Washington v. Miami Dade Police Department

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 19-20092-CIV-MORENO

DARRIAN WASHINGTON,

Plaintiff,

VS.

MIAMI-DADE COUNTY and HOWARD

ROSEN,

Defendants.

a

ORDER GRANTING MOTIONS TO DISMISS

Plaintiff, Darrian Washington, a Miami-Dade police officer files this case under 42 U.S.C.

§ 1983 for defamation against Howard Rosen, the Deputy Chief of Special Prosecutions for the

Miami-Dade State Attorney. Plaintiff is also suing Miami-Dade County under the Florida Law

Enforcement Officers’ Bill of Rights and the Florida Civil Rights Act. The Court finds that

Plaintiff fails to state a federal § 1983 claim against Howard Rosen because his allegations are

insufficient to establish the elements for a common-law defamation claim and a constitutional

injury flowing from Defendant Rosen’s statements. In addition, the Court finds that Howard Rosen

has qualified immunity for statements made in his discretionary authority, which do not violate

clearly established constitutional law. Finally, the Court grants the County’s motion to dismiss the

Florida Law Enforcement Officers’ Bill of Rights claim and the Plaintiff's demands for

prejudgment interest and punitive damages under the Florida Civil Rights Act.

THIS CAUSE came before the Court upon Defendant Howard Rosen’s Motion to Dismiss

(D.E. 28), filed on June 5, 2019 and Defendant Miami-Dade County’s Motion to Dismiss (D.E.

29) filed on June 6, 2019.

THE COURT has considered the motions, the response to Defendant Howard Rosen’s

motion to dismiss, the pertinent portions of the record, and being otherwise fully advised in the

premises, it is

ADJUDGED that the Defendant Rosen’s motion to dismiss is GRANTED because

Plaintiff fails to state a defamation claim under 42 U.S.C. § 1983 and Defendant has qualified

immunity. Based on the Court’s finding that Defendant Rosen is entitled to qualified immunity

and because this is the Plaintiffs Second Amended Complaint, the Court declines to allow Plaintiff

leave to amend his claims against Defendant Rosen. Lomax v. Diaz, 390 F. App’x 900, 902 (11th

Cir. 2010); see also Cita Tr. Co. AG v. Fifth Third Bank, 879 F.3d 1151, 1157 (11th Cir. 2018)

(stating that imbedding a request to amend in an opposition memorandum is insufficient to

properly request leave). It is also

ADJUDGED that Miami-Dade County’s motion is GRANTED and the claims against the

County are DISMISSED without prejudice. The Court notes that Plaintiff did not file a response

to the motion to dismiss, filed on June 6, 2019, and the time for doing so has passed. Southern

District of Florida Local Rule 7.1(c) allows the Court to grant motions by default, when a party

fails to file an opposition memorandum. In any event, the Court examines in this order the claims

against Miami-Dade County. To the extent, there are any viable state law claims against the

County, the Court declines to exercise pendent jurisdiction.

I. Background

Plaintiff, Darrian Washington, a Miami-Dade police officer, filed this case against

Defendant Howard Rosen and Miami-Dade County. In his Second Amended Complaint, Plaintiff

sues Howard Rosen, the Deputy Chief of Special Prosecutions for the Miami-Dade State Attorney,

under 42 U.S.C. § 1983. The other three counts are state law claims against Miami-Dade County

for violations of the Florida Law Enforcement Officers’ Bill of Rights and the Florida Civil Rights

Act.

Plaintiff is an African-American male, who was assigned to the Miami-Dade Police

Department’s Narcotics Bureau. At the time, the Department was investigating the Narcotics

Bureau following instances of stolen money from crime scenes. Following a sting operation where

monies went missing, the Miami-Dade Police Department arrested Plaintiff on February 25, 2016

along with other members of his squad. The Department released Plaintiff, but eventually

reassigned and relegated him to a Patrol Officer position in the highest crime district in the County.

He claims the transfer was a demotion based on unlawful discrimination due to his race. He also

claims he was denied the opportunity to work overtime shifts. His claims against the County stem

from those employment decisions.

The federal 42 U.S.C. § 1983 claim is for defamation against Defendant Howard Rosen,

the Deputy Chief of Special Prosecutions for the Miami-Dade State Attorney. The Second

Amended Complaint alleges that Rosen had “operational management of the joint investigation”

into Plaintiff and other officers within the Narcotics Bureau. Plaintiff asserts that Rosen attended

a roll call meeting at the Miami-Dade Police Department, where 40 people were present. Before

the meeting took place, the Miami-Dade State Attorney had already decided not to prosecute

Plaintiff in connection with the sting operation, which resulted in his arrest. Throughout the

meeting, Rosen referred to Plaintiff as the “officer that immediately invoked his rights upon his

arrest.” The allegations are that Rosen stated: “[t]he money had been counted and impounded by

a particular officer whose name I’m not going to mention, . . . but it’s the same officer that invoked

his rights. You might . . . have heard who it is . . . throughout the rumor mill. . .. [T]here’s no

allegation of him stealing any money, but the bottom line is he impounded the dope, he impounded

the money. There was a serious credibility issue with him, so we can’t file the case.” The Second

Amended Complaint adds that Rosen stated in the meeting that “the officer who invoked his rights”

stole the money from a crime scene two days prior to the undercover operation. Rosen added that

he “believed” Plaintiff stole the money because he had a lot of cash on him the day of the sting

operation. The allegations also state that Rosen stated he heard Plaintiff's jailhouse call to family

and based on that, he had no doubt that Plaintiff stole money from the scene.

Defendants filed motions to dismiss. Defendant Rosen argues the Plaintiff fails to state a

claim under 42 U.S.C. § 1983 for defamation and Defendant Miami-Dade County argues that

Plaintiff fails to state a claim under the Florida Law Enforcement Officers’ Bill of Rights and the

Florida Civil Rights Act.

Il. Legal Standard

“To survive a motion to dismiss, plaintiffs must do more than merely state legal

conclusions,” instead plaintiffs must “allege some specific factual basis for those conclusions or

face dismissal of their claims.” Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1263 (11th Cir.

2004). When ruling on a motion to dismiss, a court must view the complaint in the light most

favorable to the plaintiff and accept the plaintiff's well-pleaded facts as true. See St. Joseph's Hosp.,

Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986). This tenet, however, does not apply

to legal conclusions. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Moreover, “[w]hile legal

conclusions can provide the framework of a complaint, they must be supported by factual

allegations.” Jd. at 1950. Those "[flactual allegations must be enough to raise a right to relief above

the speculative level on the assumption that all of the complaint's allegations are true." Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 545 (2007). In short, the complaint must not merely allege a

misconduct, but must demonstrate that the pleader is entitled to relief. See Iqbal, 129 S. Ct. at

1950.

Ii. Legal Analysis

A. Count 1; 42 U.S.C. § 1983 Claim against Deputy State Attorney Howard Rosen

Count | is a defamation claim under 42 U.S.C. § 1983 against Defendant, Howard Rosen,

Deputy Chief of Special Prosecutions for the Miami-Dade State Attorney. The claim against Rosen

stems from statements he made at a pre-shift roll call meeting at the Miami-Dade Narcotics Bureau

on May 6, 2016. Prior to that meeting, the State Attorney decided she would not be filing criminal

charges against Plaintiff. Plaintiff's § 1983 claim asserts that despite the State Attorney’s decision

not to prosecute Plaintiff, Rosen advised approximately 40 members of the Narcotics Bureau, that

Plaintiff immediately invoked his rights when arrested. He also stated that he heard Plaintiffs

jailhouse call and that based on that conversation, he assessed that Plaintiff had stolen money from

crime scenes. Rosen also called into question Plaintiff's credibility as a witness. These statements

form the basis of Plaintiff's defamation claim against Rosen under 42 U.S.C. § 1983.

a. Failure to State a Common Law Defamation Claim under Florida law

To state a claim under § 1983 based on statements by government officials, a plaintiff must

first allege a common law defamation claim and then allege a constitutional injury flowing from

the defamatory statement. Rehberg v. Paulk, 611 F.3d 828, 851-52 (11th Cir. 2010). Injury to

reputation alone does not constitute a deprivation of a liberty or property interest protected under

the Fourteenth Amendment. /d. (citing Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005).

“Damages to a plaintiffs reputation ‘are only recoverable in a section 1983 action if those damages

were incurred as a result of government action significantly altering the plaintiff's constitutionally

recognized legal rights.’” Jd. (quoting Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1438 (11th Cir.

1998)). This is known as the stigma-plus test and requires the plaintiff to “show both a valid

defamation claim (the stigma) and ‘the violation of some more tangible interest’ (the plus).” Jd.

(quoting Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1302 (11th Cir. 2001) and Behrens,

422 F.3d at 1260).

First, Plaintiff must allege the elements of a defamation claim under Florida law. /d.

(stating stigma-plus test requires “allegations stating a common-law defamation claim.”). Those

elements are: “(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard

as to the falsity on a matter concerning a public official, or at least negligently on a matter

concerning a private person; (4) actual damages; and (5) statement must be defamatory.” Jews for

Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). The publication prong is not met as a

matter of law where the communications are between governmental employees and agencies.

Alvarez v. Ridge, No. 03-20049, 2004 WL 7331011, at *4 (S.D. Fla. Mar. 30, 2004). In addition,

courts have held that opinions with no probably false connotations cannot support a common-law

defamation claim. Hamze v. Cummings, 652 F. App’x 876, 881 (11th Cir. 2016) (citing Milkovich

v. Lorain Journal Co., 497 U.S. 1, 20 (1990); Keller v. Miami Herald Publ’g Co., 778 F.2d 711,

714-15 (11th Cir. 1985) (applying Florida law)). !

Rosen’s statements appear to articulate his opinion that Officer Washington committed a crime, but the evidence is

insufficient to prosecute. The Court need not decide the issue, however, because the publication prong is not met.

Plaintiff does not specifically respond to Rosen’s argument that the publication prong is

not met because he made the statements in a meeting with law enforcement. Rather, Plaintiff

generally argues that because Rosen made the statements to 40 officers at a meeting, that is

sufficient to meet the publication prong. The intragovernmental dissemination of information,

however, does not meet the publication prong. Alvarez, 2004 WL 7331011, at *4 (citing Learned □

v. Bellevue, 860 F.2d 928, 933 (9th Cir. 1988) (remarks uttered to employees of appropriate

department do not satisfy the publication requirement). In addition, Florida law states that “[a]

common law claim for defamation requires the unprivileged publication (to a third party).” Mile

Marker, Inc. v. Petersen Publ’g, LLC, 811 So. 2d 841, 845 (Fla. 4th DCA 2002) (emphasis added).

The communication, here, between Rosen and law enforcement is not an “unprivileged

publication” because the parties have mutuality of purpose under Florida law. Int'l Sec. Mgm’t

Grp., Inc. v. Rolland, 271 So. 3d 33, 45 (Fla. 3d DCA 2018) (holding communication is privileged

and not subject to a defamation claim where the speaker and listener have mutuality of purpose,

such as in the law enforcement context). Accordingly, the Court finds that Plaintiff fails to state a

claim for defamation under Florida law because the factual allegations do not establish the

elements.’

1. Absolute Immunity under Florida Law

Even if the Plaintiff's allegations established each element of a common-law defamation

claim, the question then arises as to whether Rosen has absolute immunity for his statements to

law enforcement. Rosen argues that Florida law blankets him with absolute immunity, which

expansively protects statements made by public officials “in connection with the performance of

* The Court also notes that to the extent that Rosen said that Plaintiff was the officer that “invoked his rights” that

information is true. A false statement about another is a required element of defamation. Kieffer v. Atheists of Fla.,

Inc., 269 So. 3d 656, 659 (Fla. 2d DCA 2019).

the duties and responsibilities of their office.” McNayr v. Kelly, 184 So. 2d 428, 433 (Fla. 1966);

Hauser v. Urchisin, 231 So. 2d 6, 8 (Fla. 1970) (“The public interest requires that statements made

by officials . . . in connection with their official duties be absolutely privileged.”’). Florida law has

broadly defined “scope of office” to encompass all matters which a public official is authorized to

perform. Mueller v. The Florida Bar, 390 So. 2d 449, 451 (Fla. 4th DCA 1980). Given this broad

interpretation, any statements made by a public employee “within the orbit of his responsibilities”

are immune. See Florida State Univ. Bd. of Trustees v. Monk, 68 So. 3d 316, 319 (Fla. lst DCA

2011); Goetz v. Noble, 652 So. 2d 1203, 1205 (Fla. 4th DCA 1995).

Plaintiff argues that Rosen is not entitled to absolute immunity because there are federal

cases that distinguish prosecutors’ actions to determine which are entitled to absolute immunity

and which are not. Plaintiff advocates for this Court to apply a “functional approach” test looking

at the nature of the action performed, as opposed to the actor. Buckley v. Fitzsimmons, 509 U.S.

259, 269 (1993). This argument misses the mark because to state a § 1983 claim for defamation,

the Plaintiff must first be able to allege a common law claim for defamation under Florida law,

irrespective of federal immunity law establishing the functional approach test. Florida cases

applying Florida law do not apply the functional approach test to decide a prosecutor’s absolute

immunity. Given Florida’s expansive rule granting public officials, such as Rosen, absolute

immunity for statements made in his scope of office, Plaintiff is unable to state a defamation claim

under Florida law. Certainly, Rosen’s statements in a meeting with law enforcement fall within

the ambit of his scope of work. Put another way, if the Plaintiff simply filed a defamation claim

in a Florida court against Rosen, it would most certainly be dismissed because a Florida court

would find his comments absolutely immune, especially given he made them in a meeting with

law enforcement.

b. Failure to allege a Constitutional Injury

Assuming Plaintiff could state a defamation claim under Florida law, Plaintiff's Second

Amended Complaint would need to identify a constitutional injury flowing from the alleged

defamatory statements to state an actionable § 1983 claim. Rehberg, 611 F.3d at 851. Plaintiff's

claim here is that Rosen’s statement to law enforcement that Plaintiff committed a crime deprived

him of a liberty interest.

In this case, the Plaintiffs arrest predated Rosen’s statements by two months. A § 1983

defamation claim requires the Plaintiff to establish an affirmative causal connection between the

statements and the alleged constitutional deprivation. Troupe v. Sarasota Cnty., Fla., 419 F.3d

1160, 1165 (11th Cir. 2005) (“A § 1983 claim requires proof of an affirmative causal connection

between the defendant’s acts or omissions and the alleged constitutional deprivation.”). Obviously,

Rosen’s statement, after-the-fact, could not have caused the Plaintiff’s arrest two months earlier.

Because Rosen’s statement did not trigger Plaintiff’s arrest, the Court cannot find that the arrest

was a constitutional injury causally connected to Rosen’s statements.

To the extent Plaintiff asserts reputational injury, Rehberg establishes that is not actionable.

Rehberg, 611 F.3d at 851-52. The Second Amended Complaint references an inter-departmental

transfer, denial of overtime shifts, and a loss of credibility, which are insufficient to trigger a

violation of “constitutionally recognized legal rights.” Jd. (“The ‘stigma-plus’ test requires not

3 The “functional approach” would be appropriately applied in the event the Plaintiff could state a common-law

defamation claim under Florida law, which is the first component in the stigma-plus test. If Plaintiff could state a

common law defamation claim, then the Court would determine if a constitutional injury flowed from that claim. In

that context, the Court would then determine if the prosecutor had absolute immunity as a defense under federai law.

only allegations stating a common-law defamation claim, but also an additional constitutional

injury, tied to a previously recognized constitutional property or liberty interest, flowing from the

defamation.”); see also Behrens, 422 F.3d at 1263, n.14 (citing Cannon, 250 F.3d at 1303) (“[I]n

this circuit a ‘discharge [from employment] or more’ is required in order to satisfy the ‘plus’

element of the stigma-plus test.”).

c. Immunity under federal law

Even if Plaintiff could state a claim for defamation under Florida law and establish a

constitutional injury flowing from Rosen’s statements, the Defendant argues that he also has

absolute and qualified immunity from a § 1983 claim. Buckley, 509 U.S. at 268-69. As noted,

infra, absolute prosecutorial immunity is function related under federal law. A prosecutor is

immune from liability under § 1983 for his actions “in initiating a prosecution and in presenting

the State’s case,” and for actions that are “intimately associated with the judicial phase of the

criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). That includes “actions

preliminary to the initiation of a prosecution and actions apart from the courtroom.” Mikko v. City

of Atlanta, Ga., 857 F.3d 1136, 1143 (11th Cir. 2017) (quoting Buckley, 509 U.S. at 272). Imbler

recognized that prosecutors often engage in preliminary actions outside the courtroom, such as

obtaining witness testimony, and are entitled to absolute immunity in that regard. The question

here is whether statements made regarding the decision not to prosecute after weighing evidence

and witness credibility should be considered quasi-judicial or administrative. Rosen also stated

that Plaintiff stole money from the crime scenes and that he had a lot of cash on him at the time of

the arrest. Plaintiff argues Rosen’s statements are administrative, and therefore, he is stripped of

his absolute immunity under federal law on this § 1983 claim.

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Undoubtedly, the State Attorney’s decision not to prosecute the Plaintiff is protected by

absolute immunity. Mikko, 857 F.3d at 1143. The parties dispute whether the communication of

that decision and the prosecutor’s statement that Plaintiff committed the crime is also shielded by

absolute immunity. The Eleventh Circuit cautioned in Mikko that for absolute immunity to shield

the prosecutor, the conduct in question must be connected in a specific way to his role as a trial

advocate. Jd. The Court finds that Rosen’s statements are not protected by absolute immunity,

because the statements were not taken in his role as a trial advocate. See Buckley, 509 U.S. at 276

(citing Burns v. Reed, 500 U.S. 478, 495 (1991) “Indeed, it is incongruous to allow prosecutors

to be absolutely immune from liability for giving advice to the police, but to allow police officers

only qualified immunity for following the advice ... Almost any action by a prosecutor, . . .could

be said to be in some way related to the ultimate decision whether to prosecute, but we have never

indicated that absolute immunity is that expansive.”).

Although absolute immunity would not apply in this context where the statements appear

administrative in nature, the Court agrees with Rosen’s argument that he nevertheless is protected

by qualified immunity. “To be entitled to qualified immunity, an official must first prove that he

was acting within the scope of his discretionary authority when the allegedly wrongful acts

occurred.” Mikko, 857 F.3d at 1143-44. In Mikko, the Eleventh Circuit stated that “[a] prosecutor’s

most basic duty is to prosecute cases in his jurisdiction on behalf of the State. Related to that duty,

prosecutors may also communicate with other law enforcement agencies, officials, or employees

about current or potential prosecutions, and about current or potential witnesses for the cases that

may be prosecuted.” Jd. Mikko therefore requires this Court to find that Rosen was acting within

his discretionary authority as there was an ongoing criminal investigation. Rosen’s communication

with law enforcement explaining a decision not to prosecute the Plaintiff and potential concerns

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with calling Plaintiff as a witness clearly fall within the prosecutor’s discretionary authority. The

Court does not find that Rosen acted outside of his discretionary authority such as would strip him

of qualified immunity.

Finally, even if Rosen was acting beyond his discretionary authority, the Court does not

find that Plaintiffs allegations establish a violation of a clearly established constitutional right. As

previously explained, Plaintiff does not show a constitutional injury flowing from Rosen’s

statements. Plaintiff asserts that his reputational harm, his interdepartmental transfer, and his

inability to work overtime shifts, amount to a deprivation of a constitutionally protected liberty

interest without due process. Howe v. Baker, 796 F.2d 1355, 1360 (11th Cir. 1986) (applying a

stigma-plus test to a reputational loss and finding no violation of a constitutional right); Behrens,

422 F.3d at 1263, n.14.

Plaintiff has not pointed to precedent putting Rosen on notice that his actions violate a

clearly established constitutional right. Certainly, Rosen was not on notice that he was violating

Plaintiff's clearly established constitutional rights when he spoke at a meeting with law

enforcement about Plaintiff’s potential role in a crime, the decision not to prosecute him, and the

credibility concerns arising from calling Plaintiff as a witness in other criminal prosecutions. See

Holden v. Sticher, 427 F. Appx 749, 752 (11th Cir. 2019) (granting prosecutor qualified immunity

for giving advice to police officer on filling out arrest affidavit); Rowe v. City of Fort Lauderdale,

279 F.3d 1271, 1281 (11th Cir. 2002) (granting prosecutor qualified immunity for actions taken in

his investigator’s role). Accordingly, the Court finds that Rosen is qualifiedly immune from

Plaintiff's § 1983 claim.

B. Count 2: Florida Law Enforcement Officers’ Bill of Rights Claim

Count 2 of the Second Amended Complaint is a claim against Miami-Dade County for a

violation of the Florida Law Enforcement Officers’ Bill of Rights, § 112.532, Fla. Stat. The statute

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affords law enforcement officers and correctional officers various rights when the officer is subject

to an investigation by his agency. Section 112.532(3) provides that a law enforcement officer, such

as Plaintiff, may bring a claim against any person for abridgment of the officer’s civil rights arising

out of the officer’s performance of his official duties. In his claim, Plaintiff asserts that as a “direct

and proximate result of Defendant Miami-Dade County’s actions, Plaintiff has suffered and will

continue to suffer substantial economic damages.” Courts have found the statute does not create a

private right of action for money damages. Fiedor v. Florida Dep’t of Fin. Servs., No. 18-cv-191,

2018 WL 6495194, *2 (N.D. Fla. Sept. 4, 2018); Kamenesh y. City of Miami, 772 F. Supp. 583,

593 (S.D. Fla. 2001) (abrogated on other grounds) (stating the statute merely memorializes the

right to sue but does not create a cause of action). In Bailey v. Bd. of County Comm’rs, 659 So. 2d

295, 300 (Fla. Ist DCA 1994), the court analyzed whether the statute created a cause of action for

money damages. Finding that the sole statutory remedy for a violation of § 112.532 was contained

in § 112.534, the court found the only available remedy was injunctive. The Bailey court dismissed

the claim for money damages under the Florida Law Enforcement Officers’ Bill of Rights. See

also City of Miami v. Cosgrove, 516 So. 2d 1125 (Fla. 3d DCA 1987). Accordingly, this case law

precludes Plaintiff's claim for money damages under the statute against Defendant Miami-Dade

County. The Court notes that Plaintiff has not responded to Miami-Dade County’s motion to

dismiss, which provides grounds for granting the dismissal of this claim by default.

C. Florida Civil Rights Act Claims against Miami-Dade County

Counts 3 and 4 are claims for race discrimination and retaliation under the Florida Civil

Rights Act. Defendant moves to dismiss the demand for prejudgment interest and punitive

damages. Again, Plaintiff has not filed a response to this motion and the Court agrees with

Defendant’s position that the statute does not allow a right of recovery for prejudgment interest

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and punitive damages against the County. Allan v. City of Leesburg, No. 08-cv-176, 2009 WL

10670463, *6 (N.D. Fla. Oct. 16, 2009) (striking Plaintiff's demand for punitive damages and

prejudgment interest in Florida Civil Rights Act claims). Should Plaintiff choose to amend his

claims under the Florida Civil Rights Act, he shall not include those demands in his state court

complaint. This Court declines to exercise pendent jurisdiction over any such claims.

of

DONE AND ORDERED in Chambers at Miami, Florida, this AS of December 2019.

FEDER A. MORENO

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

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