Hernandez v. Pasco Cnty. Sheriff's Office

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WILTROBER HERNANDEZ, Plaintiff, v. PASCO COUNTY SHERIFF'S OFFICE, CHRISTOPHER NOCCO, BRAD CLARK, CHRISTOPHER STARNES, ADAM TELLIER, RUSSELL MEISSNER and STEPHEN MCINNES, Defendants.

No. 8:20-cv-316-CEH-CPT

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

March 6, 2023

ORDER

Charlene Edwards Honeywell, United States District Judge

This cause comes before the Court upon the Motion for Summary Judgment filed by Defendants, Sheriff Christopher Nocco, Brad Clark, Russell Meissner, Steve McInnis, and Adam Tellier (Doc. 66), the Motion for Summary Judgment filed by Defendant Christopher Starnes (Doc. 70), the corresponding responses (Docs. 73, 74), and the replies (Docs. 77, 78). The parties have also filed a stipulation of agreed material facts (Doc 83) and supporting evidence (Docs. 67, 68, 69).

Having reviewed the evidence presented and considered the arguments of counsel in their submissions and at oral argument, the Court will grant Defendants' Motions for Summary Judgment as to Count II, in which Plaintiff alleges that Defendants violated his First Amendment right to free speech and seeks damages pursuant to 42 U.S.C. § 1983. The Court declines to exercise its supplemental jurisdiction over the remaining state-law claims.

I. FACTUAL BACKGROUND^[1]

A. Underlying Investigation

In December 2015, the Pasco County Sheriff's Office was working on a narcotics-related investigation in Dade City, Florida.^[2] Doc. 83 ¶ 1. A month later, based on information provided by a confidential informant (“CI”), Homero Camacho became the main subject of the investigation. Id. ¶ 2. In August of 2016, another CI provided information that Eder Alonso Cruz Lopez (“Cruz”) was involved in methamphetamine trafficking with Camacho. Id. ¶ 4. Defendant Clark subsequently confirmed through inmate call records from the Pasco County Jail that Cruz was in contact with Camacho. Id. ¶ 5. Deputies conducted surveillance of 7166 Glory Road in Zephyrhills, Florida, where they believed Camacho lived. Id. ¶ 6; Doc. 70-1 at 2728; Doc. 66-2 at 11-14. They had reason to believe that Plaintiff Wiltrober Hernandez (“Plaintiff”) also lived there based on intelligence gathered from CIs and surveillance, even though the Driver and Vehicle Information Database listed Plaintiff's address as 7062 Glory Road. Doc. 83 ¶ 3; Doc. 70-1 at 27-28. Their belief was reinforced by the fact that vehicles registered to Plaintiff were observed at 7166 Glory Road on numerous occasions. See Doc. 67-1 at 62-64; Doc. 70-1 at 65. Separately, deputies received information from a CI that suggested Cruz was obtaining his narcotics supply from 7166 Glory Road. Doc. 66-1 at 14; Doc. 67-1 at 49.

Investigators placed a GPS tracker on Cruz's car and a pen register on his cellphone. Doc. 83 ¶ 9. On several occasions, they observed Cruz driving to 38244 Ruth Avenue in Zephyrhills, the address of Luis David Martinez Verde (“Martinez Verde”). Id. ¶¶ 11-12; Doc. 66-1 at 29-32. Deputies observed Cruz traveling to the area of the Ruth Avenue address after a controlled drug buy from Defendant Meissner, and GPS tracking of his vehicle showed that he would often go to the address before and after conducting drug transactions. Doc. 83 ¶¶ 13-14. As a result, they believed he was obtaining drugs there. Id. ¶ 16. They also observed that Cruz often called or received a call from his source of supply around the time he arrived at the address. Doc. 67-1 at 67, 84-85. During surveillance of the Ruth Avenue address in August, September, and October of 2016, a vehicle registered to Plaintiff was also seen parked there-sometimes at the same time that Cruz was there. Doc. 83 ¶ 12.

B. Cruz's Arrest and Proffer

Through investigation, the Defendants also learned that Cruz was involved in illegal drug activity with Alfred Grabowski (“Grabowski”). Id. ¶ 15. In early January 2017, Pasco deputies conducting surveillance saw Cruz enter the property at 7166 Glory Road and then appear with a black package before driving to Grabowski's house. Id. ¶ 18. They then witnessed a male exit Cruz's vehicle with a multicolored bag. Id. On March 2, 2017, Grabowski's residence was searched pursuant to a warrant, and trafficking amounts of illegal narcotics, firearms, and currency were found. Id. ¶ 19. Several weeks later, Cruz was arrested and charged with multiple counts of trafficking in methamphetamine and cocaine, and illegal use of a two-way communication device. Id. ¶ 20; Doc. 73-1 at 75-76. He named Plaintiff and Martinez Verde as his drug suppliers immediately after his arrest. Doc. 66-1 at 77-79. Cruz stated during a sworn proffer with the State Attorney's Office (and reiterated later in a deposition pursuant to this lawsuit) that he had been obtaining drugs from Plaintiff and Martinez Verde at the Glory Road and Ruth Avenue addresses and had dropped off drug money at these same addresses. Doc. 66-5 at 13-14, 18-20, 22-24, 26-29; Doc. 66-6 at 7-10, 25-26, 28, 32, 34-36. He also confirmed that Plaintiff and Martinez Verde were the only drug suppliers who he would have called on his cellphone. Doc. 66-5 at 22.

C. Plaintiff is Arrested Pursuant to a Warrant

After Cruz's arrest and proffer session, a warrant was issued for Plaintiff's arrest, based on the affidavit of Defendant Clark, on allegations of knowingly conspiring, combining, or confederating to knowingly sell, deliver, and/or purchase cocaine and methamphetamine. Doc. 83 ¶ 22. Plaintiff was arrested on April 25, 2017. Id ¶ 23. According to Plaintiff's deposition testimony, as he was being arrested, Defendant Starnes told him that the Sheriff's Office already had “all of his runners and drivers,” and that it would be in Plaintiff's best interest to cooperate. Plaintiff claims he responded that he didn't know what Starnes was talking about. Doc. 68 at 56-57. Plaintiff also testified that he asked Starnes whether he was being arrested “in retaliation for me not working with him,” to which Starnes told Plaintiff to “quit making stuff up.” Id. According to Plaintiff, besides just “going back and forth about it” at the scene, there was no other conversation between him and Starnes. Id. at 58. Plaintiff stated that he was arrested at gunpoint, but Starnes did not touch or strike him. Id. at 55-60. Martinez Verde was also taken into custody on similar charges. Doc. 83 ¶¶ 24-25. At trial, Plaintiff was ultimately acquitted of all charges. Doc. 44 ¶ 40; Doc. 81 ¶ 40.

According to Plaintiff's submissions, Sheriff Nocco later held a press conference in which he displayed a poster featuring images of individuals that had been arrested during the investigation, including Plaintiff. Doc. 73 at 13. Plaintiff claims that, at this conference, Sheriff Nocco asserted that Plaintiff was “killing people.” Id. Defendants dispute this allegation, stating that it is unsupported by any evidence. Doc. 77 at 7-8.

D. Plaintiff's History as a Confidential Informant

Plaintiff stated at his deposition that he had previously served as a CI for the Drug Enforcement Administration (“DEA”). Doc. 70-5 at 42. He further explained that, in late 2016, DEA agent Jason Satterwhite asked him if he'd be willing to work as a CI for Starnes. Id. at 51-53. Plaintiff informed Satterwhite he could not, because Pasco County was too close to home; Starnes was not involved in that conversation. Id. Plaintiff stated that he had spoken with Christopher Starnes five to eight times prior to his arrest, but had not had any issues with him or been threatened by him. Id. at 49.

Procedural History

Plaintiff filed suit against Pasco County Sheriff Christopher Nocco and several Pasco County law enforcement officers. Doc. 44. In Count I, Plaintiff sues Sheriff Nocco or, in the alternative, the Defendant deputies, for false arrest under Florida law. Id. at ¶¶ 41-62. In Count II, he sues Starnes, Clark, Meissner, McInnes, and Tellier under 42 U.S.C. § 1983 for First Amendment retaliation. Id. at ¶¶ 63-68. In Count III, Plaintiff sues Sheriff Nocco for negligent supervision and retention under Florida law. Id. at ¶¶ 69-75. Defendants now move for summary judgment as to all counts. Docs. 66, 70. A hearing was held on both motions for summary judgment on September 13, 2022 (Doc. 101).^[3]

II. LEGAL STANDARD

Summary judgment is appropriate only when the court is satisfied that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law after reviewing the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any[.]” Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, the Court must consider all the evidence in the light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003).

Issues of fact are “genuine” only if a reasonable jury, considering the evidence presented, could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it may affect the outcome of the suit under governing law. Id. at 248.

The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323-24; Hickson Corp. v. N Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden is discharged if the moving party can show the court that there is “an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. “Only when that burden has been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “[I]n order to survive summary...