Jose Desravines v. Orange County Sheriff's Office , 520 F. App'x 946 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10614
Non-Argument Calendar
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D.C. Docket No. 6:10-cv-00851-JA-GJK
JOSE DESRAVINES, individually and jointly,
ROOSEVELT DESRAVINES, individually and jointly,
GISLENE LAURORE, individually and jointly,
Plaintiffs-Appellants,
versus
ORANGE COUNTY SHERIFF'S OFFICE,
OFFICER RICHARD PEREZ,
in his professional and individual capacities,
J.C. PENNEY CORP, INC.,
JOSE GONZALEZ,
in his professional and individual capacities,
JOAN ALKEMA,
in her professional and individual capacities,
WFTV, INC., et al.,
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Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 5, 2013)
Before BARKETT, MARCUS, and MARTIN, Circuit Judges.
PER CURIAM:
Jose Desravines (“Jose”), Roosevelt Desravines (“Roosevelt”), and Gislene
Laurore, (collectively, the “plaintiffs”), proceeding pro se, filed an amended civil
rights complaint under 42 U.S.C. § 1983 and Florida law arising from their arrests
for an alleged theft from J.C. Penney Corporation, Inc. (“J.C. Penney”). They
brought their claims against the following parties: (1) the Orange County Sheriff’s
Office (“Orange County”); (2) Richard Perez, a deputy for Orange County; (3) J.C.
Penney; (4) Jose Gonzalez, a security guard at J.C. Penney; (5) Joan Alkema, a
security guard at J.C. Penney; (6) WFTV, Inc. (“WFTV”); (7) the Florida State
Attorney’s Office; (8) Prosecutor Kelly Hicks; (9) Judge Martha C. Adams;
(10) Judge Jerry L. Brewer; (11) the Umansky Law Firm, P.A. (“Umansky”), a
private law firm; (12) Gary Schwartz, Esq., the plaintiffs’ private defense attorney;
and (13) John Does and Jane Does. (Id.).
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The plaintiffs were arrested when the security guards Gonzalez and Alkema
informed Deputy Perez that they hadobserved the plaintiffs shoplift several items
from the store. The remaining defendants were involved thereafter in the state
criminal proceedings. Attachments to the amended complaint included the
incident report filed by Deputy Perez indicating that Deputy Perez responded to a
call about shoplifting and, upon arrival, Gonzalez, a loss prevention officer at J.C.
Penney, informed him that he had observed Roosevelt and Jose, in the presence of
two children, conceal fragrance bottles and had also observed Laurore conceal a
suit in her handbag. Gonzalez further stated that all three and the children exited
the store without paying for the items, at which point Gonzalez arrested them. The
exhibits also showed that the state entered a nolle prosequi in regard to the petit
theft charges against Roosevelt and Laurore and that Jose was convicted of petit
theft in the first degree and moved for a new trial after his conviction.
The plaintiff’s amended complaint contained nine counts, the first five of
which raised the following claims under § 1983 against all defendants:
(1) unreasonable search and seizure under the Fourth Amendment; (2) unlawful
arrest under the Fourth, Fifth, and Fourteenth Amendments; (3) illegal strip search
under the Fourth, Fifth, Ninth, and Fourteenth Amendments; (4) conspiracy under
the First, Fifth, Sixth, and Fourteenth Amendments; and (5) “refusing or neglecting
to prevent” the deprivation of constitutional and statutory rights.
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In the remaining four counts, plaintiffs raised claims of: malicious
prosecution against all defendants; Florida common law assault against all
defendants; common law conversion against Deputy Perez, Gonzalez, Alkema,
J.C. Penney, Judge Adams, Judge Brewer, Hicks, Schwartz, the State Attorney’s
Office, and Orange County; and intentional infliction of emotional distress against
all defendants.
The Plaintiffs appeal pro se the district court’s grant of the defendants’
motions to dismiss the civil rights complaint and the denial of their (1) motion to
vacate judgment or for leave to amend the complaint, (2) motion for an evidentiary
hearing, and (3) motion to strike the defendants’ responses to their motion to
vacate judgment.
We have reviewed the multiple arguments made by plaintiffs and, on this
record, find no reversible error. As an initial matter, the plaintiffs have abandoned
any argument concerning (1) their motions for an evidentiary hearing and to strike
the defendants’ responses, (2) their claims for conversion, intentional infliction of
emotional distress, and malicious prosecution, and (3) the dismissal of the
amended complaint as to defendants J.C. Penney Corporation, Inc., Jose Gonzalez,
and Joan Alkema under Fed.R.Civ.P. 4(m) for failure to serve. Moreover, we need
not consider the plaintiffs’ claim under 42 U.S.C. § 1985 because this claim was
not raised before the district court.
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As to the remaining arguments which the Magistrate and the District Judge
carefully considered, we find no error in their judgment.
AFFIRMED
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