Abella v. Simon Ex Rel. Miami Lakes Councilwoman , 522 F. App'x 872 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10255
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,
JUAN F. RODRIGUEZ,
Miami Lakes Police Officer,
OFFICER BENJAMIN RIVERA,
MAJOR FRANK BOCANEGRA,
Individually,
RICHARD BAEZ,
Individually,
Defendants-Appellants.
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____________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 5, 2013)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Officers Juan Rodriguez, Benjamin Rivera, and Richard Baez, and their
supervising officer, Major Frank Bocanegra, appeal the denial of their motion to
dismiss Gustavo Abella’s third amended complaint based on qualified immunity.
Abella complained about retaliation by each of the officers. We affirm.
Liberally construing his third-amended complaint, as we must, see Powell v.
Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990), Abella complained that Rodriguez,
Rivera, Baez, and their superior officer, Bocanegra, retaliated against Abella for
engaging in conduct protected by the First Amendment. Abella alleged that his
conduct included displaying a political sign in his truck, reporting police
misconduct, and photographing officers.
Abella complained that Rodriguez had retaliated against Abella and his
family for displaying a political sign, voicing their opinion about the ordinance at
town meetings, and filing grievances against Rodriguez. Abella alleged that
Rodriguez ordered Abella to remove the sign from his truck; threatened to issue a
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citation to Abella if he failed to remove the sign; appeared outside Abella’s home
and his daughter’s school; and “ma[de] signs” at Abella while following him
around town. Abella also alleged that, after he photographed Rodriguez outside
the school, Rodriguez issued a citation to Abella for a parking violation and told
Abella that “the complaints [he had] filed with the Commission on Ethics [would]
not . . . do anything.”
Abella’s complaint alleged that Rivera had retaliated for the Abellas’
complaints about police misconduct. Abella alleged that Rivera issued Abella a
parking citation, followed him home, and then yelled out asking Abella’s wife if
she wanted his badge number or the phone number for the Miami-Dade Internal
Affairs office. Later, during a hearing about the citation, Rivera grumbled about
being assigned to the school because of the grievances filed by Abella.
Abella also complained that Baez interfered with being photographed and
retaliated for the photos and having a grievance filed against him. Abella alleged
that his wife photographed Baez standing outside her house and Baez approached
the house to question her about the photos. Because the encounter frightened
Abella’s wife, she reported Baez’s conduct to his supervisor. Two days later, Baez
noticed that he was being photographed outside the school, walked to Abella’s
vehicle, and pushed the camera into Abella’s face.
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Abella’s complaint also alleged that Bocanegra deliberately ignored the
grievances against his subordinate officers and failed to discipline them for their
alleged misconduct. Abella alleged that his attorney complained to Bocanegra
about Rodriguez, but Abella did not witness a change in Rodriguez’s conduct.
Abella also alleged that he and his wife filed grievances, and sent letters and emails
to Bocanegra about his officers’ misconduct.
To survive a motion to dismiss based on retaliation for exercising rights
under the First Amendment, Abella had to allege facts establishing, “first, that his
speech or act was constitutionally protected; second, that the [officers’] 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
“affords the broadest protection to . . . political expression,” McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 346, 115 S. Ct. 1511, 1518 (1995), and protects
the rights of speech and 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, Abella had to
allege that his protected conduct was a “motivating factor behind” the officers’
alleged misconduct, Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008), and
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that the “history of widespread abuse put[] the[ir] responsible supervisor on notice
of the need to correct the alleged deprivation, and he fail[ed] to do so,” Braddy v.
Fla. Dep’t of Labor & Emp’t, 133 F.3d 797, 802 (11th Cir. 1998).
The district court did not err by denying the officers’ motion to dismiss
based on qualified immunity. Abella alleged facts sufficient to establish that
Rodriguez, Rivera, and Baez had retaliated because Abella had exhibited a political
sign, reported police misconduct, and photographed the officers. See Bennett, 423
F.3d at 1254; Mosley, 532 F.3d at 1278. Abella also alleged facts sufficient to
establish that Bocanegra knew about, and failed to correct, his subordinate officers’
unlawful conduct. See Braddy, 133 F.3d at 802; see also Brown v. Crawford, 906
F.2d 667, 671 (11th Cir. 1990). Although Abella was not deterred by being
followed, stopped, ticketed, and intimated by the officers, those actions “would
likely deter a person of ordinary firmness from the exercise of First Amendment
rights.” Bennett, 423 F.3d at 1254.
We AFFIRM the denial of the officers’ motion to dismiss.
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