Kindell v. Wolf

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KOREY KINDELL,

Plaintiff,

v. Case No. 8:20-cv-3119-MSS-CPT

JAMES M. WOLFF, et al.,

Defendants.

___________________________________/

O R D E R

Kindell sues Detective James Wolff, Detective Nicole Sackrider, Officer Leigh

Mathisen, and Officer Charles Eason for federal civil rights violations. (Doc. 58) The

Defendants move to dismiss Kindell’s third amended complaint. (Doc. 63) Kindell files a

response (Doc. 66) and five supplements (Docs. 67, 69, 72, 74, and 76), and submits

documents in support of his response. (Doc. 68)1 After reviewing the third amended complaint

and the relevant documents, the Court GRANTS IN PART and DENIES IN PART the

Defendants’ motion (Doc. 63) to dismiss.

FACTS

Kindell’s third amended complaint alleges the following facts. On October 26, 2018,

around 10:00 P.M., the Defendants responded to the scene of a shooting. (Doc. 58 at 14) At

the scene, the Defendants learned that Derrick Burts suffered a gunshot wound. (Doc. 58 at

14) Kindell alleges that he told the Defendants that he and Burts yelled at each other in the

1 Also, Kindell moves for a ruling on the motion to dismiss (Docs. 75 and 77) and moves for

appointment of counsel. (Doc. 62)

middle of the street during an argument, and he went inside, changed his clothes, and left

before the shooting. (Doc. 58 at 14)

Kindell alleges that Eason arrested him without a warrant for aggravated battery with

a deadly weapon. (Doc. 58 at 14–15) Kindell further alleges that Eason falsely stated in a

report that Burts identified Kindell as the shooter and that a surveillance video depicted

Kindell shoot Burts. (Doc. 58 at 14–15) He alleges that Mathisen falsely stated to Eason that

Burts identified Kindell as the shooter. (Doc. 58 at 15–16) He alleges that, after interviewing

a neighbor, Wolff falsely stated in a report that the neighbor described the shooter as a “black

male in his thirties or forties with short hair, wearing a white shirt, black shorts, and white

socks.” (Doc. 58 at 16) Lastly, he alleges that Sackrider falsely stated in a report that Kindell

was “positively identified via RMS photo.” (Doc. 58 at 17)

Kindell alleges that police later learned that fingerprints on a firearm recovered from

the scene did not match Kindell’s fingerprints. (Doc. 58 at 14) A jury acquitted Kindell of

aggravated battery with a firearm. (Doc. 58 at 14) However, Kindell was serving a

probationary sentence when the shooting occurred, and a trial judge determined that Kindell

violated conditions of his probation and sentenced him to five years in prison. (Doc. 58 at 14)

Kindell asserts that the Defendants violated his federal rights by falsely arresting him

and fabricating evidence and demands $300,000.00 from each Defendant. (Doc. 58 at 5, 13)

He attaches to his complaint police reports, an arrest affidavit, his booking photograph, trial

testimony, deposition testimony, hearing transcripts, and a DNA report. (Doc. 58 at 19–65)

He submits with his response to the Defendants’ motion to dismiss additional documents

related to the investigation of his criminal case. (Doc. 68)

STANDARD OF REVIEW

Allegations in a pro se pleading are reviewed liberally. Haines v. Kerner, 404 U.S. 519,

596 (1972). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation omitted). “While legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

DISCUSSION

Documents Submitted by Kindell

The Defendants assert that the Court may consider the documents attached to the third

amended complaint when determining whether the complaint states a claim under Rule

12(b)(6), Federal Rules of Civil Procedure. (Doc. 63 at 5) Because a document attached to a

pleading is part of the pleading, the Court will consider the documents attached to the

complaint when reviewing the Defendants’ motion to dismiss. Fed. R. Civ. P. 10(c) (“A copy

of a written instrument that is an exhibit to a pleading is a part of the pleading for all

purposes.”). MSP Recovery Claims, Series LLC v. Metro. Gen. Ins. Co., 40 F.4th 1295, 1303 (11th

Cir. 2022) (“‘In deciding whether a complaint states a claim upon which relief may be granted,

we normally consider all documents that are attached to the complaint or incorporated into

it by reference.’”) (citation omitted).

Kindell submits additional documents related to the investigation of his criminal case

in support of his response to the Defendants’ motion to dismiss. (Doc. 68) Because those

documents are not attached to Kindell’s complaint, the Court will not consider those

documents when reviewing the motion to dismiss. However, Kindell submits with the

response the affidavit by Eason in support of Kindell’s arrest for aggravated battery with a

deadly weapon. (Doc. 68 at 30) Because the arrest affidavit is central to Kindell’s claims for

false arrest and fabrication of evidence and the arrest affidavit is a public record that the Court

may judicially notice, the Court will consider the affidavit when reviewing the Defendants’

motion to dismiss. Eiras v. Florida, 239 F. Supp. 3d 1331, 1341 (M.D. Fla. 2017) (“[A] court

may take judicial notice of matters of public record, including arrest warrants, and consider

those facts in resolving a motion to dismiss.”) (citing Brivik v. Law, 545 F. App’x 804, 806

(11th Cir. 2013)2).

In the affidavit, Eason stated that the following facts to establish probable cause for

Kindell’s arrest (Doc. 68 at 30):

On the above date and time, the victim and the defendant were

observed via surveillance video standing in the [redacted] of

[redacted]. Both parties were engaged in a verbal altercation

when the defendant displayed a handgun and proceeded to shoot

the victim in the lower abdomen one time. The victim then fled

north from this location where he arrived at a nearby business

and advised employees he was shot. The defendant fled in an

unknown direction.

The victim advised he and the defendant have resided at this

residence for months and interact on a daily basis. The victim

positively identified the defendant as the person who shot him

via HCSO booking photograph.

The offense was captured via surveillance video.

Because Kindell alleges that the police reports and arrest affidavit contain false

statements by the Defendants (Doc. 58 at 14–17), the Court will not treat the statements in

the documents as true. Edwards v. Dothan City Schs., 82 F.4th 1306, 1311 (11th Cir. 2023)

(“When a document considered at the motion to dismiss stage contains ‘ambiguities . . .

2 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

subject to interpretation,’ courts should interpret all ambiguities in the plaintiff’s favor.”)

(citation omitted).

False Arrest — Mathisen and Eason

In the complaint, Kindell contends that Mathisen and Eason falsely stated in police

reports that the victim identified him as the shooter and that video surveillance depicted him

as the shooter. (Doc. 58 at 14–16) He asserts that Eason relied on these false statements to

manufacture probable cause for his arrest. (Doc. 58 at 14–16)

Mathisen and Eason assert that the following police report by Officer Joseph

Aduddell, attached to the complaint, refutes these allegations (Doc. 58 at 36):

On October 26, 2018, at approximately [12:38 A.M.], Officer

Kuhn and I were riding as a two-man unit and we responded to

Floribraska Avenue and Nebraska Avenue North in reference to

an aggravated battery. . . . I was advised by multiple people that

they heard a gunshot outside. I was directed to a camera system

that was operable and attempted to locate any video of the

incident. I then located video of the incident.

Video: Timestamps

22:06:00 – Defendant exits residence.

22:08:00 – Victim exits residence.

22:08:30 – Aggravated battery occurs; victim falls to ground.

22:08:39 – Victim stands up and runs east.

22:09:25 – Defendant returns to residence.

Mathisen and Eason contend that the video recording depicts Kindell and the victim standing

in the street, and the victim suddenly falling to the ground. (Doc. 63 at 7) The Defendants

contend that the recording established probable cause for Kindell’s arrest. (Doc. 63 at 7)

However, in the complaint, Kindell alleges that the video does not clearly depict the

identity of the individual who shot the victim. (Doc. 58 at 15) He further alleges that “all of

the other officers” presented false statements in reports to establish probable cause for his

arrest. (Doc. 58 at 14–16) Even though Kindell attached to his complaint the police report by

Officer Aduddell summarizing the contents of the video, the Court must construe any

ambiguity in the report in the light most favorable to Kindell. Consequently, the police report

does not refute the claim. Edwards, 82 F.4th at 1311.

Mathisen and Eason further assert that deposition and trial testimony by the victim,

attached to the complaint, refute the allegation that the victim did not identify Kindell as the

shooter. (Doc. 63 at 8) However, in the excerpt of the deposition attached to the complaint,

the victim testified that, before Kindell’s arrest, he did NOT identify Kindell as the shooter

(Doc. 58 at 64–65):

[Trial counsel:] All right. Now, when the police first spoke

to you, were you still at the store or was

that at the hospital?

[Victim:] Both.

[Trial counsel:] Okay. And at one point, did you tell the

police that you did not know who shot

you?

[Victim:] Uh-huh.

[Trial counsel:] That’s a yes?

[Victim:] Yes.

[Trial counsel:] Alright. Why did you tell the police that?

[Victim:] Because you don’t tell in the street.

[Trial counsel:] Okay. And at a later point, did you tell the

police what happened?

[Victim:] No. At a later point, the police told me that

they had it on camera and they showed me

a picture of it.

[Trial counsel:] And was that the video that was outside the

boarding house?

[Victim:] Well, they told me that they had the

surveillance video. But they showed me a

picture of his mug shot and said they know

what happened. So — and then told me

that they talked to that guy, Benjamin. You

know what I’m saying? And that they knew

everything.

So there’s no reason for me to sit up there

and just continue to lie. Like, you know

what I’m saying? I told them, if you got

your case, you got your case. Like just, you

know, you can let me get well and I can go

home.

Also, in the excerpt of the trial testimony attached to the complaint, the victim testified

again that, before Kindell’s arrest, he did NOT identify Kindell as the shooter (Doc. 58 at

52–53):

[Trial counsel:] Mr. Burts, yes or no. Do you recall saying

that you attempted to swing and hit Mr.

Kindell? Referring to page 27 of the

transcript.

[Victim:] I don’t recall. I don’t recall.

[Trial counsel:] Now, after you were shot, you ran across

the street.

[Victim:] Yes, ma’am.

[Trial counsel:] And when you were outside, there were

different people you saw outside.

[Victim:] I really didn’t see anybody at the moment.

When I went to Checkers, I [saw]

somebody I was talking to previously, a

Caucasian guy, a friend of mine, and I just

asked him to call 911.

[Trial counsel:] Okay. And some of the people outside

assisted you by calling the police.

[Victim:] Well, I didn’t say call the police. I said call

the ambulance. Yes.

[Trial counsel:] Okay. But somebody called the police for

you.

[Victim:] The ambulance.

[Trial counsel:] Now, while you were speaking to that male

outside, he asked you who shot you.

[Victim:] No.

[Trial counsel:] Did you tell him that you didn’t know who

shot you?

[Victim:] Yes.

[Trial counsel:] Okay. Now, after the ambulance came, the

police came as well.

[Victim:] Yes.

[Trial counsel:] And the police also asked you questions

about who shot you.

[Victim:] Yes.

[Trial counsel:] And you also told the police you didn’t

know who shot you.

[Victim:] Yes, I did say I didn’t know who shot me.

Because the transcripts do not demonstrate that the victim identified Kindell as the shooter,

the transcripts do not refute Kindell’s claim. Edwards, 82 F.4th at 1311.

False Arrest — Sackrider

In the complaint, Kindell asserts that Sackrider falsely stated in a report that “Kindell

was ‘positively identified via RMS photo.’” (Doc. 58 at 17) Kindell contends that the

surveillance video does not clearly depict the individual who shot the victim. (Doc. 58 at 17)

The allegedly false statement appears in an arrest affidavit for a probation violation, signed

by Sackrider and attached to the complaint (Doc. 58 at 38):

The defendant was arrested for aggravated battery with a deadly

weapon (see TPD #18-548984). This arrest was in direct violation

of the defendant’s probation which began on January 8, 2018 for

false imprisonment (case #T96790) with an anticipated release

date of January 4, 2021. The defendant [ ] also left the residence

past his curfew of [10:00 P.M.], which he admitted post-Miranda.

The defendant was positively identified via RMS photo.

Sackrider contends that, viewed in the context of the entire affidavit, the statement

conveys that Sackrider viewed a photograph of Kindell to confirm that he was the individual

who was serving the probationary sentence in the false imprisonment case. (Doc. 63 at 9) She

contends that “RMS” refers to the Tampa Police Department’s records management system.

(Doc. 63 at 9) However, in a deposition, attached to the complaint, the victim testified that

police showed him Kindell’s “mug shot” and asked if Kindell was the shooter. (Doc. 58 at

65) Also, the arrest affidavit for aggravated battery states that “[t]he victim positively

identified the defendant as the person who shot him via HSCO booking photograph.” (Doc.

68 at 30) Construing the arrest affidavit signed by Sackrider in the light most favorable to

Kindell, the statement refers to the victim’s alleged identification of Kindell as the shooter

before Kindell’s arrest. Kindell alleges that Sackrider’s statement is false. (Doc. 58 at 17)

Transcripts attached to the complaint demonstrate that the victim did not identify Kindell as

the shooter. (Doc. 58 at 52–53, 64–65) Consequently, the police report does not refute the

claim. Edwards, 82 F.4th at 1311.

Sackrider further contends that a police report attached the complaint states that police

went to the boarding house where Kindell lived after midnight on the night of the shooting

and Kindell was not home. (Doc. 63 at 10) Sackrider contends that the police report

demonstrates that Kindell was not home after midnight and that probable cause supported

Kindell’s arrest for violating a condition of probation by leaving his residence after curfew.

(Doc. 63 at 10)3

The affidavit supporting Kindell’s arrest for the probation violation states that

“[Kindell] also left the residence past his curfew of [10:00 P.M.], which he admitted

post-Miranda.” (Doc. 58 at 38) In his complaint, Kindell alleges that “he told police that he

and Burt’s yelled at each other in the street during the argument, and he went inside to change

his clothes and left.” (Doc. 58 at 14) In a police report attached the complaint, Wolff stated

that he arrived at the scene of the shooting at 10:02 P.M., spoke with Kindell’s neighbor,

identified Kindell as a suspect, and “circulated the area but [was] unable to find [Kindell].”

(Doc. 58 at 27) Wolff further stated that he arrested Kindell at 12:52 A.M. after Kindell

returned home. (Doc. 58 at 27)

In his report, Wolff did not state that, after 10:00 P.M., he went to Kindell’s home and

determined that he was not at home. Wolff instead stated that, after speaking with Kindell’s

neighbor, he “circulated the area but was unable to find [Kindell].” (Doc. 58 at 27) Even if a

reasonable inference could be drawn from this ambiguous statement that Kindell was not

3 Sackrider contends that a police report on page 36 of the third amended complaint states

that “several police officers went to the boarding house after midnight on October 26, 2018,

and [Kindell] was not present when they arrived.” (Doc. 63 at 10) Page 36 of the third

amended complaint consists of a police report by Officer Aduddell summarizing the

surveillance video. (Doc. 58 at 36) The report does not state that police officers arrived at the

boarding house after midnight and determined that Kindell was not present.

home and returned home at 12:52 A.M. when police arrested him, Kindell alleges that the

police reports contain false statements and that police officers relied on those false statements

to manufacture probable cause for his arrest. (Doc. 58 at 14–17) Also, none of the records

attached to the complaint demonstrate that a condition of Kindell’s probationary sentence

prohibited Kindell from leaving his home after 10:00 P.M. A police report attached to the

complaint states that Kindell lived at a boarding house (Doc. 58 at 39), and the boarding

house could have imposed the curfew. Because the Court must construe any ambiguity in the

police reports in the light most favorable to Kindell, Wolff’s police report does not refute the

claim. Edwards, 82 F.4th at 1311.

False Arrest — Wolff

In the complaint, Kindell asserts that Wolff falsely stated in a police report that a

neighbor observed the shooting and described the “shooter” as a “black male in his thirties

and forties with short hair wearing a white shirt, black short[s], and white socks.” (Doc. 58 at

16) Kindell alleges that Wolff lied about the neighbor’s statement in the police report because

the neighbor later testified in a deposition that she did not observe the shooting. (Doc. 58 at

16) Kindell contends that police falsely arrested him based on the false statement about the

neighbor’s observation. (Doc. 58 at 16)

Wolff responds that Kindell fails to demonstrate how police relied on the neighbor’s

observation to establish probable cause for Kindell’s arrest for aggravated battery. (Doc. 63 at

9) In the arrest affidavit, Eason did not rely on the neighbor’s description of the shooter to

establish Kindell’s identity as the shooter and instead relied on the alleged victim’s

identification (Doc. 68 at 30):

The victim advised he and the defendant have resided at this

residence for months and interact on a daily basis. The victim

positively identified the defendant as the person who shot him

via HCSO booking photograph.

The offense was captured via surveillance video.

Also, if the Court accepts the allegations in the complaint as true, the neighbor did not identify

Kindell as the shooter and instead provided to police a description of the shooter. Kindell

does not allege that he matched the neighbor’s description of the shooter. Even if Wolff falsely

stated in a police report that the neighbor provided the description, the complaint fails to

allege facts that demonstrate that Eason relied on the allegedly false description to establish

probable cause for Kindell’s arrest. Consequently, Kindell fails to state a claim against Wolff.

Fabrication of Evidence

In each claim in the complaint, Kindell alleges that the Defendants fabricated evidence

in police reports to establish probable cause for his warrantless arrest. (Doc. 58 at 14–17) The

Defendants construe these allegations based on the fabrication of evidence as a malicious

prosecution claim and assert that Kindell fails to state a claim. (Doc. 63 at 11–12) If the

allegations in the pro se complaint are construed as a malicious prosecution claim, the

Defendants are correct that Kindell fails to state a claim.

Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020) (citations omitted), explains

the difference between a false arrest claim and a malicious prosecution claim:

A claim of false arrest or imprisonment under the Fourth

Amendment concerns seizures without legal process, such as

warrantless arrests. These claims accrue when either the seizure

ends or the plaintiff is held pursuant to legal process. Malicious

prosecution, in contrast, requires a seizure “pursuant to legal

process.” Of course, warrant-based seizures fall within this

category. So do seizures following an arraignment, indictment,

or probable-cause hearing. A Fourth Amendment violation

involving these seizures occurs “when legal process itself goes

wrong — when, for example, a judge’s probable-cause

determination is predicated solely on a police officer’s false

statements.” In these situations, “[l]egal process has gone

forward, but it has done nothing to satisfy the Fourth

Amendment’s probable-cause requirement.”

For malicious prosecution, a plaintiff must allege facts that demonstrate “(1) that the

defendant violated his Fourth Amendment right to be free from seizures pursuant to legal

process and (2) that the criminal proceedings against him terminated in his favor.” Luke v.

Gulley, 975 F.3d 1140, 1144 (11th Cir. 2020). Kindell does not allege that false statements by

the defendants caused him to suffer a seizure pursuant to “legal process,” such as pretrial

detention after a probable cause determination by a judge. He instead alleges that the

defendants falsely arrested him without a warrant and without probable cause based on

fabricated statements. Consequently, the complaint fails to state a malicious prosecution

claim. See, e.g., Eloy v. Guillot, 289 F. App’x 339, 343 (11th Cir. 2008)4.

Also, Kindell alleges that Sackrider falsely stated in a report that Kindell was

“positively identified via RMS photo.” (Doc. 58 at 17) This allegedly false statement appears

in an affidavit for Kindell’s arrest for violating a condition of his probation. (Doc. 58 at 38)

Kindell alleges that a trial judge determined that he violated conditions of his probation and

sentenced him to five years in prison. (Doc. 58 at 14) Because Kindell fails to allege that the

probation violation proceeding terminated in his favor, a malicious prosecution claim against

Sackrider fails. Luke, 975 F.3d at 1144.

4 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

Fourteenth Amendment Claims

The Defendants also contend that Kindell incorrectly asserts that the Defendants

violated the Fourteenth Amendment by unlawfully arresting him without probable cause.

(Doc. 63 at 12–13) The Defendants assert that the Fourth Amendment applies to Kindell’s

claims. (Doc. 63 at 12–13) In his complaint, Kindell cites the Fourth Amendment right against

an unreasonable search or seizure. (Doc. 58 at 3, 5, 13, 14, 15, 16, 17) Kindell does not raise

a federal due process claim under the Fourteenth Amendment. Also, “the Fourteenth

Amendment . . . incorporated the protections of the Fourth Amendment against the States.”

Torres v. Madrid, 592 U.S. 306, 314 (2021). Consequently, the Defendants’ argument based on

the Fourteenth Amendment fails.

Accordingly, the Defendants’ motion (Doc. 63) to dismiss is GRANTED IN PART

and DENIED IN PART. Kindell’s false arrest claim against Wolff and construed malicious

prosecution claims are DISMISSED for failure to state a claim. Because the Court granted

Kindell leave to amend his complaint three times (Docs. 6, 15, 25), the claims are dismissed

WITH PREJUDICE. Woldeab v. DeKalb Cty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir.

2018). The Defendants’ motion to dismiss (Doc. 63) all remaining counts is DENIED, and

Kindell’s motions (Doc. 75 and 77) for a ruling are DENIED as moot.

Also, Kindell moves (Doc. 62) for appointment of counsel. Because “‘the facts and

legal issues are so novel or complex as to require the assistance of a trained practitioner,’”

Kindell’s motion (Doc. 62) is GRANTED. Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir.

1992) (citation omitted). This matter is referred to Judge Christopher Tuite for appointment

of counsel. The Clerk is DIRECTED to STAY and ADMINISTRATIVELY CLOSE this

case until Judge Tuite appoints counsel. No later than 30 DAYS after the appointment of

counsel, the parties must conduct a planning conference and submit a case management

report. M.D. Fla. L.R. 3.02.

DONE AND ORDERED in Tampa, Florida on March 21, 2024.

MARCIA MORALES HOWARD *

United States District Judge

Copies to:

Counsel of Record

Pro Se Parties

* Signed by Judge Marcia Morales Howard to expedite the resolution of this motion. This case

remains assigned to Judge Mary S. Scriven.

15