Gill v. Judd

• Decision Date: 21 October 2019
• Docket Number: No. 17-14525,17-14525
• Citation: 941 F.3d 504
• Parties: Roseann Michelle GILL, AS Parent and NEXT FRIEND OF K.C.R., a minor, Plaintiff-Appellant, v. Grady JUDD, individually and in his official capacity as the Sheriff of Polk County, Jonathan McKinney, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

941 F.3d 504

Roseann Michelle GILL, AS Parent and NEXT FRIEND OF K.C.R., a minor, Plaintiff-Appellant,

v.Grady JUDD, individually and in his official capacity as the Sheriff of Polk County, Jonathan McKinney, individually, Defendants-Appellees.

No. 17-14525

United States Court of Appeals, Eleventh Circuit.

October 21, 2019

Howard S. Marks, Lisa J. Geiger, Burr & Forman, LLP, Orlando, FL, Lawrence G. Walters, Walters Law Group, Longwood, FL, for Plaintiff - Appellant.

Hank B. Campbell, Jonathan Barnet Trohn, Jennifer Vasquez, Campbell Trohn Tamayo & Aranda, PA, Lakeland, FL, for Defendants - Appellees.

Before ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.

ED CARNES, Chief Judge:

The death of a child is tragic, doubly so if it is suicide. And still more so if the child was driven to take her life by the bullying of other children. The first two levels of tragedy are undisputed in this case: a twelve-year-old girl, we’ll call R.S., deliberately ended her young life. Members of the Polk County, Florida Sheriff’s Department thought that R.S. took her life because she had been harassed and bullied by some of her sixth-grade classmates. Following an investigation, a deputy arrested one of those classmates, whom we will call K.C.R. She had once been R.S.’s best friend, but she found herself charged with having committed the crime of aggravated stalking, a felony, which includes harassing a child under sixteen years of age. The warrantless arrest took place inside K.C.R.’s home.

The presumption of innocence proved apt in K.C.R.’s case. The aggravated stalking charge against her was eventually dismissed, but not before the sheriff released K.C.R.’s name and photograph to the media and repeatedly and publicly blamed her for the death of R.S. As one might imagine, that had a devastating effect on K.C.R. She filed a lawsuit under 42 U.S.C. § 1983, naming as defendants the sheriff and a deputy who had entered her home and arrested her.¹

The district court dismissed most of K.C.R.’s claims, including the claim that the deputy lacked probable cause to arrest her. The court granted summary judgment against K.C.R. on one of her two remaining claims. K.C.R.’s last surviving claim, which went to the jury, was that deputies entered her house without a warrant (undisputed) and without consent (disputed) and thereby violated her Fourth Amendment rights. The sole question for the jury was whether the arresting deputy had consent to enter K.C.R.’s house. The jury found that he did.

This is K.C.R.’s appeal challenging the dismissal of her claim that there was no probable cause for the arrest and challenging the judgment entered on the jury’s verdict that the deputy had consent to enter her home to make the arrest.

I. PROCEDURAL HISTORY

K.C.R. filed this lawsuit in federal district court in April 2015. She claimed that the sheriff’s deputy who arrested her, Jonathan McKinney, violated her Fourth Amendment right to be free from unreasonable searches and seizures both because he did not have probable cause to arrest her and because he did not have consent to enter her home. She also claimed that Sheriff Grady Judd and his office had an unconstitutional policy of encouraging the kind of warrantless home arrests she had experienced. There were also various state-law claims, but none of them is relevant to this appeal.

The district court dismissed some of K.C.R.’s claims under Federal Rule of Civil Procedure 12(b)(6), including her Fourth Amendment claim that McKinney lacked probable cause to arrest her. The court also granted summary judgment to the sheriff on K.C.R.’s unlawful policy claim. That left for trial only her Fourth Amendment claim that Deputy McKinney did not have consent to enter K.C.R.’s house and arrest her without a warrant. It was tried to a jury. Because the district court had already determined that McKinney had probable cause to make the arrest, the jury had only one question to answer: "Did the Defendant Jonathan McKinney enter Plaintiff’s house without consent in violation of Plaintiff’s civil rights?" The jury answered: "No."

K.C.R. contends that the district court committed three reversible errors. First, she contends that it erred by dismissing her claim that McKinney did not have probable cause to arrest her. Second, she challenges the sufficiency of the evidence for the jury to find that McKinney had consent to enter her house and also contends that the district court erred by denying her motions for judgment as a matter of law and for a new trial based on insufficient evidence. And third, she contends that the district court abused its discretion when it denied her motions for a new trial and for a mistrial based on the answers that the judge had given to some questions the jury asked during deliberations. We will address those contentions in that order.

II. THE DISMISSAL ISSUES

We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) of K.C.R.’s claim that McKinney did not have probable cause to arrest her. See Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012). The question we must answer is whether K.C.R.’s operative complaint — the amended one, which we will simply refer to as "the complaint" — alleged sufficient facts to state a plausible claim that McKinney lacked probable cause for the arrest. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While we accept the factual allegations in the complaint as true, construing them in the light most favorable to the plaintiff, the allegations must state a claim for relief that is plausible, not merely possible. See Butler, 685 F.3d at 1265. Under this standard, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

In considering whether the district court properly dismissed the claim asserting a lack of probable cause, we do not look to any of the evidence submitted in connection with the summary judgment motion or introduced at trial. That evidence all came later and the dismissal of a claim under Rule 12(b)(6) is to be judged for correctness at the time the dismissal took place.

A. Consideration Of The Affidavit Attached To The Complaint

In deciding whether a complaint states a claim upon which relief may be granted, we normally consider all documents that are attached to the complaint or incorporated into it by reference. The Civil Rules provide that an attachment to a complaint generally becomes "part of the pleading for all purposes," Fed. R. Civ. P. 10(c), including for ruling on a motion to dismiss. See Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (stating that a "court can generally consider exhibits attached to a complaint in ruling on a motion to dismiss ...."); Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir. 2014) ("[D]ocuments attached to a complaint or incorporated in the complaint by reference can generally be considered by a federal court in ruling on a motion to dismiss under Rule 12(b)(6)."); Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) ("We are required to accept the facts as set forth in the plaintiff’s complaint as true, and our consideration is limited to those facts contained in the pleadings and attached exhibits.").

The rule that attached exhibits are to be considered part of the complaint when ruling on its sufficiency usually benefits the plaintiff, but not always. As our predecessor court warned nearly 80 years ago, a "litigant may be defeated by his own evidence, the pleader by his own exhibits" when "he has pleaded too much and has refuted his own allegations by setting forth the evidence relied on to sustain them." Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940) (emphasis added).² In the Parkerson case, for example, the Court explained: "This complaint is plagued not by what it lacks, but by what it contains. All of the paths to relief which the pleading suggests are blocked by the allegations and the attached documents themselves, without more." Gen. Guar. Ins. Co. v. Parkerson, 369 F.2d 821, 825 (5th Cir. 1966) (emphasis added). That is what happened in the Parkerson case, and it is what has happened here.

Under the Florida Rules of Criminal Procedure, when a warrantless arrest is made and the defendant is held in custody, a non-adversarial probable cause determination must be made by a judge within 48 hours after the arrest. See Fla. R. Crim. P. 3.133(a)(1). The rules provide that the determination "may be based on sworn complaint, affidavit, deposition under oath, or, if necessary, on testimony under oath properly recorded." Fla. R. Crim. P. 3.133(a)(3). In actual practice the 48-hour judicial determination of probable cause is almost always made based on an affidavit or sworn complaint, which is sometimes called an "A-form" or "arrest form." It is usually filled out by the arresting officer after the warrantless arrest, which apparently is what happened in this case. The arresting officer need not be present when the judge decides whether the affidavit or complaint establishes probable cause to believe that the person arrested had committed a crime. Cf. Fla. R. Crim. P. 3.133(a)(3).

On the same day he arrested K.C.R., Deputy McKinney filled out a Rule 3.133(a)(3) complaint or affidavit. The parties call it "the arrest affidavit," and so will we. As the rules contemplate, McKinney set out in the arrest affidavit what he had learned and had been told that caused him to conclude there was probable cause to arrest K.C.R. for the crime of aggravated stalking. The affidavit included short summaries of interviews McKinney had with four students who had attended the same middle school as K.C.R. and R.S. Three of them told McKinney that K.C.R. had bullied R.S., while the fourth said that K.C.R. and R.S. had once been best...