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Harris v. Rambosk

United States District Court, M.D. Florida, Fort Myers Division

November 5, 2019

ROBERT DALE HARRIS, Plaintiff,
v.
KEVIN RAMBOSK, in his official capacity as Sheriff of Collier County, Florida, KASEY P. WINGO, individually, MICHAEL D. CHAPMAN, individually, SCOTT PEPIN, individually, and ROSS ANTHONY, individually, Defendants.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant Scott Pepin's Motion for Summary Judgment (Doc. #113) filed on June 10, 2019. Plaintiff filed a Response (Doc. #128) on June 24, 2019. For the reasons set forth below, the motion is granted in part and denied in part.

         I.

         Summary judgment is appropriate only when the Court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A court must decide ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)(citing Anderson, 477 U.S. at 251).

         In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010). However, “if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.” St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)(finding summary judgment “may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts”)). “If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).

         Qualified immunity provides “complete protection for individual public officials performing discretionary functions insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quotation omitted). A defendant claiming qualified immunity must show that he acted “within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). If that showing is made, then the plaintiff must establish “(1) that the facts, when construed in the plaintiff's favor, show that the official committed a constitutional violation and, if so, (2) that the law, at the time of the official's act, clearly established the unconstitutionality of that conduct.” Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015)(citation omitted). It is undisputed that Deputy Pepin was acting within his discretionary authority as a law enforcement officer at all relevant times.

         II.

         On May 2, 2018, Plaintiff filed an Amended Complaint (Doc. #51) against defendant Scott Pepin[1] (Deputy Pepin), a Collier County Sheriff's Office (CCSO) deputy, and others. The Amended Complaint asserts claims against Deputy Pepin for false arrest and excessive force under 42 U.S.C. § 1983 (Count VIII); malicious prosecution under § 1983 (Count IX); malicious prosecution under Florida law (Count X); assault and battery under Florida law (Count XI); and First Amendment retaliation under § 1983 (Count XVI).

         This case - as it relates to Deputy Pepin - centers on three events occurring on March 9, 2014, April 4, 2014, and June 10, 2014. The undisputed facts are as follows:

         A. The March 9, 2014 Complaint to the CCSO

         On March 9, 2014, Plaintiff called the CCSO to complain about Deputy Michael D. Chapman (Deputy Chapman). (Doc. #113, p. 3; Doc. #128, p. 3.) Plaintiff complained that while he was sitting outside of a McDonald's in Naples, Florida, Deputy Chapman threatened to trespass Plaintiff from “all local businesses.” (Id.) Sergeant Bartolome Amengual (Sergeant Amengual) and Deputy Kasey P. Wingo (Deputy Wingo) arrived at the scene and took Plaintiff's complaint. (Id.) Deputy Pepin was not present for Plaintiff's March 9, 2014 complaint to the CCSO. (Id.)

         B. The April 4, 2014 Arrest

         On April 4, 2014, Plaintiff was repairing his friend Randy Leon Sulwilcowski's motorcycle that was warehoused at a storage facility in Naples, Florida. (Doc. #113, pp. 3-4; Doc. #128, p. 3.) Deputies Chapman and Wingo encountered Plaintiff as he was exiting the storage facility. (Id.) Deputies Wingo and Chapman ultimately arrested Plaintiff and engaged in a physical altercation with Plaintiff while placing him under arrest. (Doc. #113, pp. 5-7; Doc. #128, pp. 3-4.) Deputy Pepin arrived at the scene to assist Deputies Wingo and Chapman with Plaintiff's arrest. (Doc. #113, p. 6; Doc. #128, pp. 3-4.) Deputy Pepin struck Plaintiff's back several times with a baton and deployed his Taser into Plaintiff's back. (Doc. #113, p. 6; Doc. #128, p. 4.)

         Plaintiff was ultimately charged with three (3) counts of battery on a police officer; one (1) count of assault on a police officer; one (1) count of resisting an officer without violence; and one (1) count of loitering and prowling. (Doc. #51, ¶¶ 59-62; Doc. #128, p. 4.) On April 17, 2014, the State Attorney's Office filed a “Not Filing Charge” on all six counts. (Doc. #113, p. 8; Doc. #128, p. 4.)

         C. The June 10, 2014 Trespass Warning

         On June 10, 2014, Plaintiff purchased donuts from Dunkin Donuts in Naples, Florida; Plaintiff then took the donuts to the neighboring McDonald's, purchased a coffee from the McDonald's, and used his computer at an outside table. (Doc. #113, p. 9; Doc. #128, p. 5.) Deputy Pepin and Deputy Sean Ellis (Deputy Ellis) arrived at the scene, and Deputy Ellis ultimately issued Plaintiff a trespass warning for the Dunkin' Donuts. (Doc. #113, p. 9; Doc. #128, p. 6.) Under “Reason for Contact/Other Comments” the trespass warning states, “Trespass. Robert Harris stated that he does not consent to this.” (Doc. #116-1, p. 23.)

         Deputy Pepin testified at deposition that he and Deputy Ellis were dispatched to the McDonald's because the McDonald's management wanted Plaintiff to leave the premises. (Doc. #116, pp. 75-76.) Deputy Pepin further testified that when he arrived at the McDonald's, Sara Wolin, a Dunkin' Donuts employee, approached him and asked that Deputy Pepin and Deputy Ellis[2]trespass Plaintiff from the Dunkin' Donuts because he was “‘harassing customers and stealing stuff.'” (Doc. #116, p. 76.) Sarah Wolin testified at deposition that she “had seen the cop next to [Dunkin' Donuts] at the McDonald's and [] called him over and [] asked him to have [Plaintiff] trespassed.” (Doc. #117, p. 18.) Sarah Wolin testified that, earlier on June 10, 2014, Plaintiff “got upset because [she] told him that [she] couldn't give him [free food]” and that Plaintiff “got very mad and stormed out and then came back in and then stormed back out again.” (Id. pp. 17-18.) Sarah Wolin further testified that she requested that Plaintiff be trespassed from Dunkin' Donuts because he had “been coming to [her] place of employment for several months, getting free food, making [her] uncomfortable, and [she] did not want [Plaintiff] at [her] place of employment anymore.” (Id. p. 21.)

         III.

         Deputy Pepin now moves for summary judgment. As to Plaintiff's claims for false arrest and excessive force (Count VIII), malicious prosecution (Counts IX, X), and assault and battery (Count XI), Deputy Pepin moves for summary judgment because (1) these Counts are time-barred; and (2) Deputy Pepin is otherwise entitled to judgment on the merits. As to Plaintiff's claim for First Amendment retaliation, Deputy Pepin argues (1) there is no evidence establishing that Deputy Pepin was motivated to issue Plaintiff a trespass warning by Plaintiff's March 9, 2014 complaint about a fellow officer; (2) “there was objective lawful justification for issuance of the trespass warning”; and (3) he is entitled to qualified immunity.[3] (Doc. #113, p. 23.)

         A. Whether the April 4, 2014 Arrest Claims are Time-Barred

         As to the April 4, 2014 arrest, Plaintiff asserts claims against Deputy Pepin for false arrest and excessive force (Count VIII), malicious prosecution under § 1983 (Count IX), malicious prosecution under Florida law (Count X), and assault and battery under Florida law (Count XI). Deputy Pepin argues that these claims are time-barred.

         (1) The False Arrest Claim (Count VIII)[4]

         Count VIII includes a claim for false arrest under § 1983. The statute of limitations for a federal false arrest claim is governed by Florida's four-year statute of limitations. Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017); Fla. Stat. § 95.11(3)(o). This limitations period began to run on April 6, 2014 - the date Plaintiff appeared before a magistrate in state court for first appearance.[5] White v. Hiers, 652 F. App'x. 784, 786 (11th Cir. 2016); Wallace v. Kato, 549 U.S. 384, 388 (2001). Thus, Plaintiff's false arrest claim appears to be untimely because Plaintiff filed the Amended Complaint on May 2, 2018 - more than four years after the limitations period began to run.

         (2) The Excessive Force and Assault and Battery Claims (Counts VIII and XI)

         Count VIII also includes an excessive force claim under § 1983, and Count XI asserts a claim for assault and battery under Florida law. These claims are both subject to Florida's four-year statute of limitations. Boyd, 856 F.3d at 872; Scullock v. Gee, 161 So.3d 421, 422 (Fla. 2d DCA 2014); Fla. Stat. § 95.11(3)(o). The limitations period for these claims began to run on April 4, 2014, when Deputy Pepin allegedly used excessive force and committed the assault and battery. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987); Scullock, 161 So.3d at 422. Thus, Plaintiff's claims for excessive force and assault and battery appear untimely because Plaintiff filed the Amended Complaint on May 2, 2018 - more than four years after the limitations period began to run.

         (3) The Malicious Prosecution Claims (Counts IX and X)

         Count IX asserts a claim for malicious prosecution under § 1983 and Count X asserts a malicious prosecution claim under Florida law. Both malicious prosecution claims are governed by Florida's four-year statute of limitations. Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998); Olson v. Johnson, 961 So.2d 356, 359 (Fla. 2d DCA 2007); Fla. Stat. § 95.11(3)(o). The limitations period on Plaintiff's federal and state malicious prosecution claims began to run when the State filed its “Not Filing Charge” on April 17, 2014. Uboh, 141 F.3d at 1002; Olson, 961 So.2d at 359. The Court thus finds Counts IX and X appear to be untimely because Plaintiff filed the Amended Complaint on May 2, 2018 - more than four years after the limitations period began to run.

         (4) Whether Equitable Estoppel Applies

         Although Counts VIII, IX, X, and XI appear untimely, Plaintiff contends these Counts are not time-barred under the doctrine of equitable estoppel. The Court ...


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