Bryant v. Mostert
| Decision Date | 07 July 2009 |
| Docket Number | Case No. 6:08-cv-252-Orl-35DAB. |
| Citation | 636 F.Supp.2d 1303 |
| Parties | Garland BRYANT, Jr., Plaintiff, v. Scott MOSTERT, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Garland Bryant, Jr., West Melbourne, FL, pro se.
F. Scott Pendley, John Michael Joyce, Dean, Ringers, Morgan & Lawton, PA, Orlando, FL, Helen B. Fouse, Office of the Attorney General, Tampa, FL, for Defendants.
This case is before the Court on the following motions: (1) Defendants Scott Mostert and R.W. Nelson's Motion for Summary Judgment (Doc. No. 74), and Defendant Jo Lynn Nelson's Motion to Dismiss Amended Complaint (Doc. No. 81). Plaintiff filed a Response to the Motion for Summary Judgment (Doc. No. 83) and a Response to the Motion to Dismiss Amended Complaint (Doc. No. 101). As discussed hereinafter, the motions are granted, and the instant case is dismissed.
Plaintiff, a prisoner of the State of Florida proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 against Defendants Scott Mostert ("Mostert"), R.W. Nelson, and Jo Lynn Nelson (collectively "Defendants"). Defendants Mostert and R.W. Nelson are detectives for the Melbourne Police Department, and Defendant Jo Lynn Nelson is an assistant state attorney. (Doc. No. 48 at 8-9.) Plaintiff contends that Defendants violated his Fourth Amendment right against illegal search and seizure, his Fourteenth Amendment right to due process, and his Fourteenth Amendment right to equal protection, and conspired to violate his civil rights in violation 18 U.S.C. § 242. (Doc. No. 48 at 10.)
Specifically, Plaintiff asserts five claims. First, he contends that Defendants Mostert and Jo Lynn Nelson violated his Fourteenth Amendment right to equal protection by refusing to prosecute the individuals who burglarized his home. Plaintiff next asserts that Defendants Mostert and Jo Lynn Nelson illegally removed items from his home, namely pornographic magazines, and subsequently attempted to conceal their actions in violation of his Fourth Amendment rights. Likewise, Plaintiff contends that Defendants Mostert and Jo Lynn Nelson violated his right against illegal search and seizure by recording a telephone conversation between Plaintiff and a minor during the investigation of his criminal cases. Fourth, Plaintiff maintains that Defendants R.W. Nelson and Jo Lynn Nelson, whom he alleges are either lovers or married, conspired in violation of 18 U.S.C. § 242 to file criminal charges against him without direct involvement in or investigation of his case. Finally, Plaintiff asserts that Defendant Jo Lynn Nelson violated his Fourteenth Amendment right to due process by withholding evidence from him. Id. at 10-11.
In support of his claims, Plaintiff maintains that on February 11, 2003, he called the Melbourne Police Department after discovering that his home had been burglarized. Id. at 10. Witnesses identified the perpetrators, and the Melbourne Police Department investigated the incident and determined that the perpetrators were three juvenile females. Id.; see also Doc. No. 74-2 at 1-7. Plaintiff contends that Defendants Mostert and Jo Lynn Nelson refused to prosecute the three juveniles, which violated his right to equal protection.
As a result of the investigation into the break-in of Plaintiff's home, an investigation was instigated regarding allegations that Plaintiff had provided minors with drugs and had engaged in sexual activity with minors. (Doc. Nos. 74-3 & 74-4.) As part of the investigation, Defendant Mostert and another detective recorded a conversation between Plaintiff and a minor with the minor's permission. Id. On February 14, 2003, Defendant Mostert obtained and executed a search warrant to look for drug items in Plaintiff's home and shed. Id.; see also Doc. No. 74-5. Thereafter, Plaintiff was arrested. Id.; see also 74-8. Plaintiff was charged in three separate cases as follows: (1) case number 03-12260-CFA with one count of lewd and lascivious conduct; (2) case number 03-08698-CFA with one count of lewd and lascivious molestation and one count of battery; and (3) case number 03-08697-CFA with one count of delivery of a controlled substance to a minor, one count of contributing to the delinquency of a minor, one count of possession of not more than 20 grams of cannabis, and one count of possession drug paraphernalia. (Doc. No. 74-12 at 4-5.) On August 12, 2003, Plaintiff entered a plea of guilty to battery, lewd and lascivious conduct, and to possession of drug paraphernalia, and the remaining charges were nol prossed. (Doc. No. 74-12 at 9-14.)
Plaintiff seeks nominal damages of $50,000 from each Defendant, compensatory damages of $100,000 from each Defendant, and punitive damages of $100,000. (Doc. No. 48 at 13.) Plaintiff also requests injunctive relief prohibiting Defendants from retaliating against him or his family, and he requests the United States Attorney General's Office to pursue criminal sanctions against Defendants. Id.
When considering a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual allegations in the complaint as true and read them in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); see also Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). A complaint must contain a short and plain statement demonstrating an entitlement to relief, and the statement must "give the defendant `fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 2507, 168 L.Ed.2d 179 (2007) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A plaintiff must supply "`enough facts to state a claim to relief that is plausible on its face,' rather than merely `conceivable.'" Huggins v. Marriott Ownership Resorts, Inc., 2008 WL 552590, *2, Case No. 6:07-cv-1514-Orl-22KRS (M.D.Fla. Feb. 27, 2008) (discussing Twombly in dismissing claims for breach of implied duty of good faith and fair dealing) (Conway, J.) (quoting Twombly, 127 S.Ct. at 1969, 1974). Thus, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65 (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. at 1965.
Dismissal is also warranted under Rule 12(b)(6) if, assuming the truth of the factual allegations of the plaintiff's complaint, there remains a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Brown v. Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir.1992). Although in the case of a pro se action, the Court should construe the complaint more liberally than it would pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980).
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment shall be granted if it appears that there exists "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing that there is no genuine issue of material fact lies on the moving party, and it is a stringent one. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rule 56(e) further provides as follows:
When a motion for summary judgment is made and supported as provided on this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing there is a genuine issue of fact for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Essentially, the nonmoving party, so long as that party has had an ample opportunity to conduct discovery, must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If, after the movant makes its showing, the nonmoving party brings forth evidence in support of its position on an issue for which it bears the burden of proof at trial that "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-250, 106 S.Ct. 2505 (citations omitted).
In both the motion to dismiss and the motion for summary judgment, Defendants assert that the instant action is barred by the statute of limitations. Defendants assert that the only date that Plaintiff specifically identifies is February 11, 2003, the date on which he contacted the Melbourne Police Department. Additionally, Defendants assert that Plaintiff either knew or should have known that he had suffered the injuries of which he complains in this action and who inflicted those injuries no later than August 12, 2003, the date he was convicted for the offenses which underlie the claims he...
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