Bush v. City of Daytona Beach, Case No: 6:12-cv-1541-Orl-36TBS

Decision Date24 June 2013
Docket NumberCase No: 6:12-cv-1541-Orl-36TBS
PartiesD'ARIOUS BUSH, Plaintiff, v. CITY OF DAYTONA BEACH, Defendant.
CourtU.S. District Court — Middle District of Florida
ORDER

This cause comes before the Court upon Defendant City of Daytona Beach's ("Defendant") Amended Motion to Dismiss Complaint ("Motion to Dismiss") (Doc. 7). In its Motion to Dismiss, Defendant argues that Plaintiff D'Arious Bush's ("Plaintiff") Complaint (Doc. 2) should be dismissed for lack of jurisdiction and failure to state a claim. Doc. 7, pp. 3-15. Plaintiff filed a Response in opposition to Defendant's Amended Motion to Dismiss Complaint ("Response") (Doc. 15). Upon consideration and for the reasons that follow, the Court will grant the Defendant's Motion to Dismiss.

I. BACKGROUND
A. Facts1

At all relevant times, Plaintiff was a resident of Volusia County, Florida. Doc. 2, ¶ 2. On January 28, 2008, Plaintiff was arrested by Defendant's Police Department pursuant to allegations of a home invasion with a firearm. Id. at ¶ 4. At the time of his arrest, Plaintiff was under the age of 18. Id. at ¶ 5. Following his arrest, Plaintiff was detained at the Volusia CountyDetention Center and then transferred to the Volusia County Branch Jail, where he was held through May 23, 2008. Id. at ¶¶ 7, 8.

On May 23, 2008, the State Attorney dismissed charges against Plaintiff when, allegedly, the pertinent witnesses indicated that Plaintiff was not responsible for the crime. Id. at ¶¶ 16-17. As a result of his incarceration, Plaintiff suffered mental anguish and humiliation, as well as loss of employment and educational opportunities. Id. at ¶ 18.

On May 12, 2009, Plaintiff filed a Notice of Intent to Sue pursuant to Florida Statute Chapter 768. Id. at ¶ 19.

B. Procedural History.

On May 22, 2012, Plaintiff filed a Complaint in the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida. Doc. 2. Plaintiff's Complaint alleges six counts against Defendant: (I) negligence; (II) false imprisonment; (III) violation of constitutional rights pursuant to 42 U.S.C. §1983; (IV) negligence; (V) false imprisonment; and (VI) violation of constitutional rights pursuant to 42 U.S.C. §1983.2 Id. at ¶¶ 4-95. On October 11, 2012, Defendant filed a Notice of Removal. Doc. 1.

In the Complaint, Plaintiff alleges that Defendant had a duty to ensure that a reasonable investigation was conducted and incorporated into its charging affidavit ("Charging Affidavit"), and that Plaintiff was falsely arrested. Id. at ¶ 10. Plaintiff further alleges that Defendant breached its duty by failing to ensure that the witnesses' statements were reliable. Id. at ¶ 11. Plaintiff also alleges that Defendant failed to conduct an investigation throughout his incarceration. Id. at ¶ 14. The instant Motion to Dismiss ensued. See Docs. 7, 15.

II. STANDARD

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, 129 S. Ct. 1937, 1949 (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. (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 555). "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 for the 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. at 1950. Therefore, although a complaint does not need detailed factual allegations to survive a challenge under Rule 12(b)(6), a plaintiff is still obligated to provide the "grounds" for his entitlement to relief. City of Winter Haven v. Cleveland Indians Baseball Co., LP, 2009 WL 1107670, *1 (M.D. Fla. 2009); see Iqbal, 129 S. Ct. at 1950 ("only a claim that states a plausible claim for relief survives a motion to dismiss.").

III. ANALYSIS
A. Dismissal of duplicative claims

As a preliminary matter, the Court must dismiss Plaintiff's duplicative claims. Upon review, Plaintiff's Count I alleging negligence and Count IV alleging negligence are virtually identical. The only difference in the allegations between Counts I and IV appears to be the date of Plaintiff's alleged release from incarceration, which is alleged as May 23, 2008 in Count I and as May 22, 2008 in Count IV. See Doc. 2, ¶¶ 16, 62. See Doc. 2, ¶¶ 4-19, 50-65. Similarly,Plaintiff's Counts II and V, each alleging false imprisonment, are effectively identical.3 Id. at ¶¶ 20-31, 66-77. Finally, Plaintiff's Counts III and VI, each alleging a violation of constitutional rights, are duplicative.4 Id. at ¶¶ 32-49, 78-95. Plaintiff submits that the allegations in Counts I, II and III pertain to his arrest for an alleged home invasion/robbery with a firearm and the allegations in Counts IV, V, and VI pertain to his arrest for an alleged carjacking. Plaintiff was arrested for both offenses on January 28, 2008, presumably at the same time. On the bare facts alleged in the Complaint regarding the home invasion/robbery with a firearm and carjacking, the counts appear to be duplicative. Accordingly, the Court dismisses Counts IV, V and VI as duplicative and addresses Plaintiff's Counts I, II and III.

B. Statute of Limitations

Count I alleges negligence based on the police investigation and preparation of the Charging Affidavit resulting in Plaintiff's arrest. Doc. 2, ¶¶ 4-19. Count II alleges false imprisonment on the same basis. Id. at ¶¶ 20-31. Count III alleges a violation of constitutional rights pursuant to 42 U.S.C. § 1983 for Defendant's alleged "failure to conduct a reasonable investigation to ensure the accuracy of witness identification of the Plaintiff and/or to determine whether the Plaintiff was the individual who committed the crime." Id. at ¶ 40. Defendant argues that a Rule 12(b)(6) dismissal is appropriate where, as here, it is apparent from the face of the complaint the claim is time-barred. See Fed. R. Civ. P. 12(b)(6); Doc. 7, p. 3 (citing La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th Cir. 2004)).

i. Plaintiff's negligence claim is time barred

With respect to Count I, a state law negligence claim against a municipality must be brought within four years from the date of accrual. Fla. Stat. § 768.28(14).5 Under Florida law, the cause of action accrues when the last element constituting the cause of action occurred. See Fla. Stat. § 95.031(1). Here, Plaintiff alleges that Defendant conducted a negligent investigation leading to his arrest and charges by the State Attorney's office. Doc. 2, ¶ 6. However, as Defendant argues, a plain reading of section 95.031(1) indicates that the date of Plaintiff's arrest was the "last element constituting the cause of action" for the alleged negligence in the criminal investigation and preparation of the Charging Affidavit. See Fla. Stat. § 95.031(1); Doc. 7, p. 4. Plaintiff was arrested on January 28, 2008, significantly more than four years before first filing a complaint in State Circuit Court, on May 22, 2012. See Doc. 2.

In an apparent attempt to avoid the statute of limitations, Plaintiff alleges that Defendant's police officers knew or should have known that they failed to conduct a reasonable investigation "on a continual basis" throughout Plaintiff's incarceration, which lasted until May 23, 2008. Doc. 2, ¶ 13. However, as Defendant argues, Florida's continuing tort doctrine is inapplicable to the instant action. Doc. 7, p. 4; see Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1222 (11th Cir. 2001); Manley v. Stube, 2010 WL 935701 (M.D. Fla. 2010).

The continuing violation doctrine is premised on the notion that statutes of limitation ought not to run until facts supportive of the cause of action are or should be apparent to a reasonably prudent person similarly situated. Hipp, 252 F.3d at 1222. The purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit theinclusion of acts whose character as discriminatory or harmful acts was not apparent at the time they occurred. Id. However, when a defendant's damage-causing act is completed, the existence of continuing damages to plaintiff, even progressively worsening damages, does not present successive causes of action accruing because of a continuing tort. Suarez v. City of Tampa, 987 So.2d 681, 686 (Fla. 2nd DCA 2008). In its Response, Plaintiff insists that Defendant continued to negligently investigate Plaintiff's case and did not learn that the witnesses could not identify Plaintiff until May 23, 2008. Doc. 15, ¶ 10. Thus, Plaintiff insists that Defendant's tortious acts continued through the date of the trial for the purposes of the statute of limitations. Id. (citing Suarez, 987 So. 2d at 686)).

Upon consideration, the Court agrees with Defendant that while the length of Plaintiff's incarceration is relevant to alleged damages, it is irrelevant to the alleged negligence of the investigation and arrest. In its Response, Plaintiff has provided no authority, and the Court is unaware of any, supporting the theory that incarceration amounts to continuing negligence on the tort of false arrest.6 See Doc. 15. Indeed, a continuing tort is "established by continual tortious acts, not by continual harmful effects from an original, completed act." Suarez, 987 So. 2d at 686 (citing Horvath v. Delida, 213 Mich. App. 620 (1995)). Here, Defendant's alleged negligence with respect to its investigation accrued at the time of Plaintiff's arrest in January 2008. Doc. 2, ¶ 4. Accordingly, since the accrual for Plaintiff's negligence claim...

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