Verde v. Pasco Cnty. Sheriff's Dep't

1

LUIS MARTINEZ VERDE, 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-317-CEH-JSS

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

March 8, 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. 72), the Motion for Summary Judgment filed by Defendant Christopher Starnes (Doc. 75), the corresponding responses (Docs. 79, 80), and the replies (Docs. 83, 84). The parties have also filed a stipulation of agreed material facts (Doc 89) and supporting evidence (Docs. 73, 74, 76).

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 the 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. 89 ¶ 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 that Camacho lived. Id. ¶ 6; Doc. 75-1 at 27-28; Doc. 72-2 at 11-14. They believed that Wiltrober Hernandez also resided there based on intelligence gathered from CIs and surveillance. Doc. 89 ¶ 3; Doc. 75-1 at 27-28. Separately, a CI described the location where Cruz was obtaining his narcotics supply, and his description closely matched the property at 7166 Glory Road. Doc. 72-1 at 14; Doc. 73-1 at 49.

Investigators placed a GPS tracker on Cruz's car and a pen register on his cellphone. Doc. 89 ¶ 9. They learned he visited 38244 Ruth Avenue in Zephyrhills, which was the address of Plaintiff Luis David Martinez Verde (“Plaintiff”).^[3] Id. ¶¶ 1112; Doc. 72-1 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. 89 ¶¶ 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 Plaintiff's residence. Doc. 73-1 at 67, 84-85.

B. Cruz's Arrest and Proffer

Through investigation, the Defendants also learned that Cruz was involved in illegal drug activity with Alfred Grabowski (“Grabowski”). Doc. 89 ¶ 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. 72-1 at 75-76. He named Plaintiff and Hernandez as his drug suppliers immediately after his arrest. Doc. 72-1 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 Hernandez at the Glory Road and Ruth Avenue addresses and had dropped off drug money at these same addresses. Doc. 72-5 at 13-14, 18-20, 22-24, 26-29; Doc. 72-6 at 7-10, 25-26, 28, 32, 34-36. Cruz also confirmed that Plaintiff and Hernandez were the only drug suppliers that he would have called on his cellphone. Doc. 72-5 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. 89 ¶ 24. Plaintiff was arrested on April 25, 2017. Id ¶ 25. Plaintiff states that, upon arrest, he was asked about drugs and answered that he did not know anything. Doc. 74 at 51. Plaintiff was not injured during his arrest. Id. at 50. Hernandez was also taken into custody on similar charges. Doc. 89 ¶¶ 22-23. At trial, Plaintiff was ultimately acquitted of all charges. Doc. 47 ¶ 38; Doc. 87 ¶ 38.

Procedural History

Plaintiff filed suit against Pasco County Sheriff Christopher Nocco and several Pasco County law enforcement officers. Doc. 47. In Count I, Plaintiff sues Sheriff Nocco or, in the alternative, the Defendant deputies, for false arrest under Florida law. Id. at ¶¶ 39-60. In Count II, he sues Defendants Starnes, Clark, Meissner, McInnes, and Tellier under 42 U.S.C. § 1983 for First Amendment retaliation. Id. at ¶¶ 61-66. In Count III, Plaintiff sues Sheriff Nocco for negligent supervision and retention under Florida law. Id. at ¶¶ 67-73. Defendants now move for summary judgment as to all counts. Docs. 72, 75. The Undersigned held a hearing on both motions on September 13, 2022 (Doc. 108).^[4]

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 judgment, the nonmoving party must set forth specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian Ctr. Church, Inc., 826 Fed.Appx. 766, 770 (11th Cir. 2020) (citing Anderson, 477 U.S. at 249-50). “[U]nsupported conclusory allegations do not suffice.” Middlebrooks v. Sacor Fin., Inc., 775 Fed.Appx. 594, 596 (11th Cir. 2019). Likewise, “[a] ‘mere existence of a scintilla of evidence' cannot suffice to create a genuine issue of material fact.” Johnson, 826 Fed.Appx. at 770 (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

The Court begins its analysis with Count II, the federal claim that gives this Court subject-matter jurisdiction over this matter.

In Count II, Plaintiff alleges that Defendants Starnes, Clark, Meissner, McInnis, and Tellier were acting under color of law for the Pasco County Sheriff's Office when they retaliated against him for exercising his First Amendment rights. Doc. 47 ¶ 62. Plaintiff claims that Defendants targeted him in their investigation because of his “possible association with Wiltrober Hernandez.” Id. ¶ 64. He also asserts that the Defendants “unlawfully and without probable cause arrested [him] and subjected him to unnecessary force.” Id. ¶ 65. He adds that “such actions by Defendant Starnes were taken in retaliation for Plaintiff's lawful exercise of his rights under the First Amendment when he spoke to Defendant Starnes and he retaliated by arresting him.” Id. Plaintiff asserts that the Defendants' conduct violated his right to free speech as guaranteed by the First and Fourteenth Amendments. Id. ¶¶ 65-66.^[5]

In their motions, Defendants contend that summary judgment is warranted in their favor for Count II on qualified immunity grounds. First, they highlight that Plaintiff admits to never having spoken with Starnes and not even knowing who he is. Doc. 72 at 20-24; Doc. 75 at 10-12. They also argue that any claim of unnecessary force against Starnes or the remaining defendants must fail because Plaintiff testified that he doesn't know which deputies were present at his arrest and that he was not physically injured during his arrest. Doc. 72 at 23. Even if Plaintiff could show...