stating that an allegation of improper benefits calculation not raised in the second amended complaint but in response to a summary judgment motion is not properly before the court
How later courts described this case
- stating that an allegation of improper benefits calculation not raised in the second amended complaint but in response to a summary judgment motion is not properly before the court
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EILEEN KATES,
Plaintiff,
v. Case No. 8:22-cv-342-VMC-TGW
CHRIS NOCCO,
in his official capacity as
Sheriff of Pasco County,
Defendant.
______________________________/
ORDER
This matter is before the Court on consideration of
Defendant Sheriff Chris Nocco’s Motion for Final Summary
Judgment (Doc. # 63), filed on April 14, 2023. Plaintiff
Eileen Kates responded on May 8, 2023. (Doc. # 87). Sheriff
Nocco replied on May 22, 2023. (Doc. # 92). For the reasons
that follow, the Motion is granted.
I. Background
On February 9, 2022, Ms. Kates initiated this action
against Sheriff Nocco in his official capacity as Sheriff of
Pasco County. (Doc. #1). The complaint asserts violations of
the First, Fourth, and Fourteenth Amendments arising out of
Sheriff Nocco’s Intelligence-Led Policing Program (“ILP
1
Program”). (Id.). The essence of Ms. Kates’ claims is that
she “has been discriminated against and treated differently
by the [Pasco County Sheriff’s Office (“PSO”)] because her
son, Ryan, is a target of the [PSO] based on the ILP Program’s
crude algorithm’s determination that Ryan is a ‘prolific
offender.’” (Id. at 23). The parties proceeded through
discovery, which revealed the following.
A. Ms. Kates
The claims in this action rest entirely on interactions
between PSO employees and Ms. Kates between March 20, 2021,
and July 24, 2021 (“PSO Contacts”). (Eileen Kates Depo. at
114:8-16). The PSO Contacts took place on nine days: March
20, 21, 23, April 4, 8, 11, and July 12, 15, and 24 of 2021.
(Id. at 140:17-141:4).
Ms. Kates has used numerous last names, including Kates,
Duncan, DeSimone, and Sota. (Id. at 7:11-17). She has two
living children, Ryan and Lauren Kates. (Id. at 13:18-23;
15:4-6; 52:18-20).
Ms. Kates lived in a house in Holiday, Florida (“the
Kates Home”) during the PSO Contacts and still does today.
(Id. at 12:16-13:3). Ms. Kates testified that, between
2
January and October 2021, Ryan Kates resided off and on at
the Kates Home as a “couch surfer.” (Id. 17:7-17). Although
Ryan Kates testified that he “didn’t live there” for the
“whole time [he] was on probation,” he also testified that he
“stayed in a couple different rooms” of the home, including
the garage. (Ryan Kates Depo. at 21:7-22:20). He also
testified that “when [he] moved back from Arizona [in June
2021], [he] stayed there for . . . two or three weeks” until
he got into an argument with Ms. Kates. (Id. at 25:15-17).
Additionally, Ryan Kates used the Kates Home as his
address on his driver’s license during the PSO Contacts. (Id.
at 52:3-12). He owned a Hyundai Elantra which was parked at
the Kates Home for a few months in 2021 after he had left
Florida for Arizona in February or March 2021. (Id. at 14:8-
15:13; Eileen Kates Depo. at 120:11-122:7). The vehicle had
been removed by July 2021 because Ryan Kates had it
“voluntar[ily] repossess[ed].” (Ryan Kates Depo. at 14:8-
15:13; Pl. Ex. 13, July 12 BWC, at 01:37-01:52).
After the PSO Contacts ended, Ms. Kates believed that,
because of what she read “on social media” and her son’s
criminal history as a “repeat offender,” Ryan Kates was
3
possibly on “a list” as a prolific offender. (Eileen Kates
Depo. at 23:10-24:23).
Ryan Kates has never been a prolific offender nor was
Ms. Kates ever told by a member of PSO that her son was a
prolific offender. (Id. at 24:24-25:13; Beaman Affidavit at
¶ 5).
B. ILP Program
PSO Deputy Nicholas Hammelman described Intelligence-
Led Policing as “how [PSO officers] collect, analyze and share
information in a way to better combat crime within Pasco
County.” (Hammelman Depo. at 107:6-11). The ILP Program was
governed by the “Intelligence-Led Policing Manual.” As
relevant here, one manual (“the 2018 ILP Manual”) was in
effect from January 2018 through July 1, 2021. (Doc. # 64-
2). Beginning on July 1, 2021, the 2021 ILP Manual went into
effect. (Doc. # 64-3).
As outlined in the 2018 ILP Manual, the ILP Program
focuses on policing offenders who were thought to be
committing the majority of the crimes in Pasco County. The
2018 ILP Manual discusses “problem people” and “Priority
Offenders,” and the various subsets of such groups:
4
Intelligence-led Policing calls for a strategic
focus on problem people by targeting the criminal
elite, those offenders who if incarcerated will net
the largest benefit of crime reduction. The Pasco
Sheriff’s Office brings a strategic focus to the
criminal elite by identifying Prolific Offenders,
Top 5 Offenders, District Targets, Abusive
Offenders, and Priority Warrants. In addition,
Florida Statutes provide a focus on Sex Offenders,
Career Offenders, and Prolific Juvenile Offenders.
Collectively, we refer to these categories of
offenders as Priority Offenders.
(Doc. # 64-2 at 17) (emphasis added).
Thus, the 2018 ILP Manual was not applicable only to
“prolific offenders.” It applied to the broader category of
“problem people” or “Priority Offenders,” like “priority
warrants” or those who fit within different categories.
(Id.). The sub-group of “district targets” “is identified
through the collaboration of the district analysts, district
commander, and district-based investigative unit
supervisors.” (Id. at 21). “In order to be selected [as a
district target], the offender must have an active warrant or
local probable cause pick-up order. In addition, this
offender should satisfy the question: ‘if this person is
apprehended, will it result in a significant impact on crime
in the area?’” (Id.).
5
In contrast, the 2021 ILP Manual, which took effect on
July 1, 2021, makes no mention of “problem people.” (Doc. #
64-3). Rather, it mentions only “prolific offenders” — and
does so twice. See (Id. at 8) (“Our criminal justice system
could have a more significant impact on crime if the criminal
justice system focused on the most serious and prolific
offenders who have the largest impact on our crime picture by
virtue of the numerous crimes they continue to commit.”);
(Id. at 14) (“Understanding that in many cases there is a
correlation between prolific offenders and behavioral
health/substance abuse issues, members of [the Behavioral
Health Intervention Team] will perform outreach to these
individuals. The goal is to have specially trained deputies
to positively interact with these individuals who can provide
them resources. The goal is to end the cycle of recidivism,
reduce victimization and enhance community safety.”).
C. Ryan Kates’s History
Ryan Kates was arrested on a warrant for aggravated
assault from Scranton, Pennsylvania on June 25, 2014. This
arrest occurred at the Kates Home. (Ryan Kates Depo. at Ex.
1).
6
On January 23, 2019, Ryan Kates was arrested and then
charged with aggravated stalking of his ex-girlfriend,
Elizabeth Keune, and criminal mischief in case 2019-CF-461 in
Pasco County, Florida. (Id. at Ex. 2). The state court issued
Ryan Kates a no contact order with Ms. Keune on January 24,
2019. (Id. at Ex. 3).
On April 23, 2019, Ryan Kates was arrested for having
contact with Ms. Keune between April 14 and 22, 2019. He was
arrested on a new charge of aggravated stalking and on a
violation of the no contact order that was entered as part of
his pretrial release in case 2019-CF-461. (Id. at Ex. 5). On
May 15, 2019, he was charged with aggravated stalking of Ms.
Keune, a third-degree felony. (Id. at Ex. 7).
On June 21, 2019, Ryan Kates entered a plea of guilty in
both cases 2019-CF-461 and 2019-CF-2575. He was adjudicated
guilty of criminal mischief and aggravated stalking (both
third-degree felonies) and the lesser included offense of
stalking (a misdemeanor). He was sentenced to 36 months of
probation concurrently. (Id. at Exs. 4 & 8).
On September 18, 2019, in case 2019-MM-4772 in Pasco
County, Ryan Kates was charged with violating his pretrial
7
release by contacting Ms. Keune in April 2019. (Id. at Ex.
11). The next year, in January 2020, in case 2019-MM-2169, he
pled guilty to violating a condition of his pre-trial release
by contacting Ms. Keune in April 2019, and was sentenced to
time served. (Id. at Ex. 10). On August 5, 2020, in case 2019-
MM-4772, Ryan Kates pled no contest to violation of his
pretrial release conditions. (Id. at Ex. 12). On February 24,
2021, he received early termination of his probation. (Id. at
39:1-23; Beaman Affidavit at Ex. A at 55).
Ryan Kates dated Ms. Keune off and on since 2016. During
one of those breaks, Ms. Keune began dating Daniel Rau. (Ryan
Kates Depo. at 33:24-35:6).
On March 23, 2021, Deputy Hammelman in case 2019-CF-1365
provided sworn testimony to a circuit court judge in applying
for an arrest warrant for Ryan Kates. The basis for the
warrant was that Ryan Kates left threatening voicemails for
Mr. Rau, saying that he would “gut” the victim and kill the
victim’s family. The threats also included information about
the victim’s daily travel habits, which put the victim in a
well-founded fear for his and his family’s safety. Deputy
Hammelman listened to these voicemails and confirmed that
8
these threats were made and that the phone number used was
connected to Ryan Kates. (Id. at Ex. 13).
Ryan Kates had a warrant issued for his arrest on March
23, 2021, for aggravated stalking, in case 2019-CF-1365. (Id.
at Ex. 14). On April 28, 2021, he was arrested in Mesa,
Arizona on the arrest warrant. (Id. at Ex. 15). He did not
fight extradition to Florida and agreed to return to the State
to turn himself in on the warrant. (Id. at 69:15-70:21). He
posted a $10,000 bond on April 30, 2021. (Id. at Ex. 15 at
12-14). On June 8, 2021, he turned himself into the Land O’
Lakes Jail on the warrant for aggravated stalking where he
was then released on bond. (Id. at Ex. 16).
Ryan Kates was also a suspect in the Pasco County
Sheriff’s Office case # 21-025091, in which the agency was
investigating a battery that occurred on July 11, 2021, at a
Speedway gas station. (Id. at Ex. 19). The offender, a white
man, punched the victim in the face after a verbal dispute.
(Id. at Ex. 19 at 7). When the offender got into his car to
flee, the victim pulled off the paper tag from the back of
the offender’s car. (Id.). The PSO ran the tag and discovered
that “it came back to” Ms. Kates. (Id. at 8). The police
9
report indicates that, over the phone, Ms. Kates “admitted
the car belonged to her.” (Id.).
In December 2022, Ryan Kates pled guilty in case 2021-
CF-1365 to misdemeanor stalking, was adjudicated guilty, and
received 12-months’ supervised probation. (Id. at Exs. 17 and
18).
D. Contacts at the Kates Home
On March 20, 2021, Deputy Hammelman began investigating
case 21-010111, in which Ryan Kates was suspected of
aggravated stalking. (Hammelman Depo. at Ex. A).
Deputy Hammelman went to the Kates Home because that was
Ryan Kates’s listed address and to “gather more information
about him.” (Id. at 80:9-13 & Ex. A at 153). Deputy Hammelman
arrived at the Kates Home, where Ms. Kates’s husband Robert
DeSimone answered the door. Deputy Hammelman asked Mr.
DeSimone a series of questions about Ryan Kates. (Id. at
23:21-23 & Ex. A at 153 & Ex. 1). Ms. Kates is visible on the
body-worn camera footage, standing just inside the front
door. (Id. at Ex. 1 at 01:40-2:18). The deputies did not
immediately leave the Kates property after being told that
10
Ryan Kates was not there. (Pl. Ex. 4, Mar. 20 BWC B, at 02:40-
03:05).
Also on March 20, 2021, a BOLO alert was issued for Ryan
Kates. (Doc. # 87-3). The top of the BOLO page includes the
title “Pasco Sheriff’s Office/ Intelligence-Led Policing/
Chris Nocco, Sheriff.” (Id.). The BOLO also states that “PC
Exists” to arrest Ryan Kates for aggravated stalking. (Id.).
In an internal email from March 22, a PSO Lieutenant forwarded
the BOLO to other officers, writing in relevant part: “Please
ensure there is a continuing effort to place Kates in custody.
Please coordinate efforts between day/night shifts and STAR
so that there is consistent pressure.” (Doc. # 87-2 at 3).
A Strategic Targeted Area Response (“STAR”) team is a
specialized team within the PSO. According to the 2018 ILP
Manual, STAR teams are “dedicated to reducing the crime in
the district, with particular emphasis inside the STAR box
and the immediate surrounding area.” (Doc. # 64-2 at 66). A
STAR box is a designated area “where crime is persistently
dense over an extended period of time.” (Id. at 22). “[T]here
is an expectation that the STAR Team will spend the majority
of their time working inside the STAR box or focused on
11
offenders who are impacting crime within the STAR box,” with
a “particular emphasis on the Big 4 and violent crime.” (Id.
at 66). The “Big 4” are crimes including firearm theft,
vehicle theft, and burglary of vehicles, residences, and
businesses. (Id. at 16). The STAR team “is expected to
actively work with other PSO members (particularly ILP and
detectives) and outside agencies to identify and target
prolific offenders.” (Id. at 67). Also, the STAR team “will
regularly develop missions to target the priority offenders
who impact crime within the STAR boxes.” (Id.).
On March 21, 2021, Deputy Hammelman returned to the Kates
Home to apprehend Ryan Kates “for aggravated stalking and
threatening to kill a person and their family members.”
(Hammelman Depo. at 42:9-16). PSO deputies remained on Ms.
Kates’s property after being told Ryan Kates was not there
and discussed using code citations as a reason to return.
(Id. at Ex. 3, Mar. 21 BWC, at 05:06-05:40).
On March 23, 2021, prior to knocking on the door of the
Kates Home, Ms. Kates came outside and asked deputies to
leave. (Eileen Kates Depo. at 156:11-19). When asked what
actions taken by the PSO on March 23, 2021, caused her mental
12
or emotional distress, Ms. Kates stated the issue was “[t]hat
they were there again” “harassing [her] and wouldn’t leave
[her] alone,” and that deputies “were constantly [t]here.”
(Id. at 155:9-156:2).
On April 4, 2021, PSO was called to the Kates Home by
Ms. Kates’s juvenile grandson to assist him in gathering his
clothes from the home. (Brant Depo. at 111:12-16; Eileen Kates
Depo. at 166:21-169:1). While there, the PSO deputies stated
that they would also investigate County ordinance violations
and look for Ryan Kates. (Pl. Ex. 9, Apr. 4 BWC F, at 00:30-
00:40, 01:40-01:52, 03:37-03:42).
That day, PSO deputies, including Deputy Brant, went to
the home, knocked and spoke to Mr. DeSimone who told deputies
that Ms. Kates’s grandson was not allowed inside the home.
Ms. Kates was not present when PSO went to the Kates Home on
April 4. (Eileen Kates Depo. at 165:12-17). However, she was
on the phone with Mr. DeSimone while the PSO deputies were
speaking with Mr. DeSimone so she could listen to the events.
(Id. at 165:22-23).
Deputies did not force Mr. DeSimone to allow Ms. Kates’s
grandson to enter, nor did they enter themselves. (Brant Depo.
13
at 111:12-112:8 & Ex. 2 at 6:30-6:40). The PSO officers issued
Mr. DeSimone a citation on April 4, 2021, for lack of posted
address. Mr. DeSimone pled no contest and was ordered to pay
a fine. (DeSimone Depo. at 24:21-27:6 & Exs. 1 & 6). Deputy
Brant, who worked for the PSO both before and after the ILP
Program, testified that the implementation of the ILP Program
did not affect his actions at the Kates Home. (Brant Depo. at
112:12-23).
After the PSO deputies had initially spoken to Mr.
DeSimone and issued the citation on April 4, two members of
a STAR team, Corporal Heisen and Deputy Coco, arrived at the
Kates Home. (Collins Depo. at Ex. 1, Apr. 4 BWC C, at 07:48-
08:20; Doc. # 64-2 at 66-67). Corporal Heisen walked around
the front curtilage of the Kates Home and spoke to Mr.
DeSimone. (Pl. Ex. 8, Apr. 4 BWC E). During that conversation,
Corporal Heisen asked about the location of Ryan Kates and
warned that citations would continue to be issued if the
problem — the lack of posted address — was not fixed. (Id.).
On April 8, 2021, deputies visited the Kates Home again.
The deputies asked for Ryan Kates’s location and Mr. DeSimone
told them he was not there. (Pl. Ex. 10, Apr. 8 BWC B, at
14
02:07-02:16). Ms. Kates asked the deputies to leave the
property and the deputies went back down to the street. (Id.
at 02:22-02:56). But, soon after, deputies returned to the
driveway to issue Ms. Kates a code citation for the shed on
her driveway. (Eileen Kates Depo. at 173:14-174:8). She had
the shed citation dismissed by the Court when she explained
that she had a permit. (Id. at 176:11-15).
On April 11, 2021, Deputy Hammelman went to the Kates
Home and told Ms. Kates that he had a warrant for Ryan Kates’s
arrest. (Id. at 177:14-24, 179:4-12). When Ms. Kates asked to
see the warrant, the deputies refused. She asked them to leave
her property, and the deputies said, “We’ll keep coming back
every day.” (Pl. Ex. 12, Apr. 11 BWC, at 02:20-03:19).
Three months passed. Then, on July 12, 2021, Deputy
Hammelman and another deputy returned to the Kates Home
pursuant to a second investigation of Ryan Kates about the
gas station battery. (Hammelman Depo. at 96:17-20). After the
deputies’ knocks at the door were initially unanswered and
they found two children in the shed on the front driveway,
the deputies knocked on the front door of the Kates Home
again. (Pl. Ex. 13, July 12 BWC, at 00:00-05:00). After Deputy
15
Hammelman said that he might call the Department of Children
and Families because the children had been left unsupervised
in the shed, Ms. Kates opened a window and told the deputies
she would bring the children inside. (Id. at 9:00-10:10).
Deputy Hammelman then asked Ms. Kates if Ryan Kates was in
the home or if she knew where he was. Ms. Kates responded in
the negative. (Id. at 9:30-10:10).
On July 15, 2021, Deputy Nguyen went to the Kates Home.
No one answered the door, and he left his card. Ms. Kates saw
this on her security camera and knew she didn’t have to answer
the door, so she waited for Deputy Nguyen to leave, and then
went outside and grabbed his card. (Nguyen Depo. at 14:23-
15:2; Eileen Kates Depo. at 193:10-19).
On July 24, 2021, Deputy Nguyen again attempted to locate
Ryan Kates at the Kates Home in relation to the investigation
of the battery at the gas station. (Nguyen Depo. at 16:16-
17:4; Beaman Affidavit at Ex. A at 39). Mr. DeSimone answered
the door and spoke to the deputies outside the Kates Home.
Deputies asked to speak to Ryan Kates as they were still
investigating the battery. (Nguyen Depo. at 23:17-23 & Ex.
1).
16
Ms. Kates does not remember any member of PSO using the
words “Intelligent [Led] Policing” during the PSO Contacts.
(Eileen Kates Depo. at 26:3-7). During the PSO Contacts, no
PSO employee ever physically stopped Ms. Kates from closing
the front door. (Id. at 201:13-17). Likewise, during the PSO
Contacts, no PSO employee ever physically stopped Ms. Kates
from going back into her home nor did they ever order her not
to go back into her home. (Id. at 201:18-22; 203:4-6). During
the PSO Contacts, no PSO employee ever physically forced Ms.
Kates out from inside her home. (Id. at 201:23-202:1). Ms.
Kates did not contact anyone from PSO to complain about any
of the deputies’ actions during the PSO Contacts. (Id. at
206:3-7).
Ryan Kates was never labeled a prolific offender by PSO.
(Beaman Affidavit at ¶ 5). PSO records do not show any
instance in which a prolific offender check was performed at
the Kates Home. (Id. at ¶ 6). Rather, the PSO “records were
all related to calls for service, county ordinance
violations, criminal investigations, or the search for a
person with an arrest warrant.” (Id. at ¶ 7).
17
Now, Sheriff Nocco seeks summary judgment on all Ms.
Kates’s claims. (Doc. # 63). Ms. Kates has responded (Doc. #
87), and Sheriff Nocco has replied. (Doc. # 92). The Motion
is now ripe for review.
II. 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 factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
18
the Court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).
“When a moving party has discharged its burden, the non-
moving party must then ‘go beyond the pleadings,’ and by its
own affidavits, or by ‘depositions, answers to
interrogatories, and admissions on file,’ designate specific
facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th
Cir. 1995) (quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). 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, the Court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
19
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional allegations,” summary judgment is not only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
A municipality can only be liable for an employee’s
unconstitutional action if the action is directly caused by
the municipality. Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 690 (1978). “[T]o impose [Section]
1983 liability on a municipality, a plaintiff must show: (1)
that his constitutional rights were violated; (2) that the
municipality had a custom or policy that constituted
deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.” McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
“Simple respondeat superior or vicarious liability will
not attach under [Section] 1983.” Brown v. City of Atlanta,
No. 21-13565, 2023 WL 3244833, at *2 (11th Cir. May 4, 2023)
(citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
“It must be the execution of the government’s policy or custom
20
that causes the injury.” Id. Stated otherwise, the municipal
policy or custom must be “the moving force behind the
[constitutional] violation.” Gold v. City of Miami, 151 F.3d
1346, 1354 (11th Cir. 1998). “[A] plaintiff must show that
the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.”
Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S.
397, 404 (1997).
Here, the complaint alleges that Sheriff Nocco’s
official policy — the ILP Program — was the cause of Ms.
Kates’s injuries. See, e.g., (Doc. # 1 at 18) (“As a result
of the [PSO] ILP Program’s official policy mandating
‘Prolific Offender Checks,’ Ms. Kates has been the victim of
repeated warrantless searches on and of her property at all
hours of the day and night.”). More specifically, Ms. Kates
alleges that she was subject to the PSO’s allegedly unlawful
ILP Program — particularly its “prolific offender checks” —
because her son Ryan was designated by the PSO as a “prolific
offender.”
21
The complaint makes this causation theory very clear at
multiple points. For example, in her equal protection claim,
Ms. Kates alleges: “Ms. Kates has been discriminated against
and treated differently by the [PSO] because her son, Ryan,
is a target of the [PSO] based on the ILP Program’s crude
algorithm’s determination that Ryan is a ‘prolific
offender.’” (Id. at 23) (emphasis added); see also (Id. at
18) (“As a result of the [PSO] ILP Program’s official policy
mandating ‘Prolific Offender Checks,’ Ms. Kates has been the
victim of repeated warrantless searches on and of her property
at all hours of the day and night.”); (Id. at 1) (“[PSO] has
adopted and implemented a self-titled ‘Intelligence-Led
Policing Program’ (‘ILP Program’) which attempts to predict
future criminal offenders. The ILP Program identifies
‘prolific offenders’ based upon a crude algorithm created by
the [PSO]. These individuals and their families are subjected
to harassment, pretextual and arbitrary law enforcement, and
baseless punishment.”); (Id. at 5) (“Once an individual
becomes an official target of the ILP Program, [PSO] deputies
begin to focus their efforts on the individual, collecting as
much information as possible, monitoring and tracking the
22
individual’s whereabouts and associations, and conducting
‘Prolific Offender Checks’ with the target frequently as a
show of force and deterrent.”); (Id. at 6) (“Ms. Kates has
been subjected to myriad ‘Prolific Offender Checks.’”); (Id.
at 11) (“Per ILP Program guidelines, [PSO] deputies are to
utilize the warrantless searches conducted as part of
‘Prolific Offender Checks’ to determine a basis for selective
code enforcement against targets and their associates.”). In
the complaint’s prayer for relief, Ms. Kates seeks a
declaratory judgment that, among other things, “the ILP
Program is unconstitutional because it unjustly punishes
friends and family members of ‘prolific offenders,’ in
violation of the Freedom of Association Clause of the First
Amendment” and “because it uses a crude algorithm to develop
a list of ‘prolific offenders’ without notice to the purported
‘prolific offender’ in violation of the Due Process Clause of
the Fourteenth Amendment.” (Id. at 24).
Sheriff Nocco argues, among other things, that Ms. Kates
cannot establish that the ILP Program — as outlined in the
ILP Manual — was the “moving force” behind the alleged
constitutional violations in this case. (Doc. # 63 at 12-14).
23
He emphasizes that “[t]he record contradicts that assertion
as Ryan Kates was never identified by PSO as a ‘prolific
offender’ and instead the record shows that PSO’s contact
with [Ms. Kates] were related to her son Ryan Kates’s being
the suspect of multiple criminal investigations and a warrant
for his arrest.” (Id. at 13). Indeed, it is now undisputed
that the PSO never designated Ryan Kates (or Ms. Kates) as a
“prolific offender” and, thus, no “prolific offender checks”
were performed on the Kates Home. (Beaman Affidavit at ¶¶ 5-
6).
In response, Ms. Kates insists that the ILP Program, as
outlined in the ILP Manual, was the “moving force” behind the
alleged constitutional violations because “[i]n conducting
repeated home visits and issuing pretextual code citations,
PSO deputies followed PSO practices” and “the ILP
philosophy.” (Doc. # 87 at 24) (emphasis added). In essence,
Ms. Kates now insists broadly that “ILP tactics were used
against” her as a custom or practice, rather than arguing
that Ryan Kates was a “prolific offender” officially subject
to the ILP Program policy as she had alleged in her complaint.
(Id. at 22).
24
The Court agrees with Sheriff Nocco that Ms. Kates has
not established that the ILP Program was the “moving force”
behind the alleged constitutional violations. Ms. Kates was
the master of her complaint, and she chose to structure her
claims around her son’s being designated a “prolific
offender” (and, thus, subject to the ILP Program).1 This she
cannot alter now: “A plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.”
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th
Cir. 2004); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244,
1258 n.27 (11th Cir. 2012) (“After arguing before the District
Court on numerous occasions that they did not have to allege
a constitutionally impermissible burden on a sincerely held
religious belief, Plaintiffs chose to include additional
facts with their motion for summary judgment. These
additional facts do not appear in the Amended Complaint. It
is well-settled in this circuit that a plaintiff may not amend
the complaint through argument at the summary judgment phase
1 Nearly a year after the deadline to amend and a month after
the close of discovery, Ms. Kates moved to amend the
complaint. (Doc. # 57). The Court denied the motion. (Doc. #
60).
25
of proceedings.”), abrogated on other grounds by New York
State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111
(2022); Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078
(5th Cir. 1990) (stating that an allegation of improper
benefits calculation not raised in the second amended
complaint but in response to a summary judgment motion is not
properly before the court).
In short, Ryan Kates was never a “prolific offender” who
— by that designation — became a subject of Sheriff Nocco’s
ILP Program, along with his family members. Thus, because he
was not a “prolific offender” under the ILP Program and no
“prolific offender checks” were performed at the Kates Home
as Ms. Kates alleged, Ms. Kates cannot prove that the policy
of the ILP Program was the “moving force” behind her injuries.
Summary judgment is warranted on this basis alone.
Alternatively, even if the Court were to ignore that Ms.
Kates structured her claims explicitly around her son’s
alleged “prolific offender” status in challenging the ILP
Program, Ms. Kates has still failed to show a genuine dispute
as to whether the ILP Program was the “moving force” behind
her injuries. In her response, Ms. Kates emphasizes that the
26
2018 ILP Manual applies to a category of “problem people”
that is broader than “prolific offenders.” (Doc. # 87 at 3-
4, 22). She argues for the first time that Ryan Kates was
designated a “problem person” subject to the ILP Program “due
to his active warrant.” (Id. at 18). As mentioned previously,
Ms. Kates also broadly complains about “tactics” described in
the ILP Manuals that she alleges were used on her. (Id. at
21-22).
There are multiple problems with Ms. Kates’s argument.
First, some of the “tactics” of the ILP Program she identifies
from the ILP Manual are only discussed in relation to
“prolific offenders” — not “problem people.” For example, the
2018 ILP Manual does not state that the PSO “relentlessly
pursu[es]” “problem people,” as Ms. Kates suggests. (Id. at
4, 22). Rather, the 2018 ILP Manual states in a subsection
entitled “Prolific Offenders” that “relentless pursuit” is
used on “prolific offenders” if they do not “stop committing
crimes and become a productive member of society.” (Doc. #
64-2 at 16-17).
As for the “tactic” of “issuing citations for ‘county
code violations’ at locations where officers ‘suspect[]
27
illegal activity’” (Doc. # 87 at 22), this “tactic” is limited
by the 2018 ILP Manual. The 2018 ILP Manual specifies, in a
section called “Nuisance Abatement,” that PSO officers should
“[a]ssess the location [of suspected illegal activity] for
the existence of county code violations, and when applicable,
cite the owner/tenant.” (Doc. # 64-2 at 30) (emphasis added).
No mention of “problem people” is made in this sentence. Thus,
the ILP Manual does not direct officers to issue code
citations to the family members of “problem people” and,
furthermore, it acknowledges that code citations are not
always “applicable.”
Next and more importantly, Ms. Kates has presented
insufficient evidence that Ryan Kates fell within any of the
sub-categories of “problem people” subject to the ILP Program
during the relevant time. True, many of the PSO visits to Ms.
Kates’s home were precipitated by Ryan Kates’s outstanding
warrant for a charge of aggravated stalking. (Hammelman Depo.
at 42:9-16, 80:9-13; Eileen Kates Depo. at 156:11-19, 173:14-
174:8, 177:14-24, 179:4-12). Notably, however, the 2018 ILP
Manual does not say that all individuals with active warrants
are “problem people” subject to the ILP Program. Rather, it
28
designates only those who are “priority warrants” or who have
been designated by the PSO as a “district target” in part
because they have active arrest warrants. (Doc. # 64-2 at 17,
21). And there is insufficient record evidence to create a
genuine dispute as to whether Ryan Kates was ever designated
by the PSO as a “problem person,” such as a “priority
warrant.” As Sheriff Nocco points out, “none of the records
related to Ryan Kates uses the term ‘priority warrant’ nor is
there any testimony to support this argument.” (Doc. # 92 at
2 n.1). Likewise, Ms. Kates has not presented any evidence or
testimony identifying Ryan Kates as a “problem person”
generally or any sub-type of problem person, such as a
“district target.”
At most, there is some evidence suggesting that certain
resources often utilized for the ILP Program were used in the
search for Ryan Kates while he was wanted for aggravated
stalking. Although the March 20 BOLO has the heading “Pasco
Sheriff’s Office/ Intelligence-Led Policing/ Chris Nocco,
Sheriff,” nothing in the BOLO identifies Ryan Kates as a
“problem person.” (Doc. # 87-3). The BOLO states that there
is probable cause to arrest Ryan Kates for aggravated
29
stalking, but it does not state that there is a “priority
warrant” for his arrest or that he had otherwise been
designated as a “district target” or other term. (Id.).
Nor is the internal email, instructing PSO deputies to
“coordinate efforts between day/night shifts and STAR so that
there is consistent pressure” on the Kates Home, sufficient
evidence that Ryan Kates was a “problem person.” (Doc. # 87-
2 at 3). At most, this email suggests that a STAR team was
assisting with the PSO’s attempts to execute the arrest
warrant for Ryan Kates. The email does not suggest that Ryan
Kates was a “problem person” or even that a STAR team oversaw
the search for him. Indeed, it appears that members of a STAR
team were only present for the latter portion of the April 4
visit to the Kates Home, and none were present for the other
PSO Contacts. Furthermore, while the 2018 ILP Manual states
that STAR teams are expected to “regularly develop missions
to target the priority offenders who impact crime within the
STAR boxes,” it does not state that STAR teams solely work on
cases involving “priority offenders” or “problem people.”
(Doc. # 64-2 at 66-67). Thus, the involvement of certain STAR
team members in searching for Ryan Kates or during the April
30
4 contact with the Kates Home does not indicate that Ryan
Kates was ever designated as a “problem person” by the PSO.
Regardless, even if Ryan Kates had been a “prolific
offender” or “problem person,” the evidence shows that the
ILP Program policy of performing checks on such individuals
was not the “moving force” behind the visits to the Kates
Home. Indeed, according to PSO records, none of the PSO
Contacts at the Kates Home “were related to a prolific
offender check.” (Beaman Affidavit at ¶ 6). Rather, most of
the March and April 2021 visits to the Kates Home occurred
because Ryan Kates was suspected of and eventually an arrest
warrant was issued for aggravated stalking, and the Kates
Home was his listed address. (Hammelman Depo. at 42:9-16,
80:9-13 & Ex. A at 153; Eileen Kates Depo. at 156:11-19,
173:14-174:8, 177:14-24, 179:4-12). The April 4, 2021, visit
to the Kates Home was initiated because Ms. Kates’s grandson
called the PSO asking for assistance to gather his clothes
from the home. (Brant Depo. at 111:12-16; Eileen Kates Depo.
at 166:21-169:1). That the PSO officers also looked around
the property for ordinance violations or inquired after Ryan
Kates, for whom there was an active felony arrest warrant,
31
during the April 4 visit does not render the ILP Program the
moving force behind that visit. Deputy Brant, who was present
during the April 4 visit, testified that the implementation
of the ILP Program did not affect his actions at the Kates
Home during this contact. (Brant Depo. at 112:12-23).
After Ryan Kates turned himself in on the warrant in
early June 2021, the visits to the Kates Home stopped until
July 12, 2021. (Hammelman Depo. at 96:17-20; Ryan Kates Depo.
at Ex. 16). The cessation of contact with the Kates Home after
Ryan Kates turned himself in supports that the purpose of the
PSO contacts in March and April was not an ILP Program-based
desire to harass Ms. Kates.
Turning to the three PSO contacts that took place on
July 12, 15, and 24 of 2021, there is no possibility that the
ILP Program was the “moving force” behind the alleged
constitutional violations for these contacts for two reasons.
First, there is no genuine dispute as to whether PSO deputies
went to the Kates Home in July 2021 because of the ILP Program
in effect at that time. They did not. Ryan Kates was a suspect
in the battery that occurred on July 11, 2021, at a gas
station. (Hammelman Depo. at 96:17-20). He was a suspect
32
because the paper tag the victim pulled from the offender’s
car as the offender fled showed that the car belonged to Ms.
Kates. (Ryan Kates Depo. at Ex. 19 at 7-8). Ryan Kates also
arguably matched the description of the offender. (Id.). This
evidence uncovered in the investigation of a battery, rather
than the ILP Program as outlined in the 2021 ILP Manual, was
the “moving force” for the PSO officers’ visits to the Kates
Home in July 2021.
Second, the 2021 ILP Manual went into effect before these
three contacts and, thus, memorialized the official policy of
the PSO at that time. Again, the 2021 ILP Manual makes no
mention of “problem people.” (Doc. # 64-3). Rather, it only
mentions “prolific offenders” twice (Id. at 8, 14) — a
category that undisputedly never included Ryan Kates. Thus,
there was no ILP Program policy in effect in July 2021 to run
checks on “problem people” or harass their family members.
IV. Conclusion
No genuine dispute of material fact exists as to whether
the ILP Program was the moving force behind any of Ms. Kates’s
alleged constitutional violations. Thus, Sheriff Nocco is
entitled to summary judgment on all claims. Because of this
33
flaw with Ms. Kates’s claims, the Court need not analyze
whether any constitutional violations occurred.
Finally, the Court’s conclusion that the ILP Program was
not the moving force behind the alleged constitutional
violations should not be interpreted as approval of the ILP
Program in general or of how the PSO officers behaved toward
Ms. Kates here.2
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Sheriff Chris Nocco’s Motion for Final Summary
Judgment (Doc. # 63) is GRANTED.
(2) Summary judgment is granted in favor of Sheriff Nocco
and against Plaintiff Eileen Kates on all counts of the
complaint.
(3) The Clerk is directed to enter judgment accordingly and,
thereafter, CLOSE this case.
2 The Court notes that an earlier-filed case challenging the
constitutionality of the ILP Program remains pending, Taylor
et al v. Nocco, 8:21-cv-555-SDM-CPT (M.D. Fla. 2021). The
plaintiffs in Taylor were designated by the PSO as “prolific
offenders” or are the family members of “prolific offenders.”
34
DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of September, 2023.
VIR IA M. HERNANDEZ’*COVINGTON
UNITED STATES DISTRICT JUDGE
35