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Bonuso v. Blackman

United States District Court, S.D. Florida

December 13, 2019

FRANK N. BONUSO, Plaintiff,
v.
SHERIFF PAUL BLACKMAN, in his official capacity as Sheriff of Highlands County Sheriff's Department; DETECTIVE STEVEN D. RITENOUR, in his individual and official capacity; and SUPERVISOR JAMIE D. DAVIDSON, in his official capacity; Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on the Motions to Dismiss Complaint filed by Defendants Jamie Davidson (DE 17), Paul Blackman (DE 18), and Steven Ritenour (DE 19). Plaintiff Frank N. Bonuso, who is proceeding pro se, filed a Response to each Motion. DE 20, 21, 22. Each Defendant filed a Reply. DE 24, 25, 26. The Court has reviewed the record in this case and the briefing for each Defendant's Motion. For reasons that follow, the Motions are GRANTED.

         I. BACKGROUND

         Unless cited otherwise, facts in this section are derived from allegations in Plaintiff's Complaint (DE 1) and accepted as true for present purposes. Defendant Ritenour, a detective with the Highlands County Sherriff's Office, prepared a probable-cause affidavit in support of a warrant for Plaintiff's arrest, and allegedly made certain misrepresentations in the affidavit. The affidavit was based in part on a letter that related to a lien for professional services in connection with a construction and/or general contracting engagement. Ritenour falsified certain dollar amounts in the affidavit, failed to “understand the Construction Industry Licensing Board and unlicensed activity, ” DE 1, at 4 ¶ 18, failed to investigate the complaint and visit the relevant jobsite, and never met Plaintiff. On February 5, 2018, [1] Ritenour contacted Debra Graves, the property owner, to “collect[] profit and overhead which is paid to license general contractors by Insurance Company” and “to use Defendants general contractors license to collect money without contractor's knowledge and approval.” DE 1, at 4 ¶¶ 18, 23.

         On February 15, 2018, Plaintiff received a phone call from Ritenour, who stated that he was a detective but did not identify himself as a police officer or deputy sheriff. The same day, Ritenour submitted a warrant affidavit to the State Attorney's Office for approval. It was approved and then submitted to Judge Anthony Ritenour, who signed a warrant for Plaintiff's arrest. Ritenour and the Tactical Anticrime Unit served the arrest warrant at Plaintiff's residence, and Plaintiff was arrested on charges of larceny/grand theft, fraud, and extortion. Plaintiff was held at the Highlands County Sheriff's Jail, and the next morning he bonded out of jail for $7, 000.

         Plaintiff filed the Complaint on September 17, 2019, asserting claims against Detective Ritenour in his individual and official capacities, Sheriff Blackman in his official capacity, and Deputy Davidson in his official capacity. DE 1, at 2 ¶¶ 7-9.[2] The Complaint alleges false arrest against all Defendants, supervisory liability under 42 U.S.C. § 1983 against Blackman, and “failure to product [sic] evidence and conflict of interest” against Ritenour. Defendants move to dismiss on the basis that the claim against Davidson is duplicative and that Plaintiff has failed to state a claim as to Ritenour and Blackman.

         II. LEGAL STANDARD

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Fed. R. Civ. P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”). To meet this “plausibility standard, ” a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). At the motion to dismiss stage, the “plaintiff's factual allegations are accepted as true. . . . However, conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). A pro se plaintiff's “pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally.” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

         III. DISCUSSION

         a. Count I: False Arrest (Malicious Prosecution)

         Plaintiff sues all Defendants for false arrest, which the Court construes as a section 1983 claim for false arrest.[3] An officer who makes a warrantless arrest without probable cause violates the Fourth Amendment and can be liable under section 1983. Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). However, when an arrest is made pursuant to a warrant, the proper claim is one for malicious prosecution, not false arrest. Carter v. Gore, 557 Fed.Appx. 904, 906 (11th Cir. 2014) (citing Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996)). Here, Plaintiff alleges that he was arrested pursuant to a warrant. Accordingly, his claim should be for malicious prosecution. In light of Plaintiff's pro se status, the Court considers whether Plaintiff has stated a claim for malicious prosecution.

         A claim for malicious prosecution under section 1983 requires Plaintiff to (1) state a claim for common-law malicious prosecution and to (2) demonstrate an unreasonable seizure in violation of the Fourth Amendment. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). As to the first prong, the elements of common-law malicious prosecution under Florida law are:

(1) [A]n original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damages as a result of the original proceeding.

Id. (citing Durkin v. Davis, 814 So.2d 1246, 1248 (Fla. Dist. Ct. App. 2002)). Plaintiff has alleged that a judicial proceeding was commenced. See Whiting, 85 F.3d at 585 (“Obtaining an arrest warrant is one of the initial steps of a criminal prosecution.”). Plaintiff has also alleged that Defendant Ritenour was the legal cause of the warrant's issuance by virtue of his role in preparing the affidavit to obtain the warrant. Finally, Plaintiff alleged that he suffered damages because he was detained at the Highlands County Sheriff's Jail. However, Plaintiff has not established elements 3, 4, or 5. The Complaint does not describe how and whether the ...


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