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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENNETH JEROME SILER,

Plaintiff,

vs. CASE NO. 3:10-cv-289/RS-EMT

Officer JOSEPH FLOYD of the

Crestview Police Department and

Chief BRIAN MITCHELL of the 

Crestview Florida Police Department,

Defendants.

_________________________________________/

ORDER

Before me is Defendants‟ motion to dismiss (Doc. 10). 

I. STANDARD OF REVIEW

In order to overcome a motion to dismiss, a plaintiff must allege enough 

facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). Granting a motion to dismiss is 

appropriate if it is clear that no relief could be granted under any set of facts that 

could be proven consistent with the allegations of the complaint. Hishon v. King & 

Spalding, 467 U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all 

allegations in the complaint as true and in the light most favorable to the plaintiff. 

Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 
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1310 (11th Cir. 2000), citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 

1229 (11th Cir. 1999). 

II. BACKGROUND

I accept the facts in the light most favorable to Plaintiff. See Galvez v. 

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d 

1340, 1343 n.1 (11th Cir. 2002)). “„All reasonable doubts about the facts should 

be resolved in favor of the non-movant.‟” Id. (quoting Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684 

F.2d 1365, 1368-69 (11th Cir. 1982).

Plaintiff is a Crestview, Florida, resident. Defendant Floyd is an officer with 

the Crestview Police Department, and Defendant Mitchell is the Chief of Police of 

the Crestview Police Department. During 2008, Plaintiff publicly spoke out in the 

Crestview community concerning Crestview Police Department officers‟ treatment 

of black citizens and use of excessive force during arrests. On February 11, 2008, 

Plaintiff filed an official complaint with the Crestview Police Department alleging 

misconduct by Floyd. The Crestview Police Department conducted an 

investigation of the complaint, but ultimately determined that the complaint was 

unfounded. Following Plaintiff‟s complaint, Plaintiff alleges he became a target of 

harassment by Floyd.
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Plaintiff alleges that Floyd and other members of the Crestview Police 

Department began to enter his property without permission for the sole purpose of 

observing what minority citizens were doing on Plaintiff‟s property. Plaintiff told 

Floyd that Floyd did not have permission to enter onto Plaintiff‟s property, 

especially without information to justify a criminal investigation or an arrest for 

criminal conduct. On April 29, 2008, Floyd drove his vehicle onto Plaintiff‟s 

property without Plaintiff‟s permission and without sufficient information to justify 

either a criminal arrest or investigation. Plaintiff, upon learning of Floyd‟s 

presence on his property, went to the property and parked his vehicle behind 

Floyd‟s vehicle. Plaintiff asked Floyd why he was on Plaintiff‟s property, and 

Floyd then ordered Plaintiff to move his vehicle or be arrested. Floyd then left 

Plaintiff‟s property and applied for an arrest warrant for Plaintiff on the same date. 

Floyd completed a police report concerning this incident that failed to 

document all of the facts and contained misleading and false information. The 

police report was provided to the Magistrate Judge who issued the arrest warrant 

and to the State Attorney‟s Office for the purpose of prosecuting the Plaintiff. The 

criminal case was ultimately dismissed by the State Attorney‟s Office on 

November 3, 2008. 

On August 29, 2008, Plaintiff was walking with his daughter on Main Street 

in Crestview, Florida. An ambulance and emergency medical technicians were
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rendering aid to a man sitting on a park bench on the opposite side of Mains Street 

from where Plaintiff was walking. Crestview Police officers were also present. 

Plaintiff then observed Floyd, who was out of uniform and driving his 

personal vehicle, run a stop sign on Main Street near the ambulance. Plaintiff told 

Floyd that he had seen Floyd run the stop sign. Floyd then crossed the street to 

where Plaintiff was standing and demanded Plaintiff leave the area. Plaintiff told 

Floyd that he was lawfully present on a public sidewalk and that Floyd had no 

authority to tell him to leave. Floyd then placed his hand on Plaintiff‟s chest and 

attempted to push Plaintiff. Plaintiff removed Floyd‟s hand from his chest. Floyd 

then arrested Plaintiff for felony battery on a police officer, based on Plaintiff‟s 

action of removing Floyd‟s hand from his chest. Plaintiff told Floyd that he had no 

right to arrest him, and Floyd then arrested Plaintiff for resisting arrest in addition 

to battery on a police officer. 

Floyd completed a police report about this incident that failed to document 

all of the facts and contained misleading and false information. This police report 

was provided to the State Attorney‟s Office for prosecution of Plaintiff. Floyd also

gave false and misleading testimony during a sworn deposition about this incident. 

Plaintiff‟s criminal counsel filed a motion to dismiss the two criminal charges, 

which was granted by the judge in the criminal case. 
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Plaintiff has filed a complaint with seven counts, alleging violation of his 

civil rights under the Fourth Amendment, violation of his civil rights to due 

process, battery, false imprisonment, and malicious prosecution. Defendants now 

seek dismissal of all of Plaintiff‟s claims.

III. ANALYSIS

Count I

Count one is a civil rights claim against Defendant Floyd for violation of 

Plaintiff‟s Fourth Amendment rights. Defendant Floyd seeks dismissal of count 

one, arguing that he is entitled to qualified immunity. Qualified immunity is a 

shield against liability for government actors, prohibiting “civil damages for torts 

committed while performing discretionary duties unless their conduct violates a 

clearly established statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 

1324, 1329 (11th Cir. 2008); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

Qualified immunity “„allow[s] 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.‟” Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007) (quoting Lee v. 

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). “Qualified immunity is „an 

immunity from suit rather than a mere defense to liability . . . .‟” Scott v. Harris, 
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127 S. Ct. 1769 n.2 (2007) (quoting (Mitchell v. Forsyth, 472 U.S. 511, 526 

(1986).

Qualified immunity requires a three-step inquiry. First, the defendant public 

official must prove that “„he was acting within the scope of his discretionary 

authority when the allegedly wrongful acts occurred.‟” Courson v. McMillan, 939 

F.2d 1479 (11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th 

Cir. 1988). Once the defendant public official has satisfied his burden, the burden 

shifts to the plaintiff and the second step is to answer the question whether “[t]aken 

in the light most favorable to the party asserting the injury, do the facts alleged 

show [that Defendant‟s] conduct violated a constitutional [or statutory] right?” 

Hadley, 526 F.3d at 1329 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). If

the answer to the first question is “yes,” the next question is “whether the right, be 

it constitutional or statutory, was clearly established.” Id. In Pearson v. Callahan, 

129 S. Ct. 808 (2009), the Supreme Court reaffirmed the established standard for 

qualified immunity, but held that courts are no longer required to conduct the 

analysis in the order articulated in Saucier, leaving the order of analysis of the two 

prongs to the sound discretion of the court. For the purposes of this case, I will 

analyze the facts in the order required by Saucier. 

Discretionary Authority
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The Eleventh Circuit has indicated that a government official can prove that 

he is acting within his discretionary authority by showing “„objective 

circumstances which would compel the conclusion that his actions were 

undertaken pursuant to the performance of his duties and within the scope of his 

authority.‟” Rich, 841 F.2d at 1564 (quoting Barker v. Norman, 651 F.2d 1107, 

1121 (5th Cir. 1981). The facts alleged in Plaintiff‟s complaint indicate that Floyd 

was off duty, out of uniform, in his personal vehicle, and confronted Plaintiff as a 

result of personal animosity between the two individuals, not as a result of a lawful 

duty. Therefore, Defendants have failed to satisfy their burden of demonstrating 

that Floyd was acting “within the scope of [his] discretionary authority when the 

allegedly wrongful acts occurred.” Zeigler v. Jackson, 716 F.2d 847, 849 (11th 

Cir. 1983).

Violation of a Constitutional Right

However, even if Floyd had been acting within the scope of his discretionary 

authority, his claim for qualified immunity would still fail when considering the 

other Saucier factors. In the next steps of the qualified immunity analysis, a court 

must determine whether the plaintiff has alleged a violation of a constitutional 

right, and then whether that right was clearly established. Hadley, 526 F.3d at 

1329 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001))
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Plaintiff has sufficiently alleged a violation a constitutional right in alleging

that he was arrested without probable cause. The Fourth Amendment protects 

individuals from unreasonable searches and seizures, and an arrest without 

probable cause clearly violates this Fourth Amendment right. Durrithy v. Pastor, 

351 F.3d 1080, 1088 (11th Cir. 2003) (citing Redd v. City of Enterprise, 140 F.3d 

1378, 1382 (11th Cir. 1998)).

The Eleventh Circuit has concluded that the standard for determining the 

existence of probable cause is the same under both Florida and federal law –

whether “„a reasonable man would have believed [probable cause existed] had he 

known all of the facts known by the officer.‟” Rankin v. Evans, 133 F.3d 1425, 

1433 (11th Cir. 1998) (quoting United States v. Ulrich, 580 F.2d 765, 769 (5th Cir. 

1978)). A plaintiff bears the burden of demonstrating the absence of probable 

cause in order to succeed in his § 1983 claim. Rankin, 133 F.3d at 1436. Probable 

cause “constitutes an absolute bar to both state and § 1983 claims alleging false 

arrest . . .” Id. at 1435. Furthermore, “officers who make an arrest without 

probable cause are entitled to qualified immunity if there was arguable probable 

cause for the arrest.” Kingsland v. City of Miami, 382 F. 3d 1220, 1232 (11th Cir. 

2004) (citing Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999). Arguable 

probable cause exists if reasonable officers in the same circumstances and 
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possessing the same knowledge as the Defendants could have believed that 

probable cause existed to arrest Plaintiff. Id.

Plaintiff was arrested by Floyd for the charges of battery on a law 

enforcement officer and resisting arrest. Both of these charges require that the 

officer be engaging in the lawful execution of a legal duty at the time the battery or 

resistance occurred. See Fla. Stat. § 843.02, § 843.01, and § 784.07(2). Under 

Plaintiff‟s version of the facts, Floyd was not engaged in the lawful performance of 

his duties when he confronted Plaintiff and ordered him to leave the area, but 

instead was angry at Plaintiff due to personal animosity that existed between the 

two men and Plaintiff‟s comments to Floyd that he had seen Floyd run a stop sign. 

Furthermore, Floyd was off-duty, in his personal vehicle, and out of uniform, and 

there were already other police officers present handling the situation with the man 

on the park bench, making Floyd‟s presence at the scene unnecessary. Because 

Floyd was not engaged in the lawful performance of his duties when Plaintiff 

touched him and when Plaintiff told Floyd he had no right to arrest him, a 

reasonable officer would not have even arguable probable cause to arrest Plaintiff 

for battery on a law enforcement officer or for resisting an officer. Therefore, 

Plaintiff has satisfied the second prong of the Saucier qualified immunity analysis.

Clearly Established Right
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Qualified immunity does not apply where a governmental official engages in 

conduct that violates clearly established statutory or constitutional rights. Bashir v. 

Rockdale County, 445 F.3d 1323, 1327 (11th Cir. 2006). The right to be free from 

arrest without probable cause is a clearly established right. “Plainly, an arrest 

without probable cause violates the right to be free from an unreasonable search 

under the Fourth Amendment.” Durrithy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 

2003) (citing Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998)). 

Therefore, the third prong of the qualified immunity analysis has been satisfied and 

no further inquiry is necessary. Defendant Floyd is not entitled to qualified 

immunity or dismissal of count one.

Counts II & III

Counts two and three allege Floyd violated Plaintiff‟s right to due process 

when he arrested Plaintiff without probable cause on April 29, 2008, and August 

29, 2008, and when Floyd prepared arrest affidavits and offense reports for these 

arrests that contained false and misleading information. The Constitution prohibits 

a police officer from knowingly making false statements in an arrest affidavit 

about the probable cause for an arrest in order to detain a citizen. Jones v. Cannon, 

174 F.3d 1271, 1285 (11th Cir. 1999). Furthermore, qualified immunity will not 

shield an officer from liability for such false statements if they were necessary to 
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the probable cause. Id. Therefore, dismissal is not appropriate on Plaintiff‟s due 

process claims.

Count IV

Count four is a claim against Defendant Mitchell in his official capacity for 

civil rights violations. Plaintiff does not cite a statutory or constitutional ground 

for this claim, but for civil rights claims under 42 U.S.C. § 1983, a municipality 

may be liable for the actions of a police officer only when the municipal “official 

policy” causes a constitutional violation. Harvey v. City of Stuart, 296 Fed. Appx. 

824, 826 (11th Cir. 2008). A plaintiff must identify a municipal “policy” or 

“custom” that caused his injury; vague and conclusory allegations are insufficient. 

Id. Furthermore, § 1983 does not provide for vicarious liability against 

supervisors. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). 

Supervisors are only liable under § 1983 “when the supervisor personally 

participates in the alleged constitutional violation or when there is a causal 

connection between actions of the supervising official and the alleged 

constitutional violation.” Id. (citing Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th 

Cir. 2003)(other citations omitted)). 

In the instant case, Plaintiff‟s complaint fails to identify a specific policy or 

custom that caused a constitutional violation. The only specific incidents alleged

by Plaintiff are the two times he was arrested, but a handful of violations do not 
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rise to the level of a department “custom”. Whittier v. City of Sunrise, 2010 WL 

3548494 *1 (11th Cir. 2010) (not selected for publication). Plaintiff‟s other 

allegations are vague and conclusory. Furthermore, even under Plaintiff‟s version 

of the facts, there appears to be no connection between Mitchell‟s actions as police 

chief and the actions of Floyd against Plaintiff. Therefore, even under Plaintiff‟s

version of the facts count four fails as a matter of law. Accordingly, it is

dismissed.

Count V

Count five is a state law battery claim against Defendant Floyd. Fla. Stat. § 

784.03 defines battery as actually and intentionally touching another person against 

their will. The facts alleged in the complaint are sufficient to support this claim 

and dismissal is not appropriate.

Count VI

Count six is a state law false imprisonment claim against both Floyd and 

Mitchell. Defendants argue that this claim is barred by the existence of probable 

cause to arrest Plaintiff. See Mathis v. Coats, 24 So.3d 1284, 1287 (Fla. 2d DCA 

2010). Sufficient probable cause to justify an arrest exists where the facts and 

circumstances allow a reasonable officer to conclude that an offense has been 

committed, and requires an examination of the totality of the circumstances. Id. 
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Here, Plaintiff was initially arrested for battery on a law enforcement officer. 

Pursuant to Fla. Stat. § 784.07(2) the officer must be “engaged in the lawful 

performance of his or her duties” at the time of the battery. S.D. v. State. 11 So.3d

401, 402 (Fla. 3d. DCA 2009). Plaintiff alleges that Floyd was not engaged in the 

lawful performance of his duties when he confronted Plaintiff and ordered him to 

leave the area, but instead was angry at Plaintiff due to personal animosity that 

existed between the two men and Plaintiff‟s comments to Floyd that he had run the 

stop sign. Therefore, because under Plaintiff‟s version of the facts Floyd was not 

engaged in the lawful performance of his duties when Plaintiff touched him, there 

was not probable cause to arrest Plaintiff for battery on a law enforcement officer. 

Similarly, to prove the offense of resisting an officer, the State must show that the 

officer was engaged in the lawful execution of a legal duty. Fla. Stat. § 843.02; see 

also S.D. v. State. 11 So.3d 401, 402 (Fla. 3d DCA 2009). Therefore, Floyd‟s 

arrest of Plaintiff for resisting an officer also lacked probable cause. Because there 

was no probable cause to arrest Plaintiff, dismissal of count six is not appropriate.

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Count VII

Count seven is a state claim for malicious prosecution against Defendant 

Floyd, arising out of Plaintiff‟s April 29, 2008, arrest. Defendant argues this count 

should be dismissed because probable cause existed to arrest plaintiff for resisting 

 

1 Defendant Mitchell does not raise any grounds for dismissal of count seven for himself individually as a supervisor 

in his official capacity, he only joins with Defendant Floyd in his argument that there was probable cause to arrest

Plaintiff.
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an officer without violence. Again, Fla. Stat. § 843.02 requires that the officer be 

in the lawful execution of a legal duty when the resistance occurred. Plaintiff has 

alleged that Floyd entered his property because of personal animosity toward

Plaintiff, and without Plaintiff‟s permission or sufficient information to justify a 

criminal arrest or investigation. Therefore, because Floyd was not lawfully 

executing a legal duty at the time Plaintiff allegedly resisted him, there was no 

probable cause to arrest Plaintiff and dismissal of count seven is not warranted.

IV. CONCLUSION

IT IS ORDERED:

1. Count four of the complaint is dismissed.

2. The remainder of Defendants‟ motion to dismiss is denied.

ORDERED on December 14, 2010.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE