Ortega v. Schramm, HENDERSON--

• Citation: 922 F.2d 684
• Decision Date: 28 January 1991
• Docket Number: 89-5999,HENDERSON--,Nos. 89-5819,s. 89-5819
• Parties: Marcellino ORTEGA, Rafael Rojas, Raul Rojas, Plaintiffs-Appellants, v. C.J. SCHRAMM, indiv. & as Deputy Sheriff of Glades Co., Alex Green, indiv. & as Deputy Sheriff of Glades Co., Defendants-Appellees, Marcellino ORTEGA, Rafael Rojas, Raul Rojas, Plaintiffs-Appellants, v. Russellindiv. & as Sheriff of Glades Co., Bobby Burkett--as Director of Florida Hwy. Patrol, Jesse M. Evans,--indiv. & as patrolman of Fl. Hwy Patrol, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 684

922 F.2d 684

Marcellino ORTEGA, Rafael Rojas, Raul Rojas, Plaintiffs-Appellants, v. C.J. SCHRAMM, indiv. & as Deputy Sheriff of Glades Co., Alex

Green, indiv. & as Deputy Sheriff of Glades Co., Defendants-Appellees, Marcellino ORTEGA, Rafael Rojas, Raul Rojas, Plaintiffs-Appellants, v. Russell HENDERSON--indiv. & as Sheriff of Glades Co., Bobby

Burkett--as Director of Florida Hwy. Patrol, Jesse

M. Evans,--indiv. & as patrolman of Fl.

Hwy Patrol, Defendants-Appellees.

Nos. 89-5819, 89-5999.

United States Court of Appeals Eleventh Circuit.

Jan. 28, 1991.

Edward A. Perse, Horton, Perse & Ginsberg, Miami, Fla., Jeffrey M. Liggio, Liggio & Luckman, W. Palm Beach, Fla., for plaintiffs-appellants.

Gayle Smith Swedmark and Jennifer Parker LaVia, Parker, Skelding, Labasky & Corry, Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, FAY, Circuit Judge, and HOFFMAN ^*, Senior District Judge.

PER CURIAM:

Plaintiffs-appellants brought suit against Defendants-appellees in the United States District Court for the Southern District of Florida, for injuries allegedly sustained during a search and arrest. Plaintiffs filed complaints against Defendant Russell Henderson, as Sheriff of Glades County, Florida, and against Defendants C.J. Schramm and Alan Green, both individually and as deputy sheriffs of Glades County, Florida. Plaintiffs' complaints asserted a federal cause of action under 42 U.S.C. section 1983, as well as pendent state causes of action for malicious prosecution and assault and battery. Following the plaintiffs' voluntary dismissal of the section 1983 claim against Defendant Henderson, the district court granted Henderson's motion for summary judgment on the remaining state claims on the ground that it no longer had subject matter jurisdiction over Henderson. The jury returned a verdict in favor of Plaintiffs Rafael Rojas and Raul Rojas and against Defendant Schramm on the malicious prosecution claim, and in favor of all three plaintiffs and against Defendant Schramm on the section 1983 claim. The jury returned a verdict in favor of Defendant Green on all counts. Because the jury found that Defendant Schramm did not act in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, the district court entered judgment notwithstanding the verdict in favor of Defendant Schramm on the malicious prosecution claim. The district court entered judgment notwithstanding the verdict in favor of Defendant Schramm on the section 1983 claim, on the ground that Schramm was entitled to eleventh amendment immunity in his official capacity as well as qualified immunity from personal liability. Plaintiffs' appeal followed. For the reasons set forth below, we AFFIRM the district court's grant of summary judgment in favor of Defendant Henderson. In addition, we AFFIRM the district court's grant of judgment notwithstanding the verdict in favor of Defendant Schramm on the state law claim for malicious prosecution. Further, we REVERSE the judgment notwithstanding the verdict on the section 1983 claim in favor of Schramm for liability in his official capacity, REVERSE the judgment notwithstanding the verdict in favor of Schramm for personal liability under section 1983, and REMAND to the district court for a trial on damages for each of these claims. Finally, we AFFIRM the verdict in favor of Defendant Green on all counts.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Raul Rojas is the lessee/operator of a Phillips 66 station in Moorhaven, Florida. The filling station operated by Rojas is located across the street from the Sheriff's Office for Glades County, Florida. Late in the day on September 16, 1983, an informant by the name of Jose Diaz entered the Sheriff's Office. Diaz was speaking in Spanish and appeared to be very excited. Unable to understand Spanish, Defendant Schramm called an interpreter who relayed Diaz' claim that he had seen the arm of a body hanging out of the trunk of a black Mercedes parked inside the Phillips 66 station operated by Rojas. Diaz also reported that he had seen a gun.

Acting upon this information, Schramm drove to the filling station and saw a black Mercedes backed into the station bay. Unable to tell if a body was in the car, Schramm returned to the Sheriff's Office and asked Defendant Green to park across from the station to monitor anyone who entered or left. Present in the station at the time were Plaintiffs Raul Rojas, Raul's brother Rafael Rojas, and Marcellino Ortega, a friend. Shortly after dark, Green witnessed Plaintiff Raul Rojas lock the front door of the filling station and secure it with a padlock from the outside. Rojas then entered the station through the bay doors, which he then closed and locked. Rojas turned on a light at the rear of the filling station office and proceeded to count the day's receipts. Plaintiffs Rafael Rojas and Marcellino Ortega were present with Raul Rojas in the station office. All three plaintiffs were talking and drinking beer.

Suspicious of the manner in which the plaintiffs had closed the station and padlocked the station door from the outside, Schramm and Green drove to the station and demanded that plaintiffs open the station door. When the plaintiffs did not do so, Schramm used a shotgun to shoot the padlock off of the door and then entered the station with Green. Schramm and Green did not have a warrant to enter and search the filling station. Upon demanding entry to the station, neither deputy identified himself as a police officer. At no point in time did either deputy explain to the plaintiffs the reason for their forced entry and search of the filling station.

While some dispute remains about the course of events following Schramm and Green's forced entry, a number of basic facts appear uncontroverted. While Green guarded the plaintiffs at gunpoint, Schramm conducted a search of the black Mercedes and of the filling station premises. Schramm's search turned up no evidence of the body or gun alluded to by the informant, Diaz. At some point during the time in which Green was guarding the plaintiffs, Plaintiff Ortega was either pushed down or kicked in the back by Defendant Green. All three plaintiffs were handcuffed and taken to the Sheriff's Office where they were fingerprinted, photographed, and jailed for three to four hours before being released on bail. Plaintiffs were never read their rights and were never informed that they had been arrested or told why they were being held. A search of Plaintiff Oretega produced a jack knife with a brass knuckle handle. No other evidence was recovered from the search of the station.

Plaintiffs filed suit in federal court asserting a federal cause of action under 42 U.S.C. Sec. 1983, and pendent state causes of action for malicious prosecution and assault and battery. Federal jurisdiction was asserted to exist under 28 U.S.C. Sec. 1343. Suit was brought against Defendant Henderson in his official capacity as Sheriff of Glades County, Florida, pursuant to the Florida statute governing waiver of sovereign immunity in tort actions. Fla.Stat. Sec. 768.28 (1985). ¹ Suit was brought against Defendants Schramm and Green both individually and in their official capacities as deputy sheriffs of Glades County, Florida.

In response to Defendant Henderson's motion for summary judgment on all counts, plaintiffs voluntarily dismissed the section 1983 claim against Henderson. ² The district court, finding that federal subject matter jurisdiction no longer existed with respect to Henderson once the section 1983 claim against him had been dismissed, granted summary judgment in favor of Henderson on the state law claims for malicious prosecution and assault and battery. ³

The jury returned a verdict in favor of Defendant Green on all counts. The jury returned a verdict in favor of Plaintiffs Rafael Rojas and Raul Rojas and against Defendant Schramm on the state claim for malicious prosecution and in favor of all three plaintiffs and against Defendant Schramm on the federal section 1983 claim. In light of the jury's finding that Defendant Schramm's actions were not committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, the district court entered judgment notwithstanding the verdict in favor of Defendant Schramm on the malicious prosecution claim in accordance with the Florida statute governing waiver of sovereign immunity. ⁴ Judgment notwithstanding the verdict was entered in favor of Defendant Schramm in his official capacity on the ground that the eleventh amendment bars such liability. Finally, judgment notwithstanding the verdict was entered in favor of Defendant Schramm for personal liability on the section 1983 claim, under the doctrine of qualified immunity. Plaintiffs have appealed these orders.

II. SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HENDERSON

The district court initially exercised its discretion to retain pendent jurisdiction over the state law claims for malicious prosecution and assault and battery against Defendant Henderson because such claims arose out of the common nucleus of operative fact giving rise to the federal civil rights claims against Henderson under section 1983. Once the plaintiffs voluntarily dismissed their section 1983 claim against Henderson, however, the district court refused to retain jurisdiction over Henderson as a pendent party to the state law claims, on the ground that there is no pendent party jurisdiction in federal civil rights cases under section 1983. Because we find that 28 U.S.C. Sec. 1343(a)(3) (1988), which authorizes federal courts to entertain section 1983 claims, does not affirmatively allow pendent party jurisdiction, we must conclude that the district court's refusal to retain jurisdiction over ...