Harris v. Wingo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ROBERT DALE HARRIS,

Plaintiff,

v. Case No: 2:18-cv-17-FtM-29MRM

KEVIN RAMBOSK, in his

official capacity as Sheriff

of Collier County, Florida,

KASEY P. WINGO,

individually, MICHAEL D.

CHAPMAN, individually, SCOTT

PEPIN, individually, and

ROSS ANTHONY, individually,

Defendants.

OPINION AND ORDER

This matter comes before the Court on defendant Scott Pepin’s

Motion for Summary Judgment (Doc. #113) filed on June 10, 2019.

Plaintiff filed a Response (Doc. #128) on June 24, 2019. For the

reasons set forth below, the motion is granted in part and denied

in part.

I.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004)(citing Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.

1983)(finding summary judgment “may be inappropriate even where

the parties agree on the basic facts, but disagree about the

factual inferences that should be drawn from these facts”)). “If

a reasonable fact finder evaluating the evidence could draw more

than one inference from the facts, and if that inference introduces

a genuine issue of material fact, then the court should not grant

summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).

Qualified immunity provides “complete protection for

individual public officials performing discretionary functions

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th

Cir. 2012) (quotation omitted). A defendant claiming qualified

immunity must show that he acted “within the scope of his

discretionary authority when the allegedly wrongful acts

occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.

1991)). If that showing is made, then the plaintiff must establish

“(1) that the facts, when construed in the plaintiff's favor, show

that the official committed a constitutional violation and, if so,

(2) that the law, at the time of the official's act, clearly

established the unconstitutionality of that conduct.” Singletary

v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015)(citation omitted).

It is undisputed that Deputy Pepin was acting within his

discretionary authority as a law enforcement officer at all

relevant times.

II.

On May 2, 2018, Plaintiff filed an Amended Complaint (Doc.

#51) against defendant Scott Pepin1 (Deputy Pepin), a Collier

County Sheriff’s Office (CCSO) deputy, and others. The Amended

Complaint asserts claims against Deputy Pepin for false arrest and

excessive force under 42 U.S.C. § 1983 (Count VIII); malicious

prosecution under § 1983 (Count IX); malicious prosecution under

Florida law (Count X); assault and battery under Florida law (Count

XI); and First Amendment retaliation under § 1983 (Count XVI).

This case – as it relates to Deputy Pepin – centers on three

events occurring on March 9, 2014, April 4, 2014, and June 10,

2014. The undisputed facts are as follows:

A. The March 9, 2014 Complaint to the CCSO

On March 9, 2014, Plaintiff called the CCSO to complain about

Deputy Michael D. Chapman (Deputy Chapman). (Doc. #113, p. 3;

Doc. #128, p. 3.) Plaintiff complained that while he was sitting

outside of a McDonald’s in Naples, Florida, Deputy Chapman

threatened to trespass Plaintiff from “all local businesses.”

(Id.) Sergeant Bartolome Amengual (Sergeant Amengual) and Deputy

Kasey P. Wingo (Deputy Wingo) arrived at the scene and took

1 Deputy Pepin was not named as a defendant in the original

Complaint (Doc. #1).

Plaintiff’s complaint. (Id.) Deputy Pepin was not present for

Plaintiff’s March 9, 2014 complaint to the CCSO. (Id.)

B. The April 4, 2014 Arrest

On April 4, 2014, Plaintiff was repairing his friend Randy

Leon Sulwilcowski’s motorcycle that was warehoused at a storage

facility in Naples, Florida. (Doc. #113, pp. 3-4; Doc. #128, p.

3.) Deputies Chapman and Wingo encountered Plaintiff as he was

exiting the storage facility. (Id.) Deputies Wingo and Chapman

ultimately arrested Plaintiff and engaged in a physical

altercation with Plaintiff while placing him under arrest. (Doc.

#113, pp. 5-7; Doc. #128, pp. 3-4.) Deputy Pepin arrived at the

scene to assist Deputies Wingo and Chapman with Plaintiff’s arrest.

(Doc. #113, p. 6; Doc. #128, pp. 3-4.) Deputy Pepin struck

Plaintiff’s back several times with a baton and deployed his Taser

into Plaintiff’s back. (Doc. #113, p. 6; Doc. #128, p. 4.)

Plaintiff was ultimately charged with three (3) counts of

battery on a police officer; one (1) count of assault on a police

officer; one (1) count of resisting an officer without violence;

and one (1) count of loitering and prowling. (Doc. #51, ¶¶ 59-

62; Doc. #128, p. 4.) On April 17, 2014, the State Attorney’s

Office filed a “Not Filing Charge” on all six counts. (Doc. #113,

p. 8; Doc. #128, p. 4.)

C. The June 10, 2014 Trespass Warning

On June 10, 2014, Plaintiff purchased donuts from Dunkin

Donuts in Naples, Florida; Plaintiff then took the donuts to the

neighboring McDonald’s, purchased a coffee from the McDonald’s,

and used his computer at an outside table. (Doc. #113, p. 9; Doc.

#128, p. 5.) Deputy Pepin and Deputy Sean Ellis (Deputy Ellis)

arrived at the scene, and Deputy Ellis ultimately issued Plaintiff

a trespass warning for the Dunkin’ Donuts. (Doc. #113, p. 9; Doc.

#128, p. 6.) Under “Reason for Contact/Other Comments” the

trespass warning states, “Trespass. Robert Harris stated that he

does not consent to this.” (Doc. #116-1, p. 23.)

Deputy Pepin testified at deposition that he and Deputy Ellis

were dispatched to the McDonald’s because the McDonald’s

management wanted Plaintiff to leave the premises. (Doc. #116,

pp. 75-76.) Deputy Pepin further testified that when he arrived

at the McDonald’s, Sara Wolin, a Dunkin’ Donuts employee,

approached him and asked that Deputy Pepin and Deputy Ellis2

trespass Plaintiff from the Dunkin’ Donuts because he was

“‘harassing customers and stealing stuff.’” (Doc. #116, p. 76.)

Sarah Wolin testified at deposition that she “had seen the cop

next to [Dunkin’ Donuts] at the McDonald's and [] called him over

2 It is unclear to the Court which other deputies were present

at the scene.

and [] asked him to have [Plaintiff] trespassed.” (Doc. #117, p.

18.) Sarah Wolin testified that, earlier on June 10, 2014,

Plaintiff “got upset because [she] told him that [she] couldn't

give him [free food]” and that Plaintiff “got very mad and stormed

out and then came back in and then stormed back out again.” (Id.

pp. 17-18.) Sarah Wolin further testified that she requested that

Plaintiff be trespassed from Dunkin’ Donuts because he had “been

coming to [her] place of employment for several months, getting

free food, making [her] uncomfortable, and [she] did not want

[Plaintiff] at [her] place of employment anymore.” (Id. p. 21.)

III.

Deputy Pepin now moves for summary judgment. As to

Plaintiff’s claims for false arrest and excessive force (Count

VIII), malicious prosecution (Counts IX, X), and assault and

battery (Count XI), Deputy Pepin moves for summary judgment because

(1) these Counts are time-barred; and (2) Deputy Pepin is otherwise

entitled to judgment on the merits. As to Plaintiff’s claim for

First Amendment retaliation, Deputy Pepin argues (1) there is no

evidence establishing that Deputy Pepin was motivated to issue

Plaintiff a trespass warning by Plaintiff’s March 9, 2014 complaint

about a fellow officer; (2) “there was objective lawful

justification for issuance of the trespass warning”; and (3) he is

entitled to qualified immunity.3 (Doc. #113, p. 23.)

A. Whether the April 4, 2014 Arrest Claims are Time-Barred

As to the April 4, 2014 arrest, Plaintiff asserts claims

against Deputy Pepin for false arrest and excessive force (Count

VIII), malicious prosecution under § 1983 (Count IX), malicious

prosecution under Florida law (Count X), and assault and battery

under Florida law (Count XI). Deputy Pepin argues that these

claims are time-barred.

(1) The False Arrest Claim (Count VIII)4

Count VIII includes a claim for false arrest under § 1983.

The statute of limitations for a federal false arrest claim is

governed by Florida’s four-year statute of limitations. Boyd v.

Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017);

Fla. Stat. § 95.11(3)(o). This limitations period began to run on

April 6, 2014 – the date Plaintiff appeared before a magistrate in

3 Plaintiff argues in his Response that Deputy Pepin is not

entitled to summary judgment on Plaintiff’s § 1983 civil conspiracy

claim. (Doc. #128, pp. 17-18.) The Amended Complaint, however,

does not assert a civil conspiracy claim against Deputy Pepin.

Thus, the Court does not discuss this issue below.

4 Count VIII asserts a claim for both false arrest and

excessive force. Federal claims for false arrest and excessive

force are separate causes of action, and the Court will therefore

address each claim separately.

state court for first appearance.5 White v. Hiers, 652 F. App’x.

784, 786 (11th Cir. 2016); Wallace v. Kato, 549 U.S. 384, 388

(2001). Thus, Plaintiff’s false arrest claim appears to be

untimely because Plaintiff filed the Amended Complaint on May 2,

2018 – more than four years after the limitations period began to

run.

(2) The Excessive Force and Assault and Battery Claims

(Counts VIII and XI)

Count VIII also includes an excessive force claim under §

1983, and Count XI asserts a claim for assault and battery under

Florida law. These claims are both subject to Florida’s four-year

statute of limitations. Boyd, 856 F.3d at 872; Scullock v. Gee,

161 So. 3d 421, 422 (Fla. 2d DCA 2014); Fla. Stat. § 95.11(3)(o).

The limitations period for these claims began to run on April 4,

2014, when Deputy Pepin allegedly used excessive force and

committed the assault and battery. Mullinax v. McElhenney, 817

5 The Court takes judicial notice of Plaintiff’s first

appearance date in the public docket of his criminal case #11-

2014-CF-000711-AXXX-XX in the Collier County Clerk of the Circuit

Court records. See Kerruish v. Essex Holdings, Inc., 777 F. App'x

285, 293 (11th Cir. 2019)(“Under Federal Rule of Evidence 201, a

court ‘may judicially notice a fact that is not subject to

reasonable dispute because it . . . can be accurately and readily

determined from sources whose accuracy cannot reasonably be

questioned.’” (quoting Fed. R. Evid. 201(b)(2)).

F.2d 711, 716 (11th Cir. 1987); Scullock, 161 So. 3d at 422. Thus,

Plaintiff’s claims for excessive force and assault and battery

appear untimely because Plaintiff filed the Amended Complaint on

May 2, 2018 – more than four years after the limitations period

began to run.

(3) The Malicious Prosecution Claims (Counts IX and X)

Count IX asserts a claim for malicious prosecution under §

1983 and Count X asserts a malicious prosecution claim under

Florida law. Both malicious prosecution claims are governed by

Florida’s four-year statute of limitations. Uboh v. Reno, 141

F.3d 1000, 1002 (11th Cir. 1998); Olson v. Johnson, 961 So. 2d

356, 359 (Fla. 2d DCA 2007); Fla. Stat. § 95.11(3)(o). The

limitations period on Plaintiff’s federal and state malicious

prosecution claims began to run when the State filed its “Not

Filing Charge” on April 17, 2014. Uboh, 141 F.3d at 1002; Olson,

961 So. 2d at 359. The Court thus finds Counts IX and X appear to

be untimely because Plaintiff filed the Amended Complaint on May

2, 2018 – more than four years after the limitations period began

to run.

(4) Whether Equitable Estoppel Applies

Although Counts VIII, IX, X, and XI appear untimely, Plaintiff

contends these Counts are not time-barred under the doctrine of

equitable estoppel. The Court finds equitable estoppel

inapplicable in this case.

The “doctrine of equitable estoppel acts as a bar to a statute

of limitations defense.” Meyer v. Meyer, 25 So. 3d 39, 42 (Fla.

2d DCA 2009). It is premised upon “principles of fair play and

essential justice and arises when one party lulls another party

into a disadvantageous legal position . . . .” Major League

Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001). The

doctrine “presupposes that the plaintiff knows of the facts

underlying the cause of action but delayed filing suit because of

the defendant's conduct.” Ryan v. Lobo De Gonzalez, 841 So. 2d

510, 518 (Fla. 4th DCA 2003). For a plaintiff to successfully

assert an equitable estoppel defense, the defendant’s wrongdoing

– “such as fraud [or] concealment” – must cause the plaintiff’s

delay in filing his lawsuit. Fla. Dep't of Health & Rehab. Servs.

v. S.A.P, 835 So. 2d 1091, 1097 (Fla. 2002).

Plaintiff contends equitable estoppel applies because, after

being released from jail in January of 2017 for a December 2016

arrest, he “was looking for a place to live, which made it

difficult to communicate and review the facts and issues in this

case and to determine the true extent of [Deputy] Pepin's role in

his case.” (Doc. #128, p. 19.) Plaintiff further argues equitable

estoppel applies because Deputy Pepin’s “willingness to change his

sworn PRB testimony at deposition [] is an indication that he was

willing to conceal his actions in this case.” (Id.)

The Court is unpersuaded that equitable estoppel applies in

this case. Plaintiff has failed to establish how his housing

situation in 2017 is attributable to Deputy Pepin and resulted in

a “delayed filing [] because of [Deputy Pepin’s] conduct.” Lobo

De Gonzalez, 841 So. 2d at 518. Similarly, Plaintiff has failed

to establish how Deputy Pepin’s “willingness to change his sworn

PRB testimony at deposition” (Doc. #128, p. 19) constitutes a

“fraud [or] concealment” that delayed Plaintiff in timely filing

Counts VIII, IX, X, and XI. S.A.P, 835 So. 2d at 1097. Plaintiff

obviously knew of Deputy Pepin’s conduct when it occurred since he

was the alleged victim. The Court thus finds Plaintiff has not

established that equitable estoppel applies in this case.

(5) The Amended Complaint Relates Back to the Original

Complaint

While Counts VIII, IX, X, and XI appear to be untimely as

discussed above, and although equitable estoppel does not apply in

this case, the Court does not agree with Deputy Pepin that Counts

VIII, IX, X, and XI are time-barred. Rather, the Court finds these

Counts are timely because they relate back to the timely claims

set forth in the January 9, 2018 original Complaint (Doc. #1).

Rule 15(c)(1) provides that “[a]n amendment to a pleading

relates back to the date of the original pleading” under three

circumstances:

(A) the law that provides the applicable statute of

limitations allows relation back;

(B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out-

-or attempted to be set out--in the original pleading;

or

(C) the amendment changes the party or the naming of the

party against whom a claim is asserted, if Rule

15(c)(1)(B) is satisfied and if, within the period

provided by Rule 4(m) for serving the summons and

complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will

not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would

have been brought against it, but for a mistake

concerning the proper party's identity.

Under Rule 15(c)(1)(B), Plaintiff’s claims against Deputy Pepin

arise out of the same conduct set forth in the original Complaint

(Doc. #1). As in the Amended Complaint, the original Complaint

alleges that (1) Deputy Pepin “was one of the responding deputies

to [Plaintiff’s] April 4, 2014 arrest”; (2) Deputy “Pepin [] use[d]

his baton to strike [Plaintiff] on his back several times”; and

(3) Deputy “Pepin was also present during the Dunkin' Donuts'

trespass.” (Doc. #1, ¶¶ 52, 66.) The Court thus finds that Counts

VIII, IX, X, and XI in the Amended Complaint relate back to the

original Complaint. See Mayle v. Felix, 545 U.S. 644, 659

(2005)(“[R]elation back depends on the existence of a common core

of operative facts uniting the original and newly asserted claims.”

(citation and quotation omitted)).

Because Counts VIII, IX, X, and XI in the Amended Complaint

relate back to the original Complaint, and since the original

Complaint was filed within the applicable four-year statute of

limitations, the Court finds Counts VIII, IX, X, and XI are timely.

See Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1285

(11th Cir. 2000)(“If the new claims relate back to the original

claims, [courts] must consider the new claims as having been filed

at the time of the original claims.”). Thus, the Court next

considers whether Deputy Pepin is entitled to summary judgment on

the merits of these claims.

B. Whether Deputy Pepin is Entitled to Summary Judgment on the

Merits of Plaintiff’s April 4, 2014 Claims

(1) The Excessive Force Claim (Count VIII)

Count VIII includes an excessive force claim6 under § 1983.

Deputy Pepin moves for summary judgment on Plaintiff’s claim for

excessive force because (1) Deputy Pepin’s use of force was

objectively reasonable; and (2) Deputy Pepin is entitled to

qualified immunity because it was not clearly established as of

April 4, 2014 that Deputy Pepin’s use of force constituted

excessive force.

6 As discussed earlier, Count VIII asserts claims for both

false arrest and excessive force, which are distinct causes of

action. The Court will therefore address the false arrest and

excessive force claims separately.

A claim that a law enforcement officer used excessive force

in the course of an arrest is analyzed under the Fourth Amendment

and its objective reasonableness standard. Graham v. Connor, 490

U.S. 386, 395 (1989); Wilson v. Northcutt, 987 F.2d 719, 722 (11th

Cir. 1993). “The Fourth Amendment's freedom from unreasonable

searches and seizures encompasses the plain right to be free from

the use of excessive force in the course of an arrest.” Lee v.

Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)(citation omitted).

In determining whether an officer used excessive force in

effectuating an arrest, the Court considers “[1] the severity of

the crime at issue, [2] whether the suspect poses an immediate

threat to the safety of the officers or others, and [3] whether he

is actively resisting arrest or attempting to evade arrest by

flight.” Graham v. Connor, 490 U.S. 386, 396 (1989)(citation

omitted).

Here, the video footage from Sergeant Amengual’s dashcam

shows that Deputy Pepin struck Plaintiff’s back several times with

a baton and deployed his Taser into Plaintiff’s back as Plaintiff

was on the floor with two deputies on top of him. (Amengual

Dashcam Video, at 4:34-4:55.) Deputy Pepin argues his use of force

was reasonable because he “could reasonably believe that the

[deputies at the scene] were fighting [with Plaintiff] and that

use of pain compliance in the form of asp baton strikes or taser

applications was warranted.” (Doc. #113, p. 19.) Deputy Pepin

asserts that when he used the baton and Taser, Plaintiff “did not

have his hands behind his back for handcuffing and was still

actively, physically resisting arrest.” (Id. p. 7.) Plaintiff,

however, testified at deposition that Pepin struck him with the

baton and deployed the Taser into his back while he had his hands

behind his back and was being handcuffed. (Doc. #114, p. 177.)

The video footage from Sergeant Amengual’s dashcam does not

definitively corroborate either Plaintiff’s or Deputy Pepin’s

version of events, as it is unclear whether Plaintiff was resisting

while Deputy Pepin deployed his Taser and struck Plaintiff with

the baton. Viewing the facts in the light most favorable to

Plaintiff, a jury may reasonably determine that Deputy Pepin used

excessive force by Tasering Plaintiff and striking him with a baton

as Plaintiff was on the floor, with two deputies on top of him,

and with his hands behind his back during handcuffing. Indeed,

under Plaintiff’s version of events, such “gratuitous use of force

when a criminal suspect is not resisting arrest constitutes

excessive force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th

Cir. 2008). Given the disputed record and inconclusive video

footage, a jury must ultimately resolve the material issues of

fact relating to Deputy Pepin’s use of force.

Further, as to the issue of qualified immunity, it was clearly

established as of April 4, 2014 that an officer uses excessive

force by “beating” an arrestee laying on the ground who “[a]t no

point was [] fighting back or attempting to escape.” Reese v.

Herbert, 527 F.3d 1253, 1273 (11th Cir. 2008). Thus, on this

record, the Court cannot conclude that Deputy Pepin is entitled to

qualified immunity on Plaintiff’s claim for excessive force.

(2) The False Arrest Claim (Count VIII)

Count VIII also includes a false arrest claim under § 1983.

Deputy Pepin argues he is entitled to summary judgment because he

had probable cause to arrest Plaintiff on April 4, 2014. Deputy

Pepin alternatively argues that even if he lacked probable cause

to arrest Plaintiff, he had arguable probable cause to arrest

Plaintiff and is thus qualified immunity on Plaintiff’s false

arrest claim. The Court disagrees.

“Probable cause to arrest exists . . . when an arrest is

objectively reasonable based on the totality of the

circumstances.” Coffin v. Brandau, 642 F.3d 999, 1006 (11th Cir.

2011)(citation and quotation omitted). This standard is satisfied

where “the facts within the collective knowledge of law enforcement

officials, derived from reasonably trustworthy information, are

sufficient to cause a person of reasonable caution to believe that

a criminal offense has been or is being committed.” Brown v. City

of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). The

Eleventh Circuit has recently stated:

“Because probable cause deals with

probabilities and depends on the totality of

the circumstances, it is a fluid concept that

is not readily, or even usefully, reduced to

a neat set of legal rules.” District of

Columbia v. Wesby, ––– U.S. –––, 138 S. Ct.

577, 586, 199 L.Ed.2d 453 (2018) (quotation

marks omitted). It “requires more than mere

suspicion, but does not require convincing

proof.” Bailey v. Bd. of Cty. Comm’rs, 956

F.2d 1112, 1120 (11th Cir. 1992); see Wesby,

138 S. Ct. at 586 (“It requires only a

probability or substantial chance of criminal

activity, not an actual showing of such

activity.”) (quotation marks omitted). All in

all, it’s “not a high bar.” Wesby, 138 S. Ct.

at 586.

Gill, as Next Friend of K.C.R. v. Judd, No. 17-14525, 2019 WL

5304078, at *6 (11th Cir. Oct. 21, 2019).

Although an arrest 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). Indeed, an officer who “make[s] an arrest

without probable cause [is] entitled to qualified immunity if there

was arguable probable cause for the arrest.” Kingsland v. City of

Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)(citation omitted).

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.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.

2002)(citation and quotation omitted).

The arguable probable cause standard “is an objective one and

does not include an inquiry [into] the officer's subjective intent

or beliefs.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 735

(11th Cir. 2010)(citation omitted). Whether an officer possessed

arguable probable cause “depends on the elements of the alleged

crime and the operative fact pattern.” Id. (citation omitted).

Deputy Pepin contends he had probable cause or arguable

probable cause to arrest Plaintiff for resisting an officer with

violence under Fla. Stat. § 843.01, and resisting an officer

without violence under Fla. Stat. § 843.02. The resisting with

violence statute provides that:

Whoever knowingly and willfully resists, obstructs, or

opposes [a law enforcement] officer . . . in the

execution of legal process or in the lawful execution of

any legal duty[] by offering or doing violence to the

person of such officer or legally authorized person, is

guilty of a felony of the third degree.

Fla. Stat. § 843.01. The resisting without violence statute

provides that:

Whoever shall resist, obstruct, or oppose [a law

enforcement] officer . . . in the execution of legal

process or in the lawful execution of any legal duty,

without offering or doing violence to the person of the

officer, shall be guilty of a misdemeanor of the first

degree.

Fla. Stat. § 843.02.

Deputy Pepin asserts he had probable cause or arguable

probable cause to arrest Plaintiff for these offenses because “from

[Deputy] Pepin's perspective it appeared that [Plaintiff] was

physically resisting commands to allow himself to be handcuffed”

and “it would objectively have appeared to [Deputy] Pepin that

[Plaintiff] was non-compliant with commands to turn over or to

give up his arm so as to be handcuffed.” (Doc. #113, p. 7.) As

noted supra, Sergeant Amengual’s dashcam does not definitively

corroborate either Plaintiff’s or Deputy Pepin’s version of

events, as it is unclear whether Plaintiff was resisting during

handcuffing. Thus, on this record, the Court cannot conclude that

Deputy Pepin had probable cause or arguable probable cause to

arrest Plaintiff for resisting an officer with or without violence

on the basis asserted by Deputy Pepin. Deputy Pepin’s motion is

therefore denied as to the false arrest claim included in Count

VIII.

(3) The Malicious Prosecution Claims (Counts IX and X)

Count IX asserts a federal malicious prosecution claim under

§ 1983 and Count X asserts a malicious prosecution claim under

Florida law. Deputy Pepin argues he is entitled to summary

judgment on Counts IX and X because Plaintiff has not established

the element of causation. The Court disagrees.

Both federal and state law claims for malicious prosecution

are comprised of six elements:

(1) an original judicial proceeding against the present

plaintiff was commenced or continued; (2) the present

defendant was the legal cause of the original

proceeding; (3) the termination of the original

proceeding constituted a bona fide termination of that

proceeding in favor of the present plaintiff; (4) there

was an absence of probable cause for the original

proceeding; (5) there was malice on the part of the

present defendant; and (6) the plaintiff suffered

damages as a result of the original proceeding.

Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir.

2004)(citations omitted). An officer is the “legal cause of the

original proceeding” when his conduct “was the proximate and

efficient cause of putting the law in motion.” Harris v. Lewis

State Bank, 482 So. 2d 1378, 1381 (Fla. 1st DCA 1986).

As to Plaintiff’s charge for battery on a law enforcement

officer, Deputy Pepin’s Supplemental Narrative Report authored on

April 4, 2014 states that Plaintiff “actively fought against Cpl

Guth and Cpl Wingo” and that Plaintiff was “trying to move his

arms to defeat the deputies.” (Doc. #113-4, p. 64.) Deputy Pepin

argues this Supplemental Narrative Report cannot establish the

legal causation element because Deputy Chapman, not Deputy Pepin,

authored the initial Incident Report detailing Plaintiff’s arrest.

The Court is unpersuaded, however, because Deputy Chapman’s

Incident Report, in detailing Plaintiff’s physical resistance,

references Deputy Pepin’s account as set forth in his Supplemental

Narrative Report. (Doc. #113-4, p. 57.)

Viewing this evidence in the light most favorable to

Plaintiff, a jury may reasonably find that Deputy Pepin “was the

proximate and efficient cause of putting the law in motion.”

Harris, 482 So. 2d at 1381. For the foregoing reasons, Deputy

Pepin’s motion is denied as to Counts IX and X.7

(4) The Assault and Battery Claim (Count XI)

Count XI asserts a claim for assault and battery under Florida

law. Deputy Pepin argues he is entitled to summary judgment on

Count XI because (1) Deputy Pepin’s use of force was objectively

reasonable under the circumstances; and (2) Deputy Pepin is

entitled to immunity under Florida law pursuant to Fla. Stat. §

768.28(9).

A Florida law claim for assault and battery against a law

enforcement officer is governed by the objective reasonableness

standard of a federal excessive force claim. See Christie ex rel.

estate of Christie v. Scott, 923 F. Supp. 2d 1308, 1328 (M.D. Fla.

2013)(“[T]he crux of a state-law assault and battery claim against

[] officers is whether a reasonable officer would believe that

this level of force is necessary in the situation at hand.”

(citation and quotation omitted)). Thus, because of the material

issues of fact discussed supra, the Court cannot determine whether

Deputy Pepin’s use of force was objectively reasonable.

7 As to the state law claim for malicious prosecution, Deputy

Pepin also argues he is entitled to immunity under Florida law

pursuant to Fla. Stat. § 768.28(9). However, given the issues of

fact concerning Plaintiff’s resistance discussed infra, the Court

cannot conclude that Deputy Pepin is entitled to such state-law

immunity.

As to the issue of immunity under state law, Fla. Stat. §

768.28(9) “protects an officer from personal liability for acts

within the scope of his employment, unless the officer ‘acted in

bad faith or with malicious purpose or in a manner exhibiting

wanton and willful disregard of human rights, safety, or

property.’” Claridy v. Golub, 632 F. App'x 565, 571 (11th Cir.

2015)(quoting Fla. Stat. § 768.28(9)). However, such immunity is

inapplicable where “a reasonable trier of fact could possibly

conclude that the conduct was willful and wanton . . . .” Furtado

v. Yun Chung Law, 51 So. 3d 1269, 1277 (Fla. 4th DCA 2011).

As discussed earlier, the video footage from Sergeant

Amengual’s dashcam does not definitively corroborate either

Plaintiff’s or Deputy Pepin’s version of events, as it is unclear

whether Plaintiff was resisting when Deputy Pepin Tasered

Plaintiff and struck his back with a baton. Under Plaintiff’s

version of events, Deputy Pepin used such force when Plaintiff had

his hands behind his back and was being handcuffed. If true, a

jury may reasonably “conclude that [Deputy Pepin’s] conduct was

willful and wanton . . . .” Furtado, 51 So. 3d at 1277. Given

the issues of fact concerning Deputy Pepin’s use of force, the

Court cannot conclude that Deputy Pepin is entitled to state-law

immunity pursuant to Fla. Stat. § 768.28(9). See Golub, 632 F.

App'x at 571(“Defendant is not entitled to summary judgment . . .

based on immunity provided by § 768.28(9)(a)” where there is “a

question of fact as to whether Defendant acted willfully or with

malice.”).

C. Plaintiff’s First Amendment Retaliation Claim (Count XVI)

Relating to the June 10, 2014 Trespass Warning

Count XVI8 asserts a First Amendment retaliation claim under

§ 1983. It alleges that Defendant Pepin had a Dunkin’ Donuts

employee “agree to issue a trespass warning to [Plaintiff] even

though he had just purchased two donuts and had left without being

asked” in retaliation for Plaintiff’s March 9, 2014 complaint to

the CCSO. (Doc. #51, ¶¶ 363, 369). Defendant Pepin argues Count

XVI should be dismissed because he is entitled to qualified

immunity.9 The Court agrees.

To establish a First Amendment retaliation claim, “a

plaintiff must demonstrate that (1) he engaged in protected speech;

(2) the defendant's conduct adversely affected the protected

speech; and (3) a causal connection exists between the speech and

8 The Amended Complaint uses “Count XVI” twice, with one Count

XVI asserting a First Amendment retaliation claim against Deputy

Pepin (Doc. #51, p. 60), and the other Count XVI asserting an

excessive force and false arrest claim against Deputy Wingo (Doc.

#51, p. 67). The following analysis applies to the Count XVI

asserted against Deputy Pepin.

9 Deputy Pepin also argues he is entitled to summary judgment

because there is no evidence establishing that Deputy Pepin was

motivated to issue Plaintiff a trespass warning by Plaintiff’s

March 9, 2014 complaint. However, the Court need not reach that

issue for the reasons set forth below.

the defendant's retaliatory actions.” Bailey v. Wheeler, 843 F.3d

473, 480 (11th Cir. 2016)(citations omitted). It is “well

established” that “state officials can act lawfully even when

motivated by a dislike or hostility to certain protected behavior

by a citizen . . . .” Foy v. Holston, 94 F.3d 1528, 1534 (11th

Cir. 1996)(citation omitted). Thus, “[w]here the facts assumed

for summary judgment purposes in a case involving qualified

immunity show mixed motives (lawful and unlawful motivations) and

pre-existing law does not dictate that the merits of the case must

be decided in plaintiff's favor, the defendant is entitled to

immunity.” Id. at 1535(emphasis in original).

Here, the uncontroverted testimony in this case establishes

that Sarah Wolin asked Deputies Pepin and Ellis to issue Plaintiff

a trespass warning for the Dunkin’ Donuts.10 This justifies issuing

a trespass warning. See Gestewitz v. State, 34 So. 3d 832, 834-

35 (Fla. 4th DCA 2010)(“[A] police officer . . . may issue a

trespass warning for unauthorized entrance into a structure” at

10 Plaintiff disputes that Deputy Pepin was dispatched to

McDonald’s before Dunkin’ Donuts, arguing the CAD Detail Report

“show[s] that there was no call for service to McDonalds, but only

a field-initiated call to Dunkin Donuts.” (Doc. #128, p. 7)

(emphasis in original.) The CAD Audit Report, however, clearly

notes that Deputy Pepin first arrived at McDonald’s in an “Incident

Initiated By: SO/MONPLAISIR, NATALIE” at 8:56 P.M. (Doc. #116-1,

p. 29.) The CAD Audit Report further reflects that the “Incident

Type” was changed from a suspicious person at McDonald’s to a “43:

Trespassing” at Dunkin’ Donuts at 9:02 P.M. (Id.)

the request of “a ‘person authorized’ to issue a trespass

warning.”); Fla. Stat. § 810.08(3)(defining “the term ‘person

authorized’” to include “any owner or lessee, or his or her

agent.”).

Even assuming Deputy Pepin was motivated to issue the trespass

warning by Plaintiff’s March 9, 2014 complaint, Deputy Pepin is

entitled to qualified immunity unless it was clearly established

as of June 10, 2014 that a law enforcement officer could not issue

a trespass warning under the circumstances of this case. Foy, 94

F.3d at 1534. Plaintiff cites to no legal authority – and the

Court is aware of none – establishing that a law enforcement

officer violates the First Amendment by issuing a trespass warning

at the request of a business establishment’s employee, even if the

officer had an unlawful motive for issuing the warning.

Accordingly, Deputy Pepin is entitled to qualified immunity on

Plaintiff’s First Amendment retaliation claim. Id. at 1536

(holding that where “[d]efendants' conduct [was] arguably proper

even if [d]efendants were motivated in substantial part by unlawful

motives, [d]efendants' conduct was objectively reasonable for the

purposes of qualified immunity” and defendants were entitled to

summary judgment on the plaintiff’s First Amendment retaliation

claim). Deputy Pepin’s motion is therefore granted as to Count

XVI.

Accordingly, it is now

ORDERED :

1. Defendant Scott Pepin’s Motion for Summary Judgment

(Doc. #113) is GRANTED IN PART AND DENIED IN PART.

2. The motion is GRANTED as to Count XVI.

3. The motion is DENIED as to Counts VIII, IX, X, and XI.

4. The Clerk shall withhold the entry of judgment until the

conclusion of the case.

DONE AND ORDERED at Fort Myers, Florida, this 5th day of

November, 2019.

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ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record