Phillips v. City of West Palm Beach
Filing
83
ORDER granting in part and denying in part 45 Motion to Dismiss; granting in part and denying in part 58 Motion to Dismiss; granting in part and denying in part 64 Motion to Dismiss. The Amended Complaint is dismissed without prejudice. (Amended Complaint due by 8/9/2018) Signed by Judge Beth Bloom on 7/25/2018. See attached document for full details. (kpe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-80172-BLOOM/Brannon
ELROY A. PHILLIPS,
Plaintiff,
v.
CITY OF WEST PALM BEACH, et al.,
Defendants.
________________________________________/
ORDER
THIS CAUSE is before the Court upon the City of West Palm Beach’s (“City”) Motion
to Dismiss Plaintiff’s Amended Complaint with Prejudice, ECF No. [45] (“City’s Motion to
Dismiss”); Brian Kapper and Bradley Emmons’s (the “Officers”) Motion to Dismiss the
Amended Complaint, ECF No. [58] (“Officers’ Motion to Dismiss”); and Defendant Michael
Ghent’s (“Ghent”) Motion to Dismiss the Amended Complaint, ECF No. [64] (“Ghent’s Motion
to Dismiss”). For the reasons explained below, all three Motions are granted in part and denied
in part.
I.
BACKGROUND
Plaintiff, a pro se litigant, filed the original complaint on February 14, 2018. See ECF
No. [1]. The original complaint consisted of five counts only against the City for “violation of
the Plaintiff’s Fourth, Fifth, Sixth and Eight [sic] Amendment rights.” Id. at ¶ 5. On April 5,
2018, the City moved to dismiss Plaintiff’s original complaint. See ECF No. [16]. Plaintiff
thereafter filed a Motion for Leave to Amend Complaint to Add Additional Parties, which was
granted. See ECF Nos. [27] and [28]. Upon filing the Amended Complaint, Plaintiff named
Case No. 18-cv-80172-BLOOM/Brannon
three more Defendants in both their official and individual capacities: former West Palm Beach
Police Officer Michael Ghent (“Ghent”) and current officers Brian Kapper (“Kapper”) and
Bradley Emmons (“Emmons”). ECF No. [33] at ¶¶ 6-7.
The Amended Complaint raises claims relating to Plaintiff’s arrest in 2001 and
conviction for two crack-cocaine related charges in 2003. Id. at ¶¶ 12, 15. In total, Plaintiff was
convicted on five different counts in the underlying criminal proceedings: (1) Count 1:
conspiracy to sell less than five grams of crack cocaine, (2) Count 9: distribution of crack
cocaine, (3) Count 11: simple possession of powder cocaine, (4) Count 14: felon in possession of
.38-caliber ammunition, and (5) Count 17: felon in possession of ammunition. See ECF No. [67]
at 39. The allegations in the Amended Complaint only pertain to Plaintiff’s convictions for
Count 1 and Count 9, which the Eleventh Circuit vacated in 2017. See ECF No. [33] at ¶ 26. As
it relates to his conviction for Counts 1 and 9, Plaintiff alleges that Ghent and the Officers
procured the issuance of an arrest warrant from a magistrate judge based on the false claim that
Ghent witnessed Plaintiff selling crack-cocaine in 2001. Id. at ¶12. Further, Plaintiff alleges that
Ghent and the Officers provided what they knew to be false information to federal law
enforcement and to the district court that “Ghent had witnessed Plaintiff distribute crack cocaine
and conspired to distribute crack cocaine.” Id. at ¶ 10. All of these actions were taken to
establish false probable cause to arrest Plaintiff for crimes he states he did not commit. Id. at
¶ 11. During the trial in federal court, Ghent testified before the jury and stated that he witnessed
Plaintiff sell crack-cocaine.
Id. at ¶ 14.
This testimony led to Plaintiff’s conviction on
December 20, 2002 and a resulting sentence of thirty years in federal prison on August 19, 2003
for the five aforementioned counts. Id. at ¶ 15. Plaintiff alleges that the Officers “negligently”
failed to expose Ghent’s testimony as false during the trial. Id. at ¶ 16. Plaintiff also alleges that
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the Officers falsified documents and lied to the United States Attorney’s Office (“USAO”) to
hide their participation in the framing and maintenance of Plaintiff’s wrongful conviction. Id. at
¶ 17.
With this background, Plaintiff’s Amended Complaint consists of five counts. Count I
appears to be a malicious prosecution claim under either state law or 42 U.S.C. § 1983
(“§ 1983”) against Officers Ghent, Kapper, and Emmons in their individual capacities. Id. at
¶ 21. Count II is a malicious prosecution claim under § 1983 against the City and the West Palm
Beach Police Department (“WPBPD”). Id. at ¶ 31. Count III is a § 1983 false imprisonment
claim against Officers Ghent, Kapper, and Emmons individually. Id. at ¶ 43. Count IV is a §
1983 false imprisonment claim against the City and the WPBPD. Id. at ¶ 50. Count V appears
to be a claim for a violation of Plaintiff’s Sixth Amendment right to counsel. Id. at ¶ 60-61.
The City filed its Motion to Dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). See ECF No. [45]. The City also seeks dismissal of the claims
against the WPBPD, arguing it is not a legal entity, as well as dismissal of the claims against
Officers Ghent, Kapper and Emmons in their official capacity, arguing that it is duplicative of
Plaintiff’s claims against the City. Id. at 4. In his Response,1 Plaintiff conceded three points: (1)
the WPBPD is not a legal entity and should be dismissed from the action, (2) his lawsuit against
the officers in their official capacities is simply a suit against the City and is thus unnecessary,
and (3) Count IV should be voluntarily dismissed. See ECF No. [47]. The City thereafter filed
its Reply. See ECF No. [54]. The Motion is now ripe for review. In light of Plaintiff’s three
concessions, the Court addresses those matters that remain in dispute.
1
Plaintiff mistakenly labeled his Response as a “Reply.”
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The Officers filed their own Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). See ECF No. [58] at 1. The Officers seek dismissal of both Counts I and III.
Id. They argue that Count III requires dismissal pursuant to qualified immunity while Count I
must be dismissed because Plaintiff failed to state a claim for malicious prosecution. Id. at 4, 12.
Plaintiff’s Response concedes that Count III should be voluntarily dismissed and clarifies that
Count I is a Florida common law claim for malicious prosecution. See ECF No. [67] at 4, 9. In
light of these concessions, the Court addresses those matters in dispute.
Similar to the Officers Motion, Ghent’s Motion to Dismiss seeks to dismiss Counts I and
III, asserting that Count I is barred as there existed probable cause for Plaintiff’s arrest. See
ECF No. [64] at 6. He also argued that Count III requires dismissal because of the statute of
limitations, the existence of probable cause, and because Plaintiff was arrested pursuant to legal
process. Id. at 3-6. In his Response, Plaintiff agrees to voluntarily dismiss Count III against
Ghent for false imprisonment. See ECF No. [82] at 1. As to malicious prosecution, Plaintiff
argues that his claim against Ghent is a § 1983 claim, which contradicts the indications from his
Response to the Officer’s Motion to Dismiss. Id. at 5; See ECF No. [67] at 9. Further, Plaintiff
argues that Ghent misconstrued the Eleventh Circuit’s opinion from the underlying criminal
proceeding in order to establish probable cause and bar Count I. See ECF No. [82] at 8. The
Court will address the dispute regarding Count I in light of the argument asserted by Ghent.
II.
LEGAL STANDARD
a. Motion to Dismiss
For civil actions, a pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a complaint “does
not need detailed factual allegations,” it must provide “more than labels and conclusions, and a
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Case No. 18-cv-80172-BLOOM/Brannon
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557
(alteration in original)).
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the
plaintiff’s allegations as true and evaluate all possible inferences derived from those facts in
favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration
Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the
factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful
conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).
b. Pro se Litigants
Courts must liberally construe all pleadings submitted by a pro se litigant. See Jarzynka
v. St. Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1264 (S.D. Fla 2004). Notwithstanding such
leniency, courts cannot serve as de facto counsel for a party and cannot rewrite a deficient
pleading for the sake of sustaining an action. Id. (quoting GJR Investments Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)). That is, “[t]he Court cannot simply ‘fill
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in the blanks’ to infer a claim.” Grady v. Georgia Dep’t of Corr., No. CV409-103, 2010 WL
322881, at *2 (S.D. Ga. Jan. 27, 2010). In determining whether a pro se litigant has stated a
claim, “the court ought not penalize the litigant for linguistic imprecision in the more plausible
allegations” while keeping in mind that “wildly implausible allegations in the complaint should
not be taken to be true.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).
III.
DISCUSSION
The City, Officers, and Ghent raise several bases for dismissal of the Amended
Complaint, including (1) that it is a shot-gun pleading, (2) it fails to state a claim for municipal
liability, (3) there exists probable cause, (4) the statute of limitations has expired, and (5) the
action is barred by the Heck Doctrine. In addition, the City requests that the Court take judicial
notice of certain public records in the underlying criminal case and on appellate review. The
Court will address each argument in turn.
a. The Amended Complaint is a Shot-gun Pleading
Both the City and the Officers seek to dismiss the Amended Complaint as an
impermissible shot-gun pleading. See ECF No. [45] at 5; ECF No. [58] at 4. The Eleventh
Circuit has identified four types of pleading deficiencies that are considered a shot-gun pleading,
the most common of which applies directly to the Amended Complaint here. See Weiland v.
Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015); McNamara v.
Florida Power & Light Co., No. 17-CV-81181, 2018 WL 582537, at *2 (S.D. Fla. Jan. 29,
2018). This iteration occurs when there are “multiple counts, where each count adopts the
allegations of all preceding counts, causing each successive count to carry all that came before
and the last count to be a combination of the entire complaint.” Weiland, 792 F.3d at 1321; see
also Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 205 F.3d 1293, 1295 (11th
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Cir. 2002) (describing the quintessential shot-gun pleading as containing “several counts, each
one incorporating by reference the allegations of its predecessors, leading to a situation where
most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal
conclusions”).
Plaintiff argues that “there is no technical form of pleading required,” ECF No. [47] at 4.
However, a review of the Amended Complaint reveals it is a quintessential shot-gun pleading.
While Count I properly realleges the general allegations in paragraphs 1 through 19, ECF No.
[33] at ¶ 20, the first paragraph of every successive count incorporates all preceding allegations,
including those from other unrelated counts. For example, Count II “realleges and reavers
paragraphs 1 thru 19 and 20 thru 30,” Count III “realleges and reavers paragraphs 1 thru 19 and
21 thru 30, 31 thru 41 as fully restated herein,” and Count IV “realleges and reavers paragraphs 1
thru 19 and 20 thru 48 as if fully restated herein.” Id. Count V takes a different approach, but
effectively does the same by alleging: “The Defendant Officers Ghent, Kapper, Emmons, and
Unknown Officers, instituted and had carried out, the false arrest, imprisonment, malicious
prosecution and deprivation of Plaintiff’s rights as alleged in Count I-IV above.” Id. at ¶ 59.
Plaintiff’s approach of incorporating all successive allegations into each count leads to a
situation in which claims against the City include extraneous allegations against the officers and
vice versa. This shot-gun approach requires dismissal of the Amended Complaint.
Although a shot-gun pleading is subject to dismissal, dismissal with prejudice for a
pleading defect usually calls for at least one opportunity to amend to correct such a defect. See
Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239 (11th Cir. 2000); Isbrandtsen Marine
Servs., Inc. v. M/V INAGUA Tania, 93 F.3d 728, 734 (11th Cir. 1996); Bank v. Pitt, 928 F.3d
1108 1112 (11th Cir. 1991) (“Where a more carefully drafted complaint might state a claim, a
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plaintiff must be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice.”). Although the Court has already granted Plaintiff leave to
amend once so that he could add Officers Ghent, Emmons and Kapper as Defendants, the Court
is mindful that Rule 15(a)(2) requires that courts freely give leave to amend “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). When considering whether leave should be given, a court
considers factors such as “undue delay, bad faith, or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party … and
futility of amendment.” Perez v. Wells Fargo, N.A., 774 F.3d 1329, 1340 (11th Cir. 2014)
(quoting Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232,
1241 (11th Cir. 2009)). Although the Amended Complaint constitutes a shot-gun pleading,
dismissal with prejudice is not warranted at this juncture. The Court has not ruled previously on
the sufficiency of the original Complaint and it would not be futile to allow Plaintiff one
additional opportunity to correct the pleading deficiency.
b. Judicial Notice
Before addressing the substance of Defendants’ remaining arguments, the Court
considers the City’s request to take judicial notice of findings by the “reviewing appellate court
upholding the arrest of Plaintiff, the search of Plaintiff’s residence, as well as three (3) of his
criminal convictions.” ECF No. [45] at 6. Plaintiff also attaches public records to his Response
to the City and the Officers’ Motions to Dismiss in an apparent request for judicial notice. See
ECF No. [67] at 11-84. A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009). Nevertheless, when reviewing a motion to dismiss under Rule 12(b)(6), “a
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document outside the four corners of the complaint may still be considered if it is central to the
plaintiff’s claims and is undisputed in terms of authenticity.” Maxcess, Inc. v. Lucent Techs.,
Inc., 433 F.3d 1337, 1340 (11th Cir. 2005). The Eleventh Circuit has determined that a court may
take notice of public records when ruling on a motion to dismiss. See Lozman v. City of Riviera
Beach, 713 F.3d 1066, 1077 at n. 9 (11th Cir. 2013) (taking notice of state court documents for
purposes of a 12(b)(6) motion to dismiss regarding a § 1983 claim); see also Bryant v. Avado
Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999) (taking notice of public SEC records in
dismissal stage); Galstaldi v. Sunvest Communities USA, LLC, 637 F. Supp. 2d 1045, 1054 (S.D.
Fla. 2009) (taking notice of state court documents as public records at dismissal stage).
Here, the records at issue are authentic public records and are relevant to Plaintiff’s
claims, particularly in regard to the existence of probable cause barring the malicious prosecution
claim. To support the existence of probable cause and dismissal of this claim, the City requests
that the Court take notice of certain documents in Case No. 9:08-CV-81283-JAL consisting of
ECF No. [360] pages 1-113 (“District Court’s Omnibus Order”) and ECF No. [380], pages 2-15
(“Eleventh Circuit’s Opinion”) reported at Phillips v. United States of America, 849 F.3d 988,
995 (11th Cir. 2017). Plaintiff does not object to the Court’s consideration of such records in his
Response, so the Court will grant the City’s request and take judicial notice of the two
documents.
In turn, the Court interprets Plaintiff’s inclusion of Exhibit B to his Response to the
Officers’ Motion, consisting of ECF No. [281-1], pages 1-34 (“Factual Proffer”) in Case No.
9:08-CV-81283-JAL, as a request to take judicial notice of a public record. The Officers
referenced the Factual Proffer in support of their Reply to argue for the existence of probable
cause without any objection to the Court’s consideration of the public record. See ECF No. [70]
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at 2. Because the Factual Proffer is both authentic and relevant to Plaintiff’s claim, the Court
will also take judicial notice of the document. The Court, therefore, takes judicial notice of the
District Court’s Omnibus Order, the Eleventh Circuit’s Opinion, and the Factual Proffer.
c. Count I: Malicious Prosecution
In Count I, Plaintiff asserts a malicious prosecution claim against the Officers and Ghent.
See ECF No. [33] at 4. Plaintiff’s Response to the Officers’ Motion to Dismiss addresses the
elements of a Florida common law claim for malicious prosecution. ECF No. [67] at 9; See also
ECF No. [70] at 1. However, Plaintiff continually refers to Count I as a § 1983 malicious
prosecution claim in his Response to Ghent’s Motion to Dismiss. ECF No. [82] at 5. Although
the latter and former types of claims are inherently similar, they are still completely separate
causes of action that cannot be brought simultaneously in the same count. To state a § 1983
claim for malicious prosecution, Plaintiff must prove “(1) the elements of the common law tort
for malicious prosecution, and (2) a violation of his or her Fourth Amendment right to be free
from unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004);
Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003). Under Florida common law, six elements
must be established to support a claim for the tort of malicious prosecution:
(1) An original judicial proceeding against the present plaintiff was commenced
or continued; (2) the present defendant was the legal cause of 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 damages as a result of
the original proceeding.
Kingsland, 382 F.3d at 1234; see also Wood, 323 F.3d at 881. The Officers raise several
arguments in support of dismissal, including that (i) the officers were not the legal cause of the
original proceeding, (ii) probable cause existed based on Florida’s fellow officer rule,
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(iii) probable cause for Plaintiff’s June 8, 2001 arrest bars this claim, and (iv) Plaintiff has not
alleged facts supporting the finding of malice on the part of the Officers. See ECF No. [58] at
12-13; ECF No. [70] at 2. Ghent raises only one ground for dismissal based on probable cause,
which the Court rejects as explained below. See ECF No. [70] at 7. In order to state a valid
claim, Plaintiff must clearly establish what type of malicious prosecution claim he is bringing.
Although this Amended Complaint will be dismissed without prejudice as a shot-gun pleading,
the Court will address the remaining disputed arguments as to Count I to determine whether
Plaintiff can state a claim for malicious prosecution based on the common law elements.
i. Legal Cause
The Officers first assert that the malicious prosecution claim requires dismissal because
they were not the legal cause of the original proceeding. ECF No. [58] at 12. Police officers are
typically not the legal cause of a criminal proceeding if they were uninvolved in the decision to
prosecute, did not “improperly influence” the decision to prosecute, or did not conceal relevant
information from the prosecutor. See Eubanks v. Gerwen, 40 F.3d 1157, 1160 (11th Cir. 1994);
see also Williams v. Miami-Dade Police Dep’t., 297 F. App’x 941, 947 (11th Cir. 2008).
However, legal cause is established where the malicious prosecution claim is based upon officers
fabricating “false and misleading evidence” that is eventually presented to a prosecutor, in turn
influencing the decision to prosecute the accused. See Williams, 297 F. App’x at 947; see also
Blackshear v. City of Miami Beach, 799 F. Supp. 2d 1338, 1347 (S.D. Fla. 2011).
While the Amended Complaint states that “the original proceeding was commenced by
the United States Attorney’s Office,” Plaintiff has alleged sufficient facts to show that the
Officers were the legal cause of the proceeding. ECF No. [33] at ¶ 25. The Officers emphasize
that the Amended Complaint alleges they were only responsible for informing the prosecutors
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that “Ghent, was an eyewitness, which at best, amounts to hearsay.” ECF No. [58] at 12; ECF
No. [33] at ¶ 25.
Although this may be true, Plaintiff alleges that this information was
instrumental in improperly influencing the finding of probable cause for Plaintiff’s arrest
warrant. ECF No. [33] at ¶¶ 12, 21. Further, Plaintiff alleges the Officers provided “false and
fabricated information” with knowledge that it would lead to Plaintiff’s prosecution, explicitly
stating that they knew they were giving misleading evidence to a prosecutor that influenced the
decision to prosecute. Id. at ¶¶ 22, 28. As such, the Court finds that the Amended Complaint
sufficiently alleges that the Officers were the legal cause of the criminal proceedings.
ii. Fellow Officer Rule
Next, the Officers argue that Count I is barred under the fellow officer rule, which they
claim would have allowed the Officers to assume that probable cause existed based on Ghent’s
assertions. ECF No. [58] at 13. Based on the pleadings, however, the Court concludes that
Plaintiff has alleged sufficient facts in the Amended Complaint to show that there was no
probable cause regardless of the fellow officer rule.
Florida’s fellow officer rule arises from Florida Statute § 901.18, which states in part that
“a person commanded to aid a peace officer shall have the same authority to arrest as that peace
officer and shall not be civilly liable for any reasonable conduct in rendering assistance to that
officer.” Fla. Stat. § 901.18. As applied, “Florida’s ‘fellow officer rule’ states that, when an
arresting officer was absent for a significant portion of events giving rise to probable cause, the
arresting officer may rely upon his fellow officer’s judgment about probable cause.”
See
Williams, 297 F. App’x at 946; see also Sebastian v. Ortiz, No. 16-20501-CIV, 2017 WL
4382010, at *5 (S.D. Fla. Sept. 29, 2017) (finding the fellow officer rule to apply in both a
common law malicious prosecution claim and a § 1983 claim). To receive protection from the
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rule, however, there must be no evidence that the officer knew that the information relied upon is
false. See Williams, 297 F. App’x at 946.
In the Amended Complaint, Plaintiff repeatedly alleges that the Officers knew the
information obtained from Ghent regarding the allegedly fabricated meeting giving rise to
probable cause for the arrest warrant was false. See ECF No. [33] at ¶¶ 10, 11, 12, 19, 21, 22,
23. Further, by allegedly conveying this information to federal entities, it led directly to the
criminal proceedings asserted against Plaintiff. Id. at ¶ 22-23, 28. Taking all allegations and
inferences therefrom as true for purposes of the Motion to Dismiss, Plaintiff has sufficiently pled
Count I in a manner that does not afford the Officers the protection of Florida’s fellow officer
rule.
iii. Probable Cause
The Officers make another argument relating to the existence of probable cause, which
would preclude a cause of action for malicious prosecution if true. See ECF No. [58] at 13; See
Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010) (noting that the existence of
probable cause defeats a malicious prosecution claim); See also Wood, 323 F.3d at 882. In his
Response, Plaintiff attaches the Factual Proffer filed jointly by Plaintiff and the USAO to vacate
his criminal convictions for conspiracy to distribute crack cocaine and distribution of crack
cocaine. See ECF No. [67] at 27, 38-39. As the Officers note in their Reply, the Factual Proffer
reveals there was probable cause to arrest Plaintiff on June 8, 2001 which led to his conviction
for possession of powder cocaine. See id.; see also ECF No. [70] at 2; Phillips v. United States
of America, 849 F.3d 988, 995 (11th Cir. 2017).
Thus, the Officers’ argue that Plaintiff
established probable cause for his own arrest by the inclusion of the Factual Proffer.2 See ECF
2
Plaintiff requested an opportunity to file a Sur-Reply to the Officers’ Reply in Support of their Motion
to Dismiss, which was granted. See ECF No. [76]. In the Sur-Reply, Plaintiff points out that the Officers’
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No. [70] at 2. However, Plaintiff is not suing the Officers based upon this arrest or conviction for
possession of powder cocaine. In fact, the Amended Complaint does not allege that Plaintiff’s
conviction under Count 11 for possession of powder cocaine was ever challenged or vacated and
the Eleventh Circuit’s Order notes that any challenge as to Count 11 was not the subject of the
motion to vacate and had been abandoned. See Phillips, 849 F.3d at 991 (“The parties jointly
agreed that the conviction for Count 11 should remain.”). Instead, Plaintiff sues the Officers for
criminal convictions that are unrelated to the events and arrest leading to the conviction for
possession of powder cocaine in Count 11. Id.
In the context of a malicious prosecution action, “probable cause as to one charge will not
bar a malicious prosecution claim based on a second, distinct charge as to which probable cause
was lacking.” Elmore v. Fulton Cty. Sch. Dist., 605 F. App’x 906, 915 (11th Cir. 2015) (quoting
Holmes v. Vill. of Hoffman Est., 511 F.3d 673, 682-83 (7th Cir. 2007)); see also Uboh v. Reno,
141 F.3d 1000, 1005 (11th Cir. 1998). Rather than suing the Officers for his possession of
powder cocaine conviction, Plaintiff only sues them regarding his convictions for distribution of
crack cocaine (Count 9) and conspiracy to distribute crack cocaine (Count 1). See ECF No. [33]
at 18. The latter convictions allegedly occurred as a direct result of the fabricated transaction
with Ghent on April 6, 2001. The Amended Complaint is devoid of any malicious prosecution
characterization of the Factual Proffer, ECF No. [67] at 26-60, attached to Plaintiff’s Response was
misleading and false. In support of his argument, he attaches several witness affidavits, which is
inappropriate for more than one reason. First, unlike public records, the Court cannot consider affidavits
on a motion to dismiss. Further, Plaintiff’s attempt to raise new arguments by way of supporting
affidavits violates the spirit of a Sur-Reply. Local Rule 7.1(c) provides that a reply memorandum “shall
be strictly limited to rebuttal of matters raised in the memorandum in opposition without re-argument of
matters covered in the movant’s initial memorandum of law.” S.D. Fla. L.R. 7.1(c). “A reply
memorandum may not raise new arguments or evidence, particularly where the evidence was available
when the underlying motion was filed and the movant was aware (or should have been aware) of the
necessity of the evidence.” Intra-Lock Int’l, Inc. v. Choukron, No. 14-cv-80930, 2015 WL 1268278, at *1
(S.D. Fla. March 19, 2015)(quoting Baltzer v. Midland Credit Mgmt., Inc., No. 14-20140-CIV, 2014 WL
3845449, at *1 (S.D. Fla. Aug. 5, 2014)). To the extent that Plaintiff files affidavits containing new
arguments on a Sur-Reply, those arguments are improper and will not be considered.
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allegations referencing the June 8 arrest or conviction for possession of powder cocaine. Rather,
the Amended Complaint seeks to hold the Officers liable for their purported fabrication of
probable cause that led to the criminal convictions for distribution of crack cocaine and
conspiracy to distribute crack cocaine. For instance, Count I alleges that the Officers and Ghent
“effectuate[d] [Plaintiff’s] arrest, malicious prosecution, and conviction” by “providing knowing
false information and statements to federal law enforcement and the United States Federal Court,
to the extent that Ghent had witnessed Plaintiff distribute crack cocaine and conspired to
distribute crack cocaine.” Id. at ¶¶ 28, 10 (emphasis added); see also id. at ¶ 25. The purported
“false information” that the Officers were allegedly complicit in fabricating and disseminating
formed the basis for both the federal Criminal Complaint and the arrest warrant issued by the
magistrate judge on June 7, 2001. See ECF No. [67] at 29. Further, the convictions under
Counts 1 and 9 are the only proceedings that terminated in a bona fide manner, a necessary
element of a malicious prosecution claim. See id. at ¶ 26. Therefore, the Court rejects the
Officers’ use of an unrelated event and arrest to establish the existence of probable cause for
Count I of the Amended Complaint.
iv. Malice
The Officers also argue that any allegations concerning malice are merely conclusory and
draw attention to Count I’s incorporation of allegations that the Officers operated in a negligent,
rather than malicious manner. ECF No. [58] at 13. Based on the allegation of negligence, the
Officers point out that they are immune from suit for negligent acts undertaken in the course and
scope of employment. Id.; Fla. Stat. § 768.28. While it is true that the Officers are immune for
negligent acts, Count I sufficiently alleges the element of malice for a malicious prosecution
claim even though it incorporates an allegation of negligence.
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A plaintiff need not prove actual malice for malicious prosecution because legal malice is
sufficient. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1357 (Fla. 1994); Zargari v.
United States, 658 F. App’x 501, 510 (citing Alamo Rent-A-Car) (allowing a jury to infer malice
for the purpose of malicious prosecution). Malice can thus be inferred from “a lack of probable
cause, gross negligence, or great indifference to persons, property or the rights of others.” Alamo
Rent-A-Car, 632 So.2d at 1357; Adams v. Whitfield, 290 So.2d 49, 51 (Fla. 1974) (“Legal malice
may be inferred entirely from a lack of probable cause.”).
The Amended Complaint sufficiently alleges distinct facts that allow for an inference of
malice. For example, the allegation that the Officers’ actions were based on the fabrication of
probable cause is intrinsically connected to the inference of malice. See Adams, 290 So.2d at 51.
Further, the allegations in Count I, which center around “effectuat[ing] his arrest, malicious
prosecution, and conviction” under false pretenses, suggest an inherent indifference to Plaintiff’s
rights. See ECF No. [33] at ¶ 28. Although Plaintiff incorporated an allegation of negligence in
Count I, this does not negate other facts constituting legal malice for the purpose of pleading a
claim for malicious prosecution. Further, the allegation concerning negligent conduct does not
directly pertain to the malicious prosecution of Plaintiff or the commencement of proceedings
against him. ECF No. [33] at ¶ 16. Rather, it simply alleges that the Officers had the knowledge
and opportunity to alert the Court that the basis of Plaintiff’s criminal convictions were false, but
did not do so. Id. Because the allegations directly pertaining to the malicious prosecution claim
were sufficiently pled as malicious and not as negligent, a request for dismissal must be denied at
this juncture.
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v. Ghent’s Probable Cause
Ghent offers one additional ground for dismissal in his Motion to Dismiss. See ECF No.
[64] at 7. Ghent claims that because “justifiable probable cause was found as to other serious
crimes for which Plaintiff was convicted, Plaintiff’s claim for malicious prosecution” is barred.
Id. In support of this assertion, Ghent cites to Cottam v. Pelton, 5:16-cv-413-OC-30PRL, 207
WL 8751732, at *4 (M.D. Fla. Dec. 8, 2017), a case in which a police officer prevailed on
summary judgment in a § 1983 malicious prosecution claim based on the finding of probable
cause. See id. at *6. However, Cottam does not support Ghent’s probable cause argument.
In Cottam, an individual sued a police officer after being arrested for evading and eluding
the officer attempting to pull him over. Id. at *1-2. After being arrested, the offender was
released and the criminal charge was later dismissed. Id. at *1. In the subsequent civil action,
the officer successfully moved for summary judgment on all counts, including malicious
prosecution. Id. at *8. It was undisputed in Cottam that the officer had probable cause to arrest
and charge the plaintiff with fleeing and eluding an officer under Florida Statute § 316.1935(1)
and the same facts would have allowed his prosecution under subsection (2) of the same statute.
Id. at *7. Cottam, however, does not support Ghent’s suggestion that probable cause for one
crime equates to probable cause for all crimes.
In fact, Eleventh Circuit case law holds
otherwise. See Elmore, 605 F. App’x at 915 (quoting Holmes, 511 F.3d at 682-83) (“Probable
cause as to one charge will not bar a malicious prosecution claim based on a second, distinct
charge as to which probable cause was lacking.”); see also Uboh 141 F.3d at 1005.
Thus, Ghent’s Motion to Dismiss based upon the existence of probable cause is denied.
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d. Count II: § 1983 Malicious Prosecution
i. Failure to State Municipal Liability
In Count II, Plaintiff asserts a claim for malicious prosecution against the City. See ECF
No. [33] at 5. In doing so, the Amended Complaint seeks to establish the municipality’s liability
using two different statutory theories - direct liability under § 1983 and vicarious liability under
Florida Statute § 768.28. Id. at ¶ 40; ECF No. [47] at 5. These statutes, however, are separate
from one another and establish municipal liability in different ways. See Hufford v. Rodgers, 912
F.2d 1338, 1341 (11th Cir. 1990) (explaining that the state sovereign immunity statute does not
apply to § 1983 claims). Regardless of the theory of liability applied in Count II, the Court finds
that Plaintiff fails to state a claim for municipal liability under either § 1983 or § 768.28.
Starting with Plaintiff’s claim for malicious prosecution under § 1983, Plaintiff must
prove “(1) the elements of the common law tort for malicious prosecution, and (2) a violation of
his or her Fourth Amendment right to be free from unreasonable seizures.” Kingsland, 382 F.3d
at 1234; see also Wood, 323 F.3d at 881. However, establishing the Fourth Amendment and
common law elements do not, standing alone, establish that a municipality is liable.
In Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978), the
United States Supreme Court set forth the standard for holding a municipality liable pursuant to
§ 1983. The Supreme Court explained that a municipality will not be held liable “solely because
it employs a tortfeasor” for the purposes of a § 1983 claim. Id. at 691; Bd. of Cty. Comm’r of
Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403 (1997) (“We have consistently refused to hold
municipalities liable under a theory of respondeat superior”). Rather, to impose liability on a
municipality under § 1983, a plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused
the plaintiff’s injury.” Brown, 520 U.S. at 403; Monell, 436 U.S. at 694 (“It is when execution of
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a government’s policy or custom … inflicts the injury that the government as an entity is
responsible under § 1983”). However, simply identifying violative conduct is not enough to
establish a policy or custom because there must be a “direct causal link between a municipal
policy or custom and the alleged constitutional deprivation.” City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989); see also Brown, 520 U.S. at 404 (requiring that “through its deliberate
conduct, the municipality was the ‘moving force’” behind the injury suffered) (quoting Monell,
436 U.S. at 694). The Eleventh Circuit Court of Appeals has delineated the ways in which
municipal liability can be established as follows:
There are, however, several different ways of establishing municipal liability
under §1983. A municipality can be liable for an official policy enacted by its
legislative body (e.g., an ordinance or resolution passed by a city council). See
Monell, 437 U.S. at 661, 694-95, 98 S. Ct. 2018; McKusick v. City of Melbourne,
96 F.3d 478, 483 (11th Cir. 1996). Municipal liability may also attach if final
policymakers have acquiesced in a longstanding practice that constitutes the
entity’s standard operating procedure. See Bd. of Cty. Commissioners v. Brown,
520 U.S. 397, 403-04, 117 S.Ct 1382, 137 L.Ed.2d 626 (1997); Brown v. City of
Ft. Lauderdale, 923 F.2d 1474, 1481 n. 11 (11th Cir. 2002). And a municipality
can be held liable “on the basis of ratifications when a subordinate public official
makes an unconstitutional decision and when that decision is then adopted by
someone who does have final policymaking authority.” Matthews v. Columbia
County, 294 F.3d 1294, 1297 (11th Cir. 1996).
Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016).
While there is no heightened pleading standard required to establish municipal liability
under § 1983, the Amended Complaint still fails to state a claim imposing municipal liability.
See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168
(1993). The Amended Complaint lists four different “practices” that Plaintiff alleges to establish
a claim for municipal liability as follows:
a. The City and WPBPD failed to adequately investigate and discipline its officers
after being made aware that Plaintiff was framed by Ghent and Kapper and
having reports of similar misconduct which permitted, authorized or encouraged
the Defendant Officers to malicious [sic] prosecute, have Plaintiff falsely arrest
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and cover-up said malicious prosecution of Plaintiff, and Defendant Ghent and
Kapper’s culpability thereto;
b. The City and WPBPD intentionally retained the subject officers and failed to
discipline them despite their histories of abusive and dishonest conduct in their
employment as police officers;
c. The City and WPBPD had a custom of permitting officers to frame persons,
alter and manipulate the records and log books of drug evidence, to support the
framing of citizens and the Plaintiff.
d. The City and WPBPD failed to effectively investigate officers after citizen
complaints have been filed causing its officers to know that they can cover-up
their culpability in framing citizens and Plaintiff.
ECF No. [33] at ¶ 31(a)-(d).
The City correctly points out that none of these allegations constitute an official policy
promulgated by a legislative body or establish that an individual with “final policymaking
authority” adopted Ghent’s actions. See ECF No. [16] at 8.; see also Matthews v. Columbia Cty.,
294 F.3d 1294, 1297 (11th Cir. 1996). However, Plaintiff alleges a practice or custom that could
be construed as a longstanding violation of his rights that the municipality “acquiesced in.” See
Hoefling, 811 F.3d at 1279; Brown, 520 U.S. at 404 (“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 widespread as to have the
force of law.”). With that said, the Amended Complaint’s allegations are conclusory, offering no
factual allegations to support alleged customs that encompass more than this instance. Depew v.
City of St. Mary’s, 787 F.2d 1496, 1499 (11th Cir. 1986) (“Normally random acts or isolated
incidents are insufficient to establish a custom or policy.”); Smith v. Mercer, 572 F. App’x 676,
679 (11th Cir. 2014) (“Plaintiff must identify a consistent and widespread practice of
constitutional deprivations to prove local government liability for an unofficial custom.”). For
example, the Amended Complaint states that the City had “a custom of permitting officers to
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frame persons, alter and manipulate the records and log books of drug evidence.” ECF No. [33]
at ¶ 31 (c). Plaintiff, however, does not state the extent or manner in which the City acquiesced
in this custom such that it could be considered the “moving force” behind Ghent’s actions and
the widespread actions of other officers. See Brown, 520 U.S. at 404; Monell, 436 U.S. at 694.
The Amended Complaint contains nothing more than “legal conclusion[s] couched as a factual
allegation” as it pertains to the City’s liability. Twombly, 550 U.S. at 555 (2007); Iqbal, 556 U.S.
at 678; Thaeter, 449 F.3d at 1352. Thus, Plaintiff has failed to state a claim for municipal
liability under § 1983. The Court will permit Plaintiff the opportunity to file an amended
pleading, and to the extent that Plaintiff seeks to pursue the claim for municipal liability under §
1983, Plaintiff’s allegations must comply with the requirements of Monell set forth above.
Count II also attempts to establish municipal liability by alleging that the City should be
vicariously liable under § 768.28. ECF No. [33] at 40. Plaintiff also fails to state a claim under
Florida law for the tort of malicious prosecution. Section 768.28(9)(a) provides, in pertinent
part, that
The exclusive remedy for injury or damage suffered as a result of an act, event, or
omission of an officer, employee, or agent of the state or any of its subdivisions or
constitutional officers shall be by action against the governmental entity, or the
head of such entity in her or his official capacity, or the constitutional officer of
which the officer, employee, or agent is an employee, unless such act or
omission was committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property. The state or its subdivisions shall not be liable in tort for the acts or
omissions of an officer, employee, or agent committed while acting outside the
course and scope of her or his employment or committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.
Fla. Stat. § 768.28(9)(a) (emphasis added). Because the City retains its sovereign immunity
where an officer acts maliciously, a common law malicious prosecution claim against a
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municipality is barred under Florida law per se. See Weiland, 792 F.3d at 1330 (noting that
“Florida courts have long recognized that Fla. Stat. § 768.28(9)(a)” bars any claim against the
municipality for malicious prosecution) (citing Johnson v. State Dep’t of Health & Rehab.
Servs., 695 So. 2d 927, 930 (Fla. 2d DCA 1997)). The Amended Complaint, therefore, fails to
state a claim for municipal liability against the City under Florida law.
ii. Probable Cause
The City also argues that there was probable cause for the arrest and prosecution for
Count II, which would bar any malicious prosecution claim. See ECF No. [45] at 7. The
Eleventh Circuit has expressly stated that the existence of probable cause will bar any malicious
prosecution claim. See Grider, 618 F.3d 1240 at 1256; see also Wood, 323 F.3d at 882. In
support of its argument, the City directs the Court to the existence of a search warrant that led to
Plaintiff’s convictions for ammunition charges.3 Plaintiff responds that the Eleventh Circuit’s
ruling was limited to the search warrant that led to the ammunition charges as opposed to the
arrest warrant that led to the crack-cocaine distribution charges. ECF No. [47] at 8. It is the
latter charges that terminated in a bona fide manner and for which Plaintiff claims there was no
probable cause. The Court agrees with Plaintiff.
As the Court explained above, in the context of a malicious prosecution action, “probable
cause as to one charge will not bar a malicious prosecution claim based on a second, distinct
charge as to which probable cause was lacking.” Elmore, 605 F. App’x at 915 (quoting Holmes,
511 F.3d at 682-83). In Plaintiff’s appeal of the District Court’s Omnibus Order on his petition
for writ of habeas corpus, the Eleventh Circuit concluded that there was sufficient evidence to
justify probable cause for a post-arrest search warrant after excising Ghent’s false testimony.
3
As discussed above, the Court has taken judicial notice of the District Court’s Omnibus Order
and the Eleventh Circuit’s Opinion wherein this search warrant is discussed.
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See Phillips, 849 F.3d at 994. The Eleventh Circuit’s Opinion, however, makes no mention of
the arrest warrant, much less determine that probable cause existed for the issuance of the arrest
warrant. Based on the existence of probable cause for the search warrant, Plaintiff’s convictions
for felon in possession of ammunition were not vacated. Id. The Amended Complaint is limited
to claims for malicious prosecution for the vacated charges involving distribution of and
conspiracy to distribute crack cocaine – claims directly related to the allegedly fabricated drug
transaction with Ghent on April 6, 2001. Id.; ECF No. [33] at 18. Thus, the existence of
probable cause for a later search warrant that led to felon-in-possession charges does not create
probable cause for an earlier arrest for drug charges. Further, the Amended Complaint alleges
that the affidavit used to procure the arrest warrant in the first place was based upon Ghent’s
allegedly false testimony that he saw Plaintiff sell crack-cocaine, which was used to file the
Criminal Complaint against Plaintiff. See ECF No. [33] at 17; ECF No. [67] at 29. Therefore,
Plaintiff has adequately alleged a lack of probable cause for the criminal charges involving
distribution of crack-cocaine and conspiracy to distribute crack-cocaine. .
iii. Heck Doctrine
Finally, as to Count II, the City asserts that all of Plaintiff’s claims are barred because
there was no bona fide termination of Plaintiff’s prior convictions, thus making them barred by
Heck v. Humphrey, 512 U.S. 477 (1994). See ECF No. [16] at 15. The City argues that it was
forced to assert the Heck doctrine because the Amended Complaint is a shot-gun pleading, ECF
No. [16] at 15, but it is evident the doctrine does not bar Plaintiff’s claims.
For the purposes of a § 1983 claim, the Heck doctrine requires Plaintiff to prove that the
“unconstitutional conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by state tribunal authorized to make such determination, or
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called into question by a federal court’s issuance of writ of habeas corpus.” Heck, 512 U.S. at
486-87. The decision reiterates the element of the common law tort of malicious prosecution,
whereby there must have been a bona fide termination of the criminal proceeding in favor of the
plaintiff. See Id. (“One element that must be alleged and proved in a malicious prosecution
action is termination of the prior criminal proceeding in favor of the accused.”). The City argues
that this element cannot be met because three of Plaintiff’s criminal convictions were not vacated
and the search warrant was not invalidated. See ECF No. [16] at 15. Plaintiff responds by
stating that a writ of habeas corpus on his convictions has been issued. See ECF No. [47] at 10.
This assertion is correct, as the Eleventh Circuit, pursuant to 28 U.S.C. § 2255, vacated his
convictions for conspiracy to distribute and distribution of crack cocaine. See Phillips, 849 F.3d
at 995. As Plaintiff’s claims for malicious prosecution are based solely on the convictions for
conspiracy to distribute and distribution of crack cocaine - convictions that were vacated, the
Heck doctrine does not bar his claims.
d. Count III: § 1983 False Imprisonment
Plaintiff voluntarily dismissed Count III asserted against the Officers and Ghent.
e. Count IV: § 1983 False Imprisonment
Plaintiff voluntarily dismissed Count IV asserted against the City.
f. Count V: Sixth Amendment Claim Against the City
In Count V, the Amended Complaint alleges a claim for “violation and interference with
right to counsel contrary to the Sixth Amendment.” ECF No. [33] at 11 (caps omitted). Plaintiff
seeks judgment against the City, which he is apparently attempting to pursue under Florida
Statute § 768.28. The City argues that the claim should be dismissed because the statute of
limitations bars it and because it is not a recognizable claim as pled. See ECF No. [45] at 8-9.
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The Court agrees that the claim is not recognizable as pled, making it impossible for the Court to
determine the applicable statute of limitations.
Specifically, the Amended Complaint alleges that Plaintiff’s Sixth Amendment right to
counsel was interfered with and violated, but does not invoke § 1983 as a basis to address his
purported deprivation of constitutional rights. Instead, Plaintiff only references his satisfaction
of the notice requirement under Florida Statute § 768.28. See ECF No. [33] at ¶ 62. As noted
above, § 768.28 serves as Florida’s limited waiver of sovereign immunity for tort claims,
requiring “either an underlying common law or statutory duty of care with respect to the alleged
negligent conduct.” Trianon Park Condo. v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985);
See also Novoferrero v. Israel, No. 14-CIV-62674, 2015 WL 2152682, at *7 (S.D. Fla. May 6,
2015). Because the Amended Complaint fails to identify any common law or statutory basis for
the assertion of the Sixth Amendment violation, Count V is dismissed without prejudice.
Plaintiff will be given one final opportunity to draft a cognizable claim under Count V.
IV.
CONCLUSION
For the reasons explained above, it is ORDERED and ADJUDGED as follows:
1. Defendant City of West Palm Beach’s Motion to Dismiss Plaintiff’s Amended
Complaint With Prejudice, ECF No. [45], is GRANTED in part and DENIED in
part consistent with this Order.
2. Defendants Brian Kapper and Bradley Emmons’ Motion to Dismiss the Amended
Complaint, ECF No. [58], is GRANTED in part and DENIED in part consistent
with this Order.
3. Defendant Michael Ghent’s Motion to Dismiss the Amended Complaint, ECF No.
[64], is GRANTED in part and DENIED in part consistent with this Order.
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4. Pursuant to Plaintiff’s voluntary dismissal of selected claims in the Amended
Complaint, Count IV DISMISSED, all claims against the West Palm Beach Police
Department are DISMISSED, and all claims against Officers Ghent, Kapper, and
Emmons in their official capacities are DISMISSED.
5. The Amended Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff shall
file a Second Amended Complaint that is consistent with this Order no later than
August 9, 2018.
DONE AND ORDERED in Miami, Florida, this 25th day of July, 2018.
__________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Elroy A. Phillips
1437 7th Street
West Palm Beach, FL 33401
Pro Se
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