Wilson v. Harrell

• Decision Date: 22 February 2021
• Docket Number: Case No. 5:18-cv-267-TKW/MJF
• Citation: 521 F.Supp.3d 1165
• Court: U.S. District Court — Northern District of Florida
• Parties: Tarvis WILSON, Plaintiff, v. HARRELL, et al., Defendants.

521 F.Supp.3d 1165

Tarvis WILSON, Plaintiff,

v.HARRELL, et al., Defendants.

Case No. 5:18-cv-267-TKW/MJF

United States District Court, N.D. Florida, Panama City Division.

Signed February 22, 2021

Tarvis Wilson, Raiford, FL, pro se.

Omar Jose Famada, Florida Attorney Generals Office Office of Attorney General, Tallahassee, FL, for Defendants.

ORDER

Michael J. Frank, United States Magistrate Judge

In this section 1983 action, Plaintiff has filed a motion for leave to file a third amended complaint and has attached his proposed third amended complaint. Because allowing Plaintiff to amend his complaint would be futile, this court must deny his motion for leave to file a third amended complaint and strike his proposed third amended complaint from the docket.

I. BACKGROUND

In Plaintiff's proposed third amended complaint, he seeks to add claims against two new Defendants: (1) Ashley Wester, a nurse at Apalachee Correctional Institution; and (2) Kenneth Futch, an inspector for the Florida Department of Correction's Central Office. (Doc. 111 at 2-4). Plaintiff alleges that Wester and Futch violated a criminal statute that prohibits official misconduct: Florida Statute § 838.022.

In Plaintiff's first amended complaint, as well as his proposed third amended complaint, Plaintiff alleges that on December 7, 2014, Defendants Harrell, Brown, Edenfields, and Edwards utilized excessive force and battered him about the face and body. In Plaintiff's proposed third amended complaint, he seeks to add one claim of "official misconduct" in violation of Fla. Stat. § 838.022 against Wester as well as one claim of "official misconduct" against Futch. Plaintiff alleges that Wester "falsified medical records stating Plaintiff did things that wasn't observed nor heard by Defendant Wester," in order to help "cover-up" Plaintiff's battery and sexual assault by Defendants Harrell, Brown, Edwards, and Edenfields.

As to Futch, Plaintiff alleges that on December 8, 2014, Futch arrived at Apalachee Correctional Institution to investigate the purported excessive use of force. Plaintiff contends that Futch "cut the interview short with Plaintiff" because "Plaintiff wasn't following Futch's lead on the coaching of the interview." Plaintiff states that Futch attempted to "cover-up the malicious battery/sexual battery for the involved Defendants."

II. DISCUSSION

Rule 15 of the Federal Rules of Civil Procedure governs amending and supplementing pleadings. Rule 15(a) states:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Fed. R. Civ. P. 15(a).¹ A party seeking leave to amend under Rule 15(a) bears the burden of establishing entitlement to such leave. See In re Engle Cases , 767 F.3d 1082, 1119 n.37 (11th Cir. 2014).

A "district court's discretion to deny leave to amend a complaint ‘is severely restricted’ by Fed. R. Civ. P. 15, which stresses that courts should freely give leave to amend ‘when justice so requires.’ " Woldeab v. Dekalb Cnty. Bd. Of Educ. , 885 F.3d 1289, 1291 (11th Cir. 2018) (quoting Thomas v. Town of Davie , 847 F.2d 771, 773 (11th Cir. 1988) ). A court should deny leave to amend, however, when the amendment would be futile. In re Engle Cases , 767 F.3d at 1108-09 ; SFM Holdings, Ltd. v. Banc of Am. Sec., LLC , 764 F.3d 1327, 1344 (11th Cir. 2014) ; Bryant v. Dupree , 252 F.3d 1161, 1163 (11th Cir. 2001). An amendment would be futile "if an amended complaint would still fail at the motion-to-dismiss or summary-judgment stage." L.S. ex rel. Hernandez v. Peterson , 982 F.3d 1323, 1332 (11th Cir. 2020) (citing Cockrell v. Sparks , 510 F.3d 1307, 1310 (11th Cir. 2007) ); Silberman v. Miami Dade Transit , 927 F.3d 1123, 1133 (11th Cir. 2019) ; Chang v. JPMorgan Chase Bank, N.A. , 845 F.3d 1087, 1094 (11th Cir. 2017).

Plaintiff attempts to state a claim against Wester and Futch for purportedly violating Florida Statute § 838.022(1), which is a criminal statute. A cause of action exists under state law only when a particular state's statutory or common law so declares. Ragan v. Merch. Transfer & Warehouse Co. , 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) (noting that federal courts must look to state law to determine the cause of action and a claim brought pursuant to state law "accrues and comes to an end when local law so declares"). Federal courts do not have the authority to create new causes of action under state law. Wolk v. Saks Fifth Ave., Inc. , 728 F.2d 221, 223 (3d Cir. 1984) (noting that it is "beyond the authority of a federal court ... to create entirely new causes of action"). Federal courts "are supposed to apply state law, not rewrite it."

Bonney v. Canadian Nat'l Ry. , 800 F.2d 274, 280 (1st Cir. 1986) ; see Burris Chem., Inc. v. USX Corp. , 10 F.3d 243, 247 (4th Cir. 1993) (noting that federal courts "rule upon state law as it exists and do not surmise or suggest its expansion"); Tidler v. Eli Lilly & Co. , 851 F.2d 418, 426 (D.C. Cir. 1988) (noting that federal courts "are obligated to apply, not to amend, existing state law"). Thus, a "federal court is not the place to press innovative theories of state law." Anderson v. Marathon Petroleum Co. , 801 F.2d 936, 942 (7th Cir. 1986).

The question of the existence of a statutory cause of action is one of statutory construction. Nw. Airlines, Inc. v. Transport Workers Union of Am., AFL-CIO , 451 U.S. 77, 91, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981) ; Touche Ross & Co. v. Redington , 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) ; Cannon v. Univ. of Chi. , 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Because the statute at issue here is a Florida statute, this court must apply Florida's rule of statutory construction when construing the statute. See Belanger v. Salvation Army , 556 F.3d 1153, 1155-57 (11th Cir. 2009) ; Birnholz v. 44 Wall St. Fund, Inc. , 880 F.2d 335, 338-41 (11th Cir. 1989).

"Under Florida law, a mere violation of the penal statutes does not give rise to liability per se." Lavis Plumbing Servs., Inc. v. Johnson , 515 So. 2d 296, 298 (Fla. 3d Dist. Ct. App. 1987). Rather, it "remains for the Legislature to create a private cause of action ...." Mailloux v. Briella Townhomes, LLC , 3 So. 3d 394, 396 (Fla. 4th Dist. Ct. App. 2009). "Whether a violation of a statute can serve as the basis for a private cause of action is a question of legislative intent" as it is expressed in the text of the statute. Aramark Unif. & Career Apparel, Inc. v. Easton , 894 So. 2d 20, 23 (Fla. 2004). That is, Florida courts, like federal courts, look to the plain meaning of the text of the statute to determine legislative intent. Halifax Hosp. Med. Ctr. v. State , 278 So. 3d 545, 547 (Fla. 2019) ; Daniels v. Fla. Dep't of Health , 898 So. 2d 61, 64 (Fla. 2005). "If that language is clear, the statute is given its plain meaning, and the court does not ‘look behind the statute's plain language for legislative intent or resort to rules of statutory construction.’ " Halifax Hosp. Med. Ctr. , 278 So. 3d at 547 (quoting City of Parker v. State , 992 So. 2d 171, 176 (Fla. 2008) ); Daniels , 898 So. 2d at 64 ("When the statutory language is clear, ‘courts have no occasion to resort to rules of construction—they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.’ ") (quoting Nicoll v. Baker , 668 So. 2d 989, 990-91 (Fla. 1996) ).

Florida Statute 838.022(1) provides:

8838.022 Official Misconduct.—

(1) It is unlawful for a public servant or public contractor, to knowingly and intentionally obtain a benefit for any person or to cause unlawful harm to another, by:

(a) Falsifying, or causing another person to falsify, any official record or official document;

(b) Concealing, covering up, destroying, mutilating, or altering any official record or official document, except as authorized by law or contract, or causing another person to perform such an act; or

(c) Obstructing, delaying, or preventing the communication of information relating to the commission of a felony that directly involves or affects the government entity served by the public servant or public contractor.

Fla. Stat. § 838.022(1). Any individual who violates this statute "commits a felony of the third degree." Fla. Stat. § 838.022(3).

Nothing in the language of this statute explicitly creates a cause of action or assigns rights to individuals which normally would be enforced through a private civil action. Indeed, there is nothing in this provision which suggests that the Florida Legislature intended to create a private cause of action to augment the criminal sanctions it imposed. If the Florida Legislature desired to create a private cause of action, it could have stated explicitly that it was doing so. See Touche Ross & Co. , 442 U.S. at 572, 99 S.Ct. 2479 (noting that "when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly"). The Florida Legislature's decision not to create a private cause of action explicitly strongly suggests that the Florida Legislature did not intend to establish a private right of action. See Esra Ripley Thayer, Public Wrong & Private Action , 27 HARV. L. REV. 317, 320 (1914) ("Its omission in this instance must therefore be treated as the deliberate choice of the legislature, and the court has no right to disregard it.").

Courts sometimes have implied a private right of action from a statutory provision when the courts perceive that the statute "would serve no useful purpose in the absence of a private...