The opinion
UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT
TAMPA DIVISION
MICHELLE A. WOJCIECHOWSKI,
Plaintiff,
v. CASE NO. 8:23-cv-1885-SDM-TGW
CITY OF NEW PORT RICHEY, et al.,
Defendants.
___________________________________/
ORDER
Alleging that several employees and agents of the City of New Port Richey
stalked, harassed, and forced her to leave the City, Michelle A. Wojciechowski sues
the City; Timothy Driscoll, the City’s attorney; and Charles Morgan, a code enforce-
ment officer, and asserts claims under 42 U.S.C. § 1983, 18 U.S.C. § 2721, and Flor-
ida tort law. Each defendant moves (Docs. 24, 25, and 28) to dismiss.
Wojciechowski opposes (Docs. 35, 36, and 37) each motion to dismiss.
BACKGROUND1
Intending to open a “psychiatric and mental health therapy practice,”
Wojciechowski, a licensed nurse practitioner, purchased property located at 5445
Gulf Drive, New Port Richey, Florida. Wojciechowski believed that she could use
1 During the resolution of a motion to dismiss, each well-pleaded allegation of fact is as-
sumed true.
the property and the structure on the property as an office and a residence. Attempt-
ing to learn which permits and licenses she needed for the practice, Wojciechowski
spoke with an employee of the City’s Building Department. The employee told
Wojciechowski that “‘methadone clinics’ were not welcome” and refused to speak
further with Wojciechowski.
After Wojciechowski spoke with the employee, Morgan cited Wojciechowski
with a “code violation” for using the Gulf Drive property as a residence. When she
received the citation, the property was vacant. Wojciechowski attempted to speak to
City officials, who declined to return Wojciechowski’s calls and e-mails.
Wojciechowski attended city council meetings and began “speaking out about the
[allegedly] unlawful actions of [City] employees.” The City began citing
Wojciechowski with other “code violations” and criminally prosecuted
Wojciechowski based on the alleged violations. For example, the City cited
Wojciechowski for improperly converting the property into a residence, for building
without a permit, for “violating the Florida Building Code based on the alleged occu-
pancy of the building without a certificate of occupancy,” for allegedly tampering
with the City’s water system, and for placing a sign on the property that criticized the
City. The City eventually dismissed each criminal action against Wojciechowski.
According to Wojciechowski, a city council member told Wojciechowski that the
City would continue to cite Wojciechowski if she continued to “complain[] about the
behavior of [City] officials.” Also, during Wojciechowski’s conflict with the City,
Morgan used Florida’s Driver and Vehicle Information Database (DAVID) to obtain
Wojciechowski’s personal information, and the City caused police to park in marked
patrol cars in spaces adjoining the Gulf Drive property.
Based on the allegedly unwarranted code violations, the defendants obtained
an inspection warrant for the Gulf Drive property. Driscoll, Morgan, several law en-
forcement officers, and others broke into the structure on the Gulf Drive property
and without Wojciechowski present searched the trash cans on the property,
searched the structure, and searched Wojciechowski’s personal property and furni-
ture. Further, a locksmith hired by the City changed the lock on the structure’s door.
Wojciechowski submitted grievances and written complaints, which resulted in no
discipline by the City. Instead, the mayor “stated . . . that Wojciechowski and others
like her should ‘just go away.’” Wojciechowski eventually left New Port Richey.
Wojciechowski sues the City, Driscoll, and Morgan. The complaint com-
prises eight counts. Count I asserts against the City and Driscoll a Section 1983
claim for the allegedly unlawful search of the Gulf Drive property. Count II asserts
against the City and Driscoll a Section 1983 claim for the alleged retaliation against
Wojciechowski after she spoke against the City and criticized the City. Count III as-
serts against Morgan a claim under 18 U.S.C. § 2721 for Morgan’s allegedly improp-
erly obtaining Wojciechowski’s personal information. Count IV asserts against the
City and Driscoll a claim for malicious prosecution based on the City’s prosecuting
Wojciechowski for the allegedly unwarranted code violations. Count V asserts
against the City, Driscoll, and Morgan2 a claim for abuse of process based on the
City’s allegedly harassing Wojciechowski with baseless citations for code violations
and with criminal actions. Count VI asserts against the City a claim for negligent
hiring based on the City’s hiring Morgan as a code enforcement officer. Count VII
asserts against the City a claim for negligent training and supervision based on the al-
legedly wrongful conduct of Morgan and other code enforcement officers. Count
VIII asserts against the City and Driscoll a claim for trespass based on the allegedly
unlawful search of the Gulf Drive property. Each defendant moves to dismiss the
claims asserted against that defendant.
ANALYSIS
I. The City’s motion to dismiss
The City argues for dismissal of Wojciechowski’s claims against the City
(1) because several claims lack sufficient supporting allegations, (2) because
Wojciechowski fails to establish that a “policy” or “custom” of the City caused the
alleged injury on which Wojciechowski premises her Section 1983 claims (Counts I
and II), and (3) because the City enjoys sovereign immunity from liability for
Wojciechowski’s claims for malicious prosecution (Count IV) and negligent hiring,
training, and supervision (Counts VI and VII). A review of the complaint confirms
that the allegations, which are assumed true when evaluating a motion to dismiss,
2 Although the complaint asserts both Count III and Count V against Morgan, the parties
apparently agree that Count III is the only claim asserted against Morgan. (Doc. 1 ¶ 91; Doc. 25
at 2; Doc. 37 at 2) This order dismisses the complaint with leave to amend. In any amended com-
plaint, Wojciechowski must in each Count identify the defendant or defendants against whom that
Count states a claim.
sufficiently support the claims that Wojciechowski asserts against the City and that
the City can understand and respond to Wojciechowski’s claims. However, whether
Wojciechowski establishes a “custom” or “policy” and whether the City enjoys sov-
ereign immunity warrant further discussion.
A. “Policy” or “Custom” (Counts I and II)
To assert a Section 1983 claim against the City, Wojciechowski must establish
that a “policy” or “custom” of the City caused her alleged injury. Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). Sewell v. Town of Lake Hamil-
ton, 117 F.3d 488, 489 (11th Cir. 1997), explains that:
A policy is a decision that is officially adopted by the municipal-
ity, or created by an official of such rank that he or she could be
said to be acting on behalf of the municipality. Brown v. City of
Fort Lauderdale, 923 F.2d 1474, 1479–80 (11th Cir. 1991). A cus-
tom is a practice that is so settled and permanent that it takes on
the force of law. Monell, 436 U.S. at 690–91[.]
A city’s protracted failure to train its employees might establish a “policy” or “cus-
tom” if the failure to train “evidences a ‘deliberate indifference’ to the rights” of the
citizens. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). Also, the “persistent
failure to take disciplinary action against officers can give rise to the inference that a
municipality has ratified conduct.” Salvato v. Miley, 790 F.3d 1286, 1297 (11th
Cir. 2015).
Wojciechowski’s allegations are sufficient to establish that the City’s “policy”
or “custom” caused the allegedly unlawful search of Wojciechowski’s property and
caused the alleged retaliation against Wojciechowski after she criticized the City.
Wojciechowski alleges that City officials with decision-making authority adopted
and amended city building codes and ordinances to prevent Wojciechowski from us-
ing the Gulf Drive property. (Doc. 1 ¶ 39) Further, according to Wojciechowski, the
city failed to discipline or otherwise correct any allegedly unlawful action by any
City employee despite Wojciechowski’s complaints to the City. Wojciechowski’s al-
legations sufficiently establish a “policy” or “custom.”
B. Sovereign Immunity (Counts IV, VI, and VII)
Section 768.28(9)(a), Florida Statutes, explains:
The exclusive remedy for injury or damage suffered as a result of
an act, event, or omission of an officer, employee, or agent of the
state or any of its subdivisions or constitutional officers is by ac-
tion against the governmental entity, or the head of such entity
in her or his official capacity, or the constitutional officer of
which the officer, employee, or agent is an employee, unless such
act or omission was committed in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard
of human rights, safety, or property.
In other words, the City is liable for any tort, negligent or intentional, by an em-
ployee unless the employee’s tort was “committed outside the course and scope of
[the employee’s] employment or unless the [employee] was acting in bad faith or
with a malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.” Richardson v. City of Pompano Beach, 511 So. 2d
1121, 1123 (Fla. 4th DCA 1987).
But Section 768.28(9)(a) permits no claim based on a “discretionary . . . gov-
ernmental act,” that is, an “act [that] involved an exercise of executive or legislative
power such that, for the court to intervene by way of tort law, it inappropriately
would entangle itself in fundamental questions of policy and planning.” Kaisner v.
Kolb, 543 So. 2d 732, 733, 737 (Fla. 1989). An act is “discretionary” if:
(1) the action involves a basic governmental policy, program, or
objective; (2) the action is essential to the realization or accom-
plishment of that policy, program, or objective; (3) the action re-
quire[s] the exercise of basic policy evaluation[s], judgment[s],
and expertise on the part of the governmental agency involved;
and (4) the governmental agency involved possess[es] the requi-
site constitutional, statutory, or lawful authority and duty to do
or make the challenged act, omission, or decision.
Lewis v. City of St. Petersburg, 260 F.3d 1260, 1264 (11th Cir. 2001) (quoting Trianon
Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985)) (alterations
in original). For example, a decision to hire or fire an agency head or a city-policy
decision about the content of a training for employees might constitute a discretion-
ary decision. Lewis, 260 F.3d at 1266; Storm v. Town of Ponce Inlet, 866 So. 2d 713,
719 (Fla. 5th DCA 2004).
The City contends that sovereign immunity bars Wojciechowski’s claim for
malicious prosecution (Count IV). Because malicious prosecution necessarily re-
quires malice by the defendant, Section 768.28(9)(a) permits against a city no claim
for malicious prosecution. Irani v. City of Hallandale, 756 So. 2d 110 (Fla. 4th DCA
1999); Johnson v. State Dep’t of Health & Rehab. Servs., 695 So. 2d 927, 930 (Fla. 2d
DCA 1997). In any event, Wojciechowski agrees to “withdraw” her malicious pros-
ecution claim against the City.
Also, the City contends that sovereign immunity bars Wojciechowski’s claims
for negligent hiring, training, and supervision (Counts VI and VII) because the City’s
decisions about hiring, training, and supervision are discretionary. Although a city
might enjoy sovereign immunity for a claim premised on a discretionary hiring or
training decision (such as a decision to hire an agency head), not every hiring or
training decision is “discretionary.” The City enjoys no sovereign immunity for hir-
ing Morgan as a code enforcement officer, who is neither an agency head nor an ex-
ecutive appointee. See Fla. Off. of Fin. Regul. v. Grippa, 332 So. 3d 42, 43–44 (Fla. 1st
DCA 2021); Willis v. Dade Cnty. Sch. Bd., 411 So. 2d 245, 246 (Fla. 3d DCA 1982).
As pleaded, however, Wojciechowski’s allegations appear to challenge the
City’s discretionary decision about the substance of the training for code enforcement
officers and for “public records custodians.” In her response, Wojciechowski ex-
plains that she premises her negligent-training claim on the implementation and op-
eration of the City’s training, not the substance of the City’s codes, statutes, or poli-
cies. The City enjoys no sovereign immunity against claims based on the implemen-
tation of a policy or plan. Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla., 402
F.3d 1092, 1118 (11th Cir. 2005) (citing Henderson v. Bowden, 737 So.2d 532, 538
(Fla.1999)). To permit Wojciechowski to clarify which aspects of the City’s training
she challenges and to permit Wojciechowski to assert her claims for negligent super-
vision and negligent training in separate counts in accord with Rule 10, Federal
Rules of Civil Procedure, dismissal without prejudice of Count VII is warranted.
II. Driscoll’s Motion to Dismiss
Wojciechowski alleges that Driscoll led the allegedly unlawful search of the
Gulf Drive property but otherwise fails to establish what actions by Driscoll consti-
tute retaliation, malicious prosecution, or abuse of process. A complaint must give a
defendant “adequate notice of the claims against [the defendant] and the grounds
upon which each claim rests.” Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d
1313, 1323 (11th Cir. 2015). Wojciechowski asserts against Driscoll
Wojciechowski’s Section 1983 claims for an unlawful search and retaliation and
Wojciechowski’s Florida tort claims for malicious prosecution, abuse of process, and
trespass. The complaint, however, accuses the “defendants” (without specifying
which defendant or defendants) or the City of retaliating against Wojciechowski by
citing her for unwarranted code violations and by “harassing and intimidating”
Wojciechowski with baseless criminal actions. Drisoll’s role in this conduct is at best
opaque, and as pleaded the allegations suggest that Wojciechowski attempts claims
against Driscoll based on the conduct of other City employees.
Also, as discussed, the City, not the City’s employee or agent, is liable for any
tort, negligent or intentional, by an employee unless the employee’s tort is “commit-
ted outside the course and scope of [the employee’s] employment or unless the [em-
ployee] was acting in bad faith or with a malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.” Richardson, 511
So. 2d at 1123. “In any given situation either the agency can be held liable under
Florida law, or the employee, but not both.” McGhee v. Volusia County, 679 So. 2d
729, 733 (Fla. 1996). Wojciechowski must plead her Florida tort claims against ei-
ther the City or against the City’s employee or agent, not both. The complaint war-
rants dismissal to permit Wojciechowski to amend the complaint to clarify what
conduct by Driscoll caused Wojciechowski’s alleged injury and to clarify against
which defendant Wojciechowski asserts each Florida tort claim.
III. Morgan’s Motion to Dismiss
Wojciechowski claims that in violation of 18 U.S.C. §§ 2721 and 2724 Mor-
gan obtained Wojciechowski’s “personal information” from a “motor vehicle rec-
ord.” Under Section 2724, a person may not obtain or disclose personal information
from a motor vehicle record unless the person obtained or disclosed the information
for a “permitted” purpose. Section 2721 lists the “permissible uses” for the personal
information. For example, a person may obtain personal information for “use by
any government agency . . . in carrying out its functions” or for “use in connection
with any civil, criminal, administrative, or arbitral proceeding in any Federal, State,
or local court or agency or before any self-regulatory body[.]” See Thomas v. George,
Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107, 1109 (11th Cir.
2008). Even an employee of a government agency violates Section 2724 if the em-
ployee obtains personal information for some impermissible use, such as an em-
ployee’s obtaining the information “purely out of curiosity” and not for an official
government “function.” See McCrae v. Broward Sheriff’s Off., 2016 WL 1055093, at *5
(S.D. Fla. 2016) (Hunt, M.J.).
Wojciechowski lists several days on which Morgan allegedly obtained
Wojciechowski’s personal information from a “motor vehicle record” and alleges
that Morgan’s purpose for obtaining the information was not a “permissible use.”
Rather, according to Wojciechowski, Morgan obtained the information to facilitate
the City’s alleged stalking, harassment, and retaliation. These allegations, assumed
true and construed favorably to Wojciechowski, sufficiently support a claim for a vi-
olation of Section 2724. Dismissal of Count III is unwarranted.°?
CONCLUSION
For these reasons, the City’s motion (Doc. 28) to dismiss and Driscoll’s mo-
tion (Doc. 24) to dismiss are GRANTED-IN-PART.* Morgan’s motion (Doc. 25)
to dismiss is DENIED. The complaint is DISMISSED. No later than MAY 13,
2024, Wojciechowski may amend the complaint in accord with this order.
ORDERED in Tampa, Florida, on April 25, 2024.
ALTADWA AA dgelen
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
> Morgan’s entitlement to qualified immunity is better resolved after Wojciechowski amends
the complaint and after the parties develop the record during discovery. See Pace v. City of Palmetto,
2006 WL 2559513, at *4 (M.D. Fla. 2006) (Whittemore, J.).
4 Driscoll’s motion to dismiss includes a request to strike several allegations. Because this or-
der dismisses the complaint, the request to strike is DENIED AS MOOT.
-ll1-