# Ortiz v. City of Miami

> District Court, S.D. Florida · April 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10120409

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** April 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
for the
Southern District of Florida

Melanie Ortiz, Plaintiff, )
)
v. ) Civil Action No. 20-25132-Civ-Scola
)
City of Miami, and others, )
Defendants. )

Order Denying Motion for Reconsideration
This cause is before the Court on Plaintiff Melanie Ortiz’s motion for
reconsideration of the order dismissing her claims (Order, ECF No. 80). For the
reasons below, the Court denies Ms. Ortiz’s motion (Mot., ECF No. 85).
1. Background
The Defendants in this action are the City of Miami (the “City”), the Miami
Fraternal Order of Police, Lodge No. 20 (the “Order of Police”), Rodolfo Llanes,
Fabio Sanchez, and Javier Ortiz. Mr. Llanes is the City of Miami’s Chief of
Police; Mr. Sanchez works in its Internal Affairs section; and Mr. Ortiz is the
President of the Order of Police. (See Sec. Am. Compl. ¶¶ 5-9, ECF No. 48.)
Ms. Ortiz sued these defendants under 42 U.S.C. § 1983 alleging two
counts: (1) a violation of her Fifth and Fourteenth Amendment due process
rights stemming from her being coerced and/or forced to resign without the
proper pre- and post-determination proceedings, and (2) a conspiracy to violate
her constitutional rights. The Court dismissed Ms. Ortiz’s second amended
complaint finding that she failed to sufficiently plead either of her counts.
Ms. Ortiz now asks the Court to reconsider its dismissal under Federal Rule
of Civil Procedure 59(e) on the basis of a flurry of inferences she says she is
“entitled to” and that she says the Court did not consider in its order, which
amounts to a “manifest error in law or fact.” (See Reply 2, ECF No. 85.)
2. Legal Standard
Rule 59(e) allows a party to file a motion to “alter or amend a judgment.”
Fed. R. Civ. P. 59(e). A plaintiff “cannot use a Rule 59(e) motion to relitigate old
matters, raise argument or present evidence that could have been raised prior
to the entry of judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d
757, 763 (11th Cir. 2005). As stated by this Court:
“It is an improper use of the motion to reconsider to ask the Court
to rethink what the Court already thought through—rightly or
wrongly. The motion to reconsider would be appropriate where, for
example, the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of reasoning but of
apprehension. A further basis for a motion to reconsider would be
a controlling or significant change in the law or facts since the
submission of the issue to the Court. Such problems rarely arise
and the motion to reconsider should be equally rare.”
Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992)
(Hoeveler, J.) (cleaned up). As a result, “reconsideration of a previous order is
an extraordinary remedy to be employed sparingly.” Bautista v. Cruise Ships
Catering & Serv. Int’l, N.V., 350 F. Supp. 2d 987, 992 (S.D. Fla. 2004)
(Dimitrouleas, J.) (cleaned up). The Court finds no error of fact or law in its
prior order, and complements its reasoning here.
3. Discussion
In her motion, Ms. Ortiz challenges the Court’s findings on her substantive
arguments and its application of case law.
A. Failure to Plead a Constitutional Violation
A motion to dismiss under Rule 12(b)(6) concerns the sufficiency of a
complaint. Ms. Ortiz alleged two counts that required her to plead the
plausibility of a constitutional violation in connection with her resignation. See
Keating v. City of Miami, 598 F.3d 753, 763 (11th Cir. 2010) (requiring that a
plaintiff plead a violation of her constitutional rights for a section 1983 action);
Weiland v. Palm Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1327 (11th Cir. 2015)
(requiring an actual constitutional violation for a section 1983 conspiracy
claim); Allaben v. Howanitz, 579 F. App’x 716, 718 (11th Cir. 2014) (same).
Viewing the facts in the light most favorable to Ms. Ortiz, the Court found
that she had failed to sufficiently plead such a violation. (Order 7, 9.) Ms. Ortiz
says that ruling is flawed because it does not account for several inferences
that she was “entitled to.” (See Mot. 5-7.) The Court disagrees. Although the
Court “must make reasonable inferences in Plaintiff’s favor” at the motion to
dismiss stage, the Court is “not required to draw [the Plaintiff’s] inference.”
Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248–49 (11th
Cir. 2005); see also Doe v. Samford Univ., No. 21-12592, 2022 WL 872338, at
*9 (11th Cir. March 24, 2022); Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283,
1290 (11th Cir. 2010).
None of Ms. Ortiz’s proffered inferences change the fact that she resigned
from her position. “The Eleventh Circuit has decided that the state does not
deprive a plaintiff of his property interest in a job if the plaintiff voluntarily
resigns.” Beack v. Pub. Health Trust of Miami-Dade County, No. 09-20392-CIV,
2009 WL 1530216, at *1 (S.D. Fla. June 1, 2009) (King, J.) (cleaned up) (citing
Moorer v. City of Montgomery, 293 Fed. App’x 684, 690 (11th Cir. 2008)). Thus,
in this context, a voluntary resignation necessarily forecloses the plausibility of
a constitutional violation stemming from that resignation.
Courts presume a resignation to be voluntary unless the plaintiff puts
forward sufficient evidence to establish that it was involuntary. See Moorer, 293
Fed. App’x at 690. Where an employer forces the resignation by coercion or
where the employer obtains the resignation by deception or misrepresentation
of a material fact, the resignation will be deemed involuntary. Hagray v. City of
Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995).
Ms. Ortiz’s operative complaint could not plausibly overcome the
presumption of a voluntary resignation for two reasons. First, Ms. Ortiz
concentrated on what Mr. Ortiz told her in connection with her resignation, not
what her employer told her (e.g., Mr. Sanchez or Mr. Llanes). (See Compl. ¶ 17.)
In fact, from the pleading, a reader is left wondering what—if anything at all—
Mr. Sanchez or Mr. Llanes ever said to Ms. Ortiz about the evidence against her
or her resignation. Thus, Hagray’s focus on the employer’s actions went
unsatisfied by Ms. Ortiz’s complaint. Indeed, as discussed in the Court’s
previous order, Mr. Ortiz represented the Order of Police—not Ms. Ortiz’s
employer, the City of Miami.
Second, even if Mr. Ortiz’s actions could be imputed to Ms. Ortiz’s
employer, Ms. Ortiz failed to allege plausible instances of coercion or
misrepresentation. In evaluating the voluntariness of a resignation, courts
consider the totality of the circumstances. Hagray, 57 F.3d at 1561. That may
include factors such as whether the employee was given alternatives to
resignation, the employee’s understanding of the choice(s) given, the amount of
time given to the employee to make the decision, whether the employee was
allowed to select the effective date of the resignation, and whether the employee
had the advice of counsel. See id.
The totality of the circumstances alleged did not suggest a plausible
instance of coercion. In the operative complaint, Ms. Ortiz stated that—despite
her mistaken presumptions about the reasons for the first interview—she knew
she had been summoned to provide testimony concerning the tow-truck
investigation. (Compl. ¶ 11.) She also stated that there was a lapse of time
between her first interview and her second. (Compl. ¶ 17.) Although she alleged
that Mr. Sanchez instructed her not to leave Internal Affairs and that Mr. Ortiz
told her the Order of Police would not provide an attorney for her, at no point
did Ms. Ortiz ever say that she was denied the ability to be accompanied by
counsel at either interview or the opportunity to confer with counsel before
either interview. (See id.) Nor did Ms. Ortiz provide the Court with other details
that could plausibly allow it to infer coercion from factors such as the
interviews’ length, the physical conditions of the interview rooms, or her ability
to take breaks.
But perhaps most importantly, Ms. Ortiz alleged that Mr. Ortiz actually
gave her a choice: to either face criminal charges or resign. (Compl. ¶ 17c.)
That, indeed, is a choice: “resignations can be voluntary even where the only
alternative to resignation is facing possible termination for cause or criminal
charges since the plaintiff in such a situation still had a choice.” Moorer, 293
Fed. App’x at 691 (cleaned up); Bell v. Metropolitan Atlanta Rapid Transit Auth.,
No. 1:10-CV-1117-JEC, 2012 WL 4092509 at *7 (N.D. Ga. Sep. 17, 2012)
(finding no deprivation of constitutional rights where employee resigned after
being confronted with alternative of criminal charges). Because Ms. Ortiz had
the option to resign and did not provide the Court much detail concerning the
interviews, Ms. Ortiz’s pleading could not overcome the presumption of her
resignation’s validity on account of a plausible instance of coercion—even if Mr.
Ortiz’s actions could be imputed to Ms. Ortiz’s employer.
Ms. Ortiz also did not allege a plausible misrepresentation of a material
fact. Despite alluding to the existence of what she claimed to be an exculpatory
e-mail (see Compl. ¶¶ 20, 35(i); Opp. to Mot. to Dismiss 15, ECF No. 64), Ms.
Ortiz did not allege how, if at all, she was lied to. She simply asserted, without
factual backing, that the City obtained her resignation by “misrepresenting
material facts.” (Compl. ¶ 24.)
Left to wonder, the Court could only assume that Ms. Ortiz believed
statements concerning certain evidence’s usability in criminal proceedings were
misrepresented. See Compl. ¶ 20 (“Internal Affairs possessed scant usable
evidence”) (emphasis added). However, the fact that evidence may be
challenged does not mean that it cannot serve as the basis for criminal
charges—a distinction Ms. Ortiz was doubtlessly aware of as a detective. And
even then, the wording of Ms. Ortiz’s allegation required the conclusion that at
least some evidence could be used against her. Cf. Hagray, 57 F.3d at 1571
(evaluating for probable cause to assess the plaintiff’s allegation of
misrepresentation after being given the choice to face criminal charges in lieu
of resignation). In the absence of substantive facts concerning how she was
purportedly lied to, Ms. Ortiz provided the Court no basis to assess the
plausibility of a misrepresentation’s existence. That produces the same result
even if Mr. Ortiz’s actions could be imputed to Ms. Ortiz’s employer.
The sum of Ms. Ortiz’s pleading did not state enough facts to plausibly
overcome the presumption of her resignation’s validity. Ms. Ortiz thus failed to
adequately allege the constitutional violation she purported to sue on. The
Court stands on its ruling for these reasons and those in its previous order.
B. Application of the Law
Ms. Ortiz also says the Court applied precedent in a “broad-brush” manner
that did not account for the fact her case was at the motion to dismiss stage.
(See Mot. 12). The Court disagrees. In a format that is difficult to follow, this
section of Ms. Ortiz’s motion takes on the form of a listed summary of the cases
the Court cited in its discussions of municipal liability, qualified immunity, and
Ms. Ortiz’s conspiracy claim. Next to the cases, Ms. Ortiz exposits her
agreement or disagreement with those authorities in bullet-point format.
In that manner, Ms. Ortiz seems to invoke a challenge to the Court’s
reliance on Monell v. New York City Department of Social Services, 436 U.S. 658
(1978), which is the leading case concerning the bases for municipal liability in
section 1983 actions. To the extent Ms. Ortiz again argues that the Court did
not uphold inferences she was entitled to when evaluating for her pleading’s
sufficiency under Monell, the Court finds no error with its ruling.
Ms. Ortiz attempted to allege an “unofficial policy” of unlawful action under
Monell and its progeny on the basis of four resignations. (See Mot. 15-16; Reply
4.) Absent a formal policy, the wording of the four resignations could not
reasonably show “a widespread practice that... is so permanent and well
settled as to constitute a custom or usage with the force of law.” Moore v.
Miami-Dade Cty., 502 F. Supp. 2d 1224, 1231 (S.D. Fla. 2007) (Gold, J.) (citing
Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991). In other
words, four resignations—despite the conspiracy Ms. Ortiz alleged—cannot
plausibly constitute a practice that is “so pervasive as to be the functional
equivalent of a formal policy,” which is what Monell requires. See id.
The remainder of Ms. Ortiz’s arguments in this section of her motion
concern her allegations of a conspiracy and the Court’s discussion of qualified
immunity. Both sets of arguments are disposed of by the Court’s conclusion
that Ms. Ortiz failed to state a constitutional violation for the above reasons
and those in the Court’s previous order.
4. Conclusion
Having found no manifest error of fact or law in its previous order, the Court
denies Ms. Ortiz’s motion for reconsideration (ECF No. 85). This case will
remain closed.
Done and ordered in Miami, Florida, on April 13, 2022.
N. Scola, Jr.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10120409. Public record. Not legal advice.