MARTINEZ VERDE

v.

PASCO COUNTY SHERIFF'S DEPARTMENT

This cause comes before the Court upon the Motion for Summary Judgment filed by Defendants Sheriff Christopher Nocco, Brad Clark, Russell Meissner, Steve McInnis, and Adam Tellier (Doc. 72), the Motion for Summary Judgment filed by Defendant Christopher Starnes (Doc. 75), the corresponding responses (Docs. 79, 80), and the replies (Docs. 83, 84). The parties have also filed a stipulation of agreed material facts (Doc. 89) and supporting evidence (Docs. 73, 74, 76). Having reviewed the evidence presented and considered the arguments of counsel in their submissions and at oral argument, the Court will grant Defendants’ Motions for Summary Judgment as to Count II, in which Plaintiff alleges that the Defendants violated his First Amendment right to free speech and seeks damages pursuant to 42 U.S.C. § 1983. The Court declines to exercise its supplemental jurisdiction over the remaining state-law claims.

I. FACTUAL BACKGROUND1

A. Underlying Investigation

In December 2015, the Pasco County Sheriff’s Office was working on a narcotics-related investigation in Dade City, Florida.² Doc. 89 ¶ 1. A month later, based on information provided by a confidential informant (“CI”), Homero Camacho became the main subject of the investigation. Id. ¶ 2. In August of 2016, another CI provided information that Eder Alonso Cruz Lopez (“Cruz”) was involved in methamphetamine trafficking with Camacho. Id. ¶ 4. Defendant Clark subsequently confirmed through inmate call records from the Pasco County Jail that Cruz was in contact with Camacho. Id. ¶ 5. Deputies conducted surveillance of 7166 Glory Road in Zephyrhills, Florida, where they believed that Camacho lived. Id. ¶ 6; Doc. 75-1 at 27–28; Doc. 72-2 at 11–14. They believed that Wiltrober Hernandez also resided there based on intelligence gathered from CIs and surveillance. Doc. 89 ¶ 3; Doc. 75-1 at 27–28. Separately, a CI described the location where Cruz was obtaining his narcotics

B. Cruz’s Arrest and Proffer Through investigation, the Defendants also learned that Cruz was involved in illegal drug activity with Alfred Grabowski (“Grabowski”). Doc. 89 ¶ 15. In early January 2017, Pasco deputies conducting surveillance saw Cruz enter the property at 7166 Glory Road and then appear with a black package before driving to Grabowski’s house. Id. ¶ 18. They then witnessed a male exit Cruz’s vehicle with a multicolored bag. Id.

22.

C. Plaintiff is Arrested Pursuant to a Warrant

After Cruz’s arrest and proffer session, a warrant was issued for Plaintiff’s arrest, based on the affidavit of Defendant Clark, on allegations of knowingly conspiring, combining, or confederating to knowingly sell, deliver, and/or purchase cocaine and methamphetamine. Doc. 89 ¶ 24. Plaintiff was arrested on April 25, 2017. Id ¶ 25. Plaintiff states that, upon arrest, he was asked about drugs and answered that he did not know anything. Doc. 74 at 51. Plaintiff was not injured during his arrest. Id. at 50. Hernandez was also taken into custody on similar charges. Doc. 89 ¶¶ 22–23. At trial, Plaintiff was ultimately acquitted of all charges. Doc. 47 ¶ 38; Doc. 87 ¶ 38. Procedural History Plaintiff filed suit against Pasco County Sheriff Christopher Nocco and several

Pasco County law enforcement officers. Doc. 47. In Count I, Plaintiff sues Sheriff Nocco or, in the alternative, the Defendant deputies, for false arrest under Florida law. Id. at ¶¶ 39–60. In Count II, he sues Defendants Starnes, Clark, Meissner, McInnes, and Tellier under 42 U.S.C. § 1983 for First Amendment retaliation. Id. at ¶¶ 61–66. In Count III, Plaintiff sues Sheriff Nocco for negligent supervision and retention under

Florida law. Id. at ¶¶ 67–73. Defendants now move for summary judgment as to all counts. Docs. 72, 75. The Undersigned held a hearing on both motions on September 13, 2022 (Doc. 108).4

II. LEGAL STANDARD

Summary judgment is appropriate only when the court is satisfied that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law after reviewing the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any[.]” Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, the Court must consider all the evidence in the light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F. 3d 1161, 1164 (11th Cir. 2003). Issues of fact are “genuine” only if a reasonable jury, considering the evidence presented, could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 4 On the same day, the Court heard argument on pending summary judgment motions in a related case involving Hernandez’s suit against the Pasco County Sheriff’s Office. 242, 249 (1986). A fact is “material” if it may affect the outcome of the suit under governing law. Id. at 248. The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323–24; Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1259–60 (11th Cir. 2004). That burden is discharged if the moving party can show the court that there is “an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. “Only when that burden has been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc., 929 F. 2d 604, 608 (11th Cir. 1991). “[I]n order to survive summary judgment, the nonmoving party must set forth specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020) (citing Anderson, 477 U.S. at

249–50). “[U]nsupported conclusory allegations do not suffice.” Middlebrooks v. Sacor Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019). Likewise, “[a] ‘mere existence of a scintilla of evidence’ cannot suffice to create a genuine issue of material fact.” Johnson, 826 F. App’x at 770 (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

The Court begins its analysis with Count II, the federal claim that gives this Court subject-matter jurisdiction over this matter. In Count II, Plaintiff alleges that Defendants Starnes, Clark, Meissner, McInnis, and Tellier were acting under color of law for the Pasco County Sheriff’s Office when they retaliated against him for exercising his First Amendment rights. Doc. 47 ¶ 62. Plaintiff claims that Defendants targeted him in their investigation because of his “possible association with Wiltrober Hernandez.” Id. ¶ 64. He also asserts that the

Defendants “unlawfully and without probable cause arrested [him] and subjected him to unnecessary force.” Id. ¶ 65. He adds that “such actions by Defendant Starnes were taken in retaliation for Plaintiff’s lawful exercise of his rights under the First Amendment when he spoke to Defendant Starnes and he retaliated by arresting him.” Id. Plaintiff asserts that the Defendants’ conduct violated his right to free speech as guaranteed by the First and Fourteenth Amendments. Id. ¶¶ 65–66.5 In their motions, Defendants contend that summary judgment is warranted in their favor for Count II on qualified immunity grounds. First, they highlight that Plaintiff admits to never having spoken with Starnes and not even knowing who he is.

Doc. 72 at 20–24; Doc. 75 at 10–12. They also argue that any claim of unnecessary force against Starnes or the remaining defendants must fail because Plaintiff testified that he doesn’t know which deputies were present at his arrest, and that he was not physically injured during his arrest. Doc. 72 at 23. Even if Plaintiff could show that he had spoken to one of the Defendants, they assert that they would still be entitled to qualified immunity because both probable cause and arguable probable cause existed when the affidavit for the arrest warrant was submitted. Doc. 72 at 23; Doc. 75 at 17.

Hernandez and Plaintiff based on the number of vehicles registered to Hernandez and alleged statements made by Cruz.⁶ Doc. 79 at 16–17; Doc. 80 at 17–18. Starnes’ reply argues that Plaintiff has failed to raise a genuine issue of material fact as to his claims and that he has failed to provide evidence of First Amendment retaliation. Doc. 84 at 3–7. The remaining Defendants similarly argue that Plaintiff has failed to refute their showing that the warrant and arrest were supported by a reasonable investigation and probable cause, and that Plaintiff has failed to prove sufficient involvement on their part to show that they are not entitled to summary

A. Qualified Immunity

Before analyzing the merits of Plaintiff’s retaliatory arrest claim, the Court must first determine whether Defendants are entitled to qualified immunity, as they argue. Vassilev v. City of Johns Creek, No. 1:14-CV-0312-LMM, 2015 WL 12591737, at *8 (N.D. Ga. Sept. 29, 2015). Qualified immunity shields federal and state officials from money damages unless the plaintiff can establish that (1) the official violated a statutory or constitutional right, and (2) the right was clearly established at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). During a qualified immunity analysis at the summary judgment stage, the Court “must take the facts in the light most favorable to the party asserting the injury.” Robison v. Arugueta, 415 F. 3d 1252, 1257 (11th Cir. 2005). As detailed below, the Court finds that summary judgment is appropriate on Count II because there is no genuine dispute as to whether Defendants are all entitled to qualified immunity. Defendants have successfully discharged their burden at each step of the qualified immunity analysis. First, there is no genuine dispute as to whether Defendants acted within their discretionary authority at all times relevant to Plaintiff’s allegations. The burden then shifts to Plaintiff to show that qualified immunity is inappropriate. He fails to make the requisite showing at this stage for a retaliatory arrest claim—which is that a reasonable jury could find that he engaged in protected speech that was the but-for cause of his arrest. Plaintiff’s claim fails on the requirement of causation because he does not set forth specific facts showing a lack of arguable probable cause for his arrest.

1. Discretionary Authority

“To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority.” Gonzalez v. Reno, 325 F. 3d 1228, 1234 (11th Cir. 2003) (citing Vinyard v. Wilson, 311 F. 3d 1340, 1346 (11th Cir. 2002)).

Discretionary authority includes all actions of a government official that (1) “were undertaken pursuant to the performance of his duties” and (2) were “within the scope of his authority.” Jordan v. Doe, 38 F. 3d 1559, 1566 (11th Cir. 1994) (quoting Rich v. Dollar, 841 F. 2d 1558, 1564 (11th Cir. 1988)). The Eleventh Circuit has held that “[a] police officer generally acts within the scope of his discretionary authority when making an arrest.” McDowell v. Gonzalez, 820 F. App’x 989, 991 (11th Cir. 2020). In his response, Plaintiff disputes that Defendant Starnes acted within the scope of his discretionary authority when the alleged retaliatory acts occurred. Doc. 79 at 15–16. He alleges Starnes “initiated a narrative that Wiltrober Hernandez was a known drug trafficker” to “gain recognition,” and that Clark and Starnes admit they did not have any information or evidence of Plaintiff being engaged in criminal activity. Id. at 15. Plaintiff similarly argues that the other Defendants were acting outside the scope of their discretionary function. Doc. 80 at 17–18. He asserts that Clark and Starnes knew that Hernandez was an active confidential informant for the DEA, and that he was the “main focus” of the investigation “based solely on vehicles registered to him and his prior criminal history.” Id. Plaintiff also claims that at no time during the investigation did any of the detectives know who he was or “assert any knowledge” of his involvement in criminal activity. Id. However, these claims are irrelevant to the issue of whether the Defendants were acting pursuant to the performance of their duties and scope of their authority. As investigations and arrests are generally within the scope of an officer’s discretionary authority, and Plaintiff has not provided evidence to suggest otherwise in this case, the Court finds that Defendants were acting pursuant to the performance of their duties and within the scope of their authority during the investigation and arrest of Plaintiff. McDowell, 820 F. App’x at 991. Thus, they were acting within their discretionary authority.

2. Protected Speech

“Once the defendants have established that they were acting within their discretionary authority, the burden shifts to the plaintiffs to show that qualified immunity is not appropriate.” Gonzalez, 325 F. 3d at 1234. Here, Plaintiff must show both that his speech was protected and that he was arrested because of it. Hartman v. Moore, 547 U.S. 250, 261 (2006). As to the first requirement, Plaintiff fails to clearly specify the protected speech that he alleges led to his arrest. Examples of constitutionally protected speech include the right to petition the government for redress, the right of access to the courts, and the right to speak freely without retaliation from the government. See DeMartini v. Town of Gulf Stream, 942 F. 3d 1277, 1288 (11th Cir. 2019). Plaintiff claims that he “spoke to Defendant Starnes and [Starnes] retaliated by arresting him.” Doc. 47 ¶ 65. Thus, he seems to suggest that he was arrested based on something he said to Starnes during the arrest. However, from the Complaint and Plaintiff’s Responses, it is not clear whether he contends that he was arrested in retaliation for speaking to Starnes, or for his association with Hernandez. Moreover, Plaintiff testified that he had no conversation with Starnes and doesn’t know who he is. Doc. 74 at 32. Further, Plaintiff doesn’t know which deputies were present at his arrest.⁷ Thus, Plaintiff fails to raise a genuine dispute of material fact as to whether his speech was protected, because he does not specify which act or acts of speech allegedly led to his arrest.8

3. Retaliatory Arrest and Arguable Probable Cause

Even assuming Plaintiff demonstrated that his speech was protected, to defeat qualified immunity, he must also show that the protected speech was the “but-for” cause of the arrest. Hartman, 547 U.S. at 261. This means Plaintiff must prove that the arresting officer would not have made the arrest if Plaintiff had not engaged in his protected speech. Id. In short, the dispositive question becomes whether the officer had

527 (11th Cir. 2009). In turn, probable cause to arrest for the commission of a crime is present when “law enforcement officials have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime.” United States v. Gonzalez, 969 F. 2d 999, 1002 (11th Cir. 1992). In considering whether probable cause to make an arrest exists, the Eleventh Circuit instructs that an arrest “must be objectively reasonable based on the totality of the circumstances.” Lee v. Ferraro, 284 F. 3d 1188, 1195 (11th Cir. 2002). This standard is met 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 that the suspect has committed, is committing, or is about to commit an offense. Id. The relevant offense-specific inquiry here is whether arguable probable cause existed to believe Plaintiff was knowingly conspiring, combining, or confederating to knowingly sell, deliver, and/or purchase cocaine in violation of Chapters

893.135(1)(b)1.c., and 893.135(5), Florida Statutes, and methamphetamine in violation of Chapters 893.135(1)(f)1.c. and 893.135(5), Florida Statutes. See Doc. 73-

3.

Plaintiff does not offer much in the way of an argument that there was no arguable probable cause to arrest him. In his Response, he simply states that Defendants did not have probable or arguable probable cause to submit the warrant affidavit. Doc. 79 at 13; Doc. 80 at 13–14. In support of this claim, he argues that none of the detectives had ever heard of Plaintiff prior to his arrest, and that they “manipulated the investigation so as to have scripted probable cause” to arrest Plaintiff and Hernandez. Doc. 79 at 13. He also argues that there are unspecified “clearly false statements” in the warrant affidavit. Id. at 19. Finally, Plaintiff claims that Defendants constructed allegations of criminal activity by him and Hernandez because of Hernandez’s refusal to become a CI. Doc. 80 at 19. Plaintiff’s claims about Defendants manipulating the investigation are unsupported and unclear, and he fails to point out which specific statements in the warrant affidavit are allegedly false. His bare claim that Defendants constructed allegations of his criminal activity is controverted by the warrant affidavit, as well as the records of the investigation and the numerous depositions taken for this case. To the contrary, based on the evidentiary record, no reasonable jury could find that Defendants lacked arguable probable cause to arrest Plaintiff. Plaintiff was arrested on the basis of a valid warrant backed by a lengthy investigation and probable cause, not because of any protected speech or his refusal to speak. A finding of arguable probable cause to arrest Plaintiff is supported by numerous undisputed facts in the record. First, a judge agreed that sufficient probable cause existed to issue a warrant for Plaintiff’s arrest. Doc. 73-3. Next, surveillance showed Cruz, a known drug trafficker, frequently traveling to Plaintiff’s residence, including immediately before and after undercover drug buys. Doc. 72-1 at 30–45; Doc. 73-1 at 51, 55. Surveillance also showed that Cruz would frequently travel to Plaintiff’s residence before or after communicating with Grabowski, another known drug trafficker, which caused deputies to believe that Cruz was obtaining drug supply there, and then returning to deliver the money from the drug transactions. Doc. 73-1 at 61, 75, 80, 84, 93, 97. Finally, Cruz’s post-arrest and proffer statements corroborated the investigation conducted by the Pasco County Sheriff’s Office in that he admitted to purchasing drugs from Plaintiff and Hernandez at the addresses deputies had been observing. Doc. 72- 5 at 18–20, 22–24, 26–29. In summary, Plaintiff has not raised a genuine issue of material fact as to whether arguable probable cause to arrest him existed here, and Defendants are thus entitled to qualified immunity. 4. The Defendants’ Involvement in Plaintiff’s Arrest

Defendants Starnes, Clark, Meissner, Tellier, and McInnis argue that Plaintiff’s retaliatory arrest claim against them must also fail for a second reason—which is that he makes only conclusory allegations and fails to raise a genuine issue of fact as to whether they had any involvement in his arrest. Doc. 72 at 22–23; Doc. 75 at 13–14. The Court agrees.

The Parties stipulated to the fact that Plaintiff was not arrested by Starnes. Doc. 89 ¶ 26. Plaintiff also stated that he has never had a conversation with Starnes and “[doesn’t] know who he is.” Doc. 74 at 32. And Plaintiff testified at a deposition that he did not speak to any other officer prior to his arrest. Id. Accordingly, Plaintiff’s First Amendment retaliation claims would fail, even if he could show that there was no arguable probable cause, because he has failed to raise a genuine issue of material fact as to whether any individual Defendant was even involved in his arrest and himself admits that he did not have any conversations with officers prior to being arrested.

IV. CONCLUSION

For the reasons stated above, Defendants Starnes, Clark, Tellier, Meissner, and McInnis are entitled to summary judgment on Count II. Plaintiff’s remaining claims in Count I (False Arrest) and Count III (Negligent Supervision and Retention) arise under Florida law. Doc. 44 at 9, 15. The resolution of those claims will require analysis of Florida Law. “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-

law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Therefore, the Court will decline to exercise its supplemental jurisdiction over these remaining claims.⁹ See 28 U.S.C. § 1367(c)(3) (“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction.”).

Accordingly, it is hereby ORDERED: 1. Defendants Brad Clark, Russell Meissner, Steve McInnis, and Adam Tellier’s Motion for Summary Judgment (Doc. 72) is GRANTED as to Count II.

2. Defendant Christopher Starnes’ Motion for Summary Judgment (Doc. 75) is GRANTED as to Count II.

WITHOUT PREJUDICE.

4. The Clerk is directed to enter Judgment in favor of Defendant Starnes and Defendants Clark, Meissner, McInnis and Tellier, and against Plaintiff, Luis Martinez Verde, as to the federal claim in Count II. 5. The Clerk is further directed to terminate any pending motions and deadlines and close this case. DONE and ORDERED in Tampa, Florida on March 8, 2023.

Chak ene towards Merny A gl el Charlene Edwards Honeywell United States District Judge Copies furnished to: Counsel of Record Unrepresented Parties