Hastings v. City Fort Myers

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DAVID SCOTT HASTINGS,

Plaintiff,

v. Case No.: 2:18-cv-81-FtM-38MRM

CITY FORT MYERS, DERRICK

DIGGS, STEPHEN B. RUSSELL,

NATALIE K. SAVINO, NICOLAS

MAMALIS, ALESHA MOREL and

TYLER LOVEJOY,

Defendants.

/

OPINION AND ORDER1

Before the Court are Defendants Stephen Russell and Natalie Savino’s Motion to

Dismiss Third Amended Plaintiff’s Complaint (Doc. 32), Defendants City of Fort Myers,

Derrick Diggs, Nicolas Mamalis, and Alesha Morel’s Motion to Dismiss Plaintiff’s Third

Amended Complaint (Doc. 33), and Plaintiff David Hastings’ responses (Doc. 35; Doc.

37).

Background2

Hastings brings this 42 U.S.C § 1983 case against the City of Fort Myers and

several city and state officials. His seven counts stem from an email he sent to three of

his adult children, including Chase Hastings, on January 8, 2017. Hastings’ first ex-wife

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the

Court does not endorse, recommend, approve, or guarantee any third parties or the services or products

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availability and functionality, and a failed hyperlink does not affect this Order.

2 The Court recounts the factual background as pled in Hastings’ complaint, which it must take as true to

decide whether the complaint states a plausible claim. See Chandler v. Sec’y Fla. Dep’t of Transp., 695

F.3d 1194, 1198-99 (11th Cir. 2012).

hacked into Chase’s email account, forwarded the email to herself, then forwarded the

email to Hastings’ second ex-wife, Elaine Sirt-Hastings. A Florida state court had

enjoined Hastings from contacting Sirt-Hastings. Although Hastings did not send her the

email, Sirt-Hastings reported to the Fort Myers Police Department that Hastings violated

the no-contact order and submitted the email as proof. Assistant State Attorney Natalie

Savino then filed a probable cause affidavit, stating that Hastings violated the no-contact

order, which led to an arrest warrant. Hastings was arrested in Idaho and extradited to

Florida. The charge was later nolle prossed.

Hastings accuses Savino and two Fort Myers police officers—Nicholas Mamalis

and Alesha Morel—of violating his Fourth Amendment rights by using the email to falsely

show that he violated the no-contact order (Count 1). He also accuses Savino of violating

his due process rights by lying in the probable cause affidavit and overstating to the state

court the number of subpoenas Hastings issued in his divorce from Sirt-Hastings (Counts

2 and 5). Hastings does not state what roles Mamalis and Morel played in the

investigation, but he claims they were the “legal cause” of the criminal charge and

accuses them of malicious prosecution (Count 3). Hastings reported Mamalis and Morel

to Fort Myers Police Chief Derrick Diggs, who took no action. Hastings thus sues Diggs

for negligence in the supervision, training, and retention of the officers (Count 6).

Hastings also sues the City of Fort Myers for negligently hiring, training, and disciplining

Mamalis, Morel, and Diggs, and seeks to hold the City vicariously liable for the officers’

conduct (Count 7).

After his arrest, Hastings retained two attorneys, but both terminated their

representation of Hastings. Hastings believes they did so because of the influence or

intimidation of State Attorney Stephen Russell, who was motivated by a personal vendetta

against Hastings. Hastings charges Russell with violating his Fifth, Sixth, and Fourteenth

Amendment rights (Count 4).

All defendants have moved for dismissal under Federal Rule of Civil Procedure

12(b)(6). Russell and Savino do not challenge the sufficiency of Hastings’ factual

allegations but raise Eleventh Amendment immunity, prosecutorial immunity, and

qualified immunity. The other defendants mount cursory attacks to the factual sufficiency

of Counts 1, 3, 6, and 7.

Legal Standards

When deciding a motion to dismiss under Rule 12(b)(6), a court must accept as

true all well-pleaded facts and draw all reasonable inferences in the light most favorable

to the non-moving party. “To survive a motion to dismiss, the plaintiff’s pleading must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted); Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 553 (2007). A claim is facially plausible when the Court can

draw a reasonable inference from the facts pled that the opposing party is liable for the

alleged misconduct. See Iqbal, 556 U.S. at 678. But “[f]actual allegations that are merely

consistent with a defendant’s liability fall short of being facially plausible.” Chaparro v.

Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotation marks and

citations omitted). Thus, the Court engages in a twostep approach: “When there are well

pleaded factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff first must allege a

violation of a right secured by the Constitution or under the laws of the United States; and,

second, allege that the deprivation was committed or caused by a person acting under

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Arrington v. Cobb County, 139

F.3d 865, 872 (11th Cir. 1998). “[C]omplaints in § 1983 cases must…contain either direct

or inferential allegations respecting all the material elements necessary to sustain a

recovery under some viable legal theory.” Randall v. Scott, 610 F.3d 701, 707 n.2 (11th

Cir. 2020) (citation and internal quotation marks omitted). Further, the plaintiff must allege

a causal connection between the defendant’s conduct and the alleged constitutional

deprivation. Swint v. City of Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995).

Because Plaintiff is pro se, the Court must liberally construe the Amended

Complaint. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per

curiam). Courts, however, are not under a duty to “re-write” a plaintiff’s complaint to find

a claim. Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993). Nor is the

Court required to credit a pro se plaintiff’s “bald assertions” or “legal conclusions” as facts.

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1357 (3d ed.

2013) (noting that courts, when examining a 12(b)(6) motions have rejected “legal

conclusions,” “unsupported conclusions of law,” or “sweeping legal conclusion…in the

form of factual allegations.”).

Discussion

1. Russell and Savino’s motion to dismiss

Russell and Savino do not attack the sufficiency of Hastings’ factual allegations

and instead rely on three immunity defenses. Their motion recites at length general legal

principles of Eleventh Amendment and personal immunity, but it makes almost no attempt

to apply those legal principles to the facts here.

a. Eleventh Amendment Immunity

The Eleventh Amendment protects states from being sued in federal court “by

Citizens of another State[.]” U.S. CONST. AMEND. XI. The Supreme Court extended this

protection to bar cases brought by a state’s own citizens. Freyre v. Chronister, 910 F.3d

1372, 1380 (11th Cir. 2018). The Eleventh Amendment protects state officials from being

sued in their official capacity, but it does not protect officials from being sued in their

individual or personal capacity. Hobbs v. Roberts, 999 F.2d 1526, 1528 (11th Cir. 1993).

Hastings sues Russell and Savino in both their individual and official capacities—a fact

Russell and Savino overlook. Thus, while the Eleventh Amendment bars Hastings from

seeking damages from the State of Florida, it does not bar his individual-capacity claims

against Russell and Savino.

b. Prosecutorial Immunity

Prosecutors enjoy absolute immunity to § 1983 actions “for all activities that are

‘intimately associated with the judicial phase of the criminal process.’” Rehberg v. Paulk,

611 F.3d 828, 837 (11th Cir. 2010) (quoting Van de Kamp v. Glodstein, 555 U.S. 335

(2009)). Immunity depends not on the defendant’s job title, but on the nature of the

function performed. Id. Absolute immunity applies to prosecutors’ “actions ‘in initiating a

prosecution and in presenting the State’s case.” Id. (quoting Imbler v. Pachtman, 424

U.S. 409 (1976)). This includes statements made during trials and presentation of

evidence during a probable cause hearing. Id. at 837-38. Prosecutors enjoy qualified

immunity—but not absolute immunity—when functioning in a capacity unrelated to their

role as advocates for the state. Id. at 838. Thus, the Court must examine the alleged

actions of Savino and Russell and determine what functions they were performing.

Hastings sues Savino for (1) relying on the hacked email to falsely prove that he

violated a no contact order, (2) falsely testifying in a probable cause affidavit that Hastings

violated the no contact order, and (3) falsely stating, “under oath,” that Hastings harassed

his ex-wife by issuing over 400 subpoenas in his divorce case. The Supreme Court’s

decision in Kalina v. Fletcher, 522 U.S. 118 (1997) is instructive. Fletcher sued Kalina, a

prosecutor, under § 1983 for commencing a criminal case against him by filing an

information, a motion for an arrest warrant, and a probable cause affidavit. Kalina, 522

U.S. at 120-21. The Supreme Court found that filing the information and motion were

protected by absolute immunity. But by signing the affidavit, Kalina acted as a

complaining witness rather than a lawyer, so absolute immunity did not apply to her

testimony. Id. at 130-31. Applying Kalina, the Eleventh Circuit held that the

“sworn/unsworn distinction is…determinative.” Rivera v. Leal, 359 F.3d 1350, 1355 (11th

Cir. 2004).

Savino’s decision to use the email as evidence in a criminal proceeding is a purely

prosecutorial function and thus protected by absolute immunity. The Court will dismiss

Count 1 as to Savino. But in Counts 2 and 5, Hastings complains of statements Savino

made under oath. She acted as a witness—not a prosecutor. Counts 2 and 5 are not

barred by absolute immunity.

Hastings accuses Russell of influencing or intimidating two attorneys into

terminating their representation of Hastings and thereby depriving Hastings of his Sixth

Amendment right to assistance of counsel. Russell makes no attempt to explain how his

alleged conduct related to his function as an advocate for the state. He instead rests

solely on the broad and conclusory claim that his actions “were taken in the scope and

pursuant to his…duty as a State Attorney[.]” (Doc. 32 at 17). Russell has not shown

entitlement to absolute immunity.

c. Qualified Immunity

“Qualified immunity shields government officials who perform discretionary

governmental functions from civil liability so long as their conduct does not violate any

‘clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Rehberg, 611 F.3d at 838 (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). The Eleventh Circuit employs a burden-shifting approach to the qualified-

immunity defense. First, the defendant must show that he or she was acting within the

scope of his or her discretionary authority. Moore v. Pederson, 806 F.3d 1036, 1042

(11th Cir. 2015). If the defendant satisfies this requirement, the burden shifts to the

plaintiff to show that the defendant violated a clearly established constitutional right. Id.

Russell and Savino acknowledge that the initial burden falls on them but make no

attempt to satisfy it. They instead claim, “it is undisputed that Defendants were acting

within the scope of their employment as state officials and that all their actions and

omissions are within the scope of their authority.” (Doc. 32 at 19). Hastings makes clear

in his response that he does in fact dispute whether Russell and Savino were acting within

the scope of their discretionary authority. Because Russell and Savino have not met their

burden, they are not now entitled to dismissal based on qualified immunity. The Court

may revisit the issue at the summary-judgment stage of this case.

2. City of Fort Myers, Diggs, Mamalis, and Morel’s motion to dismiss3

The City of Fort Myers and its police officers raise no immunity defenses. They

instead mount brief and cursory attacks to the sufficiency of Hasting’s factual allegations,

with almost no citations to legal authority.

a. Count 1: Unlawful Search and Seizure – Mamalis, Morel, and Savino

Hastings’ first count is based on an alleged violation of his Fourth Amendment right

to be free from unlawful searches and seizures. Hastings accuses his first ex-wife of

hacking into his son’s email account and forwarding an email to his second ex-wife, who

delivered the email to the Fort Myers police. Count 1 fails because the Fourth

Amendment only protects against government action. It does not apply to searches and

seizures by a private individual not acting as an agent of the government or with the

participation or knowledge of a government official. United States v. Sparks, 806 F.3d

1323, 1334 (11th Cir. 2015). And “the Fourth Amendment does not prohibit law

enforcement’s subsequent use of that information, even if obtained without a warrant.”

Id.

Hastings does not allege that his first ex-wife acted as an agent of the government

when she seized the email, or that she did so with the participation or knowledge of a

government official. Mamalis and Morel’s later use of the email did not violate the Fourth

Amendment because Hastings’ expectation of privacy in the email had already been

frustrated by his ex-wife. The Court will dismiss Count 1.

3 Hastings submitted several exhibits in response to this motion. The Court has not

considered them. See Crawford’s Auto Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 945

F.3d 1150, 1162 (11th Cir. 2019) (“On a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a court ordinarily may not look beyond the pleadings.”)

b. Count 3: Malicious Prosecution – Mamalis and Morel

Defendants attack Count 3 by casting it as a claim for civil conspiracy and pointing

to Hastings’ failure to allege any overt act taken in furtherance of the conspiracy. But, as

Hastings points out, Count 3 does not allege a civil conspiracy. Defendants’ attack on

Count 3 fails.

c. Count 6: Negligence – Police Chief Derrick Diggs

Hastings charges Diggs with negligently supervising Mamalis and Morel.

“Negligent supervision occurs when during the course of employment, the employer

becomes aware or should have become aware of problems with an employee that

indicated his unfitness, and the employer fails to take further actions such as

investigation, discharge, or reassignment.” Asia v. City of Miami Gardens, No. 14-20117-

Civ-COOKE/TORRES, 2016 WL 739656, at *4 (M.D. Fla. Feb. 25, 2016) (quoting Dep’t

of Envtl. Prot. v. Hardy, 907 So. 2d 655, 660-61 (Fla. Dist. Ct. App. 2005)).

According to the complaint, Hastings notified Diggs in writing that Mamalis and

Morel used the January 8, 2017 email to falsely accuse Hastings of violating a no-contact

order, and Diggs took no action to remediate the situation. Diggs argues that Count 6 is

insufficiently pled because Hastings “does not describe with any specificity in what

manner Diggs was negligent.” (Doc. 33 at 10). The Court disagrees. Hastings alleged

that Diggs took no action after Hastings notified him of the conduct of Mamalis and Morel.

That inaction can be grounds for negligent supervision.

d. Count 7: Negligence – City of Fort Myers

Hastings’ precise legal theory for Count 7 is difficult to pin down, especially since

he conflates different legal theories in his response. Even so, to justify dismissal, the City

must do more than raise a perfunctory, unsupported objection. Here is the City’s entire

argument: “[Hastings] makes general statements as to the alleged breach of duty on the

part of the City and improperly identifies the duties and responsibilities of the City with

respect to its interactions with Diggs, Mamalis, and Morel.” (Doc. 33 at 10). The Court

will not dismiss Count 7 based on such a slapdash challenge.

Accordingly, it is now

ORDERED:

(1) Defendants Stephen Russell and Natalie Savino’s Motion to Dismiss Third

Amended Plaintiff's Complaint (Doc. 32) is GRANTED in part and DENIED in

part.

(2) Defendants City of Fort Myers, Derrick Diggs, Nicolas Mamalis, and Alesha

Morel’s Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. 33) is

GRANTED in part and DENIED in part.

(3) Count 1 of the Third Amended Complaint is DISMISSED.

(4) Defendants must answer the Third Amended Complaint or before April 6,

2020.

DONE and ORDERED in Fort Myers, Florida this 23rd day of March 2020.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record