Gennusa v. Shoar

• Decision Date: 17 July 2012
• Docket Number: Case No. 3:09–cv–1208–J–32MCR.
• Citation: 879 F.Supp.2d 1337
• Parties: Anne Marie GENNUSA, et al., Plaintiffs, v. David SHOAR, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

879 F.Supp.2d 1337

Anne Marie GENNUSA, et al., Plaintiffs,

v.David SHOAR, et al., Defendants.

Case No. 3:09–cv–1208–J–32MCR.

United States District Court,

M.D. Florida,

Jacksonville Division.

July 17, 2012.

Bryan E. DeMaggio, Elizabeth Louise White, Matthew R. Kachergus, William J. Sheppard, Sheppard, White, Thomas & Kachergus, PA, Jacksonville, FL, for Plaintiffs.

John W. Jolly, Jr., Jolly & Peterson, PA, Tallahassee, FL, for Defendants.

ORDER

TIMOTHY J. CORRIGAN, District Judge.

Anne Marie Gennusa, a lawyer, and Joel Studivant, her client, allege that members of the St. Johns County Sheriff's Office violated their Fourth Amendment rights and the Federal Wiretapping Act by recording their attorney-client conversations in an interview room at the Sheriff's Office and by forcefully seizing Studivant's written statement. The parties filed cross motions for summary judgment (Docs. 27, 33), and the Court held hearings on these motions on April 1, 2011 and July 29, 2011, the transcripts of which are incorporated by reference (Docs. 35, 39). At the July 29, 2011 hearing, the Court identified several issues with the manner in which the case had been pled. In particular, the Court highlighted that, although no material facts were in dispute, the parties had failed to meet on a number of critical issues, thus leaving the Court unable to grant summary judgment for either party. In light of the Court's comments, the parties agreed that plaintiffs should file a second amended complaint and that the parties should then file new cross-motions. (Docs. 38, 39.)

This case is now before the Court on the parties' cross-motions for summary judgment relating to the Second Amended Complaint. (Docs. 44, 52.) Although the Court allowed the parties to replead so that they could better meet on the substantive issues, many of the parties' arguments have again gone unanswered. Defendants have been particularly unhelpful since, rather than responding to plaintiffs' arguments directly, “Defendants stand on [their] original Memorandum of Law [in support of their motion for summary judgment] as their argument in opposition to Plaintiff's pursuit of summary judgment.” (Doc. 54 at 1.) Given the continued lack of engagement between the parties, the Court has deemed many of the parties' arguments to be conceded.

I. BACKGROUND

This case arises from an interview of Studivant relating to his alleged violation of a domestic violence injunction. The interview was conducted by defendant Thomas Marmo, a St. Johns County detective, in an interview room located in the St. Johns County Sheriff's Office. Gennusa attended as Studivant's attorney. Although the interview was recorded and actively monitored by employees of the Sheriff's Office, plaintiffs were given no indication of this fact.¹

Due to the recording, the events that transpired during the interview are undisputed.² When the interview began, Studivant initially agreed to prepare an affidavit relating to the investigation. While Studivant was writing his statement, Marmo left the interview room and closed the door. At this time, when no officers were present, Studivant and Gennusa discussed matters related to the investigation. Gennusa then left the interview room and met with Marmo in his office. When Gennusa returned to the interview room, she informed Studivant that Marmo intended to arrest him. After a discussion with Gennusa, Studivant decided that he no longer wished to give Marmo his written statement.

Marmo returned to the interview room, and, after a heated discussion, Studivant and Gennusa refused to tender the statement. Marmo then exited the interview room and discussed the matter with his supervisor, defendant Brian Canova, a sergeant in the St. Johns County Sheriffs Office. During their discussion, the officers actively monitored plaintiffs in the interview room and watched Gennusa place the statement on a table. Canova instructed Marmo to return to the interview room and take the statement. (Doc. 28–1 at 6–8.) As Marmo entered the room, he forcibly grabbed the statement from underneath Gennusa's hand. (Doc. 1–1.)

Marmo proceeded to arrest Studivant for violation of the domestic violence injunction and attached Studivant's statement to his arrest report. (Doc. 28–1 at 37–38.) A criminal prosecution was ultimately brought against Studivant, but the charges were dismissed after he entered into a deferred prosecution agreement. (Doc. 26–5 at 8–9.)

Plaintiffs filed this action against Marmo and Canova in their individual capacities and against David Shoar in his official capacity as Sheriff of St. Johns County. Plaintiffs allege defendants violated their Fourth Amendment rights and the Federal Wiretapping Act by seizing Studivant's statement and recording their attorney-client conversations. Plaintiffs seek money damages and an order enjoining the St. Johns County Sheriff's Office from secretly recording attorney-client conversations in the Sheriff's Office. (Doc. 41.)

II. STANDARD OF REVIEW

Summary judgment is proper where “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The burden of demonstrating the satisfaction of this standard lies with the movant, who must present ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ that establish the absence of any genuine material, factual dispute.” Branche v. Airtran Airways, 342 F.3d 1248, 1252–53 (11th Cir.2003) (quoting Fed.R.Civ.P. 56(c)). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, a court must draw inferences from the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts in that party's favor. Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir.2005).

III. DISCUSSION

A. Plaintiffs' Claims Against Marmo and Canova (Counts I, II, III, V)

Counts I, II, III, and V of the Second Amended Complaint assert claims against Marmo and Canova in their individual capacities. Defendants contend that they are entitled to qualified immunity on each count. (Doc. 44.)

“Qualified immunity offers complete protection for government officials sued in their individual capacities.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002) (quotation omitted). “To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority.” Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.2003). Here, the parties do not dispute that Marmo and Canova were acting within their discretionary authority.

“Once the defendants have established that they were acting within their discretionary authority, the burden shifts to the plaintiffs to show that qualified immunity is not appropriate.” Id. “Courts utilize a two-part framework to evaluate qualified immunity defenses.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir.2010). The court first examines “whether the plaintiff's allegations, if true, establish a constitutional violation. If the facts, construed in the light most favorable to the plaintiff, show that a constitutional right has been violated, another inquiry is whether the right violated was ‘clearly established.’ ” Id. (internal citations omitted). “In determining whether a constitutional right was clearly established at the time of violation, the relevant, dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 1266 (quotation omitted); see also Long v. Slaton, 508 F.3d 576, 584 (11th Cir.2007) ( “Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.”) (quotation omitted).

Whether qualified immunity applies “is a legal issue to be decided by the court.” Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th Cir.1996). While “the jury itself decides issues of historical fact that are determinative of the qualified immunity defense, ... the jury does not apply the law relating to qualified immunity to those historical facts it finds; that is the court's duty.” Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir.2002). Here, because there are no material disputes regarding “the who-what-when-where-why type of historical fact issues” that require a determination by the jury, the Court may rule as a matter of law on the qualified immunity issues. See Cottrell, 85 F.3d at 1488.

1. Seizure of Studivant's Statement (Counts II, III)

In Counts II and III of the Second Amended Complaint, plaintiffs allege that Marmo violated their Fourth Amendment rights by “ripping and snatching Mr. Studivant's statement from Ms. Gennusa's hands with such force as to break Ms. Gennusa's finger nail.” (Doc. 41 at 8–10.) Plaintiffs further allege that Canova violated their Fourth Amendment rights by ordering Marmo to retrieve the statement and failing to halt or remedy the constitutional violation. ( Id.)

In their cross-motions for summary judgment, the parties raise distinct and essentially uncontested arguments. Defendants contend that Marmo did not use excessive force in taking the statement from Gennusa. According to defendants, Marmo merely applied a “de minimis” level of force that was reasonable in nature and thus did not rise to the level of a constitutional violation. (Doc. 44 at 11–14.) ³

Plaintiffs, however, do not respond to defendants' excessive force argument. Instead, plaintiffs contend that, regardless of whether Marmo employed excessive force, the seizure of Studivant's statement was per se unreasonable because it was taken without a warrant. (Doc. 52 at 10–13.) Defendants do not argue that any exceptionsto the warrant requirement apply or otherwise...