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 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.
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).
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).
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.
2, 2018, Plaintiff filed an Amended Complaint (Doc. #51)
against defendant Scott Pepin (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).
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:
The March 9, 2014 Complaint to the CCSO
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.)
The April 4, 2014 Arrest
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.)
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,
The June 10, 2014 Trespass Warning
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.)
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 Ellistrespass 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.)
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. (Doc. #113, p.
Whether the April 4, 2014 Arrest Claims are
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.
The False Arrest Claim (Count VIII)
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. 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.
The Excessive Force and Assault and Battery Claims (Counts
VIII and XI)
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.
The Malicious Prosecution Claims (Counts IX and X)
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.
Whether Equitable Estoppel Applies
Counts VIII, IX, X, and XI appear untimely, Plaintiff
contends these Counts are not time-barred under the doctrine
of equitable estoppel. The Court ...