NEWCOME

v.

HERNANDO COUNTY SHERIFF'S OFFICE

SHERIFF’S OFFICE, et al.,

Defendants. ________________________________/

ORDER DENYING PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court on the following motions: “Plaintiff’s Motion for Summary Judgment Umaima Newcome” (Doc. 90)

“Plaintiff’s Motion for Summary Judgment James Newcome” (Doc. 91)

“Defendant Deputy Sheriff David Martin’s Motion for Summary Judgment” (Doc. 92)

“Defendant Deputy Sheriff Troy Hyler’s Motion for Summary Judgment” (Doc. 93)

“Motion for Summary Judgment on Behalf of Defendants, Deputy Sheriffs Dustin Adkins, Jason Tippin, Brian Schneider and Eric Burburan” (Doc. 94); and

“Motion for Summary Judgment on Behalf of Defendants, Deputy Sheriffs Willard Brian Stephens, Seth Pardue, Derik Deso, and Francis Ritchie” (Doc. 95).1

Plaintiffs James and Umama Newcome bring suit against numerous law enforcement officers, in their individual capacities, following a SWAT-team raid on their home conducted by deputies from the Hernando County Sheriff’s Office. On September 14, 2018, Joseph Justen, a delivery driver for a local pharmacy, was making a delivery to Plaintiffs’ neighbor. Mr. Justen’s brother, Joshua Swisher, accompanied him on this delivery. While Mr. Swisher waited for

Mr. Justen to return, Mr. Newcome put a black handgun with a silver port in his pocket and approached the vehicle, which Mr. Newcome believed to be suspicious. Mr. Newcome asked Mr. Swisher to explain what he was doing and to identify himself. According to Mr. Swisher, Mr. Newcome pulled the handgun out of his right pocket, showed it to Mr. Swisher, and held it at his side pointing it towards the ground. Mr. Newcome told Mr. Swisher that he had a concealed weapons permit. When Mr. Swisher did not respond, Mr. Newcome again told Mr. Swisher about his concealed weapons permit and explained he was there to protect his neighbors. Mr. Newcome again asked Mr. Swisher to explain what he was doing and to identify himself. Next, without saying a word, Mr. Newcome reached in through the window of the vehicle and grabbed Mr. Swisher’s Samsung Galaxy S8 cell phone (valued at over $800) that was on Mr. Swisher’s lap. Mr. Newcome contends that he believed the cell phone was a gun, and that he needed to disarm Mr. Swisher to protect his neighbor. After taking Mr. Swisher’s cell phone, Mr. Newcome put his own handgun back in his pocket. He then walked to the front door and handed his neighbor the cell phone he had just taken from Mr. Swisher and asked the neighbor to give the cell phone to Mr. Justen. Mr. Newcome walked back to Mr. Swisher, who was still in the vehicle, and apologized, and again told him that he had a concealed weapons permit before returning to his home. The neighbor gave the phone to Mr. Justen, and then both he and Mr. Justen went to speak with Mr. Swisher to find out what had happened. After Mr. Swisher explained his version of what had transpired, the neighbor called 911. Subsequently, Deputy Martin and Deputy Bruce Nichols of the Hernando County Sheriff’s Office responded to the scene to investigate whether Mr. Newcome had committed a crime. Based on its investigation, law enforcement would eventually develop probable cause, or at least arguable probable cause, to believe that Mr. Newcome committed an armed robbery of a conveyance. According to the law enforcement officers, Mr. Newcome was not cooperative, telling them that they were not allowed on his property and refusing to speak with them. Plaintiffs themselves then began calling 911 with various complaints about the law enforcement presence, among other things. Over the course of the night, Mr. Newcome called 911 at least 10 times, and both Plaintiffs spoke with law enforcement at various times, yet Plaintiffs refused to come out of their residence and speak with officers that evening.

At some point during an ever deteriorating situation the Crisis Response Team and the SWAT Team responded to the scene and took over responsibility. They handled further negotiation attempts to get Plaintiffs to come out of the residence. At around¹:07 a.m., the ten individual Defendants – deputies employed by the Hernando County Sheriff’s Office – participated in various ways in a home seizure, which included launching 10 shells containing nonlethal chemical agents into Plaintiffs’ home, shattering three windows. The deputies did not have an arrest warrant, but they claim that they had probable cause and exigent circumstances to justify a warrantless home seizure. Mr. Newcome came out of the residence first, showing his hands, walking forward, and then lying on the ground. He was handcuffed by a deputy outside the house. Mrs. Newcome then came out of the residence with hands raised, holding a cordless phone in her right hand. She did not comply with orders to lie on the ground, and she was taken down by a deputy and handcuffed outside the house. Deputy Martin charged Mr. Newcome with armed burglary of a conveyance, resisting an officer without violence, and misuse of 911 calls. He charged Mrs. Newcome with resisting an officer without violence for failing to comply with law enforcement orders to exit the residence. After Plaintiffs were arrested, a search warrant was issued for their home – in fact, two separate search warrants were applied for, issued, and executed. Criminal proceedings were initiated against both Mr. and Mrs. Newcome. In a letter dated January 8, 2019, Mrs. Newcome’s criminal defense attorney advised her that the state attorney offered to drop or abandon the charge against her if she completed 30 hours of community service. Mrs. Newcome followed this advice and completed the community service hours, and the charge was dropped. Mr. Newcome entered into and completed a pretrial intervention (“PTI”) program. Plaintiffs subsequently filed suit in this court, alleging various violations of their rights. (Doc. 1). Plaintiffs have sued the officers in their individual capacities. Due to their pro se status, the Court granted numerous opportunities for Plaintiffs to amend their complaint to correct deficiencies. (Docs. 46; 50; 59; 60). The operative complaint is the second amended complaint filed on June 30, 2022, although the Court dismissed two of those claims with prejudice and without leave to amend. (Docs. 60; 65). As such, the pending claims are: Home Seizure by Authority Against All Officers by Mrs. Newcome (Count¹); Home Seizure by Force

Against All Officers by Mrs. Newcome (Count²); Excessive Use of Force (Teargassing) Against All Officers by Mrs. Newcome (Count³); Excessive Use of Force (Physical Restraining) Against Deputy Tory Hyler by Mrs. Newcome (Count⁴); False Arrest/Imprisonment Against Deputy David Martin by Mrs. Newcome (Count⁵); Malicious Prosecution Against Deputy David Martin by Mrs. Newcome (Count⁶); Home Seizure by Authority Against All Officers by Mr. Newcome (Count⁷); Home Seizure by Force Against All Officers by Mr. Newcome (Count 8); and Excessive Use of Force (Teargassing) Against All Officers by Mr. Newcome (Count 9). It should be noted that the Court has held at least two different hearings, in person, and emphasized to Plaintiffs that cases of this nature are difficult even for trained lawyers. Although the Court strongly urged them to retain counsel, Plaintiffs have elected to proceed pro se. Legal Standard Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of material fact will preclude summary judgment. Id. The moving party bears the initial burden of showing that there are no genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing the existence of genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F. 3d 590, 593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or evidence, the nonmoving party’s evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party’s favor. Shotz v. City of Plantation, 344 F. 3d 1161, 1164 (11th Cir. 2003). The standard for cross-motions for summary judgment is not different from the standard applied when only one party moves for summary judgment. Am. Bankers Ins. Grp. v. United States, 408 F. 3d 1328, 1331 (11th Cir. 2005). The Court must consider each motion separately, resolving all reasonable inferences against the party whose motion is under consideration. Id. “Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F. 2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int’l Union, Local 15 v. Stuart Plastering Co., 512 F. 2d

1017 (5th Cir. 1975)). As Plaintiffs in this case are proceeding pro se, the Court more liberally construes the pleadings. Alba v. Montford, 517 F. 3d 1249, 1252 (11th Cir. 2018). However, a pro se plaintiff must still conform to procedural rules, and the Court does not have “license to act as de facto counsel” on behalf of a pro se plaintiff.² United States v. Padgett, 917 F. 3d 1312, 1317 (11th Cir. 2019). Analysis

Plaintiffs’ Motions for Summary Judgment At the outset, the Court notes that Plaintiffs elected not to conduct discovery, apparently because they did not wish to incur the cost of depositions, among other things. Although this was not a major issue when the claims were last addressed by the Court at the motion to dismiss stage of the proceedings, Plaintiffs’ decision to

Plaintiffs have submitted a few audio recordings and photographs, but really nothing else. Plaintiffs primarily argue they are entitled to summary judgment simply because Defendants denied all or most allegations of the operative complaint, which Plaintiffs argue render all of Defendant’s assertions wholly incredible. This type of summary judgment argument is nonsensical, bordering on frivolous, even for a plaintiff proceeding pro se. Plaintiffs’ motions for summary judgment are denied. Defendants’ Motions for Summary Judgment Counts¹, 2, 3, 7, 8, and 9 In this case, Plaintiffs assert numerous § 1983 claims against the individual deputies based on the home seizure. In their respective motions, Defendants argue that the undisputed facts show that Plaintiffs cannot establish their claims, and that Defendants are entitled to qualified immunity.

The affidavits submitted by Defendants establish that Deputies Martin, Hyler, Adkins, Tippin, Schneider, and Burburan did not participate in the deployment of chemical agents. Plaintiffs have submitted no competing evidence. The undisputed evidence therefore shows these Defendants did not personally participate in the deployment of chemical agents, and the Court sees no basis to hold them liable for the § 1983 claims based on the use of chemical agents in Counts², 3, 8, and 9. Plaintiffs also cannot identify which officers, if any, pointed firearms at Plaintiffs. As such, the Court cannot find any basis to hold any deputy liable for the § 1983 claims in Counts¹ and 7.

Affidavits provided by the defense show that Deputies Deso, Pardue, Ritchie, and Stephens were not responsible for the decision to use force but only deployed chemical agents after receiving an order to do so. Although this evidence was presented by the defense itself (and not Plaintiffs), the Court will consider whether the excessive force claims in Counts², 3, 8, and 9 can proceed against Deputies Deso, Pardue, Ritchie, and Stephens because their personal involvement is known.

The Court notes that this analysis would also be applicable if Plaintiffs could somehow assert substantive claims against Deputies Martin, Hyler, Adkins, Tippin, Schneider, and Burburan based on personal participation in any of the events.³ “Section 1983 creates a private cause of action for deprivations of federal rights by persons acting under color of state law.” Laster v. City of Tampa Police Dept., 575 F. App’x 869, 872 (11th Cir. 2014); 42 U.S.C. § 1983. In § 1983 cases, when a defendant raises the issue of qualified immunity and demonstrates that he was acting within the scope of his discretionary authority, the plaintiff bears the burden of overcoming that defense. See, e.g., Lee v. Ferraro, 284 F. 3d 1188, 1194 (11th Cir. 2002). A government official is completely protected from suit if his conduct “does not violate clearly established statutory or constitutional rights of

She alleges that during the course of her arrest, Deputy Hyler threw her to the ground, placed his knee on her back, and forcibly handcuffed her, causing injuries to her wrists, shoulder, and arms. In Count⁵, Mrs. Newcome asserts a false arrest and/or false imprisonment claim against Deputy Martin. Deputy Martin and Deputy Hyler seek summary judgment on the respective claims against them,

Nolin v. Isbell, 207 F. 3d 1253, 1257 (11th Cir. 2000) (officer entitled to qualified immunity where he grabbed plaintiff from behind, threw him against van, kneed him in back, and pushed head into side of van). Considering the non-exclusive factors set forth in Graham, and considering the record evidence in light most favorable to Mrs. Newcome, the force used was reasonable under the circumstances. See Graham v. Connor, 490 U.S. 386, 396 (1989).

Consequently, because a reasonable officer would have believed that he had a valid basis to arrest Mrs. Newcome, and because Deputy Hyler used only de minimis force to effectuate that arrest, Deputy Martin and Deputy Hyler are entitled to qualified immunity as to Mrs. Newcome’s claims in Counts⁴ and 5. Count⁶ In Count⁶, Mrs. Newcome alleges a federal malicious prosecution claim against Deputy Martin. To assert a federal malicious prosecution claim, Mrs.

Newcome “must prove (1) the elements of the common law tort of malicious prosecution, and (2) a violation of her Fourth Amendment right to be free from unreasonable seizures.” See Kingsland v. City of Miami, 382 F. 3d 1220, 1234 (11th Cir. 2004). Under Florida law, “[t]he elements of a malicious prosecution claim 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.” Zivojinovich v. Ritz Carlton Hotel Co., 445 F. Supp. 2d 1337, 1346 (M.D. Fla. 2006) (quoting Valdez v. GAB Robins North America, Inc., 924 So. 2d 862, 866 n.1 (Fla. 3d DCA 2006)).

The State of Florida offered to drop the prosecution of Mrs. Newcome if she completed 30 hours of community service and provided proof of completion to the state attorney’s office. Following the advice of counsel, and with her husband’s encouragement, she completed the hours. The State Attorney’s Office filed an announcement of no information that included the grounds for abandoning the prosecution – that Mrs. Newcome had completed the community service hours as requested. This does not and cannot constitute a bona fide termination of the proceedings in Mrs. Newcome’s favor. See, e.g., Rivas v. Figueroa, No. 11-23195- Civ-SCOLA, 2012 WL 1343949, at *3 (S.D. Fla. Apr. 18, 2012); Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1356 (Fla. 1994); Cohen v. Corwin, 980 So. 2d 1153, 1156 (Fla. 4th DCA 2008). As such, the Court finds that Deputy Martin is entitled to summary judgment in his favor as to Count 6. Conclusion The facts presented here are disturbing. With the 20/20 vision of hindsight,

it is not difficult to see how things could have been handled better by everyone involved. It is also not difficult to envision a scenario where the facts, as alleged by the Plaintiffs and if presented properly, could theoretically constitute valid claims that could only be resolved by a trial. Plaintiffs are proceeding pro se and the Court has been mindful of its duty to proceed liberally when evaluating their claims as required by Alba v. Montford, 517

F. 3d 1249, 1252 (11th Cir. 2018), and other binding Eleventh Circuit decisions. But, for the reasons explained above, it is impossible for the Court to allow this case to proceed past summary judgment without taking on the role of de facto counsel on behalf of these pro se plaintiffs in violation of United States v. Padgett, 917 F. 3d 1312, 1317 (11th Cir. 2019) and other binding Eleventh Circuit decisions. Accordingly, it is ORDERED, ADJUDGED, and DECREED:

1) Defendants’ motions for summary judgment (Docs. 92; 93; 94; 95) are

GRANTED.

2) Plaintiffs’ motions for summary judgment (Docs. 90; 91) are DENIED.³) The Clerk is DIRECTED to enter final judgment in favor of Defendants Deputies David Martin, Troy Hyler, Dustin Adkins, Jason Tippin, Brian Schneider and Eric Burburan, Willard Brian Stephens, Seth Pardue, Derik Deso, and Francis Ritchie, and against Plaintiffs James and Umama Newcome.⁴) Following the entry of judgment, the Clerk is directed to terminate any pending motions and deadlines, and thereafter close this case. DONE and ORDERED in Chambers, in Tampa, Florida, this 4th day of August, 2023.

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UNITED STATES DISTRICT JUDGE