Yessin v. City of Tampa, Fla., Corp.
| Decision Date | 25 February 2015 |
| Docket Number | Case No. 8:13-cv-1252-T-33EAJ |
| Parties | BRENT YESSIN, Plaintiff, v. THE CITY OF TAMPA, FLORIDA, a municipal corporation, ET AL., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court pursuant to Defendant City of Tampa's Motion for Summary Judgment (Doc. # 52), filed on September 15, 2014, and Defendant Officers - Corporal Michael Leavy, Corporal Joseph Reese, Officer Dustin Kennedy, and Master Police Officer Shannon Murphy's ("Defendant Officers") - Dispositive Motion for Summary Judgment (Doc. # 70), filed on September 29, 2014. For the reasons that follow, the Court grants City of Tampa's Motion and grants in part Defendant Officers' Motion.
On December 20, 2008, an altercation occurred in the women's restroom of SideBern's restaurant located in Tampa, Florida. (Doc. ## 70-1; 70-2; 70-3; 70-4; 71 at 2; 92 at 3-4). This altercation involved Aimee Dias, Jodi Jacolow, and George Hochschwender. (Doc # 71 at 3). In response, SideBern'smanagement contacted the Tampa Police Department. (Doc. # 81 at 2).
When Defendant Officers arrived, Officer Newberry - an unnamed party to this action - assumed the role as "lead investigator." (Doc. ## 70-1; 70-2; 70-3; 70-4; 79 at 5-6). Inside SideBern's, Officers Reese and Newberry spoke to SideBern's Manager Dean Hurst. (Doc. # 81 at 6). Plaintiff Brent Yessin interrupted the conversation with Hurst, inquired about the altercation, and indicated that he was "an attorney," and "would take care of the people [who] were involved." (Doc. ## 75 at 7; 81 at 4; 92 at 32). Once it was determined that Yessin was not an involved party, Newberry instructed Yessin to "back off" and not to involve himself in the investigation. (Doc. ## 79 at 8, 15; 100 at 5).
The altercation participants were then removed from SideBern's, and Newberry began to interview each of them in the adjoining SideBern's parking lot. (Doc. # 79 at 9). Newberry first interviewed Dias. (Doc. ## 71 at 3-4; 85 at 11). After interviewing Dias, Newberry placed her in handcuffs. (Doc. # 70-4 at 3-4).
Next, Newberry interviewed Jacolow. (Doc. # 88 at 6). As Newberry was interviewing Jacolow, Yessin approached, indicating that he could provide legal services to Jacolow.(Doc. ## 79 at 28; 92 at 9). At that time, Newberry stopped his interview and asked Jacolow whether Yessin was her attorney, and she said "No." (Doc. ## 79 at 28; 88 at 3; 92 at 9; 101 at 5). As a result, Newberry warned Yessin that, as "he was not involved" in the altercation and neither suspect sought him as legal counsel, "he needed to back up and quit interfering in [his] investigation." (Doc. # 79 at 29). Newberry gave Yessin another warning, and stated that "[y]ou are going to be defending yourself sir, do you understand that? . . . [y]ou are interfering with my investigation, you need to back off." (Doc. # 70-2 at 4). Yessin concedes that he was told several times to "back off" and to not interfere. (Doc. ## 90 at 152-53). However, Yessin contends that he was compliant with Newberry's requests, and each time he was instructed to "back off" he stepped away. (Id.).
Shortly after Newberry's final instruction to Yessin, Officer Leavy approached (Doc. # 53 at 31), and gave Yessin additional orders to leave the area (Doc. # 94 at 105-07). Yessin submits that he complied. (Doc. # 90 at 152-52). According to Leavy, however, Yessin would not leave the area, so Leavy told Yessin "[y]ou're not her lawyer, [w]e've let you offer your legal services . . . [y]ou need to leave, you're not leaving, you're under arrest." (Doc. # 94 at 107-8). Within moments, Yessin was arrested. (Doc. # 70-2 at 4). There is a dispute amongst the parties as to the amount of force used to effectuate Yessin's arrest. During his arrest, Yessin sustained an injury to his chin, (Doc. ## 90 at 79, 92; 106), which is the only permanent physical injury Yessin suffered. As a result, Defendant Officers summoned medical assistance. (Doc. # 106).
Yessin was charged with two counts of Obstructing or Opposing an Officer without Violence, in violation of Fla. Stat. § 843.02. (Doc. # 70-2). Dias and Jacolow signed waivers of prosecution attesting that they did not want to file criminal charges against each other as a result of the altercation, and they were released by Defendant Officers. (Doc. ## 75 at 12; 99).
On December 22, 2008, Yessin provided a statement to the Tampa Police Department for the actions taken by Defendant Officers. (Doc. # 90 at 8). Thus, an Internal Affairs investigation was conducted into the events that occurred at SideBern's. (Doc. # 52-8). On June 26, 2009, the internal investigation was resolved with a finding that the allegations against Leavy, Reese, and Kennedy were "UNFOUNDED: EXONERATED" and "UNFOUNDED: NOT INVOLVED" as they related to Murphy. (Id.).
Thereafter, Yessin filed a Motion to Dismiss his criminal charges, which Hillsborough County Judge John N. Conrad granted. (See Doc. # 2-2). The State appealed Judge Conrad's decision, and Circuit Judge Ronald Ficarrotta affirmed the decision. (See Doc. # 2-3). Subsequently, Yessin initiated this action on December 19, 2012, in state court, setting forth claims for False Arrest and Excessive Force against Defendant Officers (Counts I - IV) and a 42 U.S.C. § 1983 claim against City of Tampa (Count V). (See Doc. # 2). On May 10, 2013, City of Tampa removed this action on the basis of federal question jurisdiction. (Doc. # 1).
Then, City of Tampa filed its Motion for Summary Judgment (Doc. # 52) on September 15, 2014, and Defendant Officers filed their Motion for Summary Judgment (Doc. # 70) on September 29, 2014. On February 12, 2015, this Court held oral argument on the pending Motions for Summary Judgment. (Doc. # 162). At this time, the Motions are ripe for this Court's review.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute alone is not enough todefeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a moving party has discharged its burden, the non-moving party must then 'go beyond the pleadings,' and by its own affidavits, or by 'depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel Works, Inc. v. Emp'rs Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988)). However, if the non-movant's response consists of nothing "more than a repetition of his conclusional allegations," summary judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
Yessin contends that Defendant Officers' actions constituted (1) an unreasonable seizure of Yessin under the Fourth and Fourteenth Amendments, (2) a deprivation of life and liberty without due process of law under the Fifth and Fourteenth Amendments, and (3) a violation of Yessin's rightto freely associate with others under the First and Fourteenth Amendments. (See Doc. # 2). The Court will address each contention in turn.
According to Defendant Officers, the Fifth Amendment is not applicable to this action as the Fifth Amendment "only restrains the federal government (and by reference, its employees) from denying an individual due process of law." (Doc. # 70 at 9) (citing Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1041 (11th Cir. 1989)). This Court agrees.
The Complaint is devoid of any allegation of federal government involvement, and Yessin fails to assert any claims against a federal government actor. Furthermore, Yessin fails to explain how the Fifth Amendment is material to the facts surrounding this action. Accordingly, Defendant Officers' Motion is granted on this ground.
Defendant Officers suggest that the Fourteenth Amendment is also inapplicable as courts have previously held that "when a person is seized in violation of the [Fourth] Amendment, any use of force should be evaluated under the [Fourth] Amendment's objective reasonableness standard and not undersubstantive due process." (Doc. # 70 at 9)(emphasis in original).
Upon review of the Complaint, the Court...
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