ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT & DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Fane Lozman (“Lozman”) filed a Second Amended Complaint against the City of Riviera Beach (“the City”) pursuant to 42 U.S.C. § 1983, alleging that the City, through the actions of its city council members, retaliated against him for criticizing a municipal redevelopment project and opposing what he perceived as improper conduct of various council members, in violation of his First, Fourth and Fourteenth Amendment rights under the United States Constitution. He also asserts supplemental state law claims against the City for false arrest, battery and conversion.
The case is now before the court on the parties’ cross-motions for summary judgment [DE Nos. 383, 408]. For reasons discussed below, the court will grant in part and deny in part the City’s motion for summary judgment, and will deny Mr. Lozman’s motion for partial summary judgment.
I. Factual Background
In March, 2006, Mr. Lozman moved to Riviera Beach and leased a slip at the
Lozman was publicly critical of the City’s redevelopment plan, as well as the corruption that he perceived was prevalent throughout the City’s government, and routinely voiced those criticisms at public meetings of the Riviera Beach City Council and the Riviera Beach Community Redevelopment Agency (CRA) between the years 2006-2013.
. On May 10, 2006, Riviera Beach police officers, acting at the direction of the City Council Chairperson, forcibly removed Lozman from a regularly scheduled meeting of the city council. Later that evening, the city council denied him access to a “special meeting” of the council. A few weeks later, on June 7, 2006, Lozman filed suit in state court against the City and various city council members alleging a violation of Florida’s GovernmenL-in-the-Sunshine Act based on its closure of this meeting.
On June 28, 2006, the city council held a scheduled closed-door executive session. A transcript of that proceeding, which has since been made a public record, reveals at least two members of the city council discussing the need to find out who was behind Lozman’s Sunshine Act suit, and “to use every reasonable tool that we have to find out who they are, what we are up against, so that we can map our strategy out.” [DE 388-10, p. 36]. Responding to these comments, council member Elizabeth Wade said:
I think it would help to intimidate the same way as FDLE is coming to my house. I am wondering if my lines are tapped or whatever. I think they should be questioned by some of our people on a legitimate pay scale basis so that they can feel the same kind of unwarranted heat that we are feeling, and I am going to caution that the city has been there before ... It is the climate... .We can go in there and be as right as right can be, but if that Judge is already precon-cluded [sic], you got the governor’s hand in this, or supposedly in this, because all we have got is hearsay that his hand is in it. You understand what I am saying? You got FDLE knocking at my door.
[DE 383-10, pp. 37-38], The Council Chairperson, Ann Isles, later wrapped up the discussion with the comment, “I would like to offer up a consensus that we spend whatever. If you need a private investigator, whatever you need. If you need somebody to shadow every name that’s on this document, I ask for a consensus that we spend those dollars and get it done, so we send one message. This is our house, and we are going to stay, and there ain’t none of them going to run us away.” [DE 383-10, p. 43]. When Ms. lies then asked “Do we have a consensus of what Ms. Wade is saying,” council member James Jackson responded, “I think what Ms. Wade says is right. We have to beat this thing, and whatever it takes, I think we should do it.” City Attorney Pamela Ryan
As expressed at the outset of this closed door executive discussion, multiple council members shared a concern about who was funding Lozman’s Sunshine Act suit, and whether there was connection between Lozman and the offices of then Governor Bush and Attorney General Crist, governmental bodies which had also been critical of the city’s redevelopment project and which the council suspected may have cooperated with Lozman in his pursuit of the Sunshine Act lawsuit.
Although there is no record evidence that the City actually hired a private investigator to investigate or follow Lozman, the record does show that shortly after the conclusion of this closed-door meeting, Lozman became the target of a string of legal pressures applied by the city council or its police department, summarized here as follows:
(a) On September 11, 2006, the City filed an eviction action in state court seeking to evict Lozman’s floating home from the marina. Lozman successfully asserted a First Amendment retaliation defense to the eviction action, and the City lost its bid to evict the structure from its marina.
(b) On November 16, 2006, then Riviera Beach City Council Chairperson Elizabeth Wade directed city police officers to forcibly remove Lozman from the podium during the public comment, “non-agenda” section of a city council meeting, within less than a minute after Lozman began speaking about the U.S. Attorney’s Office current efforts to crack down on public corruption in Palm Beach County and the recent arrest of Palm Beach County Commissioner Tony Massilloti. Responding to the Chairperson’s direction, Officer Francisco Aguirre handcuffed Lozman during the middle of his speech, escorted him-from the meeting and transported him to the City of Riviera Beach police headquarters, where Lozman was charged with disorderly conduct and trespass after warning. Sometime later, the charging document was altered, with a “white-out” of the trespass charge, and replacement with the words “resisting w/out violence, to wit obstruction.” Ultimately, on January 17, 2007, the Palm Beach County State Attorney’s office nolle grossed, both charges.
(c) Over the course of the next several years, City of Riviera Beach police officers stopped Lozman on at least 15 different occasions, threatening to arrest him for walking his 10-pound dachshund on marina property.
(d) Over the course of the next several years, Lozman was repeatedly escorted from city council or CRA meetings, the City Hall building or the City Council Chambers by Riviera Beach police officers acting at various times under the direction of city council members Liz Wade, Ann Isles, Cedrick Thomas, Dawn Pardo and Gloria Shuttlesworth. On those occasions when he was not physically removed, council members “censured” or silenced Loz-man by interrupting his remarks or threatening police intervention.
(e) On July 9, 2008, Lozman’s former attorney, Robert Bowling, sent a formal written “notice of claim” to the City, pursuant to § 768.28(6), Fla. Stat., asserting First Amendment, Fourth Amendment and Fourteenth Amendment violations, as well as a state law claim of false arrest, based on Lozman’s November 15, 2006 arrest, and the City’s forcible removal of Lozman from the May 2006 regular meeting of the city council, as well as various other unspecified retaliatory acts of censure and antagonism.
(f) On April 1, 2009, the City cut off Lozman’s electricity at the marina for a
(g) On April 20, 2009, the City initiated an in rem federal admiralty action against Lozman’s floating residence in the United States District Court for the Southern District of Florida. The City requested and obtained an' ex parte arrest warrant authorizing the seizure of Lozman’s floating home, without disclosing that Lozman had prevailed in a prior state eviction proceeding initiated by the City, and that just three days earlier a state court judge issued an order directing the City to restore electricity to the floating home.
When Lozman and a local television cameraman witnessed the arrest of the structure and attempted to film the procedure, from the vantage point of a nearby public parking lot, a Riviera Beach Police Commander approached them and, in a loud voice, threatened to arrest them both if they did not stop the filming.
(h) On October 21, 2009, then City Council Chairperson Dawn Pardo directed two police officers to remove Lozman from a City Council meeting for failing to yield the podium. Lozman claims that the officers threw him to the floor in the process of forcibly removing him from the meeting, while Pardo, City Attorney Pamela Ryan and other members of the city council laughed and mocked him in his stricken state.
(i) On November 18, 2009, the United States District Court, exercising its admiralty jurisdiction, entered partial summary judgment in favor of the City, and on January 6, 2010, entered final judgment against the in rem defendant, i.e., the floating home, which the court ruled was a “vessel,” in the amount of $3,039.88, plus custodial fees, and further ordered that the “vessel” be sold at a U.S. Marshal sale to pay the judgment. City of Riviera Beach v. That certain unnamed gray, two. story vessel approximately fifty-seven feet in length, etc., in rem, Case No. 09-80594-Civ-Dimitrouleas (S.D.Fla.2010) [DE 159]. On February 9, 2010, the City purchased the floating home at a U.S. Marshal’s public auction in Miami, outbidding the public that attended the auction, and subsequently destroyed it at a cost of $6,900.00.
(j)In the interim, Lozman’s appeal of the district court’s final judgment worked its way to the United States Supreme Court, which ultimately determined, by opinion issued January 15, 2013, that Loz-man’s floating home was not a vessel for purposes of admiralty law, and that the district court therefore lacked subject matter jurisdiction over the City’s action. Lozman v. City of Riviera Beach, Florida, — U.S. -,
II. Plaintiffs Complaint
Based on the foregoing allegations, Plaintiffs Second Amended Complaint asserts six constitutional claims against the City under 42 U.S.C. § 1983: (1) a First Amendment retaliation claim based on the City’s alleged retaliatory lawsuits, arrests and campaign of harassment; (2) a First Amendment right to petition claim based on the City’s alleged interference with Lozman’s right to petition the government for redress of grievances; (3) a Fourth Amendment unlawful seizure claim based on the City’s alleged false arrest of Loz-man’s person; (4) a Fourth Amendment unlawful seizure claim based on the City’s
In earlier formulations of his complaint, Lozman named as defendants the City of Riviera Beach, the City of Riviera Beach Community Redevelopment Authority (CRA), and numerous individual members of the Riviera Beach City Council. In his now operativé Second Amended Complaint, Lozman has dropped all of the previously named individual city council members as well as the CRA as party defendants, leaving only the City of Riviera Beach named as a defendant to this cause.
Because the City of Riviera Beach is a municipal entity, it can be held liable under § 1983 only if the alleged constitutional violations resulted from the execution of the City’s own policies. Monell v. Dept. of Social Services of the City of New York,
To establish, the existence of a municipal policy or custom which caused a constitutional violation, the plaintiff in a § 1983 suit may alternatively proceed with proof of: (1) an express policy which caused the constitutional deprivation; (2) a widespread practice or custom which, although not authorized by written or express municipal policy, is so permanent and well-settled that it constitutes a policy, or (3) a constitutional deprivation directed or caused by a person vested with final decision or policy-making authority on behalf of the municipality. Kujawski v. Board of Com’rs of Bartholomew County, Ind.,
Where, as here, a policy maker is comprised of a public body consisting of multiple board members, a majority of the members of the council constitutes a final policymaker for purposes of creating Monell liability. Campbell v. Rainbow City, Ala.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any, show 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(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
A party seeking summary judgment bears the initial responsibility for advising the court of the basis for its motion, and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
In contrast, where the nonmoving party bears the burden of proof on a particular issue at trial, the moving party’s initial burden under Celotex can be met simply by demonstrating that “there is an absence of evidence” to support the nonmoving party’s case. Celotex,
Put another way, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a motion for summary judgment looks beyond the pleadings and requires the nonmoving party—by affidavits, depositions, interrogatory answers or admissions on file—to designate specific facts showing that there is a genuine issue for trial. Celotex,
Further, evidence introduced to defeat or support a motion for summary judgment must be sworn, competent and on personal knowledge, and set out facts that would be admissible at trial. Avirgan v. Hull,
The court must view the evidence presented on the motion in the light most favorable to the opposing party, and make every reasonable inference in favor of that party. Sims v. MVM, Inc.,
IV. Discussion
A. Constitutional Claims
Section 1983 of Title 42 of the United States Code offers private citizens
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State .... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
Id. “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole,
1. First Amendment Retaliation Claims
An individual has a viable First Amendment claim against the government when he is able to prove that the government took action against him in retaliation for his exercise of First Amendment rights. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
To prove causation, a plaintiff must prove that his speech was the “but-for” cause of the allegedly retaliatory action, Fairley v. Andrews,
In this case, the Plaintiffs First Amendment retaliation claim is premised on a series of retaliatory actions—one arrest, multiple threatened arrests, repeated expulsion from public meetings of the city council, an eviction action, an in rem action against his floating home, and ultimately the destruction of his floating home—allegedly taken by the City in response to (1) the 2006 lawsuit brought by Plaintiff against the City under Florida’s “Government in the Sunshine Act,” charging the improper conduct of official municipal business behind closed doors; (2) the Plain
The City contends that Lozman’s arrests were justified, and therefore cannot form the premise of an unlawful retaliation claim. If, in fact, a § 1983 plaintiff was engaged in the commission of a crime when he was arrested, his First Amendment interests necessarily yield, and inquiry into the government’s motive for making the arrest becomes unnecessary. Curley v. Village of Suffern,
There is also record evidence of a very close temporal connection between the timing of Plaintiffs expressive speech and the filing of the Sunshine Act suit, and the City’s exertion of an extended string of legal pressures against Lozman—prox-imity in time which constitutes some circumstantial evidence of improper motive behind the City’s actions. That is, the record plainly shows that Lozman was engaged in expressive political speech, as well as the valid exercise of his right to petition the government, at a time just prior to the adverse municipal actions alleged. This is adequate circumstantial evidence of causation to survive summary judgment on Plaintiffs First Amendment retaliation claims. Jones v. Parmley,
This leaves the issue of the City’s Monell liability as the final element of the Plaintiffs § 1983 First Amendment retaliation claim under challenge by the City’s current motion for summary judgment. As stated above, under Monell, a municipality cannot be held liable solely because it employs a tortfeasor—i.e. it cannot be held liable on a respondeat superior theory. Monell,
The word “policy” implies a course of action consciously chosen from various alternatives. In the Monell sense, a policy may be expressly chosen by a municipal body, e.g. by statute, regulation, rule or ordinance; the existence of an official policy may be inferred from municipality inaction or “deliberate indifference” in
With regard to final decision-maker theory, the court finds, first, that the record contains evidence reasonably susceptible to inference that the Council Chairperson in 2006, Elizabeth Wade, harbored illicit motivation to punish and deter Lozman based on his exercise of free speech and petition of government, and that a majority of the city council members in attendance at that time—and a majority of members constituting later formulations of the council-approved and endorsed Wade’s retaliatory sentiments when they initiated, endorsed, or directed a series of legal pressures against Lozman—including the attempted eviction from the marina, the arrest and threatened arrests, the seizure and destruction of Lozman’s floating residence, the termination of his electricity, and the invasion of his privacy by unauthorized photography of his person inside of his home. That Lozman became the target of this extended string of legal pressures shortly after he filed his Sunshine Act suit and shortly after he began criticizing the city’s municipal policies is some circumstantial evidence that a majority of members on the city council harbored the illegal retaliatory motivation expressed by Council Chairperson Wade, at least enough to raise a jury issue on the question of whether a majority of the council acted with unlawful motivation when it authorized and initiated legal proceedings to remove Lozman and his floating home from the City of Riviera Beach marina community. At trial, the Plaintiff will have the burden of demonstrating that each alleged retaliatory action represented an action taken with the support of at least three council persons harboring such illegal motivation; for summary judgment purposes, the court finds sufficient circumstantial evidence on record to raise a jury question on this Monell element of claim. Schlessinger v. The Chicago Housing Authority,
Alternatively, the record is also susceptible to a finding of an unconstitutional policy, either express or as applied, in the embodiment of the city council’s “Rules of Decorum” invoked as a basis for Lozman’s expulsion from various city council meetings. If the relevant “Rules of Decorum” on their face, or as applied to Lozman, constituted an unreasonable restriction on Lozman’s First Amendment right of free expression in the subject forum, to wit, the public comment, non-agenda portion of open city council meetings, these rules may serve as evidence of an express municipal policy which caused the First Amendment deprivations complained of by Lozman, thereby satisfying the Monell element of his First Amendment retaliation claim.
The City questions whether the correct rules have been cited by Plaintiff (i.e. whether he has cited the rules in effect at the time of the alleged constitutional infringements), but does not affirmatively show that the rules in effect during the relevant city council meetings are different in any material respect from the rules referenced by Plaintiff, nor has either party addressed the constitutional permissibility of the substantive content of the rules, facially or as applied, in their respective briefing on the current motions for summary judgment. On this record, the court finds a genuine issue of material fact on the content of the relevant “Rules of Decorum,” as well as a mixed fact/law issue on the question of whether these rules evince an unconstitutional express policy of the City which caused the First Amendment
The City also argues that Lozmaris complaint does not sufficiently allege the existence of an express municipal policy based on the City Council’s formal “Rules of Decorum,” so as to put the City on fan-notice of this theory of liability, and that it would be unfair to allow expansion of the pleadings at the summary judgment stage to accommodate this alternative theory of Monell liability. The court is not persuaded by this notice argument, however. The Plaintiffs Second Amended Complaint does allege that the complained of conduct was taken “pursuant to a custom, policy or decision made by a governmental official with final policymaking authority” [Second Amended Complaint, ¶ 40], an allegation which subsumes the theory that the complained of conduct was the product of an express policy promulgated by a final decision maker.
As a third alternative premise of Monell liability, the court also finds sufficient evidence to withstand summary judgment on the issue of widespread practice or custom of constitutional deprivations perpetrated by the city agents or employees against Lozman, from which the existence of an official municipal policy may be inferred. While the defendant contends that multiple constitutional deprivations directed toward a single individual is not sufficient to constitute a “custom and practice” evidence in the Monell sense, and that a § 1983 plaintiff suing a municipality must instead show a series of unrelated incidents involving different persons to show informal practice or custom, it 'does not cite any legal authority for this proposition. Further, there is nothing in the policy rationale underpinning Monell which would support such a formulation of the rule.
Under Monell, a policy may be inferred from circumstantial proof that a municipality displayed a deliberate indifference to the constitutional rights of an individual, either by failing to train its employees, or by a repeated failure to make any meaningful investigation into multiple complaints of constitutional violations after receiving notice. Ricciuti v. N.Y.C. Transit Authority,
In this case, the basis for Monell liability on a custom and practice theory is not premised solely on the City’s alleged extended retaliatory course of legal pressure and harassment directed toward Lozman,-but rather is the combination of the multiple alleged retaliatory acts and deprivations made in an alleged attempt to eliminate Lozman from the marina community, along with evidence of a culture that permitted and condoned the constitutionally impermissible retaliatory gestures, including the City of Riviera Beach’s apparent lack of any policies or protocols concerning the proper handling of alleged Sunshine
In this case, there is ample evidence from which a jury could reasonably conclude that the City was on notice of one arrest and multiple threatened arrests lacking probable cause, as well as a series of legal actions prompted by questionable animus from a constitutional standpoint, endorsed or initiated by various members of the city council, and that by failing to investigate and take any remedial action to deter the misconduct, the City encouraged or condoned the misconduct, effectively adopting it as its own. Thus, the court finds facts which may support Plaintiffs assertion that a municipal policy based on custom and policy exists, and caused the claimed constitutional injuries. Estate of Novack ex rel. Turbin v. County of Wood,
2. Fourth Amendment Claims
Plaintiff asserts two distinct Fourth Amendment claims against the City—one for false arrest of his person, and the other for false arrest of his floating home.
A warrantless arrest without probable cause violates the Constitution and forms the basis for a § 1983 claim. Marx v. Gumbinner,
Probable cause is evaluated from the viewpoint of a prudent, cautious police officer on the scene at the time of the arrest. Miami-Dade County v. Asad,
As a threshold matter, there is a genuine issue of material fact as to whether the officer had probable cause to arrest Lozman for disorderly conduct at the time of the arrest incident in question. Florida Statutes, § 877.03, defines and proscribes “disorderly conduct” as follows:
Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct shall be guilty of a misdemeanor of the second degree.
The Florida Supreme Court has narrowly construed this statute, so that as applied to verbal conduct, it applies only to words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. State v. Saunders,
There is no suggestion in the present record that Lozman’s conduct precipitating his arrest incited others to breach the peace, or posed an imminent danger to others; thus there is a large question as to whether the arrest was supported by probable cause to believe he engaged in disorderly conduct, which, under Saunders and its progeny, requires something more than loud or profane language, or a belligerent attitude. Miller v. State,
Because the record, at best, reveals a genuine issue of material fact on the question of whether the police officers had objective reason to believe Lozman was engaged in “disorderly conduct” at the time of the subject arrests, there is an issue as to whether his arrests were supported by probable cause, and the City is not entitled to summary judgment on the Fourth Amendment false arrest of the person claim.
Therefore, accepting the allegations of the Second Amended Complaint as true, and reading the record evidence in the light most favorable to Lozman, it is clear that the City had probable cause to arrest Lozman’s floating home at the time of the arrest and seizure. The fact that the federal district court which issued the order was later found to have lacked subject matter jurisdiction over the matter, requiring it to vacate its final judgment for the City, does not change the fundamental probable cause analysis for the Plaintiffs Fourth Amendment false arrest of property claim. The court shall accordingly grant the City’s motion for summary judgment on this prong of the Plaintiffs § 1983 Fourth Amendment false arrest claim.
3. Fourteenth Amendment Equal Protection Claim
To plead a selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must proffer sufficient factual allegations to show that: (1) plaintiff was treated differently from other similarly situated individuals, and (2) such differential treatment was based on impermissible considerations, such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Harlen Associates v. Incorporated Village of Mineola,
The test for determining whether other persons similarly situated were selectively treated is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent. Penlyn Development Corp. v. The Incorporated Village of Lloyd Harbor,
Plaintiffs selective enforcement claim in this case is based on allegations that other members of the audience at city
The City argues that the Plaintiff fails to show sufficient similarity of comparators to state an equal protection selective enforcement claim, where the alleged conduct of other audience members is not similar to that of Plaintiff, where it is not alleged that they disrupted the council meetings times by speaking off-topic, at high volume, and over the members of the council, and further, that the alleged conduct of other marina lessees is not similar to Plaintiff, where it is not alleged that they were significantly delinquent in their dockage fees, or had dogs that were aggressive toward other dogs or people.
The City also points out the video of the January 3, 2007 meeting of the City Council shows that another audience member, Christi “Pepper” Newman, was also removed from the podium right after Loz-man was removed. According to the City, Pepper, like Lozman, was similarly situated in the sense her speech was critical of the City (she complained that the City was remiss for not standing up to Lozman and suing him for slander), and she was also forcibly removed, from the podium. As to the eviction efforts and ultimate seizure of Lozman’s floating home, the City notes that Lozman has not identified any other marina residents with floating homes or vessels who were “similarly situated” in the sense that they were in violation of marina “wet slip” agreements by way of a failure to satisfy arrearage for dockage fees.
The court concludes that the selective enforcement claim fails because the summary judgment record does not contain sufficient evidence from which a reasonable person could infer that the Plaintiff and other council meeting audience members were similarly situated, or that Plaintiff and other marina residents and lessees were similarly situated. Because the record does not contain sufficient factual allegation from which disparate treatment can be inferred, the court shall grant the City’s motion for summary judgment on Loz-man’s Fourteenth Amendment Equal Protection claim.
4. Fourteenth Amendment Due Process Claims
Lozman also alleges that the City violated his Substantive and Procedural Due Process rights under the Fourteenth Amendment through the conduct of its campaign to harass, retaliate and punish Lozman for his public criticism of the City and certain City officials [Second Amended Complaint, paragraph 42], However, a § 1983 claim cannot be sustained based on the filing of criminal charge without probable cause under the substantive due process or procedural due process protections of the Fourteenth Amendment. Becker v. Kroll,
5. Riviera Beach Community Redevelopment Agency
The City argues that the Riviera Beach Community Redevelopment Agency (CRA) is a legal entity which is separate and distinct from the City of Riviera Beach, and that the City accordingly cannot be liable for any constitutional deprivations or tortious conduct attributed to members of the CRA. See § 163.357(1), Fla. Stat. (2013). On this tenet, it moves for summary judgment on all claims to the extent premised on conduct of CRA'members, as described in the Plaintiffs Second Amended Complaint at paragraphs 1, 15-18, 2(c), 28(d), 28(g), 28(i), 48(b), and 66.
Upon consideration, the court has determined to defer its ruling on this ground of the City’s motion for summary judgment.
B. State Law claims
1. Failure to comply with conditions precedent
On the supplemental state law claims, the City argues that all of Lozman’s state claims should be dismissed with prejudice for Plaintiffs failure to comply with pre-suit notice requirements of § 768.28(6), Fla. Stat. (2013). The City contends that because no pre-suit notice was given, and because the three-year statute of limitation on these claims has expired, it would be futile to give Lozman an opportunity to provide the notice now and re-plead his complaint accordingly. Thus, the City moves for summary judgment on all state claims for failure to satisfy all conditions precedent to suit.
Lozman contends that his former attorney, Robert Bowling, sent a pre-suit notice on July 9, 2008 to City Attorney Pamela Ryan, as well as to the City’s outside litigation counsel, Benjamin Be-dard. He supports this contention with an affidavit identifying a letter issued on “Cobb & Cole” firm letterhead, addressed to Pamela Ryan, City Attorney for Riviera Beach, which describes certain First, Fourth Amendment and Fourteenth Amendment claims against the City based on Lozman’s arrest in November 2006, and an antagonistic course of conduct that followed. Lozman concedes that the Second Amended Complaint does not specifically allege the giving of pre-suit notice through this letter, and asks for permission to amend his complaint to do so.
The court shall grant Lozman’s request to amend his complaint by interlineation to allege the giving of pre-suit notice as to the November 2006 false arrest and battery claims, which are fairly identified in Attorney Bowling’s notice of claim. However, this notice cannot be read to cover claims which accrued after that point in time, such as the alleged battery arising from the October 2009 incident or the conversion claim arising from the City’s arrest and seizure of Lozman’s floating home in November 2009.
Further, as to the battery claim arising out of the October 2009 incident, Lozman failed to file the requisite notice
The court reaches a different result, however, on the Plaintiffs state law conversion claim. This claim did not accrue until the point in time that the City’s possession of Lozman’s floating home became wrongful, which occurred when the Supreme Court ruled that Lozman’s floating home did not qualify as a “vessel” and, therefore the district court had lacked subject matter jurisdiction. Under Florida law, the City’s lawful possession of the floating home during the course of the admiralty proceeding did not become wrongful simply because Lozman demanded the return of his property during the course of that proceeding. Rather, the conversion action could accrue only after the City lost the protection of the federal district court’s authority over the matter in the course of the federal in rem admiralty proceedings. Snell v. Short,
Since the statute of limitations has not ran on Lozman’s state law conversion claim, but because he has failed to provide the City with the statutorily required pre-suit notice of claim, the court will dismiss Lozman’s state law conversion claim without prejudice, and grant the City’s motion for summary judgment on this claim to this limited extent.
C. Plaintiffs Motion for Partial Summary Judgment
Conversion is act of dominion wrongfully asserted over another’s property inconsistent with his or her ownership interests. In this case, Lozman contends he is entitled to summary judgment on his common law conversion claim because the evidence shows he owned the floating residential structure at the time the City arrested and seized it; the City intentionally arrested the floating home in a “sham” federal admiralty action after Lozman prevailed in a state eviction action; the City refused his repeated demands for return of his home (based on the federal court’s lack of jurisdiction over the structure) during the course of admiralty proceedings; and the City wrongfully and vindictively destroyed the floating home after purchasing it as highest bidder at a U.S. Marshal sale in Miami, making it impossible to restore the property to Lozman even after the United States Supreme Court ruled in his favor on the invalidity of the jurisdictional threshold underpinning the in rem proceeding.
The common law tort of conversion may lie even if defendant took or retained property on mistaken belief he had a right to possession. Seymour v. Adams,
V. Conclusion
Based on the foregoing, it is ORDERED AND ADJUDGED:
1. The City’s motion for summary judgment is GRANTED IN PART and DENIED IN PART as follows:
a. The motion is DENIED as to the § 1983 claim based on First Amendment retaliation, and DENIED as to the § 1983 claim based on Fourth Amendment false arrest of the Plaintiffs person.
b. The motion is GRANTED as to the § 1983 claim based on Fourth Amendment false arrest of the Plaintiffs floating home.
c. The motion is GRANTED as to the § 1983 claims based on Fourteenth Amendment Substantive and Procedural Due Process violations.
d. The motion is GRANTED as to the § 1983 claim based on Fourteenth Amendment Equal Protection violations.
e. The motion is GRANTED, based on sovereign immunity, as to the state common law claim of battery to the extent based on the October 2009 incident described in the complaint;
f. The motion is DENIED as to the state common law claim of battery and false arrest to the extent based on the November 2006 arrest described in the complaint.
g. The motion is GRANTED as to the state common law claim of conversion based on the City’s arrest and seizure and destruction of Loz-man’s floating home, to the extent that court hereby DISMISSES WITHOUT PREJUDICE the conversion claim due to Plaintiffs failure to show compliance with the pre-suit notice of claim requirements of § 768.28(6).
2. The plaintiffs motion for partial summary judgment on the common law conversion claim is DENIED.
ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION OF THAT PORTION OF SUMMARY JUDGMENT ORDER DISPOSING OF EQUAL PROTECTION CLAIM
THIS CAUSE is before the court on plaintiffs motion for reconsideration of that portion of the court’s prior summary judgment order which disposed of the plaintiffs 1983 claim based on alleged equal protection violations [ECF 575], the City’s response in opposition [ECF 600] and plaintiffs reply [ECF 607],
In its original summary judgment order, the court found that Lozman’s equal protection “selective enforcement claim fails because the summary judgment record does not contain sufficient evidence from which a reasonable person could infer that the ..... the plaintiff and other marina residents and lessees were similarly situated” [ECF 519, p. 1412]. At the time of the disposition on that claim, plaintiffs summary judgment papers referred to his own declaration for the proposition that other
In his motion for reconsideration, Loz-man indicates that lapses in the Clerk’s scanning equipment resulted in frequent inadvertent gaps in documents which he manually submitted for filing with the court in the past, and that the omission of four additional pages of Ryan’s trial testimony in the admiralty proceeding is likely the product of such a scanning error.
Having reviewed the omitted portions of Attorney Ryan’s testimony, which include Attorney Ryan’s acknowledgment under oath that at least half of the vessels at the marina were in arrears at the time the City initiated an enforcement action against Lozman, the court does find some competent evidence from which a reasonable trier of fact might conclude that similarly situated persons (other marina lessees in arrearage on their dockage fees) were treated differently from Lozman, i.e. were not singled out for dockage fee ar-rearage collection activity through maritime lien enforcement, thus establishing the central element of plaintiffs selective enforcement claim.
Opposing the motion for reconsideration, the City points out that the complete transcript of trial testimony of Attorney Ryan was included in the original summary judgment record, noting that the City itself cited portions of Ryan’s testimony in its papers and filed the entire transcript as a supporting exhibit.
Recognizing that the evidence was part of the original record on summary judgment, the court does not view the Ryan testimony as “new” evidence which was inadvertently excluded from the original filings; with this, the court acknowledges that it overlooked that portion of Ms. Ryan’s testimony acknowledging the City’s awareness of other marina tenants in arrears at the time it took enforcement action against Lozman in rendering its original order on summary judgment (where neither party directly cited this portion of her testimony in their papers). Further, based on this evidence, the court does find sufficient evidence of similarly situated persons treated differently from plaintiff to at least raise a genuine issue of material fact on whether the plaintiff was intentionally treated differently from others similarly situated with no rational basis for the differential treatment. Campbell v. Rainbow City, Ala.,
Discussion
The Equal Protection Clause requires that the government treat all similarly situated people alike. In the realm of criminal law or regulatory enforcement, however, an individual generally has no right to have the law go unenforced against him simply because others equally or more culpable than he have gone unpunished. However, sometimes the enforcement of an otherwise valid law can be a means of violating constitutional rights by invidious discrimination, and to address this problem courts have developed the doctrine of “selective enforcement.” Crown Service Plaza Partners v. City of
Usually a claim of selective enforcement arises as a defense in a criminal prosecution or regulatory enforcement action. In that context, the defendant establishes an equal protection violation if he can prove that the prosecutor intentionally “singled him out” for punishment because of his membership in a protected group, or his exercise of a constitutionally protected right. Thus, a claimant alleging selective enforcement based on discriminatory animus must show that his prosecution had a discriminatory effect and was motivated by a discriminatory purpose. Wayte v. United States,
Selective enforcement, as a defense in criminal prosecution or regulatory enforcement action, can also lead to § 1983 liability if the plaintiff pleads “purposeful discrimination” intended to accomplish some constitutionally forbidden aim, Harlen Assocs. v. Incorporated Village of Mineola,
In addition, a selective enforcement claim may arise from differential treatment based on a nonsuspect characteristic, where the identifiable group that was discriminated against consisted solely of the plaintiff, or a “class of one.” To recover under a “class of one” selective enforcement theory, a plaintiff must demonstrate intentionally disparate treatment from those who are similarly situated, and that there is no rational basis for the difference. Campbell v. Rainbow City, Ala.
Finally, because the Equal Protection Clause is interpreted to provide protection from constitutionally unequal treatment independent of the Fourth Amendment’s protection against unreasonable searches and seizures, the existence of probable cause to search and arrest does not necessarily dispose of a Fourteenth Amendment selective enforcement equal protection claim. That is, a selective enforcement claim may be available even where there is probable cause for prosecution. Wayte v. United States,
So, while subjective intentions play no role in ordinary probable-cause Fourth Amendment analysis, United States v. Sierra,
In this case, Lozman complains that he was treated differently from others similarly situated (other marina lessees in arrears on dockage fees) and that the City’s motivation for that disparate treatment was a malicious intent to injure plaintiff and to punish him for the exercise of his First Amendment rights. Thus, he does not appear to advance a “class of one” claim of arbitrary and irrational enforcement, but rather contends he was singled out for unique regulatory and enforcement treatment based on a constitutionally impermissible animus.
To succeed in an action alleging selective prosecution based on discriminatory animus, plaintiff must show: (1) he was treated differently from other similarly situated individuals, i.e. others outside of his group in similar situations were not prosecuted, and (2) he was singled out for different treatment because of his association with an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights. United States v. Schoolcraft,
To survive summary judgment on the first element of the selective enforcement claim, a plaintiff must identify through specific facts similarly situated persons who were treated differently. Persons are “similarly situated under the Equal Protection Clause where they are alike “in all relevant aspects.” ” Nordlinger v. Hahn,
In his original summary judgment papers, plaintiff cited the names of eight other marina lessees who he claimed were also in arrears (far in excess of the arrears charged to him); however, it did not appear that he substantiated this hearsay assertion with competent evidence regarding the financial status of other lessees. The plaintiff now directs the court to portions of prior trial testimony given by City Attorney Pamela Ryan, and specifically, testimony in which the City’s attorney acknowledged that at least half of the lessees at the marina were in arrears when the City decided to pursue Lozman. Attorney Ryan amplified this statement with the suggestion that the City’s order of enforcement priority was based on the relative safety of structures docked at the marina, as derived from findings of a an independent marine surveyor hired by the City for this explicit purpose, and suggested that enforcement action against other owners was unnecessary because they either brought their vessels into compliance after receiving notice, or left the marina.
The plausibility of this enforcement strategy, as articulated by Attorney Ryan, is not, however, substantiated by any competent evidence in the summary judgment record pertaining to the relative safety of
Even assuming, arguendo, the existence of variations in the safety or aesthetics of other marina vessels/structures at the time the City made a decision to pursue Loz-man for collection activity, whether safer ty/aesthetic factors underlay the actual motivation behind the City’s enforcement scheme or whether this explanation is offered as a pretext to justify discriminatory treatment of Lozman raises a genuine issue of material fact for determination by the finder of fact at trial. At this juncture, the claim survives summary judgment because there is sufficient circumstantial evidence to support an inference that the City singled out Lozman for reasons unrelated to the safety or aesthetics of his floating home (e.g. the timing of initiation of the federal maritime lien action, which came on the heels of the City’s unsuccessful state court eviction action on the basis of Lozman’s First Amendment retaliation defense).
Whether Lozman is able to satisfy the high degree of specificity required to establish a selective enforcement equal protection claim at trial remains to be seen. For summary judgment purposes, the court finds adequate evidence in the record from which a jury might find the presence of “similarly situated” marina lessees who were treated differently from Loz-man, thus creating a genuine issue of material fact on this first element of his selective enforcement Equal Protection claim.
It is accordingly ORDERED AND ADJUDGED:
1. The plaintiffs motion for reconsideration on the equal protection segment of the court’s summary judgment order [ECF 575] is GRANTED.
2. The court now VACATES that portion of its prior summary judgment order which granted the City’s motion for summary judgment on the equal protection claim, to the extent based on differential dockage fee collection activity directed toward municipal marina lessees, and here DENIES the City’s motion for summary judgment on this aspect of the plaintiffs Equal Protection § 1983 claim.
Notes
. The Background Facts are either undisputed, or read in the light most favorable to the plaintiff, as the nonmoving party, as they relate to the defendant’s motion for summary judgment on the constitutional and supplemental state law claims, even though the facts accepted at the summary judgment stage of the proceeding may not be the actual facts of
. The City of Riviera Beach is governed by a mayor and a five-member city council, for a total of six persons. The mayor serves as the de facto chairperson, and votes only in case of a tie or filling a council person vacancy. Under the City Charter, the affirmative vote of a majority of the members present at any meeting is required to adopt any ordinance, resolution, order or vote. Thus, the affirmative participation of at least three of the five council members is required for any city action.