Novak v. Bradshaw
Filing
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ORDER granting 11 Motion to Dismiss with prejudice for Failure to State a Claim. This case is REMANDED to the Fifteenth Judicial Circuit in and for Palm Beach County, FL. Closing Case and Denying as moot all pending motions. Motions Terminat ed: 11 Defendant's MOTION TO DISMISS 1 Notice of Removal (State Court Complaint), FOR FAILURE TO STATE A CLAIM (Count II and Count III) filed by Ric Bradshaw. Signed by Judge Beth Bloom on 7/25/2018. See attached document for full details. (lk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-cv-80630-BLOOM/Reinhart
LARRY NOVAK,
Plaintiff,
v.
RIC D. BRADSHAW, as Sheriff of Palm
Beach County, Florida,
Defendant.
___________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Ric D. Bradshaw’s (“Sheriff
Bradshaw”) Motion to Dismiss Count II and Count III of the Third Amended Complaint, ECF
No. [11] (the “Motion”). The Court has carefully reviewed the Motion, all opposing and
supporting briefs, the record in this case, the applicable law, and is otherwise fully advised. For
the reasons set forth below, the Motion is granted and the case is sua sponte remanded.
I.
BACKGROUND
Plaintiff, Larry Novak (“Novak”), filed this action on October 28, 2015, against Stacy
Scott or Stacy Hellow (“Hellow”) for malicious prosecution in the Fifteenth Judicial Circuit in
and for Palm Beach County, Case No. 2015-CA-012028. Novak then filed a First Amended
Complaint on March 1, 2016, against Hellow and Sheriff Bradshaw for false imprisonment and
malicious prosecution. Subsequently, Novak filed a Second Amended Complaint on April 17,
2018, against Hellow and Sheriff Bradshaw for municipal liability pursuant to 42 U.S.C. § 1983.
Shortly thereafter, Novak filed a Third Amended Complaint on May 10, 2018, against Sheriff
Bradshaw in his individual and official capacity for municipal liability pursuant to 42 U.S.C. §
CASE NO. 18-cv-80630-BLOOM/Reinhart
1983. Sheriff Bradshaw timely removed this action to Federal Court on May 14, 2018. See ECF
No. [1].
Novak’s Third Amended Complaint contains three counts for liability: (1) false
imprisonment under Fla. Stat. § 768.28; (2) fraudulent or negligent misrepresentation to the court
under Fla. Stat. § 768.28; and (3) false imprisonment under 42 U.S.C. §§ 1983, 19881. See ECF
No. [1-1]. According to the Third Amended Complaint, Sheriff Bradshaw’s employee, law
enforcement officer Hellow, improperly seized, detained, and imprisoned Novak by falsely
procuring a court order for Novak’s involuntary commitment under the Baker Act. Id. at ¶ 8-10.
In particular, Novak claims that the petition submitted for the Baker Act was “unsigned,
unsworn, and misrepresented [Novak’s] character, mental condition and actions.” Id. at ¶ 24.
Sheriff Bradshaw purportedly violated Novak’s “right to be free from unlawful seizure of his
person and deprivation of his liberty as guaranteed by the Fourth Amendment and to substantive
and procedural due process as guaranteed by the Fourteenth Amendment.” Id. at ¶ 34.
Based on the foregoing, Novak alleges that, pursuant to 42 U.S.C. § 1983, Sheriff
Bradshaw is liable for Novak’s damages in his individual and official capacity because Hellow
was an employee of Palm Beach County Sheriff’s Department (“PBCSD”). Id. at ¶ 36-39. In
response to the Third Amended Complaint, Sheriff Bradshaw moved to dismiss Novak’s claims
in Counts II and III for failure to state a claim. See ECF No. [11]. Novak and Sheriff Bradshaw
thereafter filed a timely Response and Reply respectively. See ECF Nos. [14] and [19]. The
Motion is now ripe for review.
1
The Court notes that the Third Amended Complaint contains a reference to 42 U.S.C. § 1985. This
appears to be a typographical error as 42 U.S.C. § 1985 relates to conspiracy and the Complaint has not
sufficiently plead conspiracy. ECF No. [1-1 at ¶ 36]. Rather, all allegations in the Complaint pertain to
42 U.S.C. § 1983.
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II.
LEGAL STANDARD
A pleading in a civil action 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). Although a complaint
“does not need detailed factual allegations,” it must provide “more than labels and conclusions,
and a 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 plausible 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). 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
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claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc.
v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] 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.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.
2002)).
III.
DISCUSSION
a.
Count III: False Imprisonment Pursuant to 42 U.S.C. § 1983
The Court first addresses the federal law claim, Count III. Sheriff Bradshaw seeks to
dismiss Count III of the Third Amended Complaint because it “fails to state a claim for
individual or supervisory liability against Sheriff Bradshaw, nor for Monell liability for
[Novak’s] alleged confinement under the Baker Act.” See ECF No. [11]. In support of this
argument, Sheriff Bradshaw argues that Novak’s allegations in the Third Amended Complaint
are conclusory and devoid of any factual support. Id. Accordingly, this Court must determine
whether Novak has plead facts sufficient to state a claim against Sheriff Bradshaw under 42
U.S.C. § 1983 to sustain a claim against Sheriff Bradshaw individually and in his official
capacity.
i.
Individual Liability
“It is well established in this Circuit that supervisory officials are not liable under § 1983
for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious
liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (internal quotation marks and
citation omitted). “Instead, supervisory liability under § 1983 occurs either when the supervisor
personally participates in the alleged unconstitutional conduct or when there is a causal
connection between the actions of a supervising official and the alleged constitutional
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deprivation.” Id. (internal quotation marks and citations omitted).
In the instant case, Novak fails to provide sufficient facts to support a § 1983 claim to
hold Sheriff Bradshaw individually liable. Novak merely alleges that Sheriff Bradshaw should
be held individually liable as a result of Sheriff Bradshaw’s subordinates’ personal involvement
with Novak’s detainment under the Baker Act. See ECF No. [1-1 at ¶ 36, 39]. Furthermore,
Novak did not allege that Sheriff Bradshaw personally participated in Novak’s detention under
the Baker Act nor any causal connection between Novak’s detainment and Sheriff Bradshaw.
Significantly, the caption of the case and the introductory paragraph of the Third Amended
Complaint clearly state that Novak is only suing Sheriff Bradshaw in his official capacity. See
ECF No. [1-1] at 1 (Plaintiff, Larry Novak, by and through the undersigned counsel, via this
Amended Complaint, sues Defendant, Ric. D. Bradshaw, in his official capacity as Sheriff of
Palm Beach County, Florida). Since Sheriff Bradshaw has not been sued in his individual
capacity and there are no allegations that he personally participated in Novak’s detainment or
that there was some causal connection between his actions and the alleged unconstitutional
conduct, there are insufficient allegations to sustain a §1983 claim against Sheriff Bradshaw.
Thus, to the extent Plaintiff attempted to plead any claims against Sheriff Bradshaw in his
individual capacity, they are dismissed with prejudice.
ii. Municipal Liability
“It is a well settled legal principle that suits against state officials in their official capacity
are treated as suits against the state or entity it represents.” Miller v. Lamberti, 10-60051-CIV,
2010 WL 11549708, at *2 (S.D. Fla. Aug. 27, 2010) (internal quotation marks and citations
omitted). “A municipality may be liable under 42 U.S.C. § 1983 for the actions of its police
officers only if the municipality is found to have itself caused the constitutional violation at
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issue.” Id. “In other words, a municipality cannot be found liable on a vicarious liability or
respondeat superior theory.” Id. (citing Monell v. Dep't of Soc. Services of City of New York,
436 U.S. 658, 691 (1978)). “It is only when the execution of the government’s policy or
custom . . . inflicts the injury that the municipality may be held liable pursuant to 42 U.S.C. §
1983.” Miller v. Lamberti, 10-60051-CIV, 2010 WL 11549708, at *2 (S.D. Fla. Aug. 27, 2010)
(internal quotation marks and citations omitted).
“To establish municipal liability under § 1983 the plaintiff must show that: (1) his
constitutional rights were violated, (2) the municipality had a custom or policy that constituted
deliberate indifference to his constitutional rights, and (3) the policy or custom caused the
violation of his constitutional rights.” Id. at *3 (citations omitted). “A party may establish that
such a policy exists by proving either an officially promulgated county policy or an unofficial
custom or practice of the county shown through repeated acts of a final policymaker for the
county.” Id. (internal quotation marks and citations omitted).
In the instant case, Novak fails to provide sufficient facts to support a § 1983 claim to
hold Sheriff Bradshaw liable in his official capacity. Novak merely listed the following four
supposedly implemented “policies, customs, and practices” that allegedly caused Novak’s Fourth
and Fourteenth Amendment rights to be violated, ECF No. [1-1 at ¶ 37]:
1. PBCSD’s policies do not require a second or supervisory officer’s approval of
petitions for commitment prior to their submissions to the Court for judicial
action.
2. PBCSD’s policies do not require its law enforcement officers to investigate,
even minimally, to seek or find corroborating evidence to determine the
authenticity and credibility of information provided by and received from
third-party informants, whether or not said informants are other employees of
PBCSD, before submitting petitions for involuntary commitment to the Court.
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3. PBCSD’s policies do establish minimum standards and burdens of proof
needed to submit petitions for involuntary commitment to the Court.
4. PBCSD’s policies do not require its law enforcement officers to swear out an
affidavit or swear out a petition for involuntary commitment prior to
submitting such an affidavit or petition.
However, Novak failed to show a basis that the listed policies are officially promulgated
county policies. Additionally, Novak failed to allege any other instances/occurrences that such
policies were implemented any other time other than in the instant case. Miller v. Lamberti, 1060051-CV, 2011 WL 13214040, at *3 (S.D. Fla. Apr. 7, 2011) (dismissing § 1983 action for
failure to state a claim under Rule 12(b)(6) when plaintiff’s conclusory allegations of “policies
and practices” were insufficient to establish any officially adopted or permanently settled
policies implemented by the sheriff’s department). Since there are no officially promulgated
policies or alleged acts of Sheriff Bradshaw that could have caused Novak’s injuries, there are
insufficient allegations to support a § 1983 claim against him in his official capacity. Thus,
Plaintiff’s claims against Sheriff Bradshaw fail to state a claim and require dismissal.
b. Count II: Fraudulent and Negligent Misrepresentation to the Court
This case was removed on the basis of federal question jurisdiction. Because the Court
dismisses Count III, the only claim for federal question jurisdiction, the Court declines to
exercise supplemental jurisdiction. Pursuant to 28 USC 1367(c), “[t]he district courts may
decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . (3) the
district court has dismissed all claims over which it has original jurisdiction.” Accordingly, the
Court has no subject matter jurisdiction over the remaining claims, requiring the remand of this
action to the 15th Judicial Circuit in and for Palm Beach County, Florida. Furthermore, this
Motion is dismissed with prejudice as to Count III because Novak failed to request leave to
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amend and this is Novak’s fourth Complaint and he has had an ample opportunity to support hise
§ 1983 claims.
IV.
CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Defendant Sheriff Bradshaw’s Motion to Dismiss, ECF No. [11], is GRANTED in
part. Count III is DISMISSED WITH PREJUDICE.
2. The case is REMANDED to the Fifteenth Judicial Circuit in and for Palm Beach
County, Florida.
3. The Clerk of Court is directed to CLOSE this case.
4. All pending motions in this matter are DENIED AS MOOT.
DONE and ORDERED in Miami, Florida this 25th day of July, 2018.
_______________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of record
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