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Gulley v. Mojica

United States District Court, N.D. Florida, Pensacola Division

September 23, 2019

FOSTER WAYNE GULLEY, Plaintiff,
v.
RAUL MOJICA, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, proceeding pro se, filed this action under 42 U.S.C. § 1983 on or about November 30, 2018, alleging claims of false arrest and malicious prosecution. ECF Doc. 1. Initially, Plaintiff sued the Escambia County Sheriff's Department and Escambia County. On January 9, 2019, the Court entered an Order finding that Plaintiff's complaint failed to state a claim for relief because the Sheriff's Office is not a legal entity which can be sued and Plaintiff failed to allege facts sufficient to support a claim of supervisory liability as to the County. ECF Doc. 7. The Court gave Plaintiff an opportunity to amend his complaint within thirty (30) days. ECF Doc. 7.

         After two (2) extension requests and a show cause order, on April 9, 2019, Plaintiff filed a document, which was docketed as a First Amended Complaint, but was simply a notice indicating that the clerk had sent him the complaint form for a prisoner rather than a non-prisoner. ECF Doc. 15. The Court thus gave Plaintiff fourteen (14) days to file an amended complaint on the proper forms. ECF Doc. 16. Over the next three months, Plaintiff filed multiple deficient amended complaints, and, on July 17, 2019, after screening the “fourth amended complaint, ”[1] the Court allowed Plaintiff another opportunity to file a fifth amended complaint within thirty (30) days or, if he could not do so in good faith, to file a notice of voluntarily dismissal. ECF Doc. 20.

         On August 19, 2019, Plaintiff filed what he termed a fifth amended complaint, but it really was just a request for pre-suit discovery and for an extension of time to file the amended complaint. ECF Doc. 21. On August 28, 2019, the Court ordered Plaintiff to show cause, within fourteen (14) days, why the case should not be dismissed for his failure to prosecute or failure to comply with a Court order, thereby, giving him another fourteen (14) days (and more than eight (8) months after his initial complaint was filed) to file a sufficient amended complaint. ECF Doc. 22.

         On September 13, 2019, Plaintiff responded to the show cause order with a document (ECF Doc. 23) titled “Motion To Show Cause Motion Vacate and Correct Avoid, Illegal Order Motion To Reinstate 4th Amended Complaint, ” which does not comply with the Court's August 28, 2019 Order (ECF Doc. 22). Instead of filing an amended complaint, which sufficiently states a cause of action against Defendants, Plaintiff filed a motion seeking to vacate the Court's order requiring him to file an amended complaint and maintaining that his fourth amended complaint (ECF Doc. 19) was sufficient.

         The undersigned has reviewed the response and, for the reasons set forth herein, as well as in the Court's July 17, 2019, order at ECF 20, respectfully recommends that Plaintiff's claims against Defendants be dismissed for failure to state a viable claim under 42 U.S.C. § 1983. Additionally, the Court denies Plaintiff's motion to vacate at ECF 23.

         I. Background

         Plaintiff's fourth amended complaint names three (3) Escambia County Deputy Sheriffs as Defendants: Raul Mojica, Nicholas Scott Mayo and Christian Allen Coad. ECF Doc. 19 at 1-2. The fourth amended complaint sets forth the factual allegations which follow, the truth of which are accepted for purposes of this order.

         On November 30, 2017, Plaintiff was standing in the parking lot of a Whataburger restaurant in Pensacola, Florida. Id. at 3. After seeing Defendants Mojica and Mayo separately enter a parking lot, Plaintiff approached Mojica's police cruiser. Id. Mojica exited his vehicle, ordered Plaintiff to put his guitar on the pavement and detained Plaintiff. Id. Plaintiff says Mojica failed to identify himself or ask for Plaintiff's identification; instead, Mojica began a pat-down search. Id. When Plaintiff asked the reason for the search, Mojica stated it had to do with stolen credit cards. Id.

         Mayo and Mojica then began discussing their uncertainty about who had called to report Plaintiff. Id. at 3-4. Later, Mayo, “without any further inquiry[, ] said the witness [had] identified Plaintiff as the suspect and began reading [Plaintiff his] Miranda Notice.” Id. at 4. After Plaintiff asked if he was being arrested, Mojica “announced that credit card fraud was a felony.” Id. Plaintiff was then handcuffed and placed in Mayo's vehicle. Id. Based on Mojica's statement, and statements made by Mayo during the drive to the sheriff's station, Plaintiff believed he had been arrested for a felony involving the fraudulent use of credit cards. Id. Mayo told Plaintiff “he could not lower the charge to a misdemeanor because [Plaintiff] was arrested based on Officer Nielson['s] report from November 29, 2017 and that . . . report charged a felony offense.” Id. Plaintiff, however, maintains he was “not the suspect subject to the felony credit card use and theft.” Id. at 5.

         When Mayo and Plaintiff arrived at the station, Mayo “altogether omitted the (‘surplusage charge or count') of felony fraudulent use of a credit card and its customary citation authorizing its enforcement and impermissibly then falsely arrest[ed] Plaintiff a second time for a misdemeanor without notifying Plaintiff the felony offense was dropped nor that he was being rearrested and charged with a misdemeanor.”[2] Id. Plaintiff claims this “misled and embarrassed him to his prejudice.” Id. at 6. Plaintiff further alleges Mayo filed a defective information which omitted Mojica's involvement with the arrest. Id.

         Based on the foregoing, Plaintiff alleges: (1) unreasonable search and seizure; (2) false arrest and imprisonment for felony fraudulent use of credit cards; (3) false arrest and imprisonment for misdemeanor fraudulent use of credit cards; and (4) “lack of probable cause/lack of jurisdiction.” Id. at 11. As relief, he seeks monetary damages. Id.

         Although Plaintiff did not include his arrest report with his fourth amended complaint, the Court attached it to its July 17 order, and stated, “[t]he arrest report from that case, signed by Defendant Mayo on November 30, 2017, indicates probable cause existed to arrest Plaintiff for the misdemeanor.” ECF 20 at 5. Specifically, in the arrest report, the Defendant Mayo relayed that officers received sworn statements from the victim and an employee of the Family Dollar that Plaintiff attempted to use the victim's credit card to purchase various items. ECF 20 at 11-12. The witness also indicated there is video surveillance of the transaction. In Plaintiff's motion, he does not dispute the allegations made in the arrest report.

         Also, in Plaintiff's motion to vacate (ECF Doc. 23), he provides additional factual allegations regarding his claims and describes the events leading up to his arrest as follows: the victim left her purse on top of her car and drove off; the purse fell from the car onto the ground; a man on a bike initially picked up the purse (wallet); but left an ID card and credit card, which fell out of the wallet, on the ground; Plaintiff picked up the ID card and the credit card and used the credit card. ECF Doc. 23 at 5-6. Plaintiff “had no intent to defraud, ” but was merely checking to see ...


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