Newcome v. Hernando County Sheriff's Office

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES R. NEWCOME and

UMAMA J. NEWCOME,

Plaintiffs,

v. Case No. 8:21-cv-2171-TPB-TGW

HERNANDO COUNTY

SHERIFF’S OFFICE, et al.,

Defendants.

________________________________/

ORDER DENYING PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT

AND GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court on the following motions:

“Plaintiff’s Motion for Summary Judgment Umaima

Newcome” (Doc. 90)

“Plaintiff’s Motion for Summary Judgment James

Newcome” (Doc. 91)

“Defendant Deputy Sheriff David Martin’s Motion for

Summary Judgment” (Doc. 92)

“Defendant Deputy Sheriff Troy Hyler’s Motion for

Summary Judgment” (Doc. 93)

“Motion for Summary Judgment on Behalf of Defendants,

Deputy Sheriffs Dustin Adkins, Jason Tippin, Brian

Schneider and Eric Burburan” (Doc. 94); and

“Motion for Summary Judgment on Behalf of Defendants,

Deputy Sheriffs Willard Brian Stephens, Seth Pardue,

Derik Deso, and Francis Ritchie” (Doc. 95).1

1 Plaintiffs filed the arrest reports and various SWAT reports, along with CD’s containing

audio and photographs. (Docs. 90-1; 90-2; 91-1; 91-2; 109). Defendants filed numerous

affidavits and depositions. (Docs. 96; 97; 98; 99; 100; 101; 102; 103; 104; 105; 106; 107; 108).

The parties filed responses in opposition (Docs. 111; 112; 113; 114; 115; 116; 117;

118; 119; 120; 121; 122; 123; 124; 125) and replies (Docs. 127; 128; 129; 130; 131;

132). The Court held a hearing to address this matter on May 14, 2023. (Doc. 139).

After reviewing the motion, responses, replies, court file, and the record, the Court

finds as follows:

Background

Plaintiffs James and Umama Newcome bring suit against numerous law

enforcement officers, in their individual capacities, following a SWAT-team raid on

their home conducted by deputies from the Hernando County Sheriff’s Office.

On September 14, 2018, Joseph Justen, a delivery driver for a local

pharmacy, was making a delivery to Plaintiffs’ neighbor. Mr. Justen’s brother,

Joshua Swisher, accompanied him on this delivery. While Mr. Swisher waited for

Mr. Justen to return, Mr. Newcome put a black handgun with a silver port in his

pocket and approached the vehicle, which Mr. Newcome believed to be suspicious.

Mr. Newcome asked Mr. Swisher to explain what he was doing and to identify

himself. According to Mr. Swisher, Mr. Newcome pulled the handgun out of his

right pocket, showed it to Mr. Swisher, and held it at his side pointing it towards

the ground. Mr. Newcome told Mr. Swisher that he had a concealed weapons

permit. When Mr. Swisher did not respond, Mr. Newcome again told Mr. Swisher

about his concealed weapons permit and explained he was there to protect his

neighbors. Mr. Newcome again asked Mr. Swisher to explain what he was doing

and to identify himself.

Next, without saying a word, Mr. Newcome reached in through the window of

the vehicle and grabbed Mr. Swisher’s Samsung Galaxy S8 cell phone (valued at

over $800) that was on Mr. Swisher’s lap. Mr. Newcome contends that he believed

the cell phone was a gun, and that he needed to disarm Mr. Swisher to protect his

neighbor. After taking Mr. Swisher’s cell phone, Mr. Newcome put his own

handgun back in his pocket. He then walked to the front door and handed his

neighbor the cell phone he had just taken from Mr. Swisher and asked the neighbor

to give the cell phone to Mr. Justen. Mr. Newcome walked back to Mr. Swisher,

who was still in the vehicle, and apologized, and again told him that he had a

concealed weapons permit before returning to his home. The neighbor gave the

phone to Mr. Justen, and then both he and Mr. Justen went to speak with Mr.

Swisher to find out what had happened. After Mr. Swisher explained his version of

what had transpired, the neighbor called 911.

Subsequently, Deputy Martin and Deputy Bruce Nichols of the Hernando

County Sheriff’s Office responded to the scene to investigate whether Mr. Newcome

had committed a crime. Based on its investigation, law enforcement would

eventually develop probable cause, or at least arguable probable cause, to believe

that Mr. Newcome committed an armed robbery of a conveyance.

According to the law enforcement officers, Mr. Newcome was not cooperative,

telling them that they were not allowed on his property and refusing to speak with

them. Plaintiffs themselves then began calling 911 with various complaints about

the law enforcement presence, among other things. Over the course of the night,

Mr. Newcome called 911 at least 10 times, and both Plaintiffs spoke with law

enforcement at various times, yet Plaintiffs refused to come out of their residence

and speak with officers that evening.

At some point during an ever deteriorating situation the Crisis Response

Team and the SWAT Team responded to the scene and took over responsibility.

They handled further negotiation attempts to get Plaintiffs to come out of the

residence. At around 1:07 a.m., the ten individual Defendants – deputies employed

by the Hernando County Sheriff’s Office – participated in various ways in a home

seizure, which included launching 10 shells containing nonlethal chemical agents

into Plaintiffs’ home, shattering three windows. The deputies did not have an

arrest warrant, but they claim that they had probable cause and exigent

circumstances to justify a warrantless home seizure.

Mr. Newcome came out of the residence first, showing his hands, walking

forward, and then lying on the ground. He was handcuffed by a deputy outside the

house. Mrs. Newcome then came out of the residence with hands raised, holding a

cordless phone in her right hand. She did not comply with orders to lie on the

ground, and she was taken down by a deputy and handcuffed outside the house.

Deputy Martin charged Mr. Newcome with armed burglary of a conveyance,

resisting an officer without violence, and misuse of 911 calls. He charged Mrs.

Newcome with resisting an officer without violence for failing to comply with law

enforcement orders to exit the residence. After Plaintiffs were arrested, a search

warrant was issued for their home – in fact, two separate search warrants were

applied for, issued, and executed.

Criminal proceedings were initiated against both Mr. and Mrs. Newcome. In

a letter dated January 8, 2019, Mrs. Newcome’s criminal defense attorney advised

her that the state attorney offered to drop or abandon the charge against her if she

completed 30 hours of community service. Mrs. Newcome followed this advice and

completed the community service hours, and the charge was dropped. Mr.

Newcome entered into and completed a pretrial intervention (“PTI”) program.

Plaintiffs subsequently filed suit in this court, alleging various violations of

their rights. (Doc. 1). Plaintiffs have sued the officers in their individual capacities.

Due to their pro se status, the Court granted numerous opportunities for Plaintiffs

to amend their complaint to correct deficiencies. (Docs. 46; 50; 59; 60). The

operative complaint is the second amended complaint filed on June 30, 2022,

although the Court dismissed two of those claims with prejudice and without leave

to amend. (Docs. 60; 65). As such, the pending claims are: Home Seizure by

Authority Against All Officers by Mrs. Newcome (Count 1); Home Seizure by Force

Against All Officers by Mrs. Newcome (Count 2); Excessive Use of Force

(Teargassing) Against All Officers by Mrs. Newcome (Count 3); Excessive Use of

Force (Physical Restraining) Against Deputy Tory Hyler by Mrs. Newcome (Count

4); False Arrest/Imprisonment Against Deputy David Martin by Mrs. Newcome

(Count 5); Malicious Prosecution Against Deputy David Martin by Mrs. Newcome

(Count 6); Home Seizure by Authority Against All Officers by Mr. Newcome (Count

7); Home Seizure by Force Against All Officers by Mr. Newcome (Count 8); and

Excessive Use of Force (Teargassing) Against All Officers by Mr. Newcome (Count

9). It should be noted that the Court has held at least two different hearings, in

person, and emphasized to Plaintiffs that cases of this nature are difficult even for

trained lawyers. Although the Court strongly urged them to retain counsel,

Plaintiffs have elected to proceed pro se.

Legal Standard

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary

judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of

material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no

genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1260 (11th Cir. 2004). When the moving party has discharged its burden, the

nonmoving party must then designate specific facts showing the existence of

genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or

evidence, the nonmoving party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the nonmoving party’s favor. Shotz v. City of

Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).

The standard for cross-motions for summary judgment is not different from

the standard applied when only one party moves for summary judgment. Am.

Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court

must consider each motion separately, resolving all reasonable inferences against

the party whose motion is under consideration. Id. “Cross-motions for summary

judgment will not, in themselves, warrant the court in granting summary judgment

unless one of the parties is entitled to judgment as a matter of law on facts that are

not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.

1984) (quoting Bricklayers Int’l Union, Local 15 v. Stuart Plastering Co., 512 F.2d

1017 (5th Cir. 1975)).

As Plaintiffs in this case are proceeding pro se, the Court more liberally

construes the pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018).

However, a pro se plaintiff must still conform to procedural rules, and the Court

does not have “license to act as de facto counsel” on behalf of a pro se plaintiff.2

United States v. Padgett, 917 F.3d 1312, 1317 (11th Cir. 2019).

Analysis

Plaintiffs’ Motions for Summary Judgment

At the outset, the Court notes that Plaintiffs elected not to conduct discovery,

apparently because they did not wish to incur the cost of depositions, among other

things. Although this was not a major issue when the claims were last addressed

by the Court at the motion to dismiss stage of the proceedings, Plaintiffs’ decision to

2 As noted, the Court advised Plaintiffs to retain counsel on numerous occasions, including

during two in-person hearings.

forgo discovery now makes it nearly impossible for them to establish any of their

claims or to rebut Defendants’ summary judgment arguments, which the defense

has supported with depositions, affidavits, and pinpoint citations.

Plaintiffs have submitted a few audio recordings and photographs, but really

nothing else. Plaintiffs primarily argue they are entitled to summary judgment

simply because Defendants denied all or most allegations of the operative

complaint, which Plaintiffs argue render all of Defendant’s assertions wholly

incredible. This type of summary judgment argument is nonsensical, bordering on

frivolous, even for a plaintiff proceeding pro se. Plaintiffs’ motions for summary

judgment are denied.

Defendants’ Motions for Summary Judgment

Counts 1, 2, 3, 7, 8, and 9

In this case, Plaintiffs assert numerous § 1983 claims against the individual

deputies based on the home seizure. In their respective motions, Defendants argue

that the undisputed facts show that Plaintiffs cannot establish their claims, and

that Defendants are entitled to qualified immunity.

The affidavits submitted by Defendants establish that Deputies Martin,

Hyler, Adkins, Tippin, Schneider, and Burburan did not participate in the

deployment of chemical agents. Plaintiffs have submitted no competing evidence.

The undisputed evidence therefore shows these Defendants did not personally

participate in the deployment of chemical agents, and the Court sees no basis to

hold them liable for the § 1983 claims based on the use of chemical agents in Counts

2, 3, 8, and 9. Plaintiffs also cannot identify which officers, if any, pointed firearms

at Plaintiffs. As such, the Court cannot find any basis to hold any deputy liable for

the § 1983 claims in Counts 1 and 7.

Affidavits provided by the defense show that Deputies Deso, Pardue, Ritchie,

and Stephens were not responsible for the decision to use force but only deployed

chemical agents after receiving an order to do so. Although this evidence was

presented by the defense itself (and not Plaintiffs), the Court will consider whether

the excessive force claims in Counts 2, 3, 8, and 9 can proceed against Deputies

Deso, Pardue, Ritchie, and Stephens because their personal involvement is known.

The Court notes that this analysis would also be applicable if Plaintiffs could

somehow assert substantive claims against Deputies Martin, Hyler, Adkins, Tippin,

Schneider, and Burburan based on personal participation in any of the events.3

“Section 1983 creates a private cause of action for deprivations of federal

rights by persons acting under color of state law.” Laster v. City of Tampa Police

Dept., 575 F. App’x 869, 872 (11th Cir. 2014); 42 U.S.C. § 1983. In § 1983 cases,

when a defendant raises the issue of qualified immunity and demonstrates that he

was acting within the scope of his discretionary authority, the plaintiff bears the

burden of overcoming that defense. See, e.g., Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002). A government official is completely protected from suit if his

conduct “does not violate clearly established statutory or constitutional rights of

3 The Court reiterates that Plaintiffs have not put forth any evidence – either affirmatively

or in opposition to Defendants’ summary judgment motions – to support their § 1983 claims

against Deputies Martin, Hyler, Adkins, Tippin, Schneider, and Burburan as to Counts 1,

2, 3, 7, 8, and 9.

which a reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340,

1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Importantly, “[t]he determination of whether a police officer’s actions were

constitutional must be undertaken from the perspective of a reasonable officer on

the scene under the same conditions, rather than with the 20/20 vision of hindsight,

as the former allows for proper appreciation of the fact that police officers are often

forced to make decisions about the amount of force that is necessary in situations

that are tense, uncertain, and rapidly evolving.” Smith v. LePage, No. 1:12-CV-

0740-AT, 2015 WL 13260394, at *1 (N.D. Ga. Mar. 31, 2015). A police officer will be

entitled to qualified immunity if an objectively reasonable officer in the same

circumstances could have believed that the police conduct was not excessive.

Vinyard, 311 F.3d at 1346 (citing Anderson v. Creighton, 483 U.S. 635, 638-41

(1987)).

When analyzing whether a defendant is entitled to qualified immunity, the

court considers two questions: (1) whether the facts, taken in the light most

favorable to the plaintiff, show that the defendant’s conduct violated the plaintiff’s

constitutional rights, and (2) whether the plaintiff’s rights were clearly established.

See, e.g., Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Fils v. City of Aventura, 647

F.3d 1272, 1287 (11th Cir. 2011); Hadley v. Gutirrez, 526 F.3d 1324, 1329 (11th Cir.

2008). Given the undisputed facts, the Court finds that Deputies Deso, Pardue,

Ritchie, and Stephens are entitled to qualified immunity.

Defendants were acting within their discretionary authority as law

enforcement officers at the time of the alleged wrongful acts. As such, the burden

shifts to Plaintiffs to show that qualified immunity is not appropriate. Plaintiffs

have failed to present any evidence to that effect – no depositions, no affidavits, and

no pinpoint citations to record evidence.

Moreover, even though not required to do so, Defendants have presented

evidence to demonstrate that they did not violate Plaintiffs’ constitutional rights.

Considering the officers’ actions, viewed from the perspective of a reasonable officer

on the scene under the same conditions, and understanding that police officers are

often forced to make decisions about the amount of force that is necessary in

situations that are tense, uncertain, and rapidly evolving, the Court finds that

Deputies Deso’s, Pardue’s, Ritchie’s, and Stephens’s conduct in deploying nonlethal

chemical agents into the residence did not violate Plaintiffs’ constitutional rights.

Specifically, the Court finds that the undisputed facts establish that a

reasonable officer would believe there was either probable cause or arguable

probable cause to arrest both Mr. Newcome (for brandishing a weapon, among other

things) and Mrs. Newcome (for resisting an officer without violence).4 In addition,

the undisputed facts establish that a reasonable officer would believe that there

were exigent circumstances to justify the warrantless arrests and use of force

4 The Court notes that in cases involving warrantless seizures, law enforcement officers are

entitled to qualified immunity if they had even arguable probable cause. See, e.g., Feliciano

v. City of Miami Beach, 707 F.3d 1244, 1251 (11th Cir. 2013)(emphasis added). Arguable

probable cause exists “if reasonable officers in the same circumstances and possessing the

same knowledge as the Defendants could have believed that probable cause existed.” Swint

v. City of Wadley, 51 F.3d 988, 996 (11th Cir. 1995).

against Plaintiffs because there was probable cause or arguable probable cause to

believe Mr. Newcome committed a violent crime – armed robbery of a conveyance –

and that he was presently armed and refusing to cooperate with law enforcement

officers attempting to negotiate his surrender. A reasonable officer would also find

it likely “that delay could cause the escape of [Mr. Newcome] or the destruction of

essential evidence, or jeopardize the safety of officers or the public.” See United

States v. Standridge, 810 F.2d 1034, 1037 (11th Cir. 1987).

Although with the “20/20 vision of hindsight[,]” the better practice would

certainly have been to obtain a warrant for Mr. Newcome’s arrest from a neutral

and detached magistrate, the Court cannot conclude on this record that Defendants

acted unconstitutionally.5 As such, the officers are entitled to qualified immunity

as to the § 1983 claims in these counts.

Counts 4 and 5

Mrs. Newcome was arrested for resisting an officer without violence, in

violation of § 843.02, F.S. In Count 4, Mrs. Newcome asserts a § 1983 claim for

excessive use of force based on the force used by Deputy Hyler during her arrest.

She alleges that during the course of her arrest, Deputy Hyler threw her to the

ground, placed his knee on her back, and forcibly handcuffed her, causing injuries to

her wrists, shoulder, and arms. In Count 5, Mrs. Newcome asserts a false arrest

and/or false imprisonment claim against Deputy Martin. Deputy Martin and

Deputy Hyler seek summary judgment on the respective claims against them,

5 The Court notes that even with a warrant, it is likely that the same events would have

transpired since Plaintiffs did not wish to exit the residence.

arguing that they had either probable cause or arguable probable cause to arrest

Mrs. Newcome.

“When the facts of a case ‘are not in dispute, whether probable cause existed

is a question of law, and summary judgment is appropriate.’” Benoit, 343 F. Supp.

3d at 1230 (quoting Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990)). “For

probable cause to exist, […] an arrest must be objectively reasonable based on the

totality of the circumstances. 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.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (quotations

and citation omitted). When determining whether an officer had probable cause,

the court must “examine the events leading up to the arrest, and then decide

whether these historical facts, viewed from the standpoint of an objectively

reasonable police officer, amount to probable cause.” District of Columbia v. Wesby,

138 S.Ct. 577, 586 (2018) (quotations and citation omitted). Importantly, “[b]ecause

probable cause deals with probabilities and depends on the totality of the

circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a

neat set of legal rules.” Id. (internal quotations omitted). “Probable cause ‘is not a

high bar.’” Id. (quoting Kaley v. United States, 571 U.S. 320, 338)).

Arguable probable cause presents an even lower bar. “To receive qualified

immunity, an officer need not have actual probable cause, but only ‘arguable’

probable cause.” Bezzaz v. Moore, No. 6:21-cv-528-JA-DAB, 2022 WL 4890709, at *5

(M.D. Fla. Sept. 16, 2022) (citing Brown v. City of Huntsville, 608 F.3d 724, 734

(11th Cir. 2010)). Arguable probable cause exists when a reasonable officer, under

the same circumstances and with the same knowledge as the defendant, could

believe that probable cause existed. Id.

Because Defendants were acting within the scope of their discretionary

authority at the time, Mrs. Newcome bears the burden of showing that Deputy

Martin and Deputy Hyler are not entitled to qualified immunity. However, Mrs.

Newcome did not submit any evidence to that effect. To defeat summary judgment

here, Mrs. Newcome “must point to ‘specific facts’ such that a reasonable jury could

return a verdict in her favor,” and her “general objection that an opposing party’s

evidence is incredible […] is insufficient to overcome summary judgment.” See

Benoit, 343 F. Supp. 3d at 1235.

Mrs. Newcome has only put forth a few photographs and clips of audio

recordings with no explanation or context. For example, with the photographs, it is

not clear which of her photographed injuries were sustained during the deployment

of nonlethal gas, and which injuries were sustained when she was handcuffed by

Deputy Hyler. The photographs themselves do not appear to portray significant

injuries.6 As noted, Mrs. Newcome has presented no other affirmative evidence,

such as deposition testimony or an affidavit, to create a genuine issue of fact as to

6 The Eleventh Circuit “has established the principle that the application of de minimis

force, without more, will not support a claim for excessive force in violation of the Fourth

Amendment.” See, e.g., Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000).

whether officers had arguable probable cause or probable cause to arrest her, or to

establish that the amount of force used against her was excessive and not de

minimis. Mrs. Newcome has not provided any citation to record evidence to support

her own claims or to oppose qualified immunity.

Even when viewed in light most favorable to Mrs. Newcome, the historical

undisputed facts of this case, including the exigent circumstances at play, establish

probable cause, or arguable probable cause, to believe that Mrs. Newcome

committed the offense of resisting without violence by either refusing to exit the

residence when ordered to do so by law enforcement, or by not getting on the ground

when she eventually did exit the residence.7 By failing to comply with these

commands, Mrs. Newcome at least arguably “resist[ed], obstruct[ed], or oppose[d]”

law enforcement officers within the meaning of § 843.02, F.S.8

Because there was arguable probable cause to arrest Mrs. Newcome, Deputy

Hyler had the right to use de minimis force against Mrs. Newcome to effectuate the

arrest. See, e.g., Taylor v. Taylor, 649 F. App’x 737, 746-47 (11th Cir. 2016) (force

not excessive where deputy grabbed plaintiff, slammed her into side of patrol

7 Even though Mrs. Newcome did not participate in the crimes for which her husband was

being investigated, the circumstances arguably justified the officers’ directions for her to

exit the residence, for both officer safety reasons and for her own personal safety reasons.

The Court reiterates that Mr. Newcome had been accused of a violent crime – robbery with

a firearm – and that he was believed to be presently armed. The resulting standoff and

SWAT-style raid was a dangerous situation for both the officers and for Plaintiffs.

8 Although Mrs. Newcome argues that she believed the officers were only directing Mr.

Newcome to exit the residence and they did not issue any direct commands to her, she

acknowledges receiving and understanding at least one general command to exit the

residence. As such, the undisputed evidence demonstrates that she was aware law

enforcement officers were directing her to exit the house, and she refused to do so. Mrs.

Newcome has also failed to present any evidence to show that she did not hear the

commands to get on the ground when exiting the residence.

vehicle, and handcuffed her, fracturing her hand and forearm); Woodruff v. City of

Trussville, 434 F. App’x 852, 855 (11th Cir. 2011) (officers entitled to qualified

immunity where they threw plaintiff to pavement, causing him to strike his head);

Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (officer entitled to qualified

immunity where he grabbed plaintiff from behind, threw him against van, kneed

him in back, and pushed head into side of van). Considering the non-exclusive

factors set forth in Graham, and considering the record evidence in light most

favorable to Mrs. Newcome, the force used was reasonable under the circumstances.

See Graham v. Connor, 490 U.S. 386, 396 (1989).

Consequently, because a reasonable officer would have believed that he had a

valid basis to arrest Mrs. Newcome, and because Deputy Hyler used only de

minimis force to effectuate that arrest, Deputy Martin and Deputy Hyler are

entitled to qualified immunity as to Mrs. Newcome’s claims in Counts 4 and 5.

Count 6

In Count 6, Mrs. Newcome alleges a federal malicious prosecution claim

against Deputy Martin. To assert a federal malicious prosecution claim, Mrs.

Newcome “must prove (1) the elements of the common law tort of malicious

prosecution, and (2) a violation of her Fourth Amendment right to be free from

unreasonable seizures.” See Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th

Cir. 2004).

Under Florida law, “[t]he elements of a malicious prosecution claim are: (1)

an original criminal or civil judicial proceeding against the present plaintiff was

commenced or continued; (2) the present defendant was the legal cause of the

original proceeding against the present plaintiff as the defendant in the original

proceeding; (3) the termination of the original proceeding constituted a bona fide

termination of that proceeding in favor of the present plaintiff; (4) there was an

absence of probable cause for the original proceeding; (5) there was malice on the

part of the present defendant; and (6) the plaintiff suffered damage as a result of

the original proceeding.” Zivojinovich v. Ritz Carlton Hotel Co., 445 F. Supp. 2d

1337, 1346 (M.D. Fla. 2006) (quoting Valdez v. GAB Robins North America, Inc.,

924 So. 2d 862, 866 n.1 (Fla. 3d DCA 2006)).

The State of Florida offered to drop the prosecution of Mrs. Newcome if she

completed 30 hours of community service and provided proof of completion to the

state attorney’s office. Following the advice of counsel, and with her husband’s

encouragement, she completed the hours. The State Attorney’s Office filed an

announcement of no information that included the grounds for abandoning the

prosecution – that Mrs. Newcome had completed the community service hours as

requested. This does not and cannot constitute a bona fide termination of the

proceedings in Mrs. Newcome’s favor. See, e.g., Rivas v. Figueroa, No. 11-23195-

Civ-SCOLA, 2012 WL 1343949, at *3 (S.D. Fla. Apr. 18, 2012); Alamo Rent-A-Car,

Inc. v. Mancusi, 632 So. 2d 1352, 1356 (Fla. 1994); Cohen v. Corwin, 980 So. 2d

1153, 1156 (Fla. 4th DCA 2008). As such, the Court finds that Deputy Martin is

entitled to summary judgment in his favor as to Count 6.

Conclusion

The facts presented here are disturbing. With the 20/20 vision of hindsight,

it is not difficult to see how things could have been handled better by everyone

involved. It is also not difficult to envision a scenario where the facts, as alleged by

the Plaintiffs and if presented properly, could theoretically constitute valid claims

that could only be resolved by a trial.

Plaintiffs are proceeding pro se and the Court has been mindful of its duty to

proceed liberally when evaluating their claims as required by Alba v. Montford, 517

F.3d 1249, 1252 (11th Cir. 2018), and other binding Eleventh Circuit decisions.

But, for the reasons explained above, it is impossible for the Court to allow this case

to proceed past summary judgment without taking on the role of de facto counsel on

behalf of these pro se plaintiffs in violation of United States v. Padgett, 917 F.3d

1312, 1317 (11th Cir. 2019) and other binding Eleventh Circuit decisions.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

1) Defendants’ motions for summary judgment (Docs. 92; 93; 94; 95) are

GRANTED.

2) Plaintiffs’ motions for summary judgment (Docs. 90; 91) are DENIED.

3) The Clerk is DIRECTED to enter final judgment in favor of Defendants

Deputies David Martin, Troy Hyler, Dustin Adkins, Jason Tippin, Brian

Schneider and Eric Burburan, Willard Brian Stephens, Seth Pardue, Derik

Deso, and Francis Ritchie, and against Plaintiffs James and Umama

Newcome.

4) Following the entry of judgment, the Clerk is directed to terminate any

pending motions and deadlines, and thereafter close this case.

DONE and ORDERED in Chambers, in Tampa, Florida, this 4th day of

August, 2023.

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UNITED STATES DISTRICT JUDGE

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