United States District Court, S.D. Florida, Miami Division
ORDER GRANTING MOTIONS TO DISMISS
FEDERICO A. MORENO UNITED STATES DISTRICT JUDGE.
Darrian Washington, a Miami-Dade police officer files this
case under 42 U.S.C. § 1983 for defamation against
Howard Rosen, the Deputy Chief of Special Prosecutions for
the Miami-Dade State Attorney. Plaintiff is also suing
Miami-Dade County under the Florida Law Enforcement
Officers' Bill of Rights and the Florida Civil Rights
Act. The Court finds that Plaintiff fails to state a federal
§ 1983 claim against Howard Rosen because his
allegations are insufficient to establish the elements for a
common-law defamation claim and a constitutional injury
flowing from Defendant Rosen's statements. In addition,
the Court finds that Howard Rosen has qualified immunity for
statements made in his discretionary authority, which do not
violate clearly established constitutional law. Finally, the
Court grants the County's motion to dismiss the Florida
Law Enforcement Officers' Bill of Rights claim and the
Plaintiffs demands for prejudgment interest and punitive
damages under the Florida Civil Rights Act.
CAUSE came before the Court upon Defendant Howard Rosen's
Motion to Dismiss (D.E. 28), filed on June 5,
2019 and Defendant Miami-Dade County's
Motion to Dismiss (D.E. 29) filed on
June 6, 2019.
COURT has considered the motions, the response to Defendant
Howard Rosen's motion to dismiss, the pertinent portions
of the record, and being otherwise fully advised in the
premises, it is
that the Defendant Rosen's motion to dismiss is GRANTED
because Plaintiff fails to state a defamation claim under 42
U.S.C. § 1983 and Defendant has qualified immunity.
Based on the Court's finding that Defendant Rosen is
entitled to qualified immunity and because this is the
Plaintiffs Second Amended Complaint, the Court declines to
allow Plaintiff leave to amend his claims against Defendant
Rosen. Lomax v. Diaz, 390 Fed.Appx. 900, 902 (11th
Cir. 2010); see also Cita Tr. Co. AG v. Fifth Third
Bank, 879 F.3d 1151, 1157 (11th Cir. 2018) (stating that
imbedding a request to amend in an opposition memorandum is
insufficient to properly request leave). It is also
that Miami-Dade County's motion is GRANTED and the claims
against the County are DISMISSED without prejudice. The Court
notes that Plaintiff did not file a response to the motion to
dismiss, filed on June 6, 2019, and the time for doing so has
passed. Southern District of Florida Local Rule 7.1(c) allows
the Court to grant motions by default, when a party fails to
file an opposition memorandum. In any event, the Court
examines in this order the claims against Miami-Dade County.
To the extent, there are any viable state law claims against
the County, the Court declines to exercise pendent
Darrian Washington, a Miami-Dade police officer, filed this
case against Defendant Howard Rosen and Miami-Dade County. In
his Second Amended Complaint, Plaintiff sues Howard Rosen,
the Deputy Chief of Special Prosecutions for the Miami-Dade
State Attorney, under 42 U.S.C. § 1983. The other three
counts are state law claims against Miami-Dade County for
violations of the Florida Law Enforcement Officers' Bill
of Rights and the Florida Civil Rights Act.
is an African-American male, who was assigned to the
Miami-Dade Police Department's Narcotics Bureau. At the
time, the Department was investigating the Narcotics Bureau
following instances of stolen money from crime scenes.
Following a sting operation where monies went missing, the
Miami-Dade Police Department arrested Plaintiff on February
25, 2016 along with other members of his squad. The
Department released Plaintiff, but eventually reassigned and
relegated him to a Patrol Officer position in the highest
crime district in the County. He claims the transfer was a
demotion based on unlawful discrimination due to his race. He
also claims he was denied the opportunity to work overtime
shifts. His claims against the County stem from those
federal 42 U.S.C. § 1983 claim is for defamation against
Defendant Howard Rosen, the Deputy Chief of Special
Prosecutions for the Miami-Dade State Attorney. The Second
Amended Complaint alleges that Rosen had "operational
management of the joint investigation" into Plaintiff
and other officers within the Narcotics Bureau. Plaintiff
asserts that Rosen attended a roll call meeting at the
Miami-Dade Police Department, where 40 people were present.
Before the meeting took place, the Miami-Dade State Attorney
had already decided not to prosecute Plaintiff in connection
with the sting operation, which resulted in his arrest.
Throughout the meeting, Rosen referred to Plaintiff as the
"officer that immediately invoked his rights upon his
arrest." The allegations are that Rosen stated:
"[t]he money had been counted and impounded by a
particular officer whose name I'm not going to mention,
... but it's the same officer that invoked his rights.
You might . . . have heard who it is . . . throughout the
rumor mill. . .. [T]here's no allegation of him stealing
any money, but the bottom line is he impounded the dope, he
impounded the money. There was a serious credibility issue
with him, so we can't file the case." The Second
Amended Complaint adds that Rosen stated in the meeting that
"the officer who invoked his rights" stole the
money from a crime scene two days prior to the undercover
operation. Rosen added that he "believed" Plaintiff
stole the money because he had a lot of cash on him the day
of the sting operation. The allegations also state that Rosen
stated he heard Plaintiff's jailhouse call to family and
based on that, he had no doubt that Plaintiff stole money
from the scene.
filed motions to dismiss. Defendant Rosen argues the
Plaintiff fails to state a claim under 42 U.S.C. § 1983
for defamation and Defendant Miami-Dade County argues that
Plaintiff fails to state a claim under the Florida Law
Enforcement Officers' Bill of Rights and the Florida
Civil Rights Act.
survive a motion to dismiss, plaintiffs must do more than
merely state legal conclusions," instead plaintiffs must
"allege some specific factual basis for those
conclusions or face dismissal of their claims."
Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1263
(11th Cir. 2004). When ruling on a motion to dismiss, a court
must view the complaint in the light most favorable to the
plaintiff and accept the plaintiffs well-pleaded facts as
true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of
Am., 795 F.2d 948, 953 (11th Cir. 1986). This tenet,
however, does not apply to legal conclusions. See
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Moreover, "[w]hile legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Id. at 1950. Those
"[f]actual allegations must be enough to raise a right
to relief above the speculative level on the assumption that
all of the complaint's allegations are true."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545
(2007). In short, the complaint must not merely allege a
misconduct, but must demonstrate that the pleader is entitled
to relief. See Iqbal, 129 S.Ct. at 1950.