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Paylan v. Bondi

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

March 28, 2017

PAMELA BONDI, et al ., Defendants.


          Charlene Edwards Honeywell United States District Judge

         This cause comes before the Court upon the Report and Recommendation filed by Magistrate Judge Anthony E. Porcelli on February 28, 2017 (Doc. 419). The Magistrate Judge recommends dismissal with prejudice of all but one of Plaintiff's claims. All parties were furnished copies of the Report and Recommendation and were afforded an opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1). Plaintiff filed an Objection (Doc. 424)[1], to which the following Defendants responded: the City of Tampa and Castor (Doc. 432), Quill (Doc. 433), Bondi, Ober, Brown, and Dirks (Doc. 434) and Bishop, Detrio, Marcotrigiano, and Morman (Doc. 435).

         Upon consideration of the Report and Recommendation, this Court's independent examination of the file de novo, and a review of Paylan's Objection and the responses thereto, it is determined that the Report and Recommendation should be adopted, confirmed and approved in all respects.

         I. Background [2]

         Plaintiff, Christina Paylan, has now had four opportunities to state her claim. See Docs 1, 51, 222, 232. She filed numerous pleadings, attended mediation, and conducted discovery. And she received a thorough and detailed analysis of her claims, prepared by the Magistrate Judge, who has given her every reasonable opportunity to present any and all facts in support of her claims. See Doc 216. The Court is confident at this point, having reviewed all of the pleadings, including Plaintiff's proposed Third Amended Complaint, that the Plaintiff has had ample opportunity to state her claim and has simply failed to do so on all but one of the claims.

         Paylan alleges that her fiancé's family has plotted and schemed to get her arrested in order to end the relationship. In 2010, Paylan became engaged to Joseph E. Abdo (also referred to in the pleadings as “Big Joe”). At the time they started dating, Abdo had a successful internet company and provided financial support to his siblings in the thousands of dollars per month. As the relationship progressed, Abdo decided to stop providing financial support to several family members, including Defendants Michael Quill, Khalil Abdo and Marie Silva. Paylan alleges that Quill conspired with the family members and law enforcement to remove Paylan from Abdo's life.

         The scheme included making false charges against her by alleging that she was drugging Abdo, and illegally possessing narcotics. Quill hired a private investigator, Defendant Jeffrey Morelock, to investigate Paylan. Morelock conducted surveillance and went through the garbage cans outside her residence (referred to as “trash pulls” throughout the pleadings) to obtain evidence of drug use that could support a search warrant. Quill and Morelock approached law enforcement with their allegations and findings but did not get a positive response initially.

         Eventually, however, the Tampa Police Department (“TPD”) sought a warrant to search her home which she shared with her fiancé in June 2011. Part of the information included in the Search Warrant Affidavit was that three officers conducted three separate trash pulls and collected evidence of Demerol possession and use, witness statements from Joseph M. Abdo (Abdo's son referred to as “Little Joe” throughout the pleadings) and Johnny Gonzalez, Paylan's employee at her medical clinic, regarding Paylan's drug use and illegal sales of Demerol, among other things. The TPD executed the search warrant on June 9, 2011, and seized two vials of Demerol from the home and arrested Paylan. Paylan posted bond and was released.

         On July 1, 2011, Paylan boarded a plane to Georgia and was ultimately bound for Montreal to attend a wedding. Georgia law enforcement arrested Paylan based on a TPD warrant for arrest. Paylan alleges that Defendant Russell Marcotrigiano, who is a patient of hers and has connections with Khalil Abdo, used his influence to cause the July arrest. The Hillsborough County State Attorney's Office, headed by Defendant Mark Ober, with assistance from Defendants Darrell Dirks and Christine Brown, prosecuted the charges stemming from both arrests.

         Paylan fought the charges from the July 1, 2011 arrest, and the Florida District Court of Appeal found that the State Attorney's Office violated the speedy-trial rule. But Paylan was ultimately convicted of the crimes of “Obtaining a Controlled Substance by Fraud and Fraudulent Use of Personal Information” and “Fraudulent Use of Personal Information.” The investigations that led to the arrests in June and July 2011 led to the prosecution and conviction in 2014. See Official Records Book 22842 at pages 486-488 of the Official Records of Hillsborough County, Florida, recorded Oct. 9, 2014.[3]

         Paylan filed her Second Corrected Verified Amended Complaint[4] (“SAC”) alleging various causes of action against fifteen individuals in their official and individual capacities and the City of Tampa as outlined in the Report and Recommendation. Doc. 419 at 5-7. Quill, Comaneci DeVage, David Gee, Jane Castor, the City of Tampa, Pamela Bondi, Ober, Dirks, Brown, Brian Bishop, Mark Detrio, Russell Marcotrigiano, Kenneth Morman, Morelock, Silva, and Abdo all filed dispositive motions to dismiss the SAC.

         In the Report and Recommendation, Magistrate Judge Porcelli recommends that Devage's Dispositive Motion to Dismiss Plaintiff's Corrected Verified Second Amended Complaint (Doc. 246) be denied; all of the remaining Defendants' Motions to Dismiss (Docs. 233, 247, 248, 264, 267, 290, and 321) be granted, and Defendants Bondi, Ober, Dirks, Brown, Gee, Castor, Morman, Bishop, Detrio, Quill, Morelock, Marcotrigiano, Silva, Abdo, and the City of Tampa be dismissed from this case; Quill's Motion of Application of Judicial Estoppel Regarding Plaintiff's Attempt to Re-Characterize her July 1, 2011 Arrest (Doc. 311) be granted consistent with the findings of the Report and Recommendation; and all other pending motions in this case be denied as moot.

         II. Standard

         When a party makes a timely and specific objection to a Magistrate Judge's Report and Recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507, 512 (11th Cir. 1990). With regard to those portions of the Report and Recommendation not objected to, the district judge applies a clearly erroneous standard of review. See Gropp v. United Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). The district judge may accept, reject, or modify in whole or in part, the Report and Recommendation of the Magistrate Judge. Fed.R.Civ.P. 72. The district judge may also receive further evidence or recommit the matter to the Magistrate Judge with further instructions. Id.

         III. Discussion

         Upon de novo review, the Court agrees with the conclusions in the Magistrate Judge's Report and Recommendation (“R&R”). Paylan objects to the following in the R&R: the Magistrate Judge improperly invoked Federal Rule of Civil Procedure 12(d); probable cause did not exist for the June 9, 2010 search and arrest because Bishop's Search Warrant Affidavit contained statements from two individuals with severe credibility issues, omitted material facts, and made misrepresentations; the R&R does not properly address the warrantless search of Paylan's place of business; probable cause did not exist for the July 1, 2011 arrest; qualified immunity does not apply to shield the officers from liability for the June and July arrests; Eleventh Amendment immunity does not apply to shield Ober and Bondi because the SAC alleges that they exceeded their authority; prosecutorial immunity does not apply for Dirks and Brown's investigatory functions; the SAC properly pleads the claims against TPD; the SAC properly pleads supervisory liability; the racketeer influenced corrupt organization act (“RICO”) claim's allegations meet the heightened pleading standards; the SAC properly alleges a claim for intentional infliction of emotional distress (“IIED”); and the proposed Third Amended Complaint (Doc. 359-1) corrects the deficiencies highlighted in the R&R, justifying leave to amend.

         a. Federal Rule of Civil Procedure 12(d)(1)

         Paylan argues that the R&R states the appropriate standard for assessing a motion to dismiss, but does not adhere to that standard. She argues that the Magistrate Judge construed all of the allegations in the light most favorable to Defendants, considered evidence outside the four corners of the SAC, and resolved disputed facts in favor of Defendants. She also argues that although the R&R references Rule 12(d), the Magistrate Judge did not actually invoke it because the additional documents were submitted only to aid the Court in its probable cause analysis. She also complains that the Judge used Rule 12(d) to get “leeway” to impermissibly treat the motions to dismiss as summary judgment motions.

         Although the Court is typically confined to the allegations in the four corners of the complaint and must construe every factual allegation in the light most favorable to the non-moving party, the standard is actually more nuanced. The Court must construe all factual allegations in the light most favorable to the plaintiff, Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); it is not bound to accept as true a legal conclusion stated as a “factual allegation” in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “Threadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Paylan confuses factual allegations in her SAC with legal conclusions.

         Further, for motions to dismiss pursuant to 12(b)(6), it is generally true that the “scope of the review must be limited to the four corners of the complaint.” St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002). If matters outside the pleadings are presented by the parties and considered by the district court, the Rule 12(b)(6) motion must be converted into a Rule 56 summary judgment motion. Fed.R.Civ.P. 12(d). The Eleventh Circuit, however, has recognized an important qualification to this rule where certain documents and their contents are undisputed: “[i]n ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); see also Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir. 1999) (stating that “a document central to the complaint that the defense appends to its motion to dismiss is also properly considered, provided that its contents are not in dispute”).

         It is clear from the June 20, 2016 hearing transcript (Doc. 424-1 at 27) that the Magistrate Judge requested that the parties submit the Criminal Report Affidavit (“CRA”) for the July 1, 2011 arrest and any additional information regarding the arrests to the Court for review. Paylan argues that the Magistrate Judge never informed the parties that it would invoke Rule 12(d). The R&R references Rule 12(d) and states that

Here, given Paylan's assertions regarding the CRA are clearly divergent and that Paylan was successful in getting the July 1, 2011 charges dismissed based on the speedy-trial violation by relying upon the three-page CRA, the Court finds that Paylan should be estopped from making her allegations in this case about a two-page CRA. Alternatively, because the Court gave the parties notice and opportunity under Federal Rule of Civil Procedure 12(d), the Court finds under a summary judgment standard that the three-page CRA was the operative charging instrument for Paylan's July 1, 2011 arrest.

Doc. 419 at 38 (emphasis added and footnotes omitted).

         Because the Magistrate Judge considered the allegations and evidence under both a motion to dismiss standard and a summary judgment standard, Paylan's argument lacks merit. Under either standard, all factual references are viewed in the light most favorable to Paylan, as the nonmoving party. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2000) (motion to dismiss); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (summary judgment). Although the Magistrate Judge did not explicitly state that he would rely upon Rule 12(d) at the hearing, he gave the parties the requisite notice and opportunity which met the requirements to invoke the rule. See Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”). And the Court agrees with the Magistrate Judge's analysis and concludes that under Rule 12(d) and 12(b)(6), the Court can rely on the three-page CRA as part of its evaluation of whether Paylan stated a claim.[5]

         b. The Search of Paylan's Home and Arrests[6]

         Paylan argues that probable cause did not exist for the search of her home and the two arrests because of the unreliability of Little Joe and Gonzalez's statements, the DNA test showing that the needle recovered from the trash pull did not belong to either Paylan or Abdo, the family conspiracy to arrest her, and other facts that came to light after her arrests.

         Cases brought under 42 U.S.C. § 1983 require a heightened pleading standard because the individuals involved are entitled to assert a defense of qualified immunity. See Swann v. S. Health Partners, Inc. 388 F.3d 834, 836-38 (11th Cir. 2004). Under the qualified immunity analysis, the Court gives some deference to police officers and the information they possess at the time of the act that allegedly violates the plaintiff's rights. Holding officers accountable for information which may have very well existed at the time of their alleged acts but was not known to the officers is not permissible when conducting a qualified immunity analysis.

         The facts that Paylan raise in her arguments are irrelevant to the qualified immunity analysis because the allegations do not establish that the police officers had that information at the time of their respective actions. To the extent that they had some of the information Paylan references, i.e. potential criminal behavior by Gonzalez and pecuniary interest by Little Joe, that knowledge does not defeat the probable cause finding.

         The analysis in the R&R is premised on the June 9, 2011 search and arrest as “rising and falling” on whether the probable cause existed for the actions. In the presence of probable cause, Paylan's claims for unreasonable search and seizure and false arrest against all parties must fail. The R&R concludes that probable cause did indeed exist, as did the state court.[7] The Court, having conducted an independent review of the pleadings, agrees with this analysis.

         Paylan's SAC and proposed Third Amended Complaint do not allege with the requisite specificity the state actors' alleged falsehoods, fabrications, misrepresentations and material omissions in asserting probable cause for the search of her residence and arrest. See Doc. 232 at ΒΆΒΆ 17, 62, 65-70, 76, 77, 79, 85, 87, 88, 89, 91, 103, 169, 170, 171; Doc. 359-1. Further, Paylan's allegations regarding Bishop's misrepresentations and material omissions are insufficient to disturb a finding of probable cause in support of the Search Warrant. The Magistrate Judge focused on the investigative trash pulls of the three different police officers that revealed similar evidence of packages of Demerol, needles, and a prescription for one of Paylan's patients, L.B. Although Paylan alleges that Bishop was involved in the larger conspiracy to get her arrested and that Quill and Morelock's trash pulls were fabricated, Paylan did not allege that the officers fabricated evidence or were aware that any of the evidence from their three trash pulls was fabricated. And although Gonzalez and Little Joe may have had credibility issues, the evidence from the trash pulls ...

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