Berry v. Demings, CASE NO. 6:11-CV-1740-Orl-36KRS
| Decision Date | 26 September 2012 |
| Docket Number | CASE NO. 6:11-CV-1740-Orl-36KRS |
| Parties | BRIAN BERRY, JEMARIO ANDERSON, REGINALD TRAMMON and EDWYN DURANT, Plaintiffs, v. JERRY DEMINGS, TRAVIS LESLIE, KEITH VIDLER, DAVE OGDEN and JOHN DOES 1-10, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause comes before the Court on three separate Motions to Dismiss: (1) Defendant Travis Leslie's Motion to Dismiss (Doc. 34); (2) Defendant Keith Vidler's Motion to Dismiss (Doc. 35); and (3) Defendant Dave Ogden's Motion to Dismiss (Doc. 38). Plaintiffs Brian Berry ("Plaintiff Berry"), Jemario Anderson ("Plaintiff Anderson"), Reginald Trammon ("Plaintiff Trammon") and Edwyn Durant ("Plaintiff Durant") (collectively, "the Plaintiffs") have not filed a Response to any of these Motions and the time to do so has expired. Accordingly, these matters are ripe for review.
Plaintiff Berry has operated the barbershop Strictly Skillz since March 2007. Doc. 1, ¶ 30. Strictly Skillz is located in the predominantly minority-inhabited Pine Hills community of Orlando, Florida. Id. at ¶¶ 13, 30. Plaintiff Berry is a licensed barber and the sole-owner of Strictly Skillz. Id. Plaintiff Anderson, Plaintiff Trammon and Plaintiff Durant are licensed barbers who work as independent contractors at Strictly Skillz. Id. at ¶ 31. All of the Plaintiffs are African-American. Id. at ¶¶ 30-31. While Strictly Skillz serves a variety of clients, the majority of its clientele is African-American. Id. at ¶ 32.
On August 21, 2010, the Orange County Sheriff's Office ("OCSO"), acting in conjunction with the Department of Business & Professional Regulation ("DBPR"), conducted unannounced "raid-style" inspections and searches of nine barbershops in the Pine Hills community.2 Id. at ¶ 35. Strictly Skillz was among the barbershops targeted. Id. at ¶ 36. Upon entering Strictly Skillz, armed OCSO deputies ordered all of the customers to leave the shop; including those who were in the middle of getting their hair cut. Id. at ¶ 38. Plaintiffs Berry, Anderson and Trammon were placed in arm restraints and subjected to pat-downs. Id. at ¶ 40. OCSO deputies, with the aid of a DBPR inspector, conducted an extensive search of the barbershop, including drawers and cabinets. Id. at ¶ 42. The officers never claimed to have a warrant to conduct the search nor did they ever produce a warrant. Id. at ¶ 43. Eventually, the OCSO deputies and the DBPR employee left the barbershop without citing the Plaintiffs for any violations or crimes. Id. at ¶ 48. The OCSO deputies and DBPR employees conducted the "raid-style" inspections at other African-American and Hispanic-American barbershops on September 17, 2010 and October 8, 2010. Id. at ¶ 50.
After the August 21, 2010 raid, business dropped significantly for the Plaintiffs and Strictly Skillz. Id. at ¶ 58. The Plaintiffs also allege that the actions of the OCSO and DBPR have caused them to suffer fear, humiliation, invasion of privacy, anxiety, stress, emotional and mental distress, and injury. Id. at ¶ 49.
On October 31, 2011, Plaintiffs Berry, Anderson, Trammon and Durant filed a ten-count Complaint with this Court (Doc. 1). The Complaint names the following defendants: (1) Orange County; (2) Jerry Demings, Orange County Sheriff; (3) Ken Lawson, Department of Business and Professional Regulation Secretary; (4) Deputy Travis Leslie; (5) Deputy Terry Wright; (6) Deputy Kim Parmenter; (7) Deputy Tracy Weiss; (8) Corporal Donald Murphy; (9) Corporal Antorrio Wright; (10) Corporal Keith Vidler; (11) Amanda Fields; (12) Daniel Hogan; and (13) Captain Dave Ogden. Id. The Court entered Orders terminating Defendant Orange County (Doc. 36), Defendants Charlie Liem, Ken Lawson, Amanda Fields and Daniel Hogan (Doc. 70), and Defendants Donald Murphy, Antorrio Wright, Terry Wright, Kim Parmenter and Tracy Weiss (Doc. 83) as parties to this case . Accordingly, the only remaining parties in this action are Orange County Sheriff Jerry Demings ("Defendant Demings"); Deputy Travis Leslie ("Defendant Leslie"); Corporal Keith Vidler; ("Defendant Vidler"); and Captain Dave Ogden ("Defendant Ogden") (collectively, "the Defendants").
Plaintiffs' Complaint alleges seven Counts against Defendant Leslie: (1) Count One - Violation of the Fourteenth Amendment, 42 U.S.C. § 1983 (individual capacity); (2) Count Three - Violation of the Fourth Amendment, § 1983 (individual capacity); (3) Count Five - Violation of the Florida Constitution, Article I, Section 12; (4) Count Six - Violation of the Florida Constitution, Art.I, Section 23; (5) Count Seven - False Imprisonment; (6) Count Eight - Battery; and (7) Count Nine - Declaratory Relief (Doc. 1). Plaintiffs' Complaint alleges five Counts against Defendant Vidler: (1) Count One - Violation of the Fourteenth Amendment, § 1983 (individual capacity); (2) Count Three - Violation of the Fourth Amendment, § 1983 (individual capacity); (3) Count Five - Violation of the Florida Constitution, Article I, Section 12; (4) Count Six - Violation of the Florida Constitution, Article I, Section 23; and (5) Count Nine - Declaratory Relief. Id. Plaintiffs' Complaint alleges seven Counts against Defendant Ogden: (1) Count One - Violation of the Fourteenth Amendment, § 1983 (individual capacity); (2) Count Two - Violation of the Fourteenth Amendment, § 1983 (official capacity); (3) Count Three - Violation of the Fourth Amendment, § 1983 (individual capacity); (4) Count Four - Violation of the Fourth Amendment, § 1983 (official capacity); (5) Count Five - Violation of the Florida Constitution, Article I, Section 12; (6) Count Six - Violation of the Florida Constitution, Article I, Section 23; and (7) Count Nine - Declaratory Relief. Id.
To survive a motion to dismiss, a pleading must include a "short and plain statement showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere naked assertions, too, are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable forthe misconduct alleged." Id. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a "factual allegation" in the complaint. Id. Therefore, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. (citation omitted).
Count One alleges § 1983 violations of the Equal Protection Clause of the Fourteenth Amendment, against the Defendants in their individual capacities (Doc. 1, ¶¶ 63-69). Defendants Leslie, Vidler and Ogden assert that this Count is subject to dismissal for failure to state a claim upon which relief may be granted. Doc. 34, p. 2; Doc. 35, p. 2; Doc. 38, p. 2. Specifically, the Defendants assert that the Plaintiffs have failed to allege sufficient factual allegations to show that the selection of Strictly Skillz for inspection was instigated personally by the Defendants or that the selection was motivated by a discriminatory intent. Id.
To assert a claim under the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must allege that: (1) he was treated differently from similarly situated persons; and (2) the defendant unequally applied the laws for the purpose of discriminating against him. Morris v. City of Orlando, 2010 WL 4646704, at *7 (M.D. Fla. 2010) (citing GJR Inv. v. Cnty. of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998)). The similarly situated persons must be "prima facie identical [to plaintiffs] in all relevant respects." Id. (citing Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006)).
Though the Plaintiffs assert that they were targeted on the basis of their race, there are no allegations in the Complaint from which it may plausibly be inferred that Defendants Leslie, Vidleror Ogden intended to treat the Plaintiffs differently from similarly situated persons. In other words, the Plaintiffs assert that they were treated unfairly by the Defendants, but not necessarily any differently than similarly situated persons. Absent specific factual allegations, the Plaintiffs' Equal Protection claim must be dismissed against these Defendants as insufficiently pled. Therefore, Count One of the Complaint is dismissed as to Defendants Leslie, Vidler and Ogden for failure to state a claim upon which relief may be granted.
Count Three alleges § 1983 violations of the Fourth Amendment, against the Defendants in their individual capacities (Doc. 1, ¶¶ 78-82). Defendants Leslie, Vidler and Ogden assert that this Count is also subject to dismissal for failure to state a claim. Doc. 34, pp. 5-6; Doc. 35, pp. 5-6; Doc. 38, p. 7. Specifically, the Defendants assert that the Plaintiffs have failed to allege sufficient factual allegations to show that the Defendants personally seized or searched any of the Plaintiffs. Id. Moreover, the Defendants argue that they have not received fair notice of the factual basis of this claim. Id.
To state a claim under § 1983 for a Fourth Amendment violation, a plaintiff must allege that the defendant conducted an unreasonable search. Buckley v. Gately, 2009 WL 2868632, at *3 (M.D. Fla. 2009) (citing Samson v. California, 547 U.S. 843, 848 (2006)). To determine whether a particular governmental activity violates the Fourth Amendment, the Court must decide whether the activity constitutes a search, and, if it does, whether the search...
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