Boling v. City of Longwood

1

RODERIC BOLING, Plaintiff, v. CITY OF LONGWOOD, LONGWOOD POLICE DEPARTMENT, MASON ROTHENBURG, B. RACINE, KRISTOPHER BURNAM, SHEA LIEUTENANT, DAVID DOWDA, OFFICE OF THE STATE ATTORNEY SEMINOLE COUNTY, MARCUS HYATT, RICHARD FARMER and JAMES CARTER, Defendants.

No. 6:21-cv-129-WWB-LRH

United States District Court, M.D. Florida, Orlando Division

December 20, 2021

AMENDED ^[1] REPORT AND RECOMMENDATION

LESLIE R. HOFFMAN UNITED STATES MAGISTRATE JUDGE

TO THE UNITED STATES DISTRICT COURT:

This cause came on for consideration without oral argument on the following motions filed herein:

MOTION: STATE ATTORNEY DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT WITH PREJUDICE (Doc. No. 16)

FILED:June 19, 2021

THEREON it is RECOMMENDED that the motion be GRANTED.

MOTION: DEFENDANTS', CITY OF LONGWOOD, LONGWOOD POLICE DEPARTMENT, LONGWOOD CHIEF OF POLICE DAVID DOWDA, MOTION TO DISMISS (Doc. No. 22)

FILED:July 13, 2021

THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.

MOTION: DEFENDANTS', OFC. MASON ROTHENBURG, OFC. CORPORAL B. RACINE, OFC SGT KRISTOPHER BURNAM, LT. SHEA LIEUTENANT, MOTION TO DISMISS (Doc. No. 23)

FILED:July 13, 2021

THEREON it is RECOMMENDED that the motion be GRANTED in part and DENIED in part.

I. INTRODUCTION.

On January 19, 2021, Plaintiff Roderic Boling, appearing pro se, instituted this action against the above-named Defendants. Doc. No. 1. Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for alleged violations of the Fourth, Fifth, and Fourteenth Amendments in relation to an altercation that took place on July 14, 2016, after which Plaintiff was arrested and charged with several felonies. Id. ¶¶ 14-32. The charges were ultimately nolle prossed. Id. ¶ 43. Plaintiff's claims are against several officers of the Longwood Police Department (Mason Rothenberg, B. Racine Kristopher Burnam, and Shea Lieutenant)^[2]; the Longwood Chief of Police David Dowda (“Chief Dowda”); the City of Longwood (“the City”) the Longwood Police Department (“the LPD”); the Office of the State Attorney of Seminole County; and three assistant state attorneys (Marcus Hyatt, Richard Farmer, James Carter). Id. at 25-42. The individual Defendants are sued in both their individual and official capacities. Id. at 1, 5, 16, 17.

With the exception of Marcus Hyatt, each of the Defendants has appeared through counsel in this case.^[3] Each of the Defendants who have appeared filed motions to dismiss the complaint. Doc. Nos. 7, 8, 16. The motions to dismiss were referred to the undersigned.

Plaintiff did not timely respond to any of the motions to dismiss. As it relates to the motions filed by the City, the LPD, and the officers thereof (Doc. Nos. 7, 8), it did not appear that such motions were properly served on Plaintiff, and these Defendants failed to demonstrate otherwise. See Doc. Nos. 17-21.^[4]Accordingly, the undersigned entered an Order striking those motions and ordered the movants to refile the motions to include certificates of service demonstrating that the motions were properly served on Plaintiff. Doc. No. 21. The undersigned further ordered that the renewed motions be served on Plaintiff via certified mail. Id. at 3. These Defendants have renewed their motions, to include proper certificates of service, and they have filed a certificate of compliance stating that the motions were served on Plaintiff via certified mail. Doc. Nos. 22-25.^[5]Nonetheless, Plaintiff did not respond to any of the pending motions to dismiss (Doc. Nos. 16, 22, 23), and the time for doing so has long since passed. See Local Rule 3.01(c). Accordingly, the motions to dismiss have all been considered unopposed. See Id.

II. SUMMARY OF ALLEGATIONS OF THE COMPLAINT.^[6]

According to the complaint, Plaintiff's claims stem from encounters between Plaintiff and a person named Elmo Ramos in July 2016, at Plaintiff's then-wife's newly acquired place of business. Doc. No. 1 ¶ 9. Ramos was previously employed by the company that formerly operated at the same address. Id. Ramos tried to get Plaintiff to pay him for backpay owed by his previous employer, and made threats to or about Plaintiff in this regard. Id. ¶¶ 10-13.

On July 14, 2016, Plaintiff's then-wife was apparently going to pay employees of the prior company their owed backpay. Id. ¶¶ 13-15. Approximately fifteen to twenty people were at the place of business that day, some were there seeking employment with Plaintiff's then-wife, some were there seeking said backpay from their previous employment. Id. ¶ 14. That day, Plaintiff had a conversation with Ramos, who at the time possessed two cellphones, which he used to illegally record Plaintiff and/or Plaintiff's vehicle. Id. ¶¶ 18-20. Police were called, and when Officer Rothenberg arrived, Plaintiff requested that Ramos be trespassed. Id. ¶ 23.

Officer Rothenberg refused to take a criminal complaint from Plaintiff regarding the illegal recording and refused to interview several witnesses. Id. ¶ 24. Backup officers arrived, who suggested that Plaintiff simply pay Ramos, but Plaintiff refused. Id. ¶¶ 27-30.

After conversing with Ramos, the officers arrested Plaintiff with no explanation and charged him with robbery by sudden snatching (third-degree felony); grand theft (third-degree felony); and obstruction of justice/preventing a victim from calling 911 during the commission of a felony (second-degree felony). Id. ¶ 31. According to the complaint, as well as the officers' probable cause affidavit referenced therein and the victim's (Ramos's) statements, Plaintiff was arrested for allegedly taking Ramos's iPhone out of his possession and obstructing Ramos's efforts to call 911. E.g., id. ¶¶ 46-49, 53. Plaintiff was released on bond. Id. ¶ 33. After his release, Plaintiff attempted to meet with police to provide exculpatory evidence, such as iPad security footage of the incident, to no avail. Id. ¶¶ 33-35. The LPD provided a probable cause affidavit to the Office of the State Attorney for Seminole County, which thereafter charged Plaintiff with misdemeanor battery and tampering with a witness victim or informant. Id. ¶ 37. On October 11, 2016, the Office of the State Attorney dismissed the robbery by sudden snatching and grand theft charges. Id. ¶ 38. However, the Office of the State Attorney later revived the robbery by sudden snatching charge by filing an amended information, which also included the felony-level tampering charge. Id. ¶ 41. Thereafter, shortly before the scheduled trial date, the Office of the State Attorney elected to nolle prosse all of the charges against Plaintiff. Id. ¶ 43.

Plaintiff claims that the officers' probable cause affidavit contains several false statements, including an allegation by Ramos that Plaintiff “snatched” Ramos's cellphone out of his hands, thus hindering him from calling the police. Id. ¶¶ 46-49. Plaintiff claims that officers also omitted information and evidence from the probable cause affidavit. Id. ¶¶ 50-56. Plaintiff further contends that the officers failed to adequately investigate at the scene. Id. ¶¶ 57-61.

III. ANALYSIS.

A. State Attorney Defendants' Motion to Dismiss (Doc. No. 16).

Plaintiff alleges “Claims Under 42 U.S.C. § 1983, 4th, 5th, and 14th Amendment Violations (Unlawful Detention and Malicious Prosecution and Due Process Claims . . .) against the Office of the State Attorney for Seminole County, as well as Assistant State Attorneys Marcus Hyatt, Richard Farmer, and James Carter. Doc. No. 1, at 28, 36 (Complaint Counts II & VI). Thus, from the complaint, it appears that Plaintiff asserts two central claims against the Office of the State Attorney and Defendants Farmer and Carter (hereinafter, collectively the “State Attorney Defendants”) under § 1983: malicious prosecution and false arrest/false imprisonment. Id.

“To establish a claim of malicious prosecution under § 1983, a plaintiff must prove a violation of his Fourth Amendment right to be free from an unreasonable seizure in addition to establishing the elements of the common-law tort of malicious prosecution.” Damali v. City of E. Point, 766 Fed.Appx. 825, 827 (11th Cir. 2019) (citing Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)).^[7] “These elements include (1) a criminal prosecution instituted or continued by the present defendant, (2) with malice and without probable cause, (3) that terminated in the plaintiff's favor, and (4) that caused damage to the plaintiff accused.” Id.

As to Plaintiff's false arrest/false imprisonment claims, “[t]o state a claim for false arrest under § 1983, a plaintiff must show that he was arrested without probable cause or a warrant.” Topa v. Kerbs, No. 2:18-cv-475-FtM-38MRM, 2018 WL 4698462, at *2 (M.D. Fla. Oct. 1, 2018) (citing Andrews v. Scott, 729 Fed.Appx. 804, 808 (11th Cir. 2018); Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990)). “A detention on the basis of a false arrest presents a viable section 1983 action.” Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir. 1996). Moreover, “[w]here a police officer lacks probable cause to make an arrest, the arrestee has a claim under section 1983 for false imprisonment based on a detention pursuant to that arrest.” Id. However, probable cause is a complete defense to false arrest and false imprisonment claims under § 1983. Id.

The State Attorney Defendants move to dismiss the complaint on several bases, including: (1) prosecutorial immunity; (2) sovereign immunity; (3) qualified immunity; (4) Eleventh Amendment immunity; (5) failure to state a claim; and (6) failure to comply with pleading requirements. Doc. No 16.^[8] On review, the issues of prosecutorial immunity and Eleventh Amendment immunity are dispositive of the State Attorney Defendants' motion. Accordingly, these are the only...