# Smitherman v. Quaintance

> District Court, M.D. Florida · August 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10642805

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642805

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

TERRANCE SMITHERMAN,

Plaintiff,

v. Case No: 2:23-cv-1185-JES-NPM

JOSHUA QUAINTANCE, Sergeant,
ELIJAH COOK, Special Agent,
JAMES BATES, Detective, and
CHRISTOPHER RODRIGUEZ,
Detective,

Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motion to Dismiss (Doc. #25) filed on May 29, 2024. Plaintiff
filed a Reply (Response) to Defendant’s Motion (Doc. #35) on July
30, 2024, and defendants filed a Reply (Doc. #39) on August 22,
2024.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (citations omitted). Thus, the Court engages in a two-
step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
A pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one drafted by an
attorney, and the Court will construe the documents filed as a
complaint and amended complaint liberally. Jones v. Fla. Parole
Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015). Although pro se

complaints are construed liberally, the Court nevertheless
requires that pro se litigants adhere to the same governing rules
and procedures as litigants represented by attorneys. See Albra
v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (citing Loren
v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002)).
II.
Accepting the facts in the Complaint, plaintiff alleges as
follows: On April 18, 2018, United States Customs Agent Mazur
intercepted a package at the Chicago International Airport
addressed to plaintiff in Fort Myers (Duquesne Drive). The package
contained MDMA. A second agent contacted Special Agent Cook of
Homeland Security in Fort Myers. Cook had the package sent to him

and then contacted Sergeant Quaintance of the Intelligence and
Gang Unit at the Lee County Sheriff’s Office. A briefing was held
with Special Agent Cook, Sgt. Quaintance, and Detective Bates in
attendance. They decided to conduct a controlled delivery to
plaintiff with a tracking device inside the box. A postal
inspector delivered the package to plaintiff. A woman answered
the door, confirmed that plaintiff lived at the address, and
accepted delivery of the package. Using a drone, they observed
plaintiff leaving with the unopened package. Plaintiff drove to
his home where he had been house-sitting for a few months and
opened the package (Cal Cove Drive). Plaintiff was arrested in
his open garage. Defendant obtained a warrant to search the house

and narcotics were seized.
The State of Florida charged plaintiff with trafficking
phenethylamines (400 grams or more in the box) and with trafficking
phenethylamines (10 grams or more), possession of a controlled
substance (oxymetholone), and possession of marijuana (less than
20 grams) found at the Cal Cove home where plaintiff was arrested.
State v. Smitherman, 18-CF-015947, 2019 WL 13175091, at *1 (Fla.
Cir. Ct.).
Plaintiff moved to suppress the evidence found at the Cal
Cove home. The motion was denied, and the case was set for trial.
Plaintiff was found guilty on all counts and sentenced. Plaintiff
appealed the denial of the motion to suppress as to the contraband

found at the Cal Cove home, and the Second District of Appeals
agreed. On March 11, 2022, the convictions for Counts two through
four were reversed. See Smitherman v. State, 342 So. 3d 685 (Fla.
2d DCA 2022). Plaintiff states that his claims are not barred by
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) because his
convictions were not invalidated until March 11, 2022.
Plaintiff presents 10 claims, with the first four counts
(Counts 1-4) alleging unlawful entry, search, and seizure by all
defendants because they lacked probable cause. In Count 5,
plaintiff alleges that Sgt. Quaintance worked in a supervisory
capacity and personally participated in the acts alleged in Counts
1-4. Count 6 alleges that all defendants conspired to deprive

plaintiff of his Fourth Amendment rights at the Cal Cove home.
Counts 7 and 8 allege false arrest and false imprisonment at the
Cal Cove home by James Bates and Chris Rodriguez. Count 9 alleges
malicious prosecution against all defendants for the overturned
criminal counts. Count 10 alleges intentional infliction of
emotional distress in violation of his Eighth Amendment right when
they arrested him without probable cause.
III.
Defendants seek dismissal because nine of the ten claims are
time barred and the tenth claim fails to state a claim for
malicious prosecution. Alternatively, defendants argue that the
Complaint is a shotgun pleading and should be dismissed without

prejudice. The alternative argument is rejected as plaintiff has
clearly set forth his counts in separate paragraphs followed by a
summary of facts and an accounting of what occurred on appeal of
his own criminal case.
A. Statute of Limitations
“Section 1983 provides a cause of action based on ‘the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws.’” Villalona v. Holiday Inn Express &
Suites, 824 F. App'x 942, 945 (11th Cir. 2020) (quoting 42 U.S.C.
§ 1983). A claim under § 1983 is “governed by the statute of
limitations for personal injury actions in the state in which the
cause of action arose” and “claims that originated in Florida, the

statute of limitations period is four years. Id. at 946 (citing
Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003)).
Applying federal law to the issue of accrual,
the statute of limitations begins to run when
“the plaintiff has a complete and present
cause of action” and “can file suit and obtain
relief.” Wallace v. Kato, 549 U.S. 384, 388
(2007) (citations and quotation marks
omitted). In Section 1983 cases, “‘the
statute of limitations does not begin to run
until the facts which would support a cause of
action are apparent or should be apparent to
a person with a reasonably prudent regard for
his rights.’” Calhoun v. Alabama Alcoholic
Beverage Control Board, 705 F.2d 422, 425
(11th Cir. 1983) (quoting Reeb v. Economic
Opportunity Atlanta, Inc., 516 F.2d 924, 930
(5th Cir. 1975)). Thus Section 1983 actions do
not accrue until the plaintiff knows or has
reason to know that he has been injured.
Calhoun, 705 F.2d at 424; Rubin [v. O’Koren,
621 F.2d 114, 116 (5th Cir. 1980)]; Lavellee
[v. Listi, 611 F.2d 1129, 1131 (5th Cir.
1980)]. Nor will a Section 1983 action accrue
until the plaintiff is aware or should have
been aware who has inflicted the injury.
Lavellee, 611 F.2d at 1131 (quoting United
States v. Kubrick, 444 U.S. 111 (1979)).
Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987). In
other words, “[t]his rule requires a court first to identify the
alleged injuries, and then to determine when plaintiffs could have
sued for them.” Rozar v. Mullis, 85 F.3d 556, 562 (11th Cir. 1996)
(citation omitted).
1. Counts One through Five
Counts One through Five do not specify the “home”, whether at
Duquesne Drive or Cal Cove. The Court will consider the counts as

to each property. Counts One through Five allege unlawful entry,
search, and seizure without probable cause and/or with a defective
warrant lacking arguable probable cause. All are based on the
Fourth Amendment and require the same review. Defendants argue
that any seizure was pursuant to legal process and supported by
probable cause, and at the very least arguable probable cause
entitling deputies to qualified immunity.
To the extent the Count is directed to the Duquesne Drive
home, the claim is not supported by the facts and is time-barred.
Plaintiff alleges that a woman answered the door, confirmed that
plaintiff was a resident, and she accepted delivery. Defendants
did not enter the residence. Even if there was an entry, the

action was complete on the day in April 2018, and the Complaint
was not filed until December 2023. Therefore, Counts One through
Five are barred as to Duquesne Drive.
As the Cal Cove home, defendants arrested plaintiff in his
garage without a warrant because he was holding the open package
with the tracking device. Defendants obtained a warrant to search
the home and seized additional narcotics and personal property in
the home in 2018. On appeal, the warrant was found to be invalid,
and the conviction was overturned in 2022 as to the Cal Cove seized
evidence. Counts One through Five are directed to the unlawful
entry, search of the home, and seizure of property.
To determine if Heck applies to bar a claim, “the court must

look both to the claims raised under § 1983 and to the specific
offenses for which the § 1983 claimant was convicted.” Hughes v.
Lott, 350 F.3d 1157, 1161 n.2 (11th Cir. 2003). Defendant was
charged with trafficking of drugs found in the home. On appeal,
the Second District Court of Appeals found that “[a] reasonably
trained law enforcement officer would have known that the affidavit
in this case failed to establish probable cause for the search, so
the good-faith exception does not apply. Accordingly, because the
sworn application for the warrant to search the Cal Cove home
failed to demonstrate probable cause therefor, we reverse
Smitherman's convictions related to the fruits of that search
(counts two, three, and four).” Smitherman, 342 So. 3d at 690.

In Heck, the U.S. Supreme Court held that “a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas corpus,
28 U.S.C. § 2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated is not
cognizable under § 1983.” Heck v. Humphrey, 512 U.S. 477, 486–87
(1994). Because defendant’ conviction on the counts related to
the Cal Cove home were reversed, plaintiff’s claims for unlawful
entry, search, and seizure are not time-barred.
“To receive qualified immunity, an officer need not have

actual probable cause, but only ‘arguable’ probable cause. []
Arguable probable cause exists where ‘reasonable officers in the
same circumstances and possessing the same knowledge as the
Defendants could have believed that probable cause existed to
arrest Plaintiff.’” Brown v. City of Huntsville, Ala., 608 F.3d
724, 734-35 (11th Cir. 2010) (internal citations omitted). The
Court finds that the state appellate court specifically found a
reasonable officer would not have found probable cause for the
search. Therefore, the issue of qualified immunity is premature
at this stage.
2. Count Six
In Count 6, plaintiff alleges that defendants conspired to

deprive him of his Fourth Amendment rights for the unlawful entry,
seizure, and search of the Cal Cove home without arguable probable
cause. Defendants argue that the claim is time-barred.
“A plaintiff may state a § 1983 claim for conspiracy to
violate constitutional rights by showing a conspiracy existed that
resulted in the actual denial of some underlying constitutional
right…. The conspiratorial acts must impinge upon the federal
right; the plaintiff must prove an actionable wrong to support the
conspiracy.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260
(11th Cir. 2010) (citations omitted).
Any alleged conspiracy to violate plaintiff’s rights would

have been complete by the date of arrest in 2018. The overturned
conviction based on the invalid search warrant would have no
bearing on this claim. Therefore, the claim would be time-barred.
3. Counts Seven and Eight
Plaintiff alleges false arrest without arguable probable
cause when he was arrested at the Cal Cove home and false
imprisonment without probable cause when he was placed in jail
based on evidence derived from his Cal Cove home, specific to James
Bates and Chris Rodriguez.
“Limitations begin to run against an action for false
imprisonment when the alleged false imprisonment ends.” Wallace
v. Kato, 549 U.S. 384, 389 (2007) (citation omitted). False arrest

damages continue “up until issuance of process or arraignment, but
not more.” Id. at 390. For false imprisonment, the statute of
limitations begins to run from when legal process was initiated
not after charges are dropped. Id. Thereafter, wrongful detention
forms part of a malicious prosecution case. Id.
Since the warrantless arrest, arraignment, and the start of
legal process ended more than 4 years ago, both counts are time-
barred.
4. Count 10
In Count 10, plaintiff alleges that defendants deprived him
of his right to be free from intentional infliction of emotional

distress by placing him in handcuffs and arresting him at the Cal
Come home without arguable probable cause.
“To state a valid claim for intentional infliction of
emotional distress under Florida law, a plaintiff must plausibly
allege the following elements: ‘(1) the defendant’s conduct was
intentional or reckless; (2) the conduct was outrageous, beyond
all bounds of decency, and odious and utterly intolerable in a
civilized community; (3) the conduct caused emotional distress;
and (4) the emotional distress was severe.’” Plowright v. Miami
Dade Cnty., 102 F.4th 1358, 1367–68 (11th Cir. 2024) (quoting Moore
v. Pederson, 806 F.3d 1036, 1053 (11th Cir. 2015)). “[L]iability
for intentional infliction of emotional distress attaches “only

where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community.” Id. at 1368 (citation omitted).
There are no allegations of intentional or reckless behavior,
outrageous conduct, or of specified emotional distress. To the
extent that plaintiff is making an Eighth Amendment cruel and
unusual punishment claim, the Amendment does not apply to an
arrestee or pretrial detainee. The Fourteenth Amendment does apply
but plaintiff has not alleged gross negligence or deliberate
indifference. Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir.
1996).

The fact that a search warrant proved later to be improper
does not rise to the requisite level of outrageousness required
and there is a failure to state a claim. In any event, the conduct
at issue would have occurred more than 4 years ago. Therefore,
this claim is time-barred.
B. Failure to State a Claim
In Count 9, plaintiff asserts that defendants violated his
Fourth Amendment right through malicious prosecution on the Cal
Cove home counts without arguable probable cause. Defendants argue
that plaintiff has failed to state a claim because he was not
seized pursuant to legal process and the issuance and execution of
a search warrant is not a judicial proceeding. Defendants are

correct.
“Malicious prosecution is a violation of the Fourth Amendment
and is a viable constitutional tort cognizable under § 1983. [] A
§ 1983 claim for malicious prosecution requires the plaintiff to
show both the elements of the common law tort of malicious
prosecution and an unreasonable seizure in violation of the Fourth
Amendment.” Smith v. Mitchell, 856 F. App'x 248, 249 (11th Cir.
2021) (internal citations omitted). “As to the first prong, the
constituent elements of the common law tort of malicious
prosecution are: “(1) a criminal prosecution instituted or
continued by the present defendant; (2) with malice and without
probable cause; (3) that terminated in the plaintiff accused’s

favor; and (4) caused damage to the plaintiff accused…. As to the
second prong, it is well established that an arrest without
probable cause is an unreasonable seizure that violates the Fourth
Amendment.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256
(11th Cir. 2010). A malicious prosecution claim is based on
“damages for confinement imposed pursuant to legal process.”
Carter v. Gore, 557 F. App'x 904, 906 (11th Cir. 2014).
“To prevail on a Florida malicious prosecution claim,
plaintiff must establish the following elements: (1) an original
criminal or civil judicial proceeding against the present
plaintiff was commenced or continued; (2) the present defendant
was the legal cause of the original proceeding against the present

plaintiff as the defendant in 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 damage as a result of
the original proceeding.” Ermini v. Scott, 249 F. Supp. 3d 1253,
1277 (M.D. Fla. 2017).
It is undisputed that plaintiff was arrested without a warrant
when he opened the box at the Cal Cove home containing a tracking
device. It is also undisputed that the arrest was valid, and the

conviction was not overturned as to the box.
[T]he presence of probable cause defeats a
claim of malicious prosecution. A plaintiff
cannot recover for malicious prosecution
unless she proves “a violation of her Fourth
Amendment right to be free from unreasonable
seizures.” Kingsland [v. City of Miami, 382
F.3d 1220, 1234 (11th Cir. 2004)]. But the
illegal seizure cannot be just any seizure:
unlike the torts of false arrest and false
imprisonment, the tort of malicious
prosecution requires a seizure “pursuant to
legal process.” Heck v. Humphrey, 512 U.S.
477, 484 (1994). Legal process includes an
arrest warrant. See Whiting v. Traylor, 85
F.3d 581, 585 (11th Cir. 1996). A police
officer who applies for an arrest warrant can
be liable for malicious prosecution if he
should have known that his application “failed
to establish probable cause,” Kelly v. Curtis,
21 F.3d 1544, 1553 (11th Cir. 1994) (quoting
Malley v. Briggs, 475 U.S. 335, 345 (1986)),
or if he made statements or omissions in his
application that were material and “perjurious
or recklessly false,” id. at 1554 (citing
Franks v. Delaware, 438 U.S. 154, 156 (1978)).
Concomitantly, a police officer cannot be
liable for malicious prosecution if the arrest
warrant was supported by probable cause. See
Wood [v. Kesler, 323 F.3d 872, 882 (11th Cir.
2003)].
Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016). Because
the arrest warrant was supported by probable cause, plaintiff
cannot state a claim for malicious prosecution. Plaintiff’s
reliance on the invalid search warrant is misplaced because it is
not legal process. The “exclusionary rule is not a ‘personal
constitution right’ or a requirement of the Fourth Amendment; it
is a ‘judicially created remedy’ that is meant to prevent
violations of the Fourth Amendment ‘through its deterrent
effect.’” Id. (citing United States v. Calandra, 414 U.S. 338,
347-48 (1974)). The motion to dismiss this count for failure to
state a claim will be granted.
Accordingly, it is now
ORDERED :
Defendant’s Motion to Dismiss (Doc. #25) is GRANTED IN PART
AND DENIED IN PART. Counts 1 through 5 as to the Duquesne Drive
home, Counts 6 through 8, and Count 10 are dismissed with prejudice
as time-barred and Count 9 is dismissed without prejudice for
failure to state a claim. The motion is denied as to Counts 1
through 5 as to the Cal Cove home.
DONE AND ORDERED at Fort Myers, Florida, this 29th day of
August 2024,

0 x
: le hy Zé. tkisol
adi EF. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies:
Parties of record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642805. Public record. Not legal advice.