# Faile v. City of Leesburg, FL

> District Court, M.D. Florida · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10112599

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 31, 2023
- **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/10112599

## How later opinions describe it (automated extraction)

- explaining that “vulgar or indecen manner’... must be construed as necessarily relating to a lascivious □□□□□□□□□□ of those private parts of a person which common propriety requires to be customarily kept covered in the presence of others”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
BILLY L. FAILE, JR.,
Plaintiff,
Vv. Case No. 5:22-cv-116-JA-PRL
CITY OF LEESBURG, FL, LINNA
HART, and ALLEN CARTER,
Defendants.

ORDER
This civil rights case is before the Court on the Motion to Dismiss (Doc
38) filed by Defendant Linna Hart and the Motion to Dismiss/Strike (Doc. 43
filed by Defendants City of Leesburg and Allen Carter. The assigned Unitec
States Magistrate Judge has submitted a Report (Doc. 49) recommending tha
both motions be granted and that all claims in the Amended Complaint (Doc
30) be dismissed. Plaintiff, Billy Faile, Jr., has filed Objections (Doc. 52) to the
Report, and Defendant Hart—but neither the City nor Defendant Carter—ha:
filed a Response (Doc. 53) to those Objections:
After review of the record, including consideration of the Objections filec
by Faile and the Response filed by Hart, the Court agrees with some of the
recommendations in the Report but disagrees with others. As explained below
both motions to dismiss will be granted in part and denied in part.

I, Background!
Faile filed this action after an April 3, 2020 encounter with □□□□□□□
Leesburg police officer—and Carter—a police sergeant and Hart’s supervisor—
at a rental property that Faile manages. On that date, Faile was living in his
office at the property. (Am. Compl., Doc. 30, 4 15). That afternoon, Faile had
an altercation with the tenant and her boyfriend during which the boyfriend
pushed Faile to the ground. (Id. §[ 23). As Faile walked away, he “exposed a
small portion of skin on the right side of his lower back and approximately one
to two inches... of his right upper buttocks,” (id. 25), slapped the exposed
area, (Doc. 30-1 at 19), and told the boyfriend, “[K]iss my ass,” (id.).
After the altercation, both the tenant and Faile contacted the Leesburg
Police Department, and Hart and Carter responded to the scene. (Id. | 27-
28). The tenant and her boyfriend informed Carter “that they had a video
recording of Faile exposing his buttocks and possibly exposing his genitalia.”
(id. § 31). Both Carter and Hart viewed the tenant’s video while they were at
the property. (Id. § 43; see also Disciplinary Action Form, Doc. 30-1 at 14
(stating that both Hart and Carter “watched the video on scene”)). After viewing

1 The facts in the Background section are taken from the Amended Complaint
(Doc. 30) and the attachments thereto (Doc. 30-1). At the motion-to-dismiss stage of
the case, the Court must “accept[] the [Amended Complaint]’s allegations as true and
constru[e] them in the light most favorable to the plaintiff.” Gundy v. City of
Jacksonville, 50 F.4th 60, 69 (11th Cir. 2022) (quoting United States v. Henco Holding
Corp., 985 F.3d 1290, 1296 (11th Cir. 2021)).

the video, Hart “stated that she saw the exposure of sexual organs,” and when
Carter watched it he “concurred with [Hart]’s assessment.” (Doc. 30-1 at 14).
After Hart told Faile he could leave the property, Faile got into his truck.
(Am. Compl. { 30, 32). But Carter ordered Faile to stop and told him he was
under arrest. (/d. {| 32-33). Carter then forcefully pulled Faile from the truck,
(id. {| 34), handcuffed him, and placed him in Hart’s patrol car, (id. 4] 42). Hart
transported Faile to the police department, where Carter informed him he was
being charged with exposure of sexual organs—a violation of section 800.03,
Florida Statutes. Ud. J 49, 51). After arresting Faile, Carter “seized Faile’s
truck” and had it towed away from the property. (Id. {J 45—46).
Faile remained at the jail until 8:00 p.m. that evening, when he bonded
out. (Ud. 463). Three days later, the State Attorney’s Office filed an
Announcement of No Information on the charge of exposure of sexual organs,
and a week after that the Florida Department of Law Enforcement
administratively expunged Faile’s arrest. (Id. {{ 67, 71; Doc. 30-1 at 12). Faile
was not able to retrieve his truck from the tow company until April 6. (Am.
Compl. { 69). And Hart and Carter told Faile he could not return to the property
because of a “no victim contact” order. (Id. § 64).
In a sworn report written on the day of the incident, Hart stated that she
viewed the tenant’s video and that in it she “observed [Faile] pulling his pants
down, while bending over showing his sexual organs and buttocks as he

walked ... away from the victim.” (Doc. 30-1 at 7). The report concludes that
Faile “did commit the unlawful offense of F.S.S. 800.03 Exposure of sexual
organs by exposing his sexual organs in front of the victim and her boyfriend.”
(id. at 8). However, as stated in a Leesburg Police Department Disciplinary
Action Form that is attached to the Amended Complaint, “[u]pon review of the
evidence (video) it was apparent that [Faile] did not expose his genitals.” (Doc.
30-1 at 14). Carter received a written reprimand based on the incident, (see id.),
and Hart allegedly “resigned in lieu of termination due to her direct involvement
in the arrest,” (Am. Compl. § 81).
Faile filed this lawsuit in March 2022. (See Doc. 1). The Amended
Complaint alleges—pursuant to 42 U.S.C. § 1983—ten violations of the Fourth
Amendment,? and it also asserts seven claims under Florida law, for a total of
seventeen claims.? (Doc. 30). Defendants move to dismiss all claims, and the

2 The Fourth Amendment is applicable to the states and their subdivisions
through the Fourteenth Amendment. See, e.g., City of Ontario v. Quon, 560 U.S. 746,
750 (2010).
3 The Fourth Amendment claims are: unlawful arrest against Carter (Count I)
and Hart (Count II); excessive force against Carter (Count III); malicious prosecution
against Carter and Hart (Count IV); unlawful seizure of personal property against
Carter (Count V); unlawful seizure of real property against Carter and Hart (Count
VI); supervisory liability against Carter (Count VII); failure to train against the City
(Count VIII); unlawful policy or practice against the City (Count IX); and negligent
hiring and retention against the City (Count X). The state law claims are: false arrest
against Carter (Count XI) and Hart (Count XII); battery against Carter and Hart
(Count XIII); malicious prosecution against Carter and Hart (Count XIV); intentional
infliction of emotional distress against Carter and Hart (Count XV); negligence against
the City (Count XVI); and “official policy, practice or custom” against the City (Count
XVII).

assigned magistrate judge recommends that the motions be granted as to al
counts and that Faile’s demands for attorney’s fees on the state law claims anc
for punitive damages against the City be stricken. (See Doc. 49).
In his Objections to the magistrate judge’s Report, Faile states that he
does not object to the dismissal of: Count III (§ 1983 excessive force □□□□□□□
Carter), (see Doc. 52 at 14); Count IV (§ 1983 malicious prosecution against □□□□
Carter and Hart), (see id. at 11); Count VI (§ 1983 seizure of real property
against Hart and Carter‘), (see id.); Count VIII (§ 1983 failure to train against
the City) (see id. at 16); Count IX (§ 1983 policy/practice/custom against the
City), (see id.); Count XIII (Florida law battery against both Carter and Hart)
(see id. at 13); Count XIV (Florida law malicious prosecution against both □□□□□□
and Hart), (see id.); Count XV (Florida law intentional infliction of emotiona.
distress against both Carter and Hart), (see id. at 14); or Count XVI (Florida law
negligence against the City), (see id. at 17). These counts thus will be dismissec
without being discussed in this Order. However, Faile does object to the
recommendation that Counts I, II, V, VII, X, XI, XII, and XVII be dismissed ané
to the recommendations to strike his demands for attorney’s fees on the state
law claims and for punitive damages against the City. The Court will address

4 Although Faile does not object to dismissal of Count VI against Hart anc
Carter, he requests leave to amend to restate this claim against the correct party. (See
Doc. 52 at 11).

these claims as well as Faile’s request to replead Count VI.
II. Discussion
A. Claims Against Hart and Carter
1. False Arrest Under § 1983 and Florida Law (Counts I
and XI-Carter; Counts II and XII-Hart)
Faile objects to the Report’s recommendation that his federal and stat
false arrest claims (Counts I, IJ, XI, and XII) be dismissed. Viewing th
Amended Complaint and its attachments in the light most favorable to Faile
the Court concludes that these claims are adequately pleaded and surviv
Defendants’ motions to dismiss. These counts will thus be permitted to proceed
On the federal false arrest claims (Counts I and II), the Court agrees witl
the Report’s conclusion that Hart and Carter were acting within thei
discretionary authority at the time of the events at issue, and thus the □□□□□□□
shifted to Faile to overcome Hart’s and Carter’s assertions of qualifie:
immunity. (See Doc. 49 at 8). But when the Amended Complaint and it:
attachments are viewed in the light most favorable to Faile, Faile’s allegation:
are sufficient to overcome qualified immunity at this stage of the case.
It has long been clearly established that an arrest without probable caus
violates the Fourth Amendment right to be free from unreasonable seizures
See, e.g., Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). Anc
“falsifying facts to establish probable cause is patently unconstitutional.” Id
Although arguable probable cause is sufficient for qualified immunity to attach

Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010), when Faile’
allegations are accepted as true Hart and Carter did not have even □□□□□□□
probable cause to arrest Faile for exposure of sexual organs under □□□□□□□
800.03, Florida Statutes.5
“Arguable probable cause exists where ‘reasonable officers in the sam
circumstances and possessing the same knowledge as the Defendants □□□□
have believed that probable cause existed to arrest Plaintiff.” Id. (quotin;
Kingsland, 382 F.3d at 1232). “This standard recognizes that law enforcemen
officers may make reasonable but mistaken judgments regarding □□□□□□□□
cause but does not shield officers who unreasonably conclude that probabl
cause exists.” Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007).
Here, Faile contends that Hart and Carter viewed the tenant’s video
claimed that the video showed him exposing his sexual organs (even though i
did not), and arrested Faile on that basis. (See, e.g., Compl. 9 88, 96; Doc. 30
lat 3 (statement in supplemental police report that Faile was arrested because
among other things, “Officer Hart confirmed that she viewed the video and sav
what was reported by” the tenant and her boyfriend)). The attachments to the
Amended Complaint support Faile’s assertion that the video did not in fact show

5 Although it is enough for qualified immunity if arguable probable cause existec
for any offense—not necessarily the offense for which a party is arrested—no othe:
offense has been identified for which arguable probable cause was allegedly present.

sexual organs, which would mean that Hart and Carter not only lacked probable
cause but also lied about the facts supposedly supporting probable cause. If, as
alleged by Faile, the video that the officers viewed did not show sexual organs
Hart and Carter did not have probable cause or even arguable probable cause
to arrest Faile.
To the extent Carter and Hart attempt to rely on the statement made tc
Carter by the tenant and her boyfriend that the video showed Faile “possibly
exposing his genitalia,” (Am. Compl. § 30), such reliance is foreclosed under the
circumstances of this case. That statement cannot support arguable probable
cause here because Faile alleges that Hart and Carter viewed the videc
themselves. Thus, they knew whether it showed Faile exposing his genitalia
and—construing the Amended Complaint in Faile’s favor—it did not.
Hart and Carter do not assert that they relied on an exposed buttock or
the video as the requisite “sexual organ” for probable cause to arrest Faile, not
do they argue with any vigor that an exposed buttock would be sufficient by
itself to support arguable probable cause for the offense of exposure of □□□□□□
organs under section 800.03, Florida Statutes. And even if they made this
argument, that assertion would be without merit. A belief by an officer that
section 800.03 is violated by mere exposure of “one to two inches” of “uppex
buttocks,” (Am. Compl. § 25), would not be objectively reasonable. See, e.g., G
& B of Jacksonville, Inc. v. State Dep’t of Bus. Regul., 362 So. 2d 951, 956 (Fla

1st DCA 1978) “(No esoteric discussion is required in order to define or describs
‘sexual organs,’ nor the location thereof on the human anatomy. Suffice [it] □□
say, that exposure of the pubic hair or buttocks or legs (or all three) do no
constitute exposure of the sexual organ.”).
Moreover, section 800.03 does not proscribe all exposure but only exposur
“in a vulgar or indecent manner,” § 800.03(1)(a), Fla. Stat., which courts have
interpreted as requiring a “lewd or lascivious” element. See Hoffman v. Carson
250 So. 2d 891, 893 (Fla. 1971) (explaining that “vulgar or indecen
manner’... must be construed as necessarily relating to a lascivious □□□□□□□□□□
of those private parts of a person which common propriety requires to be
customarily kept covered in the presence of others”); accord Goodmakers v
State, 450 So. 2d 888, 891 (Fla. 2d DCA 1984) (“[I]n order for there to be <
violation of section 800.03, there must be, coupled with mere nudity, ‘lascivious
exposition or exhibition of the defendant’s sexual organs. The terms ‘lascivious
and ‘lewd’ mean that the perpetrator’s exposition or exhibition involves ‘ar
unlawful indulgence in lust, eager for sexual indulgence.” (quoting Chesebrougl
v. State, 255 So. 2d 675, 677 (Fla. 1971))); United States v. A Naked Persor
Issued Notice of Violation No. P419490, 841 F. Supp. 1153, 1155 (M.D. Fla. 1993
(“The conduct of the Defendants here, as stipulated, is public nudity—no more
no less. Based on the Florida Supreme Court’s interpretation of Sec. 800.03
such conduct does not violate the statute.” (citing Hoffman)).

Hart’s assertions that she cannot be held liable because she did no’
personally participate in Faile’s arrest are also rejected. Although Hart did no
complete her arrest affidavit—in which she allegedly made false statements—
until after Faile was arrested, the fact that those statements are in a post-arres
affidavit does not mean that they were not also made at the scene or did no
form the basis for the arrest. Indeed, this is what Faile alleges and what the
Discipline Report suggests. (See Am. Compl. { 96 (alleging that Faile “woulc
not have been arrested but for [Hart]’s knowingly false statement that the videc
she viewed showed [Faile] ‘pulling his pants down while bending over showings
his sexual organs”); Doc. 30-1 at 3 (statement in supplemental police report that
Faile was arrested because, among other things, “Officer Hart confirmed tha’
she viewed the video and saw what was reported by” the tenant and hei
boyfriend)).
Thus, construing the Amended Complaint and attachments in Faile’:
favor, qualified immunity does not apply at this stage of the case and Counts |
and II survive the motions to dismiss. The motions to dismiss the state law false
arrest claims (Counts XI and XII) similarly must be denied because at this stage
the Court cannot conclude that the officers had probable cause to arrest Faile.
2. Seizure of Personal Property Under § 1983 (Count V-
Carter only)
Faile’s objection to the Report’s recommendation that Count V be

10

dismissed is well-taken. In this count, Faile alleges that Carter unreasonably
seized his truck in violation of the Fourth Amendment when Carter had the
truck towed away from the property after Faile’s arrest. In recommending
dismissal of this count, the Report cites cases regarding police authority “to seize
and remove from the streets vehicles impeding traffic or threatening public
safety,” (Doc. 49 at 24 (quoting South Dakota v. Opperman, 428 U.S. 364, □□□
(1976))), and then states that “the Amended Complaint alleges that Plaintif.
was in his car when he was arrested and may have been blocking a road,” (id
(citing Doc. 30-1 at 3)). But the document cited in the Report is not the Amendec
Complaint (Doc. 30); it is a supplemental police report apparently prepared by
Carter, (Doc. 30-1 at 3). That report does state that Faile’s vehicle “was parkec
in the middle of Depot Lane,” (id.), but the Amended Complaint alleges that the
truck was towed “from private property,” (Doc. 30 J 46).
At this stage of the case the Amended Complaint, its attachments, and all
reasonable inferences therefrom are to be construed in favor of Faile. See, e.g.
Gundy v. City of Jacksonville, 50 F.4th 60, 69 (11th Cir. 2022). Accepting as
true the allegation that the truck was towed from private property—indeed.
from property on which Faile was living—rather than being secured in place.
this claim of an unreasonable seizure is adequately stated. (See alsc
Disciplinary Action Form, Doc. 30-1 at 14 (stating that Carter “approved the
towing of [Faile’s] vehicle when it could have been parked and secured at the

11

scene on his property”)). Carter’s motion to dismiss Count V thus will be denied.
3. Seizure of Real Property Under § 1983 (Count VI—
Carter and Hart)
Although Faile does not object to the dismissal of Count VI—which alleges
unreasonable seizure of real property by Carter and Hart based on the “nc
victim contact” order—he requests leave to amend to replead this claim against
the appropriate party. This request will be granted.
4, Supervisory Liability Under § 1983 (Count ViI—Carter
only)
In Count VII, Faile alleges a Fourth Amendment claim against Carter as

a supervisor. (Am. Compl. 9 141-155). The Report recommends dismissing
this claim on the basis that the Amended Complaint fails to allege a viable claim
under the Fourth Amendment upon which supervisory liability could be based.
(See Doc. 49 at 24-25). Faile objects to this recommendation, and as noted
above, the Court disagrees with the Report’s conclusion on whether the
Amended Complaint states a plausible Fourth Amendment claim.
However, there are other problems with Count VII that require dismissal.
Count VII is a hodgepodge of allegations about the arrest, the “no victim contact’

12

order,® and the seizure of Faile’s truck.7 Some of the allegations seem to pertair
to actions by Carter apart from the actions of Hart, and some are duplicative o:
counts already alleged against Carter. It is not clear what kind of □□□□□□
Amendment violation Faile is seeking to hold Carter responsible for as ¢
supervisor.
Thus, the Court will dismiss Count VII, but that dismissal will be without
prejudice and with leave for Faile to replead this claim. In repleading, Faile
shall make clear what type of Fourth Amendment violation he is seeking to holc
Carter responsible for in his capacity as a supervisor, and he shall not include
superfluous allegations.
B. Claims Against the City
1, § 1983 (Monell) Negligent Hiring and Retention (Count
X)
Faile objects to the Report’s recommendation that the Court dismiss
Count X—a § 1983 claim against the City for “negligent hiring and retention.’
Faile urges that his allegations are sufficient to support this claim, and in the
alternative he requests leave to amend to replead it. (Doc. 52 at 16-17).
Count X does not state a viable § 1983 claim against the City based on its

6 The “no victim contact” order is the basis for Count VI, but Faile has conceded
that neither Hart nor Carter is responsible for that order and has conceded that
dismissal of Count VI against these two Defendants is appropriate, as recommended
in the magistrate judge’s Report.
7 Count V, which pertains to seizure of the truck, is alleged solely against □□□□□
and not Hart.

13

hiring or retention of Carter because the allegations do not rise to the level o
culpability required for such a claim. See generally Bd. of Cnty. Comm’rs o
Bryan Cnty. v. Brown, 520 U.S. 397, 415 (1997) (“In the broadest sense, ever}
injury is traceable to a hiring decision. . . . Congress did not intenc
municipalities to be held liable unless deliberate action attributable to □□□
municipality directly caused a deprivation of federal rights.”). Absen
“conscious disregard for a high risk that [the employee] would . . . □□□□□□□□ a
federally protected right,” a municipality cannot be held liable under § 198%
based on an employment decision. Id. at 415-16.
Thus, Count X is due to be dismissed. However, the Court will allow Fail
to replead this claim to attempt to satisfy the standard of Brown, including by
providing sufficient factual allegations to support such a theory.
2. Policy/Practice Under Florida Law (Count XVID)
The Report recommends that the Court dismiss Count XVII—titled “state
law claim official policy, practice or custom”—because “there is no □□□□□□□□
statutory or common law authority for this claim.” (Doc. 49 at 33). Faile object:
to this recommendation, asserting that “the City did not argue this issue anc
has waived any argument.” (Doc. 52 at 17). Alternatively, Faile requests leave
to amend this claim.
The City did argue for the dismissal of Count XVII along with Faile’:
§ 1983 Monell claims (Counts VIII, [X, and X). (See Doc. 43 at 25-27). Althougt

14

the Report recommends dismissal on a basis different than that raised by □□□
City, the Report is correct that the basis for Count XVII is unclear. This coun
refers to the City causing a deprivation of Faile’s Fourth Amendment rights anc
otherwise tracks—word for word—Count IX, Faile’s § 1983 Monell “policy
practice, or custom claim”—a claim that Faile concedes in his Objections, (see
Doc. 52 at 16).
In sum, like the magistrate judge, the Court cannot discern a basis unde:
Florida law for Count XVII. The Court will, however, grant Faile’s request
replead this claim.
C. Attorney’s Fees and Punitive Damages
Faile requests attorney’s fees in all seventeen counts of the Amendec
Complaint, including the state law claims. All Defendants move to dismiss 01
strike the attorney’s fee demands on the state law claims because there is nc
legal basis for such demands. The Report recommends granting the motion tc
strike the demands for fees. Faile objects to that recommendation, but he
provides absolutely no explanation for that objection. (See Doc. 52 at 17)
Because Faile has not identified a basis for his objection or for the demands □□□
attorney’s fees on his state law claims, those demands will be stricken.
Finally, the Report recommends striking the demands for punitive
damages against the City. (Doc. 49 at 33-34). Somewhat curiously, Faile both
objects to this recommendation and states that he “has not made any claims fot

15

punitive damages against the City; therefore, there is nothing to strike.” (Doc
52 at 18). Faile is correct that he did not include demands for punitive damage:
in any of his claims against the City. (See Am. Compl. at 23, 24, 26, 33, & 35)
Thus, there is no demand for punitive damages against the City that could be
stricken, and the City’s motion to strike on this point will be denied.’
III. Conclusion
Accordingly, it is ORDERED as follows:
1. The Motion to Dismiss (Doc. 38) filed by Defendant Linna Hart i:
GRANTED in part and DENIED in part. The motion is GRANTED as tc
Counts IV, VI, XIII, XIV, and XV. It is also granted as to the demands for
attorneys’ fees in the state law claims, which are hereby STRICKEN. The
motion is DENIED as to Counts II and XII.
2. The Motion to Dismiss/Strike (Doc. 48) filed by Defendants City o:
Leesburg and Allen Carter is GRANTED in part and DENIED in part. The
motion to dismiss is GRANTED as to Counts III, IV, VI, VII, VII, IX, X, XIII
XIV, XV, XVI, and XVII, and the motion to strike is GRANTED as to the
demands for attorney’s fees on the state law claims. The motion to dismiss is

8 In their joint motion, the City and Carter moved to dismiss the punitive
damages demands against not just the City but also “the officers” (though Hart has
her own counsel and has filed her own motion). (See Doc. 43 at 28-29). The Report
does not address the demands against Carter or Hart, and no objection has been filec
on that point. The Court finds no merit to the motion to strike the demands fox
punitive damages against the officers, and the motion will thus be denied.

16

DENIED as to Counts I, V, and XI, and the motion to strike the punitive
damages demands is DENIED.
3. Counts III, IV, VIII, [X,, XIII, XIV, XV, and XVI of the Amendec
Complaint (Doc. 30) are DISMISSED with prejudice. Counts VI, VII, X, anc
XVII of the Amended Complaint are DISMISSED without prejudice anc
with leave to replead.
4. Faile may file a second amended complaint on or before April 21
2023.
5. Except to the extent that it is expressly approved in this Order, the
Report and Recommendation (Doc. 49) is not adopted.
DONE and ORDERED on Mer 5 312 3098. —

United States District Judge
Copies furnished to:
United States Magistrate Judge
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112599. Public record. Not legal advice.