Wittenberg v. Judd, CASE NO. 8:17-cv-467-T-26AEP
| Decision Date | 30 June 2017 |
| Docket Number | CASE NO. 8:17-cv-467-T-26AEP |
| Court | U.S. District Court — Middle District of Florida |
| Parties | SANDRA WITTENBERG and HOWARD WITTENBERG, Plaintiffs, v. GRADY JUDD, in his official capacity as the Sheriff of Polk County, Florida; JASON VARNADORE; and BRADFORD COPLEY, Defendants. |
THIS CAUSE comes before the Court on Defendants Grady Judd and Jason Varnadore's Motion to Dismiss First Amended Complaint or, in the Alternative, Motion for More Definite Statement (Dkt. 27), Plaintiffs' Response in Opposition (Dkt. 29), Defendant Bradford Copley's Motion to Dismiss and to Strike (Dkt. 28), and Plaintiffs' Response in Opposition (Dkt. 30). The Court previously granted Defendants' Motions to Dismiss (Dkts. 6 & 7) without prejudice to Plaintiffs filing an amended complaint, but now must find that Plaintiffs' second effort at pleading their causes of action fares no better. Having carefully considered the allegations of Plaintiff's first amended complaint (Dkt. 2), the arguments of counsel, and the applicable law, the Court concludes that the motions to dismiss are due to be granted.
As set forth in the Court's prior order of dismissal (Dkt. 21), Plaintiffs, Sandra Wittenberg and Howard Wittenberg, husband and wife, (also referred to in this order as "Mrs. Wittenberg" and "Mr. Wittenberg") sue Grady Judd as the Sheriff of Polk County, Florida, Jason Varnadore ("Varnadore"), a detective with the Polk County Sheriff's Office, and Bradford Copley ("Copley"), an assistant state attorney for the Tenth Judicial Circuit of Polk County, Florida, for damages resulting from the detention and arrest of Mrs. Wittenberg and unlawful detention of Mr. Wittenberg. Plaintiffs have added 44 new paragraphs to their first amended complaint, most of which were added to the "Common Allegations" section. These new allegations detail the alleged conduct of the officers in carrying out the search of Plaintiffs' home pursuant to a court-authorized search warrant. Plaintiffs also now allege a theft during the search of either $400 or $435 (their allegations in this regard are inconsistent) by Defendant Copley, which was never mentioned in the original complaint.
The first amended complaint alleges that on March 10, 2013, Mrs. Wittenberg mailed a letter to the Polk County Tax Collector that admittedly used "coarse language" and was "rude, angry, and derogatory."1 Plaintiffs allege, however, that the letterconstituted "free speech that is completely protected under the First Amendment of the U.S. Constitution."2 Notwithstanding, the letter was evidently reported to the Polk County Sheriff's Office, thereby prompting an investigation. Plaintiffs allege that on April 2, 2013, a search warrant was issued by a judge of the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, and on April 3, 2013, "more than a dozenPolk County Sheriff's deputies arrived at Plaintiffs' residence and executed the warrant."3 Defendant Copley also attended the execution of the search for the purpose of seeing that it was carried out according to the law.
Plaintiffs allege that in the course of executing a search warrant of the Wittenberg home, Mrs. Wittenberg was arrested without an actual warrant, and Mr. Wittenberg was detained for several hours without probable cause.4 They add that numerous items were seized at that time that were arguably within the permissible scope of the search warrant; however, firearms were also seized that were outside the scope of the search warrant and not reasonably contemplated by the scope of the search warrant."5 As mentioned above, Plaintiffs now allege that Defendant Copley seized either $400 or $435 from the console of Mr. Wittenberg's vehicle, never reported it on any inventory reports for the incidence, and never returned the money to Plaintiffs. Plaintiffs allege that Mrs. Wittenberg was later charged with corruption by threat against a public official in the Tenth Judicial Circuit in and for Polk County, Florida.6 They add that the criminal case was terminated, which "constituted a bona fide termination of that proceeding in her favor."7
Plaintiffs' first amended complaint seeks damages based on one federal claim for relief and three state claims: violations of both Plaintiffs' Fourth Amendment rights pursuant to 42 U.S.C. §§ 1983 and 1988 against Detective Varnadore8 and Assistant State Attorney Copley, in their individual capacity (Count I); false arrest and false imprisonment of both Plaintiffs against Sheriff Judd, in his official capacity (Count II); false arrest and false imprisonment of both Plaintiffs for acts committed by Detective Varnadore, in his individual capacity and outside the scope of his employment (Count III);9 and malicious prosecution of Mrs. Wittenberg only against Detective Varnadore, in his individual capacity (Count IV).
Defendants Sheriff Judd and Detective Varnadore's motion to dismiss argues that: 1) the search warrant and the arrest affidavit establish probable cause; 2) the federal claim against Detective Varnadore should be dismissed based on qualified immunity; 3) the state law false arrest and imprisonment claims should be dismissed against Sheriff Judd in his official capacity and Detective Varnadore because probable cause existed for the arrest and detention; and 4) the state law malicious prosecution claim against Detective Varnadore should be dismissed because the complaint does not allege that he was actingoutside the scope of his employment or otherwise acting in bad faith, with malice, or wantonly.
Defendant Assistant State Attorney Copley's motion to dismiss for failure to state a claim upon which relief can be granted and motion to strike argue that: (1) he is entitled to Eleventh Amendment immunity in overseeing the legal and proper execution of a search warrant signed and approved by a duly constituted Judge of the Tenth Judicial Circuit in and for Polk County, Florida; (2) he is entitled to prosecutorial immunity, or, in the alternative, qualified immunity for his involvement with the search warrant; (3) paragraphs 56 through 59 of Count I (Fourth Amendment Violation against Varnadore & Copley) set forth conclusory allegations against both Detective Varnadore and Copley jointly rather than pleading specific allegations solely against Copley. (Dkt. ¶56 -59); (4) the alleged theft in the amount of either $400 or $435 by Copley is a state law claim belonging in small claims court or, alternatively, a state criminal court claim, and that the alleged theft does not constitute a civil rights claim for violating the Fourth Amendment of the U.S. Constitution; and (5) Plaintiffs' damage claim for severe emotional distress, pain and suffering, mental anguish, loss of capacity for enjoyment of life and punitive damages should be stricken because Plaintiffs do not allege supporting facts.
Defendants attached the search warrant affidavit and the arrest affidavit to their motions.10
In order to overcome dismissal, the complaint must allege "enough" facts, accepted as true and construed in the light most favorable to the plaintiff, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 1964-65, 1974, 167 L.Ed.2d 929 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 US. at 555, 127 S.Ct. at 1964-65 (internal citations omitted). Legal conclusions "couched" as facts need not be accepted as true. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. The conclusory legal allegations must first be separated out, and then "the remaining well-pleaded factual allegations" may be accepted as true and determined whether they state a plausible entitlement to relief. Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). Determining whether the claim is plausible is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950.11
Generally, only the four corners of the complaint may be considered in ruling on a motion to dismiss pursuant to Rule 12(b)(6). Cline v. Tolliver, 434 F. App'x 823, 824 (11th Cir. 2011) (unpublished opinion) (citing Speaker v. U.S. Dep't of Health and Human Servs. Ctrs. for Disease Control and Prevention, 623 F. 3d 1371, 1379 (11th Cir. 2010)). The court may consider exhibits if referenced in the complaint and attached to the defendant's motion to dismiss, as is the case here with the arrest and search warrant affidavits. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). The court may "consider an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged." SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). The Rule 12(b)(6) motion need not be converted into a Rule 56 summary judgment motion "where certain documents and their contents are undisputed." Speaker, 623 F. 3d at 1379. When measured against this standard, it is clear to this Court that the first amended complaint must be dismissed.
In Count I of the first amended complaint, Plaintiffs sue Defendants Varnadore and Copley, in their individual capacities, pursuant to 42 U.S.C. § 1983, for Fourth Amendment violations. Their sole federal claim is founded on an alleged unlawful searchand seizure, an alleged unlawful detention of Mr. Wittenberg, and an alleged unlawful arrest of Mrs. Wittenberg. Taking the pertinent factual allegations of the first...
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