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Nora B. Delvalle v. Officer A. Smith/6146 and City of Hallandale Beach

December 27, 2011



THIS CAUSE is before the Court on Defendants Officer A. Smith and City of Hallandale Beach's Motion to Dismiss Amended Complaint for Malicious Prosecution, False Arrest and Battery [DE 25] ("Motion"). The Court has considered the Motion, Plaintiff Nora B. Delvalle's Response [DE 28], Defendants' Reply [DE 29], and the record in this case, and is otherwise fully advised in the premises.


On May 23, 2011, Plaintiff Nora B. Delvalle filed this action against Defendants Officer A. Smith and the City of Hallandale Beach ("the City"). See Complaint [DE 1]. On November 14, 2011, after the Court granted Defendants' motion to dismiss the original Complaint [DE 19], Plaintiff filed her Amended Complaint [DE 24]. The Amended Complaint brings four claims pursuant to 42 U.S.C. § 1983: malicious prosecution against Officer Smith (Count I); false arrest or imprisonment against the City (Count II); battery against the City (Count III); and failure to intervene against the City (Count IV). See id.

The Amended Complaint alleges that on or about July 20, 2008, Officer Smith stopped Plaintiff while she was driving. Am. Compl. ¶ 8. Plaintiff maintains that she was driving her vehicle within her lane, id. ¶ 29, but Officer Smith's Complaint Affidavit [DE 24-1] indicates that he observed Plaintiff's vehicle swerving in its lane and crossing into the bicycle lane, Am. Compl. ¶ 9; Compl. Aff. After stopping Plaintiff, Officer Smith administered roadside sobriety tests, but according to the Complaint, he did not describe or explain the physical requirements associated with the tests, nor did he provide Plaintiff with an opportunity to explain limitations that prohibited her from performing the exercises properly. Am. Compl. ¶¶ 12, 13, 15.

Officer Smith ultimately charged Plaintiff with driving under the influence ("DUI") and with violation of a traffic control device, arrested her, and escorted her to the Broward County Sheriff's facility for breath analysis. Am. Compl. ¶¶ 10, 16-18. Though the breath analysis test results were .027 and .025, within .02 of each other, and both below the legal limit for DUIs, Officer Smith allegedly "used the result of the breath analysis as probable cause to charge [] Plaintiff with DUI, describing results as inconsistent." Id. ¶ 19-20. Officer Smith then required Plaintiff to submit a urine sample, which Plaintiff claims to have witnessed Officer Smith mishandle. Id. ¶¶ 21-22.

Plaintiff contends that Officer Smith lacked probable cause to charge her with DUI and violation of a traffic control device. Id. ¶¶ 25-26. As a result of Officer Smith's conduct, Plaintiff claims that she suffered sleep deprivation, harm to her reputation, emotional distress, mental anguish, loss of enjoyment of life, public ridicule, loss of self-esteem, pain, suffering, and humiliation, among other damages. Id. ¶¶ 33-34. In addition, she notes that she "had to post a bond, hire a criminal defense attorney and endure uncertainty, fear and anxiety with respect to the arrest and charges issued by Officer A. Smith." Id. ¶ 35.

Plaintiff further alleges that the City is liable for Officer Smith's conduct because its "policies, practices, customs and procedures violated Plaintiff's rights under the 4th, 5th, and 14th Amendments of the United States Constitution to be free from unreasonable searches and seizures and to be free from the deprivation of her right to liberty without due process of law." Id. ¶ 37. The City allegedly "condoned, ratified and ignored without remediation Officer A. Smith's violation of Plaintiff's right[s]." Id. ¶ 38. Also, Plaintiff claims that Officer Smith's supervisor, Sergeant T. Crevier, failed to intervene in Plaintiff's arrest, and that the City "directly or indirectly, under color of law, approved or ratified this unlawful conduct." Id. ¶ 67. Therefore, Plaintiff seeks damages against Officer Smith and the City.


Under Rule 12(b)(6), a motion to dismiss lies for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).In order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "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 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (citations omitted). "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 Twombly, 550 U.S. at 570).

At this stage in the litigation, the Court must consider the factual allegations in the Complaint as true, and accept all reasonable inferences therefrom. Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). Nevertheless, the Court may grant a motion to dismiss when, "on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).


Defendants seek to dismiss the entire Amended Complaint for failure to state a claim upon which relief can be granted. Plaintiff contends that her pleading is sufficient to survive dismissal. In accordance with the below discussion, the Court finds that Plaintiff has stated a claim for malicious prosecution, but has failed to state her remaining claims against the City.

A. Malicious Prosecution (Count I)

To plead a malicious prosecution claim, the plaintiff must allege that "(1) an original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damages as a result of the original proceeding." Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. Dist. Ct. App. 2002) (citing Burns v. GCC Beverages, Inc., 502 So. 2d 1217 (Fla. 1986)). Defendants contend that Plaintiff has not and cannot plead the fourth element, lack of probable cause, because Officer ...

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