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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT A. BRAYSHAW,

Plaintiff,

vs. Case No. 4:10cv272-SPM/WCS

OFFICER ANNETTE P GARRETT, 

OFFICER MICHAEL E. DILMORE, 

and the CITY OF TALLAHASSEE,

Defendants.

 /

SECOND REPORT AND RECOMMENDATION

Pending is a motion to dismiss filed by the individual Defendants, Dilmore and

Garrett, doc. 34, along with a memorandum of law, doc. 33. Plaintiff has filed a

response to the motion, doc. 36, as well as the memorandum of law, doc. 37. A report

and recommendation was recently entered on the motion to dismiss filed by the City of

Tallahassee. Doc. 45. This second report and recommendation addresses only the

motion to dismiss filed by Defendants Dilmore and Garrett.

Plaintiff's amended complaint, doc. 6

Plaintiff filed his complaint under 42 U.S.C. § 1983 asserting the following claims

against Defendants Dilmore and Garrett: a state law claim for negligence (count I, p.

24); a gross negligence claim (count II, p. 25); § 1983 federal claims for failure to
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properly supervise and train (count III, pp. 27-30), false arrest, retaliation, and malicious

prosecution (count IV, pp. 30-32), conspiracy (count V, pp. 32-33), racketeering (count

VII, pp. 34-35), malicious prosecution claim only against Defendant Garrett (count VIII,

pp. 35-37); and other state law claims (counts IX-X, pp. 33-34, 37-40). Plaintiff has

agreed with this reading of the amended complaint, see doc. 36, pp. 1-2, explaining that

count X "should be treated as a state law claim for loss of consortium." 

Plaintiff alleges that in April and May, 2007, Defendant Garrett (a police officer)

was investigating a reported trespass. Doc. 6, p. 2. At that time, Plaintiff and his wife

(who is not a party in this case), were property managers at the Dakota Apartments. 

Id., at 2-3. Plaintiff claims Defendant Garrett harassed him during the investigation, and

that the investigation was unreasonably long. Id., at 3-4. Plaintiff suggests that

Defendant Garrett intentionally extended the investigation for two months to harass

Plaintiff and his family. Id., at 4. Plaintiff was not arrested, and the trespassing case

was not prosecuted. Id. (Defendants point out that "[n]o criminal charges were ever

filed against Plaintiff as a result" of this 2007 investigation. Doc. 33, p. 2.)

On May 12, 2008, police arrived at Plaintiff's home to arrest Plaintiff for another

offense, a violation of FLA. STAT. § 843.17, but Plaintiff states that he was at the hospital

at the time.1

 Id., at 5. At 1:00 a.m. on May 13th, Plaintiff surrendered himself at the

Leon County Jail, and was booked "for publishing an address of an officer on the web"

1

 Defendants' memorandum clarifies that in March, 2008, Plaintiff published

Defendant Garrett's home address and other personal information on the website,

Ratemycop.com. Doc. 33, p. 2. Defendant Dilmore conducted an investigation to

determine whether there was probable cause to believe that Plaintiff's actions violated §

843.17. Id. He concluded that probable cause existed and Leon County Judge

Augustus Aikens issued an arrest warrant. Id. 

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which Plaintiff states occurred approximately one month prior to his arrest. Id., at 5. 

Allegedly, Defendant Garrett "targeted" Plaintiff and "labeled him an 'Anti-Police

Problem for Written Complaints' with the aid of her fellow Officer, [Defendant] Dilmore." 

Id. Plaintiff contends these two Defendants "are not tolerate [sic] of criticism or

questioning with the 'Blue Wall' supported by their partners in crime." Id., at 6. Plaintiff

alleges that he began to be harassed by Defendant Garrett and "her buddies" because

Plaintiff was critical of the manner in which Defendant Garrett handled the April, 2007,

trespassing investigation. Id., at 6-7. The amended complaint indicates2 that Plaintiff

posted "public and truthful information" on the internet about Defendant Garrett,

including her home address. Id., at 7-8. Based on that posted information, Plaintiff was

arrested and charged with two crimes. Id., at 16. Plaintiff indicates state court Judge

Aikens "had no legal justification" to issue an arrest warrant which was based on

Defendant Dilmore's false probable cause affidavit, and the case against Plaintiff was a

conspiracy aimed at destroying Plaintiff and his wife's lives. Id., at 14-15. 

Plaintiff contends that both Defendants Dilmore and Garrett were acting for

"political revenge" against Plaintiff to "punish" him for his criticism of the officers. Id., at

12. Plaintiff alleges much bias and prejudice against him, from the police, prosecutors,

public defenders, and state court judges assigned to Plaintiff's case. Id., at 12-13. 

Plaintiff surmises that there must have been "crude, ex parte attempts with the

prosecutors and/or judges to influence or compromise the case" and the prosecution of

2

 Plaintiff does not readily admit having posted the information in the amended

complaint, but that fact is clear in other filings by Plaintiff. See doc. 23, p. 13.

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Plaintiff was part of "a 'good ol' boy network' of government connections . . . ." Id., at

15-16. 

Plaintiff's case was set for trial on December 9, 2008. Id., at 21. Without

explaining clearly what happened, Plaintiff suggests the action resulted in a "bona fide

termination in" Plaintiff's favor. Id., at 35. Plaintiff alleges that the "whole ordeal . . .

was an attempt to punish and financially ruin a family of Tallahassee citizens that was

often too critical of [Defendant Garrett] as an Officer paid by tax payer's income." Id., at

22. Plaintiff seeks general damages, punitive damages, treble damages and all

remedies and relief available to him for the circumstances alleged. Id., at 40. 

Motion to Dismiss, doc. 34

Defendants Garrett and Dilmore seek dismissal of the state law claims for

negligence and gross negligence in counts I and II because "as City employees, each

[Defendant] is immune from suit pursuant to Florida Statute § 768.28(9)(a)." Doc. 34,

pp. 1-2. They seek dismissal of counts III, IV, and V on qualified immunity grounds. Id.,

at 2. Defendants seek dismissal of counts III, VI, VII, VIII, IX, and X for failure to state a

claim upon which relief may be granted. Id., at 3. They argued that count V should be

dismissed on the basis of the "intracorporate conspiracy doctrine." Id. Further, the

Defendants contend that the "official capacity" claims against them should be dismissed

as redundant because Plaintiff also brought this case against the City of Tallahassee. 

Defendants note that there were two underlying criminal cases brought against

Plaintiff. Doc. 34, p. 4. The first was State v. Brayshaw, case 2008MM2752 and the

second case was State v. Brayshaw, case 2008MM7297. Id. Defendants have 

attached five exhibits to the motion to dismiss, and assert that the exhibits may be

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considered on a motion to dismiss without the need to convert the motion into a

summary judgment motion under Rule 56 because Fed. R. Evid. 201(f) permits judicial

notice to be taken at any time. Id., at 4. Defendants contend that these are

uncontested facts and note that Plaintiff references his first case in his amended

complaint. Id. Plaintiff does not dispute the underlying state criminal cases brought

against him. Doc. 36, p. 3. Plaintiff indicates his willingness for the Court to take

judicial notice of those facts and Plaintiff does not dispute the authenticity of the

documents. Doc. 36, p. 4, n.4.

Defendants also make clear in the motion to dismiss that after Plaintiff turned

himself in at the Jail, he was booked and released on bond. Doc. 33, pp. 2-3. Plaintiff

was charged by Information of violating FLA. STAT. § 843.17. Id., at 3. On December 9,

2008, the State "dismissed the charges against Plaintiff but re-filed those charges on

December 18, 2008." Id. "On April 15, 2009, the criminal charges were dismissed with

prejudice because the State failed to comply with Fla. R. Crim. P. 3.91 (speedy trial

requirements)." Id. Subsequently, Plaintiff initiated a civil rights case in federal court

challenging the Constitutionality of FLA. STAT. § 843.17. Id. On April 30, 2010, the

statute was declared unconstitutional on its face by the District Judge Smoak. Id. 

Standard of Review

In reviewing a motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6) for failing

to state a claim upon which relief can be granted, the court must consider whether the

plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the

standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that

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dismissal should not be ordered unless it appears beyond doubt that plaintiff could

prove "no set of facts" in support of his claims which would entitle him to relief). The

pleading standard is not heightened, but flexible, in line with Rule 8's command to

simply give fair notice to the defendant of the plaintiff's claim and the grounds upon

which it rests. Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d

1 (2002) ("Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

exceptions."); see also Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)(holding no

heightened pleading standard may be used against municipality defendants). A

complaint does not need detailed factual allegations to survive a motion to dismiss, but

it must provide the grounds for a plaintiff's entitlement to relief beyond mere "labels and

conclusions, and a formulaic recitation of the elements of a cause of action . . . ." 

Twombly, 127 S.Ct. at 1964-65.

If a pleading fails to specify the allegations in a manner that provides

sufficient notice, a defendant can move for a more definite statement

under Rule 12(e) before responding. Moreover, claims lacking merit may

be dealt with through summary judgment under Rule 56. 

Swierkiewicz, 122 S.Ct. at 998-999. 

A court must accept the factual allegations of the complaint as true, Shotz v.

American Airlines, Inc., 420 F.3d 1332, 1334-35 (11th Cir. 2005), and dismissal is not

permissible because of "a judge's disbelief of a complaint's factual allegations." 

Twombly, 127 S.Ct. at 1965, quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct.

1827, 104 L.Ed.2d 338 (1989). "Pro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed." 

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Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Nevertheless, a

complaint must provide sufficient notice of the claim and the grounds upon which it rests

so that a "largely groundless claim" does not proceed through discovery and "take up

the time of a number of other people . . . ." Dura Pharmaceuticals, Inc. v. Broudo, 544

U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), quoted in Twombly, 127 S.Ct. at

1966. 

A district court considering a motion to dismiss shall begin by identifying

conclusory allegations that are not entitled to an assumption of truth-legal

conclusions must be supported by factual allegations. The district court

should assume, on a case-by-case basis, that well pleaded factual

allegations are true, and then determine whether they plausibly give rise to

an entitlement to relief.

Randall v. Scott, 610 F.3d 701, 709 -710 (11th Cir. 2010).

Analysis of a motion to dismiss is generally limited to the face of the complaint

and any attachments. Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d

1364, 1368-69 (11th Cir. 1997), citing 5 Charles A. Wright & Arthur Miller, Federal

Practice and Procedure § 1356 at 590-92 (1969) (Wright & Miller). "However, where the

plaintiff refers to certain documents in the complaint and those documents are central to

the plaintiff's claim, then the Court may consider the documents part of the pleadings for

purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to

the motion to dismiss will not require conversion of the motion into a motion for

summary judgment." Brooks, 116 F.3d at 1369, quoting Venture Assoc. Corp. v. Zenith

Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993) ("Documents that a defendant

attaches to a motion to dismiss are considered part of the pleadings if they are referred

to in the plaintiff's complaint and are central to her claim."); see also Beddall v. State

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Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998). Guiding the decision of

whether the court may consider an extrinsic document in ruling on a motion to dismiss is

if the document is (1) central to the plaintiff's claim, and (2) its authenticity is not

challenged. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); see also Maxcess,

Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) ("a document

outside the four corners of the complaint may still be considered if it is central to the

plaintiff's claims and is undisputed in terms of authenticity."). Harris v. Ivax Corp., 182

F.3d 799, 801 n. 2 (11th Cir. 1999) ("But a document central to the complaint that the

defense appends to its motion to dismiss is also properly considered, provided that its

contents are not in dispute."). 

Even though Defendants have attached documents to their motion to dismiss,

Plaintiff refers to these documents in his complaint and does not dispute their

authenticity. Thus, this motion need not be converted a motion for summary judgment

and this court may consider the documents in ruling upon this motion to dismiss.

Federal claims

Official Capacity, Count III

Defendants argue that Plaintiff's claim against them in their official capacities in

count III must be dismissed. Defendants assert that a claim against municipal officers

sued in their official capacities is a claim against the municipality itself and is redundant

since the City was also sued. Doc. 33, pp. 5-6. Defendants contend that count III

should be dismissed as to them with prejudice. Id., at 6. Plaintiff argues that in count

III, he has alleged "plausible facts to support his claim of supervisory liability." Doc. 36,

p. 2. Plaintiff also contends that his official capacity claims against Defendants Garrett

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and Dilmore should not be dismissed as redundant "because they are not entitled to any

qualified immunity while acting in bad faith and with malice with the writing of false

police reports." Id., at 3. Plaintiff notes these individuals were never sued by Plaintiff in

his prior federal litigation challenging FLA. STAT. § 843.17. Id. 

A suit against a municipal officer is a suit against the municipality. Busby v. City

of Orlando, 931 F.2d 764, 776 (11th Cir. 1991), citing Kentucky v. Graham, 473 U.S.

159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). There is no need to bring

official-capacity actions against local government officials because the local government

unit can be sued directly. Graham, 473 U.S. at 166, 105 S.Ct. at 3105; see Monell v.

New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978) (holding that local governmental units are "persons" for purposes of § 1983

suits). Plaintiff has done so here. The official capacity claims against Garrett and

Dilmore are redundant and count III should be dismissed.3

 

Moreover, count III fails to state a claim against the officers because Plaintiff

does not allege how the individual Defendants failed to supervise or train others not in

keeping with any identifiable policy, or how they implemented a City policy. Grech v.

Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003), citing Monell, 436 U.S. at

690-91, 694; Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999).

Count IV, qualified immunity

Plaintiff was arrested and charged with violating § 843.17. That statute provides:

3

 The claim should also be dismissed for the reasons that the claims against the

City should be dismissed. The claims against the City, or against City employees in

their official capacity, are barred by res judicata. Doc. 45.

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Any person who shall maliciously, with intent to obstruct the due execution of the

law or with the intent to intimidate, hinder, or interrupt any law enforcement

officer in the legal performance of his or her duties, publish or disseminate the

residence address or telephone number of any law enforcement officer while

designating the officer as such, without authorization of the agency which

employs the officer, shall be guilty of a misdemeanor of the first degree,

punishable as provided in s. 775.082 or s. 775.083.

FLA. STAT. § 843.17.

Defendants seek dismissal of all of the claims in count IV due to qualified

immunity. Doc. 33, p. 8. These claims are based on allegations of retaliatory conduct,

false arrest and imprisonment, malicious prosecutions, and abuse of process. Doc. 6,

p. 30. All of these claims are based on the arrest of Plaintiff for violating FLA. STAT. §

843.17 for posting of the home address and other information about Defendant Garrett

on the "Ratemycop.com" website. Doc. 33, p. 8. As noted above, an arrest warrant

was issued by Judge Aikens, Plaintiff self-surrendered, and an Information was filed on

August 27, 2008. Doc. 33, p. 9. Thereafter, the State dismissed the case on December

9, 2008, and then filed another Information which recharged Plaintiff with violating §

843.17. That case was dismissed on April 15, 2009, on speedy trial grounds. Id. 

"The purpose of the qualified immunity defense is to protect[ ] government

officials 'from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.' " Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565

(2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2738, 73 L.Ed.2d

396 (1982), quoted in Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010). "The

defense of qualified immunity "ensure[s] that before they are subjected to suit, officers

are on notice their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151,

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2158, 150 L.Ed.2d 272 (2001). "Unless a government agent's act is so obviously wrong,

in the light of pre-existing law, that only a plainly incompetent officer or one who was

knowingly violating the law would have done such a thing, the government actor has

immunity from suit." Lassiter v. Ala. A&M Univ., Bd. of Trs., 28 F.3d 1146, 1149 (11th

Cir. 1994) (en banc) (emphasis added, quoted in Youmans, 626 F.3d at 562.

Once a defendant raises the defense of qualified immunity, the Plaintiff "bears

the burden of establishing both that the defendant committed a constitutional violation

and that the law governing the circumstances was already clearly established at the

time of the violation." Youmans, 626 F.3d at 562, citing Pearson, 129 S.Ct. at 815-16

(emphasis added). These elements may be considered in either sequence and failure to

show either element is dispositive. Pearson, Id. at 818. 

Plaintiff's claims in count IV depend entirely upon the argument that § 843.17 did

not apply to Plaintiff's situation because his website postings were not malicious or

threatening, and because the statute was declared unconstitutional by the District Judge

Richard Smoak. Doc. 36, p. 4. 

The probable cause affidavit states that Officer Garret told Officer Dilmore that

she had investigated Plaintiff in the past. Doc. 34, Ex. B, p. 1 (doc. 34-2, p. 15 on ECF). 

Plaintiff posted personal information about Garrett on March 31, 2008. Id. The posting

included Garrett's name, age, information about her residence, her personal cell phone

number, her personal email address, the names, address, and home phone of her

parents, and links to websites with photographs of Garrett and her children.4

 Id. 

4

 Defendant Dilmore's probable cause affidavit reveals that postings were made

to the website ratemycop.com revealing Defendant Garrett's home address, information

about her house, her personal phone number and the like. Doc. 34-2 (Exhibit B). The

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Plaintiff alleges in his complaint that he thought the trespass investigation in 2007 by

Garrett was false, harassment, and unlawful. Doc. 6, pp. 2-4. While that investigation

was a year earlier, a plausible inference arises from these allegations that Plaintiff's

internet posting concerning Garrett was motivated by his criticism of her interactions

with him as she investigated the trespass allegations a year earlier, and that postings

were done "maliciously, with intent to obstruct the due execution of the law or with intent

to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of

his or her duties" as set forth in FLA. STAT. § 843.17. Moreover, even if the posting were

not plausibly connected with the trespass investigation a year earlier, the publication of

information that would allow anyone to find Garrett or her family, or to contact her

through her private means of receiving communications, is, on its face, designed to

intimidate Garrett in her current law enforcement work. It is one thing to publish

criticism of the performance of a public servant, and quite another to publish information

that could assist someone to find Defendant Garrett and harm her or her family. A

reasonable officer would believe that the posting violated the statute.

website's owner produced the IP address of the user who logged in and posted the

information. Id. Defendant Dilmore obtained a subpoena for the website to release the

information, which they did, showing it belonged to IP address 71.54.172.56, belonging

to Embarq. Id. Defendant Dilmore then obtained a subpoena to obtain information from

Embarq as to the customer with the IP address on the dates and times the posting was

made. Id. The result was information that "the IP address was assigned to their

customer named Robert Brayshaw during the times the postings were made." Plaintiff

was provided the information concerning obtaining the IP address by Defendant

Dilmore. Id. Further, during the investigation Defendant Dilmore met personally with

Plaintiff to interview him and Plaintiff's "entire demeanor and expressions appeared to

be ones of guilt and deception" to Defendant Dilmore. Id.

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Judge Smoak's opinion in Brayshaw v. City of Tallahassee, case no: 4:09cv373-

RS-WCS, was entered on April 30, 2010, see doc. 37, p. 4, well after Plaintiff's state

court case was dismissed. Judge Smoak held that Florida § 843.17 was

unconstitutional as it was not "narrowly tailored to serve a compelling government

interest." Brayshaw v. City of Tallahassee, 709 F.Supp.2d 1244, 1250 (N.D.Fla. 2010). 

Plaintiff has come forward with no court decisions prior to that date which would have

given reasonable notice to Defendants Dilmore and Garrett that this statute was

unconstitutional. 

Both Defendants are protected by qualified immunity from liability for damages in

their individual capacities for all claims alleged in count IV. If the court so finds, it need

not address the argument that the complaint fails to state claims upon which relief may

be granted. In the interests of completeness, however, it is recommended that the court

also find that the claims are insufficiently alleged. The subsidiary claims arising in count

IV will be addressed ahead.

Count IV, false arrest

Plaintiff alleged in count IV that he was subjected to false arrest and

imprisonment, malicious prosecutions, and abuse of process, and that Defendants

violated his First Amendment right to free speech in their retaliatory conduct.

A claim for false arrest, which is the same as false imprisonment, is premised on

rights guaranteed by the Fourth Amendment of the United States Constitution, "to be

free from 'unreasonable searches and seizures' . . . [and] an arrest is a seizure of the

person." Case v. Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009), quoting Skop v. City

of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). The 'reasonableness' of an arrest

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"turns on the presence or absence of probable cause." Case, 555 F.3d at 1326. A

police officer must have probable cause to arrest an individual without a warrant, and

the existence of probable cause is an absolute bar to a civil rights claim for false arrest. 

Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004); Rodriguez v. Farrell,

280 F.3d 1341, 1345 (11th Cir. 2002).

Probable cause exists when a police officer has facts and circumstances within

his knowledge "sufficient to warrant a reasonable belief that the suspect had committed

or was committing a crime." United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir.

1992), quoted in Case, 555 F.3d at 1327; see also United States v. Floyd, 281 F.3d

1346, 1348 (11th Cir. 2002); Rankin, 133 F.3d at 1433. "[P]robable cause requires only

a probability or substantial chance of criminal activity, not an actual showing of such

activity." Illinois v. Gates, 462 U.S. 213, 245 n. 13, 103 S.Ct. 2317, 2335 n.13, 76

L.Ed.2d 527 (1983), quoted in Case, 555 F.3d at 1327. 

Even if probable cause was lacking, a police officer is protected from liability if

"arguable probable cause existed." Case, 555 F.3d at 1327. In Pickens v. Hollowell, 59

F.3d 1203 (11th Cir. 1995), the court considered whether deputies at the jail were

protected by qualified immunity in arresting a visitor pursuant to a warrant when the

statute of limitations had run at the time the arrest was made. The Court noted the case

of Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), where the

plaintiff had been arrested and jailed for three days before the sheriff discovered the

wrong man had been imprisoned. Id., at 141, 99 S.Ct. at 2693. The Supreme Court

rejected the plaintiff's argument that the sheriff's failure to investigate his protests of

misidentification constituted a violation of due process, and explained:

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Given the requirements that arrest be made only on probable cause and

that one detained be accorded a speedy trial, we do not think a sheriff

executing an arrest warrant is required by the Constitution to investigate

independently every claim of innocence, whether the claim is based on

mistaken identity or a defense such as lack of requisite intent.... The

ultimate determination of such claims of innocence is placed in the hands

of the judge and the jury. 

Id., at 145-46, 99 S.Ct. at 2695; quoted in Pickens v. Hollowell, 59 F.3d at 1207. Thus,

the Baker decision provides that where a law enforcement officer has sufficient facts to

constitute probable cause, he does not "have a duty to investigate and decide the

potential viability of a defense" before making an arrest. Pickens, 59 F.3d at 1207. 

FLA. STAT. §843.17 was enacted in 1972, as Plaintiff has argued. Plaintiff asserts

that the statute was not applicable to him because the posting was not malicious or

done with the intent to intimidate, hinder, or interrupt the officer's duties. That argument

has been addressed above. The complaint and the probable cause affidavit give rise to

a reasonable inference that Plaintiff violated the statute. Further, a law enforcement

officer need not determine intent where, as here, the other provisions of the statute are

established. Police officers are not expected to be lawyers determining mens rea. See

Drudge v. City of Kissimmee, 581 F.Supp.2d 1176, 1192 (M.D. Fla. 2008) (noting that

where the "assistant state attorney did not notice anything in the statute that would

render it inapplicable," it is a reasonable conclusion for a police officer to not make that

determination either). On its face, the statute reasonably appears to cover the posting

Plaintiff made on the website. Defendants had probable cause, and certainly had

arguable probable cause. Where an officer has conducted a "reasonable investigation"

and, under the totality of the circumstances, has gained knowledge of facts from a

reasonably trust-worthy source that would cause a prudent person to believe the

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suspect has committed a crime, the officer has probable cause. Williamson v. Mills, 65

F.3d 155, 158 (11th Cir. 1995); Bailey v. Board of County Comm'rs of Alachua County,

956 F.2d 1112, 1119 (11th Cir.), cert. denied, 506 U.S. 832 (1992). Here, there was

probable cause to arrest Plaintiff based on the information obtained. Probable cause

vitiates any Fourth Amendment claim. The false arrest claim must be dismissed. 

Count IV, malicious prosecution

The only prosecution alleged is the prosecution for violating FLA. STAT. § 843.17. 

Florida law governs a § 1983 claim based on malicious prosecution.5

 Eidson v.

Arenas, 910 F. Supp. 609, 613 (M.D. Fla. 1995); Uboh v. Reno, 141 F.3d 1000,

1004 (11th Cir. 1998). Under Florida law, to prevail in a malicious prosecution

action a plaintiff must establish: (1) an original criminal or civil judicial proceeding

was commenced against the plaintiff; (2) the defendant was the legal cause of the

original proceeding against the plaintiff; (3) a bona fide termination of the original

proceeding in favor of the plaintiff; (4) an absence of probable cause for the original

proceeding; (5) the presence of malice on the part of the defendant; and (6) the

plaintiff suffered damage as a result of the original proceeding. Alamo Rent-A-Car,

Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (emphasis added); see also

Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct. 2364, 2371, 129 L. Ed. 2d 383

(1994) (finding "[o]ne element that must be alleged and proved in a malicious

prosecution action is termination of the prior criminal proceeding in favor of the

accused."). A plaintiff's inability to satisfy any one of these six elements defeats the

5

 The right to be free from malicious prosecution is founded upon the Fourth

Amendment. Uboh v. Reno, 141 F.3d 1000, 1003 (11th Cir. 1998).

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action. Alamo, 632 So. 2d at 1355; Scozari v. Barone, 546 So. 2d 750, 751 (Fla. 2d

DCA 1989). Since probable cause existed for issuance of the arrest warrant and

prosecution of Plaintiff, the malicious prosecution claim fails. 

Additionally, demonstration of the bona-fide termination requirement also

precludes this claim. The "favorable termination" element may be satisfied either by

a favorable decision "on the merits" or a bona fide termination of the proceedings. 

Union Oil of California Amsco Div. v. Watson, 468 So. 2d 349, 353 (Fla. 3d DCA

1985). "Bona fide" means "the termination was not bargained for6

 or obtained by the

accused upon a promise of payment or restitution." Union Oil, 468 So. 2d at 353, n.

3; Freedman v. Crabro Motors, Inc., 199 So. 2d 745 (Fla. 3d DCA 1967). In criminal

cases, it is well established that only terminations indicating "that the accused is

innocent" are considered favorable. Uboh, 141 F.3d at 1004, citing Hilfirty v.

Shipman, 91 F.3d 573, 580 (3rd Cir.1996); Taylor v. Gregg, 36 F.3d 453, 456 (5th

Cir. 1994). "Similarly, courts have refused to permit a finding of favorable

termination where the stated basis for the dismissal of criminal charges has been 'in

the interests of justice' . . . or where a conviction has been reversed and the cause

expressly remanded for retrial." Uboh, 141 F.3d at 1004-05, citing Brandley v.

Keeshan, 64 F.3d 196, 199 (5th Cir.1995). 

Here, the original charges were dismissed, refiled, and ultimately dismissed

on speedy trial grounds. Dismissal on speedy trial grounds does not indicate that

6

 If "the bargaining constitutes nothing more than a promise to pay what was

offered before the charges were brought, and the negotiations reflect the accused's

innocence, then the termination would still be bona fide." Alamo, 632 So. 2d at 1356.

Case No. 4:10cv272-SPM/WCS
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Plaintiff was innocent, and, therefore, is not a circumstance that constitutes

favorable termination.

Count IV, retaliation

Plaintiff's claim is that his arrest was made because of a retaliatory motive of

Defendant Garrett. Even if Garrett had a retaliatory motive, this First Amendment claim

of retaliatory prosecution since there was a probable cause for the arrest. Wood v.

Kesler, 323 F.3d 872, 881 (11th Cir. 2003) (holding there is no Fourth Amendment claim

separate from a false arrest or malicious prosecution claim, and that a "retaliatory

prosecution claim [is] defeated by the existence of probable cause"); see also Hartman

v. Moore,

7

 547 U.S. 250, 260, 126 S.Ct. 1695, 1704 (2006) (noting that "action colored

by some degree of bad motive does not amount to a constitutional tort if that action

would have been taken anyway."). Furthermore, there are no allegations which provide

plausible facts to show that Defendant Garrett's subjective motive was the motivating

force behind Defendant Dilmore's investigation. Even without the defense of qualified

immunity, this claim fails.

7

 This case also points out the difficulty in demonstrating a causal connection

between the retaliatory animus of law enforcement and the decision by a prosecutor to

initiate criminal proceedings. Hartman, 547 U.S. 250, 261-265. Whether or not a

retaliatory motive existed by the police, an independent assistant state attorney found

enough probable cause to initiate the criminal proceedings against Plaintiff. Moreover,

as Plaintiff has pointed out, his state prosecution involved three different assistant state

attorneys who pursued the prosecution against Plaintiff. Doc. 37, p. 5.

Case No. 4:10cv272-SPM/WCS
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Count IV, abuse of process

Plaintiff's claim for "abuse of process" is not well defined or explained by Plaintiff,

but seems to be the same as the malicious prosecution claim.8 See doc. 37, p. 8. It

fails for the reasons set forth above. 

Count IV, conspiracy

Plaintiff alleged in count V that all Defendants were acting "in concert to violate"

Plaintiff's constitutional rights. Doc. 6, pp. 32-33. Defendants seek dismissal of this

claim based on the "intracorporate conspiracy doctrine."9 Doc. 33, pp. 17-18. "T]he

intracorporate conspiracy doctrine holds that acts of corporate agents are attributed to

the corporation itself, thereby negating the multiplicity of actors necessary for the

formation of a conspiracy." McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036

(11th Cir. 2000) ( en banc), quoted in Grider v. City of Auburn, 618 F.3d 1240, 1261

(11th Cir. 2010). The doctrine provides that a "corporation cannot conspire with its

employees, and its employees, when acting in the scope of their employment, cannot

conspire among themselves." McAndrew, 206 F.3d at 1036, quoted in Grider, 618 F.3d

at 1261. The doctrine applies to public entities such as a city and its employees. 

Denney v. City of Albany, 247 F.3d 1172, 1190-91 (11th Cir. 2001) (holding that where

the "only two conspirators identified" were both City employees, the intracorporate

conspiracy doctrine barred plaintiffs' § 1985 conspiracy claims), citing Dickerson v.

8 See Uboh v. Reno, 141 F.3d 1000, 1003, n. 4 (11th Cir. 1998) (a malicious

prosecution claim is cognizable under the Fourth Amendment, similar to a false arrest

claim).

9

 It is probably unnecessary to reach this issue since Defendants have qualified

immunity and the individual federal claims that might have been the object of a

conspiracy have not been alleged sufficiently. 

Case No. 4:10cv272-SPM/WCS
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Alachua County Comm'n, 200 F.3d 761, 768 (11th Cir. 2000); see also Rehberg v.

Paulk, 611 F.3d 828, 854 (11th Cir. 2010) (stating that "intracorporate conspiracy

doctrine bars conspiracy claims against corporate or government actors accused of

conspiring together within an organization"). As was the case in Grider v. City of

Auburn, 618 F.3d at 1262, because Defendants Garrett and Dilmore are law

enforcement officers and "empowered precisely to prosecute violations of law," and

because they are employed by the same entity, the conspiracy claims against them are

barred by the intracorporate conspiracy doctrine. The motion to dismiss should be

granted on this claim as well.

Count VII, RICO claim

Count VII is a claim for racketeering brought pursuant to 18 U.S.C. § 1961.10 To

establish a federal civil RICO violation, a must plaintiff allege four elements: "(1) conduct

(2) of an enterprise (3) through a pattern (4) of racketeering activity." Williams v.

Mohawk Indus., Inc., 465 F.3d 1277, 1282 (11th Cir. 2006) (internal quotation marks

omitted), quoted in Edwards v. Prime, Inc., 602 F.3d 1276, 1291-92 (11th Cir. 2010). 

Plaintiff alleges no facts which supply the necessary "conduct" as defined in § 1961. 

Moreover, a "pattern" must be "at least two distinct but related predicate acts." Mohawk

Indus., Inc., 465 F.3d at 1283, quoting Maiz v. Virani, 253 F.3d 641, 671 (11th Cir.

2001). Plaintiff does not allege a pattern of conduct. The motion to dismiss this claim

should be granted as well.

10 "Racketeering activity" is defined in 18 U.S.C. § 1961 as "any act or threat

involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in

obscene matter, or dealing in a controlled substance or listed chemical . . . " and other

acts related to bribery, theft, fraud, obstruction, and other such activity. 

Case No. 4:10cv272-SPM/WCS
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Counts I, II, VI, VIII, IX, and X, state law claims

The court has discretion to dismiss the remaining state law claims since the

federal claims should be dismissed. Nevertheless, Defendants should not be put to the

time or expense of again defending these claims in state court. As will be explained,

the Court should dismiss the remaining state law claims as presented in counts I, II, VI,

VIII, IX, and X because they fail to state a claim upon which relief may be granted.

Counts I and II of the amended complaint are claims for negligence and gross

negligence against the individual Defendants. Defendants seek dismissal pursuant to

Florida statute § 768.28(9)(a) contending that this state law provides immunity from suit

because Defendants "were acting within the scope of their duties as employees of the

City of Tallahassee . . . ." Doc. 33, p. 6. 

Section 768.28 is not so broad as has been suggested. Subsection 9(a) of §

768.28 does not absolutely grant immunity for a city police officer. Rather, the

statute actually provides that an officer, employee or agent of the State is not

"personally liable in tort . . . unless such officer, employee, or agent acted in bad faith

or with malicious purpose or in a manner exhibiting wanton and willful disregard of

human rights, safety, or property." FLA. STAT. § 768.28(9)(a). Thus, an officer may

be personally liable if he or she acted "outside the course and scope of his or her

employment" or committed the act "in bad faith or with malicious purpose or in a

manner exhibiting wanton and willful disregard of human rights, safety, or property." 

Id. 

Counts I and II, however, do not allege facts from which it might plausibly be

concluded that Defendants acted in bad faith or malice. Plaintiff alleged in count I of

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the amended complaint that Defendants owed Plaintiff "a duty of care . . . with

respect to conducting constitutional criminal investigations." Doc. 6, p. 24. Plaintiff,

however, fails to identify any constitutional violation made in the investigation. 

Plaintiff contends that Defendants breached their duties by "failing to conduct

the duties of their positions with reasonable care; failing to establish and implement

proper policies, procedures and protocols governing the investigation . . . ." Id., at

24-25. These are unsupported legal conclusions. There is no allegation of fact

showing how or why either Defendant failed to take reasonable care in conducting a

criminal investigation. 

Plaintiff also asserts that his arrest was based on Defendant Dilmore's false

police report, and was an act of "vengeance" by Defendants Garrett and Dilmore. 

Plaintiff does not, however, identify any false statement; rather he states his own

belief that the report must have been fabricated because it referred to the "tracing"

of a computer, but there had been no search and seizure of a computer. Doc. 6, p.

14; see also doc. 37, p. 2.11 As explained above, the location of a computer, and

subscriber information about the computer, were obtained through law enforcement

investigation, not by seizing the computer. Further, Plaintiff has not shown that

either Defendant falsified allegations concerning his violation of § 843.17. There is a

significant difference between false allegations of fact and allegations of a violation

of a statute that later is found to be unconstitutional. Count I fails to state a claim for

negligence under FLA. STAT. § 768.28.

11 Plaintiff misunderstands that a computer's IP address may be traced showing

the location of the computer where a posting originated and there is no need to actually

seize the computer to obtain that information.

Case No. 4:10cv272-SPM/WCS
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Count II is the claim for gross negligence, again related to Plaintiff's allegation

that Defendants owed "a duty of care to Plaintiff with respect to conducting

constitutional criminal investigations." Doc. 6, p. 25. The negligence claim in count I

is insufficient. It is even more apparent that the gross negligence claim in count II

also fails as it requires a higher degree of negligence. Plaintiff has not alleged any

plausible facts to demonstrate either Defendant acted with gross negligence in

conducting the criminal investigations or preparing police reports. Count II should also

be dismissed for failure to state a claim. 

Count VI is a state law claim for false arrest and imprisonment, malicious

prosecution, and abuse of power. Under Florida law, probable cause is an affirmative

defense to such claims. Ball v. City of Coral Gables, 548 F. Supp. 2d 1364 (S.D. Fla.

2008). Defendants had probable cause. Moreover, Plaintiff alleged that he was

"unlawfully detained . . . without lawful authority, without valid legal process . . . ." Doc.

6, pp. 33-34. That is incorrect as an arrest warrant was signed by State Judge Aikens. 

Count VIII against Garrett is a duplicative claim for malicious prosecution. It

should be dismissed for the reasons provided above.

Count IX is a state law claim for "defamation, libel, slander, harassment." Doc. 6,

pp. 37-38. The basis for this claim is that Defendants made "false statements in

complaints and reporting to the law enforcement agency, and/or attempts at judicial

proceedings. . . Id. "Public officials who make statements within the scope of their

duties are absolutely immune from suit for defamation." Stephens v. Geoghegan, 702

So.2d 517, 522 (Fla 2d DCA 1997). In upholding this immunity, the Stephens court

quoted the justification for the grant of immunity as stated by the Florida Supreme

Case No. 4:10cv272-SPM/WCS
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Court, that it is "in the end better to leave unredressed the wrongs done by dishonest

officers than to subject those who try to do their duty to the constant dread of

retaliation." McNayr v. Kelly, 184 So.2d 428, n.12 (Fla. 1966). This privilege extends to

police officers. Cassell v. India, 964 So.2d 190, 194 (Fla. 4th DCA., 2007). Defendants'

motion to dismiss each of these repetitive claims should be granted because they have

absolute immunity from suit for statements made within the scope of their duties. 

Count X, the loss of consortium claim fails because it is a derivative claim that

belongs to the spouse of the injured party, and not the injured person. See Food Fair,

Inc. v. Anderson, 382 So.2d 150, 155 (Fla. 5th DCA, 1980); Pavolini v. Bird, 769 So.2d

410, 413 (Fla. 5th DCA 2000). 

Conclusion

It is respectfully RECOMMENDED that Defendants' motion to dismiss, doc. 34,

be GRANTED, and all claims against Defendants Garrett and Dilmore in Plaintiff's

amended complaint, doc. 6, be DISMISSED with prejudice. It is further

recommended that if this report and recommendation and the last report and

recommendation, doc. 45, are adopted, that the court direct the Clerk to enter

judgment for Defendants.

IN CHAMBERS at Tallahassee, Florida, on January 6, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Case No. 4:10cv272-SPM/WCS
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A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv272-SPM/WCS