Faile v. City of Leesburg
| Decision Date | 23 February 2023 |
| Docket Number | 5:22-cv-116-JA-PRL |
| Parties | BILLY L. FAILE, JR., Landlord//Property Manager Plaintiff, v. CITY OF LEESBURG, FL, LINNA HART and ALLEN CARTER, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
REPORT AND RECOMMENDATION [1]
This action under 42 U.S.C. § 1983 and Florida law arises from the allegedly false arrest of Plaintiff, Billy Faile Jr., by the City of Leesburg (“the City”) Sergeant Allen Carter (“Carter”), and Officer Linna Hart (“Hart”). (Doc. 30). Before the Court upon referral, are Rule 12(b)(6) motions to dismiss Plaintiff's Amended Complaint filed by Hart (Doc. 38) and the City and Carter (Doc. 43). For the following reasons I recommend that the motions be granted and the Amended Complaint dismissed.
In the Amended Complaint, there are seventeen counts: (1) Count I, Fourth Amendment § 1983 false arrest against Carter; (2) Count II, Fourth Amendment § 1983 false arrest against Hart; (3) Count III, Fourth Amendment § 1983 excessive use of force against Carter; (4) Count IV, Fourth Amendment § 1983 malicious prosecution claim against Hart and Carter; (5) Count V, Fourth Amendment § 1983 unlawful seizure of personal property against Carter; (6) Count VI, Fourth Amendment § 1983 unlawful seizure of real property against Hart and Carter; (7) Count VII, Fourth Amendment § 1983 supervisory claim against Carter; (8) Count VIII, § 1983 Monell claim for failure to train against the City; (9) Count IX, § 1983 Monell claim for official policy, practice, or custom against the City; (10) Count X, § 1983 Monell claim for negligent hiring and retention against the City; (11) Count XI, Florida false arrest claim against Carter; (12) Count XII, Florida false arrest claim against Hart; (13) Count XIII, a Florida battery claim against Hart and Carter; (14) Count XIV, Florida malicious prosecution claim against Hart and Carter; (15) Count XV, Florida intentional infliction of emotional distress claim against Hart and Carter; (16) Count XVI, Florida negligence claim against the City; (17) Count XVII, a Florida claim for official policy, practice, or custom against the City. (Doc. 30 at 11-35).
According to the Amended Complaint, Faile is a rental property manager or landlord, residing in his office at a rental property due to the COVID pandemic. (Doc. 30 at ¶¶ 14-15). Apparently, Faile and a rental property tenant and her boyfriend had ongoing issues, causing them to make several calls to the Leesburg Police Department (“LPD”), including three times on April 3, 2020.
On April 3, 2020, at around 8:16 am, Officer Hart responded to Faile's call to the LPD about an officer standing by while he was checking on damage to the rental property, and Hart answered the call. (Doc. 30 at ¶¶ 16-17). About two hours later, at around 10:55 am, Officer Carver, Officer Hart, and Sergeant Carter (Hart's direct supervisor) responded to Faile's second call to the LPD about damage to the rental property and threats against him made by a tenant and her boyfriend. (Doc. 30 at ¶¶ 8, 18-19). Hart “completed a report,” about the rental property damage and threats made to Faile. (Doc. 30 at ¶ 20).
A few hours later, around 1:45 pm, while Faile was repairing a water leak on the exterior of the rental property, the tenant and her boyfriend returned and the boyfriend pushed Faile to the ground. (Doc. 30 at ¶ 23). Faile stood up and exchanged words with them, before stating that the boyfriend could “kiss [his] ass,” lifting his shirt and “slapping his upper back,” exposing “approximately one to two inches . . . of his right upper buttocks” while walking away. (Docs. 30 at ¶ 25 & 30-1 at 19). The tenant or boyfriend recorded the incident, and the tenant and Faile called the LPD around 2:00 pm. (Doc. 30 at ¶¶ 26-27). Hart and Carter responded to this call, and while Hart spoke to Faile, Carter spoke to the tenant and her boyfriend. (Doc. 30 at ¶¶ 28-30). Faile asked Hart if he could leave, and Hart said that “she thought it would be a good thing for [him] to leave.” (Doc. 30 at ¶¶ 29-30 & Doc. 30-1 at 20). Meanwhile, the tenant and her boyfriend told Carter that they had a video recording of Faile “exposing his buttocks and possibly exposing his genitalia.” (Doc. 30 at ¶ 31). After hearing this, as Faile was sitting in his car, leaving or about to leave, Carter told Faile to stop, and that he was under arrest. (Doc. 30 at ¶¶ 32-34 & Doc. 30-1 at 20).
Then Carter approached Faile's truck and pulled him from it, while twisting his right arm behind his back and stating, “stop resisting.” (Doc. 30 at ¶¶ 34-35). Faile said he was not resisting, but had a torn rotator cuff, and Carter further twisted his right arm behind his back while calling him “a fragile old man.” (Doc. 30 at ¶¶ 35-37). Hart and another officer who responded to this call offered Carter handcuff extenders to prevent further harm to Faile's shoulder, but Carter told them “to be quiet” before ultimately accepting their offer. (Doc. 30 at ¶¶ 38-40). Carter placed Faile in Hart's patrol car, and Carter and Hart both viewed the tenant's recording before leaving the rental property, purportedly knowing that the recording failed to show Faile exposing his sexual organs. (Doc. 30 at ¶¶ 41-44). Then Carter directed other officers to inventory Faile's truck, before having it towed from the private rental property without Faile's permission or request. (Doc. 30 at ¶¶ 45-48).
After transporting Faile to the LPD booking room, Hart allegedly told Carter on the phone, before he arrived, that she did not see any sexual organs displayed in the video. (Doc. 30 at ¶¶ 49-50). However, when Carter arrived, he told Faile for the first time that he was being charged with exposure of sexual organs, in violation of Fla. Stat. § 800.03.[2] (Doc. 30 at ¶¶ 41 & 51; Doc. 30-1 at 8 & 14). Faile stated several times that he did not expose his sexual organs and that the arrest was not legal, alleging that he was arrested due to Carter's ego and “continuing issues” with the tenant and boyfriend. (Doc. 30 at ¶¶ 52-54). Carter refused to view the video in the LPD booking room in front of Faile and would not discuss the arrest with him, stating “it is a free country, and I can say what I want.” (Doc. 30 at ¶¶ 55-56). Carter also told Hart not to discuss the arrest with Faile and began instructing her to write the arrest affidavit “the way I saw it.” (Doc. 30 at ¶¶ 57-58). Allegedly, despite knowing the statement was false, Hart “stated as probable cause in the sworn arrest affidavit that the video showed [Faile] ‘pulling his pants down while bending over showing his sexual organs and buttocks as he walked south, away from the complainant'.” (Doc. 30 at ¶ 59).[3] Faile was held in Lake County Jail until 8:00 pm when he paid the full cash bond amount. (Doc. 30 at ¶ 63). A criminal proceeding was brought against Faile in the County Court of the Fifth Judicial Circuit, case number 2020-MM-001951. (Doc. 30 at ¶ 66). On April 6, 2020, the State Attorney's Office filed a No Information announcement in the case, dismissing the charge of exposure of sexual organs against Faile due to insufficient evidence. (Doc. 30 at ¶ 67). At the request of Chief Hicks, the Florida Department of Law Enforcement (FDLE) administratively expunged Faile's arrest. (Doc. 30 at ¶ 71 & Doc. 30-1 at 21).
As a result of the arrest, Faile was unable to retrieve his truck until April 6, 2022. (Doc. 30 at ¶ 69). He was also unable to return to the rental property, his residence, due to a mandatory victim no-contact order, until April 10, 2020. (Doc. 30 at ¶ 70). Further, Carter was disciplined for inappropriately charging Faile when the video failed to show him exposing his sexual organs. (Doc. 30 at ¶¶ 71-75; Doc. 30-1 at 14). Notably, the discipline report states that this was Carter's “second violation of this nature (CAT ‘C') within the past 24-months[.]” (Doc. 30 at ¶¶ 78, 80; Doc. 30-1 at 14). Further, Hart, who was on a “Performance Improvement Plan” prepared by Carter, resigned in lieu of termination due to her direct involvement in Faile's arrest. (Doc. ¶¶ 77-81). On September 25, 2020, Faile provided a notice of claim to the City, pursuant to Fla. Stat. § 768.28, for damages arising out of this arrest. (Doc. 30 at ¶ 82). Now, Faile brings this action for damages against three Defendants- Sergeant Carter, Officer Hart, and the City. (Doc. 30).
The bare minimum a plaintiff must set forth in her complaint is found in Fed.R.Civ.P. 8. Under Rule 8, “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The United States Supreme Court has explained, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), that while particularity is not required under Fed.R.Civ.P. 8, as it is under Fed.R.Civ.P. 9, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Instead, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570).
A claim is plausible on its face where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Plausibility means “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a...
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