coming to her home and that Plaintiff told him he was not
welcome suggest that Plaintiff did not give Defendant Hoeffer permission to enter her home at
all, let alone because of his role as a police officer. Without additional facts concerning the
circumstances under which Defendant Hoeffer entered Plaintiff’s home, Plaintiff’s allegations
appear more analogous to the assault in Almand than to that in Griffin, at least to the extent that
Defendant Hoeffer does not appear to have used his official authority to persuade Plaintiff to
allow him into her home and to create an opportunity for sexual assault. The allegations
concerning this incident therefore fail to state a plausible claim.
V.

CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1.

Defendant, Town of Palm Beach Shores’, Motion to Dismiss Count II of
Plaintiff’s First Amended Complaint and Memorandum of Law in Support [DE
39] is GRANTED.

2.

Count II of Plaintiff’s First Amended Complaint and Jury Trial Demand [DE 31]
is DISMISSED WITHOUT PREJUDICE.

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3.

Plaintiff may file a second amended complaint by no later than October 13, 2017.
Any response thereto must be filed by no later than October 20, 2017.

DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 6th day of October,
2017.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

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