Doe v. City of Miami Gardens

• Decision Date: 09 April 2019
• Docket Number: Case No.: 18-cv-21381-UU
• Citation: 389 F.Supp.3d 1118
• Parties: Jane DOE, Plaintiff. v. CITY OF MIAMI GARDENS, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

389 F.Supp.3d 1118

Jane DOE, Plaintiff.

v.CITY OF MIAMI GARDENS, et al., Defendants.

Case No.: 18-cv-21381-UU

United States District Court, S.D. Florida.

Signed April 9, 2019

Phillip Andrew Ortiz, The Firm Law Group, Miami Lakes, FL, Stephan Lopez, Stephan Lopez Law Firm LLC, Hollywood, FL, Yechezkel Rodal, Rodal Law, P.A., Ft. Lauderdale, FL, for Plaintiff.

Roger Steven Kobert, Anne Reilly Flanigan, Weiss Serota Helfman Cole, Bierman, P.L., Coral Gables, FL, Matthew Harris Mandel, Weiss Serota Helfman Pastoriza et al, Fort Lauderdale, FL, for Defendant.

ORDER

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Javier J. Romaguera ("Sgt. Romaguera")'s Motion for Partial Summary Judgment (the "Motion") (D.E. 65).

THE COURT has reviewed the Motion and pertinent parts of the record and is otherwise fully advised in the premises.

For the reasons explained below, the Motion is granted as to the sole federal claim, and the Court declines to exercise jurisdiction over the state law claims.

I. BACKGROUND

On April 8, 2018, Plaintiff Chantal Georges¹ ("Plaintiff") commenced this action against Sgt. Romaguera and the City of Miami Gardens (the "City"), based on the events of July 12, 2016. D.E. 1. The City was dismissed from the case on July 5, 2018. D.E. 34. And Plaintiff consented to dismissal of Count III of the operative Amended Complaint (D.E. 24) (the "Complaint"). D.E. 29 at *3; D.E. 35. The remaining counts against Sgt. Romaguera are: (1) a claim under 42 U.S.C. § 1983 premised on an alleged Fourth Amendment violation [Count I]; (2) a claim for assault and battery under Florida law [Count II]; and (3) a claim for false imprisonment under Florida law [Count IV].

In his Motion, Sgt. Romaguera asserts that he is entitled to summary judgment on Count I because the § 1983 claim is barred by qualified immunity and, alternatively, Plaintiff has not stated a Fourth Amendment violation. He also asserts that he is entitled to summary judgment on Count IV because Plaintiff had reasonable means of escape from the hotel in which she was allegedly falsely imprisoned. Sgt. Romaguera does not seek summary judgment on Count II. However, he also seeks a summary judgment ruling as to Plaintiff's present and future damages, based on Plaintiff's deposition testimony disclaiming any mental distress or emotional injury because of Sgt. Romaguera's actions.

The Motion is now ripe for disposition.

II. EVIDENTIARY DISPUTES

As a preliminary matter, Sgt. Romaguera correctly notes that "Plaintiff did not file a statement of material facts comporting with Local Rule 56.1." D.E. 94 at 1. Local Rule 56.1 requires a party opposing summary judgment to file an opposing statement of material facts that corresponds with the order and paragraph numbering scheme used in the movant's statement of material facts. S.D. Fla. L.R. 56.1(a). "Additional facts which the party opposing summary judgment contends are material shall be numbered and placed at the end of the opposing party's statement of material facts; the movant shall use that numbering scheme if those additional facts are addressed in the reply." Id. Rule 56.1's "clear procedural directive is intended to reduce confusion and prevent the Court from having to scour the record and perform time-intensive fact searching. The rule thus reflects a clear policy that it is not the court's obligation to scour the record for a factual dispute that precludes summary judgment. Rather, it is the nonmovant's obligation to specifically bring the factual dispute to the court's attention by rebutting the movant's factual statements on a paragraph by paragraph basis and with specific citations to the record." Joseph v. Napolitano , 839 F. Supp. 2d 1324, 1329 (S.D. Fla. 2012) (citing official comments to L.R. 56.1) (emphasis in original).

Plaintiff shirked Rule 56.1's clear procedural directive, ignoring Sgt. Romaguera's statement of facts and instead asserting 46 of her own allegedly undisputed facts. See D.E. 92 at *2–7. 19 of the 46 facts lack any citation to record evidence whatsoever. See id. at ¶¶ 3, 5, 20–30, 35–39, 42. As a result, pursuant to Federal Rule of Civil Procedure 56(e) and Local Rule 56.1(b), the Court disregards these facts. The Court does not have "an obligation to parse a summary judgment record to search out facts or evidence not brought to the court's attention." Atlanta Gas Light Co. v. UGI Utilities, Inc. , 463 F.3d 1201, 1209 (11th Cir. 2006) ; Chavez v. Sec'y Fla. Dep't of Corr. , 647 F.3d 1057, 1061 (11th Cir. 2011) (explaining that judges "are not like pigs, hunting for truffles buried in briefs...") (quoting United States v. Dunkel , 927 F.2d 955, 956 (7th Cir.1991) )

Of Plaintiff's remaining facts, 15 facts cite only generally (i.e. , without specific page references) to a 40-page Florida Department of Law Enforcement ("FDLE") Report (D.E. 92-1) (the "Report"). See D.E. 92 at ¶¶ 1–2, 4, 6–12, 31–34, 43. Nine facts cite to specific pages of the Report, but to no other evidence. See id. at ¶¶ 13–16, 18–19, 40, 44–45. Sgt. Romaguera argues that all of these facts should be disregarded because the Report—which consists almost entirely of FDLE investigator Steven Caceres' summaries of conversations with and sworn statements by non-parties—is inadmissible hearsay within hearsay. See D.E. 94 at *2–4. The Court agrees.

Plaintiff argues that the Report is admissible under the public records exception to the hearsay rule. See Fed. R. Evid. 803(8). This exception provides that factual findings from a legally authorized investigation are admissible, so long as the opponent does not show that the record indicates a lack of trustworthiness. See id. But even if the factual findings of an FDLE investigator could be admissible under Federal Rule of Evidence 803(8), the hearsay statements in this Report are not. See, e.g. , Roxbury-Smellie v. Fla. Dep't of Corrections , 324 F. App'x 783, 785 (11th Cir. 2009) (interview statements in investigative report remain hearsay; even though factual findings made by an investigator fall within public records exception to hearsay, the interview statements themselves are not factual findings); accord Jessup v. Miami-Dade Cty. , 697 F. Supp. 2d 1312, 1322 (S.D. Fla. 2010) ("While ‘factual findings’ in internal affairs reports are generally admissible under an exception to the hearsay rule, Fed. R. Evid. 803(8), summaries of interviews that are contained in those reports are also double hearsay that cannot be admitted at trial or considered on summary judgment."); see also Gregory v. Wal-Mart Stores East, LP , 2013 WL 12180710, at *6 (S.D. Ga. July 23, 2013) (police report admissible to the extent it contains the opinions and conclusions formed during the investigation, but any statement contained in the report that was made by a non-party witness or bystander is inadmissible as hearsay within hearsay).

Examining the Report, it is obvious that the FDLE investigator's "findings" were not in any way based on his contemporaneous personal observations of the underlying events. To be admissible as a public record, the matters observed in the Report must be " ‘based upon the knowledge or observations of the preparer of the report,’ as opposed to a mere collection of statements from a witness." United Techs. Corp. v. Mazer , 556 F.3d 1260, 1278 (11th Cir. 2009) (quoting Miller v. Field , 35 F.3d 1088, 1091 (6th Cir. 1994) ). "Notably, even if...police reports do not ‘explicitly paraphrase the words of others,’ they can be hearsay if ‘the only conceivable explanation’ for how the information was obtained was by ‘listening to the statements of others.’ " Mamani v. Berzain , 309 F. Supp. 3d 1274, 1297 (S.D. Fla. 2018) (quoting United States v. Ransfer , 749 F.3d 914, 925 (11th Cir. 2014) ). Thus, to be admissible, the Report must do more than "repeatedly and expressly convey[ ] what has been reported by third-parties." Id. There must be some "indication that the events described in [the Report] are based on the personal observations of the preparer[ ] of the report[ ]." Id. There is no such indication here. The FDLE investigator made his conclusions based only on second-hand observations and conversations. Of note, the investigation was not even commenced until November 21, 2016—several months after the alleged events occurred in July of 2016. See Report at *3.²

Nor do the statements in the Report constitute prior consistent statements under Federal Rule of Evidence 801(d)(1)(B). The statements in the Report are not offered to rebut a charge of recent fabrication; rather, they are offered for the truth of the matters asserted—an impermissible purpose, as the Rule "speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told." Tome v. United States , 513 U.S. 150, 157–58, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) ; see also United States v. Bao , 189 F.3d 860, 864–65 (9th Cir. 1999) (noting that "[m]ere contradictory testimony cannot give rise to an implied charge of fabrication," so a party cannot use a prior statement to resolve an inconsistency and bolster the veracity of his version of events).

In sum, because the Report reflects only hearsay and not Agent Caceres' personal first-hand observations of the events, the Court shall not consider those of Plaintiff's facts supported only by the Report.

III. FACTS

Having resolved the foregoing evidentiary disputes, the following are the facts viewed in the light most favorable to Plaintiff, the non-moving party, to the extent Plaintiff's facts are supported by admissible evidence. See Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005) ; Shotz v. City of Plantation, Fla. , 344 F.3d 1161, 1164 (11th Cir. 2003) ; see also Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996) ("[W]hat is considered to be the ‘facts’ at the summary judgment stage may not turn out to be the actual facts if the case goes to trial, but those are the facts at this stage of the proceeding...