Abella v. Simon

• Decision Date: 28 November 2011
• Docket Number: Case No. 11–20152–CIV.
• Citation: 831 F.Supp.2d 1316
• Parties: Gustavo ABELLA, Plaintiff, v. Town of Miami Lakes Councilwoman Nancy SIMON, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

831 F.Supp.2d 1316

Gustavo ABELLA, Plaintiff,

v.Town of Miami Lakes Councilwoman Nancy SIMON, et al., Defendants.

Case No. 11–20152–CIV.

United States District Court, S.D. Florida.

Nov. 28, 2011.

Gustavo Abella, pro se.

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court on nine separately filed Motions to Dismiss, individually filed by Defendants Nancy Simon [ECF No. 36], A. Salazar [ECF No. 43], Raymond Del Valle [ECF No. 44], Hector Valls [ECF No. 45], Benjamin Rivera [ECF No. 46], Juan F. Rodriguez [ECF No. 47], Richard Baez [ECF No. 48], Frank Bocanegra [ECF No. 49], and Robert Parker [ECF No. 50]. Defendant Simon's Motion (the “Simon Motion”) was filed on April 25, 2011, with the other eight Motions filed on May 31, 2011. The Court has considered the parties' arguments and the applicable law.

I. BACKGROUND¹

Plaintiff, Gustavo Abella (“Abella”), is a resident of Miami–Dade County. ( See Am. Compl. ¶ 3 [ECF No. 17] ). Abella alleges a myriad of constitutional violations against public officials, namely police officers from Miami Lakes, Florida. ( See Am. Compl.).

a. Political Sign—Councilmember Nancy Simon, Officer Juan F. Rodriguez

In February 2007, the City of Miami Lakes held a town meeting. ( See Am. Compl. ¶ 18). Plaintiff attended and spoke out against “an issue regarding posting commercial signs on the right of ways in the streets of the Town of Miami Lakes.” ( Id.). Soon thereafter, Miami Lakes Police Officer Juan F. Rodriguez stopped Plaintiff outside of his daughter's school. ( See id. ¶¶ 18, 28). Officer Rodriguez told Abella he had “received orders to ask [Abella] to remove the sign [he] had in the back of his pick up [sic] [truck].” ( Id. ¶ 28) (internal quotation marks omitted). The sign read, “Councilmember Nancy Simon wants to pollute Miami Lakes with signs.” ( Id. ¶ 18) (internal quotation marks omitted). Abella alleges the police threatened to issue him a citation if he did not take down the sign. ( See id.). He nevertheless refused to remove the sign. ( See id.). Abella, allegedly believing Simon, a Miami Lakes elected official, ordered the police to approach him, asserts “Simon's actions were undertaken as retaliation for [Abella's] exercise of his First Amendment right to free speech.” ( Id.).

Abella alleges the aforementioned actions taken by Council member Simon and Officer Rodriguez violate 42 U.S.C. § 1983. ( See id. Counts I, III).

b. Flyers—Officer Hector Valls

On January 7, 2008, Abella witnessed the president of his condominium association passing out flyers “with libel [sic] information against [Abella].” (Am. Compl. ¶ 57). The flyers contained a picture of Councilmember Simon and were addressed to all residents. ( See id.). Plaintiff called the police to complain. ( See id.). Officer Valls responded to Abella's request. ( See id. ¶ 58). Upon Officer Valls's arrival, Abella asked him to write up an official police report. ( See id.). Declining to take a report, Officer Valls took a flyer out of Abella's hand and stated “he had more important things to do.” ( Id.) (internal quotation marks omitted). Upon Abella's continued persistence that he write a report, Officer Valls asked, “[d]o you want to get arrested?” ( Id. ¶ 59) (internal quotation marks omitted). Abella replied that if there were “grounds to arrest him then to proceed.” ( Id. ¶ 60). Officer Valls then told Abella to move out of his way, he put his car in reverse, nearly hit Abella, and left. ( See id. ¶ 61).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, intimidation, and stalking against Officer Valls. ( See id. Count V(V ²)).

c. Parking Ticket Issue 1—Officer Juan F. Rodriguez

In April 2007, Abella was in a drop-off area at his daughter's school when Officer Juan F. Rodriguez issued him a traffic citation because he had parked in a manner blocking handicap spaces. ( See Am. Compl. ¶ 33). Abella claims he “was not parked, had the motor running and was waiting for his wife who went to drop off their daughter.” ( Id.). Before issuing the ticket, Officer Rodriguez asked Abella to move his car. ( See id. ¶ 34). Abella declined to listen, stating instead he could not move it because school construction limited available parking spaces. ( See id.). Abella then got out of his car and took pictures of the handicap spaces, which were occupied by school employees' vehicles. ( See id. ¶ 35). Abella fought the ticket, but lost. ( See id. ¶ 36). He blames the loss on Officer Rodriguez lying. ( See id.).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, intimidation, and stalking by Officer Rodriguez. ( See id. Count IV).

d. Parking Ticket 2—Officer Raymond Del Valle

Abella alleges that on February 18, 2008, despite the fact that his car was parked in its assigned condominium parking space, Officer Del Valle left a parking citation on the windshield. ( See Am. Compl. ¶¶ 87–89). Abella requested a court date, and the citation was dismissed. ( See id. ¶ 90).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, and intimidation by Officer Del Valle. ( See id. Count VI).

e. Parking Ticket 3—Officer A. Salazar

On August 12, 2008, Plaintiff ventured to the Miami Lakes Town Hall. ( See Am. Compl. ¶ 92). While there, he “parked in front of the building where there were other cars parked.” ( Id.). When Abella returned to his car “a couple of minutes later,” Officer Salazar was writing Abella a parking ticket. ( Id.). After Abella protested the ticket, Officer Salazar said, “I was given the order to write you a ticket and Bocanegra is watching me until I finish giving you the ticket.” ( Id. ¶¶ 93–94) (internal quotation marks omitted). Abella then went home, retrieved his camera, and returned to the scene to photograph the other cars in the same area that were not given parking citations. ( See id. ¶ 96). A couple of days later, Major Bocanegra, along with two other officers, reviewed Abella's parking citation and “decided to rip off [sic] the ticket.” ( Id. ¶¶ 97, 133). A few days later, Officer Salazar told Abella that “he was ordered by [Major] Bocanegra to give Abella the citation for improper parking.” ( Id. ¶ 98).

Abella alleges the aforementioned actions constitute an abuse of power, harassment,and intimidation by Officer Salazar. ( See id. Count VII(S)).

f. Parking Ticket 4—Officer Benjamin Rivera

On April 3, 2009, Plaintiff and his wife tried to drop their daughter off at school but there were no available parking spaces. ( See Am. Compl. ¶ 67). Instead, Abella pulled into the driveway of a friend who allows him to use it “at any moment needed.” ( Id.). Plaintiff's wife and daughter exited the car and walked to the school. ( See id.). Abella then left the driveway and “went toward Miami Lakeway South and made a Left [sic] to go East.” ( Id.). Abella drove into a Congregational Church parking lot and “made a U-turn to comeback [sic] to the school and pick up his wife.” ( Id. ¶ 68). After observing Abella's driving, Officer Rivera approached Abella's car. ( See id. ¶ 69). Officer Rivera then issued Abella a parking citation for parking in violation of Florida statute section 316.1945(1)(a)(10). ³ ( See id. ¶ 71).

Ten minutes later, Abella returned home only to have Officer Rivera arrive outside his residence a few minutes later. ( See id. ¶ 72). Abella's wife photographed this to “document the police presence outside their apartment.” ( Id. ¶ 73).

Plaintiff challenged the ticket and was granted a court date. ( See id. ¶ 74). At the June 15, 2009 hearing, Abella claims Officer Rivera lied to the hearing officer about how the events unfolded on April 3, 2009. ( See id. ¶ 76). Abella maintains that Officer Rivera's behavior at the hearing was so bad that “[m]any times [the hearing officer] had to tell him to calm down.” ( Id.). The hearing continued and at times it got personal between Officer Rivera and Abella. ( See id. ¶¶ 77–78). After testimony from Abella's wife, the hearing officer found Abella not guilty. ( See id. ¶¶ 79–81) (internal quotation marks omitted).

Abella alleges the aforementioned actions constitute an abuse of power, harassment, intimidation, and stalking by Officer Rivera. ( See id. Count V(R)).

g. Watch Order for Police Presence

In March 2007, the City of Miami Lakes held a town meeting. ( See Am. Compl. ¶ 19). At the meeting, Abella spoke out against “the attitude of an employee of the Adult Education Classes.” ( Id.). A couple of days after the meeting, on March 14, 2007, the police, via Officer Rodriguez, issued a watch order for police presence coinciding with the days and times Abella's daughter had ballet and martial-arts classes. ( See id. ¶¶ 19, 29–30). Town Mayor Wayne Slaton later invalidated the watch order. ( See id. ¶¶ 19, 31).

Abella asserts the aforementioned actions by Officer Rodriguez violate 42 U.S.C. § 1983. ( See id. Count III). Abella also alleges a violation of section 1983 against Councilmember Simon. ( See Count I).

h. Injunction—Councilmember Simon

On December 19, 2007, Council member Simon filed for a “Temporary Injunction for Protection” against Abella. (Am. Compl. ¶ 23). Abella claims the injunction contained false allegations against him as revenge for a complaint his wife had filed with the Florida Department of Business and Professional Regulations against Simon in which Simon was ultimately found guilty. ( See id., p. 2).

On December 21, 2007, the injunction was served on Plaintiff. ( See id. ¶ 21). Per the injunction, Abella could not come within 500 feet of Councilmember Simon's residence, nor enter any of the following within the City of Miami Lakes: Town Hall, Publix located at 67 Ave. and NW 154 St., CVS Pharmacy located in the same shopping center as the Publ ix, Marathon gas station located at 150 NW and 61 Ave., and the Chevron gas station located within 250 feet of Abella's residence. ( See id.). Abella claims he was prevented from...