The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILTROBER HERNANDEZ,
Plaintiff,
v. Case No: 8:20-cv-316-CEH-CPT
PASCO COUNTY SHERIFF,
CHRISTOPHER NOCCO, BRAD
CLARK, CHRISTOPHER
STARNES, ADAM TELLIER,
RUSSELL MEISSNER, STEPHEN
MCINNES and BERNIE MCCABE,
Defendants.
___________________________________/
O R D E R
This cause comes before the Court upon Defendant Bernie McCabe’s Motion
to Dismiss Plaintiff’s Amended Complaint1, Doc. 13, Motion to Dismiss Amended
Complaint by Defendants Sheriff, Nocco, Clark, Tellier, Meissner, and McInnes, Doc.
15, and the Motion to Dismiss the Amended Complaint of Christopher Starnes, Doc.
18. Wiltrober Hernandez (“Plaintiff”) has responded in opposition. Docs. 38, 39, 40.
The Court, having considered the parties’ submissions and being fully advised in the
premises, will grant the motions to dismiss and dismiss Plaintiff’s Amended
Complaint.
1 The Court notes that Bernie McCabe died on January 1, 2021. Yet no suggestion of death
has been filed by plaintiff or any party. See Rule 25(a), Fed. R. Civ. P.
I. BACKGROUND2
In December of 2015, Pasco County Sheriff Christopher Nocco (“Nocco”),
Pasco County law enforcement officer Christopher Starnes (“Starnes”), and Pasco
County law enforcement officer Brad Clark (“Clark”) directed the initiation of an
investigation into the trafficking of methamphetamine and cocaine in Pasco County,
Florida. Doc. 6 ¶¶19–21, 27. During this investigation, Nocco, Clark, Starnes, Pasco
County law enforcement officer Adam Tellier (“Tellier”), Pasco County law
enforcement officer Russell Meissner (“Meissner”), and Pasco County law
enforcement officer Stephen McInnes (“McInnes”) utilized confidential informants,
surveillance, data collection from mobile tracking devices, and other methods to
identify individuals who were responsible for distributing methamphetamine and
cocaine within Pasco County. Id. at ¶¶22–24, 28.
During the investigation, Plaintiff was implicated as being involved with the
trafficking of methamphetamine and cocaine. See id. at ¶32. After Plaintiff was
implicated, Nocco, Starnes, and Clark singled out Plaintiff as a supplier of
methamphetamine and cocaine. Id. at ¶33. Nocco, Clark, and Starnes, Tellier,
Meissner, and McInnes “manufactured evidence that falsely implicated Plaintiff,”
which including manipulating witnesses to implicate Plaintiff “by means of improper
suggestiveness or outright coercion,” such as coercing false and incriminating
2 The facts are derived from Plaintiff’s Amended Complaint. Doc. 6. A district court must
accept the allegations of a complaint as true when ruling on a Rule 12(b)(6) motion. Erickson
v. Pardus, 551 U.S. 89, 94 (2007).
statements from an individual named Eder Alonso Cruz Lopez. Id. at ¶¶34–35. Nocco,
Clark, Starnes, Tellier, Meissner, and McInnes also: (1) disregarded or destroyed
exculpatory evidence; (2) deliberatively and affirmatively failed to investigate or
develop information which would have assisted in establishing the guilt of individuals
other than Plaintiff; (3) unlawfully suppressed information that would have implicated
other individuals; (4) created various sworn police reports that contained materially
false evidence; and (5) withheld from Plaintiff, and from prosecutors in some
instances, exculpatory and material evidence. Id. at ¶¶36–39. Nocco, Clark, Starnes,
Tellier, Meissner, McInnes, and McCabe held a press conference, during which they
displayed a picture of Plaintiff and indicated that he belonged to a criminal
organization. Id. at ¶3.
Clark and Starnes arrested Plaintiff. Id. at ¶45. Starnes arrested Plaintiff at
gunpoint in the middle of the street in front of Plaintiff’s home. Id. at ¶1. The arrest
served as retaliation for Plaintiff’s exercise of his First Amendment rights when he
spoke to Starnes. Id. at ¶55. In September of 2018, Plaintiff stood trial for the alleged
crimes regarding conspiracy to traffic methamphetamine and conspiracy to traffic
cocaine. Id. at ¶42. State Attorney Bernie McCabe (“McCabe”) “maliciously
prosecuted” Plaintiff. Id.
Plaintiff now brings five claims in the Amended Complaint: (1) a claim for false
arrest under Florida law against “Pasco County Sheriff” and Nocco; (2) a claim under
42 U.S.C. § 1983 for First Amendment retaliation against Starnes, Clark, Meissner,
McInnes, and Tellier; (3) a claim for conspiracy to deprive constitutional rights against
Nocco, Starnes, and McCabe; (4) a claim for negligent supervision and retention under
Florida law against “Pasco County Sheriff” and Nocco; and (5) a claim for malicious
prosecution under Florida law against McCabe. Id. at ¶¶43–76.
II. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a pleading must include a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009) (quoting
Fed. R. Civ. P. 8(a)(2)). Labels, conclusions, and formulaic recitations of the elements
of a cause of action are insufficient. Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Mere naked assertions are also insufficient. Id. A complaint
must contain sufficient factual matter, which, if accepted as true, would “state a claim
to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to
draw a reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (internal citation omitted). The Court, however, is not bound to accept as true a
legal conclusion stated as a “factual allegation” in the complaint. Id.
III. ANALYSIS
A. Count I – False Arrest
Turning to Plaintiff’s false arrest claim, the Court first notes that Plaintiff brings
the claim against “Pasco County Sheriff and Christopher Nocco.” Doc. 6 at 9.
However, Plaintiff alleges that Nocco is the Pasco County Sheriff. Id. at ¶10. Plaintiff
alleges that “Pasco County Sheriff is a law enforcement agency in the State of Florida,”
but does not name the Pasco County Sheriff’s Office. Id. at ¶9. Plaintiff may have
named “Pasco County Sheriff” and Nocco separately in an attempt to bring an official
capacity lawsuit against Nocco, as Pasco County Sheriff, and sue Nocco in his
individual capacity. Plaintiff fails to offer any explanation or meaningful clarification
in his response to the relevant motion to dismiss.
“The main concern of a court in determining whether a plaintiff is suing
defendants in their official or individual capacity is to ensure the defendants in
question receive sufficient notice with respect to the capacity in which they are being
sued.” Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1047 (11th Cir. 2008).
The Eleventh Circuit has held that, where the capacity in which defendants are sued
is unclear, “the course of proceedings typically indicates the nature of the liability
sought to be imposed.” Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1575 (11th Cir.
1994). As explained in further detail below, the Court ultimately need not determine
whether Plaintiff brings this claim as an official capacity or individual capacity claim
because the claim fails.
“A suit against a defendant in his official capacity is, in actuality, a suit against
the governmental entity which employs him.” Stephens v. Geoghegan, 702 So. 2d 517,
527 (Fla. 2d DCA 1997). “A sovereign cannot be sued without its own permission.”
Turner v. Homestead Police Dep’t, 828 F. App’x 541, 545 (11th Cir. 2020) (citing Am.
Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005)).
“Florida has enacted a limited waiver of its sovereign immunity for tort liability.” Id.
(citing Fla. Stat. § 768.28(1)). Under Florida law:
No officer, employee, or agent of the state or any of its
subdivisions shall be held personally liable in tort or named as a
party defendant in any action for any injury or damage suffered
as a result of any act, event, or omission of action in the scope of
her or his employment or function, unless such officer,
employee, or agent acted in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.
Fla. Stat. § 728.68(9)(a).
The statute also provides:
The exclusive remedy for injury or damage suffered as a result of
an act, event, or omission of an officer, employee, or agent of the
state or any of its subdivisions or constitutional agents shall be
by action against the governmental entity, or the head of such
entity in her or his official capacity, or the constitutional officer
of which the officer, employee, or agent is an employee, unless
such act or omission was committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property. The state or its
subdivisions shall not be liable in tort for the acts or omissions of
an officer, employee, or agent committed while acting outside
the course and scope of her or his employment or committed in
bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or
property.
Id.
The Court has interpreted this statutory language as meaning that
an officer is entitled to immunity in his or her individual capacity
for conduct taken within the scope of his or her employment and
not done with a “malicious purpose or in a manner exhibiting
wanton and willful disregard for human rights, safety, or
property,” and this type of claim is more properly brought
against an officer in his or her official capacity, i.e., against the
government entity of which the officer is an employee. On the
other hand, if the officer acted with “bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard
for human rights, safety, or property,” the action is barred
against the governmental entity and may only be brought against
the officer individually.
C.P. by and through Perez v. Collier Cnty., 145 F. Supp. 3d 1085, 1094 (M.D. Fla. 2015)
(quoting Anderson v. City of Groveland, No. 5:15-cv-26-OC-30PRL, 2015 WL 6704516,
at *6 (M.D. Fla. Nov. 2, 2015)).
Immunity under section 768.28(9)(a) serves as “both an immunity from liability
and an immunity from suit, and the benefit of this immunity is effectively lost if the
person entitled to assert it is required to go to trial.”3 Willingham v. City of Orlando, 929
So. 2d 43, 48 (Fla. 5th DCA 2006).
“False arrest is defined as the unlawful restraint of a person against that person’s
will.” Id. “To state a claim for false arrest under Florida law, a plaintiff must allege
three elements: (1) an unlawful detention and de[p]rivation of liberty against the
plaintiff’s will; (2) an unreasonable detention which is not warranted by the
circumstances and (3) an intentional detention.” Amato v. Cardelle, 56 F. Supp. 3d 1332,
1334 (S.D. Fla. 2014) (citing Tracton v. City of Miami Beach, 616 So. 2d 457 (Fla. 3d
DCA 1992)). Under Florida law, probable cause serves as a “complete bar to an action
for false arrest,” and Florida courts have characterized probable cause as an affirmative
3 Additionally, the statute bars a claim against the state or one of its agencies or subdivisions,
unless a claimant “presents the claim in writing to the appropriate agency, and also, except
as to any claim against a municipality, county, or the Florida Space Authority, presents such
claim in writing to the Department of Financial Services, within 3 years after such claim
accrues and the Department of Financial Services or the appropriate agency denies the claim
in writing . . . .” Fla. Stat. § 728.68(6)(a).
defense to a false arrest claim. Manners v. Cannella, 891 F.3d 959, 975 (11th Cir. 2018)
(internal quotation marks omitted).
Within Count I, which is labeled as a false arrest claim against “Pasco County
Sheriff and Christopher Nocco,” Plaintiff alleges that Starnes and Clark, who acted
within the course and scope of their duties as law enforcement officers, arrested
Plaintiff. Doc. 6 ¶45. Plaintiff alleges that this seizure physically deprived him of his
freedom and liberty. Id. at ¶46. Further, his restraint and arrest was “unlawful and
unreasonable” because “it was not based upon lawfully issued process of the [c]ourt.”
Id. at ¶47. The only other allegation regarding Plaintiff’s arrest that is realleged and
incorporated into Count I is his allegation that Starnes falsely arrested Plaintiff at
gunpoint in front of his home. Plaintiff alleges that he has suffered damages as a result
of Starnes and Clark’s actions, “for which Defendants Pasco County Sheriff and
Christopher Nocco” are responsible. Id. at ¶48.
First, the Court construes this claim as suing Nocco, as Pasco County Sheriff,
in his official capacity, in light of Plaintiff’s allegations within Count I that Nocco is
responsible for the actions of Starnes and Clark. Because the Court construes the claim
against Nocco, as the Pasco County Sheriff, in his official capacity, the basis for any
effort to name Nocco in his individual capacity is unclear. As previously stated, the
exclusive remedy for injury or damage suffered from an act, event, or omission of an
officer of the state or any of its subdivisions or constitutional agents is an action
“against the governmental entity, or the head of such entity in her or his official
capacity, or the constitutional officer of which the officer, employee, or agent is an
employee . . . .” Fla. Stat. § 768.28(9)(a). See also Mbano v. City of St. Petersburg, No.
8:14-cv-1923-T-30TBM, 2016 WL 777815, at *3 (M.D. Fla. Feb. 29, 2016) (“Florida
law permits a plaintiff to recover against a municipality on a theory of vicarious
liability.”).
To the extent that Plaintiff seeks to name Nocco individually for some actions
taken within the scope of his employment, Plaintiff has not alleged, with the requisite
plausibility, any bad faith, malicious purpose, or conduct exhibiting wanton and
willful disregard of human rights, safety, or property by Nocco with respect to the false
arrest of Plaintiff.4
Next, the Court agrees with Nocco that the claim fails because Plaintiff has not
pleaded sufficient facts. Plaintiff does not allege that the arrest constituted an
unreasonable detention not warranted by the circumstances, nor does Plaintiff allege
that the arrest constituted an intentional detention. Plaintiff goes to great lengths to
allege that several of the defendants singled him out, manufactured evidence against
him, disregarded or destroyed exculpatory evidence, or took similar actions. The
allegations are merely naked assertions or legal conclusions stacked on top of one
4 Further, Plaintiff alternatively alleges within Count I, pursuant to Rule 8(d), that Starnes,
Clark, Meissner, McInnes, and Tellier “committed the tort of false arrest, but not in bad faith
or with malicious purpose, nor in the manner exhibiting willful and wanton disregard of
human rights, safety, or property.” Doc. 6 ¶50. As Plaintiff alleges that these defendants did
not act in bad faith or with malicious purpose, the avenue for pursuing such would be an
official capacity lawsuit against the governmental entity. Section 768.28(9)(a), Florida
Statutes, clearly provides that the exclusive remedy for injury or damage suffered from an act,
event, or omission of an officer of the state or any of its subdivisions or constitutional agents
is an action “against the governmental entity, or the head of such entity in her or his official
capacity, or the constitutional officer of which the officer, employee, or agent is an employee
. . . .” Fla. Stat. § 768.28(9)(a).
another. The Amended Complaint must contain sufficient factual matter which, when
accepted as true, states a claim that is plausible. Sufficient factual content is absent
here. Whether Starnes, Clark, or both officers effected the arrest is unclear. No factual
allegations regarding the circumstances of the arrest, beyond Starnes arresting Plaintiff
at gunpoint, are offered. In his response to Nocco’s motion to dismiss, Plaintiff argues
that the claim must survive because he pleaded that “Defendants did not have probable
cause to arrest him” and the existence of probable cause is a question of fact that
cannot be resolved on a motion to dismiss. Doc. 40 at 6. However, the argument fails
entirely to address the claim’s requisite plausibility or the essential elements of a false
arrest claim under Florida law.5
Based on the foregoing analysis, Count I is due to be dismissed under Rule
12(b)(6).
B. Count II – 42 U.S.C. § 1983 First Amendment Violation for
Retaliation
In Count II, Plaintiff brings a claim against Starnes, Clark, Meissner, McInnes,
and Tellier for First Amendment retaliation under 42 U.S.C. § 1983. Upon review, this
claim is due to be dismissed.
42 U.S.C. § 1983 “creates a private right of action to remedy violations of ‘rights
privileges, or immunities secured by the Constitution and laws’ of the United States.”
5 Plaintiff also argues in passing that he adequately alleges the elements of a false arrest claim
“under Florida law and under § 1983 in his Amended Complaint.” Doc. 40 at 6 (emphasis
added). However, Plaintiff expressly labels this claim as a false arrest tort arising under
Florida law, and the Court declines to construe the claim as arising under § 1983.
Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016) (quoting Rehberg v. Paulk, 556 U.S.
356, 361 (2012)). “The cause of action is available against ‘[e]very person who acts
under color of state law to deprive another of a constitutional right.’” Id. (alteration in
original) (quoting Rehberg, 556 U.S. at 361). Indeed, “one cannot go into court and
claim a ‘violation of § 1983’—for § 1983 by itself does not protect anyone against
anything.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979).
Clark, Meissner, McInnes, and Tellier argue that, to the extent that Plaintiff
seeks to bring an official capacity claim here, he has failed to allege that any policy or
custom caused his constitutional rights to be violated. Doc. 15 at 5. “Section 1983 suits
against officers in their official capacities ‘generally represent only another way of
pleading an action against an entity of which an officer is an agent,’ not against the
officer individually.” C.P. by and through Perez, 145 F. Supp. 3d at 1090 (quoting
Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Thus, official capacity suits against
officers “are simply another way of alleging claims against the Sheriff in his official
capacity, which in turn is effectively a suit against the governmental entity the sheriff
represents.” Id. (citing Adcock v. Baca, 157 F. App’x 118, 119 (11th Cir. 2005); Cook ex
rel. Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1115 (11th Cir. 2005)). But,
municipalities and other bodies of local government, which are “persons” within the
meaning of § 1983, may be sued directly if they are “alleged to have caused a
constitutional tort through ‘a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.’” City of St. Louis v.
Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell v. N.Y. City Dep’t of Social Servs.,
436 U.S. 658, 690 (1978)). Ҥ 1983 also authorizes suit for constitutional deprivations
visited pursuant to a governmental custom even though such a custom has not received
formal approval through the body’s official decisionmaking channels.” Id. (internal
quotation marks omitted). Even if the Court construes this claim as an official capacity
claim, the Amended Complaint does not contain a single allegation that Plaintiff’s
arrest in retaliation for exercising his First Amendment rights was caused through a
policy statement, ordinance, regulation, or decision officially adopted or promulgated,
nor does it contain a single allegation regarding a governmental custom.
To the extent that Plaintiff seeks to bring this claim against Starnes, Clark,
Meissner, McInnes, and Tellier in their individual capacities, these defendants argue
that the Court must dismiss this claim because they are entitled to qualified immunity
and Plaintiff has not alleged sufficient facts. Docs. 15 at 4, 6–8; 18 at 2–4. “Qualified
immunity shields federal and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a statutory or constitutional right, or
(2) that the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Indeed, “qualified immunity completely
protects government officials performing discretionary functions from suit in their
individual capacities unless their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known.” Marbury v.
Warden, 936 F.3d 1227, 1232 (11th Cir. 2019) (internal quotation marks omitted).
Thus, to receive qualified immunity, “an official must first establish that he was
acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred.” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (internal
quotation marks omitted). “A governmental official acts within his discretionary
authority if his actions were (1) undertaken pursuant to the performance of his duties;
and (2) within the scope of his authority.” Mikko v. City of Atlanta, 857 F.3d 1136, 1144
(11th Cir. 2017). “In applying each prong of this test, [courts] look to the general nature
of the defendant’s action, temporarily putting aside the fact that it may have been
committed for an unconstitutional purpose, in an unconstitutional manner, to an
unconstitutional extent, or under constitutionally inappropriate circumstances.”
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). “In other
words, ‘a court must ask whether the act complained of, if done for a proper purpose,
would be within, or reasonably related to, the outer perimeter of an official’s
discretionary duties.’” Mikko, 857 F.3d at 1144 (original emphasis removed) (quoting
Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998)). Only the conduct that
caused the plaintiff’s purported constitutional injury is relevant to this discretionary
authority inquiry where the plaintiff alleges that the defendants engaged in a myriad
of improper and unlawful conduct. Id.
If a defendant makes this showing of discretionary authority, the plaintiff must
then establish that qualified immunity is inappropriate by showing that “(1) the facts
alleged make out a violation of a constitutional right and (2) the constitutional right
was clearly established at the time of the alleged misconduct.” Gates v. Khokhar, 884
F.3d 1290, 1297 (11th Cir. 2018). “Generally speaking, it is proper to grant a motion
to dismiss on qualified immunity grounds when the ‘complaint fails to allege the
violation of a clearly established constitutional right.’” Corbitt v. Vickers, 929 F.3d 1304,
1311 (11th Cir. 2019) (quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th
Cir. 2002)).
Clark, Tellier, Meissner, and McInnes argue that the allegations within the
Amended Complaint show that they acted within their discretionary authority, as all
of the allegations pertain to actions taken during the course of investigating drug use
and distribution in Pasco County, Florida. Doc. 15 at 4. Starnes briefly claims that he
acted within his discretionary authority before proceeding to argue that Plaintiff fails
to state a claim because he does not allege the essential elements for a First
Amendment retaliation claim. Doc. 18 at 3. Because this First Amendment retaliation
claim focuses on the alleged false arrest of Plaintiff, the discretionary authority inquiry
centers on that arrest. Although Clark, Tellier, Meissner, and McInnes focus on the
arrest in the context of the investigation, this focus is not fatal to their qualified
immunity claim since, to the extent these defendants effected the arrest, the arrest fell
within their discretionary authority. Indeed, the arrest, if done for a proper purpose,
would be within or reasonably related to the outer perimeter of their duties.6 See
McDowell v. Gonzalez, 820 F. App’x 989, 991 (11th Cir. 2020) (“A police officer
generally acts within the scope of his discretionary authority when making an arrest.”).
6 Because Plaintiff fails to allege sufficient facts to state a constitutional violation occurred
here, the Court need not analyze Starnes’ conclusory assertion that he was acting within his
discretionary authority. Similarly, even if an argument could successfully be made that these
defendants did not sufficiently raise the defense of qualified immunity, the claim still fails as
a result of insufficient factual support, as highlighted in the motions to dismiss.
Accepting his allegations as true, Plaintiff has failed to allege facts indicating
that any of the officers violated a statutory or constitutional right. To state a claim for
retaliation under the First Amendment, a plaintiff must allege facts demonstrating that
“(1) he engaged in protected speech; (2) the defendant’s conduct adversely affected the
protected speech; and (3) a causal connection exists between the speech and the
defendant’s retaliatory actions.” Bailey, 843 F.3d at 480. Here, Plaintiff alleges that
Starnes, Clark, Meissner, McInnes, and Tellier unlawfully, and without probable
cause, arrested him and subjected him to unnecessary force. Doc. 6 ¶55. Next, despite
this allegation and bringing the claim against Starnes, Clark, Meissner, McInnes, and
Tellier, Plaintiff alleges that these “actions by Defendant Starnes were taken in
retaliation for Plaintiff’s lawful exercise of his rights under the First Amendment when
he spoke to Defendant Starnes and he retaliated by arresting him” Id. Plaintiff claims
that the conduct of Starnes, Clark, Meissner, McInnes, and Tellier violated Plaintiff’s
“clearly established right to free speech as guaranteed by the First and Fourteenth
Amendments to the United States Constitution and for which 42 U.S.C. § 1983
provides a remedy.” Id. at ¶56.
These allegations fall short. Plaintiff, who seeks compensatory damages,
punitive damages, and his costs, expenses, and attorney’s fees through his claim, does
not allege any facts demonstrating that he engaged in protected speech. Indeed, the
Amended Complaint reveals nothing about the content of Plaintiff’s speech. Nor is
there sufficient factual support for a causal connection existing between the speech and
the purported retaliatory actions. Instead, Plaintiff simply concludes that Starnes
arrested Plaintiff for Plaintiff’s exercise of his rights under the First Amendment when
Plaintiff spoke to Starnes. Further undermining Plaintiff’s effort to state a statutory or
constitutional violation is the recognition that, even when accepting his allegations as
true, Plaintiff inconsistently alleges on one hand that Starnes, Clark, Meissner,
McInnes, and Tellier unlawfully arrested Plaintiff, while alleging on the other hand
that Starnes was the officer who arrested Plaintiff.
In responding to the assertion of qualified immunity raised in the motion to
dismiss by Clark, Tellier, Meissner, and McInnes, Plaintiff asserts facts not included
in the Amended Complaint, such as his assertion that Count II is “premised on a series
of retaliatory actions that include active investigation, invasion of privacy, multiple
traffic stops, and ultimately arrest by Defendants in response to Plaintiff[’s]
unwillingness to become a confidential informant.” Doc. 40 at 3–4. However, Plaintiff
may not amend the Amended Complaint through his response. Grandrimo v. Parkcrest
Harbour Island Condo. Ass’n, Inc., No. 8:10-cv-964-T-27MAP, 2011 WL 550579, at *5
(M.D. Fla. Feb. 9, 2011). Plaintiff argues that a genuine issue of material fact exists on
the question of whether “Defendants had probable cause to arrest Plaintiff for the
crimes alleged” in the Amended Complaint and, therefore, “the fact of Plaintiff’s arrest
does not eliminate further inquiry into the causation element of his First Amendment
retaliation claim to the extent based on the false arrest of his person.” Doc. 40 at 4.
But, this purported need for “further inquiry” does not adequately respond to the
assertion of qualified immunity or the glaring deficiencies with the claim. Similarly,
Plaintiff asserts that there is “no doubt that Defendant [Starnes] was acting outside the
scope of his discretionary authority when he approached [Plaintiff’s] vehicle
brandishing a gun.” Doc. 39 at 3. However, this assertion misunderstands the
discretionary authority analysis outlined above.
Accordingly, based on the foregoing analysis, Count II is due to be dismissed.
C. Count III – Conspiracy to Deprive Constitutional Rights
In Count III, Plaintiff brings a claim for “conspiracy to deprive constitutional
rights” against Nocco, Starnes, and McCabe. This claim is also due to be dismissed.
Plaintiff alleges that Nocco, Starnes, and McCabe “conspired, directly or
indirectly, for the purposes of depriving Plaintiff of Equal Protection of the Law.” Doc.
6 ¶58. Plaintiff defends this claim through his responses to the motions to dismiss as
one arising under § 1983. Docs. 39 at 4; 40 at 4–6. Upon review, the Court construes
this claim as a § 1983 claim for conspiracy to deprive Plaintiff of his right to equal
protection of the laws under the Fourteenth Amendment.
Nocco argues that the claim is ripe for dismissal because he is entitled to
qualified immunity and Plaintiff fails to provide sufficient factual allegations to state a
claim that he engaged in a conspiracy to violate Plaintiff’s clearly established
constitutional rights. Doc. 15 at 8–10. Further, Starnes argues that he is entitled to
qualified immunity and that the Amended Complaint lacks sufficient details and
factual allegations to assert a prima facie claim. Doc. 18 at 2, 4–5.
Once again, Plaintiff fails to identify expressly whether he brings this claim in
an official capacity or individual capacity. However, Plaintiff alleges within Count III
that the “misconduct described in this Count was undertaken pursuant to the policy
and procedures of the Pasco County Sheriff’s Office in the manner described more
fully above.” Doc. 6 ¶61. Thus, to the extent that Plaintiff brings this claim against
Nocco and Starnes, the Court construes the claim as an official capacity claim. The
Court has already outlined the requirements for bringing an official capacity claim
under § 1983. Here, despite alleging the misconduct described in Count III was
undertaken pursuant to the policies and procedures of the Pasco County Sheriff’s
Office, Plaintiff does not offer any factual allegations regarding these policies and
procedures. To the extent that Plaintiff seeks to rely on his general allegations
regarding certain defendants fabricating evidence, manipulating testimony, or other
conduct as constituting some type of policy or procedure, those allegations lack
sufficient facts.
Even if Plaintiff intends to bring this claim as an individual capacity claim
against Nocco and Starnes, the claim fails. Both Nocco and Starnes claim they are
entitled to qualified immunity for this claim. Docs. 15 at 8–10; 18 at 2, 4–5. The Court
has already set forth the standards governing qualified immunity. Count III focuses on
the conspiracy by these defendants to deprive Plaintiff of equal protection of the law
through their alleged efforts to “shortcut the process.” Doc. 6 ¶33. They took these
actions during the course of their investigation in Pasco County, as Nocco highlights
in his motion to dismiss. Doc. 15 at 9–10. The investigation, if done for a proper
purpose, would be within or reasonably related to the outer perimeter of the duties of
Nocco.7
And, accepting his allegations as true, Plaintiff has failed to offer sufficient facts
indicating any violation of a statutory or constitutional right. “A plaintiff may state a
§ 1983 claim for conspiracy to violate constitutional rights by showing a conspiracy
existed that resulted in the actual denial of some underlying constitutional right.”
Grider v. City of Auburn, 618 F.3d 1240, 1260 (11th Cir. 2010). “A plaintiff attempting
to state such a claim must allege that the defendants reached an understanding to
violate the plaintiff’s constitutional rights . . . and that an actionable wrong occurred.”
Worthy v. City of Phenix City, 930 F.3d 1206, 1224 (11th Cir. 2019) (internal quotation
marks omitted). “Vague and conclusory allegations suggesting a section 1983
conspiracy are insufficient to withstand a motion to dismiss.” Spadaro v. City of
Miramar, 855 F. Supp. 2d 1317, 1346 (S.D. Fla. 2012). Here, Plaintiff generally alleges
that Nocco, Starnes, and Clark (who is not named in this claim) conspired to “shortcut
the process,” manufacture evidence, manipulate witnesses unlawfully, and other
conduct. The Amended Complaint lacks sufficient factual allegations regarding any
understanding reached between the named defendants, or anybody else, to deprive
Plaintiff of his constitutional rights. The allegations offered regarding the alleged
conduct here are merely naked assertions or legal conclusions.8 Relatedly, the basis for
7 Once again, given the analysis herein of the deficiencies in this claim, the Court need not
analyze Starnes’ conclusory assertion that he was acting within his discretionary authority.
8 The Court also notes the intracorporate conspiracy doctrine applies to public entities. Griber,
618 F.3d at 1261 (collecting cases). Under the intracorporate conspiracy doctrine, “acts of
Plaintiff’s deprivation “of Equal Protection of the Law” is also unclear and lacks
sufficient factual support, as alleged.
As for Plaintiff’s effort to bring this claim against McCabe, McCabe first argues
that he is entitled to immunity to the extent that Plaintiff sues him in an official
capacity. Doc. 13 at 2. Indeed, this claim is barred to the extent that Plaintiff sues
McCabe in an official capacity. “Absent a waiver, neither a State nor agencies acting
under its control may be subject to suit in federal court.” P.R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993). Indeed, “[t]hree general exceptions
are applicable to the Eleventh Amendment’s jurisdictional bar: (1) A state’s immunity
may be abrogated by act of Congress under section 5 of the Fourteenth Amendment;
(2) a state may waive its sovereign immunity; or (3) the claim may fall within the
confines of Ex parte Young [209 U.S. 203 (1908)].” Camm v. Scott, 834 F. Supp. 2d 1342,
1347 (M.D. Fla. 2011).
“Congress has not abrogated eleventh amendment immunity in section 1983
cases.” Carr v. City of Florence, 916 F.2d 1521, 1525 (1990). Under Ex Parte Young, a suit
alleging a violation of the federal constitution against a state official in an official
capacity for injunctive relief does not violate the Eleventh Amendment. Camm v. Scott,
834 F. Supp. 2d at 1348. And, Florida’s limited waiver of sovereign immunity in §
768.28, Florida Statutes, does not constitute consent to be sued in federal court under
corporate agents are attributed to the corporation itself, thereby negating the multiplicity of
actors necessary for the formation of a conspiracy.” McAndrew v. Lockheed Martin Corp., 206
F.3d 1031, 1036 (11th Cir. 2000) (en banc).
§ 1983. See Gamble v. Fla. Dep’t of Health & Rehabilitative Servs., 779 F.2d 1509, 1515
(11th Cir. 1986). Although a State may not be named as a party to the action, the
Eleventh Amendment may nonetheless bar the lawsuit. Zatler v. Wainwright, 802 F.2d
397, 400 (11th Cir. 1986). See also Paylan v. Bondi, No. 8:15-cv-1366-T-36AEP, 2017
WL 9398657, at *19 (M.D. Fla. Feb. 28, 2017) (stating that a state attorney is an “arm
of the state” for purposes of an Eleventh Amendment analysis), report and
recommendation adopted, 8:15-cv-1366-T-36AEP, 2017 WL 1149331, at *13 (M.D. Fla.
Mar. 28, 2017).
In this § 1983 conspiracy claim against McCabe, Plaintiff seeks compensatory
damages, punitive damages, and his costs, expenses, and reasonable attorney’s fees.
Doc. 6 at 13. As McCabe highlights, the Amended Complaint alleges only that
McCabe held a press conference regarding Plaintiff and prosecuted him in 2018. The
Eleventh Amendment bars this claim against McCabe to the extent that Plaintiff brings
it against McCabe in an official capacity.
McCabe also argues that that he is entitled to qualified immunity to the extent
that Plaintiff sues him in an individual capacity and that the Amended Complaint lacks
sufficient facts to state a claim. Doc. 13 at 2–5. The Court agrees. Under the allegations
of the Amended Complaint, McCabe acted within his discretionary authority, as those
allegations pertain to his prosecution of Plaintiff. Id. at 3. Thus, as alleged, qualified
immunity bars this claim against McCabe. Further, even accepting them as true, the
allegations regarding McCabe are scant and fall against a backdrop of legal
conclusions and naked assertions, as discussed above, that lack the requisite factual
content regarding any understanding reached by McCabe and others to deprive
Plaintiff of his constitutional rights or the basis for Plaintiff’s deprivation of “Equal
Protection of the Law.” In response, Plaintiff simply asserts that McCabe knew that
the evidence against Plaintiff was insufficient and that “his mere presence at the press
conference . . . supports the allegation of communication between McCabe and the
other Defendants regarding the crimes charged. Doc. 38 at 3, 5. This terse analysis is
unpersuasive.
Accordingly, based on the foregoing analysis, Count III is due to be dismissed.
D. Count IV – Negligent Supervision and Retention
In Count IV, Plaintiff brings a claim for negligent supervision and retention
against “Pasco County Sheriff and Defendant Christopher Nocco.” Doc. 6 at 13. This
claim is also due to be dismissed.
“In Florida, negligent supervision and retention occurs when during the course
of employment, the employer becomes aware or should have become aware of the
problems with an employee that indicate[] his unfitness and the employer fails to take
further action such as investigation, discharge, or reassignment.” Martinez v. Pavex
Corp., 422 F. Supp. 2d 1284, 1298 (M.D. Fla. 2006) (citing Watson v. The City of Hialeah,
552 So. 2d 1146, 1148 (Fla. 3d DCA 1989)). “A negligent supervision and retention
claim must be based on an injury resulting from a tort which is recognized under
common law.” Id. (internal quotation marks omitted). To state a claim of negligent
supervision and retention, a plaintiff must plead facts establishing that a defendant
should have foreseen, based on its employee’s work history, that they would commit
the tort.” See Bello v. Johnson, 442 F. App’x 477, 480 (11th Cir. 2011) (citing Dickinson
v. Gonzalez, 839 So. 2d 709, 713–14 (Fla. 3d DCA 2003)). “In essence, a plaintiff must
allege that the employer was put on notice of the ‘harmful propensities of the
employees.’” Paul v. Bradshaw, No. 12-18381-CIV-ROSENBAUM/SELTZER, 2013
WL 12084298, at *13 (S.D. Fla. Aug. 7, 2013) (quoting Campbell v. Humphries, 353 F.
App’x 334, 336 (11th Cir. 2009)). District courts within the Eleventh Circuit
“repeatedly dismiss negligent retention and supervision claims where a plaintiff fails
to allege that the employee’s tortious conduct was ‘outside the scope’ of their job
duties.” Yule v. Ocean Reef Cmty. Ass’n, No. 19-10138-CIV-MORENO, 2020 WL
3051505, at *10 (S.D. Fla. June 8, 2020) (collecting cases).
Nocco correctly argues that Plaintiff has not sufficiently pleaded this claim.
Doc. 15 at 11. Plaintiff alleges that, during “the Pasco County Sheriff and Christopher
Nocco’s employment of Defendants Starnes, Clark, Meissner, McInn[e]s, and Tellier,
Pasco County Sheriff and Christopher Nocco knew or had reason to know” that
Starnes, Clark, Meissner, McInnes, and Tellier “committed violations” of Plaintiff’s
constitutional rights and had a reasonable opportunity to prevent this harm, but failed
to do so. Doc. 6 ¶64. However, a review of the Amended Complaint reveals
insufficient factual support for this allegation. The basis for Plaintiff’s assertion that
“Pasco County Sheriff and Christopher Nocco knew or had reason to know” of these
“violations” is entirely unclear. As Nocco aptly highlights in his motion to dismiss,
Plaintiff essentially states that “Pasco County Sheriff and Christopher Nocco” knew
or should have known that Starnes, Clark, Meissner, McInnes, and Tellier would
violate Plaintiff’s rights because they did violate his rights.
Further, this claim for negligent supervision and retention cannot rest upon
vague “violations” of Plaintiff’s rights, but must be based on an injury resulting from
a tort. Presumably, Plaintiff intends for the alleged false arrest to serve as this tort, as
he alleges that “Pasco County Sheriff and Christopher Nocco have a duty to protect
individuals from acts of false arrest by the law enforcement officers they employ.” Id.
at ¶63. The only allegation regarding this false arrest that is realleged and incorporated
into Count IV is his allegation that Starnes falsely arrested him at gunpoint in front of
his home.9 However, despite previously alleging that Starnes committed this false
arrest, Plaintiff alleges within Count IV that Starnes, Clark, Meissner, McInnes, and
Tellier violated Plaintiff’s constitutional rights. As such, insufficient factual support is
offered. Plaintiff also has not alleged that the conduct complained of here occurred
outside the scope of job duties. Therefore, Plaintiff has failed to state a claim for
negligent supervision and retention.
Finally, in bringing this claim, Plaintiff once again names “Pasco County
Sheriff” and Nocco as the defendants. The Court has detailed extensively the problems
arising from this practice. Nocco argues that, to the extent that Plaintiff names him in
this claim in an individual capacity, the claim must be dismissed in accordance with §
9 Count I includes other allegations regarding his false arrest, but these allegations are not
realleged and incorporated in Count IV. Indeed, as the Court discussed in dismissing
Plaintiff’s prior complaint as a shotgun pleading, such practice would run aground of the
Federal Rules of Civil Procedure. Doc. 3 at 3.
728.68(9)(a), Florida Statutes. Doc. 15 at 6. Indeed, notwithstanding the viability of
bringing a claim for negligent supervision and retention against Nocco, as Pasco
County Sheriff, in his individual capacity, Plaintiff does not allege here that Nocco
acted in bad faith or with a malicious purpose or otherwise in a manner that exhibited
wanton and willful disregard of human rights, safety, or property in accordance with
§ 728.68(9)(a).
Therefore, based on the foregoing analysis, Count IV is due to be dismissed.
E. Count V – Malicious Prosecution
Finally, in Count V, Plaintiff brings a claim against McCabe for malicious
prosecution, seeking compensatory damages, punitive damages, and Plaintiff’s costs,
expenses, and attorney’s fees. Doc. 6 at 15. The Court will dismiss this claim, as well.
To state a claim for malicious prosecution under Florida law, a plaintiff must
allege:
(1) an original criminal or civil judicial proceeding against the
present plaintiff was commenced or continued; (2) the present
defendant was the legal cause of the original proceeding against
the present plaintiff as the defendant in the original proceeding;
(3) the termination of the original proceeding constituted a bona
fide termination of that proceeding in favor of the present
plaintiff; (4) there was an absence of probable cause for the
original proceeding; (5) there was malice on the part of the
present defendant; and (6) the plaintiff suffered damage as a
result of the original proceeding.
Cohen v. Corwin, 980 So. 2d 1153, 1155 (Fla. 4th DCA 2008) (quoting Alamo Rent-A-
Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)).
“Malice is not only an essential element of malicious prosecution but it is the
gist of this cause of action.” Miami-Dade Cnty. v. Asad, 78 So. 3d 660, 664 (Fla. 3d DCA
2012) (internal quotation marks omitted). Malice is not synonymous with want of
probable cause. Id. (citing White v. Miami Home Milk Producers Ass’n, 197 So. 125, 126
(Fla. 1940)).
McCabe argues that he is entitled to absolute immunity because, as state
attorney, he prosecuted Plaintiff’s case. Doc. 13 at 5–6. Although McCabe relies on
cases regarding immunity in § 1983 actions, whereas Plaintiff brings this action for
malicious prosecution under Florida law, McCabe is nonetheless correct that he is
entitled to immunity. “It is well settled that the various officers of the State Attorney’s
Office are quasi-judicial officers,” as established by the Florida Constitution. Qadri v.
Rivera-Mercado, 303 So. 3d 250, 254 (Fla. 5th DCA 2020). “As quasi-judicial officers,
prosecutors enjoy absolute immunity from lawsuits for damages resulting from the
performance of their quasi-judicial functions of initiating or maintaining a
prosecution.” Id. (internal quotation marks omitted). “This is true regardless of
whether the prosecutor acted maliciously or corruptly.” Id. When determining
whether absolute immunity applies, a court must utilize “a functional approach,
examining the nature of the function performed, rather than the motivation of the
person performing the function.” Id. “If the function is intimately associated with the
role of the prosecutor in acting as an advocate for the State, absolute immunity
attaches.” Id.
Here, Plaintiff’s malicious prosecution claim is premised entirely upon
McCabe’s prosecution of him in his role as state attorney. Although Plaintiff alleges,
without further factual support, that the “proceedings” lacked probable cause and that
McCabe conducted such proceedings with malice, these allegations do not change the
recognition that Plaintiff grounds this claim in McCabe’s performance of his quasi-
judicial function of initiating and maintaining a prosecution. Indeed, Plaintiff
emphasizes that McCabe acted within the scope of his employment as a state attorney
and, as such, “the State Attorney’s Office is responsible for his actions.” Doc. 6 ¶73.
Simply put, the allegations pertain to McCabe’s prosecution of Plaintiff. Therefore,
because McCabe is entitled to immunity for this claim, as alleged, the Court will
dismiss the claim.
IV. CONCLUSION
The claims within the Amended Complaint contain significant deficiencies.
Because the underlying facts or circumstances relied upon by Plaintiff may be a proper
subject of relief, the Court will grant Plaintiff one further opportunity to amend the
Amended Complaint.10 Dysart v. BankTrust, 516 F. App’x 861, 865 (11th Cir. 2013).
As such, Counts I through IV are dismissed, without prejudice, to Plaintiff’s right to
file an amended pleading. Count V is dismissed with prejudice, as McCabe is entitled
to immunity for this claim.11 Any amended pleading must correct the deficiencies
identified herein.
Accordingly, it is ORDERED:
10 Because the Court dismisses the claims, it need not address the argument raised by Nocco,
Clark, Tellier, Meissner, and McInnes regarding improper attorney’s fees and punitive
damages, except to say that the arguments are well-taken. Doc. 15 at 13.
11 Likewise, to the extent Plaintiff attempts to assert an official capacity claim against McCabe
in Count III, it is dismissed with prejudice, due to Eleventh Amendment immunity.
1. Defendant Bernie McCabe’s Motion to Dismiss Plaintiff's Amended
Complaint, Doc. 13, is GRANTED.
2. The Motion to Dismiss Amended Complaint by Defendants Sheriff,
Nocco, Clark, Tellier, Meissner, and McInnes, Doc. 15, is GRANTED.
3. The Motion to Dismiss the Amended Complaint of Christopher Starnes,
Doc. 18, is GRANTED.
4. Plaintiffs Amended Complaint, Doc. 6, is DISMISSED without
prejudice, as to Counts I through IV. The Amended Complaint is
DISMISSED with prejudice, as to Count V.
5. Plaintiff is granted leave to file a second amended complaint within
FOURTEEN (14) DAYS of the date of this order, which must correct
the deficiencies identified herein. Failure to file a second amended
complaint within the time provided will result in the Court closing this
case without further notice.
DONE AND ORDERED in Tampa, Florida on February 16, 2021.
Charlene Edwards Honeywell
United States District Judge
Copies to:
Counsel of Record and Unrepresented Parties, if any
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