777 F.2d 1436 (11th Cir. 1985), 84-5104, Fundiller v. City of Cooper City

Docket Nº:84-5104.
Citation:777 F.2d 1436
Party Name:Michael Jamie FUNDILLER and Rae Winder Fundiller, his wife, Plaintiffs- Appellants, v. The CITY OF COOPER CITY, a municipal corp., et al., Defendants-Appellees.
Case Date:December 11, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1436

777 F.2d 1436 (11th Cir. 1985)

Michael Jamie FUNDILLER and Rae Winder Fundiller, his wife,

Plaintiffs- Appellants,


The CITY OF COOPER CITY, a municipal corp., et al.,


No. 84-5104.

United States Court of Appeals, Eleventh Circuit

December 11, 1985

Page 1437

Bailey & Dawes, Robbie M. Barr, Guy B. Bailey, Jr., Miami, Fla., for plaintiffs-appellants.

Page 1438

E. Bruce Johnson, Michael T. Burke, Fleming, O'Bryan & Fleming, Christine M. Carsky, Ft. Lauderdale, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and SMITH [*], Circuit Judges.

KRAVITCH, Circuit Judge:

Appellant Michael Fundiller, while engaging in a narcotics transaction, was shot by a policeman. To recover for his injuries, Fundiller filed an action under 42 U.S.C. Sec. 1983, 42 U.S.C. Sec. 1985, 18 U.S.C. Sec. 246, and state tort law, against the City of Cooper City, its Mayor, an official of the City's Police Department, and eleven uniformed police officers. The district court dismissed all of appellant's federal causes of action for failure to state a claim; there being no remaining federal question, the court dismissed the state tort claims as well. We reverse.


On April 29, 1981, Fundiller and two companions drove to a parking lot in Cooper City, Florida, to complete a prearranged sale of cocaine to Robert Guarnaccia, a Cooper City policeman who was posing as a cocaine purchaser. After arriving at the lot, Fundiller, the driver of the vehicle, stopped the car alongside the car occupied by Guarnaccia. Someone in Fundiller's car passed a package to Guarnaccia. While he examined the package, Guarnaccia used a wire transmitter to advise several other policemen stationed nearby that the transaction was taking place. Without identifying himself as a policeman, Guarnaccia then ordered Fundiller and his companions not to touch their guns. Suddenly, and without provocation or warning, Guarnaccia began firing his weapon at Fundiller, striking him five times. After being hit at least once, Fundiller reached beneath his car's front seat and grasped a gun which he fired twice without hitting anyone. Cooper City Police Officers F. DiVincenzo, John Walters, R. Begamini, Chris Wagoner, Clyde Hill, J.M. Tezzas, Gerald Ward, Dave Baxley, Norman Price, and M. Buschman, all of whom were stationed nearby, moved into the parking lot. These officers dragged Fundiller from the car and handcuffed him, exacerbating one of his wounds.

Fundiller and his wife commenced this lawsuit against Guarnaccia, the ten other officers involved in the incident, Cooper City Public Safety Director John Pozar, Cooper City Mayor Schaeffer, and the City of Cooper City. Count one of the complaint was brought under 42 U.S.C. Sec. 1983, 42 U.S.C. Sec. 1985, and 18 U.S.C. Sec. 246, and alleged that the individual defendants, excluding Mayor Schaeffer, denied and conspired to deny plaintiff his right to due process under the fifth and fourteenth amendments. Count two, using the same jurisdictional basis, charged that it was the custom or policy of the City to negligently hire, train, and supervise its police officers. In count three, plaintiff charged the City, Mayor Schaeffer, and Pozar with common law negligence, and count four alleged that the police officers' actions amounted to an assault and battery. Count five was a derivative claim brought by Fundiller's wife against all defendants for loss of consortium. The defendants moved to dismiss the complaint. Initially, the court below denied the motions to dismiss while ruling on a series of preliminary motions. The court subsequently, sua sponte, dismissed the entire complaint for lack of subject matter jurisdiction. The court noted the similarity of this case to Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), observing that Rizzo would mandate dismissal of the claims against the City, Mayor Schaeffer and Pozar, "absent an allegation of direct responsibility for the improper conduct." Fundiller v. City of Cooper City, 578 F.Supp. 303, 304 (S.D.Fla.1984). The court declined to analyze this matter thoroughly, however, holding instead

Page 1439

that plaintiff's due process claim was barred by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The court observed that the action of the arresting officers was "the type of activity that [has] traditionally been redressed by state tort law." Fundiller v. City of Cooper City, 578 F.Supp. 303, 305 (S.D.Fla.1984). Turning to the remaining claims, the court held that plaintiff failed to allege a cause of action under 42 U.S.C. Sec. 1985, and that there was no implied private right of action under 18 U.S.C. Sec. 242, the criminal counterpart to section 1983. There being no basis for federal jurisdiction, the court dismissed the pendent state tort claims as well. Plaintiff appeals only from the court's dismissal of his section 1983 claims.


  1. Officer Guarnaccia

    The court below dismissed plaintiff's 1983 claims for failure to state a claim upon which relief could be granted. For the purposes of reviewing this motion to dismiss, the material allegations of the complaint are taken as true. See Walker Process Equip. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965). The complaint is to be liberally construed in favor of the plaintiff. See Fed.R.Civ.P. 8(f); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This standard mandates that we reverse the dismissal "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02.

    Both sides devote significant portions of their briefs to the question whether Florida tort remedies provided all the "process" that was due Fundiller in this instance. Appellees apparently concede that Fundiller has satisfied the other elements of a valid due process claim under 42 U.S.C. Sec. 1983. 1 In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that a random and unauthorized negligent deprivation of property by a state employee does not amount to a due process violation cognizable under section 1983, if the state provides a meaningful post-deprivation remedy. 451 U.S. at 543-44, 101 S.Ct. at 1916-17. Mindful of converting the Fourteenth Amendment into "a font of tort law to be superimposed upon whatever systems may already be administered by the States," 451 U.S. at 544, 101 S.Ct. at 1917 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)), the Court relegated a prisoner's efforts to seek compensation for the loss of his $23.50 hobby kit to a tort suit in state court. The Court applied Parratt's rationale to an intentional deprivation of property in Hudson v. Palmer, --- U.S. ----, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

    In our recent decision of Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc ), this court held that the...

To continue reading