Derrig v. City of Marco Island

JOHN DERRIG, Plaintiff,

v. THE CITY OF MARCO ISLAND, FLORIDA, a Florida Municipal Corporation,and THOMAS CARR, individually, Defendants.

Case No: Case No: 2:12-cv-464-FtM-99SPC

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

DONE and ORDERED: June 17, 2013

ORDER

This matter comes before the Court on Defendant Thomas Carr's Motion to Dismiss Plaintiff John Derrig's Second Amended Complaint (Doc. #32) filed on April 23, 2013, and on the Defendant, the City of Marco Island, Florida's ("the City's") Motion to Dismiss Plaintiff John Derrig's Second Amended Complaint (Doc. #33) filed on April 23, 2013. The Plaintiff filed his Response in Opposition to the Motion to Dismiss Plaintiff John Derrig's Second Amended Complaint (Doc. #37) on May 24, 2013 and his Response in Opposition to the Motion to Dismiss the Plaintiff John Derrig's Second Amended Complaint (Doc. #38) on May 24, 2013. The Motions are now fully briefed and ripe for the Court's review.

Plaintiff John Derrig is a former Marco Island Police Officer and brought this suit against the City of Marco Island and its Chief of Police, Thomas Carr, based on the circumstances surrounding his termination. Specifically, Plaintiff alleges that heobserved his supervising sergeant tamper with evidence, prompting Plaintiff to draft a memorandum detailing his observations which he sent to his lieutenant, captain, and Chief Carr. Plaintiff was terminated shortly after he sent the memorandum to his superiors, and Plaintiff believes he was fired as a result of speaking out about his sergeant's misconduct in the memorandum.¹

The First Amended Complaint was dismissed by the Court in a March 12, 2013 Order (Doc. #26). That Complaint alleged two counts against Defendant Carr, one for Retaliation under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the other for Tortious Interference with a Business Relationship, under Florida law. Defendant Carr and Defendant Marco Island both filed motions to dismiss (Doc. #12 and #13). The Court found that both counts were insufficiently pled as to both defendants, and dismissed the First Amended Complaint without prejudice. (Doc. #26 at 2-3).

The Second Amended Complaint was filed on April 2, 2013 (Doc. #29). The only modifications to the First Amended Complaint that appear in the Second Amended Complaint are found in Paragraphs 10, 11, and 27. Defendant contends that these amendments have not cured the defects in the First Amended Complaint, and merely add conclusory allegations. (See Doc. #32 at 8). In his Response, Plaintiff asserts that the Second Amended Complaint sufficiently states claims entitled to relief. (Doc. #38).

In deciding a motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiffs. Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). However, dismissal for failure to state a claim upon which relief may be granted does not requireappearance, beyond a doubt. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-563, S. Ct. 127 S. Ct. 1955, 167 L. Ed 2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement" to relief requires more than labels, conclusions, and a formulaic recitation of the cause of action's elements. Twombly, 550 U.S. 544, 561-563.

To satisfy the pleading requirements of Fed. R. Civ. P. 8, a complaint must simply give the defendants fair notice of what the plaintiff's claim is and the grounds upon which it rests. Id. at 555; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). Although the pleading standard announced in Fed R. Civ. P. 8 does not require "detailed factual allegations," it does demand more than an unadorned, "the-defendant-unlawfully-harmed-me accusation." Sinaltrainal v. Coca-Cola Co., 578 F. 3d 1252, 1268 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868 (2009)). Furthermore, unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of the allegations. Sinaltrainal, 578 F. 3d at 1268 (citing Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F. 3d 1242, 1248 (11th Cir. 2005)). The facts as pled must state a claim for relief that is plausible on its face. Sinaltrainal, 578 F. 3d at 1268 (citing Iqbal, 129 S. Ct. at 1950).

The Court will now consider each count against Defendant Carr in his individual capacity based on the foregoing standards.

Count I: Retaliation

A. Thomas Carr

The Supreme Court has made clear that "a suit against a state official in his or her official capacity is not a suit against the official but rather against the official's office." Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312 (1989).

Defendant Carr contends that Plaintiff did not state a cause of action against Carr in his individual capacity as to Count I because Plaintiff failed to establish that Carr acted beyond his capacity as chief of police. (Doc. #32 at 6-7). Defendant Carr points to Paragraph 8 of the Second Amended Complaint, which states: "At all times pertinent, Carr acted under the color of state law in his official capacity as Chief of Police." (Doc. #29 ¶ 8). Plaintiff asserts "[t]he problem with Defendant's argument is that Plaintiff clearly sued Defendant in his individual capacity, and not in his official capacity. For this reason, Defendant's arguments that Defendant cannot be sued in his official capacity do not apply." (Doc. #38 at 5).

In the Second Amended Complaint, Plaintiff's allegation in Paragraph 8 makes it abundantly clear that Carr's actions were "[a]t all times pertinent . . . under the color of state law in his official capacity as Chief of Police." (Doc. #29 ¶ 8). Accordingly, on its face, Count I fails to state a cause of action against Carr in his individual capacity, and is therefore dismissed.² See Will, 491 U.S. at 71, 109 S. Ct. 2312.

Plaintiff's arguments to the contrary are unpersuasive. That a Defendant's name appears in the case caption, (see Doc. #38 at 7), is not dispositive that any particular count is properly alleged against a Defendant.³ See Blanchard v. Terry & Wright, Inc., 331 F. 2d 467, 469 (6th Cir. 1964) ("[T]he caption is not regarded as containing any part of plaintiff's claim. We must look to the allegations of the complaint in order to determine the nature of plaintiff's cause of action."). Further, Plaintiff points to the language in the Second Amended Complaint that states "Carr's actions caused damages" and were "'taken in reckless indifference to Derrig's federally protected rights.'" (Doc. #38 at 7). Yet, these allegations do not sufficiently separate Carr's individual capacity from his official capacity—a capacity that Plaintiff alleges Carr acted within "[a]t all times pertinent." (Doc #29 ¶ 8). Finally, that "Plaintiff seeks damages against [Carr] personally," (Doc. #38 at 7), does not affect the sufficiency of the factual matter pled as a basis to those damages. Nor is the fact that Count II is against Carr, personally, (Doc. # 38 at 7), relevant to the consideration of Count I.

Even if Carr were properly named a defendant in his individual capacity under Count I, the claim would still be dismissed because the amended language does not cure the defect from the First Amended Complaint.

Because Plaintiff failed to properly state a claim against Carr individually and separately from his official capacity, Count I must be dismissed as to Carr.

B. The City of Marco Island

In order to properly state a claim against a government employer for retaliation against constitutionally protected speech, the Plaintiff-employee must allege that he or she "spoke as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 1958 (2004). Because Plaintiff failed to establish this element in the First Amended Complaint, (see Doc. #26), the Court will now consider Plaintiff's amendments in the Second Amended Complaint.

According to the Order dismissing the First Amended Complaint, the "factually unsupported and formulaic legal conclusions" contained therein were that Plaintiff wrote the memorandum as "a private citizen on his own time" and that the memorandum was "outside of his official duties." (Doc. #26 at 2). In his Second Amended Complaint, Plaintiff added the following language to Paragraph 10: "[Plaintiff] spoke as a private citizen because he was at home and off the clock, and also because [Plaintiff] made the Statement outside of his official duties . . . ." (Doc. #29 ¶ 10). Further, Plaintiff elaborated upon the scope of "official duties" in Paragraph 11: "[Plaintiff's] official duties do not include the supervision of his Sergeant, responsibility for MIPD internal affairs, the authority to discipline his Sergeant, or any further action with respect to his Sergeant's misconduct." (Doc. #29 ¶ 11).

In Carter v. Incorporated Village of Ocean Beach, the Second Circuit held that police officers who reported the misconduct of their supervisors up the chain of command did not engage in constitutionally protected speech under Garcetti. 415 Fed. App'x 290, 293 (2d Cir. 2011). The Court noted that the alleged misconduct was known to Plaintiffs "only by virtue of their jobs as police officers," id., and found that becausethe awareness of the misconduct arose on the job, the police officers' reporting was pursuant to employment responsibilities and not as citizens on a matter of public concern under Garcetti. Id.; Garcetti, 547 U.S. at 421, 126 S. Ct. at 1960. Indeed, Garcetti definitively stated that "[w]hen a public employee speaks pursuant to employment responsibilities . . . there is no relevant...