Dressler v. Jenne, 98-6041-CIV.

• Decision Date: 02 March 2000
• Docket Number: No. 98-6041-CIV.,98-6041-CIV.
• Citation: 87 F.Supp.2d 1308
• Parties: Scott DRESSLER, Plaintiff, v. Kenneth C. JENNE, II, in his official capacity as Sheriff, Defendant.
• Court: U.S. District Court — Southern District of Florida

87 F.Supp.2d 1308

Scott DRESSLER, Plaintiff, v. Kenneth C. JENNE, II, in his official capacity as Sheriff, Defendant.

No. 98-6041-CIV.

United States District Court, S.D. Florida.

March 2, 2000.

William R. Amlong, Ft. Lauderdale, FL, for Plaintiffs.

Charles Whitelock, Todd W. Shulby, Ft. Lauderdale, FL, for Defendants.

AMENDED ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GOLD, District Judge.

THIS CAUSE is before the court upon defendant Ken Jenne's¹ motion for summary judgment (DE # 75) and plaintiff Scott Dressler's motion for partial summary judgment (DE # 86). Having considered the parties' arguments and evidence in the record, the court grants defendant's motion for summary judgment.

I. Factual Background

Scott Dressler is an Assistant State Attorney who, until he was fired by Sheriff Cochran, also served as a reserve deputy in the Broward Sheriff's Office.² This lawsuit arises out of a series of events surrounding the February 8, 1996 arrest of Oren Steinfeldt for exposing his genitals to four children under the age of 16. Steinfeldt is the 74 year old uncle of Barbara Miller. Barbara Miller is friends with Sheriff Cochran and she served as Cochran's campaign manager in 1992 and 1996. See Miller Depo. at 4. When Miller found out from her aunt that her uncle had been arrested, she called Cochran to try to find out were her uncle was being held. Miller Depo. at 6. Cochran found out for Miller that Steinfeldt was being held at the BSO's main jail, and he called Miller back to tell her. Steinfeldt was released on February 9, 1996 after posting $40,000 in surety bonds.

Dressler was a political supporter of Lawrence C. (Chris) Roberts who was running against Cochran for Sheriff at that time in 1996. See Dressler Depo. 41-42, 47-48. Dressler had attended five to six campaign functions, contributed money to the campaign, and once folded literature at the campaign headquarters. See id; see also Pl. Response at 8 n. 8. Dressler claims that on February 12, 1996, as he was walking up the courthouse steps, Roberts stopped him and mentioned to him that Cochran may have been involved in some wrongdoing. See Dressler Depo. at 93. Dressler claims he had not heard about this incident prior to Roberts telling him about it.³ See id. Dressler advised Roberts to contact John Countryman who was in charge of the Special Investigation Unit. See id. at 95. Later that day, Chris Presley, an economic crimes detective in the Sheriff's Office, telephoned Dressler to tell him that he understood that Mitchell Kogod, the deputy who made the arrest, was being pressured to reduce the charges. See id. at 97-100. Presley suggested that Dressler call Kogod. See id. Dressler knew Kogod from the police academy — they graduated together. See id. at 100. Dressler spoke to Kogod on the phone and according to Dressler, Kogod told him he had arrested Steinfeldt and after Kogod got home the night of the arrest, someone from booking called him to say the charges should be changed from felonies to misdemeanors. See id. at 104.

Dressler went to his supervisor, chief assistant state attorney Ralph Ray, and told him what he had learned. Ray told Dressler to write a memo. See id. at 119. Dressler's memorandum of February 13, 1996 reads as follows:

On February 12, 1996, I received a call from Detective Chris Presley with BSO, who indicated that Deputy Mitch Kogod made an arrest on an individual for indecent assault and the Sheriff may have been involved in putting pressure on the Deputy to change the charge. He asked me to call Deputy Kogod. I paged Deputy Kogod who called back and indicated the following;

1. That he arrested the above subject on four counts of indecent assault on Thursday, February 8, 1996, under F.S. 800.04.

2. Deputy Kogod was directed to call the Sheriff by a supervisor to discuss the arrest and did inform the sheriff of the incident.

3. He received a call from BSO booking and the individual, (no name given) was suggesting there was a problem with the charges and the ages of the victims in the p.c.

4. Deputy Kogod responded by saying there was no problem with the probable cause affidavit. He indicated that the booking officer was suggesting the charge be exposure 1 ~mm under 800.03, without directly asking him to change his p.c. or reports. Kogod indicated that he was scheduled to handle a detail at the condo where the arrestee lives because of a scheduled meeting with the residences of the condo and possibly the sheriff.

On February 13, 1996, Chris Roberts stopped me in the hall, and stated he had information concerning the above incident, and that the situation should be investigated.

I informed Roberts to contact John Countryman, who would be responsible in conducting any investigation.

Roberts called later in the day to inform me that he felt booking Sgt. McCormes would have direct information concerning the sheriffs involvement in the above incident, as well as the defendant's release on bond without following standard procedures.

He further believes Charles Whitelock arranged the defendants bond with the bondsman.

Prior to issuing the memorandum, Dressler called Kogod. Kogod claims that he specifically told Dressler, "listen Scott ... I'll tell you the same thing I told everyone else [from Roberts' campaign] and the same thing I told you before ... nobody has asked me to lie for them, I haven't lied for anybody, nobody has asked me to change any of my stories, nobody has asked me to change any of me reports, the only thing I've heard are rumors and every rumor that I have heard has been from nobody from the Sheriff's Office." See Kogod Statement (Def. SJ Mot. Exhibit 17) at 17-18. Kogod also denies having told Dressler that the booking officer ever suggested the charge should be a misdemeanor. See id. at 19-20. Kogod says he only told Dressler it was a rumor. See id. Bernard McCormes, the booking officer, states that there was never any discussion that the charges should be reduced to a misdemeanor, instead there was a discussion as to whether Steinfeldt was entitled to a $10,000 bond or whether he was not entitled to be released on bond at all. See McCormes Statement (Def. SJ Mot. Exhibit 21) at 7-9, 11-12.

On February 27, 1996, Assistant State Attorney John Countryman issued a Special Prosecutions Closeout Memo concerning Dressler's allegations that the Sheriff had interfered with the arrest and processing of Steinfeldt. The memo stated in part:

In conclusion, there is no evidence whatsoever that Sheriff Cochran committed any offense or that he sought or demanded any favors or special treatment for Steinfeldt. What is apparent is that the case against Steinfeldt appears to be wholly unaffected by Sheriff Cochran's phone calls to the Booking Division and Deputy Kogod. Since there is no evidence of criminal misconduct, this matter is being closed without further action.

On the same day, the Sun-Sentinel came out with a story about the controversy surrounding this incident. Def. SJ Mot. Exhibit 25.

Sgt. Sylvia Pechuls, the Professional Compliance Investigator assigned to the case, was placed in charge of an investigation into Dressler's conduct. Dressler provided a two hour and 15 minute sworn taped administrative statement to Pechuls, mostly responding to Pechuls's questions, on March 20, 1996. Dressler was instructed not to talk about the investigation with anyone other than his attorney until it was over. See Def. SJ Mot. Exhibit 22 at 3-4. At the conclusion of the investigation, Pechuls prepared an Investigative Report ("OPC Report") setting forth the evidence discovered during the investigation. This report is attached as Exhibit 1 to defendant's motion for summary judgment. Dressler was charged with violating § 2.2.39 of the Broward Sheriff's Office Policy and Procedures Manual for Conduct Unbecoming an Employee and violating § 2.2.43 for being untruthful in official reports and BSO matters.⁴ The 11 member professional standards committee met on July 2, 1996. The committee made a non-binding recommendation to Sheriff Cochran to fire Dressler. Dressler had a pre-disciplinary conference on August 15, 1996 where he was given the opportunity to offer additional witnesses, evidence, or make additional statements regarding the charges against him. See Def. SJ Mot. Exhibit 36. The PSC recommendation was upheld and the Sheriff terminated Dressler on October 21, 1996.

Dressler filed a three count complaint under 42 U.S.C. § 1983 claiming a violation of his 14th Amendment right to procedural due process in that he was deprived of his liberty interest in his reputation through the stigmatization by the "sham" investigation (Count I), violation of his First Amendment rights through retaliatory discharge for his exercise of his freedom of speech about a matter of great public importance (Count II), and for injunctive relief, including reinstatement and the expungement of his disciplinary record (Count III). Defendant moves for summary judgment on Counts I and II, and plaintiff has filed a cross motion for summary judgment as to Count I. The court heard oral argument in this case on December 23, 1999.

II. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment where the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Allen v. Tyson Foods, Inc., 121 F.3d 642 646 (11th Cir.1997). The moving party has the burden to establish the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398...