Opinion
Case Number: 18-24919-CIV-MORENO
2019-12-19
Edwin DIAZ, Plaintiff, v. MIAMI-DADE COUNTY; Matthew Fryer, in His Official Capacity as Sergeant, Miami-Dade Police Department, and Howard Rosen, Individually and in His Official Capacity as Deputy Chief of Special Prosecutions, Office of the Miami-Dade State Attorney, Defendants.
Carlos Fernando Gonzalez, Rimon, P.C., Miami, FL, Ignacio Miguel Alvarez, Alvarez | Gonzalez| Menezes, LLP, Coral Gables, FL, for Plaintiff. Bernard Pastor, Zachary Edward Vosseler, Miami-Dade County Attorney's Office, Miami, FL, Alexandra Christine Hayes, Lourdes Espino Wydler, Oscar Edmund Marrero, Marrero and Wydler, P.A., Coral Gables, FL, for Defendants.
Carlos Fernando Gonzalez, Rimon, P.C., Miami, FL, Ignacio Miguel Alvarez, Alvarez | Gonzalez| Menezes, LLP, Coral Gables, FL, for Plaintiff.
Bernard Pastor, Zachary Edward Vosseler, Miami-Dade County Attorney's Office, Miami, FL, Alexandra Christine Hayes, Lourdes Espino Wydler, Oscar Edmund Marrero, Marrero and Wydler, P.A., Coral Gables, FL, for Defendants.
ORDER GRANTING MOTIONS TO DISMISS
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE
Plaintiff, Edwin Diaz, is a Miami-Dade Police Officer, who brings this case under 42 U.S.C. § 1983 against the Defendants, Miami-Dade County, Sergeant Matthew Fryer, and Howard Rosen, the Deputy Chief of Special Prosecutions for the State Attorney's Office. Following reports of stolen monies from crime scenes, the Miami-Dade Police Department's Professional Compliance Bureau began investigating the Narcotics Bureau, where Plaintiff was assigned. The police arrested Plaintiff after a sting operation revealed missing money from a crime scene. Plaintiff's claims against Sergeant Matthew Fryer and Miami-Dade County stem from this arrest. Sergeant Fryer, however, was not the arresting officer and the Court finds he is entitled to qualified immunity even if he was a supervisor because the officers had arguable probable cause to arrest the Plaintiff. The Court also finds that Plaintiff fails to state a claim that the County had a custom or policy in violation of equal protection, because the allegations focus on this one incident that resulted in Plaintiff's arrest. The allegations simply do not amount to a pattern or practice establishing a constitutional violation or deliberate indifference.
Plaintiff's claims against Defendant Howard Rosen arise from the prosecutor's statements in a meeting with law enforcement regarding the investigation. Although the State Attorney had declined to prosecute the Plaintiff, the investigation was ongoing, and Defendant Rosen told police Plaintiff had stolen money, but there was insufficient evidence to prosecute. Rosen also called into question Plaintiff's credibility to serve as a witness in other cases. Based on these statements, Plaintiff's claim is for defamation under § 1983. The Court dismisses Plaintiff's § 1983 count against Howard Rosen because Plaintiff does not state a viable common law defamation claim under Florida law and his allegations fail to establish a constitutional injury flowing from Rosen's statements. In addition, the Court finds that Howard Rosen is shielded from this litigation by the doctrine of qualified immunity.
THIS CAUSE came before the Court upon Motions to Dismiss (D.E. 30, 31, 32) .
THE COURT has considered the motion, the responses, pertinent portions of the record, and being otherwise fully advised in the premises, it is ADJUDGED that the motions are GRANTED.
I. Background
Plaintiff, Edwin Diaz, an officer of the Miami-Dade Police Department, who at the relevant time was assigned to the Department's Narcotics Bureau, filed this suit following his February 26, 2016, arrest and release. At the time the Miami-Dade Police Department, the Florida Department of Law Enforcement, and the Miami-Dade State Attorney's Office were investigating whether Narcotics Bureau officers were stealing money from crime scenes. Plaintiff was one of the subjects of the investigation.
Oh February 19, 2016, Defendant Sergeant Matthew Fryer prepared an affidavit in support of a search warrant for the placement of a tracking device on Plaintiff's car. Plaintiff alleges that Sergeant Fryer relied on six prior theft complaints that he knew had been investigated by the Miami-Dade Police Department's Professional Compliance Bureau. Those prior theft complaints were dismissed either because they did not occur or for lack of corroboration. The Second Amended Complaint alleges that despite this knowledge, Sergeant Fryer included those complaints in the affidavit supporting the request for the search warrant.
The search warrant resulted in no investigative leads. The Department and its investigative partner agencies then conducted a sting operation. A confidential informant contacted Officer Diaz and told him that a narcotics trafficker was at the Inn at Homestead. The purported narcotics trafficker was an undercover agent from the Florida Department of Law Enforcement. Officer Diaz responded with his squad and arrested the person he believed to be the suspected trafficker, seized narcotics, and U.S. currency. These items were impounded at the Miami-Dade Police Department's Property and Evidence Bureau.
Diaz left the Property and Evidence Bureau at 1:00 am after the sting operation. As he drove home, several of his fellow Miami-Dade Police Department officers stopped him. Sergeant Javier Garcia ordered Diaz out of his car. Sergeant Garcia tackled Officer Diaz to the ground and placed him in handcuffs. The officers strip-searched the Plaintiff and then took him to the Professional Compliance Bureau's offices. Plaintiff alleges the officers found no contraband on his person or in his car.
Over the next fifteen hours, the Miami-Dade officers questioned Diaz. He was handcuffed, denied food, and was not allowed a phone call. While Officer Diaz was detained, another Miami-Dade Narcotics Officer, Armando Socarras, confessed and was arrested for grand theft for the taking of $1,300 from the scene of the sting operation. The department then released Diaz.
In April 2016, the State Attorney advised Miami-Dade Police that it would not pursue charges against Diaz. Defendant Howard Rosen, the Deputy Chief State Attorney, and Assistant State Attorney Jose Arrojo later attended a pre-shift roll call at the Miami-Dade Narcotics Bureau on May 6, 2016. There were approximately forty members of the Narcotics Bureau present and Defendant Rosen advised the officers that Diaz was a common denominator on numerous cases with missing money. Rosen indicated, however, that his office could not prove the case against Diaz.
The complaint states the decision was made in April 2015. This Court corrects the date to 2016, which was after the February 26, 2016 sting operation.
The Miami-Dade Police Department removed Diaz from the Narcotics Bureau and reassigned him to the Real Time Crime Center, which he claims was an assignment to monitor security cameras.
Plaintiff's Second Amended Complaint contains five counts. Count 1 is a 42 U.S.C. § 1983 claim against Defendant Matthew Fryer for false arrest. It claims that Defendant Fryer had knowledge that he did not have probable cause to obtain the search warrant, but nevertheless submitted the application to the Miami-Dade County Circuit Court Judge. Count 2 asserts a § 1983 claim against Miami-Dade County due to the actions of the Professional Compliance Bureau, which Plaintiff claims maintained a policy of disregarding or otherwise acting with deliberate indifference towards the constitutional rights of investigative targets. Count 3 is a § 1983 claim against Deputy Chief State Attorney Howard Rosen based on his defamatory statements of Plaintiff. Count 4 is a state law claim under Florida Statute § 112.532 against Defendant Rosen for violating the Florida Law Enforcement Officers' Bill of Rights. Finally, count 5 is a state law claim for negligent infliction of emotional distress against all Defendants.
Defendants, Miami-Dade County, Sergeant Matthew Fryer, and Deputy State Attorney Howard Rosen have filed three separate motions to dismiss.
II. Legal Standard
"To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions," instead plaintiffs must "allege some specific factual basis for those conclusions or face dismissal of their claims." Jackson v. BellSouth Telecomm. , 372 F.3d 1250, 1263 (11th Cir. 2004). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff's well-pleaded facts as true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am. , 795 F.2d 948, 953 (11th Cir. 1986). This tenet, however, does not apply to legal conclusions. See Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Moreover, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 1950. Those "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In short, the complaint must not merely allege a misconduct, but must demonstrate that the pleader is entitled to relief. See Iqbal , 129 S. Ct. at 1950.
III. Legal Analysis
There are three motions to dismiss pending. The Court will first analyze the claims against Sergeant Fryer, and then the claims against Miami-Dade County. Finally, the Court will address the claims against the Deputy State Attorney Howard Rosen.
A. Claims against Sergeant Matthew Fryer
1. Count 1: 42 U.S.C. § 1983 Claim against Sergeant Matthew Fryer
Diaz alleges that Sergeant Matthew Fryer is liable for his false arrest because he prepared the affidavit in support of the search warrant application a week earlier. Diaz claims his unconstitutional arrest was the culmination of a series of unconstitutional acts that Defendant Fryer set in motion. He claims that Sergeant Fryer first violated his constitutional rights when he applied for and obtained a search warrant to place a tracker on Diaz's vehicle. In the application, Sergeant Fryer provided an affidavit where he listed and described six prior theft complaints against Diaz. Sergeant Fryer allegedly omitted mention on that application that each of those theft complaints had been dismissed or could not be corroborated. The act of submitting this application for a warrant with knowingly false information is the alleged constitutional violation.
In response to the motion to dismiss, Diaz asserts that Sergeant Fryer investigated the 6 complaints of stolen money, signed the affidavit to obtain the search warrant for the vehicle tracker, arranged for the sting operation, arranged to have everyone on the narcotics squad stopped, had them handcuffed, and handled the interrogation of Diaz and his squad members. He eventually completed the final Miami-Dade Police Department report of the investigation.
The qualified immunity defense may be raised and addressed on a motion to dismiss, and will be granted if the complaint "fails to allege the violation of a clearly established constitutional right." Smith v. Siegelman , 322 F.3d 1290, 1294 (11th Cir. 2003) (quoting Williams v. Ala. State Univ. , 102 F.3d 1179, 1182 (11th Cir. 1997) ). This Court held in Lawson v. City of Miami Beach , 908 F. Supp. 2d 1285 (S.D. Fla. 2012), that a "court may dismiss a complaint under Rule 12(b)(6) ‘when its allegations, on their face, show that an affirmative defense bars recovery on that claim.’ " Id. at 1289 (quoting Cottone v. Jenne , 326 F.3d 1352, 1357 (11th Cir. 2003) ). The affirmative defense of qualified immunity in particular "is intended ‘to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.’ " Id. (quoting Brown v. City of Huntsville , 608 F.3d 724, 733 (11th Cir. 2010) ). "As a result, ‘unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of the discovery.’ " Id. (quoting Cottone , 326 F.3d at 1357 ).
To establish a qualified immunity defense, "the public official ‘must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ " Vinyard v. Wilson , 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee v. Ferraro , 284 F.3d 1188, 1194 (11th Cir. 2002) ). To act within the scope of discretionary authority means that "the actions were (1) undertaken pursuant to the performance of [the officer's] duties and (2) within the scope of [his] authority." Collier v. Dickinson , 477 F.3d 1306, 1307 n. 1 (11th Cir. 2007) (quoting Lenz v. Winburn , 51 F.3d 1540, 1545 (11th Cir. 1995) ). The act of preparing an affidavit in support of a prosecutor's application for a search warrant is a quintessential police function. Sergeant Fryer was acting within the scope of his discretionary authority here.
Having found Sergeant Fryer was acting within his discretionary authority, the burden shifts to the Plaintiff to demonstrate that qualified immunity is not appropriate. The Court must determine whether the allegations, if true, establish a violation of a clearly established constitutional right. Lewis v. City of West Palm Beach , 561 F.3d 1288, 1291 (11th Cir. 2009). Officer Diaz's claim risks dismissal unless he sufficiently alleges that (1) Sergeant Fryer's conduct violated a federal statutory or constitutional right, and (2) the unlawfulness of that conduct was clearly established at the time. Corbitt v. Vickers , 929 F.3d 1304 (11th Cir. 2019) (citing Pearson v. Callahan , 555 U.S. 223, 237, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (holding that federal courts could use discretion in what order to decide the two prongs established by Saucier v. Katz , 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). 1. Violation of a Clearly Established Constitutional Right
When a seizure by a police officer is reasonable under the circumstances, it is within the bounds of the Fourth Amendment. District of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 585, 199 L.Ed.2d 453 (2018) ; see also Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 2186, 195 L.Ed.2d 560 (2016) ("[R]easonableness is always the touchstone of Fourth Amendment analysis."). For a false arrest claim, "reasonableness" takes the form of probable cause: "Probable cause to arrest a person exists when reasonably trustworthy facts and circumstances lead a prudent person to believe than an individual has violated the law, is violating the law, or will violate the law." Tarpley v. Miami-Dade County , 212 F. Supp. 3d 1273, 1281 (S.D. Fla. 2016). Probable cause does not require "overwhelmingly convincing evidence," only "reasonably trustworthy information." Case v. Eslinger , 555 F.3d 1317, 1327 (11th Cir. 2009). It does not require an actual showing of criminal activity, only a "probability or substantial chance of criminal activity." Id.
Plaintiff alleges that Sergeant Fryer's conduct in preparing the search warrant affidavit, violated his right against an unreasonable seizure. The Supreme Court explicitly prohibits plaintiffs from merging two distinct Fourth Amendment claims and presenting them as one. County of Los Angeles v. Mendez , ––– U.S. ––––, 137 S. Ct. 1539, 1547, 198 L.Ed.2d 52 (2017) (stating that an excessive force claim was distinct from a claim that reasonable force was used after an unreasonable entry). A false arrest claim is a claim that a law enforcement officer committed an unreasonable seizure by carrying out a warrantless arrest without probable cause. Kingsland v. City of Miami , 382 F.3d 1220, 1226 (11th Cir. 2004). It is not a claim, such as is present here, that an officer submitted an allegedly incomplete search warrant affidavit, and then, seven days later when the warrant proved fruitless, other officers arrested the Plaintiff without probable cause. In Mendez , the same officer committed both transgressions and the Supreme Court still required that each claim be analyzed discretely. Surely, here, the same result applies. Whether Sergeant Fryer committed a constitutional violation when he submitted the affidavit for the search warrant is a separate claim from the false arrest claim, especially since Sergeant Fryer was not the arresting officer.
The Court, therefore, must analyze the allegations of Sergeant Fryer's involvement in the February 26, 2016 arrest of the Plaintiff, which is the false arrest contained in the complaint. The Eleventh Circuit held that an officer who does not participate in the actual arrest or who was not in the chain of command supervising the arresting officer cannot be liable for false arrest under § 1983. Brown v. City of Huntsville , 608 F.3d 724, 737 (11th Cir. 2010). In Brown , the Eleventh Circuit upheld a district court's grant of qualified immunity to two police officers who were at the scene of the plaintiff's arrest, but who did not personally participate in arresting the plaintiff and were not the arresting officer's supervisors. Id. , 608 F.3d at 736-37. "Merely being present with the arresting officers at the scene is not enough" to prevail on a false arrest claim unless the plaintiff can show the "defendant officer was part of the chain of command authorizing the arrest action." Id.
The question in the motion to dismiss is whether the Defendant Sergeant Fryer was in the chain of command. The response to the motion to dismiss argues that Sergeant Fryer orchestrated Plaintiff's arrest. The Plaintiff, however, has taken inconsistent positions in this regard. Even his response concedes at one point: "[t]he Second Amended Complaint does not allege that Defendant Fryer supervised the investigation at the heart of this lawsuit, nor is there any allegation that he acted in any other supervisory capacity." Pl. Resp. at 4-5. Although acknowledging that there are no allegations that Sergeant Fryer acted in a supervisory capacity, Plaintiff then argues that Sergeant Fryer "led all aspects of this investigation." Id. He states that Sergeant Fryer "arranged for the sting, arranged to have everyone on the squad stopped, [and] had them handcuffed because of a criminal investigation into missing money from the sting ..." Id. None of these allegations appear in the Second Amended Complaint. Because these allegations are not in the Second Amended Complaint, Plaintiff requests the Court consider the transcript of a labor arbitration proceeding, where Sergeant Fryer testified. In that proceeding, Sergeant Fryer describes the sting operation, but he did not assert supervisory authority. Rather, he ascribed the actions to the collective full investigative squad. When asked how Internal Affairs became involved, he answered that "we stopped everybody in the squad. Everybody was handcuffed because we were conducting a criminal investigation referenced there was money missing." Pl.'s Resp. Exh. A. 21:3-12. Sergeant Fryer testified at the labor proceeding that he prepared the affidavit in support of the search warrant, gave instructions to the undercover agent before the sting, and conducted interviews of Plaintiff and others. Id. at 20, 23 and 61. The allegations do not state that Sergeant Fryer was in the chain of command, and the Plaintiff cannot now amend his complaint via his response to the motion to dismiss. Burgess v. Religious Tech., Ctr., Inc. , 600 F. App'x 657, 665 (11th Cir. 2015) ("We repeatedly have held that plaintiffs cannot amend their complaint through a response to a motion to dismiss.")
Because the Plaintiff's Second Amended Complaint does not establish that Sergeant Fryer violated his clearly established constitutional rights, the Court finds that Sergeant Fryer is entitled to qualified immunity against the Plaintiff's § 1983 false arrest claim. Sergeant Fryer was neither the arresting officer and the allegations do not establish that he was in the chain of command. Even if this Court gave credence to the Plaintiff's supervisory liability theory argued in the motion to dismiss, the Court would nevertheless reach the same conclusion. "[S]upervisory liability under § 1983 occurs either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation." Cottone , 326 F.3d at 1360. Personal participation liability is foreclosed here by Brown , because Sergeant Fryer did not personally participate in the arrest. Therefore, Plaintiff must establish a causal connection.
Before establishing a causal connection, however, Plaintiff must show that the arresting officers violated clearly established law. Dukes v. Deaton , 852 F.3d 1035, 1046 (11th Cir. 2017) (citing Keating v. City of Miami , 598 F.3d 753, 763 (11th Cir. 2010) ). In the false arrest context, if the arresting officer has qualified immunity for the arrest, the protection would extend to a supervisor. To determine whether the arresting officers would be entitled to qualified immunity, the officers need "arguable probable cause" to arrest the plaintiff. Coffin v. Brandau , 642 F.3d 999, 1006 (11th Cir. 2011). "Arguable probable cause exists where ‘reasonable officers in the same circumstances and possessing the same knowledge as the [arresting officer] could have believed that probable cause existed to arrest Plaintiff.’ " Grider v. City of Auburn, Ala. , 618 F.3d 1240, 1257 (11th Cir. 2010) (quoting Kingsland , 382 F.3d at 1232 ). Whether an arresting officer possesses arguable probable cause "depends on the elements of the alleged crime and the operative fact pattern." Id. (citing Skop v. City of Atlanta , 485 F.3d 1130, 1137-38 (11th Cir. 2007) ).
Here, the allegations are that the Miami-Dade Police Department and the Florida Department of Law Enforcement, and State Attorney's Office were investigating whether Narcotics Bureau officers, including Plaintiff, were stealing money and other valuables from crime scenes. As part of the investigation, the agencies created a sting operation, and $1,300 went missing from the scene of the sting. Plaintiff Diaz was one of the officers with access to the missing money. Florida Statute § 812.014(1) states that a person commits theft when he "knowingly obtains or uses, or endeavors to obtain or to use, the property of another with the intent to ... [d]eprive the other person of a right to the property ...[or] [a]ppropriate the property to his or her own use." Officers are authorized to arrest, without a warrant, a person they believe committed a theft of $1,300, which is a felony under Florida law. §§ 812.014(1)(c), 901.15(2), Fla. Stat. Here, the allegations establish the elements of a theft under Florida law, which sufficiently provides the officers with arguable probable cause.
Moreover, "[a]rguable probable cause does not require an arresting officers to prove every element of a crime, or to obtain a confession before making an arrest." Lee , 284 F.3d at 1195. A reasonable officer can have arguable probable cause "even if she turns out to be mistaken." Muhammad v. Pearson , 900 F.3d 898, 909 (7th Cir. 2018) ; see also Skop , 485 F.3d at 1137 ("This standard recognizes that law enforcement may make reasonable but mistaken judgments ..."). In Muhammad , Chicago police were looking for a suspected drug dealer at his apartment, where his pregnant girlfriend resided. Upon arriving at the scene, the police arrested someone, who resembled the description of the drug dealer, but who claimed he was not. Because the person could not produce an identification to show he was not the drug dealer, the police arrested him. As it turned out, the arrest was a mistake. The Seventh Circuit, nevertheless, found that the police had arguable probable cause for the arrest. There was probable cause to arrest him, at least long enough to determine "whether he was the right person or not." Id.
In this case, the officers knew there was a theft, and they arrested the officers involved. Once another member on Plaintiff's squad confessed, Plaintiff was released. The arresting officers detained the limited number of suspects until they determined who was responsible for the theft. Like Muhammad , these arresting officers had arguable probable cause to effectuate the arrests. "Facts an officer learns after the incident ends" such as whether Officer Diaz actually stole the $1,300 is not relevant because to determine qualified immunity, the Court must look at the facts known to the officers. Hernandez v. Mesa , ––– U.S. ––––, 137 S. Ct. 2003, 2007, 198 L.Ed.2d 625 (2017). Most certainly, the officers had arguable probable cause to effectuate the arrest, and Sergeant Fryer, even if the allegations establish he was a supervisor, he is nevertheless entitled to qualified immunity.
Even if the arresting officers lacked arguable probable cause, the Plaintiff's allegations would need to establish a causal connection between Sergeant Fryer's actions and the arresting officers' conduct. Here, Plaintiff argues that Sergeant Fryer's affidavit for the warrant set the wheels in motion for his allegedly false arrest. A plaintiff can plead the connection by alleging that "a history of widespread abuse put the responsible supervisor on notice of the need to correct the alleged deprivation, and he failed to do so. Alternatively, the causal connection may be established when a supervisor's custom or policy ... result[s] in deliberate indifference to constitutional rights, or when facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so." Harper v. Lawrence County , 592 F.3d 1227, 1236 (11th Cir. 2010) (quoting Cottone , 326 F.3d at 1360-61 ). "[T]he standard by which a supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely rigorous." Cottone , 326 F.3d at 1360 (quoting Gonzalez v. Reno , 325 F.3d 1228, 1234 (11th Cir. 2003) ).
The allegations, here, do not meet the rigorous standard. Plaintiff's complaint does not establish a "history of widespread of abuse;" it only points to Plaintiff's arrest and that of his colleagues as part of a sting operation where it is undisputed $1,300 was stolen by one of the officers. Second, the complaint does not allege that Sergeant Fryer instituted a custom or policy resulting in deliberate indifference to constitutional rights; rather, the complaint alleges, at most, one instance where Sergeant Fryer filled out an inaccurate affidavit in support of a request for a search warrant. Finally, there is no allegation that Sergeant Fryer directed the officers in any way, let alone to act unlawfully, nor do the allegations state that Sergeant Fryer failed to stop them from acting unlawfully. Therefore, the Court cannot find the Plaintiff's complaint establishes the causal connection for supervisory liability to deprive Sergeant Fryer of qualified immunity.
Finally, even if Plaintiff could establish every element of supervisory liability, he would still have to show that Sergeant Fryer violated "clearly established law." A plaintiff seeking to abrogate an officer's right to qualified immunity must satisfy an objective test: his allegations must show that it would have been "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Hernandez , 137 S. Ct. at 2007. If then-existing law does not "place the constitutionality of the officer's conduct," in the situation he confronted, "beyond debate," qualified immunity must be granted. Wesby , 138 S. Ct. at 589.
Plaintiff alleges that Sergeant Fryer intentionally omitted from the search warrant affidavit that the Professional Compliance Bureau had dismissed six theft complaints made against him. Plaintiff points to no precedent, which is his burden, establishing that omitting facts from a search warrant affidavit violated a constitutional right. Vann v. City of Southaven , 884 F.3d 307, 310 (5th Cir. 2018) (stating plaintiff carries burden to show specific law on point). Rather, what was clearly established was that an officer who omitted facts from a search warrant affidavit could only be stripped of qualified immunity if the omitted facts, had they been included, "so clearly" would have negated probable cause "that every reasonable law enforcement officer would have known that their omission would lead to a search in violation of federal law." Haygood v. Johnson , 70 F.3d 92, 95 (11th Cir. 1995).
This Court does not find that had Sergeant Fryer omitted the six incidents from the search warrant affidavit that it would have led the state court not to issue the search warrant. If any of the six theft complaints had been corroborated, Sergeant Fryer would have included that information to buttress his request for a search warrant. Even if Sergeant Fryer would have said that the six complaints were uncorroborated, that would not necessarily clearly negate probable cause, especially where it is undisputed that monies were being stolen from crime scenes investigated by Plaintiff's squad. To abrogate Sergeant Fryer's entitlement to qualified immunity, Officer Diaz would have to demonstrate that his failure to state on the affidavit that the incidents were not corroborated clearly negates probable cause, such that the search was in violation of federal law. His failure to state the Professional Compliance Bureau could not corroborate the six complaints does not meet this bar as probable cause to search only requires a "fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Albury , 782 F.3d 1285, 1292 (11th Cir. 2015) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). Accordingly, the Court does not find that Plaintiff's allegation that Sergeant Fryer omitted information from the search warrant affidavit constitutes a violation of a clearly established constitutional right.
The Court notes that the claim against Sergeant Fryer is for false arrest, not for an unlawful search. Because Plaintiff provides as the basis for his false arrest claim the lawfulness of the affidavit, the Court examines the law on probable cause to search.
2. Negligent Infliction of Emotional Distress Claim against Sergeant Fryer
Count 5 is a claim for negligent infliction of emotional distress against all Defendants.
Sergeant Fryer also moves to dismiss the state law claim for negligent infliction of emotional distress citing immunity under Florida law. In Florida, a public officer is immune from liability for acts committed in the scope of his employment unless he acted "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard for human rights, safety, or property." § 768.28(9)(a), Fla. Stat. "[M]ere negligence is not enough to satisfy the ‘wanton and willful disregard’ standard." O'Brien v. City of Pembroke Pines , No. 05-61366, 2006 WL 8431604, at *4 (S.D. Fla. Feb. 16, 2006) (citing Simon v. Murphy , 895 So. 2d 1245, 1246 (Fla. 4th DCA 2005) ). Florida courts interpret the statute to require "actual malice, where the conduct is ‘worse than gross negligence,’ and ‘more reprehensible and unacceptable than mere intentional conduct.’ " Barnett v. MacArthur , 715 F. App'x 894, 904 n.9 (11th Cir. 2017) (quoting Sierra v. Assoc. Marine Insts., Inc. , 850 So. 2d 582, 593 (Fla. 2d DCA 2003) and Richardson v. City of Pompano Beach , 511 So. 2d 1121, 1123 (Fla. 4th DCA 1987) ). The Eleventh Circuit has stated that the plain text of the statute bars negligence claims categorically against officers. Pena v. Marcus , 715 F. App'x 981, 989 (11th Cir. 2017) Put another way, the statute does not strip Sergeant Fryer of immunity for this claim. Officer Diaz does not contest this in his response brief. Accordingly, the Court dismisses the negligent infliction of emotional distress claim against Sergeant Fryer.
B. Claims against Miami-Dade County
1. Count 2: 42 U.S.C. § 1983 Claim against Miami-Dade County
Although the Supreme Court has held that municipalities are "persons" within the scope of § 1983, and subject to liability, a plaintiff cannot rely upon a theory of respondeat superior to hold a municipality liable. See Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding that § 1983 "cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor."). For § 1983 liability to attach to a municipality, "a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation." McDowell v. Brown , 392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of Canton v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ). Additionally, the plaintiff must show "that the local government entity ... has authority and responsibility over the governmental function in issue" and "must identify those officials who speak with final policymaking authority for that local governmental entity concerning the act alleged to have caused that particular constitutional violation in issue." Grech v. Clayton Cty., Ga. , 335 F.3d 1326, 1330 (11th Cir. 2003). "It is only when the ‘execution of the government's policy or custom ... inflicts the injury’ that the municipality may be held liable under § 1983." City of Canton , 489 U.S. at 385, 109 S.Ct. 1197 (quoting Monell , 436 U.S. at 694, 98 S.Ct. 2018 ). The "threshold identification of a custom or policy ‘ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.’ " McDowell , 392 F.3d at 1290 (quoting Bd. of Cty. Comm'rs v. Brown , 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). The incident must stem from a demonstrated practice to prevent the imposition of liability based upon isolated incidents. Id. (citing Depew v. City of St. Mary's , 787 F.2d 1496 (11th Cir. 1986) ) ("Normally, random acts or isolated incidents are insufficient to establish a custom or policy.").
Plaintiff's first contention is that the Miami-Dade Police Professional Compliance Bureau maintained a policy of disregarding or otherwise acting with deliberate indifference towards the constitutional rights of its investigative targets. The allegations, however, do not suffice to establish the County itself – not its officers, not one section of a department —"cause[d] a constitutional violation" by way of "an unofficial custom or practice ... shown through the repeated acts of a final policymaker for the county." Walker v. City of Calhoun , 901 F.3d 1245, 1255 (11th Cir. 2018).
Plaintiff's next point is that the Monell claim should survive because he has alleged the County's conduct is not limited to a discrete or random act, but rather a series of incidents. When attempting to state a Monell claim based on custom, "[a] pattern of similar constitutional violations... is ordinarily necessary, because a single violation is not so pervasive as to amount to a custom." Gurrera v. Palm Beach Cty. Sheriff's Office , 657 F. App'x 886, 892-93 (11th Cir. 2016) (citing Craig v. Floyd Cty. , 643 F.3d 1306, 1310 (11th Cir. 2011) and Grech , 335 F.3d at 1330 ). Only a thoroughly engrained pattern of unconstitutional violations satisfies this standard. Plaintiff's complaint is based on his sole incident of arrest, not on a demonstrated practice that results in deprivation of constitutional rights. Rosario v. Miami-Dade County , 490 F. Supp. 2d 1213, 1225 (S.D. Fla. 2007) (dismissing § 1983 action against the county where plaintiff failed to allege facts beyond her own incident). Plaintiff, does not describe what, if anything transpired prior to seven days before he was arrested, when the State Attorney's Office sought and obtained the warrant. The allegations in this complaint center on the government's investigation that took place over the course of one week and besides the application for the search warrant, the rest of the allegations center on actions taken in a 24-hour period. Plaintiff does not explain how these actions, taken over a short period, can amount to a custom of the County that is "so permanent and well settled as to constitute a ‘custom or usage’ with the force of law." City of St. Louis v. Praprotnik , 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Adickes v. S.H. Kress & Co. , 398 U.S. 144, 167-168, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ). A search warrant application, a sting operation, and an arrest do not represent a custom shown through the "repeated acts of a final policymaker for the county." Grech , 335 F.3d at 1329. Accordingly, the Court dismisses count 2 against the County, because Plaintiff cannot state a claim under § 1983 for false arrest under Monell and its progeny.
2. Negligent Infliction of Emotional Distress Claim against Miami-Dade County
The Court's finding that the officers had arguable probable cause to arrest Plaintiff precludes the Plaintiff's claim for negligent infliction of emotional distress against the County. Cottam v. City of Wildwood , 750 F. App'x 791, 796 (11th Cir. 2018). If the arresting officers have immunity, so too would the County.
The allegations also fail state a prima facie case for negligent infliction of emotional distress, which requires a plaintiff to allege a physical injury caused by psychological trauma. Zell v. Meek , 665 So. 2d 1048, 1054 (Fla. 1995). Plaintiff's Second Amended Complaint only identifies a psychological injury without an ensuing physical injury necessary to state a claim. Moreover, in responding to the County's motion to dismiss, Plaintiff articulates the standard for a separate claim of intentional infliction of emotional distress, which he did not plead. Accordingly, given Plaintiff's failure to address the motion to dismiss his negligent infliction of emotional distress claim and the inadequacies present in the complaint, the Court dismisses this claim.
C. Claims against Deputy State Attorney Howard Rosen
1. Count 3: 42 U.S.C. § 1983 Defamation Claim against Howard Rosen
Count 3 is a defamation claim under 42 U.S.C. § 1983 against Defendant, Howard Rosen, Deputy Chief of Special Prosecutions for the Miami-Dade State Attorney. The claim against Rosen stems from statements he made at a pre-shift roll call meeting at the Miami-Dade Narcotics Bureau on May 6, 2016. Prior to that meeting, Defendant Rosen and Assistant State Attorney Jose Arrojo advised the Director of the Miami-Dade Police Department, Juan Perez, that the State Attorney would not be filing criminal charges against Plaintiff. Plaintiff's § 1983 claim asserts that despite having decided not to prosecute him, Rosen advised approximately 40 members of the Narcotics Bureau, Miami-Dade Police Legal Advisor Ivonne Duran, and then-Miami-Dade Police Department Captain Freddie Larrinanga, that "the common denominator on numerous, numerous cases where money was missing from scenes," was Plaintiff Diaz. Additionally, Rosen stated at the same meeting that "[w]e know that, over the past, [Officer Diaz] has stolen money. We just can't prove it and charge him with a crime." Referring to cases Officer Diaz investigated, Defendant Rosen added that "[t]here was a serious credibility issue with [Officer Diaz], so we can't file the case." These statements form the basis of Plaintiff's defamation claim against Rosen under 42 U.S.C. § 1983. a. Failure to State a Common Law Defamation Claim under Florida law
To state a claim under § 1983 based on statements by government officials, a plaintiff must first allege a common law defamation claim and then allege a constitutional injury flowing from the defamatory statement. Rehberg v. Paulk , 611 F.3d 828, 851-52 (11th Cir. 2010). Injury to reputation alone does not constitute a deprivation of a liberty or property interest protected under the Fourteenth Amendment. Id. (citing Behrens v. Regier , 422 F.3d 1255, 1259 (11th Cir. 2005). "Damages to a plaintiff's reputation ‘are only recoverable in a section 1983 action if those damages were incurred as a result of government action significantly altering the plaintiff's constitutionally recognized legal rights.’ " Id. (quoting Cypress Ins. Co. v. Clark , 144 F.3d 1435, 1438 (11th Cir. 1998) ). This is known as the stigma-plus test and requires the plaintiff to "show both a valid defamation claim (the stigma) and ‘the violation of some more tangible interest’ (the plus)." Id. (quoting Cannon v. City of W. Palm Beach , 250 F.3d 1299, 1302 (11th Cir. 2001) and Behrens , 422 F.3d at 1260 ).
First, Plaintiff must allege the elements of a defamation claim under Florida law. Id. (stating stigma-plus test requires "allegations stating a common-law defamation claim."). Those elements are: "(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory." Jews for Jesus, Inc. v. Rapp , 997 So. 2d 1098, 1106 (Fla. 2008). The publication prong is not met as a matter of law where the communications are between governmental employees and agencies. Alvarez v. Ridge , No. 03-20049, 2004 WL 7331011, at *4 (S.D. Fla. Mar. 30, 2004). In addition, courts have held that opinions with no probably false connotations cannot support a common-law defamation claim. Hamze v. Cummings , 652 F. App'x 876, 881 (11th Cir. 2016) (citing Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ; Keller v. Miami Herald Publ'g Co. , 778 F.2d 711, 714-15 (11th Cir. 1985) (applying Florida law) ).
Rosen's statements appear to articulate his opinion that Officer Diaz committed a crime, but the evidence is insufficient to prosecute. The Court need not decide the issue, however, because the publication prong is not met.
Plaintiff does not respond to Rosen's argument that the publication prong is not met because he made the statements in a meeting with law enforcement. It is simply insufficient as a matter of law that Rosen made the statements in a meeting with 40 officers and additional police personnel. The intragovernmental dissemination of information does not meet the publication prong. Alvarez , 2004 WL 7331011, at *4. Moreover, "[a] common law claim for defamation requires the unprivileged publication ..." Mile Marker, Inc. v. Petersen Publ'g, LLC , 811 So. 2d 841, 845 (Fla. 4th DCA 2002) (emphasis added). Rosen's statement to law enforcement is privileged under Florida law when speaker and listener have corresponding duties or mutuality of purpose. Int'l Sec. Mgm't Grp., Inc. v. Rolland , 271 So. 3d 33, 45 (Fla. 3d DCA 2018).
1. Absolute Immunity under Florida Law
Even if the Plaintiff's allegations established a common-law defamation claim, the question then arises as to whether Rosen has absolute immunity for his statements to law enforcement. Rosen argues that Florida law blankets him with absolute immunity, which expansively protects statements made by public officials "in connection with the performance of the duties and responsibilities of their office." McNayr v. Kelly , 184 So. 2d 428, 433 (Fla. 1966) ; Hauser v. Urchisin , 231 So. 2d 6, 8 (Fla. 1970) ("The public interest requires that statements made by officials ... in connection with their official duties be absolutely privileged."). Florida law broadly defines "scope of office" to include all matters a public official is authorized to perform. Mueller v. The Florida Bar , 390 So. 2d 449, 451 (Fla. 4th DCA 1980). Given the broad interpretation, any statements made by a public employee "within the orbit of his responsibilities" are immune. See Florida State Univ. Bd. of Trustees v. Monk , 68 So. 3d 316, 319 (Fla. 1st DCA 2011) ; Goetz v. Noble , 652 So. 2d 1203, 1205 (Fla. 4th DCA 1995).
Plaintiff argues that Rosen is not entitled to absolute immunity because there are federal cases that distinguish prosecutors' actions to determine which are entitled to absolute immunity and which are not. Plaintiff advocates for this Court to apply a "functional approach" test looking at the nature of the action performed, as opposed to the actor. Buckley v. Fitzsimmons , 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). This argument misses the mark because to state a § 1983 claim for defamation, the Plaintiff must first be able to allege a common law claim for defamation under Florida law, irrespective of federal immunity law establishing the functional approach test. Florida cases applying Florida law do not apply the functional approach test to decide a prosecutor's absolute immunity. Given Florida's expansive rule granting public officials, such as Rosen, absolute immunity for statements made in his scope of office, Plaintiff is unable to state a defamation claim under Florida law. Certainly, Rosen's statements in a meeting with law enforcement fall within the ambit of his scope of work. Put another way, if the Plaintiff simply filed a defamation claim in a Florida court against Rosen, it would most certainly be dismissed because a Florida court would find his comments absolutely immune, especially given he made them in a meeting with law enforcement.
The "functional approach" would be appropriately applied in the event the Plaintiff could state a common-law defamation claim under Florida law, which is the first component in the stigma-plus test. If Plaintiff could state a common law defamation claim, then the Court would determine if a constitutional injury flowed from that claim. In that context, the Court would determine if the prosecutor had absolute immunity as a defense under federal law.
b. Failure to allege a Constitutional Injury
Assuming Plaintiff could state a defamation claim under Florida law, Plaintiff's Second Amended Complaint would need to identify a constitutional injury flowing from the alleged defamatory statements to state an actionable § 1983 claim. Rehberg , 611 F.3d at 851. Plaintiff's claim here is that Rosen's statement to law enforcement that Plaintiff committed a crime deprived him of a liberty interest. Relying on Crowe v. County of San Diego , 13 F. App'x 560, 562 (9th Cir. 2001), Plaintiff argues that Rosen's defamatory statements satisfy the tangible harm necessary to establish the stigma-plus test for a constitutional defamation claim. Id. (finding that defamatory statements about an unconstitutional arrest were actionable under § 1983 ). In this case, the Plaintiff's arrest predated Rosen's statements by two months. A § 1983 defamation claim requires the Plaintiff to establish an affirmative causal connection between the statements and the alleged constitutional deprivation. Troupe v. Sarasota Cnty., Fla. , 419 F.3d 1160, 1165 (11th Cir. 2005) ("A § 1983 claim requires proof of an affirmative causal connection between the defendant's acts or omissions and the alleged constitutional deprivation."). Obviously, Rosen's statement, after-the-fact, could not have caused the Plaintiff's arrest two months earlier. Because Rosen's statement did not trigger Plaintiff's arrest, the Court cannot find that the arrest was a constitutional injury causally connected to Rosen's statements.
This case is distinguishable from Crowe because this Court found there was arguable probable cause for the arrest, and was therefore, constitutional, unlike the arrest in Crowe .
To the extent Plaintiff asserts reputational injury, Rehberg establishes that is not actionable. Rehberg , 611 F.3d at 851-52. The Second Amended Complaint references an inter-departmental transfer and a loss of credibility, which are insufficient to trigger a violation of "constitutionally recognized legal rights." Id. ; Behrens , 422 F.3d at 1263, n.14.
c. Immunity under federal law
Even if Plaintiff could state a claim for defamation under Florida law and establish a constitutional injury flowing from Rosen's statements, the Defendant argues that he also has absolute and qualified immunity from a § 1983 claim. Buckley , 509 U.S. at 268-69, 113 S.Ct. 2606. As noted, infra , absolute prosecutorial immunity is function related under federal law. A prosecutor is immune from liability under § 1983 for his actions "in initiating a prosecution and in presenting the State's case," and for actions that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman , 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). That includes "actions preliminary to the initiation of a prosecution and actions apart from the courtroom." Mikko v. City of Atlanta, Ga. , 857 F.3d 1136, 1143 (11th Cir. 2017) (quoting Buckley , 509 U.S. at 272, 113 S.Ct. 2606 ). Imbler recognized that prosecutors often engage in preliminary actions outside the courtroom, such as obtaining witness testimony, and are entitled to absolute immunity in that regard. The question here is whether statements made regarding the decision not to prosecute after weighing evidence and witness credibility should be considered quasi-judicial or administrative. Rosen also stated that Plaintiff stole money from the crime scenes and was a common denominator in the cases where money was stolen. Plaintiff argues Rosen's statements are administrative, and therefore, he is stripped of his absolute immunity under federal law on this § 1983 claim.
Undoubtedly, Rosen's decision not to prosecute the Plaintiff is protected by absolute immunity. Mikko , 857 F.3d at 1143. The parties dispute whether the communication of that decision and the prosecutor's statement that Plaintiff committed the crime is also shielded by absolute immunity. The Eleventh Circuit cautioned in Mikko that for absolute immunity to shield the prosecutor, the conduct in question must be connected in a specific way to his role as a trial advocate. Id. The Court finds that Rosen's statements are not protected by absolute immunity, because the statements were not taken in his role as an advocate. See Buckley , 509 U.S. at 276, 113 S.Ct. 2606 (citing Burns v. Reed , 500 U.S. 478, 495, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) ("Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice ... Almost any action by a prosecutor, ...could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive.").
Although absolute immunity would not apply in this context where the statements appear administrative in nature, the Court agrees with Rosen's argument that he nevertheless is protected by qualified immunity. "To be entitled to qualified immunity, an official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Mikko , 857 F.3d at 1143-44. In Mikko , the Eleventh Circuit stated that "[a] prosecutor's most basic duty is to prosecute cases in his jurisdiction on behalf of the State. Related to that duty, prosecutors may also communicate with other law enforcement agencies, officials, or employees about current or potential prosecutions, and about current or potential witnesses for the cases that may be prosecuted." Id. Plaintiff argues that because the State Attorney's Office had already decided not to prosecute the Plaintiff, then Rosen was outside his scope of discretionary authority when he was communicating with law enforcement at the roll call meeting. The Second Amended Complaint, however, also asserts that although the State Attorney's Office had decided not to prosecute Plaintiff, the Miami-Dade County Police Department's Professional Compliance Bureau's investigation remained open at the time of the roll call meeting. Mikko therefore requires this Court to find that Rosen was acting within his discretionary authority as there was an ongoing criminal investigation. Rosen's communication with law enforcement explaining a decision not to prosecute the Plaintiff and potential concerns with calling Plaintiff as a witness clearly falls within the discretionary authority of the prosecutor. The Court does not find that Rosen acted outside of his discretionary authority such as would strip him of qualified immunity.
Finally, even if Rosen was acting beyond his discretionary authority, the Court does not find that Plaintiff's allegations establish a violation of a clearly established constitutional right. As previously explained, Plaintiff does not show a constitutional injury flowing from Rosen's statements. At most, Plaintiff's allegations state that his reputational harm amounts to a deprivation of a constitutionally protected liberty interest without due process. Howe v. Baker , 796 F.2d 1355, 1360 (11th Cir. 1986) (applying a stigma-plus test to a reputational loss and finding no violation of a constitutional right). Certainly, Rosen was not on notice that he was violating Plaintiff's clearly established constitutional rights when he spoke at a meeting with law enforcement about Plaintiff's potential role in a crime, the decision not to prosecute him, and the credibility concerns arising from calling Plaintiff as a witness in other criminal prosecutions. See Holden v. Sticher , 427 F. Appx 749, 752 (11th Cir. 2019) (granting prosecutor qualified immunity for giving advice to police officer on filling out arrest affidavit); Rowe v. City of Fort Lauderdale , 279 F.3d 1271, 1281 (11th Cir. 2002) (granting prosecutor qualified immunity for actions taken in his investigator's role). Accordingly, the Court finds that Rosen is qualifiedly immune from Plaintiff's § 1983 claim.
2. Counts 4 and 5: State Law Claims against Rosen
Count 4 of the Second Amended Complaint is a claim against Howard Rosen for a violation of the Florida Law Enforcement Officers' Bill of Rights, § 112.532, Fla. Stat. The statute affords law enforcement officers and correctional officers various rights when the officer is subject to an investigation by his agency. Section 112.532(3) provides that a law enforcement officer, such as Plaintiff, may bring a claim against any person for abridgment of the officer's civil rights arising out of the officer's performance of his official duties. Courts have found the statute does not create a private right of action for money damages. Fiedor v. Florida Dep't of Fin. Servs. , No. 18-cv-191, 2018 WL 6495194, *2 (N.D. Fla. Sept. 4, 2018) ; Kamenesh v. City of Miami , 772 F. Supp. 583, 593 (S.D. Fla. 2001) (abrogated on other grounds) (stating the statute merely memorializes the right to sue, but does not create a cause of action). In Bailey v. Bd. of County Comm'rs , 659 So. 2d 295, 300 (Fla. 1st DCA 1994), the court analyzed whether the statute created a cause of action for money damages. Finding that the sole statutory remedy for a violation of § 112.532 was contained in § 112.534, the court found the only available remedy was injunctive. The Bailey court dismissed the claim for money damages under the officer's Bill of Rights. See also City of Miami v. Cosgrove , 516 So. 2d 1125 (Fla. 3d DCA 1987). Accordingly, this case law precludes Plaintiff's claim for money damages under the statute against Defendant Rosen.
Even if Plaintiff could state a claim for money damages under the statute, "Florida's single action rule prohibits defamation claims from being re-cast as additional separate torts, e.g., intentional infliction of emotional distress, if all of the claims arise from the same defamatory publication." Kinsman v. Winston , No. 15-cv-696-Orl-22GJK, 2015 WL 12839267, at *5 (M.D. Fla. Sept. 15, 2015) (citing Tobinick v. Novella , No. 14-CV-80781, 2015 WL 328236, at *11 (S.D. Fla. Jan. 23, 2015) ). "When claims are based on analogous underlying facts and the causes of action are intended to compensate for the same alleged harm, a plaintiff may not proceed on multiple counts for what is essentially the same defamatory publication or event." Id. ; Tobinick , 2015 WL 328236 at *11 (quoting Klayman v. Judicial Watch, Inc. , 22 F. Supp. 3d 1240, 1256 (S.D. Fla 2014) ).
Both count 4 under the officers' Bill of Rights and count 5 for negligent infliction of emotional distress are premised on Rosen's statements during a roll call meeting with the Miami-Dade Police Department. These statements are the same ones that form the basis of Plaintiff's defamation claim under § 1983. Plaintiff argues that because his defamation claim is imbedded in his count under § 1983, the single action rule does not bar these state law claims. The single publication/single action rule, however, is designed to discourage the erosion of free speech safeguards by the simple expedient of looking to a substitute cause of action. See Orlando Sports Stadium v. Sentinel Star Co. , 316 So. 2d 607, 609 (Fla. 4th DCA 1975) (" ‘We look for the reality, and the essence of the action, and not its mere name.’ ") (citation omitted). Under this rationale, it makes sense to apply the rule even though Plaintiff's claim is a federal § 1983 civil rights claim, which requires Plaintiff state a common law defamation claim under Florida law. See also Fridovich v. Fridovich , 598 So. 2d 65, 70 (Fla.1992) (successful invocation of a defamation privilege precludes a cause of action for intentional infliction of emotional distress if sole basis for the latter is the publication). D. Leave to Amend
The Court notes that to state a negligent infliction of emotional distress claim, the Plaintiff must state a physical manifestation of injuries stemming from Rosen's statements. Langbehn v. Pub. Health Trust of Miami-Dade County , 661 F. Supp. 2d 1326, 1334 (S.D. Fla. 2009). Plaintiff fails to do so and therefore, count 5 fails to state a claim even if the single action rule did not apply.
This is the Plaintiff's Second Amended Complaint, and the Defendants' prior motions to dismiss put him on notice as to its deficiencies. This being the third iteration of the complaint and based on the Court's finding that Sergeant Matthew Fryer and Deputy Chief State Attorney Howard Rosen are entitled to qualified immunity, the Court declines to allow Plaintiff leave to amend the complaint. Lomax v. Diaz , 390 F. App'x 900, 902 (11th Cir. 2010). Likewise, because the claim against the County stems from Plaintiff's purported unlawful arrest, and the Court has found the officers had arguable probable cause for that arrest, the Court declines to allow the Plaintiff to amend the § 1983 false arrest claim against the County. Allowing that amendment would be futile, especially since this is Plaintiff's third version of this complaint and he was on notice by the Defendants' motions to dismiss as to its deficiencies in pleading a custom or policy under Monell. See also Cita Tr. Co. AG v. Fifth Third Bank , 879 F.3d 1151, 1157 (11th Cir. 2018) (stating that imbedding a request to amend in an opposition memorandum is insufficient to properly request leave).
DONE AND ORDERED in Chambers at Miami, Florida, this 19th of December 2019.