Leda Foreman v. City of Port St. Lucie , 294 F. App'x 554 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12562 September 25, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 07-14036-CV-KMM
LEDA FOREMAN,
WILLIAM FOREMAN,
Plaintiffs-Appellants,
versus
CITY OF PORT ST. LUCIE,
DOMINICK MESITI,
individually and in his official capacity,
ROBERT BRANDO,
individually and in his official capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 25, 2008)
Before MARCUS, WILSON and COX, Circuit Judges.
PER CURIAM:
I. Factual Background
We review a dismissal for failure to state a claim; we summarize briefly the
following relevant facts taken from the Plaintiffs’ Amended Complaint. There
was a dispute between neighbors in the City of Port St. Lucie (“Port St. Lucie”).
When police officers Robert Brando and Dominick Mesiti arrived at the scene,
one neighbor’s worker told the officers that Leda Foreman had argued with him
and used a BB gun at a target in her backyard. (R.2-67 at 3.)
Brando searched the Foremans’ garage and backyard and found a BB gun.
When Mr. Foreman approached Brando to discuss the incident, Brando pointed
the empty BB gun at Mr. Foreman and pulled the trigger. Mrs. Foreman watched
this incident but did not know the BB gun was empty. (Id. at 3-4.) Brando then
applied for a warrant for the arrest of Mrs. Foreman, which was issued by the
magistrate. The warrant was based on a violation of Port St. Lucie Ordinance
Section 130.01 (“Ordinance”) which prohibits the discharge of any air gun within
the city limits. (Id. at 4-5.)
Brando then called Mrs. Foreman on the phone and informed her that an
Arrest Affidavit had been issued for her violation of the Ordinance, and Mrs.
Foreman surrendered herself to the St. Lucie County jail the next day. (R.2-67 at
4-6.)
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The St. Lucie County State Attorney’s office eventually declined to
prosecute Mrs. Foreman based on her violation of the Ordinance. (Id. at 8.)
II. Procedural History
The Foremans brought suit against Port St. Lucie and also against Mesiti
and Brando in their individual and official capacities. The Amended Complaint
seeks relief on seven claims (R.2-67 at 10-19): Count I is Mrs. Foreman’s § 1983
claim for false imprisonment and false arrest against Mesiti and Brando; Count II
is Mrs. Foreman’s § 1983 claim against Port. St. Lucie for a policy of allowing
false arrests under the Ordinance; Count III is Mr. Foreman’s assault claim against
Brando; Count IV is Mrs. Foreman’s negligent training claim against Port St.
Lucie; Count V is Mrs. Foreman’s intentional infliction of emotional distress
claim against Brando; Count VI is Mr. Foreman’s loss of consortium claim against
Port St. Lucie, Brando, and Mesiti; and Count VII is Mrs. Foreman’s malicious
prosecution claim against Brando and Mesiti.
The Defendants filed a motion to dismiss for failure to state a claim. The
district court adopted the report and recommendation of the magistrate judge and
dismissed all but the assault claim.1 (R.2-98 at 1-2.) The district court held that
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The assault claim was dismissed on summary judgment and Mr. Foreman does not challenge
that judgment. (R.2-101 at 3-4.)
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the Ordinance was valid (R.2-92 at 4), that the facts alleged in the Amended
Complaint gave probable cause for the arrest (id. at 4-9), and that the facts alleged
in the Amended Complaint did not make out a claim for intentional infliction of
emotional distress (id. at 9-10).
The Foremans appeal the dismissal of their claims. They argue first that the
district court erred in applying a heightened pleading standard to their motion to
dismiss and thus erroneously dismissed all seven Counts. Second, they argue that
the district court erred in holding that the Ordinance was valid, and accordingly
erred in dismissing part of Count 1 and all of Count 2. Third, the Foremans argue
that the district court erred in holding that probable cause existed, and thus erred
in dismissing the remainder of Count 1, and all of Counts 4, 6, and 7. Finally, the
Foremans argue that their complaint did allege sufficient facts to state a claim for
intentional infliction of emotional distress, and so the district court erred in
dismissing Count 5.
The Foremans also appeal the district court’s order striking their expert
witnesses. Because we affirm the dismissal of all the Foremans’ claims, we do not
address this issue.
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III. Discussion
A. The Ordinance is valid in its regulation of BB guns.
Mrs. Foreman argues Fla. Stat. § 790.33 preempts the Ordinance banning
the discharge of an air gun in the city limits of Port St. Lucie. Specifically, Mrs.
Foreman argues that the Ordinance is void because Fla. Stat. § 790.33 preempts
the whole field of firearm and ammunition regulation, and states that any city,
county, or other municipal ordinance regulating firearms and ammunition is void.
While it is true that Fla. Stat. § 790.33 does preempt municipal regulation of
firearms, a BB gun is not a firearm under Chapter 790 of the Florida Statutes. Petz
v. State, 917 So.2d 381, 383 (Fla Dist. Ct. App. 2005).
The Foremans also argue that because the Ordinance does regulate some
firearms, the preemption provision of Fla. Stat. § 790.33 renders the entire
Ordinance invalid since the Ordinance does not contain a severability clause.
Florida law, however, allows severability absent a severability clause. Dade
County v. Keyes, 141 So.2d 819, 821-822 (Fla. Dist. Ct. App. 1962).
Section 790.33 of the Florida Statutes does not preempt a municipal
ordinance regulating BB guns. Accordingly, the district court did not err in
holding that the Ordinance is valid and dismissing part of Count 1 and all of
Count 2.
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B. Defendants had probable cause to arrest Mrs. Foreman.
The Foremans argue that probable cause for the arrest of Mrs. Foreman did
not exist. In particular, the Foremans argue that the information regarding Mrs.
Foreman’s use of a BB gun provided by a neighbor’s worker was insufficient to
create probable cause for her arrest.
Probable cause for an arrest exists when an eyewitness reports witnessing a
crime to police. U.S. v. Bell, 457 F.2d 1231, 1238 (5th Cir. 1972).
Here, the Foremans’ Amended Complaint alleges that “Both officers were
informed by a worker at the a [sic] neighbor’s home that LEDA FOREMAN had
started a verbal dispute with him and used a BB gun at a target displayed in her
backyard.”2 (R.2-67 at 3.) Because the Amended Complaint alleges that an
eyewitness reported the discharge of a BB gun, which is a crime under the
Ordinance, probable cause existed to arrest Mrs. Foreman. Accordingly, the
district court did not err in holding that probable cause existed and dismissing the
remainder of Count 1, and all of Counts 4, 6, and 7.
2
The Foremans argue that had they been given an opportunity to amend the Amended
Complaint, they could have alleged facts that would have shown no probable cause existed. A court
is not required to allow a party to amend when the party does not request leave to amend. Wagner
v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).
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C. The Amended Complaint did not state a claim for intentional infliction
of emotional distress.
Mrs. Foreman next argues that the district court erroneously dismissed her
claim for intentional infliction of emotional distress. Specifically, Mrs. Foreman
contends that her Amended Complaint adequately alleges that Brando acted with
intent to cause emotional distress.
While the district court dismissed Mrs. Foreman’s claim for intentional
infliction of emotional distress based on her failure to properly allege that Brando
acted with the necessary intent, we are free to affirm the ruling of a district court
on any ground. Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1355 (11th Cir.
2007). Here, Mrs. Foreman alleges the following facts in support of her
claim for intentional infliction of emotional distress: that Brando pointed an
unloaded BB gun at Mr. Foreman’s chest and pulled the trigger, and that Mrs.
Foreman watched this incident without knowing the BB gun was unloaded. (R.2-
67 at 16-17.) Florida courts use a very high standard in evaluating whether the
facts alleged are sufficiently outrageous to support a claim for intentional
infliction of emotional distress. Metropolitan Life Ins. Co. v. McCarson, 467
So.2d 277, 278 (Fla. 1985). Although Florida case law does not discuss the
viability of an intentional infliction of emotional distress claim based on facts
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similar to those of this case, we conclude that the conduct alleged here is not
“beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Id. at 279 (quoting Restatement
(Second) of Torts § 46 (1965)).
Because Mrs. Foreman has not alleged facts sufficiently outrageous to
satisfy the outrageous conduct element of a claim for intentional infliction of
emotional distress, the district court did not err in dismissing her claim.
D. The district court did not rely on a heightened pleading standard in
dismissing the Foremans’ claims.
The Foremans argue the district court erred in applying a heightened
pleading standard to their case, and accordingly erred in dismissing all counts. We
disagree. The district court dismissed all claims except the intentional infliction of
emotional distress claim based on what was included in the Amended Complaint.
While the district court may have demanded too much of the Amended Complaint
in its dismissal of the intentional infliction of emotional distress claim, we affirm
that dismissal on another ground.
IV. Conclusion
We find no error in the district court’s dismissal of all claims.
AFFIRMED.
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