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 review of defendant's
Motion to Dismiss (Doc. #33) filed on June 26, 2019.
Plaintiffs filed a Response (Doc. #35) on July 10, 2019. For
the reasons set forth below, the motion is granted.
to the First Amended Complaint (Doc. #32): On June 7, 2016,
Anne O'Malley-Gordon sought medical care at the Lee
County Veteran's Administration Health Center (Lee County
VA) in Cape Coral, Florida. (Id. ¶ 14.) While
at the Lee County VA, Ms. O'Malley-Gordon noticed a group
of Lee County VA employees "talking and laughing very
loudly and not doing any work." (Id. ¶
15.) Ms. O'Malley-Gordon "became aggravated at this
sight, " and she took a picture of the employees with
her phone and sent the picture to her husband, Frank Gordon.
(Id. ¶¶ 15-16.) As she was leaving the
area, Ms. O’Malley Gordon was confronted by Officers
Reynolds and Da Costa of the Department of Veterans Affairs
Police Department. (Id. ¶¶ 18, 23.)
Reynolds asked Ms. O’Malley-Gordon to show him her
“‘legal ID’” and asked Ms.
O’Malley-Gordon “if she had taken a
picture.” (Id. ¶¶ 18-19.) When Ms.
O’Malley-Gordon admitted that she had taken a picture
of the employees, Officer Reynolds told Ms.
O’Malley-Gordon that “she had broken ‘the
law’” and “would have to pay a $50.00 fine
and court costs of $25.00.” (Id. ¶¶
20-21.) Officer Reynolds then became “combative”
with Ms. O’Malley-Gordon and told her,
“‘[g]ive me that phone. I need to confiscate it.
You are going to delete that photo now or I
will.’” (Id. ¶ 24.)
Ms. O’Malley-Gordon “asked what she needed to do
to not be charged, ” Officer Reynolds stated that Ms.
O’Malley-Gordon “needed to have [Mr. Gordon] come
to the scene and prove that he deleted the photograph from
his phone, since [Ms. O’Malley-Gordon] had texted it to
him.” (Id. ¶¶ 29-30.) Ms.
O’Malley-Gordon “complied and called [Mr.
Gordon].” (Id. ¶ 31.) Ms.
O’Malley-Gordon then asked Officer Reynolds to return
her driver’s license, but “Officer Reynolds
refused, stating he had called for a background check on
her.” (Id. ¶ 31.) Ms.
O’Malley-Gordon “stated she had done what was
asked of her and that she felt [Officer Reynolds’]
continued actions and attitude toward her constituted
harassment.” (Id. ¶ 38.) At that point,
“Officer Reynolds became enraged and stated he was
going to give Ms. O’Malley-Gordon a citation.”
(Id. ¶ 39.) Officer Reynolds then issued Ms.
O’Malley-Gordon a citation for
“‘unauthorized photography on
premises’” in violation of 38 CFR §
1.218(b)(23). (Id. ¶¶ 43, 54.)
Mr. Gordon arrived at the Lee County VA, Officer Reynolds
“quickly approached him and got into his face.”
(Id. ¶ 47.) Officer Reynolds stated to Mr.
Gordon, “‘if you don’t delete that photo
now, I am going to arrest you.’” (Id.
¶ 50.) Mr. Gordon ultimately deleted the photograph.
(Id. ¶ 53.)
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) (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
12, 2019, plaintiffs Anne O’Malley-Gordon and Frank
Gordon (collectively, Plaintiffs) filed a five-count First
Amended Complaint against the United States of America
(Defendant). (Doc. #32.) Pursuant to the Federal Tort Claims
Act, Plaintiffs assert claims against Defendant for malicious
prosecution and abuse of process (Count I), false arrest of
Ms. O’Malley-Gordon (Count II), false arrest of Mr.
Gordon (Count III), violation of civil rights (Count IV), and
intentional infliction of emotional distress (Count V).
Defendant now moves to dismiss Counts I, IV, and V of the
First Amended Complaint.
The Abuse of Process Claim (Count I)
asserts a claim against Defendant for abuse of process,
alleging that Officer Reynolds issued Ms.
O’Malley-Gordon a “citation merely for the
improper purpose of harassing and intimidating
her.” (Doc. #32, ¶ 70.) Defendant moves to
dismiss Count I ...