Edward Raymond v. Hillsborough County, Florida

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-14124

Non-Argument Calendar

____________________

EDWARD RAYMOND,

Plaintiff-Appellant,

versus

HILLSBOROUGH COUNTY,

a government entity,

FLORIDA, HILLSBOROUGH COUNTY SHERIFF'S OFFICE,

a government entity,

et al,

Defendants-Appellees.

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2 Opinion of the Court 24-14124

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:24-cv-01404-TPB-CPT

____________________

Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Edward Raymond, proceeding pro se, appeals the district

court’s order dismissing his complaint with prejudice because the

named defendant Hillsborough County Sheriff’s Office (“HCSO”)

was not a proper party and denying him leave to amend because

amendment would be futile, as he failed to allege sufficient facts to

state any claim for relief.

I.

We review a district court’s order granting a motion to dis-

miss for failure to state a claim de novo. EEOC v. STME, LLC,

938 F.3d 1305, 1313 (11th Cir. 2019). “Pro se pleadings are held to a

less stringent standard than pleadings drafted by attorneys and will,

therefore, be liberally construed.” Tannenbaum v. United States,

148 F.3d 1262, 1263 (11th Cir. 1998).

To overcome a Rule 12(b)(6) motion to dismiss, a complaint

must include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2);

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The

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24-14124 Opinion of the Court 3

complaint must include factual allegations sufficient “to raise a

right to relief above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted).

“Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements” are insufficient to state a claim for

relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

U.S. at 555). To survive a motion to dismiss under Rule 12(b)(6), a

complaint is required to contain “enough facts to state a claim to

relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

claim is facially plausible when the plaintiff pleads sufficient facts to

allow the court to draw the reasonable inference that the defendant

is liable for the alleged misconduct.” STME, LLC, 938 F.3d at

1313 (quotation marks omitted). Plausible facts “raise a reasonable

expectation that discovery could supply additional proof of [a de-

fendant’s] liability.” Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012). The district court must “take the factual al-

legations in the complaint as true and construe them in the light

most favorable to the plaintiffs.” Edwards v. Prime, Inc., 602 F.3d

1276, 1291 (11th Cir. 2010).

“Sheriff’s departments and police departments are not usu-

ally considered legal entities subject to suit, but capacity to sue or

be sued shall be determined by the law of the state in which the

district court is held.” Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.

1992) (citations and quotation marks omitted). Under Florida law,

“[t]he state or its subdivisions are not liable in tort for the acts or

omissions of an officer . . . committed in bad faith or with malicious

purpose or in a manner exhibiting wanton and willful disregard of

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human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). We

have concluded that state law claims for intentional infliction of

emotional distress and malicious prosecution against a sheriff’s of-

fice were barred by sovereign immunity under Florida law.

Weiland v. Palm Beach County Sheriff’s Off., 792 F.3d 1313, 1330 (11th

Cir. 2015).

“Although the Supreme Court has held that local govern-

ment may be subject to liability under § 1983, a plaintiff cannot rely

upon the doctrine of respondeat superior to hold the government

liable.” Id. at 1328. A plaintiff must “establish that the government

unit has a ‘policy or custom’ that caused the injury. Id. (reviewing

§ 1983 claims against a sheriff’s office).

“[We] may affirm the judgment of the district court on any

ground supported by the record, regardless of whether that ground

was relied upon or even considered by the district court.” Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).

Here, the district court did not err by dismissing Raymond’s

complaint because it correctly determined that the HCSO does not

have the legal capacity to be sued under Florida law as to his state

law claims for false arrest, kidnapping, intentional infliction of

emotional distress, and malicious prosecution. Any error by the

district court in determining that the HCSO did not have the legal

capacity to be sued under federal law was harmless. As discussed

below, the district court, in denying leave to amend, correctly con-

cluded that Raymond failed to allege sufficient facts to state a claim

for relief as to his federal claims.

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II.

We review for an abuse of discretion the denial of leave to

amend a complaint but review de novo “the underlying legal con-

clusion of whether a particular amendment to the complaint would

be futile.” Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087,

1093-94 (11th Cir. 2017) (quotation marks omitted).

Generally, a plaintiff proceeding pro se must receive at least

one opportunity to amend the complaint if he might be able to

state a claim by doing so before the district court dismisses a com-

plaint with prejudice. Woldeab v. Dekalb Cnty. Bd. of Educ., 885 F.3d

1289, 1291-92 (11th Cir. 2018); see also Silberman v. Miami Dade

Transit, 927 F.3d 1123, 1132-33 (11th Cir. 2019) (noting that in some

situations, further leniency—or “an extra dose of grace”—may be

warranted “in recognition of the difficulty in proceeding pro se”). A

district court need not allow amendment in the event of undue de-

lay, bad faith, repeated failure to cure deficiencies, undue prejudice

to the opposing party, or futility of the amendment. Foman v. Da-

vis, 371 U.S. 178, 182 (1962). A proposed amendment is futile if the

complaint, as amended, would still be subject to dismissal. Hall v.

United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004). “Leave

to amend would be futile if an amended complaint would still fail

at the motion-to-dismiss or summary-judgment stage.” L.S. ex rel.

Hernandez v. Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020). “In

other words, the question is whether the underlying facts or cir-

cumstances relied upon by a plaintiff may be a proper subject of

relief.” Id. (quotation marks omitted).

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Section 1983 provides a cause of action for private citizens

against government actors for violating their constitutional rights

and other federal laws. 42 U.S.C. § 1983. In order to recover dam-

ages for an allegedly unconstitutional conviction or for other harm

caused by actions whose unlawfulness would render a conviction

or sentence invalid in a § 1983 action, a plaintiff must show that the

conviction or sentence “has been reversed on direct appeal, ex-

punged by executive order, declared invalid by a state tribunal au-

thorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.” Heck v. Humph-

rey, 512 U.S. 477, 486-87 (1994) (applying this framework to a § 1983

suit seeking monetary and punitive damages). If this type of § 1983

action is brought before the challenged conviction or sentence is

invalidated, it must be dismissed. Id. at 487. Thus, the district

court considers whether a favorable judgment for the plaintiff

would “necessarily imply the invalidity of his conviction or sen-

tence.” Id. If the outcome would imply invalidity, then the plain-

tiff’s complaint must be dismissed unless the plaintiff can establish

that the conviction or sentence was already invalidated. Id.

In Dyer v. Lee, we clarified that for Heck to apply, a successful

§ 1983 suit and the underlying conviction must be logically contra-

dictory such that the § 1983 suit would negate the conviction.

488 F.3d 876, 879-80, 884 (11th Cir. 2007). We ask whether “it is

possible that the facts could allow a successful § 1983 suit and the

underlying conviction both to stand without contradicting each

other.” Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185,

1193 (11th Cir. 2020) (quotation marks omitted). The Heck

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doctrine only applies when the “invalidation of a conviction or

speedier release would . . . automatically flow from success on the

§ 1983 claim.” Id. (quotation marks omitted).

In Hughes v. Lott, we stated that “[b]ecause an illegal search

or arrest may be followed by a valid conviction, a successful § 1983

action for Fourth Amendment search and seizure violations does

not necessarily imply the invalidity of a conviction. As a result,

Heck does not generally bar such claims.” 350 F.3d 1157, 1161 (11th

Cir. 2003) (citation and footnote omitted).

A claim for false arrest arises when an arrest occurs without

a warrant and without probable cause. Brown v. City of Huntsville,

608 F.3d 724, 734 (11th Cir. 2010). The existence of probable cause

at the time of arrest serves as an absolute bar to a false arrest claim.

Id.; see also District of Columbia v. Wesby, 583 U.S. 48, 61 (2018) (hold-

ing that an arrest is justified where “a reasonable officer could con-

clude . . . that there was a substantial chance of criminal activity”

(quotation marks omitted)); Garcia v. Casey, 75 F.4th 1176,

1180 (11th Cir. 2023) (affirming that the “test in Wesby should be

applied to answer whether probable cause exists for an arrest or

qualified immunity prevents liability for a false arrest claim”).

“[T]he any-crime rule . . . insulates officers from false-arrest

claims so long as probable cause existed to arrest the suspect for

some crime, even if it was not the crime the officer thought or said

had occurred.” Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir.

2020). In contrast, “the any-crime rule does not apply to claims of

malicious prosecution under the Fourth Amendment.” Id. at 1162.

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“In order to establish a federal malicious prosecution claim

under § 1983, a plaintiff must prove (1) the elements of the com-

mon law tort of malicious prosecution, and (2) a violation of [his]

Fourth Amendment right to be free of unreasonable seizures.”

Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019) (quotation

marks omitted, alteration adopted).

“The constituent elements of the common law tort of mali-

cious prosecution include: (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.” Id. (quotation

marks omitted, alterations adopted). “To demonstrate a favorable

termination of a criminal prosecution for purposes of the Fourth

Amendment claim under § 1983 for malicious prosecution, a plain-

tiff need only show that his prosecution ended without a convic-

tion.” Thompson v. Clark, 596 U.S. 36, 39, 49 (2022) (remanding for

further consideration in the first instance of “additional questions

that may be relevant on remand, including whether [the plaintiff]

was ever seized as a result of the alleged malicious prosecution,

whether he was charged without probable cause, and whether re-

spondent is entitled to qualified immunity”).

Under Florida law, nolo contendere pleas are considered con-

victions. Stephens v. DeGiovanni, 852 F.3d 1298, 1319 (11th Cir.

2017).

“The Equal Protection Clause of the Fourteenth Amend-

ment commands that no State shall deny to any person within its

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jurisdiction the equal protection of the laws, which is essentially a

direction that all persons similarly situated should be treated alike.”

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quo-

tation marks omitted). “A successful equal protection claim under

the Fourteenth Amendment requires proof of both an intent to dis-

criminate and actual discriminatory effect.” Greater Birmingham

Ministries v. Sec’y of State for State of Ala., 992 F.3d 1299, 1321 (11th

Cir. 2021).

“A supervisory official is not liable under section 1983 for an

injury resulting from his failure to train subordinates unless his fail-

ure to train amounts to deliberate indifference to the rights of per-

sons with whom the subordinates come into contact and the failure

has actually caused the injury of which the plaintiff complains.”

Belcher v. City of Foley, 30 F.3d 1390, 1397 (11th Cir. 1994) (quotation

marks omitted). “Only when the failure to train amounts to ‘delib-

erate indifference’ can it properly be characterized as the ‘policy’ or

‘custom’ that is necessary for section 1983 liability to attach.” Id.

“Failure to train can amount to deliberate indifference when the

need for more or different training is obvious, such as when there

exists a history of abuse by subordinates that has put the supervisor

on notice of the need for corrective measures, and when the failure

to train is likely to result in the violation of a constitutional right.”

Id. at 1397-98 (internal citations omitted).

The district court did not err by determining that Ray-

mond’s claims of malicious prosecution and “abuse of process” by

way of malicious prosecution were barred by the Heck doctrine

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because Raymond pled nolo contendere to state misdemeanors,

which count as convictions under Florida law, and the success of

his civil claims would necessarily imply the invalidity of his under-

lying convictions. The district court erred by determining that

Raymond’s claims of unreasonable search and seizure, a racial dis-

crimination and equal protection violation, and deliberately indif-

ferent policies resulting in failure to train were barred by the Heck

doctrine because the claims would not necessarily imply the inva-

lidity of Raymond’s underlying convictions. However, we may af-

firm on any ground supported by the record, and the district court

correctly concluded that Raymond failed to allege sufficient facts

to state a claim for relief as to any of these claims because he did

not allege sufficient facts to show that the officers’ actions were ob-

jectively unreasonable and malicious, the officers had an intent to

discriminate, and there was a history of abuse putting a supervisor

on notice. Further, the court did not err when it found that amend-

ment would be futile because Raymond did not indicate—either in

the district court or in his appellate brief—that he could amend his

pleading to include such allegations.

III.

“[P]robable cause constitutes an absolute bar to both state

and § 1983 claims alleging false arrest . . . .” Rankin v. Evans,

133 F.3d 1425, 1435 (11th Cir. 1998). A criminal defendant’s nolo

contendere plea acts as acknowledgement by the defendant that

probable cause exists “unless it be shown that the judgment was

obtained by fraud, perjury, or other corrupt means.” Stephens,

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852 F.3d at 1319-20 (quotation marks omitted and alteration

adopted).

In Florida, the tort of intentional infliction of emotional dis-

tress requires the Plaintiff to prove the following elements:

“(1) [t]he wrongdoer’s conduct was intentional or reckless, that is,

he intended his behavior and he knew or should have known that

emotional distress would likely result; (2) the conduct was outra-

geous, that is, as to go beyond all bounds of decency, and to be

regarded as odious and utterly intolerable in a civilized commu-

nity; (3) the conduct caused emotional distress; and (4) the emo-

tional distress was severe.” LeGrande v. Emmanuel, 889 So. 2d 991,

994 (Fla. 3rd Dist. Ct. App. 2004) (quotation marks omitted).

Florida law requires the following showing for a malicious

prosecution claim:

In order to prevail in a malicious prosecution action,

a plaintiff must establish that: (1) an original criminal

or civil judicial proceeding against the present plain-

tiff was commenced or continued; (2) the present de-

fendant was the legal cause of the original proceeding

against the present plaintiff as the defendant in the

original proceeding; (3) the termination of the origi-

nal 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.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).

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Federal law does not create a “private right of action any

time a civil plaintiff” alleges the violation of a federal criminal stat-

ute. See Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290,

1302-03 (11th Cir. 2008).

“Under Florida law, a mere violation of the penal statutes

does not give rise to liability per se.” Lavis Plumbing Servs., Inc. v.

Johnson, 515 So. 2d 296, 298 (Fla. 3d Dist. Ct. App. 1987). Instead,

it “remains for the Legislature to create a private cause of action.”

Mailloux v. Briella Townhomes, LLC, 3 So. 3d 394, 396 (Fla. 4th Dist.

Ct. App. 2009).

Here, the district court did not err by determining that Ray-

mond failed to allege sufficient facts to state a claim as to his state

law claims and that amendment of these claims would be futile.

Because Raymond pled nolo contendere to his underlying criminal

charges, this precluded his false arrest and malicious prosecution

claims. Additionally, he failed to allege facts sufficient to show the

officers’ intent, how their conduct was outrageous, and that his

emotional distress was severe. With respect to Raymond’s claim

of a Second Amendment violation pursuant to § 1983 (assuming

arguendo that there is a cognizable civil claim for a Second Amend-

ment violation pursuant to § 1983), Raymond pled nolo contendere

and admitted that there was probable cause for the search, and thus

Raymond would not be able to plead facts sufficient to show any

violation of the Second Amendment for his claim, even if he were

permitted the chance to amend his complaint. Because there are

no cognizable civil actions for Florida kidnapping and criminal

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violation of postal laws pursuant to 18 U.S.C. § 1703, the district

court also did not err in dismissing these claims.

AFFIRMED.