MCCARTHY

v.

ST. LUCIE COUNTY BOARD OF COMMISSIONERS

_______________________________/ ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [ECF No. 19]

THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint (the “Motion”) [ECF No. 15]. The Motion was referred to Magistrate Judge Ryon M. McCabe for a report and recommendation [ECF No. 18]. On June¹, 2023, Judge McCabe issued a report recommending that Defendants’ Motion be granted in part and denied in part (the “Report”) [ECF No. 19]. Defendant St. Lucie County Board of Commissioners filed Objections to the Report [ECF No. 20].1 The Court has reviewed the Report [ECF No. 19], Defendant St. Lucie County Board of Commissioner’s Objections [ECF No. 20], and the full record. For the reasons set forth below, the Report [ECF No. 19] is ACCEPTED; the Motion is GRANTED IN PART AND DENIED IN PART as set forth below.

RELEVANT BACKGROUND

The following facts are drawn from the Amended Complaint [ECF No. 14] and accepted as true for purposes of this Order.² This case arises from Plaintiff’s two arrests while on bond through St. Lucie County’s pre-trial program (the “pre-trial program”). The pre-trial program “monitors and administers drug tests for citizens who are currently accused of a crime and are out on bond pending the resolution of their case” [ECF No. 14 ¶ 5]. Defendant LaSheri Baker worked as an officer with the pre-trial program [ECF No. 14 ¶ 4]. Defendant St. Lucie County Board of County Commissioners (“St. Lucie County”) “maintains certain control over, and direction of the St. Lucie County pre-trial program” [ECF No. 14 ¶ 5]. On October 30, 2019, Plaintiff was arrested in St. Lucie County and placed on pre-trial release with certain bond conditions [ECF No. 14 ¶ 7]. Plaintiff completed intake with the pre-trial program; during the intake, Plaintiff tested positive for marijuana usage, displaying a THC/Creatinine ratio of 14.27 [ECF No. 14 ¶¶ 8–9; ECF No. 14 p. 12 (drug testing results)].

Plaintiff’s bond conditions required that he avoid additional marijuana usage, which would be indicated by an increase in Plaintiff’s THC/Creatinine ratio levels [ECF No. 14 ¶ 8]. Plaintiff underwent additional drug testing on November 5, 2019, and November 13, 2019 [ECF No. 14 ¶ 9]. The test results showed that Plaintiff’s THC/Creatinine ratio levels for each of the tests was 3.35 and 1.49, respectively [ECF No. 14 ¶ 9; ECF No. 14 p. 13 (drug testing results)]. The tests used by the pre-trial program were provided by Microgenics and were initial screening tests that

Based upon the November 5 and November 13 tests, Plaintiff was arrested by the pre-trial program on November 21, 2019; no confirmation test was performed by Baker prior to the arrest [ECF No. 14 ¶¶ 12–13]. Plaintiff requested that his attorney have a confirmation test performed, which showed that his THC/Creatinine levels had decreased with each test, indicating there had been no new marijuana usage [ECF No. 14 ¶¶ 14–15]. Plaintiff’s attorney notified the State of Florida, following which Dr. Aaron Brown of Cordant Forensic Solutions advised the State that the screening test is unable to determine new usage [ECF No. 14 ¶ 16]. The State then agreed to reinstate Plaintiff’s bond without a hearing; Plaintiff’s bond was ultimately reinstated by the trial court on December 20, 2019 [ECF 14 ¶ 17; ECF No. 14 pp. 14–16 (trial court order)]. Plaintiff and his attorney then informed Robert Worcester, the supervisor of the pre-trial program, about the issues with using a screening test to detect new usage [ECF No. 14 ¶ 19; ECF No. 14 pp. 17–21 (emails sent to Worcester)]. On December 26, 2019, following additional drug testing, the pre-trial program found new drug usage by Plaintiff based on the initial screening test; however, no confirmation test was performed [ECF No. 14 ¶ 20]. Based on this test, on December 21, 2019, Baker, with the permission of her supervisor Worcester, moved to have Plaintiff arrested for violating his bond [ECF 14 ¶ 21]. Once the samples were re-tested by Cordant labs, the lab found no evidence of new drug usage [ECF No. 14 ¶ 23]. The State Attorney’s office again agreed to reinstate Plaintiff’s bond without a hearing, and the trial court judge issued an order reinstating the bond [ECF No. 14 ¶ 23; ECF No. 14 pp. 22–25 (trial court order)]. Plaintiff was incarcerated from January³, 2020, to January 8, 2020, for this alleged violation [ECF No. 14 ¶ 23]. On the basis of these allegations, Plaintiff filed a four-count Amended Complaint against Defendants [ECF No. 14]. The Amended Complaint asserts the following claims against

Defendants: • Count I – Civil Rights Violation Under 42 U.S.C. § 1983 Against Baker [ECF No. 14 ¶¶ 25–32].

• Count II – Common Law False Imprisonment/Arrest Against Baker [ECF No. 14 ¶¶ 33–37].

• Count III – Civil Rights Violation Under 42 U.S.C. § 1983 Against St. Lucie County [ECF No. 14 ¶¶ 38–44].

• Count IV – Common Law False Imprisonment/Arrest Against St. Lucie County [ECF No. 14 ¶¶ 45–49].

On April 13, 2023, Defendants filed a Motion to Dismiss, arguing that the Section 1983 claims in the Amended Complaint (Counts I & III) should be dismissed for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure [ECF No. 15]. On June¹, 2023, Judge McCabe issued the Report, recommending that Defendants’ Motion to Dismiss be granted in part and denied in part [ECF No. 19]. Defendant St. Lucie County filed Objections on June 15, 2023 [ECF No. 20].3 The Report is ripe for adjudication.

LEGAL STANDARD

To challenge the findings and recommendations of a magistrate judge, a party must file specific written objections identifying the portions of the proposed findings and recommendation to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F. 2d 815, 822

the Court may accept the recommendation so long as there is no clear error on the face of the record. Macort, 208 F. App’x at 784. Legal conclusions are reviewed de novo, even in the absence of an objection. See LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010); Cooper-Houston v. S. Ry. Co., 37 F. 3d 603, 604 (11th Cir. 1994).

DISCUSSION

The Report recommends that the Court dismiss Plaintiff’s Section 1983 claim against Defendant Baker and allow Plaintiff’s Section 1983 claim against St. Lucie County to proceed only insofar as it is brought under a “failure to train” theory of liability regarding Plaintiff’s second arrest [ECF No. 19 p. 12]. Specifically, the Report concludes that Defendant Baker is entitled to qualified immunity on Plaintiff’s Section 1983 claim because, in the absence of any controlling case law, Defendant Baker “lacked ‘fair notice’ that she would be violating Plaintiff’s constitutional rights by causing him to be arrested based on the results of his successive, close-in-time drug screening tests” [ECF No. 19 pp. 5–8].4 On Plaintiff’s Section 1983 claim against St. Lucie County, the Report recommends that the Court dismiss the claim to the extent that it proceeds on a “custom and practice” theory, because the Amended Complaint relies only on Plaintiff’s case and thus does not “show a widespread practice of arrests based solely on drug screening results, which results were later disproven by confirmation testing” [ECF No. 19

St. Lucie County’s objection that there is no evidence of a deliberate choice not to provide additional training is understandable but ultimately does not alter the Court’s conclusion for pleading purposes at this stage [ECF No. 20 p. 7]. St. Lucie County notes that there was only a six-day period between Plaintiff’s exoneration on December 20, 2019, and his subsequent drug test on December 26, 2019, and that the time period “encompass[ed] the Christmas holiday” [ECF No. 20 p. 7]. All of this is likely true as a factual matter, but the allegations in the Amended Complaint, taken as a whole, remain sufficient to plausibly establish that, despite the notice provided to St. Lucie County, St. Lucie County did not take any steps to provide additional training to the pre-trial program officers regarding the issues with the use of the screening drug tests. By contrast, the Amended Complaint alleges that the supervisor of the pre-trial program, Worcester,

authorized Plaintiff’s second arrest without first seeking confirmation testing, even though Worcester previously had been made aware by Plaintiff’s attorney that the screening test could not detect new usage [ECF No. 14 ¶¶ 19–22]. For these reasons, and for the reasons stated in the Report, the Court agrees with Judge McCabe as to Plaintiff’s second arrest only that the allegations at this stage are sufficient to state a viable claim that St. Lucie County deliberately forewent further training of its officers, thus causing Plaintiff to be arrested a second time. Nothing in this Order should be construed as an indication of the ultimate merits of Plaintiff’s claims. CASE NO. 22-14350-CIV-CANNON/McCabe

CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED as follows: 1. The Report and Recommendation [ECF No. 19] is ACCEPTED. 2. Defendants’ Motion to Dismiss Plaintiff's Amended Complaint [ECF No. 15] is

GRANTED IN PART AND DENIED IN PART.

a. Plaintiff’s Section 1983 claim against Defendant LaSheri Baker (Count I) is DISMISSED WITH PREJUDICE.” b. Plaintiffs Section 1983 claim against Defendant St. Lucie County Board of Commissioners (Count II) will be permitted to proceed on the “failure to train” theory based on Plaintiff’s second arrest only.°® 3. Defendants shall file an Answer to Counts II-IV of the Amended Complaint on or before September 25, 2023. DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 10th day of September 2023. Ky CANNON

UNITED STATES DISTRICT JUDGE cc: counsel of record

The Court previously granted Plaintiff “one final opportunity to file an Amended Complaint” [ECF No. 13 p. 2 (emphasis in original)]. Plaintiff's Amended Complaint remains deficient as to Count I. Thus, Count I is due to be dismissed with prejudice. © To the extent Count III is based on a “custom or policy” theory or on Plaintiff’s first arrest, it is DISMISSED WITH PREJUDICE. Plaintiff offers nothing to suggest it could plead a widespread pattern of conduct as would be required to state a plausible custom-and-practice claim against St. Lucie County. Nor is there any basis to believe that Plaintiff could plead at least one earlier instance of unconstitutional conduct materially similar to Plaintiff’ first arrest.