DocketNumber: Case No: 2:17-cv-67-FtM-99MRM
Citation Numbers: 334 F. Supp. 3d 1203
Judges: Steel
Filed Date: 8/10/2018
Status: Precedential
Modified Date: 7/25/2022
*1209This matter comes before the Court on defendants' Motion for Summary Judgment (Doc. # 54) filed on May 8, 2018. Plaintiff filed a Response in Opposition (Doc. # 59) on May 25, 2018. For the reasons set forth below, the Motion is granted.
I.
This malicious prosecution case arises out of plaintiff David Swanson, Jr.'s arrest and prosecution for three controlled drug buys that took place in November and December of 2008. The underlying criminal prosecution resulted in a guilty verdict for which plaintiff served over three years imprisonment. Plaintiff's convictions and sentences were subsequently vacated due to ineffective assistance of counsel based on counsel's failure to present alibi evidence, and the State thereafter dismissed the charges against Swanson. Plaintiff then filed this lawsuit. The operative pleading alleges both common law and Section 1983 claims against all defendants for malicious prosecution in violation of the Fourth, Fifth, and Fourteenth Amendments (Counts I-IV) and a claim for conspiracy (Count V). (Doc. # 28.)
Defendants move for summary judgment, arguing that probable cause existed for Swanson's arrest and prosecution, or alternatively, that they are entitled to qualified immunity because the officers had at least arguable probable cause to arrest Swanson. Plaintiff responds that he was arrested and prosecuted without either probable cause or arguable probable cause.
II.
Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Baby Buddies, Inc. v. Toys "R" Us, Inc.,
In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris,
*1210Allen v. Bd. of Pub. Educ.,
III.
The material, undisputed facts (along with some disputed facts) are as follows:
A. November 13, 2008 - The First Controlled Buy
After receiving a tip from a confidential informant, on November 13, 2008, the Lee County Sheriff's Office Special Investigation Division Narcotics Unit conducted an undercover operation at the Oaks at Omni Apartments in Fort Myers, Florida to purchase crack cocaine from a black male known as "Ed." Defendant Jonathan S. Armato was the lead detective for the operation. (Doc. # 54-5, 13:16-18.)
The confidential informant informed Detective Robert E. Smith that a drug dealer was working out of the apartments, and provided a cellular telephone number for Ed. (Doc. # 54-1, Smith Civ. Depo.
B. Identification of Plaintiff's Photograph
The next day, in an effort to determine Ed's true name, Detective Armato contacted the property manager at the Omni Apartments and requested a list of residents living in the building Ed was seen exiting during the first controlled buy. (Doc. # 54-5, 15:20-16:24.) Several names were given, including plaintiff's name. (Id., 7:16-22.) Plaintiff Swanson was the only black male living in the particular building where Ed was seen exiting. (Doc. # 54-4, Swanson Depo., 36:2-9.) Following the meeting with the property manager, a photo of Swanson was located.
Detectives Armato and Smith have provided conflicting testimony as to whether Detective Armato located a single photograph and showed it to Smith, or whether an array of photographs including both plaintiff and other individuals was obtained and shown to Smith. Their testimony also varies as to who first located Swanson's photograph. See Doc. # 54-1, 28:12-25; 36:22-37:5; 49:16-19; 59:6-20; Doc. # 54-2, 7:2-8:15; Doc. # 54-3, 7:9-8:4; Doc. # 54-5, Armato Civ. Depo., 18:18-19:19; 61:9-23; Doc. # 54-10, Crim. Tr., 102:25, 141:5-13. In any event, on November 14, 2008, Detective *1211Smith signed a color photograph identifying plaintiff as the drug dealer known as "Ed." (Doc. # 54-1, 34:8-11.)
C. December 3, 2008 - Second Controlled Buy
On December 3, 2008, Detective Smith participated in a second controlled buy with Ed. (Doc. # 54-1, 33:9-11.) By this time, Smith understood Ed to be David Swanson, Jr. (Id., 34:5-7.) Calling the phone number provided by the confidential informant, Detective Smith arranged to meet Ed at the Omni Apartments to purchase marijuana. (Id., 33:17-21.) Ed came down the staircase to the car where the drugs and money were exchanged. (Doc. # 54-2, 11:8-12:17.) Smith was face-to-face with Ed for three to four minutes. (Doc. # 54-1, 33:12-16.) Following this second transaction, Detective Smith identified Swanson as Ed from a single photograph. (Doc. # 54-1, 48:21-49:19; 60:9-17.)
D. December 5, 2008 - The Buy-Bust
Detective Armato wanted to conduct a third, buy-bust operation and arrest Ed during the exchange. On the date selected, however, Detective Smith was out sick. Nonetheless, Detective Smith called Ed on the phone number used for the previous transactions and asked if someone else could pick up Vicodin pills. Detective Smith identified the voice on the phone as the same person he had dealt with in the second transaction. (Doc. # 54-10, 108:3-5.) Ed agreed, and Deputy Eric M. Zercher conducted the final undercover buy. (Doc. # 54-2, 13:1-14.) Unlike the other officers, Deputy Zercher was familiar with Swanson from his time as a patrol officer. He knew Swanson well enough to identify him by face and name. (Doc. # 54-6, Zercher Crim. Depo., 5:15-21.) Zercher was informed that the Lee County Sheriff's Office was targeting David Swanson that day, who was going by the street name Ed. (Id., 5:2-4, 7:24-8:1.)
Using the same procedure as the first two buys, Deputy Zercher drove to the Omni Apartments and called Ed to arrange a pick up. Once in the parking lot, Deputy Zercher identified Swanson standing approximately sixty feet away on a second-floor balcony using a cell phone. (Doc. # 54-6, 6:4-11; Doc. # 54-10, 125:19-24.) Comparing the conversation with Swanson's movements and lips, Deputy Zercher concluded that Swanson was the person on the other end of the line - that Swanson was Ed. (Id., 6:12-16.)
Zercher observed Swanson walk down the stairs with a second black male who Deputy Zercher recognized as Luis Powell.
The day of plaintiff's arrest, Detective Armato prepared a probable cause statement (Doc. # 59-1, pp. 3-5) and Deputy Zercher prepared a sworn statement (Doc. # 59-2). Deputy Zercher's sworn statement did not mention that Swanson had directed Powell towards Zercher's vehicle. (Id. )
Swanson and Powell dispute Deputy Zercher's version of events during the *1212buy-bust. Swanson claims that as he was coming down the stairs on the way to check his mail and passed Powell and his friends standing in the stairwell. Swanson claims that he did not have his cell phone with him but had left it in his apartment while going to check his mail. (Doc. # 54-1, 132:1-20, 135:17-19.) Swanson asserts that Powell did not follow Swanson down the stairs but stayed up on the stairwell landing while Swanson went to his mailbox. (Id., 132:24-133:6.) As Swanson began to unlock his mailbox, he was arrested. (Id., 136:3-139:13.)
As to Powell's version of events, Powell testified that he received a call on his cell phone from the buyer while Swanson was in the apartment, and that Swanson knew nothing about it. (Doc. # 54-8, 42:18-24.) While talking on the phone, Powell walked down the stairs towards the car to conduct the drug deal. (Id., 43:3-13.) While walking down the stairs, Powell realized that Swanson was coming down the stairs behind him. (Id., 44:6-16.)
Although it is undisputed that a cell phone was recovered at the arrest scene, it is disputed whether it was recovered from plaintiff or Luis Powell. Detective Armato testified that a cell phone was recovered from Swanson at the scene, but it was not listed in the chain of custody evidence list. (Doc. # 54-5, 21:22-23:22, 28:7-9.) Detective Armato testified that after the cell phone was recovered from Swanson, Deputy Zercher called the number he had used to contact Ed and the cell phone rang. (Id., 31:4-11; 36:10-18.) Swanson, on the other hand, says that officers did not retrieve a phone from him (Doc. # 54-10, 194:12-14) and Powell says that officers seized his cell phone at the scene. (Doc. # 54-8, 73:22-23.) No one in the investigation determined who owned the phone associated with the number that Deputy Zercher had called. (Doc. # 54-5, 31:21-24.) Swanson's mother, Barbara Smith, who went to the arrest scene, testified that Powell's phone was taken from him and that Swanson's cell phone was still in his apartment after the arrest. (Doc. # 54-9, 42:21-43:2.) Swanson's sister, Javarsha, retrieved Swanson's cell phone from his apartment after the arrest. (Id., 43:3-44:5.) Although a cell phone was admitted into evidence at Swanson's criminal trial, no cell phone records were presented and the Lee County Sheriff's Office did not subpoena any cell phone records.
E. Post-Arrest and Alibi Evidence
After arrest, Swanson denied that he was involved in any drug transactions. During Swanson's interrogation, Swanson claimed that police had the wrong guy, and told officers: "I don't know what you all are talking about, I work at the airport and you all got the wrong guy, and I keep telling them that and so they sent me to jail." (Doc. # 54-4, 105:24-106:5.) Although the officers told plaintiff the dates of the drug buys he was being charged with, Swanson did not provide any further detail to police, such as his whereabouts during the dates and times of the previous drug buys. (Id., 105:10-106:5, 164:15-165:3.) Swanson was released from jail on bond that same day. (Id., 108:4-13.)
At his deposition in this civil case, Swanson testified that the day after his arrest Powell called him and apologized, admitting that he was responsible for the drug sales that led to their arrest. (Doc. # 54-4, 102:15-103:11, 111:10-11, 125:12-19.) Swanson told his immediate family about Powell's confession; however, he did not tell anyone else. (Id., 111:12-19.) Despite the possibility of a significant prison sentence, neither Swanson nor his family alerted the Lee County Sheriff's Office about Powell's confession. (Id., 100:18-25; 112:21-24.) In Swanson's words, "I told [the Sheriff's Office] I didn't do it. I didn't tell them who *1213did...that's not my business." (Id., 113:11-16.) Powell's mother, Trenice Swanson, also testified that Powell told her that Swanson didn't do any of the things he was charged with, and that it was Powell who conducted the drug deals. (Doc. # 54-7, 30:3-17.) Ms. Swanson shared this information with Swanson's criminal attorney but did not tell the defendant officers. (Id., 31:2-21.) At Powell's deposition, he testified that he did not tell police that he had done the things that Swanson was charged with because he "didn't want to get in worse trouble." (Doc. # 54-8, 63:17-22; 69:25-70:6.)
Swanson also had alibi evidence that he did not mention to the police at the time of his arrest or before his prosecution. According to Swanson, he was at his mother's (Barbara Smith) house during the first drug buy and at work at the Southwest Florida International Airport for the second. (Doc. # 54-4, 94:23-95:25, 98:8-101:14, 117:6-11.) He alleges that there were witnesses and documents to corroborate his alibi. (Id., 96:1-6, 118:3-14; 121:22-122:3.) Swanson states that this information was provided to his criminal trial attorney, yet it was never communicated to the defendant officers. Swanson testified that he never produced exculpatory evidence to the Lee County Sheriff's Office prior to (or during) his trial. (Id., 147:15-149:23.) Every witness deposed in this case has likewise confirmed that they did not provide any exculpatory information to the Lee County Sheriff's Office following Swanson's arrest. (Doc. # 54-7, Trenice Swanson Depo., 29:1-31:16; Doc. # 54-8, Powell Depo., 69:3-15; Doc. # 54-9, Barbara Smith Depo., 35:6-36:13.)
F. Swanson's Criminal Trial
On July 14, 2009, Swanson proceeded to a one-day jury trial on five charges - sale and possession of cocaine for the November 13, 2008 transaction; sale and possession of marijuana for the December 3, 2008 transaction; and drug trafficking for the December 5, 2008 transaction. Defendants Smith, Armato, and Zercher were called as witnesses for the State. (Doc. # 54-10, Crim. Tr.) In defense, Swanson offered only one witness - himself. Swanson did not testify that Powell confessed to him. Although Swanson testified that he was at his mom's during the first transaction, and at work during the second drug transaction, he offered nothing to corroborate this alibi. (Doc. # 54-4, 99:3-20.) The jury found Swanson guilty on all charges, and his conviction was upheld on direct appeal.
G. Post-Conviction Relief
Several years later, Swanson moved to vacate his sentence due, in part, to ineffective assistance of counsel; namely, his counsel's failure to present exculpatory evidence at trial. (Doc. # 54-11.) Among other things, Swanson had provided his counsel with a timesheet that showed he was at work during the second drug buy, which defense counsel never introduced at trial. (Doc. # 54-9, 33:7-34:10.) Defense counsel also never called any of Swanson's family members, who could have corroborated his alibi testimony. Presented with these facts, which were unknown at the time of trial, the State agreed to vacate Swanson's sentence. (Doc. # 54-11.) The State subsequently dropped the charges. (Doc. # 28, ¶ 66.) The evidence from Swanson's criminal case was purged in 2015. (Doc. # 54-1, 43:2-22.)
IV.
A. Florida Malicious Prosecution Claims
Counts I through III of the Amended Complaint set forth claims under Florida law for malicious prosecution. (Doc. # 28, *1214¶¶ 70-94.) Specifically, plaintiff alleges defendants committed the following:
Count I v. Zercher - Zercher made a statement on December 5, 2008 under oath which aided the institution of criminal action against plaintiff for which no arguable probable cause existed; and testified falsely against plaintiff at his criminal trial. (Doc. # 28, ¶¶ 73-74.)
Count II v. Smith - Smith knew or should have known that probable cause did not exist for the warrantless arrest of plaintiff for the November 13, 2008 drug buy when he only saw Ed for seconds, had no information that plaintiff was the suspect of any crime, and identified plaintiff by examining a single photograph without taking any further investigation of numerous other young black males in the area. Smith also took no steps to verify essential information or identify additional witnesses to confirm the identification of Swanson as Ed. (Id., ¶¶ 82-87.)
Count III v. Armato - Armato submitted a false probable cause affidavit, which resulted in plaintiff being held in custody prior to a hearing for bond. (Id., ¶¶ 90-91.)
The elements of the Florida tort of malicious prosecution are:
(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.
Fernander v. Bonis,
B. Count IV (Malicious Prosecution under the Fourth and Fifth Amendments)
Count IV sets forth a claim under
On December 5, 2008, Defendants under color of law violated Plaintiff's constitutional right to be free from unreasonable seizures by arresting him without a warrant and without probable cause or even arguable probable cause that Plaintiff had commented [sic ] any criminal offense, and thereafter submitting false probable cause affidavits which resulted *1215in Plaintiff being held in custody prior to a hearing for bond.
(Doc. # 28, ¶ 120.)
The Eleventh Circuit "has identified malicious prosecution as a violation of the Fourth Amendment and a viable constitutional tort cognizable under § 1983." Wood v. Kesler,
An officer must conduct a constitutionally sufficient investigation before making an arrest. Kingsland,
An officer has probable cause to arrest when the arrest is objectively reasonable based on the totality of the circumstances. Coffin v. Brandau,
*1216Coffin,
The fact that the arrestee was never prosecuted, or the charges were dropped, or he was acquitted of any offense stemming from the arrest, does not impact the existence of probable cause. Jacobson,
V. Application of Principles to Counts I-IV
All four counts require the absence of probable cause to arrest, and the existence of probable cause precludes all four counts. Whether an officer possesses probable cause (or arguable probable cause) depends on the elements of the alleged crime and the operative fact pattern. Brown,
A. Probable Cause to Arrest/Detain - Initiation of Criminal Proceedings
Giving plaintiff the benefit of each and every factual inference and dispute, defendants knew the following at the time of plaintiff's arrest: Detective Smith had conducted two face-to-face drug buys at the Omni Apartments with a black male named Ed and had the opportunity to see Ed for about three minutes on each occasion. Detective Smith identified Swanson as Ed by viewing a photograph after each controlled buy. Swanson resided in the relevant apartment building and was the only black male living at the building. Detective Smith spoke to Ed to set up the third transaction and identified the voice as the same individual who was involved in the first two transactions. During the third buy, Deputy Zercher identified Swanson as the person he called to initiate the drug buy and testified that Swanson gestured Powell towards Zercher's vehicle.
Swanson argues that there was insufficient probable cause because Detective Smith was only shown a single photograph of Swanson by Detective Armato on the day after the first controlled buy, making the procedure unduly suggestive and not sufficiently reliable. But showing a single photograph does not inherently taint an identification. In United States v. Diaz, the Eleventh Circuit noted that it had established a two-step analysis in assessing the constitutionality of a trial court's decision to admit an out-of-court identification:
First, we must determine whether the original identification procedure was unduly suggestive. If we conclude that it *1217was suggestive, we then must consider whether, under the totality of the circumstances, the identification was nonetheless reliable. Factors to consider in determine whether the identification was reliable include: (1) opportunity to view; (2) degree of attention; (3) accuracy of the description; (4) level of certainty; and (5) length of time between the crime and the identification.
Here, taking the facts in the light most favorable to plaintiff and assuming that Detective Smith was shown only one photograph by defendant Armato
Swanson also argues that prior to arrest a reasonable officer would have confirmed whether Swanson was Ed through "additional witnesses and other verifiable evidence." (Doc. # 28, ¶ 86.) However, an arresting officer is under no "affirmative obligation to seek out exculpatory information of which the officer is not aware" or "track down every lead" before making an arrest. Kelly v. Curtis,
Swanson further asserts that probable cause did not exist to arrest him because there is a dispute as to the owner of the cell phone recovered at the scene. While the Court agrees that there is a dispute, even taking the facts in the light most favorable to plaintiff and assuming that the cell phone was Powell's and not Swanson's, probable cause would still exist for plaintiff's arrest. Detective Smith identified Swanson as Ed following two close face-to-face encounters, totaling more than seven minutes, and Deputy Zercher observed Swanson, who he was familiar with from his own personal experience, gesture Powell towards the vehicle during the buy-bust before walking off. This is sufficient for probable cause to arrest plaintiff for possession and sale even absent any evidence that it was Swanson's cell phone used for the drug transactions. Additionally, regardless of the ownership of the cell phone, there was ample probable cause to arrest Swanson for the first two drug sales. Accordingly, summary judgment is appropriate as to Swanson's malicious prosecution claims directed at the arrest and detention.
*1218B. Probable Cause to Continue Criminal Proceedings
Florida law recognizes a cause of action for malicious prosecution where the defendant improperly "continued the prosecution or gave it momentum." Ware v. United States,
Swanson argues that after he was arrested, officers failed to follow-up and investigate his statements upon arrest that he had been at work and that they had the wrong guy, which, if they had investigated would have revealed that he was at his mom's house and at work during the first two controlled buy. Such statements, however, are generally not enough to trigger a duty to investigate. See Smith v. City of Fairburn, Georgia,
Swanson further testified that he came into possession of exculpatory evidence following his arrest, namely, his timesheet from work showing he was there during the December 3, 2008 buy, as well as Powell's confession. However, "a police officer need not credit everything a suspect tells him", Rodriguez v. Farrell,
In sum, given that no evidence was proffered by defendant to undermine Detective Smith and Deputy Zercher's reliable identification of Swanson, probable cause remained throughout the ensuing prosecution until the State agreed to dismissal.
C. Alternatively, Arguable Probable Cause Existed
An officer who makes an arrest or detention without actual probable cause is nonetheless entitled to qualified immunity in a § 1983 action if there was "arguable probable cause" for the arrest. Brown,
*1219Here, even if there was not probable cause, defendants have established the existence of arguable probable cause. A reasonable officer in defendants' shoes, and cognizant of the facts known to the officers at the time of the arrest, could have reasonably believed that Swanson had committed the offense of possession and sale of narcotics, as well as trafficking.
D. Count IV (Malicious Prosecution Claim against Sheriff Scott)
Plaintiff alleges in Count IV that the Sheriff is liable for the malicious prosecution carried out by his deputies because they acted "in furtherance of the customs and practices of the Lee County Sheriff's Office." (Doc. # 28, ¶ 122.) A plaintiff seeking to impose liability on a municipality under § 1983 must identify a municipal "policy" or "custom" that was the "moving force" behind the constitutional deprivation. Sewell v. Town of Lake Hamilton,
The Court has determined that plaintiff's constitutional rights were not violated; therefore, there is no need to consider policy or custom. Rooney v. Watson,
Furthermore, plaintiff alleges in his Amended Complaint that Scott "failed to properly train and supervise offices [sic ] in the conditions under which an arrest can be made as a result of undercover drug buys." (Doc. # 28, ¶ 106.) "In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983." Connick v. Thompson,
The "stringent standard" of deliberate indifference requires "proof that a municipal actor disregarded a known or obvious consequence of his action."
Here, plaintiff has not pointed to another occasion in which an individual was arrested without probable cause. Furthermore, there is no evidence indicating that Sheriff Scott was on notice of the need to provide additional training for his deputies in these areas. The absence of such evidence is fatal to plaintiff's argument. Before municipal liability can arise based on the failure to establish a training policy or procedure, "the need for such training must be plainly obvious to Department decision makers." Wright v. Sheppard,
Plaintiff further alleges under Count IV that defendants submitted false sworn statements in support of the charging affidavit filed against plaintiff, "falsely claiming that Plaintiff was properly identified, that a cell phone had been recovered from him and that he controlled the drug buy that occurred on December 5, 2008, all of which was aimed at persuading the Court that probable cause supported Plaintiff's warrantless arrest," which resulted in plaintiff being held in custody prior to a hearing without bond. (Id., ¶¶ 47, 120.)
In Brivik v. Law, the Eleventh Circuit stated that "[a]lthough the Fourth Amendment prohibits a police officer from knowingly making false statements in an arrest affidavit about the probable cause for an arrest, Brivik pleaded no facts indicating that Officer Law knew statements in the affidavit she filed to procure Brivik's arrest were false."
As such, the Court finds that Sheriff Scott is entitled to summary judgment on Count IV.
VI. Count V (Civil Conspiracy Claim against All Defendants)
In Count V, Swanson alleges that defendants, acting in their official capacities, conspired to "maliciously prosecute [him] for a series of drug offenses he did not commit." (Doc. # 28, ¶ 135.) For such a claim, the Eleventh Circuit has stated:
A plaintiff may state a § 1983 claim for conspiracy to violate constitutional rights by showing a conspiracy existed that resulted in the actual denial of some underlying constitutional right. GJR Invs., Inc. v. Cnty. of Escambia,132 F.3d 1359 , 1370 (11th Cir. 1998). "The plaintiff attempting to prove such a conspiracy must show that the parties 'reached an understanding' to deny the *1221plaintiff his or her rights. The conspiratorial acts must impinge upon the federal right; the plaintiff must prove an actionable wrong to support the conspiracy." Bendiburg v. Dempsey,909 F.2d 463 , 468 (11th Cir. 1990) (citations omitted). A plaintiff claiming a § 1983 conspiracy must prove the defendants "reached an understanding" to violate the plaintiff's constitutional rights. Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty.,956 F.2d 1112 , 1122 (11th Cir. 1992) ("[T]he linchpin for conspiracy is agreement."). Factual proof of the existence of a § 1983 conspiracy may be based on circumstantial evidence. Burrell v. Bd. of Trs. of Ga. Military Coll.,970 F.2d 785 , 789 (11th Cir. 1992).
Grider v. City of Auburn, Ala.,
Here, plaintiff has presented no evidence that defendants conspired with each other to maliciously prosecute him, nor that they reached an agreement or understanding to fabricate charges against Swanson and maliciously prosecute him. Furthermore, "to sustain a conspiracy action under § 1983, ... a plaintiff must show an underlying actual denial of [his] constitutional rights." GJR Invs. Inc. v. Cnty. of Escambia, Fla.,
Plaintiff also alleges under Count V that "Armato, Smith and Zercher, with the approval of defendant Scott, agreed to testify falsely against regarding [sic ] Plaintiff's presence at the three drug buys and the recovery of a cell phone on his person." (Doc. # 28, ¶ 131.) Plaintiff further states that the "filing of false sworn statements and testifying falsely at the trial of Plaintiff constitute unlawful acts under Florida and federal law, specifically
The Supreme Court has interpreted § 1983 to give absolute immunity to functions "intimately associated with the judicial phase of the criminal process." Jones v. Cannon,
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants' Motion for Summary Judgment (Doc. # 54) is GRANTED. Judgment is entered in favor of defendants on all claims. The Clerk is directed to enter judgment accordingly, terminate all pending motions and deadlines, and close the file.
DONE and ORDERED at Fort Myers, Florida, this 10th day of August, 2018.
The officer-defendants in this case were deposed in the underlying criminal case against Swanson, as well as in this case. Defendants provided both transcripts in support of summary judgment. The Court will refer to the depositions taken in this case as "Civ. Depo." and those from the criminal case as "Crim. Depo." The parties also testified at plaintiff's criminal trial. The Court will refer to the trial testimony as "Crim. Tr."
The confidential informant was present for the November 13, 2008 controlled buy but has since passed away. The confidential informant was not deposed about the events.
Powell is Swanson's nephew. (Doc. # 54-4, 18:10-11.) Powell would visit plaintiff at his apartment during the relevant time period and Powell also had friends at or near the apartment complex. (Id., 27:25-29:15.)
Plaintiff also alleges that all defendants testified falsely at his trial. (Id., ¶¶ 53-55.) The Court finds that defendants are entitled to summary judgment on any such claims because Florida recognizes an absolute litigation privilege that "must be afforded to any act occurring during the course of a judicial proceeding ...so long as the act has some relation to the proceeding." Levin, Middlebrooks, et al. v. U.S. Fire Ins. Co.,
As set forth above, there is a dispute in the record as to whether a single photograph or an array was shown to Detective Smith. The Court will assume, as plaintiff argues, that only a single photograph was shown.
Plaintiff also argues that Deputy Zercher did not mention in his Sworn Statement completed on the day of the buy-bust (Doc. # 59-2) that Swanson had gestured Powell towards his vehicle. Such an omission would not destroy probable cause to arrest plaintiff for possession and sale for the first two controlled buys. Probable cause may be found if there was cause to believe any crime was committed.