Gersten v. Rundle, 93-1229-CIV.

• Decision Date: 14 September 1993
• Docket Number: No. 93-1229-CIV.,93-1229-CIV.
• Citation: 833 F. Supp. 906
• Parties: Joseph M. GERSTEN, Plaintiff, v. Katherine Fernandez RUNDLE, State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, Defendant.
• Court: U.S. District Court — Southern District of Florida

833 F. Supp. 906

Joseph M. GERSTEN, Plaintiff, v. Katherine Fernandez RUNDLE, State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, Defendant.

No. 93-1229-CIV.

United States District Court, S.D. Florida.

September 14, 1993.

COPYRIGHT MATERIAL OMITTED

Joseph R. Gomez, Miami, FL, for plaintiff.

Michael J. Neimand, Asst. Atty. Gen., Michael R. Band, Chief Asst. State Atty., Miami, FL, for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court on Defendant's Motion to Dismiss, filed on July 22, 1993. A hearing was held on the motion on August 6, and Plaintiff filed a Memorandum in Opposition to Defendant's Motion to Dismiss on August 9.

Plaintiff has filed suit under 42 U.S.C. § 1983 (1988) seeking injunctive relief against the enforcement of a civil contempt order secured by the State of Florida in a state court, and seeking, as well, financial compensation. Specifically, Plaintiff prays that

(a) a temporary restraining order and a permanent injunction issue from this Court, enjoining Defendant Rundle from further pursuing her petition for rule to show cause and Plaintiff's incarceration deriving therefrom;

(b) this Court vacate the Order of Contempt issued by the state court on March 18, 1993 detaining Plaintiff indefinitely ...;

(c) Defendant be permanently enjoined from seeking any further rules to show cause in the collateral proceeding being conducted by Mr. Band on behalf of the State Attorney's Office;

(d) Plaintiff be awarded such other and further relief as may be just and equitable under the circumstances, including but not limited to his costs and attorney's fees in this matter.

Pl.'s Compl., pp. 9-10.

Plaintiff bases his suit on actions allegedly taken by Defendant in bad faith, resulting in the denial of his constitutional rights. He asserts that the following constitutional rights were violated: (1) his Fourteenth Amendment due process right to be free from bad-faith prosecutions; (2) his Fourteenth Amendment equal protection right to be free from selective prosecution; and (3) his First Amendment free speech right to seek and hold public office.

I. Factual Background

The following facts are taken from Plaintiff's Complaint for Injunctive Relief and are accepted as true for the purpose of ruling on Defendant's Motion to Dismiss. They are not findings of fact in an official sense; the motion before the Court is one to dismiss, not one for summary judgment, and Defendant has not filed an Answer to Plaintiff's Complaint. These facts are set forth to provide the proper context of this Court's holdings.

Plaintiff was a Dade County Commissioner until his electoral defeat in March 1993. On April 29, 1992, Plaintiff reported to the police that his automobile had been stolen from his home in Coral Gables, Florida.

The automobile in question was recovered by the police within several days and returned to Plaintiff. Two individuals, named Claudia Lira and Kenneth Elswick, were found in possession of the automobile at the time it was recovered. Both are convicted felons and Lira has additionally been convicted of prostitution. After their arrest for the theft of Plaintiff's automobile, they alleged to police that Plaintiff had solicited Lira for prostitution, had engaged in sexual acts with her, had used cocaine at a crack house, and had purchased cocaine from another individual while at the crack house.

The State Attorney commenced an investigation of the allegations made against Plaintiff by Lira and Elswick. Assistant State Attorney Richard Gregorie was placed in charge of this investigation of Plaintiff. Plaintiff was ordered to submit to an FBI test of his hairs for residue of illegal drugs. The results of these tests were negative.

The State then commenced an investigation of Lira and Elswick for the theft of Plaintiff's automobile. This investigation was headed by Assistant State Attorney Michael Band. At that time, both Lira and Elswick were incarcerated on an unrelated warrant. The investigation proceeded despite the fact that both had confessed to the theft of the automobile and were immunized.

The State Attorney maintains that the investigations by Gregorie and Band are independent and segregated, that a "Chinese wall" has been erected between the two investigators. Plaintiff contends that that wall has been breached by the sharing of information between personnel working on opposite investigations and that such breach was in aid of Gregorie's investigation of Plaintiff, not Band's investigation of Lira and Elswick.

The State then subpoenaed Plaintiff to appear on the day of the primary election in order to give testimony in the Band investigation of Lira and Elswick. Plaintiff was to be called as a victim and witness to the event, and as such, he was granted use immunity. At the hearing, Plaintiff refused to respond to most of the questions submitted by the investigating attorney, on the grounds that they were irrelevant to an investigation of Lira and Elswick. He contends that he is the true target of Band's investigation and that the State was attempting to set a perjury trap for him.

The state court, at the request of the State Attorney, then held a hearing as to why Plaintiff should not be held in contempt. At that hearing, Plaintiff contended, inter alia, that the State was selectively using its subpoena power in a discriminatory and unconstitutional manner. As grounds for this assertion, Plaintiff alleged (and alleges in this Court) primarily four facts. First, no individual situated similarly to Plaintiff has ever been held in contempt for failing to testify in a grand jury investigation of the crime to which he was a witness or of which he was a victim. Michael Strozer, Deputy Chief of the Felony Screening Unit for the State Attorney's Office, testified in state court that no other victim/witness of a crime in Dade County had ever been the subject of a rule to show cause in an auto theft case or even in cases involving more serious crimes. Second, the investigating attorney asked Plaintiff questions Plaintiff considered irrelevant to an investigation of Lira and Elswick, including what Plaintiff ate for breakfast on the day of the theft. Third, the State Attorney evidenced its bad faith by calling Plaintiff to testify on the day of the primary election in which he was a candidate. And fourth, the State Attorney had publicly supported Plaintiff's main opponent in the election.

At the state court hearing, the trial judge denied Plaintiff's motions to quash the subpoena, and, on March 18, 1993, she found Plaintiff in contempt of court. Plaintiff was incarcerated until he agreed to testify in accordance with the trial court's order. Plaintiff was released several weeks later for health reasons, pending an appeal of the trial court's order. That order finding Plaintiff in contempt was affirmed by the Florida Third District Court of Appeal on June 2, 1993. Plaintiff now faces reincarceration until he purges himself by testifying in accordance with the trial court's order of March 18.

II. Legal Standard

(a) Motion to Dismiss

This Court is generally reluctant to grant motions made under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss a complaint for failure to state a claim upon which relief can be granted. The liberal pleading rules embraced by Rule 8 of the Federal Rules require only that a complaint set forth a generalized statement of facts from which a defendant will be able to frame a responsive pleading. Fed.R.Civ.P. 8; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, when there exists an insuperable bar to relief, the normal factors counseling a court to deny a motion to dismiss are not present. United States v. Uvalde Consol. Indep. School Dist., 625 F.2d 547, 549 n. 1 (5th Cir.1980), cert. denied, 451 U.S. 1002, 101 S.Ct. 2341, 68 L.Ed.2d 858 (1981)¹; 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1357 (1990) ("Wright & Miller").

For the purpose of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff, and all facts alleged by the plaintiff are accepted as true. Wright & Miller at § 1357. There are a few exceptions to this rule, such as when the facts alleged are internally inconsistent or when they run counter to facts of which the Court can take judicial notice. Id. Conclusory allegations and unwarranted deductions of fact also are not accepted as true. Assoc. Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974).

In the context of a claim under 42 U.S.C. § 1983, a defendant's motion to dismiss will normally be granted only if the facts alleged by plaintiff, taken as true, do not show that the defendant deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or the laws of the United States, and that the defendant acted under color of state law. Whitehorn v. Harrelson, 758 F.2d 1416, 1419 (11th Cir. 1985).

In ruling on the instant motion, there exist the additional issues associated with the fact that the injunctive relief sought by Plaintiff in his Complaint would enjoin a state, as distinguished from an entity of the federal government.

(b) Injunctive Relief

Under the Anti-Injunction Act, 28 U.S.C. § 2283, a federal court "may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." The Supreme Court has held that suits brought under § 1983 qualify as an expressly authorized exception. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

In the seminal case of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court could enjoin a state court criminal proceeding only where a defendant...