Gary v. Fort Myers Police Department

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DAVID GARY,

Plaintiff,

v. Case No: 2:19-cv-427-FtM-29

WOLFGANG DANIEL,

Defendant.

OPINION AND ORDER

This matter comes before the Court on defendant Wolfgang

Daniel’s Motion for Summary Judgment (Doc. #51) filed on August 6,

2021. Plaintiff filed a letter in response (Doc. #55) on September

15, 2021.1 For the reasons set forth below, the motion is granted.

1 Plaintiff David Gary is a pro se litigant. Following the

submission of defendant Wolfgang Daniel’s Motion for Summary

Judgment, the Court provided Plaintiff with the appropriate

summary judgment notice (Doc. #52) and Plaintiff thereafter filed

a letter (Doc. #55.) The letter does not indicate whether it was

filed in response to Defendant’s motion, however, the Court will

construe it as such. See Flores v. Debski & Assocs., P.A., No. 21-

cv-20992-BLOOM/Otazo-Reyes, 2021 U.S. Dist. LEXIS 91325, at *1

(S.D. Fla. May 12, 2021) (quoting Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998)(“Pro se filings are "held to a

less stringent standard than [filings] drafted by attorneys and

will, therefore, be liberally construed.")).

I.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004)(citing Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)

(finding summary judgment “may be inappropriate even where the

parties agree on the basic facts, but disagree about the factual

inferences that should be drawn from these facts”)). “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, then the court should not grant

summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).

“Pro se filings are held to a less stringent standard than

pleadings drafted by attorneys and are afforded liberal

construction by courts.” Rizvi v. Experian, No. 20-14148-CIV, 2021

U.S. Dist. LEXIS 144289, at *14 (S.D. Fla. Aug. 2, 2021) (emphasis

added); see Loren v. Sasser, 309 F.3d 1296, 1301 (11th Cir. 2002)

("In the summary-judgment context, we have construed pro se

pleadings more liberally than those of a represented party.").

However, "a pro se litigant does not escape the essential burden

under summary judgment standards of establishing that there is a

genuine issue as to a fact material to his case in order to avert

summary judgment." See Rizvi, 2021 U.S. Dist. LEXIS 144289, at

*14 (S.D. Fla. Aug. 2, 2021) (quoting Brown v. Crawford, 906 F.2d

667, 670 (11th Cir. 1990). Therefore, a pro se plaintiff must

come forward with specific record evidence demonstrating the

existence of a genuine issue of material fact.2 See id.

II.

On January 24, 2020, plaintiff David Gary (Plaintiff) filed

an Amended Complaint (Doc. #20) against defendant Wolfgang Daniel

(Defendant) in his individual capacity as a detective with the

Fort Myers Police Department.3 Read liberally, Plaintiff’s Amended

Complaint asserts four claims against Defendant pursuant to 42

U.S.C. § 1983: (1) an unlawful warrantless entry into his

apartment; (2) an unlawful search of his premises; (3) the

destruction of property in the apartment; and (4) his unlawful

arrest without just cause. (Doc. #20; Doc. #27, p. 5.)4 Plaintiff

2 The Eleventh Circuit has directed that particular care be

exercised regarding motions for summary judgment against

unrepresented parties. United States v. One Colt Python .357 Cal.

Revolver, S/N T03461 W/Holster, 845 F.2d 287, 289 (11th Cir. 1988).

In light of this directive, the Court provided Plaintiff with

general guidance about motions for summary judgment and the types

of evidence a party may submit in opposition to summary judgment,

along with a link to the District Court’s website for pro se

litigants on proceeding without a lawyer. See (Doc. #52.)

3 Plaintiff’s Amended Complaint states that he is bringing

this action against defendant “Wolfgang Daniel and his Team.” The

Court, however, previously granted Defendant’s Motion to Dismiss

not only the Fort Myers Police Department (FMPD), but also “his

team” as named defendants. See (Doc. #15; Doc. #19; Doc. #27, p.

3.) Therefore, the Court will only consider Plaintiff’s claims

against Wolfgang Daniel.

4 The page numbers refer to those generated by the Court’s

computer system upon filing (upper left-hand corner) and do not

alleges that the conduct violated his Fourth Amendment rights, and

he seeks compensatory damages in the amount of $150,000. (Doc.

#20, p. 4.) Defendant, on the other hand, argues that he did not

violate any constitutional right, and that Plaintiff has failed to

present any evidence to the contrary. (Doc. #51, p. 8.) Thus,

Defendant asserts he is entitled to summary judgment concerning

all four claims. (Id.)

The undisputed material facts are as follows:

A. Events Prior To The July 31, 2015 Search and Arrest

Defendant, who has been employed as a detective in the Special

Investigations Group (“SIG”) of FMPD for approximately 4 years,

specializes in drug related investigations.5 (Doc. #51-1, ¶ 2.) In

July 2015, Defendant was engaged in an ongoing investigation of a

black male identified as Andrew Perry for possessing and selling

cocaine from inside a residence located at 2505 Royal Palm Avenue,

Apartment #27, Fort Myers, Florida 33901 (i.e., Plaintiff’s

apartment), in violation of § 893.13, Fla. Stat. (Id. at ¶ 5.)

During this investigation, Defendant and other FMPD detectives

always correspond with the page number at the bottom of the

document.

5 Defendant has participated in over three hundred drug-

related arrests and assisted in the preparation and/or execution

of no less than two hundred drug-related search warrants. (Doc.

#51-1, ¶ 3.)

utilized a confidential informant (CI) to conduct a series of

controlled buys of narcotics at Plaintiff’s apartment. (Id. at ¶¶

6-7.) Approximately twenty days preceding July 29, 2015, Defendant

and other FMPD detectives, with the assistance of the CI, made two

controlled drug purchases of cocaine on two separate days from the

suspect while at Plaintiff’s apartment. (Id. at ¶¶ 6, 9-11.) Prior

to and following the controlled drug purchases, Defendant

conducted surveillance of Plaintiff’s apartment on various dates

and times which, in the Defendant’s training and experience,

revealed activity indicative of “street level drug sales.” (Id. at

¶ 12.)

Based upon the controlled buys, surveillance, and

investigation, Defendant applied for and received a search warrant

for Plaintiff’s apartment from a state court judge. (Id. at ¶¶

13-15; Doc. #51-2.) Defendant states that he obtained the search

warrant in accordance with the FMPD policies and procedures that

all warrants be executed in a manner that comports with state and

federal law. (Doc. #51-1, ¶¶ 17-18.)

B. The July 31, 2015 Search and Arrest

On July 31, 2015, initial contact with the occupants of

Plaintiff’s apartment was made through a probation check. (Doc.

#51-1, ¶ 21; Doc. #51-11, p. 3.) A resident of Plaintiff’s

apartment, David Gary, Jr., was on state probation at the time the

search warrant was executed. (Doc. #51-1, ¶ 19; Doc. #51-3; Doc.

#51-11, p. 14; Doc. #51-13, p. 2.) An officer knocked on the

apartment door, and a resident of Plaintiff’s apartment opened the

door and was advised of the probation check. (Doc. #51-1, ¶ 21;

Doc. #51-13, p. 3.) Moments after initial contact, additional

FMPD officers entered the apartment and advised the occupants of

the search warrant and removed the occupants to the front porch of

the apartment. (Doc. #51-1, ¶¶ 21-22, 24; Doc. #51-11, p. 4.) All

the occupants were detained in handcuffs and read verbatim the

contents of the search warrant, which is recorded by an officer’s

body camera video. (Doc. #51-1, ¶ 24; Doc. #51-4; Doc. #51-5.)

During the execution of the search warrant Defendant, along

with three to five officers, were present at any given time when

the alleged destruction of property would have occurred.6 (Doc.

#51-1, ¶ 25; Doc. #51-11, p. 16; Doc. #51-15, pp. 17-18.) Neither

Plaintiff, nor any of the witnesses present in Plaintiff’s

apartment, saw Defendant destroy any property. (Doc. #51-11, pp.

9-10; Doc. #51-12, p. 6; Doc. #51-13, p. 11; Doc. #51-14, p. 7.)

Defendant observed suspected marijuana in plain view sitting next

to Plaintiff’s bed, from which Plaintiff was previously removed.

(Doc. #51-1, ¶¶ 25-26; Doc. #51-6.) Plaintiff was placed under

arrest for possession of marijuana in violation of § 893.13(6b),

6 Plaintiff alleges that Defendant destroyed his bedroom

furniture, sofa and music CDs, and that his fiancé’s diamond ring

was missing from on top of a dresser. (Doc. #51-11, pp. 9-10.)

Fla. Stat. (Doc. #51-1, ¶¶ 25-29; Doc. #51-6; Doc. #51-8, pp. 1-

2.)

III.

In order to prevail in a civil rights action under [§] 1983,

"a plaintiff must make a prima facie showing of two elements: (1)

that the act or omission deprived plaintiff of a right, privilege

or immunity secured by the Constitution or laws of the United

States, and (2) that the act or omission was done by a person

acting under color of law." Dunn v. City of Ft. Valley, 464 F.

Supp. 3d 1347, 1359 (M.D. Ga. 2020)(citing Marshal Cnty. Bd. Of

Educ. v. Marshal Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.

1993)). An officer acts under color of state law by acting with

power possessed by virtue of the officer's employment with a

governmental entity. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517,

1522 (11th Cir. 1995).

Here, there is no dispute that Defendant was acting under the

color of state law when Defendant obtained and executed a search

warrant for Plaintiff’s apartment by virtue of his employment with

FMPD. The issue is whether Defendant deprived Plaintiff of his

Fourth Amendment rights. The Court will address each alleged

Fourth Amendment violation in turn below.

A. Unlawful Warrantless Entry Into Plaintiff’s Apartment

Plaintiff argues that on July 31, 2015, Defendant entered his

apartment without possessing a search warrant. (Doc. #20, pp. 2,

4.) Defendant responds that he was in possession of a valid search

warrant and lawfully entered Plaintiff’s apartment without

violating any of Plaintiff’s Fourth Amendment rights. (Doc. #51,

pp. 9-13.)

The Fourth Amendment provides that "right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures" shall not be violated. U.S.

Const. amend. IV. “Freedom in one’s own dwelling is the archetype

of the privacy protection secured by the Fourth Amendment;

conversely, physical entry of the home is the chief evil against

which [it] is directed.” Lange v. California, 141 S. Ct. 2011,

2018 (2021) (citing Payton v. New York, 445 U. S. 573, 585, 587

(1980) (internal quotation marks omitted)). "It is a basic

principle of Fourth Amendment law that searches and seizures inside

a home without a warrant are presumptively unreasonable." Payton,

445 U.S. 573, 586 (quotation marks and citation omitted).

While Plaintiff argues that Defendant did not possess a search

warrant (Doc. #51-11, p. 7), the undisputed evidence shows

otherwise. Defendant has attested to and provided a copy of the

executed search warrant dated July 29, 2015, that was signed by

Lee County Court Judge Archie B. Hayward, Jr., and gives permission

to search Plaintiff’s apartment located at 2502 Royal Palm Avenue,

Apartment #27 in Fort Myers, Florida. (Doc. #51-1, at ¶¶ 13-15,

17-18; Doc. #51-2, pp. 1-4.) Additionally, Defendant has provided

body camera video of the Plaintiff and other occupants of the

apartment being read the contents of the search warrant authorized

by Judge Hayward. (Doc. #4; Doc. #5.) Plaintiff’s subjective

belief that Defendant did not possess a search warrant is refuted

by the record. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181

(11th Cir. 2005) ("Speculation does not create a genuine issue of

fact; instead, it creates a false issue, the demolition of which

is a primary goal of summary judgment.").

The Court also finds that the search warrant was valid under

Groh v. Ramirez, 540 U.S. 551 (2004), because it was issued upon

finding “probable cause, supported by oath or affirmation, and

particularly describing the place to be searched and, the persons

or things to be seized.” Id. at 557. The search warrant affidavit

provides probable cause that § 893.13, Fla. Stat.7 was being

violated by the sale and possession of cocaine. This was based on

Defendant’s investigation and surveillance of Plaintiff’s

apartment, and included controlled drug buys by the FMPD in the

apartment. (Doc. #51-2, p. 3.) In addition, the warrant described

in detail the place to be searched: 2505 Royal Palm Avenue,

Apartment #27, in Fort Myers, Florida, a two-story building with

7 In general, Section 893.13 prohibits the sale of,

manufacturing, delivering, or possessing a controlled substance

with intent to sell, manufacture, or deliver the substance, which

includes cocaine. See § 893.13, Fla. Stat.; see also, § 893.03,

Fla. Stat.

an exterior salmon (and reddish-brown trim) color with a pitched

roof and the number “27” affixed on the door in black lettering on

a white plaque. (Id., pp. 1-2.) Likewise, the warrant described

with particularity the things to be seized:

And that the following property or evidence may be

found therein: cocaine, paraphernalia for the

manufacture, distribution and ingestion of cocaine,

records of financial transactions for the sale and

purchase of cocaine, proceeds from the sale of

cocaine, Fort Myers Police Department money used in

controlled drug buys, any and all weapons used in the

commission of and/or protection of, any articles of

personal property intending to establish the identity

of the person(s) in control and/or who has ownership

of the residence being searched. These articles

include, but are not limited to, bills, mail, keys and

or purchase/lease applications or agreements, any

ledgers or documents and/or any other items linking

the persons or person involved in this investigation

to any violations of Florida Statues [sic] 893.13.

This documentation can be contained in or stored on

but not limited to papers, photographs or digital

storage devices.

(Id., p. 3.) The Court finds that the search warrant obtained by

Defendant to conduct a search at Plaintiff’s apartment is valid

under the Fourth Amendment.

As to the initial entry into Plaintiff’s apartment, Defendant

argues there was a knock and announcement before entering the

residence. (Doc. #51, p. 11.) Furthermore, Defendant points out

that he was not the first officer to initially make contact and

enter the home; rather, initial contact and entry was made by a

probation officer. (Id.)

The Eleventh Circuit has held that while the Fourth Amendment

does not explicitly set forth a knock-and-announce principle, the

Amendment "incorporates the important common law requirement that

police officers entering a dwelling must knock on the door and

announce their identity and purpose before attempting forcible

entry." United States v. Segura-Baltazar, 448 F.3d 1281, 1289 (11th

Cir. 2006) (citing Wilson v. Arkansas, 514 U.S. 927, 930 (1995)).

There are three interests protected by the knock-and-announce

rule: (1) "the protection of human life and limb, because an

unannounced entry may provoke violence in supposed self-defense by

the surprised resident;" (2) "the protection of property" so that

an individual may "avoid the destruction of property occasioned by

a forcible entry;" and (3) the "elements of privacy and dignity

that can be destroyed by a sudden entrance." Hudson v. Michigan,

547 U.S. 586, 594 (2006).

The record establishes that the initial entry into

Plaintiff’s apartment did not violate the common law knock and

announce rule. The undisputed testimonial evidence shows that a

probation officer first announced himself and entered Plaintiff’s

apartment, and that Plaintiff’s son was on probation. Plaintiff

stated in his deposition that the initial contact was for a

probation check, (Doc. #51-11, pp. 12, 14), and Plaintiff’s son

confirmed that he was on probation on July 31, 2015, and was

sitting in the living room when a someone knocked on the door and

announced “probation.” (Doc. #51-3; Doc. #51-13, p. 3.) An

occupant of the apartment then opened the door and the probation

officer entered. (Doc. #51-1, ¶¶ 19-21; Doc. #51-11, p. 12; Doc.

#51-13, p. 3.). Thereafter, Defendant, along with other officers,

entered the apartment and announced their intent to conduct a

search of the apartment pursuant to a search warrant. (Doc. #51-

1, ¶¶ 22, 25; Doc. #51-11, p. 3.) Thus, the initial entry into

Plaintiff’s apartment did not offend the general common-law knock

and announce rule.

The Court finds that the record establishes no Fourth

Amendment violation, and Defendant is entitled to summary judgment

as to these issues.

B. Unlawful Search of Plaintiff’s Apartment

Plaintiff appears to allege that Defendant conducted an

unlawful search of his apartment because he was not shown the

warrant prior to the search. See (Doc. #51-11, p. 7.) Defendant

asserts that no such showing is required. (Doc. #51, pp. 12-13.)

Defendant is correct that “the Fourth Amendment [does not]

require that the warrant and incorporated documents be [shown],

given to or read aloud to the property owner before the search.”

United States v. Carter, No. 8:19-cr-397-T-60AEP, 2020 U.S. Dist.

LEXIS 168543, at *6 (M.D. Fla. Sep. 15, 2020) (citing United States

v. Grubbs, 547 U.S. 90, 98-99 (2006)(emphasis added)); see, e.g.,

United States v. Tracey, 597 F.3d 140, 146 n.5 (3d Cir. 2010) ("Of

course, the Fourth Amendment does not require the officer to

provide a copy of the warrant to the subject before he conducts

the search."); United States v. Cazares-Olivas, 515 F.3d 726, 730

(7th Cir. 2008) ("[W]hatever the most prudent course may be, the

fourth amendment does not require officers to have a warrant in

hand when searching."). This portion of Plaintiff’s claim is

unfounded both as a matter of law and fact.

Plaintiff also argues that the search is invalid because

Defendant did not leave a copy of the search warrant with Plaintiff

upon completing the search. See (Doc. #15-11, p. 8.) The Fourth

Amendment is not violated when an officer "fails to leave a copy

of the search warrant with the property owner following the search"

or "fails even to carry the warrant during the search.” Leflore v.

United States, No. 2:17cv393-AKK-CSC, 2020 U.S. Dist. LEXIS 7002,

at *10 (M.D. Ala. Jan. 14, 2020).8 Because the record evidence

establishes that Defendant possessed a valid search warrant and

was not required to show Plaintiff a copy of the warrant before

the search or leave a copy of the document following the search,

8 Federal Rule of Criminal Procedure 41, which states that an

“officer executing the warrant must give a copy of the warrant and

a receipt for the property taken to the person from whom . . . the

property was taken,” does not apply to Defendant, an FMPD

detective, as it is only applicable to federal law enforcement

officers. See Roberts v. Sormrude, No. 3:16cv68-MCR-CJK, 2018

U.S. Dist. LEXIS 166604, at *14 (N.D. Fla. Aug. 28, 2018) (citing

Fed. R. Crim. P. 41(f)(1)(C) (finding that Rule 41 only applies to

federal law enforcement officers)).

there was no violation of the Fourth Amendment. Defendant is

entitled to summary judgment as to this portion of Plaintiff’s

claim.

C. Destruction of Property

Defendant also seeks summary judgment as to Plaintiff’s claim

that he destroyed property within the apartment during the

execution of the search warrant. (Doc. #51, p. 14.) It is generally

left to the discretion of the executing officers to determine how

to best to proceed with the performance of a search authorized by

warrant, subject to the general Fourth Amendment protection

“against unreasonable searches and seizures." Dalia v. United

States, 441 U.S. 238, 257 (1979)). "Yet, from the moment of entry,

to the point of departure, the manner in which an officer executes

a warrant is subject to judicial review as to its reasonableness."

Simmons v. City of Orlando, No. 6:16-cv-1909-Orl-41KRS, 2017 U.S.

Dist. LEXIS 232198, at *16 (M.D. Fla. Sep. 15, 2017).

(1) Whether Defendant Destroyed Plaintiff’s Property or Is

Liable Under A Supervisory Capacity

Plaintiff contends that Defendant destroyed his bed, sofa,

and music CDs, along with stealing his fiancé’s diamond ring. (Doc.

#20, pp. 3-4; Doc. #51-11, pp. 9-10.) Defendant responds that other

than bare allegations, Plaintiff has provided no evidence to show

that he damaged or stole Plaintiff’s property. (Doc. #51, p. 14.)

In his sworn affidavit, Defendant avers that during the execution

of the search warrant:

[He] did not pour cat litter on any of the Plaintiff’s

furniture or in any other place in the apartment, [he]

did not pour and/or throw any cat urine or excrement

on any furniture of the Plaintiff or in other place

[sic] of Plaintiff’s apartment, [he] did not destroy

any of the Plaintiff’s furniture, [he] did not destroy

and/or take any of the Plaintiff’s CDs, and [he] did

not take any jewelry.

(Doc. #51-1, ¶¶ 32-33.)

The evidence of record shows that at any given time during

the execution of the search warrant there were approximately three

to five officers who were inside Plaintiff’s apartment conducting

the search when the alleged destruction/theft of Plaintiff’s

property occurred. (Doc. #51-1, ¶ 25; Doc. #51-11, p. 4.) The

testimonial evidence also shows that Plaintiff, as well as the

other occupants, did not see Defendant commit acts that resulted

in the damage, destruction, or theft of Plaintiff’s property.

Plaintiff testified that he was not in the apartment during the

search and the door to the apartment was closed such that he could

not see anyone or anything. (Doc. #51-11, pp. 10-11.) Plaintiff’s

son also confirmed that all the occupants of the apartment were on

the front porch while the search was conducted, and that he could

not see who allegedly committed the destruction because the front

door was closed. (Doc. #51-13, pp. 5, 10-11.) Likewise, Plaintiff’s

fiancé testified that she did not witness who allegedly damaged

the property. (Doc. #51-12, pp. 5-6.) Emily Caesar, who was also

at Plaintiff’s apartment when the search was conducted, did not

see Defendant or any other officer damage property because she was

outside of the apartment. (Doc. #51-14, p. 7.) Finally, like all

the other occupants, Mr. Andrew Perry was also not inside the

apartment during the search and was unable to see who allegedly

destroyed or damaged the contents of Plaintiff’s apartment. (Doc.

#51-15, p. 8.)

Based on the foregoing testimony, the Court finds there is no

factual evidence from which a reasonable inference could be drawn

that Defendant personally caused such damage or destruction to

Plaintiff’s property. “Plaintiff's subjective belief is

insufficient to resist summary judgment on this point.” Jacobs v.

City of W. Palm Beach, No. 9:14-CV-80964-Rosenberg/Bran, 2015 U.S.

Dist. LEXIS 104491, at *7 (S.D. Fla. Aug. 10, 2015); see, e.g.,

Rondon v. Home Nurse Corp., No. 21-20857-Civ-Scola, 2021 U.S. Dist.

LEXIS 156544, at *11 (S.D. Fla. Aug. 18, 2021) (citing Solliday v.

Fed. Officers, 413 F. App'x 206, 207 (11th Cir. 2011) (The Court

notes that "[c]onclusory, uncorroborated allegations by a

plaintiff in a affidavit or deposition will not create an issue of

fact for trial to defeat a well supported summary judgment

motion.")); Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)

(a mere "scintilla" of evidence is insufficient to defeat a motion

for summary judgment). Defendant is therefore entitled to summary

judgment that he did not cause destruction/theft of Plaintiff’s

property.

Defendant also argues that Plaintiff’s attempt to hold him

liable for the actions of other unnamed officers in a supervisory

capacity must also fail. (Doc. #51, p. 14.) Defendant asserts that

Plaintiff has not provided any evidence that Defendant was acting

in a supervisory capacity over officers who may have damaged/stolen

Plaintiff’s property. (Id.; Doc. #51-1, ¶ 34.)

"It is well established that § 1983 claims may not be brought

against supervisory officials on the basis of vicarious liability

or respondeat superior." Coleman v. Bowden, 797 F. App'x 422, 427

(11th Cir. 2019) (citing Keating v. City of Miami, 598 F.3d 753,

762 (11th Cir. 2010) (citation omitted)). Rather, “[a] supervisor

may be liable under § 1983 only if [he] personally participates in

the alleged constitutional violation or when there is a causal

connection between the actions of the supervising official and the

alleged constitutional violation." Id. (citing Keating, 598 F.3d

at 762) (internal quotations omitted)). The causal connection can

be established by showing that (1) the supervisor had notice of a

history of widespread abuse, which he neglected to correct; (2)

the supervisor implemented a custom or policy that resulted in

deliberate indifference to constitutional rights; or (3) when the

facts support an "inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates would

act unlawfully and failed to stop them from doing so." Dickinson

v. Cochran, 833 F. App'x 268, 272 (11th Cir. 2020) (citing Cottone

v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (quotation marks

omitted)). This "standard by which a supervisor is held liable in

his individual capacity for the actions of a subordinate is

extremely rigorous." Dickinson, 833 F. App'x at 272 (citing Keith

v. DeKalb Cnty., Ga., 749 F.3d 1034, 1048 (11th Cir. 2014)

(alterations adopted and quotations omitted)).

Here, Plaintiff has not alleged or provided any evidence

showing that Defendant was a supervisor or acted in this capacity

during the July 31, 2015 search. Furthermore, Plaintiff has not

satisfied the extremely rigorous standard by presenting facts or

evidence from which the Court could infer a history of

unconstitutional conduct, implementation of customs or policies

that caused a violation of Plaintiff’s Fourth Amendment rights, or

that Defendant directed other FMPD officers to damage or destroy

Plaintiff’s property. See Dickinson, 833 F. App'x at 272.

Defendant is entitled to summary judgment as to this portion of

the claim.

(2) Destruction of Plaintiff’s Property

Next, Defendant argues that to the extent Plaintiff can show

any damage to his property, Plaintiff cannot show that the damage

rose to the level necessary for encroachment upon his

constitutional rights. (Doc. #51, pp. 16, 22-23.) “The destruction

of property does not necessarily violate the Fourth Amendment,"

Simmons, 2017 U.S. Dist. LEXIS 232198, at *16 (citing Williams v.

Alford, 647 F. Supp. 1386, 1392 (M.D. Ala. 1986)), because

"officers executing search warrants on occasion must damage

property in order to perform their duty." Dalia, 441 U.S. at 258.

However, when destruction becomes “excessive or unnecessary” it

crosses constitutional boundaries. See United States v. Ramirez,

523 U.S. 65, 71 (1998); see also Pena v. Marcus, 715 F. App'x 981,

985 (11th Cir. 2017). “To determine whether officers damaged

property in violation of the Fourth Amendment, courts examine the

reasonableness of the officers' actions.” Pena, 715 F. App’x at

986 (citing Ramirez, 523 U.S. at 71-72). "The reasonableness of

the damage must be evaluated with reference to the target of the

search, such as a more invasive contraband search.” Jackson v.

Suffolk Cnty., 87 F. Supp. 3d 386, 401-02 (E.D.N.Y. 2015)

(citations omitted).

Plaintiff did not present any tangible evidence of the

purported property destruction, i.e., photographs of damaged

furniture, or receipts for repair costs of furniture or for the

purchase of new furniture.9 The only evidence before the Court is

9 Defendant provided photographs that he attests were taken

during the execution of the execution of the search warrant for

Plaintiff’s apartment. (Doc. #51-1, ¶¶ 28, 36.) None of the

photographs show the damage complained of by Plaintiff. See (Doc.

#51-7.)

somewhat contradictory deposition testimony. Specifically,

Plaintiff testified that during the search Defendant “taunted” him

by “throwing cat shit all over [his] . . . sofa,” Defendant “tore

up [his] bed,” and “tore up all [of his 300] CDs.” (Doc. #51-11,

pp. 9-11.) Plaintiff’s fiancé testified that their sofa had two

holes and it was flipped over, that the bed rails for one of the

beds were broken, and that cat litter was “everywhere.” (Doc. #51-

12, pp. 5-6.) Plaintiff’s son, on the other hand, deposed that the

sofa was not permanently damaged (i.e., it did not have holes),

and that the bed just had to be put back together. (Doc. #51-13,

p. 8.) Ms. Caesar stated that she did not see any holes in the

sofa, but in general the apartment was “a mess,” and that all the

furniture was turned over, the cat litter box contents were turned

over on the floor (but was not poured onto the sofa), and one of

the bed rails was bent and/or broken. (Doc. #51-14, pp. 6-7.)

Viewed in the light most favorable to Plaintiff, the

contradictory testimony demonstrates that Plaintiff’s apartment

was in disarray, the furniture was turned over, cat litter was

scattered about on the floor, and a bed rail was bent. This does

not justify an inference that the damage was excessive or

unnecessary. See, e.g., Alford, 647 F. Supp. at 1392 (where holes

were knocked in sheetrock, stereo was broken, guns were damaged,

trash dumped out of a trash can, and the “house was left in

substantial disarray,” the Court found the damage was minimal and

did not violate any constitutional right); DeSpain v. Louisville

Metro. Gov't, No. 3:14-CV-P602-CHB, 2021 U.S. Dist. LEXIS 156887,

at *15 (W.D. Ky. Aug. 19, 2021)(on summary judgment concluding

that as a matter of law the property damage was reasonable where

windows were knocked out and sofa cushions were torn); Chumley v.

Miami Cnty., Ohio, No. 3:14-CV-16, 2015 U.S. Dist. LEXIS 24286,

2015 WL 859570, at *10 (S.D. Ohio Feb. 27, 2015) (finding on

summary judgment that as a matter of law, emptying closets, dumping

items on bed, and leaving house in disarray did not amount to a

constitutional violation).

The valid and broad search warrant, authorized officers to

find an array of items related to the manufacturing, distribution,

and ingestion of cocaine, some of which are small and easy to hide

and difficult to find (i.e., drug paraphernalia, papers, money,

keys, weapons). (Doc. #51-2, p. 3.) Because “[n]arcotics, by their

nature, are incredibly easy to hide and can be hidden virtually

anywhere, Vale v. Louisiana, 399 U.S. 30, 34 (1970), searches must

necessarily be intrusive.” Alford, 647 F. Supp. at 1393. Since

Defendant, and the other officers, were looking for evidence

related to narcotics, it was not unreasonable for the law

enforcement officers to believe that a search of Plaintiff’s

apartment, including the furniture and other belongings within the

apartment, may need to be thorough to find evidence of narcotics

possession or sales. See, e.g., California v. Carney, 471 U.S.

386, 388 (1985) (drugs found in cupboards and refrigerator); United

States v. Washington, 2012 U.S. Dist. LEXIS 119203, 2012 WL

3638227, *7 (E.D. Cal. Aug. 22, 2012) (noting that drug dealers

often hide contraband throughout their residences). United States

v. Davis, 199 U.S. App. D.C. 95, 617 F.2d 677, 696

(1979)(“Narcotics in particular may be hidden in very small places,

so an effective search in this case would require a painstaking

examination of most of the property in [plaintiff's] house.”).

Accordingly, the evidence supports the conclusion that the alleged

property damage as a matter of law “does not state a violation of

constitutional magnitude” given the nature of the search. Alford,

647 F. Supp. at 1392.

D. Unlawful Arrest Without Just Cause

Plaintiff alleges that Defendant arrested him without just

cause when Defendant placed him in handcuffs “even though there

were no drugs on [his] person nor any videos of [his] home

selling.” (Doc. #20, p. 2.)

“One of the [Fourth] Amendment's protections is the right to

be free from arrest without probable cause.” Barnett v. Macarthur,

956 F.3d 1291, 1296 (11th Cir. 2020). “Probable cause exists when

‘an arrest is objectively reasonable based on the totality of the

circumstances.’" Id. (citing Kingsland v. City of Miami, 382 F.3d

1220, 1232 (11th Cir. 2004)). "This standard is met when the facts

and circumstances within the officer's knowledge, of which he or

she has reasonably trustworthy information, would cause a prudent

person to believe, under the circumstances shown, that the suspect

has committed, is committing, or is about to commit an offense."

Id. (citation and internal quotation marks omitted). In other

words, probable cause to arrest "requires only a probability or

substantial chance of criminal activity, not an actual showing of

such activity." D.C. v. Wesby, 138 S. Ct. 577, 586 (2018) (citation

and internal quotation marks omitted). “Probable cause constitutes

an absolute bar to § 1983 claims alleging false arrest.” Khoury v.

Miami-Dade Cnty. Sch. Bd., 29 Fla. L. Weekly Fed. C6 (U.S. 11th

Cir. July 7, 2021) (citing Henley v. Payne, 945 F.3d 1320, 1329

n.2 (11th Cir. 2019)).

In this case, the video evidence shows that Plaintiff did not

have actual possession of the marijuana found in the bedroom from

which Plaintiff was removed. (Doc. #51-1, ¶¶ 25-27; Doc. #51-6.)

Defendant concedes that this is true,10 but argues that he had

10 Defendant states that the search warrant for Plaintiff’s

apartment was executed to find evidence of the possession, sale,

manufacture, or distribution of cocaine. (Doc. #51, p. 17; Doc.

#51-2, p. 3.) During the search, however, Defendant saw in “plain

view” what he suspected be marijuana. (Doc. #51, ¶¶ 25-27.)

Defendant argues that according to the “plain view” doctrine, he

had a lawful right to seize the marijuana. (Doc. #51, p. 18.) The

Court agrees. As the Court previously found, Defendant was in

possession of a valid search warrant for Plaintiff’s Fort Myers

residence, and a video of the search undisputedly shows that

Defendant saw in plain view a bag that provided the incriminating

character of marijuana, which Defendant avers was immediately

apparent to him based on his training and experience. (Doc. #51,

¶¶ 25-27; Doc. #51-6.) See United States v. Ragin, No. 16-20124-

probable cause to arrest Plaintiff based on “constructive

possession” of marijuana, instead of actual possession. (Doc. #51,

p. 18, citing Norris v. Williams, No. 3:16-cv-806-J-39PDB, 2017

U.S. Dist. LEXIS 224672, at *9 (M.D. Fla. Sep. 5, 2017)).

Constructive possession of contraband can provide probable

cause to lawfully arrest a suspect. See United States v. Davis,

345 F. App’x 477, 478-79 (11th Cir.2009). “The Eleventh Circuit

has defined constructive possession as ‘the knowing exercise of,

or the knowing power or right to exercise, dominion and control

over the proscribed substance.’" Raymond v. United States, No. 16-

CIV-20013-KING, 2017 U.S. Dist. LEXIS 8966, at *42 (S.D. Fla. Jan.

20, 2017) (citing United States v. Glasgow, 658 F.2d 1036, 1043

(5th Cir. Unit B 1981)). “Constructive possession . . . may be

proven through circumstantial evidence that shows ownership,

dominion, or control over the drugs or the premises where the

substance is located.” Raymond, 2017 U.S. Dist. LEXIS 8966, at *42

CR-UNGARO/OTAZO-REYES, 2016 U.S. Dist. LEXIS 71440, at *1 (S.D.

Fla. May 2, 2016) (“The plain view doctrine allows a warrantless

seizure where (1) an officer was lawfully located in a place from

which a seized object could be plainly viewed and has a lawful

right of access to the object itself; and (2) the incriminating

character of the item is immediately apparent.”) Plaintiff has not

alleged the marijuana was unlawfully seized, and there are no facts

or contrary evidence to show the seizure was unlawful.

(S.D. Fla. Jan. 20, 2017) (citing United States v. Poole, 878 F.2d

1389, 1392 (11th Cir.1989)).

Here, Plaintiff does not dispute that Defendant searched an

apartment on July 31, 2015 that was “[his] home,” and the

uncontroverted evidence establishes that Plaintiff was in the

bedroom prior to the commencement of the search and that a bag of

marijuana was located in the bedroom, within arm’s reach next to

the bed where Plaintiff was found. (Doc. #20, p. 2; Doc. #51-1,

¶¶ 25, 27; Doc. #51-6.) These undisputed facts and evidence are

sufficient to circumstantially demonstrate that Plaintiff

exercised or had the power to exercise dominion and control over

the marijuana, and were sufficient to provide Defendant with

probable cause for Plaintiff’s arrest for possessing marijuana in

violation of § 893.13(6b), Fla. Stat. (Doc. #51-8, pp. 1-2.) See

Norris, 2017 U.S. Dist. LEXIS 224672, at *9-11 (constructive

possession existed where drugs were found in a home where the

plaintiff resided with his mother, and were located in the

plaintiff’s bedroom where he was with his friends just prior to

the search); see also United States v. Poole, 878 F.2d 1389, 1391

(11th Cir. 1989) ("[A] person who owns or exercises dominion and

control over a . . . residence in which contraband is concealed

may be deemed to be in constructive possession of the contraband

. . . ."). The Court therefore finds that Defendant had probable

cause to arrest Plaintiff, and Plaintiff’s Fourth Amendment rights

were not infringed upon.

E. Qualified Immunity

Finally, Defendant argues that his actions during the July

31, 2015 search are otherwise protected by qualified immunity.11

(Doc. #51, pp. 19-24.) Qualified immunity is an affirmative defense

which protects government officials sued in their individual

capacities from liability when: (1) they act within the scope of

their discretionary authority, and (2) their conduct “does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known." Wade v. United States,

No. 20-11962, 2021 U.S. App. LEXIS 27999, at *15 (11th Cir. Sep.

17, 2021) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“To invoke qualified immunity, a public official must first

establish that he was acting within the scope of his discretionary

authority when the challenged action occurred.” Sosa v. Martin

Cnty., No. 20-12781, 2021 U.S. App. LEXIS 28401, at *10 (11th Cir.

Sep. 20, 2021) (citing Maddox v. Stephens, 727 F.3d 1109, 1120

(11th Cir. 2013). “When we speak of ‘discretionary authority,’ we

mean all actions the official took (1) in performing his duties

and (2) in the scope of his authority.” Id. (citing Jordan v. Doe,

11 Although Plaintiff has not argued whether qualified

immunity is appropriate, the Court will address Defendant’s

argument in support thereof.

38 F.3d 1559, 1566 (11th Cir. 1994)). If the defendant was not

acting within his discretionary authority, he is ineligible for

qualified immunity. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002).

Here, the uncontroverted evidence shows that Defendant

executed a valid search warrant and arrested Plaintiff, both of

which fall within an officer’s duties. See, e.g., Pena, 715 F.

App'x at 985 (executing a search warrant is within deputies'

discretionary functions); Sampson v. City of Brunswick, 549 F.

App'x 858, 860 (11th Cir. 2013); (detaining plaintiffs and

executing search warrant are enforcement officer’s discretionary

duties); Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir.

2004) (finding a sheriff’s deputy performed a discretionary

function by making an arrest). Moreover, even though Plaintiff

has presented no factual allegations to challenge whether

Defendant was acting within his discretionary authority, any such

challenge would be unavailing; it is clear that performing searches

and making arrests are legitimate job-related functions, within

the power of these law enforcement bodies. See, e.g., Pair v. City

of Parker, Fla., Police Dept., 383 F. App’x 835, 839 (11th Cir.

2010)(finding that Florida law does not prohibit a city law

enforcement officer from obtaining a warrant from a judge and

executing the warrant, along with making an arrest); Thorn v.

Randall, No. 8:14-cv-862-T-36MAP, 2015 U.S. Dist. LEXIS 77842, at

*11 (M.D. Fla. June 16, 2015)(finding that the execution of a

search warrant was within the discretionary authority of a city

police officer).

Because Defendant was acting within the scope of his

discretionary authority, the burden shifts to Plaintiff to

demonstrate that Defendant is not entitled to qualified immunity.

See Sosa, 2021 U.S. App. LEXIS 28401, at *11. “First, []he must

establish that the defendant violated a constitutional right.

Second, he must demonstrate that the violated right was 'clearly

established.’" Norris v. Hicks, 855 F. App'x 515, 521 (11th Cir.

2021)(citations and quotations omitted). “[W]hether an official

protected by qualified immunity may be held personally liable for

an allegedly unlawful official action generally turns on the

'objective legal reasonableness' of the action, assessed in light

of the legal rules that were 'clearly established' at the time it

was taken.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012).

As discussed above, there are no genuine issues of material

fact in this case to preclude summary judgment as to whether

Plaintiff’s constitutional rights were violated under the Fourth

Amendment. The Court has found that Defendant obtained a valid

search warrant from a neutral judge and lawfully executed the

search warrant on July 31, 2015, when Defendant (and other FMPD

officers) entered and searched Plaintiff’s apartment for evidence

relating to the possession and sale of cocaine. See Messerschmidt

v. Millender, 565 U.S. 535, 546 (2012) (“Where the alleged Fourth

Amendment violation involves a search or seizure pursuant to a

warrant, the fact that a neutral magistrate has issued a warrant

is the clearest indication that the officers acted in an

objectively reasonable manner or, as we have sometimes put it, in

“objective good faith.”).

Similarly, the Court found Plaintiff could not prove any

Fourth Amendment violation concerning his allegation that

Defendant destroyed his property since he (and other witnesses)

did not see Defendant’s actions within the apartment, nor did

Plaintiff provide an evidence to establish that the alleged damage

was excessive or unnecessary such that a constitutional violation

occurred. See Alford, 647 F. Supp. at 1391 (no constitutional

violation was found where house was in disarray, trash was on the

floor, damage occurred to the plaintiff’s stereo and gun, and holes

were in the wall).

Finally, the Court found that Defendant had probable cause to

arrest Plaintiff based on Plaintiff’s dominion and control over

the marijuana that was in plain view and in arm’s reach next to

the bed where Plaintiff was located prior to commencement of the

search. Thus, Plaintiff has not met his burden in showing that

Defendant violated his constitutional rights in making an arrest.

Defendant’s request for summary judgment is granted and he is

entitled to the shield of qualified immunity concerning all of

Plaintiff’s claims.

Accordingly, it is now

ORDERED:

Defendant Wolfgang Daniel’s Motion for Summary Judgment (Doc.

#51) is GRANTED. The Clerk shall enter judgment in favor of

Defendant.

DONE AND ORDERED at Fort Myers, Florida, this Ath day of

October, 2021.

— Ap

VAAA D Z~ DW

J9GHN E. STEELE

SHYIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record