United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on defendants' Motions to
Dismiss (Doc. #16; Doc. #19) filed on February 23, 2017.
Plaintiff David Lee Swanson, Jr. (plaintiff or Swanson) filed
a response in opposition (Doc. #26) on March 17, 2017. For
the reasons set forth below, the motions are granted with
leave to amend.
31, 2016, Swanson filed a five-count Complaint (Doc. #2),
alleging both common law and 42 U.S.C. § 1983 claims
against defendants for malicious prosecution, as well as a
claim for civil conspiracy pursuant to 42 U.S.C. § 1983
against all defendants. The claims stem from plaintiff's
arrest on December 5, 2008, and subsequent criminal
prosecution on drug charges. Plaintiff alleges that he was
arrested based on false affidavits of defendants Smith,
Zercher, and Armato, who are all police officers with the Lee
County Sheriff's Office. Plaintiff alleges that following
his arrest he was charged with six felony offenses and found
guilty based upon the officers' false testimony.
Plaintiff's sentence was subsequently vacated for
ineffective assistance of counsel, and the State
Attorney's Office ultimately filed a nolle
prosequi on the charges.
now move to dismiss Count V, civil conspiracy, based upon the
intracorporate conspiracy doctrine, and Sheriff Scott moves
to strike the prayer for punitive damages against him from
Federal Rule of Civil Procedure 8(a)(2), a Complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This obligation “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, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (internal citations
omitted). Thus, the Court engages in a two-step approach:
“When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Conspiracy and the Intracorporate Conspiracy
Count V, plaintiff alleges that all defendants subjected him
to a conspiracy to commit malicious prosecution in violation
of his Constitutional rights. Under this Count, plaintiff
alleges that defendants filed a false sworn statement and
testified falsely at plaintiff's trial. (Doc. #2, ¶
133). Defendants move to dismiss Count V for failure to state
a claim upon which relief can be granted because
plaintiff's allegations of conspiracy are insufficient
under the intracorporate conspiracy doctrine. Defendants
argue that because they are all government actors who were
acting within the course and scope of their employment at all
times, a conspiracy between them is a legal impossibility
pursuant to the doctrine. In response, plaintiff argues that
he is alleging that defendants engaged in a criminal
conspiracy, an exception to the doctrine.
plaintiff may state a § 1983 claim for conspiracy to
violate constitutional rights by showing a conspiracy existed
that resulted in the actual denial of some underlying
constitutional right. GJR Invs., Inc. v. County of
Escambia, 132 F.3d 1359, 1370 (11th Cir. 1998)
(overruled on other grounds by Randall v. Scott, 610
F.3d 701 (11th Cir. 2010)). Under the intracorporate
conspiracy doctrine, “a corporation cannot conspire
with its employees, and its employees, when acting in the
scope of their employment, cannot conspire among themselves.
The doctrine applies to public entities such as the City and
its personnel.” Denney v. City of Albany, 247
F.3d 1172, 1190 (11th Cir. 2001) (internal citations omitted)
(intercorporate conspiracy doctrine barred a claim that two
city employees acting in their official capacities conspired
to deprive plaintiffs of their civil rights). Specifically,
“[t]he intracorporate conspiracy doctrine holds that
acts of corporate agents are attributed to the corporation
itself, thereby negating the multiplicity of actors necessary
for the formation of a conspiracy.” McAndrew v.
Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir.
2000) (en banc). However, the Eleventh Circuit has recognized
an exception to the intracorporate conspiracy doctrine in
civil rights cases when the alleged conduct of the
conspirators violates the federal criminal code. Grider
v. City of Auburn, 618 F.3d 1240, 1263 (11th Cir. 2010).
the only conspirators identified by Swanson are employed by
the Lee County Sheriff's Office, and the acts are alleged
to have been within the scope of their employment. The
subject of their alleged conspiracy - prosecution of Swanson
on drug charges supported by signed affidavits and testimony
- involves job-related functions well within defendants'
scope of employment as police officers. “The
scope-of-employment inquiry is whether the employee police
officer was performing a function that, but for the
alleged constitutional infirmity, was within the ambit
of the officer's scope of authority (i.e.,
job-related duties) and in furtherance of the employer's
business.” Grider, 618 F.3d at 1261 (emphasis
added). Therefore, the intracorporate conspiracy doctrine
would bar plaintiff's conspiracy claim unless an
Swanson invokes the exception to the intracorporate
conspiracy doctrine in his brief, asserting that
defendants' conduct meets the elements of an information
filed under 18 U.S.C. § 214, nowhere in his Complaint
does he make such specific allegations of federal criminal
code violations. Furthermore, plaintiff alleges in his brief
that a violation of 42 U.S.C. § 1982(2), as referenced
in paragraph 67 of his Complaint, may satisfy the exception,
citing McAndrew v. Lockheed Martin Corp., 206 F.3d
1031, 1035 (11th Cir. 2000). Yet the McAndrew case
does not discuss Section 1982(2). It references 42 U.S.C.
§ 1985(2), conspiracy to interfere with ...