Gustavo A. Abella v. Officer Hector Valls , 482 F. App'x 522 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16124
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-20152-CMA
GUSTAVO A. ABELLA,
Plaintiff-Appellee,
versus
NANCY SIMON,
individually and as a Miami Lakes Councilwoman, et al.,
Defendants,
OFFICER HECTOR VALLS, individually,
OFFICER RAYMOND DEL VALLE, individually,
OFFICER A. SALAZAR, individually,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 26, 2012)
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Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Officers Hector Valls, Raymond Del Valle, and Alberto Salazar appeal the
denial of their motions to dismiss Gustavo Abella’s pro se complaint based on
qualified immunity. Abella complains of retaliation for exercising his rights under
the First Amendment. 42 U.S.C. § 1983. We vacate and remand with instructions
to dismiss the counts about retaliation in the complaint against Valls, Del Valle,
and Salazar based on qualified immunity.
Abella complains about three actions by the officers following his
protesting of an ordinance proposed by Councilwoman Nancy Simon, reporting of
her to a licensing agency, filing of complaints with the police, and photography of
police conduct. First, Abella’s complaint alleges that Valls refused to file a police
report about the president of Abella’s condominium association “passing out flyers
with libel information against” him. Abella’s complaint alleges that “Valls’s
statement that ‘if Ms. Simon paid this person to pass [t]hese flyers out and . . . has
all the right to do it’ implicates that Officer Valls might have had knowledge of
what was going on.” Second, Abella’s complaint alleges that Del Valle issued a
parking citation to Abella when his car had been in “his parking space” inside his
private condominium complex. Third, Abella’s complaint alleges that Salazar
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issued a parking ticket to Abella when he “pick[ed] up public records [at] Town
Hall and . . . parked in front of the building where there were other cars parked.”
Abella’s complaint alleges that Salazar said he had been ordered to issue the ticket
by Major Frank Bocanegra; Bocanegra “laughed when he saw [Abella]” at Town
Hall; “[a]fter a couple of days” Bocanegra and Captain J. Alongi “reviewed . . .
and decided to rip off the ticket”; and, “[a] few days later,” Salazar said that
“Bocanegra . . . knew how far he could do wrong without getting caught.”
To survive a motion to dismiss, a plaintiff who complains of retaliation for
exercising rights protected by the First Amendment must allege “first, that his
speech or act was constitutionally protected; second, that the defendant’s
retaliatory conduct adversely affected the protected speech; and third, that there is
a causal connection between the retaliatory actions and the adverse effect on
speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). The First
Amendment protects the rights of speech, to petition for redress, U.S. Const.
Amend. I; United Mine Workers of Am. v. Ill. State Bar Ass’n, 389 U.S. 217, 222,
88 S. Ct. 353, 356 (1967), and to photograph police activities, Smith v. City of
Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). To establish a causal
connection, the plaintiff must allege that the protected conduct was the
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“motivating factor behind the defendants’ actions.” Smith v. Mosley, 532 F.3d
1270, 1278 (11th Cir. 2008).
Abella’s complaint fails to allege that Valls, Del Valle, or Salazar retaliated
against Abella for exercising his rights under the First Amendment. Abella’s
complaint alleges that Valls only “might have had knowledge” of an alleged
scheme to stifle Abella’s protected conduct. See id. And Abella’s complaint does
not allege that his protected conduct motivated Del Valle to issue the parking
citation. See id. Although Abella’s complaint alleges that Salazar knew
Bocanegra was bent on harassing Abella, those facts fail to establish that Salazar
ticketed Abella in retaliation for his protected conduct. See id. The district court
erred when it based its decision on the collective actions of all defendants instead
of deciding whether these three officers were entitled to qualified immunity based
on the allegations about each of them. Valls, Del Valle, and Salazar are entitled to
dismissal of the three counts about retaliation in the complaint against them based
on qualified immunity.
We VACATE that portion of the order that denied the motions to dismiss of
Valls, Del Valle, and Salazar, and we REMAND with instructions to dismiss the
counts about retaliation in the complaint against the three officers based on
qualified immunity.
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VACATED AND REMANDED WITH INSTRUCTIONS.
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