Timothy Allen Davis, Sr. v. City of Apopka ( 2018 )


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  •           Case: 17-11706   Date Filed: 04/12/2018   Page: 1 of 15
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-11706
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 6:15-cv-01631-RBD-KRS
    TIMOTHY ALLEN DAVIS, SR.,
    Plaintiff - Appellant,
    versus
    CITY OF APOPKA,
    ROBERT MANLEY, III,
    RANDALL FERNANDEZ,
    NICOLE DUNN,
    ANDREW PARKINSON, et al.,
    Defendants - Appellees,
    APOPKA POLICE DEPARTMENT, et al.,
    Defendants.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (April 12, 2018)
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    Before MARCUS, JILL PRYOR and ANDERSON, Circuit Judges.
    PER CURIAM:
    Timothy Allen Davis, Sr. appeals the district court’s order dismissing with
    prejudice his claims against the City of Apopka, Florida, under Federal Rule of
    Civil Procedure 12(b)(6).1 After careful review, we affirm the dismissal in part,
    vacate it in part, and remand for further proceedings.
    I. BACKGROUND
    This case arose out of a domestic dispute between Davis and his adult son,
    Timmy Davis.2 According to Davis’s third amended complaint (“complaint”),
    Timmy attacked and seriously injured Davis in the family’s home. Davis
    attempted to put distance between himself and Timmy, but Timmy pursued him
    through the garage. Davis retrieved a gun from his car while Timmy paced in the
    garage. Timmy then aggressively approached Davis. Davis fired a shot in an
    attempt to scare Timmy, but Timmy continued to advance, so Davis fired again,
    this time hitting Timmy in the chest.
    Davis’s wife called 911 and reported that Davis and Timmy had a
    confrontation and that she believed Davis had shot his son. Minutes later, two
    Apopka Police Department (“APD”) officers, Mark Creaser and Rafael Baez,
    1
    The City is the only defendant that is a party to this appeal.
    2
    The district court’s order granting in part and denying in part the City and individual
    officers’ motions to dismiss thoroughly sets forth the facts as alleged in Davis’s third amended
    complaint. We recount only what is necessary to the disposition of this appeal.
    2
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    arrived on the scene; a few minutes after that, the Chief of Police, Robert Manley,
    III, arrived. Davis was visibly badly hurt and told the officers that he shot Timmy
    “because [he] beat me up and kept coming at me.” Doc. 122 at 9. 3 The gun was
    still in Davis’s pants pocket. At Manley’s direction, Davis was placed under
    arrest.
    Creaser handcuffed Davis, which caused Timmy to exclaim, “[g]et away
    from daddy and leave my daddy alone!” 
    Id. Creaser recovered
    Davis’s gun.
    Davis reiterated to the officers that he shot his son because his son had attacked
    and badly injured him. He explained that he needed medical attention because his
    head was in pain, he had double vision, and he believed he had ruptured his patella
    tendons in his knees. Manley radioed for paramedics and directed that Davis be
    sent to a different hospital than Timmy, who died of his injuries later that night.
    Davis remained hospitalized for several days due to his injuries. His wife
    and minor child also were hospitalized as a precaution. While the whole family
    was hospitalized, APD officers—without a warrant and at Manley’s direction—
    searched Davis’s home and seized certain evidence. After his discharge from the
    hospital, Davis was charged with his son’s murder. Davis was prosecuted for
    second degree murder but acquitted.
    3
    “Doc. #” refers to the numbered entry on the district court’s docket. Doc. 122 is
    Davis’s third amended complaint.
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    Davis sued several individual APD officers, including Manley, as well as the
    City. As relevant to this appeal, Davis alleged that the City was liable under 42
    U.S.C. § 1983 and Monell v. Department of Social Services, 
    436 U.S. 658
    (1978),
    for false arrest (Count I) and the unconstitutional search of his home (Count II).
    Davis also alleged that the City was liable under Florida law for false arrest (Count
    XVIII) and malicious prosecution (Count XXVI). Upon the defendants’ motions,
    the district court dismissed with prejudice all claims against the City. The district
    court denied the individual officers’ motion to dismiss with respect to Davis’s
    § 1983 claim for the unconstitutional search of his home but granted their motion
    as to all other claims. Davis later entered into a confidential settlement agreement
    with the individual officers, and the district court dismissed with prejudice the
    claims that remained.
    This is Davis’s appeal as to his claims against the City.
    II. STANDARD OF REVIEW
    We review dismissals under Rule 12(b)(6) de novo, accepting the factual
    allegations in the complaint as true and construing them in the light most favorable
    to the plaintiff. Am. Dental Ass’n v. Cigna Corp., 
    605 F.3d 1283
    , 1288 (11th Cir.
    2010). To avoid dismissal under Rule 12(b)(6), a plaintiff must plead sufficient
    facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.
    Twombly, 
    550 U.S. 544
    , 570 (2007).
    4
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    Even if the district court erred or failed to address a particular ground, we
    may affirm the district court “on any ground that finds support in the record,”
    Lucas v. W.W. Grainger, Inc., 
    257 F.3d 1249
    , 1256 (11th Cir. 2001) (internal
    quotation marks omitted). But “[t]he matter of what questions may be taken up
    and resolved for the first time on appeal is one left primarily to [our] discretion, . . .
    to be exercised on the facts of individual cases.” Singleton v. Wulft, 
    428 U.S. 106
    ,
    121 (1976); see Clark v. Coats & Clark, Inc., 
    929 F.2d 604
    , 609 (11th Cir. 1991)
    (electing not to consider, in the first instance, whether a party had met its summary
    judgment burden).
    III. DISCUSSION
    Davis contends that the district court erred in dismissing his § 1983 and state
    law claims against the City. Specifically, he argues that the court failed to consider
    his allegation that Manley, as the City’s Chief of Police, was a final policymaker
    for purposes of Monell liability and that the court erroneously hinged the dismissal
    of his false arrest and malicious prosecution claims on the officers’ arguable
    probable cause. We agree with Davis that the district court erred in failing to
    consider Manley’s status as a final policymaker and therefore remand his § 1983
    claim against the City based on the unconstitutional search of his home. We also
    remand his § 1983 and state-law false arrest claims for the district court to decide
    in the first instance whether, in light of Florida’s so-called “Stand Your Ground”
    5
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    law, Fla. Stat. §§ 776.012, 776.032, there was actual probable cause to support
    Davis’s arrest. Finally, we affirm the district court’s dismissal of Davis’s state-law
    malicious prosecution claim.
    A. Unconstitutional Search Claim (Count II)
    Davis challenges the district court’s dismissal of his § 1983 claim against the
    City for the unconstitutional search of his home. Specifically, he argues that the
    district court failed to address his allegation that Manley, as the City’s Chief of
    Police, was a final policymaker such that his order to search Davis’s home without
    a warrant rendered the City liable absent any established custom or practice. We
    agree.
    “When suing local officials in their official capacities under § 1983, the
    plaintiff has the burden to show that a deprivation of constitutional rights occurred
    as a result of an official government policy or custom.” Cooper v. Dillon, 
    403 F.3d 1208
    , 1221 (11th Cir. 2005) (footnote omitted). A “custom is a practice that is so
    settled and permanent that it takes on the force of law,” whereas a “policy is a
    decision that is officially adopted by the municipality, or created by an official of
    such rank that he or she could be said to be acting on behalf of the municipality.”
    Sewell v. Town of Lake Hamilton, 
    117 F.3d 488
    , 489 (11th Cir. 1997). “Only
    those officials who have final policymaking authority may render the municipality
    liable under § 1983” for either a custom or policy. Hill v. Clifton, 
    74 F.3d 1150
    ,
    6
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    1152 (11th Cir. 1996). We look to state and local law to determine whether a
    particular official has final policymaking authority. 
    Cooper, 403 F.3d at 1221
    .
    Under some circumstances, a municipality can be liable for a policy based on “‘a
    single decision by [a] municipal policymaker[].’” 
    Id. (quoting Pembaur
    v. City of
    Cincinnati, 
    475 U.S. 469
    , 480 (1986) (plurality opinion)).
    In his claim against the City, Davis alleged that “the APD, personally and
    directly led by Defendant Chief Manley, unlawfully caused the search of Mr.
    Davis’s home without a valid warrant or exigent circumstances.” Doc. 122 at 33.
    State and local law mandates that the City’s Chief of Police is a final policymaker.
    The Florida Constitution provides that “[m]unicipalities shall have governmental,
    corporate and proprietary powers to enable them to conduct municipal
    government.” Fla. Const. art. VIII, § 2(b). The City has “authorize[d] the Apopka
    Police Chief and the Apopka Police Department as the exclusive agency for
    providing law enforcement services to the residents of the city.” City of Apopka
    Code of Ordinances Sec. 50-2. And “there are other indicia in state law that police
    chiefs in Florida have final policymaking authority in their respective
    municipalities for law enforcement matters.” 
    Cooper, 403 F.3d at 1222
    (citing
    Florida statutes that vest in municipal police chiefs authority to determine police
    procedure for coordinating communication between law enforcement officers and
    to declare states of emergency and assume emergency powers).
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    The district court, rather than addressing Davis’s allegation that the
    warrantless search was conducted upon the direction of the Chief of Police,
    addressed and rejected Davis’s alternative allegation that the City had a custom of
    improper training or permitting the Chief of Police to override established
    protocols and standard operating procedures. But Davis stated a claim for relief
    against the City based on a single decision by a final policymaker. See 
    id. at 1221.
    The City argues that Davis failed to allege in his complaint that Manley was
    a final policymaker and that this omission is fatal to his claim. We are
    unconvinced. The complaint clearly alleged that Manley, as Chief of Police,
    personally directed the warrantless search of the Davis home. The complaint did
    not expressly state that Manley was a final policymaker, but that is in no way fatal
    to Davis’s claim because whether an individual is a final policymaker is a question
    of law, not fact. Jett v. Dallas Indep. Sch. Dist., 
    491 U.S. 701
    , 737 (1989).
    Complaints must allege facts; they are not required to allege conclusions of law.
    
    Twombly, 550 U.S. at 570
    . Moreover, Davis advanced the argument that Manley
    was a final policymaker for purposes of Monell liability in response to the City’s
    motion to dismiss. See Doc. 130 at 17 (“[B]oth Florida state law and local law
    confirms that Chief Manley had final policymaking authority for the City of
    Apopka in matters of law enforcement and thus his actions could subject the city to
    § 1983 liability.”).
    8
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    The district court erred in failing to consider Davis’s allegation that Manley
    was a final policymaker for purposes of § 1983. The district court properly
    concluded that Davis had stated a claim for relief based on his allegation that,
    while he and the rest of his family were hospitalized, the officers entered his home
    without a warrant and without exigent circumstances. Since Davis also alleged
    that Manley, as Chief of Police, personally ordered the search, Davis stated a claim
    against the City for the unconstitutional search of his home. 4
    B. False Arrest Claims (Counts I and XVIII)
    Davis also contends the district court erred in dismissing his federal and
    state-law false arrest claims against the City based on the officers’ arguable
    probable cause to arrest him. He argues that the relevant standard for purposes of
    the City’s liability is actual, not arguable, probable cause and that the officers
    lacked such cause based on Florida’s so-called “Stand Your Ground” law.
    Because Davis is right that the correct standard is actual probable cause and the
    district court did not consider the impact of Florida’s law on whether probable
    cause existed to arrest him, we vacate the district court’s dismissal with prejudice.
    4
    The City is mistaken that the state criminal court’s denial of Davis’s motion to suppress
    based on the inevitable discovery doctrine requires dismissal of his § 1983 claim for the
    unconstitutional search of his home. See Chatman v. Slagle, 
    107 F.3d 380
    , 382-83 (6th Cir.
    1997) (“[T]he reasoning which supports the use of the Fourth Amendment exclusionary rule and
    the related inevitable discovery doctrine in criminal cases does not apply in civil rights
    actions.”).
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    We remand so that the district court can consider this argument in the first
    instance. 5
    Arguable probable cause, Davis submits, is a qualified immunity standard,
    and a city cannot be entitled to qualified immunity; thus, claims against the City
    may be dismissed only if the officers had actual probable cause, a higher standard.
    We agree with Davis.6 See Owen v. City of Indep., 
    445 U.S. 622
    , 638 (1980) (“We
    hold . . . that the municipality may not assert [a defense of qualified immunity
    based on] the good faith of its officers or agents as a defense to liability under
    § 1983.”); Gold v. City of Miami, 
    121 F.3d 1442
    , 1446 (11th Cir. 1997)
    (emphasizing that “the arguable probable cause inquiry [for qualified immunity] is
    distinct from the actual probable cause inquiry” in that arguable probable cause
    “gives ample room for mistaken judgments” (internal quotation marks omitted)).
    5
    We reject the City’s argument that the complaint failed to allege that the officers were
    obliged to follow Florida’s Stand Your Ground law. See Doc. 122 at 18 (“Under the
    circumstances, a reasonable officer would have conducted an investigation to determine whether
    probable cause existed to arrest Mr. Davis for a crime, including . . . conducting a Stand Your
    Ground investigation upon being informed by Mr. Davis that he shot his son in self-defense.”).
    We also reject the City’s assertion that the grand jury’s eventual indictment of Davis on
    second degree murder charges “insulates the City from liability.” Appellee’s Br. at 38. This
    argument flatly contradicts our caselaw. “While the indictment cuts off the length of detention,
    and thus damages, stemming from the false arrest, the indictment does not absolve the
    [defendant] from liability for the initial false arrest made without any . . . probable cause.” Jones
    v. Cannon, 
    174 F.3d 1271
    , 1285 n.8 (11th Cir. 1999) (emphasis added).
    6
    Initially, the City argues that the district court found that actual probable cause existed,
    pointing to one sentence in the court’s order that reads: “Having found that probable cause
    existed for Plaintiff’s arrest, his state law claims for false arrest . . . and malicious
    prosecution . . . are due to be dismissed with prejudice.” Doc. 133 at 18. But, as Davis points
    out, the district court made no findings as to probable cause; its findings pertained only to
    arguable probable cause.
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    To the extent the district court relied on its determination that arguable probable
    cause existed for the arrest in dismissing Davis’s claims against the City, that
    reliance was error.
    We nonetheless may affirm the district court on any ground supported by the
    record, see 
    Lucas, 257 F.3d at 1256
    , and the City urges us to affirm based on the
    officers’ actual probable cause to arrest Davis. The City maintains that Florida’s
    Stand Your Ground law does not negate probable cause.
    “The existence of probable cause at the time of the arrest . . . constitutes an
    absolute bar to a section 1983 action for false arrest.” Kingsland v. City of Miami,
    
    382 F.3d 1220
    , 1226 (11th Cir. 2004). It also is an absolute bar to a false arrest
    claim under Florida law. See Bolanos v. Metr. Dade Cty., 
    677 So. 2d 1005
    , 1005
    (Fla. Dist. Ct. App. 1996). The probable cause standard is the same under Florida
    and federal law. Rankin v. Evans, 
    133 F.3d 1425
    , 1435 (11th Cir. 1998).7
    Probable cause to arrest exists “when the facts and circumstances within the
    officer’s knowledge, of which he or she has reasonably trustworthy information,
    would cause a prudent person to believe, under the circumstances shown, that the
    suspect has committed, is committing, or is about to commit an offense.” Lee v.
    7
    The plaintiff asserting a § 1983 claim bears the burden to show the absence of probable
    cause, whereas probable cause is an affirmative defense under state law. 
    Rankin, 133 F.3d at 1436
    . But this distinction makes no difference here. “A complaint is subject to dismissal under
    Rule 12(b)(6) when its allegations, on their face, show that an affirmative defense bars recovery
    on the claim.” Cottone v. Jenne, 
    326 F.3d 1352
    , 1357 (11th Cir. 2003). If as a matter of law
    probable cause existed for Davis’s arrest, both Davis’s § 1983 false arrest claim and his state-law
    false arrest claim were due to be dismissed.
    11
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    Ferraro, 
    284 F.3d 1188
    , 1195 (11th Cir. 2002) (internal quotation marks omitted).
    In order for probable cause to exist, “an arrest must be objectively reasonable
    based on the totality of the circumstances.” 
    Id. (internal quotation
    marks omitted).
    Under Florida’s Stand Your Ground law, “[a] person is justified in using . . .
    deadly force if he or she reasonably believes that using . . . such force is necessary
    to prevent imminent death or great bodily harm to himself .” Fla. Stat. § 776.012.
    A person who uses such deadly force “is immune from criminal prosecution” for
    the use of force. 
    Id. § 776.032(1).
    The statute expressly includes arrest within the
    definition of “criminal prosecution.” 
    Id. And, the
    statute provides, an officer
    “may not arrest [a] person for using . . . force unless [the officer] determines that
    there is probable cause that the force that was used . . . was unlawful.” 
    Id. § 776.032(2).
    “Section 776.032(1) expressly grants defendants a substantive right
    to not be arrested, detained, charged, or prosecuted as a result of the use of legally
    justified force.” Dennis v. State, 
    51 So. 3d 456
    , 462 (Fla. 2010).
    Davis alleged that a reasonable officer would have considered his immunity
    under Florida’s Stand Your Ground law before making an arrest. And, he alleged,
    he was visibly seriously injured when the officers arrived and told the officers
    repeatedly that he shot his son in self-defense. He also points to his son’s
    beseeching the officers to leave his father alone. All of this, Davis says, was
    evidence to the officers that he was immune under Florida law. Davis argues that,
    12
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    taking into account Florida law and knowing what they did about the incident, the
    officers lacked probable cause to arrest him.
    Given that the district court did not address Davis’s allegations regarding
    Florida’s Stand Your Ground law and that the parties only cursorily briefed the
    issue in the district court, we decline to consider in the first instance whether and
    how Florida’s law impacts the probable cause inquiry. See 
    Singleton, 428 U.S. at 121
    ; 
    Clark, 929 F.2d at 609
    . Although there are circumstances in which we are
    “justified in resolving an issue not passed on below,” we do not think this is such a
    case. 
    Singleton, 428 U.S. at 121
    . Thus, we vacate the district court’s dismissal
    with prejudice of Davis’s false arrest claims and remand for further proceedings.
    C. Malicious Prosecution Claim (Count XXVI)
    Finally, Davis challenges the district court’s dismissal of his state-law
    malicious prosecution claim. The district court dismissed this claim on the same
    ground it used in dismissing Davis’s false arrest claims. We have explained why
    this reasoning was incorrect.8 Perhaps anticipating that the City would advocate
    8
    Even assuming the district court dismissed Davis’s malicious prosecution claim based
    on actual probable cause rather than its findings of arguable probable cause, 
    see supra
    Part III.B
    & n.7, we are not convinced that its reasoning would be correct. In the § 1983 malicious
    prosecution context, “[p]robable cause is required to continue a prosecution, not just to arrest a
    defendant or to institute a prosecution.” Kjellsen v. Mills, 
    517 F.3d 1232
    , 1238 (11th Cir. 2008).
    Thus, if an investigation “negated probable cause, then [a plaintiff] might be able to prove a
    malicious prosecution claim.” 
    Id. The common
    law elements of malicious prosecution, which a
    plaintiff must prove to establish a claim under § 1983, are the same as required under Florida
    law. See Wood v. Kesler, 
    323 F.3d 872
    , 881-82 (11th Cir. 2003); Durkin v. Davis, 
    814 So. 2d 13
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    affirming the district court’s judgment on the alternative ground that the City is
    immune from liability on this claim, 9 Davis argues that the City is not immune
    from liability for the particular type of malicious prosecution alleged in his
    complaint. The City responds that it clearly enjoys immunity under Florida law.
    We agree.
    Florida law “bars an action for malicious prosecution against the state or its
    subdivisions arising from the malicious acts of their employees.” Johnson v. Fla.
    Dep’t of Health & Rehab. Servs., 
    695 So. 2d 927
    , 930 (Fla. Dist. Ct. App. 1997)
    (citing Fla. Stat. § 768.28(9)(a)). Davis contends that there is a distinction between
    “actual malice”—for which the City would be immune—and “legal malice”—that
    is, the absence of probable cause—the latter being all that a malicious prosecution
    claim requires. But the court in Johnson expressly contemplated that a city’s
    immunity would reach malicious prosecution claims, emphasizing that “[m]alice is
    not only an essential element of malicious prosecution; it is the gist of such a cause
    of action.” 
    Id. (internal quotation
    marks omitted). We therefore reject Davis’s
    argument and hold that the district court correctly dismissed his malicious
    prosecution claim against the City.
    1246, 1248 (Fla. Dist. Ct. App. 2002). Thus, it appears that probable cause at the moment of
    arrest would not necessarily defeat a malicious prosecution claim under Florida law.
    9
    The district court dismissed another claim against the City, one for intentional infliction
    of emotional distress, on the ground that under Florida law the City is immune in actions arising
    out of the malicious acts of its police officers.
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    IV. CONCLUSION
    For the foregoing reasons, we affirm the district court’s judgment in part and
    vacate in part. We remand for further proceedings consistent with this opinion.
    AFFIRMED IN PART, VACATED IN PART, and REMANDED.
    15