OMNIBUS ORDER ON DEFENDANTS’ MOTIONS TO DISMISS (D.E. 30, 37, 41, 64) AND PLAINTIFF’S CROSS-MOTIONS FOR LEAVE TO AMEND FIRST AMENDED COMPLAINT (D.E. 38, 46, 65)
THIS CAUSE is before the Court on Defendants Broward County, the United States of America, the Transportation Security Administration, Alejandro Chamizo, and Broward Sheriff Al Lamberti’s Motions to Dismiss (D.E. 30, 5/22/2012; D.E. 37, 6/25/2012; D.E. 41, 7/19/2012; D.E. 64, 10/22/2012). Plaintiff Jonathan Corbett filed Responses in Opposition (D.E. 35, 6/6/12; D.E. 46, 8/3/2012; D.E. 38, 7/9/12; D.E. 65, 11/7/12), which included three purported Cross-Motions for Leave to Amend (see D.E. 38, 7/9/12; D.E. 46, 8/3/12; D.E. 65, 11/7/12). Defendants filed Replies (D.E. 36, 6/12/12; D.E. 49, 8/13/12; D.E. 42, 7/23/12; D.E. 68, 11/14/12), and Plaintiff filed one Sur-Reply (D.E. 45, 7/24/12). Having considered the referenced filings and the record, the Court finds as follows.
I. Background
Plaintiff’s First Amended Complaint alleges the following.
On August 27th, 2011, Plaintiff arrived at Port Lauderdale-Hollywood International Airport in Broward County to board a commercial airline flight. (First Amended Complaint, D.E. 20 ¶¶ 23, 24, 26.)
Plaintiff proceeded to a Transportation Security Administration (TSA) checkpoint where he was required to submit to a security screening. (Id. ¶¶ 27, 28.)
At the checkpoint, Plaintiff was directed to a full-body scanner. (Id. ¶ 30.) A full-body scanner uses millimeter waves or similar electromagnetic radiation to create a nude image of a subject and detect metallic objects. (See id. ¶ 30.)
Plaintiff declined to go through the body scanner. (Id. ¶ 31.) TSA policy allows passengers to decline going through the scanner and to submit to a manual pat-down search instead. (Id. ¶¶ 32, 33.)
Plaintiff was informed by TSA personnel that he would be screened using a pat-down search. (Id. ¶ 34.) Plaintiff agreed to a pat-down search on the condition that the TSA screener not touch his private areas. (Id. ¶ 35.) A TSA screener informed Plaintiff that this condition was a problem. (Id. ¶ 36.) The screener summoned a TSA supervisor. (Id.) The supervisor informed Plaintiff that he would have to consent to having private areas touched or police would be called. (Id. ¶, 37.) Plaintiff reiterated that he would not consent to the touching of his private areas. (Id. ¶ 38.) The TSA supervisor summoned a Broward County sheriff as well as Defendant Chamizo, a TSA manager. (Id. ¶¶ 39, 41, 43.)
Chamizo arrived at the checkpoint and told Plaintiff that would have to consent to having his private areas touched. (Id. ¶ 44.) Chamizo told Plaintiff that if he did not consent, he would be forcibly searched and arrested. (Id. ¶¶ 45, 46.) Chamizo also told Plaintiff that he was not free to leave. (Id. ¶ 47.) Plaintiffs understanding at that point was that he was being detained. (Id. ¶ 48.)
Chamizo took Plaintiffs driver’s license and boarding pass in order to photocopy them. (Id. ¶ 66.) Plaintiff did not provide consent for Chamizo to do so. (Id. ¶ 67.) TSA agents also furnished a copy of Plaintiffs driver’s license to the Bro-ward Sheriffs Office, and the Broward Sheriffs Office checked if Plaintiff had any outstanding warrants. (Id. ¶ 70, 72.)
The search of Plaintiffs belongings lasted more than thirty minutes. (Id. ¶ 52.) Plaintiff was subsequently “ejected” from the security checkpoint and denied access to his departure gate. (Id. ¶ 73.)
On August 29, 2011, Plaintiff requested, pursuant to the Freedom of Information Act and Florida’s Public Records Act, that TSA and Broward County provide any documentation related to and any surveillance video footage of the security confrontation. (Id. ¶¶ 74, 75.) TSA responded by stating that it was not in possession of any video evidence, as it did not operate the cameras at Fort Lauderdale-Hollywood International Airport. (Id. ¶ 77.) Bro-ward responded by stating that no video evidence existed, and even if it did, Bro-ward had been informed by the TSA that any video footage would constitute sensitive security information not subject to public disclosure. (Id. ¶ 78, 80, 84.) TSA has since furnished to Plaintiff documentation and surveillance footage of the incident, though it has withheld certain documents and pixelated select video footage pursuant to several specified Freedom-of-Information-Act exemptions. (See TSA FOIA Response, D.E. 42-1 at 1-2; Plaintiffs Status Report, D.E. 50 at 1.)
Plaintiff filed this action pro se on March 2, 2012, alleging various civil rights violations, torts, Privacy-Act violations, and Freedom-of-Information-Act/Public-Records-Act violations. (See Complaint, D. E. 1.) Plaintiffs First Amended Complaint sets forth the following twenty-one counts against Defendants:
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(First Amended Complaint, D.E. 20 at 9-14.) Plaintiff seeks a myriad of compensatory, punitive, statutory, and nominal damages as well as declaratory and injunctive relief. (See id. at 15.)
II. Motions
Defendants move to dismiss Plaintiffs claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). (See Motions, D.E. 30, 37, 41, 64.) Defendants assert numerous grounds for dismissal which are discussed below.
In his Responses to Defendants’ Motions to Dismiss, Plaintiff requests leave to amend his First Amended Complaint. (See D.E. 38, 46, 65.) Plaintiffs requests to amend are detailed below as well.
III. Applicable Standards
a. Rule 12(b)(6) Dismissal
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss under Rule 12(b)(6), a court must accept all factual allegations contained in the complaint as true and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus,
A challenge to the court’s subject-matter jurisdiction is brought under Federal Rule of Civil Procedure 12(b)(1). See Fed.R.Civ.P. 12(b)(1); Newman v. William L. Gunlicks Irrevocable Trust,
c. Amendment of Pleadings
Apart from initial amendments permissible as a matter of course, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. However, “[a] district court need not ... allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v. Dupree,
IY. Discussion
a. Counts 1-5: Civil Rights Claims Against Chamizo
Chamizo moves to dismiss the counts asserted against him (Counts 1 through 5), in which Plaintiff alleges that the detention and search violated his Fourth Amendment rights. (See Chamizo Motion, D.E. 41 at 1.) Chamizo argues that the Court lacks jurisdiction over the claims, as they effectively challenge TSA’s standard operating procedures, and all challenges to TSA administrative orders must be filed in the Court of Appeals. (Id. at 3-4.) Chamizo argues in the alternative that he cannot be held personally liable for approving of or overseeing the searches conducted by other TSA screeners. (Id. at 8.) Chamizo finally argues that he is entitled to qualified immunity, as Plaintiff’s allegations fail to establish any violation of a clearly established constitutional right. (Id. at 5-15.)
Plaintiff responds that this Court has jurisdiction over his claims, for the challenged conduct went beyond TSA’s standard operating procedures and therefore falls outside the scope of a final adminis
The Court finds Chamizo’s qualified-immunity argument dispositive and will thus assume, for the purposes of this Order, that the Court has jurisdiction over Plaintiff’s claims and that Chamizo is accountable for the conduct of all TSA screeners at the security checkpoint.
Pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
Under certain circumstances, public officers are entitled to qualified immunity from liability in Bivens suits. See Johnson v. Fankell,
Assessing whether a government official is entitled to qualified immunity involves determination of (1) whether the facts that a plaintiff has alleged or shown establish the violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct. See Saucier v. Katz,
The relevant inquiry in evaluating whether a right is “clearly established” is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202,
While Saucier’s two-step sequence for analyzing qualified-immunity defenses is often appropriate, it is not mandatory. Pearson v. Callahan,
Plaintiffs civil-rights claims are predicated on alleged violations of the Fourth Amendment, which protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV.
Under the Fourth Amendment, searches “conducted without a warrant issued upon probable cause [are] per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte,
One exception to the warrant/probable-cause requirement has been established for administrative searches. See New York v. Burger,
“[A]irport screening searches ... are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’” United States v. Aukai,
An airport security screening search is reasonable as long as it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives” and it is “confined in good faith to that purpose.” Aukai,
Once a traveler presents himself for screening at an airport security checkpoint, he may not avoid being searched by retreating and attempting to leave. United States v. Herzbrun,
Furthermore, agents may briefly detain a traveler for purposes of complet
In addressing the bounds of a permissible airport screening, at least one jurisdiction has noted that “ ‘sheet explosives’ may be disguised as a simple piece of paper or cardboard, and may be hidden in just about anything, including a laptop, book, magazine, deck of cards, or packet of photographs.” United States v. McCarty,
Also noteworthy is that as long as (1) the screening is undertaken pursuant to a legitimate administrative search scheme; (2) the searcher’s actions are cabined to the scope of the permissible administrative search; and (3) there is no impermissible programmatic secondary motive for the search, then the development of a second, subjective motive on the part of the individual searcher is irrelevant for purposes of Fourth Amendment analysis. McCarty,
Consistent with the foregoing, the Court concludes that Chamizo is entitled to qualified immunity on all claims asserted against him, for assuming without finding that Plaintiffs detention and search somehow violated his Fourth Amendment rights, the Court cannot say on the facts alleged that the rights at issue were clearly established. In light of the referenced authority, and in the absence of any mandatory authority holding to the contrary, the Court finds that it would not be clear to an officer in Chamizo’s position that detaining Plaintiff and inspecting his belongings would be unconstitutional. Chamizo could reasonably have concluded that (A) Plaintiff presented himself for screening at the security checkpoint and thus submitted to an administrative search of his belongings, see Burger,
As for Plaintiffs claim that the search was “retaliatory” in nature and therefore violated his Fourth Amendment rights, the Eleventh Circuit has made clear that no independent claim for retaliation exists under the Fourth Amendment. See Wood v. Kesler,
For these reasons, the Court finds that Chamizo is entitled to qualified immunity on Counts 1 through 5, and the Court therefore grants Chamizo’s Motion to Dismiss. The Court likewise denies Plaintiffs purported Cross-Motion to Amend his Complaint and substitute the individual TSA screeners as defendants, as any such amendment would be futile.
b. Counts 6-9: Tort Claims Against the United States
The United States and TSA move jointly to dismiss Plaintiffs tort claims of civil assault, false arrest, false light invasion of privacy, and intentional infliction of emotional distress (Counts 6 through 9). {See USA/TSA Motion, D.E. 37 at 1.) The United States and TSA argue, in relevant part, that Plaintiffs claims are barred by sovereign immunity. {Id. at 3.) They also note that the tort of “invasion of privacy via false light” is not recognized under Florida state law. {Id. at 10.)
Plaintiff responds that the United States is not entitled to sovereign immunity on his intentional-tort claims because TSA agents are “investigate or law enforcement officers” to whom sovereign immunity does not apply. {See Response to USA/TSA, D.E. 38 at 3-6.) Plaintiff acknowledges that “invasion of privacy via false light” is not a cognizable tort in Florida and requests leave to amend his Complaint to allege “defamation” instead. {Id. at 16.)
In order for a suit to proceed against the United States, a waiver of sovereign immunity must exist. Federal Deposit Insurance Corp. v. Meyer,
The Federal Torts Claims Act sets forth a limited waiver of sovereign immunity, allowing private citizens to bring claims against the United States
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b).
However, this waiver does not apply to “any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights,” unless the claim is asserted against “investigative or law enforcement officers of the United States Government.” Id. § 2680(h). An “investigative or law enforcement officer” is “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id.
Several courts have addressed whether TSA agents are “investigative or law enforcement officers” for purposes of Section 2680(h), and the prevailing conclusion is that they are not. See Weinraub v. United States,
TSA screeners perform limited, consensual searches that are administrative in nature. See 49 U.S.C. § 44901 (requiring the screening of all passengers and property); § 44902 (requiring passengers to consent to a search to establish whether a passenger is carrying, or the property of a passenger contains, a dangerous weapon, explosive, or other destructive substance); 49 C.F.R. § 1540.107 (requiring submission to screening and inspection of persons and property). See also Welch v. Huntleigh USA Corp., No. 04-663 KI,2005 WL 1864296 , at *5 (D.Or. Aug. 4, 2005) (“[TSA] screeners are able to conduct consensual administrative searches for items which are prohibited entry into the airport’s sterile areas. Screeners do not have the authority to detain individuals and must call law enforcement officers to search, seize, and arrest individuals if illegal items are found.”). However, the phrase “to execute searches,” when considered within the broader context of the law enforcement proviso, does not contemplate the types of searches performed by TSA screeners.
Congress chose to define “investigative or law enforcement officer,” for purposes of the law enforcement proviso, to include officers that perform any one of three functions: the execution of searches, the seizure of evidence, or the making of arrests. 28 U.S.C. § 2680(h). Each of these are commonly understood to be traditional law enforcement functions performed by the likes of FBI agents, Bureau of Prisons officers, postal inspectors, and INS agents, all of which have broad investigative and law enforcement powers and have been found to fall within the law enforcement proviso. See, e.g., Medina v. United States,259 F.3d 220 , 224 (4th Cir.2001) (INS agents — citing 8 U.S.C. § 1357, which confers broad power to search and arrest without a warrant); Harms v. United States, No. 91-2627,972 F.2d 339 ,1992 WL 203942 , at *6 (4th Cir. Aug. 24, 1992) (unpubl. op.) (postal inspectors — citing 39 C.F.R. § 233.1(a), which confers broad power to arrest without a warrant). These traditional investigative or law enforcement officers have broad search, seizure, and/or arrest powers that they may exercise in a variety of circumstances, which stands in stark contrast to the TSA screener’s power that is limited to pre-boarding searches for certain prohibited items. See United States v. McCarty,648 F.3d 820 , 831 (9th Cir.2011) (“[0]nee a[n] [airport] search is conducted for a criminal investigatory purpose, it can no longer be justified under an administrative search rationale.... [T]he constitutionalbounds of an airport administrative search require that the individual screener’s actions be no more intrusive than necessary to determine the existence or absence of explosives that could result in harm to the passengers and aircraft.”) (citation omitted). Therefore, it would be unreasonable to interpret “to execute searches” to include the TSA screener’s performance of narrowly focused, consensual searches that are administrative in nature, when considered in light of the other traditional law enforcement functions (ie., seizure of evidence and arrest) that Congress chose to define “investigative or law enforcement officers.” See Welch, 2005 WL 1864296 , at *5 (concluding that screeners were not law enforcement officers because they could only perform consensual searches and could not seize evidence or make arrests) (citing Wilson v. United States,959 F.2d 12 , 15 (2d Cir.1992) (“Because the power to seize evidence depends on the consent of the person from whom the evidence is to be taken, however, parole officers lack the seizure power contemplated by section 2680(h), and thus cannot be considered law enforcement personnel.”)). Cf. Matsko v. United States,372 F.3d 556 , 560 (3rd Cir.2004) (“[E]mployees of administrative agencies, no matter what investigative conduct they are involved in, do not come within the § 2680(h) exception.”) (citation omitted)). As a result, the court concludes that TSA screeners are not “empowered by law to execute searches” for purposes of § 2680(h) and that, therefore, they are not “investigative or law enforcement officers.” Thus, the law enforcement proviso to the intentional torts exception does not apply to TSA....
Finally, “the exceptions in the FTCA are not limited to the torts specifically named therein, but rather encompass situations where ‘the underlying governmental conduct which constitutes an excepted cause of action is essential to plaintiffs claim.’ ” O’Ferrell v. United States,
In line with the foregoing, the Court finds that Plaintiffs tort claims against the United States are barred by sovereign immunity. The Court follows Weinraub, Coulter, and Welch and concludes that TSA agents are not “investigative or law enforcement officers” for purposes of Section 2680(h). The Court thus finds that the Federal Tort Claims Act does not waive sovereign immunity with respect to intentional tort claims challenging the conduct of TSA agents. Moreover, the Court finds that Plaintiffs invasion-of-privacy and intentional-infliction-of-emotional-distress claims are derivative of his assault and false-arrest claims — i.e., they hinge on the same underlying governmental conduct — and are therefore precluded by Section 2680(h) as well.
On this basis the Court grants the United States and TSA’s Motion to Dismiss as to Counts 6 through 9. The Court likewise denies Plaintiffs purported Cross-Motion for leave to substitute “defamation” for false light invasion of privacy, as any such amendment would be purely semantic and futile.
c. Counts 10-16: Privacy-Act Claims Against TSA
The United States and TSA also move to dismiss Plaintiffs Privacy-Act Claims (Counts 10 through 16), in which Plaintiff alleges that the TSA violated the Privacy Act by copying his driver’s license and boarding pass and sharing those copies with the Broward Sheriffs Office. (See USA/TSA Motion, D.E. 37 at 13.) The
Plaintiff argues that he has been adversely affected by the alleged Privacy-Act violations and is entitled to monetary damages. (See Response to USA/TSA, D.E. 38 at 11.) Plaintiff further argues that regardless, he also seeks and is entitled to injunctive relief on his claims. (Id. at 12.)
The Privacy Act “governs the government’s collection and dissemination of information and maintenance of its records [and] generally allows individuals to gain access to government records on them and to request correction of inaccurate records.” Perry v. Bureau of Prisons,
The Privacy-Act subsections on which Plaintiff bases his claims provide as follows:
(e) Agency requirements. — Each agency that maintains a system of records shall:
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(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual—
(A) the authority (whether granted by statute, or by executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;
(B) the principal purpose or purposes for which the information is intended to be used;
(C) the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this subsection; and
(D) the effects on him, if any, of not providing all or any part of the requested information;
(4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include—
(A) the name and location of the system;
(B) the categories of individuals on whom records are maintained in the system;
(C) the categories of records maintained in the system;
(D) each routine use of the records contained in the system, including the categories of users and the purpose of such use;
(E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records;
(F) the title and business address of the agency official who is responsible for the system of records;
(G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him;
(H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he .can contest its content; and
(I) the categories of sources of records in the system;
(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;
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(9) establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance;
(10) establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained;
(11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency; and
(12)if such agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the Federal Register notice of such establishment or revision.
5 U.S.C.A. § 552a(e).
The Supreme Court has made clear that a plaintiff must show some actual damages in order to qualify for monetary relief under the Privacy Act. Doe v. Chao,
Moreover, injunctive relief is available under the Act in only two categories of cases: suits to amend a record, 5 U.S.C. § 552a(g)(2), and suits for access to a record, id. § 552a(g)(3). Chao,
In line with the foregoing, the Court concludes that Plaintiffs Privacy-Act counts fail to state claims upon which relief can be granted. Plaintiffs claims allege only that “Defendant TSA, through its employee, collected personal information from
On this basis the Court finds that Plaintiffs Privacy-Act counts fail to state claims upon which any relief can be granted, and the Court therefore grants the United States and TSA’s Motion to Dismiss as to Counts 10 through 16.
d. Count 17: Freedom-of-Information-Act Claim Against TSA
The United States and TSA also move to dismiss as moot Plaintiffs Freedom-of-Information-Act (FOIA) claim (Count 17). (See USA/TSA Motion, D.E. 37 at 1 n. 2.) They argue that TSA has now responded to Plaintiffs information request and tendered both documents and surveillance footage, subject to certain FOIA exemptions. (See USA/TSA Reply, D.E. 42 at 8-9; see also TSA FOIA Response, D.E. 42-1 at 1-2.)
Plaintiff argues that his FOIA claim is not moot, for although TSA has responded to his request and sent documentation and video footage of the subject incident, TSA has improperly redacted several materials and not furnished all requested, disclosable records. (See Response to USA/TSA, D.E. 38 at 13; Plaintiffs Status Report, D.E. 50 at 1.)
The Freedom of Information Act (FOIA) requires disclosure of government records to individuals who follow the outlined procedures for requesting information, unless the requested information falls within one of nine statutory exceptions. 5 U.S.C. § 552(b). A district court has jurisdiction over a complaint brought under the FOIA “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” Id. § 552(a)(4)(B). Jurisdiction under this statute is based upon the plaintiffs showing that an agency has “improperly withheld agency records.” Brown v. DOJ,
Courts generally hold that once an agency releases the documents responsive to a FOIA request, subject matter jurisdiction over a claim for injunctive relief under FOIA ceases to exist. See Bonilla v. DOJ, Case No. 11-20450,
However, “in ‘instances where an agency has released documents, but other related issue[s] remain unresolved, courts frequently will not dismiss the action’ as moot.” McKinley v. FDIC,
Here, although TSA maintains that it has tendered all nonexempt records requested, Plaintiff insists that additional materials are subject to disclosure and that the materials disclosed thus far have been improperly redacted. Based on the present record, the Court cannot say that TSA has disclosed all nonexempt materials in accordance with FOIA. The Court therefore finds that Plaintiff’s FOIA claims are not moot. See, e.g., McKinley,
On this basis the Court denies the United States and TSA’s Motion to Dismiss as to Count 17.
e. Count 18: Florida-Public-Records-Act Claim Against Broward County
Broward moves to dismiss Count 18, in which Plaintiff alleges that Broward improperly denied his request under the Florida’s Public Records Act and falsely stated that the requested records did not exist. (See Broward Motion, D.E. 30 at 4.) Broward argues that Plaintiff cannot establish any improper nondisclosure under the Public Records Act, as the evidence requested by Plaintiff from Broward was sensitive security information and the TSA directed Broward to withhold it. (Id. at 4-6.) Broward further argues that it did not “lie” in denying the existence of the records sought. (Id.) Broward maintains that it was required by the TSA to deny the existence of any video footage, because the existence itself constituted sensitive security information. (Id.)
Plaintiff responds that Broward’s alleged reliance on TSA’s directives presents an issue of fact which is unresolvable at the motion-to-dismiss stage, and at any rate, Broward’s reliance on TSA would not absolve Broward of liability for improper nondisclosure. (Response to Broward, D.E. 35 at 9.) Plaintiff further maintains that under the Public Records Act, Bro-ward was not permitted to falsely deny the existence of the records requested. (Id. at 5.)
Florida’s Public Records Act provides that “[i]t is the policy of [the state of Florida] that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.” Fla Stat. § 119.01(1).
The Act provides that “[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be
Here, Plaintiffs Public-Records-Act count alleges that “BROWARD was properly served a Public Records Act request,” “BROWARD’s response knowingly contained false statements; to wit, that records did not exist when they did,” “BROWARD refused to correct the false statements and provide the records,” and “[t]he records are not exempt from disclosure.” (First Amended Complaint, D.E. 13, at 13.) Based only on the allegations set forth in the Complaint, the Court is unable to say that Broward’s representations and nondisclosures were permissible and that Plaintiff is unable to sustain a claim under the Public Records Act. For these reasons, as well as those articulated in subsection d, supra, the Court finds dismissal of Plaintiffs claim inappropriate at this juncture. See, e.g., Johnson v. Jarvis,
On this basis the Court denies Bro-ward’s Motion to Dismiss as to Count 18.
f. Counts 19 and 20: Civil Conspiracy Claims Against United States and Broward County
The United States and Broward each move to dismiss Plaintiffs civil-conspiracy claims (Counts 19 and 20), in which Plaintiff alleges that Defendants unlawfully conspired to deny his request for records under the Public Records Act. (See USA/ TSA Motion, D.E. 37 at 11; Broward Motion, D.E. 30 at 6.) Broward notes in particular that “there can be no action, as a matter of law, based on the County ‘conferring’ with TSA with respect to the subject records request. The Code of Federal Regulations, [49] § 1520.5 and § 1520.15, mandates such an interaction in the determination of what constitutes [sensitive security information].” (Broward Motion, D.E. 30 at 7.)
Plaintiff responds that the Complaint plausibly alleges the existence of a civil conspiracy. (See Response to USA/ TSA, D.E. 38 at 25; Response to Broward, D.E. 35 at 12.) Plaintiff argues that “[w]hen considering the circumstances in the light most favorable to Plaintiff, there is no leap of logic required to take the set of facts articulated in the complaint and conclude that the TSA told Broward County that they were prohibited from disclosing the existence of public records, even though they were aware that there was no lawful basis to deny the existence of public records.” (Response to USA/TSA, D.E. 38 at 16.)
To state a claim for civil conspiracy under Florida law, a plaintiff must allege: “(a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” United Technologies Corp. v. Mazer,
A civil-conspiracy claim must “set forth clear, positive, and specific allegations of civil conspiracy.” Eagletech Commc’ns, Inc. v. Bryn Mawr Inv. Group, Inc.,
The TSA is vested with the authority to designate information as “sensitive security information” pursuant to 49 U.S.C.
Here the Court finds that Plaintiff fails to state actionable civil-conspiracy claims. Plaintiff alleges only that “[t]he TSA and BROWARD conferred with each other regarding BROWARD’s response to CORBETT’S Public Records Act request,” “[a]s a result of this collusion, BROWARD intentionally lied to CORBETT regarding the existence of responsive records,” and “[t]he above effect was the intention of both parties.” (First Amended Complaint, D.E. 20 ¶ 143-45.) The Court finds these allegations too nonspecific and insufficient to sustain any inference that TSA and Broward reached an agreement to act unlawfully. As Broward points out, it was essentially obligated to consult with TSA to determine whether the records requested by Plaintiff constituted sensitive security information not subject to public disclosure.
For these reasons the Court finds that Plaintiffs civil-conspiracy allegations fail to state claims upon which relief can be granted, and the Court therefore grants the United States and TSA’s Motion to Dismiss as to Count 19 and grants Bro-ward’s Motion to Dismiss as to Count 20.
g. Count 21: State Constitutional Claim of Unlawful Search and Seizure Against Broward Sheriffs Office
Broward Sheriff A1 Lamberti moves to dismiss the single count asserted against the Broward Sheriffs Office (Count 21), in which Plaintiff alleges that the Sheriffs Office violated Plaintiffs state constitutional protections against unreasonable search and seizure by accepting Plaintiffs driver’s license and running a warrant check. (See BSO Motion, D.E. 64 at 1.) Lamberti first notes that there is no such legal entity as the Broward Sheriffs “Office,” and that this alleged party should be terminated accordingly. (Id. at 2-3.) Lamberti further argues that Plaintiffs claim should be dismissed because Plaintiff failed to provide written notice of the claim to the Broward Sheriff and the Florida Department of Financial Services in accordance with Florida’s sovereign immunity statute. (Id. at 3.) Finally,- Lamberti argues that Plaintiff fails to allege any unreasonable conduct on the part of the Bro-ward Sheriff. (Id. at 3-6.)
Plaintiff responds that the Broward Sheriffs Office is a legal entity and is a properly-named defendant in this action. (Response to Lamberti, D.E. 65 at 5.) Plaintiff also argues that he was not required to submit notice of his claim to the Broward Sheriff and the Florida Department of Financial Services under Florida’s sovereign immunity statute, as his cause of action is a “state constitutional claim” and not a “common-law tort.” (Id. at 7.) Plaintiff further maintains that the Broward Sheriff acted unlawfully by accepting Plaintiffs identification and checking for warrants without consent or reasonable suspicion. (Id. at 3.) Plaintiff requests in the alternative for leave to amend his Complaint “to replace the Broward Sheriffs Office with the individual sheriff who interacted with Plaintiff, to modify the related charge (Count 21) from a Florida constitutional violation to a federal Civil Rights Act violation, and to modify the prayer for relief accordingly.” (Id. at 8.)
Lamberti notes in reply that state-constitutional claims for money damages are non-cognizable in Florida. (Lamberti Reply, D.E. 68 at 3-4.)
In Florida, “no cause of action exists for money damages for a violation of a state constitutional right.” Depaola v. Town of Davie,
Here, Plaintiff characterizes his claim against the Broward Sheriff as a “state constitutional claim” as opposed to a common-law tort. Plaintiff seeks only money damages for the Broward Sheriffs alleged violations of his Article 1, section 12 rights. (See First Amended Complaint, D.E. 20 at 15.) In line with the foregoing, the Court concludes that Plaintiffs state-constitutional claim for money damages is non-actionable under Florida law.
On this basis the Court grants Lamberti’s Motion to Dismiss. The Court also denies Plaintiffs purported Cross-Motion for Leave to Amend, as substituting the Broward Sheriffs Office as defendant would be futile, and Plaintiffs request “to modify the related charge ... from a Florida constitutional violation to a federal Civil Rights Act violation, and to modify the prayer for relief accordingly” is vague, unsupported by a proposed amended pleading, and not properly raised. See Long,
V. Conclusion
It is accordingly ORDERED AND ADJUDGED that:
1. Defendant Alejandro Chamizo’s Motion to Dismiss (D.E. 41, 7/19/2012) is GRANTED;
2. Defendants United States of America and the Transportation Security Administration’s Motion to Dismiss (D.E. 37, 6/25/2012) is GRANTED AS TO COUNTS 6-16 AND 19 and DENIED AS TO COUNT 17;
3. Defendant Broward County’s Motion to Dismiss (D.E. 30, 5/22/2012) is GRANTED AS TO COUNT 20 and DENIED AS COUNT 18;
4. Defendant Broward Sheriff Al Lamberti’s Motion to Dismiss (D.E. 64, 10/22/2012) is GRANTED;
5. COUNTS 1-16 and 19-21 of Plaintiff Jonathan Corbett’s First Amended Complaint (D.E. 20) are DISMISSED; and
6. Plaintiff Jonathan Corbett’s purported Cross-Motions for Leave to Amend (D.E. 38, 7/9/12; D.E. 46, 8/3/12; D.E. 65, 11/7/12) are DENIED.