Yaeger v. Lowry

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHAWN YEAGER,

Plaintiff,

v. Case No. 8:18-cv-2474-TPB-TGW

BRADLEY LIVELY, et ail.,

Defendants.

ORDER

Yaeger’s action under 42 U.S.C. § 1983 alleges that the defendants

violated his civil rights when police officers forced their way into and searched

his hotel room without a search warrant. Yaeger alleges (1) that he was

residing inside the Residence Inn hotel and that his paid stay would expire at

noon on April 15, 2017, and (2) that, two hours before expiration of his paid stay

the hotel manager called police to evict Yaeger as a trespasser. Deputies from

the Hillsborough County Sheriffs Office arrived and, at the manager's

instruction, forcibly entered Yaeger’s room. Based on a search of the room,

Yaeger was arrested and charged with trespassing, drug trafficking, possessing

drug paraphernalia, and resisting arrest.

1 Yaeger was charged with these offenses in state court, but the charges were dropped

in favor of federal charges in Virginia, which ended with his plea agreement to conspiracy to

distribute 50 grams or more of methamphetamine and federal imprisonment for 168 months.

I. BACKGROUND

An earlier order dismisses the Hillsborough County Sheriffs Office and

both the hotel and its manager (Doc. 12), and another order stays Yaeger’s

claims against defendant Deputy Sheriff Michael Lowry because of his

temporary active-duty military assignment. (Docs. 36) In March 2020 this

action was stayed and administratively closed (Doc. 51) pending Yaeger’s

transfer to another institution and surgery on both arms for nerve damage,

which transfer and surgery were delayed due to the COVID-19 pandemic. On

June 3, 2022, the action was re-opened upon the filing of Yaeger’s Third

Amended Complaint. (Doc. 81)

This action proceeds under Yaeger’s Fourth Amended Complaint (Doc.

96), which Yaeger filed in response to Defendants’ Motion to Dismiss the Third

Amended Complaint. The court permitted the fourth pleading because,

although untimely under the stipulated case management report, the “proposed

Fourth Amended Complaint includes two separate counts (and causes of action)

and specifically identifies which Defendants are assigned liability for each

count[, and] under these circumstances the Fourth Amended Complaint is a

considerably improved pleading that will both help the district court’s review of

this action and ensure an intended claim is not overlooked.” (Doc. 94 at 2) In

accord with an earlier order, the action is now ripe for review under the Fourth

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Amended Complaint, Defendants’ Motion to Dismiss,? Yaeger’s opposition, and

Defendants’ reply. (Doc. 96, 98, 111, and 113)

Il, MOTION TO DISMISS

Defendants move (Doc. 98) under Rule 12(b)(6), Federal Rules of Civil

Procedure, to dismiss the complaint for failing to state a claim upon which

relief can be granted. A pro se complaint receives a generous interpretation,

see, e.g., Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), and Kirby v.

Stegleman, 195 F.3d 1285, 1289 (11th Cir. 1999), and the allegations in the

complaint are viewed in the light most favorable to the plaintiff. Omar ex rel.

Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003), Hill v. White, 321 F.3d

1334, 1335 (11th Cir. 2003). However, the need to generously construe a pro se

pleading “does not give a court license to serve as de facto counsel for a party, or

to rewrite an otherwise deficient pleading in order to sustain an action.”

Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014). The

allegations of fact and any reasonable inference must combine to “state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007).

2 An earlier order (Doc. 78) continued the stay of Yaeger’s claims against Dep. Lowry,

who was never served with process and who as of April 2022 remained on indefinite active

duty with the National Guard. However, Dep. Lowry moves to dismiss Yaeger’s claims, which

motion is “filed without waiving any service of process defenses that may be applicable.” (Doc.

98 at 1, n.1)

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Il, UNDISPUTED FACTS? AND BACKGROUND

Using the alias “Jonathan Pochop,” Yaeger was a registered guest at the

Residence Inn in Tampa, Florida, with a reservation from April 3 to April 15,

2017. On April 14th Yaeger attempted to extend his reservation for two more

days, but on the morning of April 15th the reservation service advised the

Residence Inn that Yaeger used a fraudulent credit card for the reservation. At

10 a.m. on April 15th the hotel manager advised Yaeger to vacate the premises

immediately notwithstanding the normal noon check-out deadline two hours

later. When Yaeger refused, the hotel manager called the police.

Hillsborough County Deputy Sheriffs Michael Lowry and Benjamin

Thompson arrived and in their presence at Yaeger’s room the manager again

told Yaeger to vacate the premises. (Exhibits G and I attached to Yaeger’s

opposition, Docs. 111-7 and 111-9) Yaeger refused, claiming that he was not

trespassing because he had two more hours before required to check-out and

that a search warrant was necessary to enter the room. Dep. Lowry responded

that a search warrant was not necessary and he would enter the room by force

if necessary. Yaeger admits hearing the manager tell the officers, “J authorize

you to force entry into this hotel room.” (Fourth Amended Complaint, Doc. 96-1

at 9) The manager gave the officers a master key to enter the room.

3 These facts are as Yaeger either asserts in his pleadings or presents in opposition to the

Motion to Dismiss, as well as facts that the district court can judicially notice from filings in other

courts. om

Dep. Lowry forced entry into the room to break the security chain that kept the

door from fully opening.

Once inside the room Yaeger was handcuffed and seated at a table.

Officers saw crystal methamphetamine, drug paraphernalia, and equipment to

make fraudulent identification cards. After the deputies’ supervisor arrived,

Yaeger signed a consent to search. Dep. Thompson found that a fugitive

warrant was outstanding for Yaeger, who admitted that the warrant applied to

him even though issued under one of several aliases. (Exhibit I, Doc. 111-9)

Yaeger was transported to the county jail.

Based on the events at the hotel and Dep. Lowry’s reports, the State

Attorney charged Yaeger with three misdemeanors (trespassing, possession of

drug paraphernalia, resisting arrest without violence) and one felony

(trafficking in illegal drugs). (Exhibit J, Doc. 111-10)

After his arrest at the Residence Inn, Yaeger was returned to Virginia

where he pleaded guilty to conspiracy to distribute 50 grams or more of

methamphetamine.‘ The Virginia federal charges alleged that, from November

2015 until his arrest on April 15, 2017, Yaeger and others conspired in Virginia,

Florida, and New Jersey to traffick in drugs, produce counterfeit debit and

credit cards, and defraud banks. Each of the three charges was tied to his

4 United States District Court for the Eastern District of Virginia, case number 1:17-cr-231-001.

(Judgment, Exhibit A, Doc. 111-1)

5.

activities at the Residence Inn. According to the statement of facts, which was

incorporated into the plea agreement, (1) regarding the drug trafficking:

“Yaeger utilized hotels and apartments in Virginia, Florida, New Jersey, and

elsewhere, to, among other things, receive, possess, and distribute

methamphetamine for profit” (Exhibit 111-2 at 2, 77); (2) regarding the

producing fraudulent cards: “In and around April 2017, in Hillsborough

County, Florida, Yaeger possessed access device making equipment, to wit: a

magnetic reader/writer MSR 605, a Datacard SP75 printer, and numerous

blank plastic cards with magnetic strips” (Exhibit 111-2 at 4, 912(e)); and

(3) regarding the scheme to defraud banks: “Yaeger relocated to at least three

districts, including the Eastern District of Virginia, the Middle District of

Florida, and the District of New Jersey, to evade detection and apprehension by

law enforcement” (Exhibit 111-2 at 6, 915(a)). Under the “Forfeiture

Agreement” provision in the plea agreement, Yaeger “agree[ed] to forfeit all

interests in related assets ... including but not limited to the following specific

property: ...computers, telecommunications devices, and other electronic

devices seized at a hotel room utilized by the defendant in Hillsborough County,

Florida, in April 2017... .” (Exhibit 111-3 at 8-9, 915).

In his sentencing memorandum for the federal conviction, Yaeger

admitted (1) that the Florida state court drug charges based on the Residence

Inn arrest were related to the Virginia federal charges: “On April 15, 2017,

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Mr. Yaeger was arrested in Hillsborough County, Florida on drug charges

related to the instant drug conspiracy” and (2) that the Florida state charges

were dropped because of the federal charges in Virginia: “On August 21, 2017,

the Florida state charges were dropped in favor of the federal prosecution.”

(Exhibit 111-4 at 2) Also, in his sentencing memorandum Yaeger asserted

entitlement to credit for time detained in Florida on the related state charges:

“Finally, because Mr. Yaeger was held in Florida State custody on charges

related to the instant federal case, and because those charges were dropped in

favor of federal prosecution, Mr. Yaeger requests that the time he spent in

Florida state custody awaiting trial — four months in total — be credited to his

federal sentence.” (Id. at 1-2) The judgment in the federal case shows that

Yaeger’s request was granted: “The defendant is hereby committed to the

custody of the United States Bureau of Prisons to be imprisoned for a term of

ONE HUNDRED SIXTY-EIGHT (168) MONTHS, with credit for time served,

including time served in state custody in Florida awaiting trial.” (Exhibit 111-1

at 2)

IV. ANALYSIS

Yaeger alleges that Dep. Lowry’s entry into the hotel room violated his

Fourth Amendment right (1) to be free from both a warrantless search and an

unlawful seizure of his person and property and (2) to be free from an arrest

without probable cause. Yaeger requests compensatory damages of

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$7,800,000.00; he does not specifically request relief from the Virginia federal

conviction, which, of course, he cannot obtain in a civil rights action. In other

words, Yaeger cannot directly challenge his criminal conviction in this civil

rights action. Nevertheless, under Heck v. Humphrey, 512 U.S. 477 (1994),

Yaeger cannot proceed with this civil rights action if a favorable decision would

question the validity of the Virginia federal criminal conviction. In other words,

Yaeger cannot indirectly challenge his criminal conviction in this civil rights

action.

A. Heck v. Humphrey:

If a state prisoner challenges the fact or duration of confinement, the

exclusive federal remedy is a writ of habeas corpus. Preiser v. Rodriquez,

411 U.S. 475, 500 (1973). This long-standing principle was further explained

in Heck v. Humphrey, 512 U.S. at 486-87:

We hold that, in order to recover damages for [an] allegedly

unconstitutional conviction or imprisonment, or for other harm caused by

actions whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas

corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship

to a conviction or sentence that has not been so invalidated is not

cognizable under § 1983. Thus, when a state prisoner seeks damages in a

§ 1983 suit, the district court must consider whether a judgment in favor

of the plaintiff would necessarily imply the invalidity of his conviction or

sentence; if it would, the complaint must be dismissed unless the plaintiff

can demonstrate that the conviction or sentence has already been

invalidated.

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Heck requires dismissal of the civil rights complaint if a ruling in the plaintiff’s

favor questions the validity of the conviction or sentence. A claim under Section

1983 does not exist unless the plaintiff first prevails on habeas corpus.

“[A] § 1983 cause of action for damages attributable to an unconstitutional

conviction or sentence does not accrue until the conviction or sentence has been

invalidated.” Heck, 512 U.S. at 489-90. See also Spencer v. Kemna, 523 U.S. 1,

21 (1998) (“[A] state prisoner may not maintain an action under 42 U.S.C.

§ 1983 if the direct or indirect effect of granting relief would be to invalidate the

state sentence he is serving.”). Moreover, although it involved the indirect

challenge to a state conviction, Heck applies to an indirect challenge to a federal

conviction. Brestle v. United States, 414 F. App’x 260 (11th Cir. 2011)5

(applying Heck to a civil rights complaint that challenges the underlying basis

of a federal conviction).

Yaeger alleges that he was subjected to both an “unlawful seizure of his

person” (Count One) and an “arrest without probable cause (Count Two).

(Doc. 96 at 15 and 17). As outlined above, in the federal conviction Yaeger

admitted that his arrest at the Residence Inn is related to the federal charges.

Although Yaeger now disputes the inter-relationship, the linchpin to the

inter-relationship is that the federal conviction is for conspiracy — not just

° “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. Rule 36-2.

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trafficking or possessing drugs in Virginia — and the conspiracy admittedly

involved the events from the Residence Inn. Consequently, Yaeger’s

entitlement to relief in this civil rights action is barred under Heck to the extent

based on his contention that he was unlawfully arrested.

However, Heck does not necessarily bar a claim based on an unlawful

search and seizure of property. In Count One Yaeger alleges that his rights

under the Fourth Amendment were violated by a “warrantless search and

unlawful seizure of his... property.” (Doc. 96 at 15) Whether Heck bars such a

claim is highly fact dependent, as Weaver v. Geiger, 294 F. App’x 529, (11th Cir.

2008), explains:

We have previously held that such claims can be brought even without

proof that the underlying conviction has been called into question. See

Hughes[ v. Lott], 350 F.3d [1157,] 1160 [(11th Cir. 2003)] (“Because an

illegal search or arrest may be followed by a valid conviction, ...a

successful § 1983 action for Fourth Amendment search and seizure

violations does not necessarily imply the invalidity of a conviction. As a

result, Heck does not generally bar such claims.”). However, we have also

determined that Heck would still preclude those claims that “if successful,

would necessarily imply the invalidity of the conviction because they

would negate an element of the offense.” Jd. at 1160 n. 2. In order to

determine whether such a negation would occur, we must look at both

“the claims raised under § 1983” and “the specific offenses for which the

§ 1983 claimant was convicted.” Id.

Accord. Baxter v. Crawford, 233 F. App’x 912, 916 (11th Cir. 2007) (quoting

Hughes). Based on the undisputed facts in this case, Heck bars Yaeger’s claim

of unlawful search and seizure of his property because the items seized from the

hotel room were both identified as part of the conspiracy that was the subject of

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the Virginia criminal prosecution and forfeited under the terms of the plea

agreement.

Consequently, all claims alleged the Fourth Amended Complaint are

barred under Heck. Yaeger fails to state a claim for relief because the

complaint fails to allege that the conviction was “reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court’s issuance of

a writ of habeas corpus....” Heck, 512 U.S. at 487. This dismissal is without

prejudice to Yaeger’s re-filing his Section 1983 claim after invalidation of the

conviction,

B_ Merits:

Alternatively, even if not barred under Heck, Yaeger’s claims are

meritless. See, e.g., Baker v. McCollan, 443 U.S. 137, 145 (1979) (“The

Constitution does not guarantee that only the guilty will be arrested. If it did,

§ 1983 would provide a cause of action for every defendant acquitted — indeed,

for every suspect released.”); Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir.

2009) (“Arguable probable cause exists where reasonable officers in the same

circumstances and possessing the same knowledge as the Defendant could have

believed that probable cause existed to arrest.”) (internal quotations omitted).

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1. Count One:

Yaeger sues Deputy Sheriffs Michael Scott Lowry, Ryan M. Balseiro,

Shawn M. Lunghi, Breanna C. Rodriguez, and Benjamin D. Thompson for

violating his Fourth Amendment right to be free from a warrantless search and

unlawful seizure of his person and property. (Doc. 96 at 15) The relevant

undisputed facts are (1) that the hotel manager ordered Yaeger to vacate the

premises, (2) Yaeger refused even after being told that his refusal would result

in forced entry into the room because Yaeger was then a trespasser, and

(3) Dep. Lowry entered the room and arrested Yaeger for trespassing. No

arrest warrant was required because Dep. Lowry was witnessing the offense

and no search warrant was required because the officers could legally enter the

room, after which Yaeger signed a consent to search.

2, Count Two

Yaeger sues Dep. Lowry for violating his Fourth Amendment right to be

free from arrest without probable cause. (Doc. 96 at 17) As explained

immediately above, Yaeger’s refusal to vacate the premises after being warned

that he would be subject to arrest for trespassing established probable cause for

his arrest. Whether he had a couple hours remaining on his reservation is

irrelevant to the lawfulness of his arrest for trespass; any dispute about the

time remaining on his reservation was a state-law civil issue between he and

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the hotel, not a civil rights violation allegedly committed by the officers who

were authorized to force entry into the room to arrest Yaeger for trespassing.

3. Qualified Immunity:

“[Q]ualified immunity operates ‘to ensure that before they are subjected

to suit, officers are on notice their conduct is unlawful.’” Hope v. Pelzer, 536

U.S. 730, 739 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). And

“({wlhile an officer who arrests an individual without probable cause violates the

Fourth Amendment, this does not inevitably remove the shield of qualified

immunity.” Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007).

For qualified immunity on a claim of unlawful arrest, an officer need not

have actual probable cause, but only arguable probable cause. Holmes v.

Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003). Arguable probable cause exists

where “ ‘reasonable officers in the same circumstances and possessing the same

knowledge as the [dJefendants could have believed that probable cause existed

to arrest □□□□□□□□□□□□□□□□□□□□□□ Kingsland v. City of Miami, Fla., 382 F.3d 1220,

1232 (11th Cir. 2004) (quoting Von Stein v. Brescher, 904 F.2d 572, 579 (11th

Cir. 1990)). The plaintiff bears the burden to “demonstrate that no reasonable

officer could have found probable cause under the totality of the circumstances.”

Id. Thus, “[e]ven law enforcement officials who ‘reasonably but mistakenly

conclude that probable cause is present’ are entitled to immunity.” Hunter v.

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Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson. v. Creighton, 483 U.S. 635,

641 (1987)).

Additionally, qualified immunity protects officers who make good faith

mistakes. Post v. City of Fort Lauderdale, Fia., 7 F .3d 1552, 1558 (11th Cir.

1993) (granting qualified immunity on the basis of arguable probable cause

where the officers erroneously counted people in excess of a restaurant’s

maximum capacity), modified, 14 F.3d 583 (11th Cir. 1994) (per curiam).

Consequently, even if Heck is inapplicable and even if the officers lacked

probable cause to arrest Yaeger, qualified immunity protects the officers from

liability.

Accordingly, the motion to dismiss (Doc. 98) is GRANTED. The clerk

must enter a judgment for Defendants and CLOSE this case.

ORDERED in Tampa, Florida, on 4] LY o008.

NG

‘THOMAS P.BARBER

UNITED STATES DISTRICT JUDGE

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