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Gustavo Abella v. Town of Miami Lakes

November 28, 2011


The opinion of the court was delivered by: Cecilia M. Altonaga United States District Judge


THIS CAUSE came before the Court on nine separately filed Motions to Dismiss, individually filed by Defendants Nancy Simon [ECF No. 36], A. Salazar [ECF No. 43], Raymond Del Valle [ECF No. 44], Hector Valls [ECF No. 45], Benjamin Rivera [ECF No. 46], Juan F. Rodriguez [ECF No. 47], Richard Baez [ECF No. 48], Frank Bocanegra [ECF No. 49], and Robert Parker [ECF No. 50]. Defendant Simon's Motion (the "Simon Motion") was filed on April 25, 2011, with the other eight Motions filed on May 31, 2011. The Court has considered the parties' arguments and the applicable law.


Plaintiff, Gustavo Abella ("Abella"), is a resident of Miami-Dade County. (See Am. Compl. ¶ 3 [ECF No. 17]). Abella alleges a myriad of constitutional violations against public officials, namely police officers from Miami Lakes, Florida. (See Am. Compl.).

a. Political Sign - Councilmember Nancy Simon, Officer Juan F. Rodriguez

In February 2007, the City of Miami Lakes held a town meeting. (See Am. Compl. ¶ 18). Plaintiff attended and spoke out against "an issue regarding posting commercial signs on the right of ways in the streets of the Town of Miami Lakes." (Id.). Soon thereafter, Miami Lakes Police Officer Juan F. Rodriguez stopped Plaintiff outside of his daughter's school. (See id. ¶¶ 18, 28). Officer Rodriguez told Abella he had "received orders to ask [Abella] to remove the sign [he] had in the back of his pick up [sic] [truck]." (Id. ¶ 28) (internal quotation marks omitted). The sign read, "Councilmember Nancy Simon wants to pollute Miami Lakes with signs." (Id. ¶ 18) (internal quotation marks omitted). Abella alleges the police threatened to issue him a citation if he did not take down the sign. (See id.). He nevertheless refused to remove the sign. (See id.). Abella, allegedly believing Simon, a Miami Lakes elected official, ordered the police to approach him, asserts "Simon's actions were undertaken as retaliation for [Abella's] exercise of his First Amendment right to free speech." (Id.).

Abella alleges the aforementioned actions taken by Councilmember Simon and Officer Rodriguez violate 42 U.S.C. § 1983. (See id. Counts I, III).

b. Flyers - Officer Hector Valls

On January 7, 2008, Abella witnessed the president of his condominium association passing out flyers "with libel [sic] information against [Abella]." (Am. Compl. ¶ 57). The flyers contained a picture of Councilmember Simon and were addressed to all residents. (See id.). Plaintiff called the police to complain. (See id.). Officer Valls responded to Abella's request. (See id. ¶ 58). Upon Officer Valls's arrival, Abella asked him to write up an official police report. (See id.). Declining to take a report, Officer Valls took a flyer out of Abella's hand and stated "he had more important things to do." (Id.) (internal quotation marks omitted). Upon Abella's continued persistence that he write a report, Officer Valls asked, "[d]o you want to get arrested?" (Id. ¶ 59) (internal quotation marks omitted). Abella replied that if there were "grounds to arrest him then to proceed." (Id. ¶ 60). Officer Valls then told Abella to move out of his way, he put his car in reverse, nearly hit Abella, and left. (See id. ¶ 61).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, intimidation, and stalking against Officer Valls. (See id. Count V(V*fn2 )).

c. Parking Ticket Issue 1 - Officer Juan F. Rodriguez

In April 2007, Abella was in a drop-off area at his daughter's school when Officer Juan F. Rodriguez issued him a traffic citation because he had parked in a manner blocking handicap spaces. (See Am. Compl. ¶ 33). Abella claims he "was not parked, had the motor running and was waiting for his wife who went to drop off their daughter." (Id.). Before issuing the ticket, Officer Rodriguez asked Abella to move his car. (See id. ¶ 34). Abella declined to listen, stating instead he could not move it because school construction limited available parking spaces. (See id.). Abella then got out of his car and took pictures of the handicap spaces, which were occupied by school employees' vehicles. (See id. ¶ 35). Abella fought the ticket, but lost. (See id. ¶ 36). He blames the loss on Officer Rodriguez lying. (See id.).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, intimidation, and stalking by Officer Rodriguez. (See id. Count IV).

d. Parking Ticket 2 - Officer Raymond Del Valle

Abella alleges that on February 18, 2008, despite the fact that his car was parked in its assigned condominium parking space, Officer Del Valle left a parking citation on the windshield. (See Am. Compl. ¶¶ 87--89). Abella requested a court date, and the citation was dismissed. (See id. ¶ 90).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, and intimidation by Officer Del Valle. (See id. Count VI).

e. Parking Ticket 3 - Officer A. Salazar

On August 12, 2008, Plaintiff ventured to the Miami Lakes Town Hall. (See Am. Compl. ¶ 92). While there, he "parked in front of the building where there were other cars parked." (Id.). When Abella returned to his car "a couple of minutes later," Officer Salazar was writing Abella a parking ticket. (Id.). After Abella protested the ticket, Officer Salazar said, "I was given the order to write you a ticket and Bocanegra is watching me until I finish giving you the ticket." (Id. ¶¶ 93--94) (internal quotation marks omitted). Abella then went home, retrieved his camera, and returned to the scene to photograph the other cars in the same area that were not given parking citations. (See id. ¶ 96). A couple of days later, Major Bocanegra, along with two other officers, reviewed Abella's parking citation and "decided to rip off [sic] the ticket." (Id. ¶¶ 97, 133). A few days later, Officer Salazar told Abella that "he was ordered by [Major] Bocanegra to give Abella the citation for improper parking." (Id. ¶ 98).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, and intimidation by Officer Salazar. (See id. Count VII(S)).

f. Parking Ticket 4 - Officer Benjamin Rivera

On April 3, 2009, Plaintiff and his wife tried to drop their daughter off at school but there were no available parking spaces. (See Am. Compl. ¶ 67). Instead, Abella pulled into the driveway of a friend who allows him to use it "at any moment needed." (Id.). Plaintiff's wife and daughter exited the car and walked to the school. (See id.). Abella then left the driveway and "went toward Miami Lakeway South and made a Left [sic] to go East." (Id.). Abella drove into a Congregational Church parking lot and "made a U-turn to comeback [sic] to the school and pick up his wife." (Id. ¶ 68). After observing Abella's driving, Officer Rivera approached Abella's car. (See id. ¶ 69). Officer Rivera then issued Abella a parking citation for parking in violation of Florida statute section 316.1945(1)(a)(10).*fn3 (See id. ¶ 71).

Ten minutes later, Abella returned home only to have Officer Rivera arrive outside his residence a few minutes later. (See id. ¶ 72). Abella's wife photographed this to "document the police presence outside their apartment." (Id. ¶ 73).

Plaintiff challenged the ticket and was granted a court date. (See id. ¶ 74). At the June 15, 2009 hearing, Abella claims Officer Rivera lied to the hearing officer about how the events unfolded on April 3, 2009. (See id. ¶ 76). Abella maintains that Officer Rivera's behavior at the hearing was so bad that "[m]any times [the hearing officer] had to tell him to calm down." (Id.). The hearing continued and at times it got personal between Officer Rivera and Abella. (See id. ¶¶ 77--78). After testimony from Abella's wife, the hearing officer found Abella not guilty. (See id. ¶¶ 79--81) (internal quotation marks omitted).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, intimidation, and stalking by Officer Rivera. (See id. Count V(R)).

g. Watch Order for Police Presence

In March 2007, the City of Miami Lakes held a town meeting. (See Am. Compl. ¶ 19). At the meeting, Abella spoke out against "the attitude of an employee of the Adult Education Classes." (Id.). A couple of days after the meeting, on March 14, 2007, the police, via Officer Rodriguez, issued a watch order for police presence coinciding with the days and times Abella's daughter had ballet and martial-arts classes. (See id. ¶¶ 19, 29--30). Town Mayor Wayne Slaton later invalidated the watch order. (See id. ¶¶ 19, 31).

Abella asserts the aforementioned actions by Officer Rodriguez violate 42 U.S.C. § 1983. (See id. Count III). Abella also alleges a violation of section 1983 against Councilmember Simon. (See Count I).

h. Injunction - Councilmember Simon

On December 19, 2007, Councilmember Simon filed for a "Temporary Injunction for Protection" against Abella. (Am. Compl. ¶ 23). Abella claims the injunction contained false allegations against him as revenge for a complaint his wife had filed with the Florida Department of Business and Professional Regulations against Simon in which Simon was ultimately found guilty. (See id., p. 2).

On December 21, 2007, the injunction was served on Plaintiff. (See id. ¶ 21). Per the injunction, Abella could not come within 500 feet of Councilmember Simon's residence, nor enter any of the following within the City of Miami Lakes: Town Hall, Publix located at 67 Ave. and NW 154 St., CVS Pharmacy located in the same shopping center as the Publix, Marathon gas station located at 150 NW and 61 Ave., and the Chevron gas station located within 250 feet of Abella's residence. (See id.). Abella claims he was prevented from buying groceries from the supermarket where he has always shopped. (See id.). He also could not obtain his daughter's medication from CVS, nor could he buy gas at a station near his residence. (See id.).

On January 31, 2008, a judge dismissed the case against Abella, finding there was no just cause to issue the injunction. (See id. ¶ 25). Abella additionally claims Councilmember Simon used taxpayer money to compensate the three attorneys she hired for the case. (See id. ¶ 26).

Abella alleges two violations based on the aforementioned actions, both against Councilmember Simon: (a) malicious prosecution for filing the injunction, and (b) a 42 U.S.C. § 1983 violation for the injunction itself. (See id. Counts I, II).

i. Councilmember Simon Tries to Remove Abella from School Property

In November 2007, Plaintiff and his wife were parked outside their daughter's school when Councilmember Simon "asked [s]chool [s]security to remove [Abella] from the school property." (Id. ¶ 20) (internal quotation marks omitted). School security responded that Abella was neither on school property nor was he doing anything improper. (See id.). Simon then called the police and within minutes they arrived and "drove by" Abella while he was in his car. (Id.). Abella alleges Councilmember Simon's actions violate 42 U.S.C. § 1983. (See id. Count I).

j. Trespass - Officer Richard Baez

On September 19, 2009, Plaintiff's wife and daughter were home when they noticed a police car backing up outside their porch. (See Am. Compl. ¶ 100). A second police car did the same thing a few minutes later. (See id.). Plaintiff's wife then grabbed her camera and photographed the police. (See id. ¶ 101). The two officers exited their vehicles and one of them, Officer Baez, "came inside the porch" to inquire about the pictures. (Id. ¶ 102). Officer Baez never requested permission to enter Plaintiff's property. (See id. ¶ 104). Abella claims Officer Baez was not authorized to enter the property. (See id.).

Plaintiff alleges Officer Baez's actions violate 42 U.S.C. § 1983. (See id. Count VII(B)).

k. Harassment

Between December 2007 and December 2010, Abella was "surrounded anywhere he went in the Town of Miami Lakes by Police Officers." (Am. Compl. ¶ 114). Notably, there was a police presence outside Abella's porch and his daughter's school. (See id. ¶¶ 83, 85, 115). Officers would remain outside his residence for more than four hours with their cars' motors running. (See id. ¶ 116--16 [sic]). Abella requested an investigation in order to put a stop to the "abuse of power, violation of civil rights . . . intimidation, harassment [and] stalking." (Id. ¶ 118). But the authorities Abella approached - Miami-Dade State Attorney's Office, Miami-Dade Public Corruption, and Miami-Dade Commission on Ethics - all stated they lacked jurisdiction over the matter. (See id. ¶ 120). Abella told the Miami-Dade Police Department's Internal Affairs that "all the complaints that have been filed against some of these police officers ended up as contract reports." (Id. ¶ 122) (internal quotation marks omitted). Abella alleges the aforementioned police actions constitute an abuse of power, harassment, and intimidation by the John Doe Officers, and the same - plus stalking - by Officer Rivera. (See id. Counts VIII, V(R)).

Additionally, on the mornings of June 3 and 4, 2008, while driving next to Abella, Officer Rodriguez was "displaying his sarcasm, [and] making signs with his hands while driving the patrol car." (Id. ¶ 41). On June 5, 2008, Abella complained to Major Bocanegra, requesting he investigate Officer Rodriguez's "attitude and behavior." (Id. ¶ 42). Abella never received a response. (See id.).

At approximately 8:15 a.m. on August 20, 2008, Plaintiff was driving with his daughter when Officer Rodriguez "showed up and was driving parallel to [Abella and] being sarcastic." (Id. ¶ 43). A similar incident also occurred in December 2010, which made Abella's daughter arrive "at school in fear." (See id. ¶¶ 53--54). On this occasion, Abella photographed Officer Rodriguez who then "seemed to be upset of the [sic] pictures and continued with the sarcasm, harassment and intimidation." (Id. ¶ 55). Abella lodged another complaint with Miami-Dade Internal Affairs. (See id.).

On February 26, 2009, Plaintiff and his wife went to pick their daughter up from school. (See id. ¶ 48). Abella noticed Officer Rodriguez talking to Officer Torres outside Torres's patrol car. (See id.). Abella exited his car and photographed of Officer Rodriguez "and this seemed to have bothered him." (Id.). Officer Rodriguez then drove his car near Abella and asked him to move his car forward. (See id. ¶ 49). Next, Officer Rodriguez issued Abella a citation for parking in a no-parking space, where "there were 2 [sic] other cars also parked." (Id.). Officer Rodriguez, however, only cited Abella. (See id.). While writing up the citation, Abella and Officer Rodriguez exchanged words. Officer Rodriguez said, "the complaints [Abella] filed with the Commission on Ethics was [sic] not going to do anything to him." (Id. ¶ 50) (internal quotation marks omitted). Abella responded, "[Officer Rodriguez] should not be wearing a badge." (Id.) (internal quotation marks omitted). Officer Rodriguez replied, "if you want I would remove my gun." (Id.) (internal quotation marks omitted).

Abella alleges the aforementioned actions from June 2008, August 2008, and February 2009 constitute an abuse of power, harassment, intimidation, and stalking by Officer Rodriguez. (See id. Count IV).

On September 21, 2009, Plaintiff and his wife were dropping their daughter off at school when their daughter noticed and recognized Officer Baez. (See id. ¶ 109). Abella then took a picture of him. (See id.). Plaintiff's wife and daughter exited the vehicle, at which time Abella drove off because he could not find parking. (See id. ¶ 110). When he returned to pick up his wife, he started photographing Officer Baez again. (See id.). At this moment Officer Baez "came and pushed [Abella's] camera toward [Abella's] face and kept pushing inside the window." (Id.). Abella alleges Officer Baez's actions violate 42 U.S.C. § 1983. (See id. Count VII(B)).

l. Negligent Supervision/Non-Responsiveness - Major Frank Bocanegra, Director Robert Parker

Abella accuses Major Bocanegra of negligently failing to supervise police officers. (See Am. Compl. ¶ 124). Abella also maintains that former Miami-Dade Police Department Director Parker, as the commanding officer responsible for his police force, did not afford Abella and his family equal protection under the law because he failed to investigate the alleged actions of his police officers. (See id. ¶¶ 137--39).

On several occasions, Abella contacted local authorities to end to the actions of Miami Lakes police officers, namely Officer Rodriguez. For example, on April 16, 2007, Abella's wife emailed Director Robert Parker complaining about "Officer Juan Rodriguez's attitude and behavior . . . [he] will come after [Plaintiff and his wife] harassing, stalking and intimidating for voicing their opinions in the [Town Hall] meetings." (Id. ¶ 37). Also on that date, Plaintiff and his wife requested that Miami-Dade Internal Affairs investigate Officer Rodriguez's behavior. (See id. ¶ 38). In response to Abella's accusations, the Miami Lakes Town Manager, Alex Rey, on April 16, 2007, emailed Major Bocanegra requesting that he submit a report with conclusions to Rey. (See id. ¶ 126). On January 8, 2008, Abella's wife requested a copy of that report, but was told "[t]here is no record responsive to this request." (Id. ¶ 127) (internal quotation marks omitted).

Abella's efforts continued. First, Abella requested Major Bocanegra take action against other officers, including Officer Rodriguez, but Bocanegra took no action. (See id. ¶¶ 128--29). Second, on September 16, 2008, Abella sent a letter to Director Parker detailing all the incidents that he and his family had been subjected to. (See id. ¶¶ 46, 136). Abella claims his "complaint was just discarded and no action was taken to this date." (Id. ¶ 136; see also ¶ 46). Third, in October 2008, Plaintiff, along with his wife, had a meeting with Major Bocanegra. (See id. ¶ 47). Abella claimed that he and his family were victims of Officer Rodriguez's harassment and requested that it be stopped. (See id.). Fourth, in November 2008, Abella filed a complaint with the Commission on Ethics but "nothing happen [sic]." (Id.).

Abella alleges the aforementioned actions constitutes an abuse of power, harassment, intimidation, and trespassing, as well as violations of section 1983, by Major Bocanegra and Director Parker. (See id. Counts IX--XI).


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).

In reviewing the Amended Complaint, the Court is cognizant that, in this circuit, there is a "heightened pleading requirement in section 1983 claims against individuals and plaintiffs cannot rely on 'vague or conclusory' allegations." Epps v. Watson, 492 F.3d 1240, 1242--43 (11th Cir. 2007) (citing GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998); Fullman v. Graddick, 739 F.2d 553, 556--57 (11th Cir. 1984)); see also Horne v. Soc. Sec. Admin., 359 F. App'x 138, 143 (11th Cir. 2010). In section 1983 cases, "the complaint must allege the relevant facts 'with some specificity.'" Epps, 492 F.3d at 1243 (citing GJR Invs., 132 F.3d at 1367). With section 1983 complaints,

[m]ore than mere conclusory notice pleading is required. A complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory. . . . Unsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal. We must also keep in mind the fact that we generally accord official conduct a presumption of legitimacy.

Horne, 359 F. App'x at 143 (alteration in original) (quoting Dalrymple v. Reno, 334 F.3d 991, 993, 996 (11th Cir. 2003)).


In considering the Motions, the Court has grouped Defendants into three categories: Councilmember Simon, Police Officers, and Supervisors. All Defendants move to dismiss Abella's Amended Complaint for a myriad of reasons. The Court will first consider the plausibility of each claim against each group of Defendants, and then with any surviving claims, discuss whether Defendants are entitled to qualified immunity.

a. Claims

1. Allegations ...

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