Smith v. Avino
| Decision Date | 20 October 1994 |
| Docket Number | No. 92-2593-CIV.,92-2593-CIV. |
| Citation | 866 F. Supp. 1399 |
| Parties | Robert SMITH, Ernest Porter, William Pitts, Roger Kinkle, and American Civil Liberties Union of Florida, Inc., a Florida non-partisan organization, Plaintiffs, v. Joaquin AVINO, in his official capacity as Manager of Metropolitan Dade County, Florida; and Metropolitan Dade County, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
COPYRIGHT MATERIAL OMITTED
Nina E. Vinik, American Civil Liberties Union Foundation of Florida, Inc., Miami, FL, for plaintiffs.
Roy Wood, Dade County Attys. Office, Miami, FL, for Joaquin Avino.
Howard M. Talenfeld, Colodny, Fass & Talenfeld, Ft. Lauderdale, FL, for Metropolitan Dade County.
Plaintiffs bring this action under 42 U.S.C. § 1983 challenging the constitutionality of a nocturnal curfew (the "Curfew") imposed by Defendants in Dade County, Florida in the wake of Hurricane Andrew. They have moved for summary judgment on their claims that the Curfew was overbroad and unduly vague. Defendants seek dismissal on the grounds that county liability under section 1983 is not warranted and that they are immune from suit under the Eleventh Amendment.
Hurricane Andrew struck south Florida on August 24, 1992. The hurricane destroyed homes, caused widespread telephone and electrical power outages, shut down businesses, and rendered essentials such as food, fuel and medicine temporarily scarce. In anticipation of this damage, Florida Governor Lawton Chiles issued Executive Order 92-220-E on August 23, 1992 declaring a state of emergency in south and central Florida. On August 24, 1992 the Governor issued Executive Order 92-222, amending his earlier order to permit city and county officials to "control movements of persons within the emergency area by the imposition of curfews."1
That same day, the County Manager of Dade County, Florida, Joaquin Avino, issued a proclamation finding a clear and present danger of civil disorder in Dade County and imposing a county-wide 7 p.m. to 7 a.m. curfew for all residents. Avino issued seven proclamations over the following two months shrinking the area and time period in which the Curfew was effective. Avino ended the Curfew on November 16, 1992.2
Plaintiffs, residents of Dade County,3 assert that the curfew violated their rights under the United States Constitution.4 According to Plaintiffs, their lives were "profoundly aggravated" by the Curfew's suspension of their civil rights. They claim that the Curfew infringed upon, among other things, their rights of travel, expression, association and free exercise of religion. They have sued Avino and the County for these injuries.
Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). They urge dismissal on the grounds that they (1) are not subject to county liability under section 1983 and (2) are immune from liability under the Eleventh Amendment.
Rule 12(b)(6) authorizes the Court to dismiss a claim on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). To dismiss on the pleadings, the Court is confined to a review of the pleadings, must accept the pleaded facts as true, and must resolve any factual issues in a manner favorable to the non-movant. See Quinones v. Durkis, 638 F.Supp. 856, 858 (S.D.Fla.1986). A claim is subject to dismissal only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2905-06, 106 L.Ed.2d 195 (1989) (quotation omitted).
Defendants claim that neither the County nor its agent, Avino,5 can be held liable under section 1983 because the Curfew was not an official County policy.
A local government, such as a county, cannot be held liable under section 1983 for its employees' acts under a theory of respondeat superior. Monell v. Department of Soc. Serv. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Instead, county liability must be founded on an official policy or custom. Id. at 694, 98 S.Ct. at 2037. A county's "official policy or custom" is not limited to decisions made by its governing body. Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1480 (11th Cir.1991). County policy or custom also can take the form of an isolated act by a county employee who has "final policy-making authority" with respect to that act. Id. Plaintiffs assert that the Curfew constituted County policy because Avino had final policy-making authority in imposing and maintaining the Curfew.
Defendants disagree. Observing that the Governor's executive order delegated to Avino the authority to issue a curfew,6 they argue that Avino was merely acting as the Governor's agent. They conclude that the Governor, rather than the County and its County Manager, was the ultimate repository of final policy-making authority with respect to the Curfew.
Defendants' claim lacks merit. The mere fact that authority to impose the Curfew may have been delegated to Avino by the Governor is not dispositive. See City of St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988); see also Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir.1994) (). It is clear that Avino exercised policy-making authority. His decisions to impose and maintain the Curfew reflected a "deliberate choice to follow a course of action ... made from various alternative" means of keeping order in Dade County. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986).
Avino also acted with final authority. The Governor's executive order did not require Avino to impose a curfew; instead, it merely authorized him to do so. Avino could have imposed a curfew even if the Governor had not declared a state of emergency: Florida law provides that, where the Governor has not declared a state of emergency, local officials may do so and may impose a curfew. Fla.Stat. §§ 870.041, 870.045(1). Finally, and most importantly, there is no evidence that Avino's decisions concerning the Curfew were reviewable by the Governor or were directly constrained by policies established by the Governor. See Praprotnik, 485 U.S. at 127, 108 S.Ct. at 926. Under these circumstances, the Court must conclude that Avino acted with final policy-making authority in imposing and continuing the Curfew.
Avino and the County thus can be held liable under section 1983.
Defendants also raise a defense of Eleventh Amendment immunity. Individual government officials, when sued in their official capacity, are immune from suit pursuant to the Eleventh Amendment if they acted at all material times as agents or instrumentalities of the state. Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 462 (1985). Defendants assert that they acted as agents or instrumentalities of the State of Florida because they acted under the command and authority of the Governor in his exercise of his emergency powers.
The Court disagrees. "Eleventh Amendment immunity does not extend to independent political entities, such as counties." Tuveson v. Florida Governor's Council on Indian Affairs, 734 F.2d 730, 732 (11th Cir.1984). There is no dispute that, as County Manager, Avino was employed and paid by Dade County. Further, as discussed above, Avino was not acting under the control of the Governor when he imposed the Curfew. Avino thus acted as an agent of the County, rather than the State. See Hufford v. Rodgers, 912 F.2d 1338, 1341-42 (11th Cir.1990) (), cert. denied, 499 U.S. 921, 111 S.Ct. 1312, 113 L.Ed.2d 246 (1991). Defendants are not entitled to Eleventh Amendment immunity.7
Plaintiffs seek summary judgment on two grounds. First, they claim that the Curfew was overbroad because it did not permit exceptions for after-hours travel related to work, education, health, or personal emergencies. Second, they assert that the Curfew was unconstitutionally vague because it gave police unbounded discretion to make exceptions for travel after curfew.
Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." To obtain summary judgment, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
In assessing whether the movant has met this burden, the Court views the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. The party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly supported the motion with sufficient evidence. Id. at 160, 90 S.Ct. at 1610. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the nonmoving party has introduced no evidence whatsoever. Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368-69 (11th Cir.1982).
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