# Gary v. Fort Myers Police Department

> District Court, M.D. Florida · October 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10108603

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10108603

## How later opinions describe it (automated extraction)

- noting that drug dealers often hide contraband throughout their residences
- finding a sheriff’s deputy performed a discretionary function by making an arrest

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108603. Public record. Not legal advice.