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Phillips v. City of West Palm Beach

United States District Court, S.D. Florida

July 25, 2018

CITY OF WEST PALM BEACH, et al., Defendants.



         THIS CAUSE is before the Court upon the City of West Palm Beach's (“City”) Motion to Dismiss Plaintiff's Amended Complaint with Prejudice, ECF No. [45] (“City's Motion to Dismiss”); Brian Kapper and Bradley Emmons's (the “Officers”) Motion to Dismiss the Amended Complaint, ECF No. [58] (“Officers' Motion to Dismiss”); and Defendant Michael Ghent's (“Ghent”) Motion to Dismiss the Amended Complaint, ECF No. [64] (“Ghent's Motion to Dismiss”). For the reasons explained below, all three Motions are granted in part and denied in part.

         I. BACKGROUND

         Plaintiff, a pro se litigant, filed the original complaint on February 14, 2018. See ECF No. [1]. The original complaint consisted of five counts only against the City for “violation of the Plaintiff's Fourth, Fifth, Sixth and Eight [sic] Amendment rights.” Id. at ¶ 5. On April 5, 2018, the City moved to dismiss Plaintiff's original complaint. See ECF No. [16]. Plaintiff thereafter filed a Motion for Leave to Amend Complaint to Add Additional Parties, which was granted. See ECF Nos. [27] and [28]. Upon filing the Amended Complaint, Plaintiff named three more Defendants in both their official and individual capacities: former West Palm Beach Police Officer Michael Ghent (“Ghent”) and current officers Brian Kapper (“Kapper”) and Bradley Emmons (“Emmons”). ECF No. [33] at ¶¶ 6-7.

         The Amended Complaint raises claims relating to Plaintiff's arrest in 2001 and conviction for two crack-cocaine related charges in 2003. Id. at ¶¶ 12, 15. In total, Plaintiff was convicted on five different counts in the underlying criminal proceedings: (1) Count 1: conspiracy to sell less than five grams of crack cocaine, (2) Count 9: distribution of crack cocaine, (3) Count 11: simple possession of powder cocaine, (4) Count 14: felon in possession of .38-caliber ammunition, and (5) Count 17: felon in possession of ammunition. See ECF No. [67] at 39. The allegations in the Amended Complaint only pertain to Plaintiff's convictions for Count 1 and Count 9, which the Eleventh Circuit vacated in 2017. See ECF No. [33] at ¶ 26. As it relates to his conviction for Counts 1 and 9, Plaintiff alleges that Ghent and the Officers procured the issuance of an arrest warrant from a magistrate judge based on the false claim that Ghent witnessed Plaintiff selling crack-cocaine in 2001. Id. at ¶12. Further, Plaintiff alleges that Ghent and the Officers provided what they knew to be false information to federal law enforcement and to the district court that “Ghent had witnessed Plaintiff distribute crack cocaine and conspired to distribute crack cocaine.” Id. at ¶ 10. All of these actions were taken to establish false probable cause to arrest Plaintiff for crimes he states he did not commit. Id. at ¶ 11. During the trial in federal court, Ghent testified before the jury and stated that he witnessed Plaintiff sell crack-cocaine. Id. at ¶ 14. This testimony led to Plaintiff's conviction on December 20, 2002 and a resulting sentence of thirty years in federal prison on August 19, 2003 for the five aforementioned counts. Id. at ¶ 15. Plaintiff alleges that the Officers “negligently” failed to expose Ghent's testimony as false during the trial. Id. at ¶ 16. Plaintiff also alleges that the Officers falsified documents and lied to the United States Attorney's Office (“USAO”) to hide their participation in the framing and maintenance of Plaintiff's wrongful conviction. Id. at ¶ 17.

         With this background, Plaintiff's Amended Complaint consists of five counts. Count I appears to be a malicious prosecution claim under either state law or 42 U.S.C. § 1983 (“§ 1983”) against Officers Ghent, Kapper, and Emmons in their individual capacities. Id. at ¶ 21. Count II is a malicious prosecution claim under § 1983 against the City and the West Palm Beach Police Department (“WPBPD”). Id. at ¶ 31. Count III is a § 1983 false imprisonment claim against Officers Ghent, Kapper, and Emmons individually. Id. at ¶ 43. Count IV is a § 1983 false imprisonment claim against the City and the WPBPD. Id. at ¶ 50. Count V appears to be a claim for a violation of Plaintiff's Sixth Amendment right to counsel. Id. at ¶ 60-61.

         The City filed its Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. [45]. The City also seeks dismissal of the claims against the WPBPD, arguing it is not a legal entity, as well as dismissal of the claims against Officers Ghent, Kapper and Emmons in their official capacity, arguing that it is duplicative of Plaintiff's claims against the City. Id. at 4. In his Response, [1] Plaintiff conceded three points: (1) the WPBPD is not a legal entity and should be dismissed from the action, (2) his lawsuit against the officers in their official capacities is simply a suit against the City and is thus unnecessary, and (3) Count IV should be voluntarily dismissed. See ECF No. [47]. The City thereafter filed its Reply. See ECF No. [54]. The Motion is now ripe for review. In light of Plaintiff's three concessions, the Court addresses those matters that remain in dispute.

         The Officers filed their own Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. [58] at 1. The Officers seek dismissal of both Counts I and III. Id. They argue that Count III requires dismissal pursuant to qualified immunity while Count I must be dismissed because Plaintiff failed to state a claim for malicious prosecution. Id. at 4, 12. Plaintiff's Response concedes that Count III should be voluntarily dismissed and clarifies that Count I is a Florida common law claim for malicious prosecution. See ECF No. [67] at 4, 9. In light of these concessions, the Court addresses those matters in dispute.

         Similar to the Officers Motion, Ghent's Motion to Dismiss seeks to dismiss Counts I and III, asserting that Count I is barred as there existed probable cause for Plaintiff's arrest. See ECF No. [64] at 6. He also argued that Count III requires dismissal because of the statute of limitations, the existence of probable cause, and because Plaintiff was arrested pursuant to legal process. Id. at 3-6. In his Response, Plaintiff agrees to voluntarily dismiss Count III against Ghent for false imprisonment. See ECF No. [82] at 1. As to malicious prosecution, Plaintiff argues that his claim against Ghent is a § 1983 claim, which contradicts the indications from his Response to the Officer's Motion to Dismiss. Id. at 5; See ECF No. [67] at 9. Further, Plaintiff argues that Ghent misconstrued the Eleventh Circuit's opinion from the underlying criminal proceeding in order to establish probable cause and bar Count I. See ECF No. [82] at 8. The Court will address the dispute regarding Count I in light of the argument asserted by Ghent.


         a. Motion to Dismiss

         For civil actions, a pleading 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). While a complaint “does not need detailed factual allegations, ” it must provide “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); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).

         When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all possible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in the complaint ‘obvious alternative explanations,' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

         b. Pro se Litigants

         Courts must liberally construe all pleadings submitted by a pro se litigant. See Jarzynka v. St. Thomas Univ. of Law, 310 F.Supp.2d 1256, 1264 (S.D. Fla 2004). Notwithstanding such leniency, courts cannot serve as de facto counsel for a party and cannot rewrite a deficient pleading for the sake of sustaining an action. Id. (quoting GJR Investments Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)). That is, “[t]he Court cannot simply ‘fill in the blanks' to infer a claim.” Grady v. Georgia Dep't of Corr., No. CV409-103, 2010 WL 322881, at *2 (S.D. Ga. Jan. 27, 2010). In determining whether a pro se litigant has stated a claim, “the court ought not penalize the litigant for linguistic imprecision in the more plausible allegations” while keeping in mind that “wildly implausible allegations in the complaint should not be taken to be true.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008).


         The City, Officers, and Ghent raise several bases for dismissal of the Amended Complaint, including (1) that it is a shot-gun pleading, (2) it fails to state a claim for municipal liability, (3) there exists probable cause, (4) the statute of limitations has expired, and (5) the action is barred by the Heck Doctrine. In addition, the City requests that the Court take judicial notice of certain public records in the underlying criminal case and on appellate review. The Court will address each argument in turn.

         a. The Amended Complaint is a Shot-gun Pleading

         Both the City and the Officers seek to dismiss the Amended Complaint as an impermissible shot-gun pleading. See ECF No. [45] at 5; ECF No. [58] at 4. The Eleventh Circuit has identified four types of pleading deficiencies that are considered a shot-gun pleading, the most common of which applies directly to the Amended Complaint here. See Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015); McNamara v. Florida Power & Light Co., No. 17-CV-81181, 2018 WL 582537, at *2 (S.D. Fla. Jan. 29, 2018). This iteration occurs when there are “multiple counts, where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.” Weiland, 792 F.3d at 1321; see also Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 205 F.3d 1293, 1295 (11th Cir. 2002) (describing the quintessential shot-gun pleading as containing “several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions”).

         Plaintiff argues that “there is no technical form of pleading required, ” ECF No. [47] at 4. However, a review of the Amended Complaint reveals it is a quintessential shot-gun pleading. While Count I properly realleges the general allegations in paragraphs 1 through 19, ECF No. [33] at ¶ 20, the first paragraph of every successive count incorporates all preceding allegations, including those from other unrelated counts. For example, Count II “realleges and reavers paragraphs 1 thru 19 and 20 thru 30, ” Count III “realleges and reavers paragraphs 1 thru 19 and 21 thru 30, 31 thru 41 as fully restated herein, ” and Count IV “realleges and reavers paragraphs 1 thru 19 and 20 thru 48 as if fully restated herein.” Id. Count V takes a different approach, but effectively does the same by alleging: “The Defendant Officers Ghent, Kapper, Emmons, and Unknown Officers, instituted and had carried out, the false arrest, imprisonment, malicious prosecution and deprivation of Plaintiff's rights as alleged in Count I-IV above.” Id. at ¶ 59. Plaintiff's approach of incorporating all successive allegations into each count leads to a situation in which claims against the City include extraneous allegations against the officers and vice versa. This shot-gun approach requires dismissal of the Amended Complaint.

         Although a shot-gun pleading is subject to dismissal, dismissal with prejudice for a pleading defect usually calls for at least one opportunity to amend to correct such a defect. See Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239 (11th Cir. 2000); Isbrandtsen Marine Servs., Inc. v. M/V INAGUA Tania, 93 F.3d 728, 734 (11th Cir. 1996); Bank v. Pitt, 928 F.3d 1108 1112 (11th Cir. 1991) (“Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.”). Although the Court has already granted Plaintiff leave to amend once so that he could add Officers Ghent, Emmons and Kapper as Defendants, the Court is mindful that Rule 15(a)(2) requires that courts freely give leave to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). When considering whether leave should be given, a court considers factors such as “undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party … and futility of amendment.” Perez v. Wells Fargo, N.A., 774 F.3d 1329, 1340 (11th Cir. 2014) (quoting Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1241 (11th Cir. 2009)). Although the Amended Complaint constitutes a shot-gun pleading, dismissal with prejudice is not warranted at this juncture. The Court has not ruled previously on the sufficiency of the original Complaint and it would not be futile to allow Plaintiff one additional opportunity to correct the pleading deficiency.

         b. Judicial Notice

         Before addressing the substance of Defendants' remaining arguments, the Court considers the City's request to take judicial notice of findings by the “reviewing appellate court upholding the arrest of Plaintiff, the search of Plaintiff's residence, as well as three (3) of his criminal convictions.” ECF No. [45] at 6. Plaintiff also attaches public records to his Response to the City and the Officers' Motions to Dismiss in an apparent request for judicial notice. See ECF No. [67] at 11-84. A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). Nevertheless, when reviewing a motion to dismiss under Rule 12(b)(6), “a document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.” Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005). The Eleventh Circuit has determined that a court may take notice of public records when ruling on a motion to dismiss. See Lozman v. City of Riviera Beach, 713 F.3d 1066, 1077 at n. 9 (11th Cir. 2013) (taking notice of state court documents for purposes of a 12(b)(6) motion to dismiss regarding a § 1983 claim); see also Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999) (taking notice of public SEC records in dismissal stage); Galstaldi v. Sunvest Communities USA, LLC, 637 F.Supp.2d 1045, 1054 (S.D. Fla. 2009) (taking notice of state court documents as public records at dismissal stage).

         Here, the records at issue are authentic public records and are relevant to Plaintiff's claims, particularly in regard to the existence of probable cause barring the malicious prosecution claim. To support the existence of probable cause and dismissal of this claim, the City requests that the Court take notice of certain documents in No. 9:08-CV-81283-JAL consisting of ECF No. [360] pages 1-113 (“District Court's Omnibus Order”) and ECF No. [380], pages 2-15 (“Eleventh Circuit's Opinion”) reported at Phillips v. United States of America, 849 F.3d 988, 995 (11th Cir. 2017). Plaintiff does not object to the Court's consideration of such records in his Response, so the Court will grant the City's request and take judicial notice of the two documents.

         In turn, the Court interprets Plaintiff's inclusion of Exhibit B to his Response to the Officers' Motion, consisting of ECF No. [281-1], pages 1-34 (“Factual Proffer”) in No. 9:08-CV-81283-JAL, as a request to take judicial notice of a public record. The Officers referenced the Factual Proffer in support of their Reply to argue for the existence of probable cause without any objection to the Court's consideration of the public record. See ECF No. [70] at 2. Because the Factual Proffer is both authentic and relevant to Plaintiff's claim, the Court will also take judicial notice of the document. The Court, therefore, takes judicial notice of the District Court's Omnibus Order, the Eleventh Circuit's Opinion, and the Factual Proffer.

         c. Count I: Malicious Prosecution

         In Count I, Plaintiff asserts a malicious prosecution claim against the Officers and Ghent. See ECF No. [33] at 4. Plaintiff's Response to the Officers' Motion to Dismiss addresses the elements of a Florida common law claim for malicious prosecution. ECF No. [67] at 9; See also ECF No. [70] at 1. However, Plaintiff continually refers to Count I as a § 1983 malicious prosecution claim in his Response to Ghent's Motion to Dismiss. ECF No. [82] at 5. Although the latter and former types of claims are inherently similar, they are still completely separate causes of action that cannot be brought simultaneously in the same count. To state a § 1983 claim for malicious prosecution, Plaintiff must prove “(1) the elements of the common law tort for malicious prosecution, and (2) a violation of his or her Fourth Amendment right to be free from unreasonable ...

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