Fernandez v. Bal Harbour Vill., Case No. 13–23799–CIV.

Decision Date29 September 2014
Docket NumberCase No. 13–23799–CIV.
Citation49 F.Supp.3d 1144
PartiesRamon FERNANDEZ, Plaintiff, v. BAL HARBOUR VILLAGE, Defendant.
CourtU.S. District Court — Southern District of Florida

Louis Manuel Barrios–Balbin, Barrios–Balbin, P.A., Coral Gables, FL, for Plaintiff.

Jeffrey Lawrence Hochman, Hudson Carter Gill, Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA, Kelly Rains Jesson, Weiss Serota Helfman, Fort Lauderdale, FL, John Joseph Quick, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, FL, for Defendant.


JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Defendant Bal Harbour Village's (the Village) Motion to Dismiss Amended Complaint (D.E. 19), filed January 13, 2014. Plaintiff filed his Response (D.E. 25) on January 30, 2014, to which the Village filed a Reply on February 24, 2014 (D.E. 30). Upon review of the Motion, Response, Reply, and record, the Court finds as follows.

I. Background 1

In December 2004, Plaintiff began to work for Bal Harbour Police Department (BHPD) as a uniformed officer. (D.E. 18 ¶ 9). In October 2006, then-Detective Sergeant Paul Deitado conducted a BHPD Detective's Exam. (Id. ¶ 10). Plaintiff took the Detective's Exam along with Officer Edwin Vargas. (Id. ). Officer Vargas, rather than Plaintiff, was promoted to detective. (Id. ¶ 11).

On August 21, 2009, during a Police Benevolent Association (PBA) meeting, Deitado told Plaintiff that he had started an internal affairs investigation against Plaintiff for conducting an unauthorized petition against the proposed changes in the drop time for retiring police officers and employees. (Id. ¶ 12). Deitado stopped the investigation after a PBA attorney advised him to do so. (Id. ).

In March 2011, Deitado made false allegations regarding Plaintiff by stating that Plaintiff said that then-BHPD Police Chief Thomas Hunker was going to promote Officer Greg Matthews to sergeant because of Hunker's friendship with Matthews's father. (Id. ¶ 13).

In April 2011, the BHPD conducted a Sergeant's Exam. Plaintiff did not take the Sergeant's Exam based on rumors that Deitado provided the answers to the exam to Vargas and Officer Alex Alvarez. (Id. ¶ 14). Vargas and Alvarez took the Sergeant's Exam and were promoted to sergeant. (Id. ¶ 15).

On May 3, 2011, the BHPD received an anonymous letter stating that Deitado provided Vargas and Alvarez with the answers to the 2011 Sergeant's Exam. (Id. ¶ 16). On May 11, 2011, Officer Steven Goldberg told Hunker that Deitado had provided Vargas with the answers to the 2006 Detective's Exam. (Id. ¶¶ 10, 19). Goldberg also told Hunker that Matthews was told that Deitado had provided Vargas and Alvarez with information regarding the 2011 Sergeant's Exam. (Id. ¶ 20). As a result of the letter, an internal affairs investigation was initiated. (Id. ¶ 17).

As part of the internal affairs investigation, Hunker had certain BHPD officers submit DNA samples to see if any of the samples matched the DNA found on the anonymous letter. (Id. ¶¶ 22–23). Plaintiff's DNA sample was of a select few that were submitted for testing. (Id. ). Also as part of the internal affairs investigation, Deitado provided his phone to Captain Michael Daddario to review for incriminating evidence. (Id. ¶ 24). Ultimately, the internal affairs investigation found that Deitado had done nothing wrong. (Id. ¶ 25).

Plaintiff alleges that Deitado, Vargas, Alvarez, Daddario, and Sergeant Jack Young believed that Plaintiff had authored the anonymous letter. (Id. ¶ 26). Plaintiff further alleges that Deitado, Vargas, Alvarez, Young, and Daddario retaliated against Plaintiff by beginning a systematic campaign to make Plaintiff's work environment hostile after the internal affairs investigation had been closed. (Id. ).

On May 19, 2011, Vargas allegedly called Plaintiff a “rat.” (Id. ¶ 27). On July 11, 2011, Plaintiff called for back-up and had to wait more than ten minutes before back-up arrived. (Id. ¶ 29). On July 21, 2011, Young sent an email to Plaintiff's supervisor, which stated that Plaintiff had made several negative comments regarding Hunker. (Id. ¶ 30). From July 2011 through December 2011, Deitado claimed that some of Plaintiff's arrests were improper and that the arrests were thrown out. (Id. ¶ 31). On October 26, 2011, Young alleged that Plaintiff had made derogatory comments towards a BHPD dispatcher. (Id. ¶ 32).

On May 14, 2012, Plaintiff filed a Hostile Complaint with Hunker and the Village pursuant to the Village's hostile work environment policy. (Id. ¶ 33). As a result of the Hostile Complaint, the BHPD initiated an internal affairs investigation. (Id. ). Initially, the BHPD appointed Pat Franklin Investigations (Franklin) to conduct the investigation because the BHPD did not have an internal affairs department. (Id. ¶ 35). Franklin sent a letter to Hunker, requesting certain BHPD documents. (Id. ). Hunker refused to produce any documents and directed that the investigation be handled by Miami–Dade Police's Professional Compliance Bureau (PCB). (Id. ¶ 36).

On October 4, 2012, during the pendency of the investigation, Vargas approached Plaintiff's wife at her workplace and allegedly intimidated her. (Id. ¶ 38). Plaintiff complained to his supervising officer. (Id. ). Vargas, a superior officer to Plaintiff, subsequently reprimanded Plaintiff for conduct unbecoming a police employee. (Id. ¶ 39). Ultimately, the reprimand was reduced to a “counseling.” (Id. ).

In November 2012, at the conclusion of the internal affairs investigation, PCB found no major violations by BHPD personnel based on the allegations set forth in the Hostile Complaint. (Id. ¶ 40). Based on the PCB's investigation, the BHPD found that the conduct of only two BHPD employees warranted a “counseling.” (Id. ¶ 41). The BHPD found that all other allegations set forth in the Hostile Complaint were unsubstantiated. (Id. ).

On January 25, 2013, Plaintiff was issued a “counseling” based upon a citizen complaint that Plaintiff was speeding. (Id. ¶ 42). In addition to being “counseled,” Plaintiff was also reprimanded by being removed from BHPD's vehicle take home program.2 (Id. ). Plaintiff requested a copy of the citizen complaint, but he was not provided a copy. (Id. ).

On January 26, 2013, Plaintiff requested a medical leave of absence. (Id. ¶ 43). During his leave, BHPD officers, including Vargas, Young, and Deitado, visited Plaintiff at his home twice a day. (Id. ¶ 44). The twice-a-day visits were required under the BHP sick leave policy that Daddario had modified on November 13, 2012. (Id. ).

Prior to his November 2012 termination, Hunker filed an internal affairs investigation against Plaintiff. (Id. ¶ 45). Hunker alleged that (1) Plaintiff failed to notify Hunker of Plaintiff's intention to file a civil lawsuit against a citizen for filing a false complaint and (2) Plaintiff utilized a restricted databases in violation of BHPD policy. (Id. ). Plaintiff alleges that he did not receive a copy of the allegations until February 19, 2013, in violation of Florida law. (Id. ). Ultimately, the BHPD reprimanded Plaintiff for improperly using restricted databases.3 (Id. ).

On May 31, 2013, the BHPD reprimanded Plaintiff for violating the BHPD sick leave policy. (Id. ¶ 47).

Plaintiff subsequently filed a five-count Amended Complaint alleging that the Village: (1) violated the Florida Whistle-blower Act; (2) violated his right to privacy under the Florida Constitution; (3) violated his Fourth Amendment rights; (4) negligently retained Deitado and Hunker; and (5) violated his First Amendment rights. (See D.E. 18).

The Village filed a Motion to Dismiss Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), asserting that the Amended Complaint fails to state a claim upon which relief could be granted. (D.E. 19). Regarding Count One, the Village argues that Plaintiff has not alleged that he made a statutorily-protected disclosure or that there existed a causal connection between a disclosure and a subsequent adverse action. (Id. at 7–9). Regarding Count Two, the Village argues that Plaintiff has not pled all of the required elements for the requested injunctive relief. (Id. at 9–10). Regarding Count Three, the Village argues that Plaintiff cannot hold it vicariously liable for the actions of Hunker. (Id. at 10–11). Moreover, the Village argues that Plaintiff has not pled sufficient facts to impose municipality liability. (Id. at 11–12). Regarding Count Four, the Village argues that the underlying injuries that Hunker and Deitado allegedly committed—retaliation and harassment—are not recognized common law torts in Florida. (Id. at 15–16). Lastly, regarding Count Five, the Village argues that Plaintiff's allegedly protected speech was not protected because Plaintiff was speaking as an employee, not as a citizen regarding a matter of public concern. (Id. at 16–19).

Plaintiff responds that he has alleged a pattern and practice of gross mismanagement and malfeasance, which constitutes a protected disclosure under the Florida Whistle-blower Act. (D.E. 25 ¶¶ 5–6). Moreover, Plaintiff asserts that the he has alleged that the hostile treatment is causally connected to his disclosure. (Id. ¶¶ 8–13). Plaintiff responds that he need not allege the elements for injunctive relief with respect to Count Two because he seeks only equitable relief in the form of the return of his DNA. (Id. ¶ 15). Plaintiff next responds that he has pled sufficient facts to hold the Village liable for the alleged Fourth Amendment violation because he alleged that Hunker—the final decision maker regarding police activity—ordered the unauthorized DNA inspection. (Id. ¶¶ 20–22). Plaintiff next responds that he has alleged an injury resulting from a recognized tort with respect to Count Four. (Id. ¶ 29). Specifically, he asserts that Hunker and Deitado violated his...

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