Opinion
CASE NO. 3:20-cv-5533-MCR-HTC
2021-01-07
Richard ALVOID, AS father and NEXT FRIEND, A.R.A, a minor, Plaintiff, v. The SCHOOL DISTRICT OF ESCAMBIA COUNTY; Traci Ursrey, principal of Workman Middle School, in her individual capacity; City of Pensacola; and Gregory S. Gordon and David Huhn of the Pensacola Police Department in their individual capacities, Defendants.
Eric Duane Stevenson, Pensacola, FL, for Plaintiff. Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendants Escambia County School District, Traci Ursrey. Matthew Joseph Carson, Michael Patrick Spellman, Sniffen & Spellman PA, Tallahassee, FL, for Defendants Gregory S. Gordon, David Huhn. Matthew Joseph Carson, Sniffen & Spellman PA, Tallahassee, FL, for Defendant City of Pensacola.
Eric Duane Stevenson, Pensacola, FL, for Plaintiff.
Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendants Escambia County School District, Traci Ursrey.
Matthew Joseph Carson, Michael Patrick Spellman, Sniffen & Spellman PA, Tallahassee, FL, for Defendants Gregory S. Gordon, David Huhn.
Matthew Joseph Carson, Sniffen & Spellman PA, Tallahassee, FL, for Defendant City of Pensacola.
ORDER
M. CASEY RODGERS, UNITED STATES DISTRICT JUDGE
Before the Court are Defendants’ motions to dismiss Plaintiff's First Amended Complaint, ECF Nos. 9 and 23. On full consideration, the Court finds the motions are due to be granted.
Defendant School District of Escambia County and Defendant Ursrey adopted and incorporated by reference their Motion to Dismiss Plaintiff's original Complaint. See ECF No. 18. In turn, Plaintiff adopted and incorporated by reference his response to the initial motion. See ECF No. 26.
I. Legal Standard
The Court accepts the allegations in the Amended Complaint as true and construes them in the light most favorable to Plaintiff. See Hunt v. Amico Props., L.P. , 814 F.3d 1213, 1221 (11th Cir. 2016). "To withstand a motion to dismiss under Rule 12(b)(6), a complaint must include ‘enough facts to state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The Court limits its "consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed." LaGrasta v. First Union Sec., Inc. , 358 F.3d 840, 845 (11th Cir. 2004).
"A ‘claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Hunt , 814 F.3d at 1221 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "Plaintiff[s’] allegations must amount to ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’ " Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). When a plaintiff has "[n]ot nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly , 550 U.S. at 570, 127 S.Ct. 1955.
II. Background
Plaintiff Richard Alvoid brings this lawsuit on behalf of his minor son, A.R.A. In February 2018, A.R.A. was a student enrolled in the eighth grade at J.H. Workman Middle School, a public school in Pensacola, Florida (the "School"). On or about February 13, 2018, A.R.A. posted the following meme to his personal Instagram account:
? See ECF No. 9-1 ("the meme"). The meme shows a picture of an individual attaching a suppressor to a handgun with the caption "When youre shooting up the school and youre about to enter the library." A.R.A. was not on School property when he posted the meme. See Am. Compl. [ECF No. 15] ¶¶ 56, 61.
On February 13, one of A.R.A.’s classmates saw the meme while browsing A.R.A.’s Instagram account in the School's cafeteria. The classmate shared the meme with other students sitting at the cafeteria table. The meme "was later generally considered to be dark humor" by the students. By tragic coincidence, the following day, seventeen people were killed, and seventeen others were injured by a gunman at Marjory Stoneman Douglas High School in Parkland, Florida (the "Parkland Shooting").
On February 16, a parent of one of A.R.A's classmates anonymously reported A.R.A.’s posting of the meme to the School's guidance counselor. The guidance counselor relayed the anonymous parent's report to the School's principal, Defendant Ursrey ("Principal Ursrey"). Principal Ursrey contacted a representative of Defendant Escambia County School District (the "School Board") for advice and direction regarding the report. The School Board's representative instructed Principal Ursrey to have A.R.A. arrested for posting the meme.
Principal Ursrey reported A.R.A.’s posting of the meme to the School's resource officer, Defendant Gordon ("Officer Gordon"). Officer Gordon was not at the School when he received Principal Ursrey's report. Consequently, Principal Ursrey held the end-of-class bell and placed the School on lockdown, restricting all students’ movements, until Officer Gordon arrived on campus.
Plaintiff does not allege that Principal Ursrey told Officer Gordon that the report was anonymous.
Officer Gordon arrived at the School accompanied by Defendant Huhn ("Officer Huhn"), an officer with the Pensacola Police Department. Without first performing a name-check on the Instagram profile to confirm that A.R.A. was the individual who had posted the meme, Officer Gordon and Officer Huhn accompanied Principal Ursrey to the classroom where A.R.A. was located. Principal Ursrey instructed A.R.A. to step out of the classroom and into the hallway. When A.R.A. complied and stepped into the hallway, Officer Gordon and Officer Huhn detained him, shoved him against the wall, patted him down, searched his bookbag, handcuffed him, and transported him to Officer Gordon's office at the School.
Officer Gordon read A.R.A. his Miranda rights and told A.R.A. he was being detained because he posted the meme to his Instagram account. When Officer Gordon and Officer Huhn asked A.R.A. why he posted the meme, A.R.A. stated something to the effect that he "was trying to start a meme account." Officer Gordon and Officer Huhn arrested A.R.A. for "Conspire to Disrupt Education Process," a felony under § 877.13(1)(d), Florida Statutes.
Section 877.13(1)(d) provides:
It is unlawful for any person: ... To conspire to riot or to engage in any school campus or school function disruption or disturbance which interferes with the educational processes or with the orderly conduct of a school campus, school, or school board function or activity on school board property.
The following day, a member of the Pensacola Police Department stated during a press conference that, "Let me emphasize that at no time was Workman Middle School or any school in danger of violence."
On March 1, the Escambia County School District Superintendent advised that he intended to recommend to the School Board that A.R.A. be subjected to disciplinary reassignment to an alternative school for the remainder of the 2017–2018 school year. On March 11, A.R.A. moved to Italy to live with Plaintiff to avoid enrollment in a school "attended by delinquent classmates." Nonetheless, on April 17, the School Board adopted the Superintendent's recommendation to subject A.R.A. to disciplinary reassignment.
A.R.A.’s criminal proceeding was scheduled for a bench trial on August 23. On the morning of trial, the State of Florida amended the Information against A.R.A. and reduced the criminal charge against A.R.A. to a misdemeanor under § 871.01, Florida Statutes. A.R.A. was acquitted after a one-day trial.
Section 871.01(1) provides, in relevant part: "Whoever willfully interrupts or disturbs any school or any people met for the worship of God or for any lawful purpose commits a misdemeanor of the second degree."
Plaintiff brings claims against Officer Gordon, Officer Huhn, the City of Pensacola (the "City"), Principal Ursrey, and the School Board arising from A.R.A.’s arrest and disciplinary reassignment. Specifically, Plaintiff raises claims for false arrest under Florida law against Officer Gordon (Count I) and Officer Huhn (Count II), a claim for battery under Florida law against Officer Gordon (Count III), claims under 42 U.S.C. § 1983 for violations of A.R.A.’s Fourth Amendment rights against Officer Gordon (Count IV) and Officer Huhn (Count V), and a § 1983 claim against the City for violations of A.R.A.’s rights under the First and Fourth Amendments (Count VI). Additionally, Plaintiff raises § 1983 claims for violations of A.R.A.’s First and Fourth Amendment rights against Principal Ursrey (Counts VII–VIII) and the School Board (Count IX). Defendants move to dismiss the Amended Complaint in its entirety based on qualified and statutory immunity, as well as failure to state a claim.
III. Discussion
A. Counts I & II – False Arrest
To state a claim for false arrest under Florida law, a plaintiff must allege three elements: "(1) an unlawful detention and deprivation of liberty against the plaintiff's will; (2) an unreasonable detention which is not warranted by the circumstances and (3) an intentional detention." Coipel v. Carpenter , No. 16-20458, 2017 WL 3432299, at *4 (S.D. Fla. Aug. 9, 2017) (citation omitted). "Probable cause serves as an affirmative defense to a claim for false arrest." Id. ; see Davis v. City of Apopka , 734 F. App'x 616, 621 (11th Cir. 2018). "Probable cause to arrest exists ‘when the facts and circumstances within the officer's knowledge, of which he or she had reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.’ " Davis , 734 F. App'x at 621 (citation omitted). "In order for probable cause to exist, ‘an arrest must be objectively reasonable based on the totality of the circumstances.’ " Id. (citation omitted).
Officer Gordon and Officer Huhn move to dismiss Plaintiff's false arrest claims, arguing that (1) A.R.A.’s arrest was supported by probable cause and (2) the Officers are entitled to statutory immunity pursuant to section 768.28(9)(a), Florida Statutes. In response, Plaintiff argues that (1) the Officers lacked probable cause to arrest A.R.A., (2) section 768.28(9)(A) does not apply to a claim for false arrest, and (3) even if section 768.28(9)(a) applied, the Officers would not be entitled to statutory immunity because they arrested A.R.A. "without proper investigation or probable cause." Plaintiff's arguments are unavailing.
Based only on the facts presented in the Amended Complaint, the Court concludes that Officer Gordon and Officer Huhn had probable cause to arrest A.R.A. The Officers, acting in the immediate aftermath of the Parkland Shooting, determined A.R.A. was likely the individual who had posted the meme based on the information provided by Principal Ursrey. See City of Clearwater v. Williamson , 938 So. 2d 985, 991 (Fla. 2d DCA 2006) ("[T]he receipt of information from someone who it seems reasonable to believe is telling the truth is adequate." (citation omitted)). It was reasonable for the Officers to rely on information given to them by the School's principal. The Officers also knew that Principal Ursrey had placed the School on lockdown because of the meme. Further, after the Officers read A.R.A. his Miranda rights, A.R.A. admitted to posting the meme. Under the totality of the circumstances, the Officers reasonably believed A.R.A. had committed a crime and therefore had probable cause to arrest A.R.A. for violating section 871.01(1).
Plaintiff argues that the Officers lacked probable cause because section 871.01(1) "has an intent requirement" and "no inference in the [Amended] Complaint exists to support any contention that A.R.A. intended to disrupt a school function." See ECF No. 25 at 9 (citing S.H.B. v. State , 355 So. 2d 1176 (Fla. 1977) ). Plaintiff further argues that there was no probable cause for A.R.A.’s arrest because "there is no inference in the [Amended] Complaint that A.R.A.’s speech caused a disruption to a school event." Id. Plaintiff is correct that, "[t]o commit an offense under Section 871.01(1) a person ... must act with the intention that his behavior impede the successful functioning of the assembly in which he has intervened, or with reckless disregard of the effect of his behavior" and that "the acts must, in fact, significantly disturb the assembly." See S.H.B. , 355 So. 2d at 1178. A showing of probable cause, however, does not require the Officers to "know facts that would absolutely prove beyond a reasonable doubt the guilt of the person charged." See Lewis v. Morgan , 79 So. 3d 926, 929 (Fla. 1st DCA 2012) (citation omitted). At the time the Officers arrested A.R.A., they knew, based in part on reasonably trustworthy information provided by Principal Ursrey, that (1) the meme referenced school violence, (2) A.R.A. had posted the meme, (3) the School had been placed on lockdown because A.R.A. posted the meme, and (4) the Parkland Shooting had recently occurred. Considering these facts and circumstances, the Officers had probable cause to believe A.R.A. posted the meme with at least "reckless disregard of the effect of his behavior." See S.H.B. , 355 So. 2d at 1178. Plaintiff's second assertion—that A.R.A.’s posting of the meme did not cause a disruption to a school event—is groundless. As alleged in the Amended Complaint, A.R.A.’s posting of the meme resulted in, among other things, Principal Ursrey placing the School under lockdown. In short, the only reasonable inference to be drawn from the facts alleged in the Amended Complaint is that Officer Gordon and Officer Huhn had probable cause to arrest A.R.A. Additionally, Plaintiff's false arrest claims against Officer Gordon and Officer Huhn are due to be denied because the allegations fail to overcome the Officers’ statutory immunity under section 768.29(9)(a). Section 768.28(9)(a) immunizes state officers, employees, and agents from lawsuits arising from "act[s], event[s], or omission[s] of action in the scope of [their] employment or functions." See Eiras v. Florida , 239 F. Supp. 3d 1331, 1343 (M.D. Fla. 2017). "The immunity may be pierced only if state agents either act outside the scope of their employment, or act ‘in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.’ " Id. (quoting § 768.28(9)(a), Fla. Stat.); see also Peterson v. Pollack , 290 So. 3d 102, 109–10 (Fla. 4th DCA 2020) (defining "bad faith," "with malicious purpose," and "in a manner exhibiting wanton and willful disregard of human rights [or] safety"). "[A] threadbare recital that a defendant ‘acted maliciously and in bad faith is conclusory’ and insufficient" to pierce the statutory immunity defense and survive a motion to dismiss. See Eiras , 239 F. Supp. at 1344 (quoting Brivik v. Law , 545 F. App'x 804, 807 (11th Cir. 2013) ). "The existence of probable cause contradicts any suggestion of malicious intent or bad faith." Cottam v. City of Wildwood , 750 F. App'x 791, 795 (11th Cir. 2018) ; accord Fernander v. Bonis , 947 So. 2d 584, 589 (Fla. 4th DCA 2007).
Plaintiff's argument that the Officers lacked probable cause to arrest A.R.A. for a violation of section 877.13(1)(d) is also unavailing. Even assuming Plaintiff's interpretation of section 877.13(1)(d) is correct, this argument fails because "the validity of an arrest does not turn on the offense announced by the officer at the time of the arrest." See Sebastian v. Ortiz , No. 16-20501, 2017 WL 4382010, at *4 (S.D. Fla. Sept. 29, 2017) (quoting Bailey v. Bd. of Cty. Comm'rs , 956 F.2d 1112, 1119 n.4 (11th Cir. 1992) ). "As long as probable cause existed to arrest the suspect for any offense, the arrest and detention are valid even if probable cause was lacking as to some offenses, or even all announced charges." Id. (quoting Reid v. Henry County , 568 F. App'x 745, 749 (11th Cir. 2014) ); accord Daniel v. Village of Royal Palm Beach , 889 So. 2d 988, 991 (Fla. 4th DCA 2004). Thus, even if probable cause did not exist to arrest A.R.A. under section 877.13(1)(d), Plaintiff's false arrest claims fail because the Officers’ arrest of A.R.A. was properly supported by probable cause for a violation of section 871.01(1).
The Amended Complaint alleges that Officer Gordon and Officer Huhn were "acting in the course and scope of [their] duties as [ ] law enforcement officer[s]." Am. Compl. ¶¶ 38, 44. Plaintiff attempts to pierce the Officers’ statutory immunity by arguing the Officers acted "with malicious purpose, in bad faith, and with wanton disregard for human rights" because they arrested A.R.A. "without proper investigation or probable cause." But as previously explained, Plaintiff's allegations demonstrate that the Officers had probable cause to arrest A.R.A. Accordingly, Plaintiff has failed to plausibly allege the Officers acted with the malicious intent necessary to pierce the Officer's statutory immunity. See Cottam , 750 F. App'x at 795 ; Fernander , 947 So. 2d at 589.
Plaintiff's assertion that section 768.28(9)(a) does not apply to claims for false arrest is simply incorrect. See Gurrera v. Palm Beach Cty. Sheriff's Office , 657 F. App'x 886, 892 (11th Cir. 2016) (affirming dismissal of false arrest claim under Florida law because the law enforcement officers were entitled to immunity under section 768.28(9)(a) ).
For these reasons, Counts I and II of the Amended Complaint are due to be dismissed.
B. Count III – Battery
Plaintiff raises a state law battery claim against Officer Gordon based on his allegations that Officer Gordon "detained A.R.A, shoved him against the wall, patted him down, and handcuffed him." See Am. Compl. ¶¶ 50–51. Officer Gordon argues this claim must be dismissed because it "is not viable as an independent tort but is rather subsumed by [Plaintiff's] state law false arrest claim." ECF No. 23 at 10. Based on the factual scenario pled in the Amended Complaint, the Court agrees.
The general rule under Florida law is that "an alleged battery that was committed incident to arrest does not give rise to an independent tort." Ainsworth v. Norris , 469 F. App'x 775, 777 (11th Cir. 2012) (citing Lester v. City of Tavares , 603 So. 2d 18, 19–20 (Fla. 5th DCA 1992) ); see, e.g., Casado v. Miami-Dade Cty. , 340 F. Supp. 3d 1320, 1325 (S.D. Fla. 2018) ("[T]he state law false arrest claim includes the state law battery claim, which cannot exist as a separate claim."); Mbano v. Kriseman , No. 8:14-cv-1923, 2014 WL 5782802, at *5 (M.D. Fla. Nov. 6, 2014) (same); Valderrama v. Rousseau , No. 11-CIV-24637, 2012 WL 12925174, at *4 (S.D. Fla. Sept. 18, 2012) (same).
The court's analysis in Williams v. Sirmons , No. 3:06-cv-686, 2010 WL 11639651 (M.D. Fla. Apr. 30, 2010) is instructive. In that case, a woman in a late stage of pregnancy ran a red light as she drove herself to the hospital after noticing she had begun to bleed vaginally. 2010 WL 11639651, at *2. Two police officers pulled her over, but the woman fled from the stop and drove directly to the hospital's emergency vehicle bay with the officers in close pursuit. Id. As the woman exited her car, one of the officers grabbed her arm, but she pulled free and ran towards the emergency room yelling, "Help! I'm pregnant and bleeding." Id. When the woman was stopped at two locked doors in the emergency room, one of the officers caught up to her and wrapped his arms around her, causing them both to fall to the floor. Id. The other officer then "kneeled atop the prone [woman] while he unhurriedly handcuffed her" as she "struggle[ed] to stand up and plead[ed] with the deputy to get off her stomach because she was pregnant." Id. The officers then arrested the woman. Id.
The woman brought claims for, among other things, false arrest and battery under Florida law and excessive force under § 1983. Id. at *1. On interlocutory appeal, the Eleventh Circuit held that the officers were entitled to summary judgment on the woman's § 1983 excessive force claims because "the officers used only a ‘de minimis’ amount of force that is necessarily justified to effectuate a lawful arrest." See id. at *3 (citing Williams v. Sirmons , 307 F. App'x 354, 360–61 (11th Cir. 2009) ). The district court subsequently granted summary judgment on the woman's state law battery claim, concluding—"[a]s a necessary corollary" to the Eleventh Circuit's ruling in the prior appeal–—that the woman's battery claim was "not viable as an independent tort but is rather subsumed by her state law false arrest claim." Id.
The court reasoned that, "even to the extent the Eleventh Circuit's prior opinion is not binding as the law of the case, the Court finds it persuasive in this context." Id. at *3 n.6.
In certain circumstances, however, a claim for battery may not be subsumed by a false arrest claim. For example, a plaintiff may have an independent claim for battery where "the battery occurred before the arrest" or where "arguably excessive force" is used to effect an arrest. See Harris v. Miami-Dade Cty. Dep't of Corr. & Rehab. , 160 F. App'x 814, 817 & n.4 (11th Cir. 2005) ; Lozman v. City of N. Bay Village , No. 07-23357, 2008 WL 11411195, at *3 (S.D. Fla. Apr. 30, 2008). In Harris , the Eleventh Circuit affirmed the district court's final judgment and rejected the defendants’ argument that the plaintiff's battery claim was "subsumed" by the plaintiff's false arrest claim because the jury found that the law enforcement officer "battered [the plaintiff] without provocation and then committed the separate tort of falsely arresting her." 160 F. App'x at 817. Based on this jury finding, the court concluded that the defendants’ argument "improperly characterize[d] the battery as the use of force incident to [the plaintiff's] arrest." Id. ; see id. at n.4 (distinguishing Lester on that basis that it "refer[ed] to a battery occurring during the course of an arrest").
In Lozman , the plaintiff raised claims against a municipality for battery and false arrest under Florida law. 2008 WL 11411195, at *3. The plaintiff alleged that local law enforcement officers "undert[ook] actions to intimidate and silence" him as a result of his criticism of local politicians. See id. at *1. Specifically, the plaintiff alleged that "he opened the door to his home and was ‘grabbed’ by [an officer], who then ‘pulled’ [him] from the home and ‘threw’ him on the adjacent dock." Id. at *3. The plaintiff alleged that the police officer "then ‘dragged’ [him] off the dock, ‘pushed’ him across an access road ‘into some bushes and a tennis court fence,’ and finally arrested [him]." Id. The municipality moved to dismiss the battery claim, arguing it was "subsumed within Plaintiff's common law false arrest claim." Id. The court, relying on Harris , rejected the municipality's argument because "the factual scenario pled could support a finding that a battery occurred before the alleged false arrest or that the force used was excessive under the circumstances." Id.
Guided by the persuasive reasoning in Harris, Williams , and Lozman , the Court concludes that Plaintiff has not alleged that A.R.A. was offensively touched beyond the degree of battery inherent in ordinary incidents of arrest and that his battery claim is therefore subsumed by his false arrest claim. Unlike the officer in Harris , Plaintiff has not alleged that Officer Gordon battered A.R.A. separately from the arrest. See Am. Compl. ¶¶ 50–51. Further, Plaintiff does not plausibly allege that Officer Gordon used "arguably excessive force" under the circumstances. If the force used against the pregnant woman in Williams —being forcibly brought to the ground and kneeled upon—is "de minimis," then the force used against A.R.A.—being shoved against a wall, patted down, and handcuffed—is certainly "de minimis." Moreover, unlike the plaintiff in Lozman who was "pulled" and "thr[own]" from his home based only on "rumors," A.R.A. was detained in a locked-down school after posting a meme about school shootings that had come to Officer Gordon's attention forty-eight hours after the Parkland Shooting.
For these reasons, Count III of the Amended Complaint is dismissed.
C. Counts IV & V – § 1983 Fourth Amendment Claims
Plaintiff raises § 1983 claims for violations of A.R.A.’s Fourth Amendment rights based on Officer Gordon and Officer Huhn's detention of A.R.A. See Am. Compl. ¶¶ 56, 61. For the same reasons explained supra Section III.A, probable cause existed for A.R.A.’s arrest. Accordingly, Counts IV and V are due to be dismissed. See Davis , 734 F. App'x at 621 n.7 ("If as a matter of law probable cause existed for [the plaintiff's] arrest, both [plaintiff's] § 1983 false arrest claim and his state-law false arrest claim were due to be dismissed."); Rankin v. Evans , 133 F.3d 1425, 1435 (11th Cir. 1998) ("[P]robable cause constitutes an absolute bar to both state and § 1983 claims alleging false arrest ...."). D. Count VI – § 1983 "Civil Rights" Claim
"The only difference in the probable cause analysis applicable to the state and federal claims at issue here is which party carrie[s] the burden of proving whether probable cause exist[s]." Rankin , 133 F.3d at 1436. Under Florida law, a defendant bears the burden of proving the existence of probable cause as an affirmative defense. Id. Under federal law, it is a plaintiff's burden to demonstrate the absence of probable cause in order to prevail on a false arrest claim under § 1983. Id.
Because the existence of probable cause is an absolute bar to Plaintiff's false arrest claims under § 1983, the Court need not consider the Officers’ alternative argument that they are entitled to qualified immunity. "Of course, given the Court's conclusion that [the Officers] had actual probable cause, [the Officers] certainly had arguable probable cause. As such, [the Officers] would be entitled to qualified immunity." Cf. Benoit v. City of Lake City, Fla. , 343 F. Supp. 3d 1219, 1235 n.20 (M.D. Fla. 2018).
To the extent Plaintiff asserts claims against Officer Gordon and Officer Huhn in their official capacities, see, e.g. , Am. Compl. ¶¶ 11, 13, Plaintiff's claims are "in actuality, suits directly against the city that the officer represents." See Busbey v. City of Orlando , 931 F.2d 764, 776 (11th Cir. 1991). Accordingly, the Court construes any official-capacity claims against Officer Gordon and Officer Huhn as claims against the City and will analyze those claims together. See Watkins v. Dubreuil , 820 F. App'x 940, 945 (11th Cir. 2020) ; Gurrera , 657 F. App'x at 892.
Plaintiff raises a § 1983 claim against the City, alleging the City's policies, customs, or practices caused the violations of A.R.A.’s constitutional rights by Officer Gordon and Officer Huhn. Because the Court has already determined that neither Officer Gordon nor Officer Huhn violated A.R.A.’s constitutional rights, this claim provides no basis for relief and will be dismissed. See Knight ex rel. Kerr v. Miami-Dade Cty. , 856 F.3d 795, 821 (11th Cir. 2017) ("There can be no policy-based liability or supervisory liability when there is no underlying constitutional violation.").
E. Counts VII & VIII – § 1983 First & Fourteenth Amendment Violation Claims
Plaintiff alleges that Principal Ursrey engaged in impermissible viewpoint discrimination in violation of A.R.A.’s First and Fourteenth Amendment rights when she reported the meme to law enforcement and took administrative action to subject A.R.A. to disciplinary reassignment. Principal Ursrey argues that Plaintiff's claims must be dismissed because (1) she is entitled to qualified immunity, (2) Plaintiff fails to state a claim because A.R.A. was not engaged in "protected speech" when he posted the meme, and (3) even if the meme is "protected speech," Principal Ursrey had a constitutionally valid reason to regulate A.R.A.’s speech. In response, Plaintiff argues A.R.A.’s speech is protected "artistic expression ... aimed to receive more ‘likes’ on a social media account" that falls outside Principal Ursrey's authority to regulate. For the following reasons, the Court finds that Plaintiff's claims against Principal Ursrey are barred by qualified immunity.
The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. See New York Times Co. v. Sullivan , 376 U.S. 254, 276–77, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
"Under the doctrine of qualified immunity, government officials acting within their discretionary authority are immune from suit unless the official's conduct ‘violates clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.’ " Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010) (citation omitted). "The Supreme Court has established a two-part test for determining whether an officer is entitled to qualified immunity, and the district court has discretion to determine in what order to address each part." Id. (citing Pearson v. Callahan , 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). Under the first part of the test, "[t]he court must determine ‘whether [the] plaintiff's allegations, if true, establish a constitutional violation.’ " Id. (quoting Hope v. Pelzer , 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ). Under the second part of the test, "[t]he court must also determine whether the constitutional violation was clearly established." Id. If the plaintiff carries his burden to satisfy both parts of the test, then the officer is not entitled to qualified immunity. See id.
Plaintiff does not dispute that Principal Ursrey was acting within the scope of her discretionary authority. Thus, the burden shifts to Plaintiff to demonstrate that Principal Ursrey violated A.R.A.’s constitutional rights and that, at the time of the violation, those rights were clearly established. See Jackson v. McCurry , 762 F. App'x 919, 925 (11th Cir. 2019). "An official's conduct violates clearly established law when ‘the contours of [the] right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ " Echols v. Lawton , 913 F.3d 1313, 1323 (11th Cir. 2019) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). The court "consider[s] the official's conduct in ‘the specific context of the case,’ not as ‘broad general proposition[s].’ " Id. at 1323–24 (citation omitted). The court also "ask[s] the ‘salient question ... whether the state of law at the time of [an official's conduct] provided ‘fair warning,’ to every reasonable official that the conduct clearly violates the Constitution." Id. (citation omitted).
"A plaintiff may ‘demonstrate that the contours of the right were clearly established in one of three ways.’ " Jackson , 762 F. App'x at 925 (quoting Loftus v. Clark-Moore , 690 F.3d 1200, 1204 (11th Cir. 2012) ). "First, a plaintiff may establish that ‘a materially similar case has already been decided.’ " Id. "Second, the plaintiff may ‘point to a broader, clearly established principle that should control the novel facts of the situation.’ " Id. "Third, ‘the conduct involved in the case may so obviously violate the [C]onstitution that prior case law is unnecessary.’ " Id. "The precedents that clearly establish law for these purposes are those of the Supreme Court, [the Eleventh Circuit], and the highest court of the state where the challenged action occurred." Id. at 925–26. Plaintiff's arguments fail under all three approaches.
First, Plaintiff cites no precedent that would have provided Principal Ursrey fair notice that her conduct would violate the First Amendment. Plaintiff argues that Principal Ursrey had fair notice that A.R.A.’s posting of the meme constituted "off campus" speech and therefore fell outside the scope of school officials’ authority to regulate students’ "on campus" speech under Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In Tinker , the Supreme Court held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 393 U.S. at 506, 89 S.Ct. 733. "[N]evertheless ... ‘the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,’ and the rights of students ‘must be applied in light of the special characteristics of the school environment.’ " Boim v. Fulton Cty. Sch. Dist. , 494 F.3d 978, 982 (11th Cir. 2007) (quoting Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) and Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) ). "[S]chool officials ‘must have the flexibility to control the contours of student speech within school walls or on school property, even if such speech does not result in a reasonable fear of immediate disruption." Id. (quoting Scott v. Sch. Bd. of Alachua Cty. , 324 F.3d 1246, 1248 (11th Cir. 2003) ). "Nevertheless, student speech must at least ‘be likely to cause[ ] a ‘material[ ] and substantial [ ]’ disruption, ... and more than a brief, easily overlooked, de minimis impact, before it may be curtailed." Id. (quoting Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1272 (11th Cir. 2004) ). Under this standard, "student expression may unquestionably be regulated when doing so ‘contributes to the maintenance of order and decorum within the educational system.’ " Id. (quoting Holloman , 370 F.3d at 1271 ).
Plaintiff does not cite, and the Court's independent research has not revealed, a "materially similar case" in which the U.S. Supreme Court, the Eleventh Circuit, or the Florida Supreme Court has addressed the extent to which Tinker permits school officials to restrict students’ online speech where the speech was created or transmitted "off campus" but accessed by other students "on campus." Accordingly, Plaintiff has not shown that clearly established law at the time of the challenged conduct put Principal Ursrey on notice that her conduct violated the Constitution.
In Boim , the Eleventh Circuit held that there "is no First Amendment right allowing a student to knowingly make comments, whether oral or written, that reasonably could be perceived as a threat of school violence, whether general or specific, while on school property during the school day. " 494 F.3d at 984 (emphasis added).
Plaintiff cites to Evans v. Bayer , 684 F. Supp. 2d 1365 (S.D. Fla. 2010) for the proposition that a student's speech on social media "is off-campus speech when it does not occur at a state-sponsored activity." See ECF No. 12 at 8. Evans is inapposite here for two reasons. First, it is not controlling precedent. See Jackson , 762 F. App'x at 928 ("[A] district court case cannot clearly establish the law for qualified immunity purposes." (citation omitted)). Second, "[n]othing in the Complaint indicate[d] that a well founded expectation of disruption was present," the student's online posting did not involve school shootings or violence, the posting was "never accessed on-campus, and was no longer accessible when the Defendant learned of it." See 684 F. Supp. 2d at 1372–74.
Plaintiff's arguments under the second and third approaches also fail. Plaintiff relies on the broad principle, established in Tinker , that "[w]ithout ‘a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression[’] and cannot be punished for speech which school officials do not wish to contend." see ECF No. 12 at 4 (quoting Tinker , 393 U.S. at 511, 89 S.Ct. 733 ). But that general principle does not resolve with "obvious clarity" that school officials may not regulate a student's online speech referencing a school shooting that is created or transmitted "off-campus" but that is accessed by other students "on campus." Cf. Echols , 913 F.3d at 1324. Indeed, as Plaintiff recognizes, social media and the "omnipresence" of online communication have posed significant challenges for courts tasked with discerning "on campus" speech from "off campus" speech. Compare B.L. ex rel. Levy v. Mahanoy Area Sch. Dist. , 964 F.3d 170, 189–91 (3d Cir. 2020) (holding Tinker categorically does not apply to off-campus speech and that "the ‘online’ nature of that off-campus speech makes no constitutional difference"), with Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist. , 494 F.3d 34, 38–39 (2d Cir. 2007) (holding " Tinker affords no protection against school discipline" for a student's online creation and transmission of an icon calling for the killing of his teacher that occurred away from school property because it "foreseeably creat[ed] a risk of substantial disruption within the school environment"), and Bell v. Itawamba Cty. Sch. Bd. , 799 F.3d 379, 394 (5th Cir. 2015) (en banc) (holding Tinker applied to a student's online "rap recording containing threats to, and harassment and intimidation of, two teachers" where the student posted the recording on his Facebook page "because he knew it would be viewed and heard by students"), and Wynar v. Douglas Cty. Sch. Dist. , 728 F.3d 1062, 1067–72 (9th Cir. 2013) (holding Tinker applied to a student's MySpace messages that were written from home and that contained "an identifiable threat of school violence"); see also C1.G. v. Siegfried , 477 F. Supp. 3d 1194, 1205-06 (D. Colo. 2020) (adopting the "majority view that Tinker applies to off-campus speech" because "social media has become part of [the school] environment, whether its engagement is on- or off-campus"). Finally, as illustrated by these courts’ conclusions, it has certainly not been obvious to the federal courts that a student's off-campus creation or transmission of online speech that references violence is afforded protection from school discipline under Tinker . The Court "cannot ‘expect that reasonable [officials] know more than reasonable judges about the law.’ " See Echols , 913 F.3d at 1325. The Court therefore "cannot say that it would have been ‘readily apparent’ to every reasonable official" that Principal Ursrey's actions violated A.R.A.’s constitutional rights. See id. ; see also Jackson , 762 F. App'x at 927 ("Qualified immunity gives government officials breathing room to make reasonable ... judgments about open legal questions." (quoting al-Kidd , 563 U.S. at 743, 131 S.Ct. 2074 )).
Notably, B.L. did not involve off-campus student speech referencing violence. See 964 F.3d at 190. Indeed, the Third Circuit recognized that "[a] future case ... involving speech that is reasonably understood as a threat of violence or harassment targeted at specific students or teachers, would no doubt raise different concerns and require consideration of other lines of First Amendment law." Id.
For these reasons, Principal Ursrey lacked fair notice that her conduct would violate the Constitution and she therefore enjoys qualified immunity from Plaintiff's claims. Accordingly, Counts VII and VIII of the Amended Complaint are dismissed. F. Count IX – § 1983 "Civil Rights" Claim
Because Plaintiff has failed to satisfy the second prong of the qualified-immunity analysis, the Court need not decide whether Plaintiff has sufficiently alleged that Principal Ursrey's conduct actually violated A.R.A.’s constitutional rights. See Jackson , 762 F. App'x at 925 ; McKnight v. Garriott , No. 3:15-cv-159, 2018 WL 6019706, at *20 n.20 (M.D. Fla. Nov. 16, 2018). The Court notes, however, that "federal courts have uniformly agreed that language reasonably perceived as threatening school violence is not constitutionally protected – whether such language is written or oral, and whether it occurs at school or elsewhere." See J.R. ex rel. Redden v. Penns Manor Area Sch. Dist. , 373 F. Supp. 3d 550, 559 (W.D. Pa. 2019) (collecting cases).
The Court echoes the Eleventh Circuit's sentiment in Boim that "[w]e can only imagine what would have happened if the school officials, after learning [of the student's notebook where she discusses a ‘dream’], did nothing about it and the next day [the student] did in fact come to school with a gun and shoot and kill her math teacher. In our view, it is imperative that school officials have the discretion and authority to deal with incidents like the one they faced in this case." 494 F.3d at 984 ; accord Ponce v. Socorro Indep. Sch. Dist. , 508 F.3d 765, 772 (5th Cir. 2007) ("School administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance.").
To the extent Plaintiff raises claims against Principal Ursrey in her official capacity, see Am. Compl. at pp. 17, 19, the Court construes the official-capacity claims as claims against the School Board and will analyze those claims together. See Watkins , 820 F. App'x at 945 ; Gurrera , 657 F. App'x at 892.
In Count IX of the Amended Complaint, Plaintiff raises a § 1983 claim against the School Board based on Principal Ursrey's alleged violations of A.R.A.’s constitutional rights. In support of this claim, Plaintiff alleges that the School Board (1) has a "de facto policy, practice, and/or custom" of violating students’ First and Fourth Amendment rights, and (2) the School Board failed to adequately supervise, train, monitor, and discipline its employees, including Principal Ursrey, "thereby failing to adequately discourage further constitutional violations on the part of its employees." See Am. Compl. ¶¶ 85–86. The School Board argues this claim must be dismissed because Plaintiff has failed to allege facts sufficient to support a claim for municipal liability under § 1983 and Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court agrees.
"The Supreme Court has placed strict limitations on municipal liability under § 1983." Grech v. Clayton Cty., Ga. , 335 F.3d 1326, 1329 (11th Cir. 2003). A municipal entity, like the School Board in this case, cannot be held liable under § 1983 "simply because its agent causes an injury, even a constitutional injury." Gilmere v. City of Atlanta, Ga. , 737 F.2d 894, 902 (11th Cir. 1984). Thus, a § 1983 claim against a municipality may not be premised on a theory of respondeat superior. Monell , 436 U.S. at 691, 98 S.Ct. 2018. Instead, a plaintiff must identify a municipal custom or policy that caused his injuries. Gold v. City of Miami , 151 F.3d 1346, 1350 (11th Cir. 1998). In other words, liability may only attach where the municipality's custom or policy caused municipal employees to violate the plaintiff's constitutional rights. Id.
A plaintiff can establish municipal liability under Monell in three ways: (1) identify an official policy; (2) identify an unofficial custom or practice that is "so permanent and well settled as to constitute a custom and usage with the force of law;" or (3) identify a municipal official with "final policymaking authority" whose decision violated the plaintiff's constitutional rights. See Cuesta v. Sch. Bd. of Miami-Dade Cty., Fla. , 285 F.3d 962, 966, 968 (11th Cir. 2002). Only the second theory of municipal liability is alleged in this case. See Am. Comp. ¶¶ 83, 68 (alleging existence of "a de facto policy, practice, and/or custom").
Municipalities may be sued for "constitutional deprivations visited pursuant to governmental ‘custom’ even though such custom has not received formal approval through the [municipality's] official decisionmaking channels." Monell , 436 U.S. at 690–91, 98 S.Ct. 2018. Custom consists of "persistent and widespread ... practices" or "deeply embedded traditional ways of carrying out ... policy" that, although unwritten, are "so permanent and well settled as to [have] ... the force of law." See id. at 691 & n.56, 98 S.Ct. 2018. In cases alleging municipal "inaction," a custom arises where a municipality fails to correct "the constitutionally offensive actions of its employees" and instead "tacitly authorizes" or " ‘displays deliberate indifference’ towards the misconduct." Griffin v. City of Opa-Locka , 261 F.3d 1295, 1308 (11th Cir. 2001) (citation omitted). Importantly, the municipality must have actual or constructive knowledge of the widespread unconstitutional practice to form a custom of indifference, and "random acts or isolated incidents are insufficient." See Depew v. City of St. Marys, Ga. , 787 F.2d 1496, 1499 (11th Cir. 1986). Thus, to plausibly state a § 1983 claim against the School Board based on deliberate indifference to students’ First and Fourth Amendment rights, Plaintiff must sufficiently allege: (1) the existence of a widespread and persistent pattern of violations of students’ First and Fourth Amendment rights; (2) that the School Board had actual or constructive knowledge of the violations; (3) that the School Board tacitly approved or deliberately ignored the violations, such that their inaction became a custom; and (4) that the School Board's custom of inaction through deliberate indifference was a "moving force" behind the constitutional violations. See Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown , 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
The School Board's liability under § 1983 for failure to train, supervise, monitor or discipline its employees is similarly limited to circumstances where the inaction amounts to deliberate indifference and is based on an official policy or custom. See Connick v. Thompson , 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). To state such a claim, Plaintiff must sufficiently allege that (1) the employees were inadequately trained or supervised; (2) this failure to adequately train or supervise is the policy or custom of the government entity; and (3) the policy caused the employees to violate a citizen's constitutional rights. See City of Canton v. Harris , 489 U.S. 378, 389–91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Because "a municipality will rarely have an express written or oral policy of inadequately training or supervising its employees," a policy or custom may be shown where the failure to train or supervise evidenced "deliberate indifference" to constitutional rights in the face of a "history of widespread prior abuse" or a pattern of prior similar incidents put the municipality on notice of a need to train. Gold , 151 F.3d at 1350–51 (quoting City of Canton , 489 U.S. at 388–89, 109 S.Ct. 1197 and Wright v. Sheppard , 919 F.2d 665, 674 (11th Cir. 1990) ).
Plaintiff's allegations are insufficient to state a § 1983 claim against the School Board. Even assuming Plaintiff has plausibly alleged a violation of A.R.A.’s constitutional rights by Principal Ursrey, Plaintiff does not allege a widespread and persistent pattern of violations of students’ First and Fourth Amendment rights or that the School Board had actual or constructive knowledge of any such violations. Plaintiffs’ allegations therefore fail to raise any plausible inference that the School Board evidenced a "deliberate indifference" to constitutional rights. Viewing the allegations in the light most favorable to Plaintiff, the allegations against the School Board would amount to only a "random act[ ] or isolated incident[ ]" that is "insufficient" to support a claim under Monell . See Depew , 787 F.2d at 1499. Count IX is therefore dismissed.
Accordingly,
1. Defendants’ motions to dismiss, ECF Nos. 9 and 23, are GRANTED .
2. Plaintiff's First Amended Complaint, ECF No. 15, is DISMISSED .
DONE AND ORDERED this 7th day of January 2021.