Charles Thompson v. Sheriff of Indian River County, Florida

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13393

Non-Argument Calendar

____________________

CHARLES THOMPSON,

Plaintiff-Appellant,

versus

SHERIFF OF INDIAN RIVER COUNTY, FLORIDA,

ANDREW DEAN,

MICHAEL SCOTT,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:21-cv-14184-KMM

____________________

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2 Opinion of the Court 21-13393

Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Charles Thompson made a furtive offer in what he thought

was the secluded privacy of a spa massage room. But unbeknownst

to him, the county sheriff’s office had made a few surreptitious

arrangements of its own. Thompson was arrested for soliciting

prostitution based on footage from a surveillance camera that

county officials had hidden at the spa. The officials had acted

pursuant to a warrant, but Florida state courts concluded that the

surveillance operation had violated the Fourth Amendment and

that the evidence had to be suppressed.

Thompson sued two detectives and the county sheriff

seeking damages under 42 U.S.C. § 1983. He now appeals the

district court’s dismissal of his action for failure to state a claim. But

Thompson failed to show that the detectives violated a clearly

established constitutional right, so the district court properly

concluded that the detectives are entitled to qualified immunity.

And Thompson also failed to identify a custom or policy

constituting deliberate indifference to his constitutional rights, so

he cannot succeed on his claim against the sheriff. We therefore

affirm the district court’s dismissal of Thompson’s case.

I.

The Indian River County Sheriff’s Office began hearing

rumors that the East Sea Spa offered more than just ordinary

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massages. In late 2018, it opened an investigation into possible

prostitution and human trafficking activities taking place at the spa.

When a health inspection revealed evidence that spa workers were

living at their place of business, the sheriff’s office sought a “visual

surveillance warrant” to allow the installation of four hidden video

cameras in the spa. A state judge granted the warrant and further

ordered that “[w]hile monitoring the premises to be searched, the

Sheriff shall take steps to minimize the invasion of privacy to any

parties not engaged in the unlawful acts set forth in the affidavit.”

Detectives set up cameras in four of the spa’s massage

rooms. They monitored and recorded those rooms for 13 of the 60

days they were permitted to do so. The detectives were targeting

spa employees and male customers in their investigation. But their

surveillance equipment did not allow for a fine-tuned operation.

The cameras enabled the detectives to record one room, all four

rooms, or no rooms; it was not possible to stop recording a single

room and continue recording the others. So during recording

sessions when the massage rooms were being used by both male

and female customers at the same time, the detectives recorded

them all. An assistant state attorney advised the lead detective that

the team could continue this practice, which occurred four times

in total. Although the sheriff’s office obtained newer cameras

capable of more targeted surveillance, the investigation team did

not stop its investigation and reapply for a warrant using the new

cameras.

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Thompson was arrested for soliciting prostitution based on

evidence obtained from the surveillance videos. During the

subsequent state criminal proceedings, he argued that the spa

surveillance operation had violated the Fourth Amendment and

that the videos should be suppressed. The trial court agreed,

finding that Thompson had a legitimate expectation of privacy and

that the sheriff’s office had failed to minimize invasions of privacy

as it had been ordered to do. A state appellate court upheld the

order to suppress the video footage.

Emboldened by his success in state court, Thompson

brought a 42 U.S.C. § 1983 action in federal court seeking damages

from Sheriff Eric Flowers (in his official capacity) and Detectives

Andrew Dean and Michael Scott. The district court dismissed the

case for failure to state a claim, concluding that the detectives were

protected by qualified immunity and that the sheriff could not be

held liable for failure to train his officers. Thompson now appeals.

II.

“We review de novo the district court’s grant of a motion to

dismiss under 12(b)(6) for failure to state a claim, accepting the

allegations in the complaint as true and construing them in the light

most favorable to the plaintiff.” Lanfear v. Home Depot, Inc., 679

F.3d 1267, 1275 (11th Cir. 2012) (quotation omitted). The same

standard applies when a district court grants qualified immunity at

the motion to dismiss stage. Davis v. Carter, 555 F.3d 979, 981

(11th Cir. 2009).

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To survive a motion to dismiss, a complaint must “state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). That is, it must allow a court

to “draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). While we accept all the complaint’s allegations as true, we

are “not bound to accept as true a legal conclusion couched as a

factual allegation.” Id. (quotation omitted).

III.

Thompson has sued Detectives Dean and Scott in their

individual capacities and Sheriff Flowers in his official capacity,

alleging that all three officials violated his Fourth Amendment

rights. None of his claims survive dismissal.

Thompson’s first two claims fail because both detectives are

protected by qualified immunity. Qualified immunity balances

accountability for public officials who abuse their power with

protection for officials who make mistakes while reasonably

performing their duties. Pearson v. Callahan, 555 U.S. 223, 231

(2009). “We are required to grant qualified immunity to a

defendant official unless the plaintiff can demonstrate two things:

(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). We may consider these two

requirements in any order. Pearson, 555 U.S. at 227.

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Thompson has not shown that the officers’ acts were

violations of clearly established law. In determining whether a

right is clearly established, we ask “whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he

confronted.” J W by & Through Tammy Williams v. Birmingham

Bd. of Educ., 904 F.3d 1248, 1259 (11th Cir. 2018). Legal precedent

can show that a right is clearly established, but not just any case

will do—the plaintiff must “point to a materially similar case

decided at the time of the relevant conduct by the Supreme Court,

the Eleventh Circuit, or the relevant state supreme court.” Id.

Thompson does not do so. Instead he offers a single Tenth

Circuit case as proof that the right the detectives allegedly violated

was clearly established. See United States v. Mesa-Rincon, 911 F.2d

1433 (10th Cir. 1990). Thompson argues that the fact that other

jurisdictions have found United States v. Mesa-Rincon persuasive

should be enough to elevate it to “clearly established” status. But

Thompson’s view is not the law. Our precedent is clear: if there is

no United States Supreme Court, Eleventh Circuit, or Florida

supreme court case on point, the law is not clearly established. See

J W, 904 F.3d at 1259.

Thompson further argues that the officers’ conduct “so

obviously violated the Constitution” that he need not point to a

factually similar precedent. In rare cases, a plaintiff may establish

that an officer’s behavior was so egregious that he “had to know he

was violating the Constitution even without caselaw on point.”

Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (quotation

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omitted). For example, we have sometimes denied qualified

immunity to police officers who inflicted serious physical injury on

secured, nonthreatening arrestees, even when no prior case law

closely matched the specific facts at issue. See id. (collecting cases).

Here no such egregious behavior is alleged. The detectives

conducted their investigation in accordance with the law as a

reasonable officer would understand it. They obtained a warrant

and sought legal advice from an assistant state attorney about the

proper scope of surveillance. Nothing alleged by Thompson

suggests that they “had to know” their actions were unlawful.

We hold that Detectives Dean and Scott are entitled to

qualified immunity. Because we conclude that Thompson’s

Fourth Amendment rights were not clearly established here, we

need not ask whether the officers actually violated them. See Fils

v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011).

Thompson’s claim against Sheriff Flowers in his official

capacity is similarly flawed. A municipality may only be found

liable under § 1983 where its official policy or custom is the

“moving force” of a constitutional violation. Monell v. New York

City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). And as

Thompson himself concedes, “the inadequacy of police training

may serve as the basis for § 1983 liability only where the failure to

train amounts to deliberate indifference to the rights of persons

with whom the police come into contact.” City of Canton v.

Harris, 489 U.S. 378, 388 (1989). In short, liability only attaches

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where “a failure to train reflects a ‘deliberate’ or ‘conscious’ choice

by a municipality.” Id. at 389.

As the Supreme Court has explained, a “pattern of similar

constitutional violations” is “ordinarily necessary” to establish

liability for failure to train. Connick v. Thompson, 563 U.S. 51, 62

(2011). But not always. Where a plaintiff can produce “evidence

of a single violation of federal rights” along with “a showing that a

municipality has failed to train its employees to handle recurring

situations presenting an obvious potential for such a violation,” a

municipality can still be found liable. Bd. of Cnty. Comm’rs of

Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997); see also Cooper v.

Dillon, 403 F.3d 1208, 1222–23 (11th Cir. 2005) (finding municipal

liability where city official with policymaking authority enforced

unconstitutional statute one time).

That is not the case here. Thompson alleges a single

constitutional violation: Sheriff Flowers’s failure to ensure that his

officers were properly trained before conducting the surreptitious

video surveillance that resulted in Thompson’s arrest. But even

assuming that the officers committed a constitutional violation,

Thompson has not shown that the sheriff’s office has “failed to

train its employees to handle recurring situations” that will

obviously lead to similar violations in the future. To the contrary,

he alleges that it has procured cameras that will allow for less

intrusive surveillance, suggesting that its future investigations will

be more narrowly targeted.

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At bottom, Thompson simply argues that Sheriff Flowers

should be liable because his officers are not required to read Mesa-

Rincon, the Tenth Circuit case from which Thompson draws his

understanding of Fourth Amendment rights. But as we have

explained, Mesa-Rincon is not binding law in this Circuit. We

cannot hold a county official liable for failing to establish a training

program that fully incorporates the law of other jurisdictions.

Thompson has thus failed to state a claim against the sheriff.

* * *

Detectives Dean and Scott are protected by qualified

immunity, and Thompson has not sufficiently alleged a

failure-to-train claim against Sheriff Flowers. We therefore

AFFIRM the district court’s order dismissing the case.