Opinion
Case No. 8:00-cv-2297-T-24TBM
April 6, 2001
ORDER
This cause comes before the Court for consideration of Defendants' Motion to Dismiss and Motion to Strike (Doc. No. 19, filed January 12, 2001) and Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss and Motion to strike (Doc. No. 27, filed February 16, 2001).
Defendants Antolini, Busch, Narum, and Queen join in this Motion to Dismiss. Defendant Rice in his individual capacity joins Defendants in the Motion to Dismiss for the purposes of the malicious prosecution claim (Count IX of the complaint). He also joins in his official capacity in the Motion to Strike.
I. BACKGROUND
This action arises from a ten-count complaint that Plaintiffs filed, claiming that they were deprived of their constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution. Plaintiff Heine is the owner and operator of both Tobacco Emporium, Incorporated ("TE") and New Tradition Pipe Company ("New Pipe"). Defendants are Deputy Sheriffs for Pinellas County Sheriff's Office ("PCSO").
During an investigation of Plaintiff Heine, New Pipe, and TE, the PCSO received statements from two of Plaintiff Heine's former employees; conducted trash pulls and performed undercover buys of supposed drug paraphernalia at New Pipe and TE; and took aerial photographs of Plaintiff Heine's residence, monitored the energy usage of his residence through thermal imaging, and compared kilowatt usage of Plaintiff Heine's residence with other similar structures. As a result of the information obtained during the investigation, Defendants Antolini and McLean requested search warrants for Plaintiff Heine's residence, New Pipe, and TE. On January 28, 1998, Pinellas County Circuit Judge David Seth Walker issued the requested search warrants. Based on the evidence obtained during the searches, Plaintiff Heine was arrested and materials were seized from his residence, New Pipe, and TE.
Defendants attached a copy of the affidavits for the search warrants to their Memorandum of Law in support of their Motion to Dismiss and Motion to Strike. (Defs.' Ex. A-C). Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court is required to convert a motion to dismiss to a motion for summary judgment if the defendant attaches documents to the motion that are outside of the pleadings; however, if the plaintiff refers to specific documents in the complaint that are central to his or her claim, the defendant may attach these documents as part of the motion and the court may consider these documents as part of the pleadings for the purposes of the motion to dismiss. Brooks v. Blue Cross Blue Shield of Florida, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Because of the extent to which Plaintiffs rely on Defendant Antolini and Defendant McLean's affidavits, this Court will consider the affidavits as part of the pleadings, and Defendants' Motion to Dismiss will not be converted to a Motion for Summary Judgment.
Following Plaintiff Heine's arrest and the seizure of materials at his residence, New Pipe, and TE, Plaintiffs filed motions to suppress the seized evidence. On October 13, 1999, Pinellas Count Circuit Judge Lauren Laughlin granted the motions to suppress for evidence seized at Plaintiff Heine's residence and New Pipe, but denied the motion to suppress the evidence seized at TE. State of Florida v. Randolph A. Heine, CRC98-1818-CFANO-D. In granting the motion for Plaintiff Heine's residence, the court found that the affidavit in support of the search warrant contained a material misrepresentation of fact. (Compl. ¶ 55(c)). specifically, the affidavit stated that a confidential informant told Defendants Antolini and McLean that Plaintiff Heine was growing marijuana and that the grow operation was still in operation in November 1997; however, the confidential informant denied stating these facts in his testimony to the court. (Compl. ¶ 55(d)). Also, the affidavit failed to mention that the other confidential informant told Defendant Busch that he had personal knowledge that the grow operation had been taken down in February 1997. (Compl. ¶ 55(e)-(f)). Judge Laughlin then looked at the thermal imaging and kilowatt usage comparisons and concluded that the data was inconclusive and misleading. (Compl. ¶ 55(k)-(n)). Because Defendants Antolini and McLean misrepresented and omitted pertiment information, the court found that there was no probable cause search warrant.
In granting the motion for Plaintiff New Pipe, the court again that the affidavit contained gross, material misrepresentations of fact. (Compl. ¶ 55(p)). The affidavit in support of the search warrant for New Pipe relied on statements from a confidential informant and trash pulls that the Defendants' performed. (Def. Ex. B). Like the circumstances surrounding the first affidavit, the confidential informant denied that he had told the police that he had observed the manufacture of drug paraphernalia. (Compl. ¶ 55(v)). The court also found that the items found during the trash pulls were not per se illegal and that the affidavit contained no allegation that any of the recovered items were used for any illicit purpose. (Compl. ¶ 55(w)). For these reasons, Judge Laughlin found that there was no probable cause for the search warrant for New Pipe.
After the motions to suppress evidence were granted, the State of Florida nolle prossed all pending criminal charges against Plaintiff Heine. Plaintiffs then brought claims under § 1983 asserting violations of their constitutional rights under the Fourth and Fourteenth Amendments resulting from Plaintiff Heine's arrest and possible prosecution, and the seizure of materials from his residence, New Pipe, TE.
Defendants now move to dismiss these claims pursuant to Rule 12 of the Federal Rules of Civil Procedure. Specifically, Defendants move to dismiss Counts II, VI, and VIII (Plaintiffs' due process claims for withholding information from the affidavits) because the Due Process Clause does not provide a means of relief for Plaintiffs to recover. Defendants also move to dismiss Counts I, V, VII (Plaintiffs' search and seizure claims) on the grounds that the complaint failed to meet the heightened pleading standard required for § 1983 claims and that Defendants, as government officials, are entitled to qualified immunity because they did not violate Plaintiffs' clearly established constitutional rights. Further, Defendants move to dismiss Count IX (Plaintiff Heine's federal malicious prosecution claim), alleging that Plaintiff Heine failed to state a claim upon which relief can be granted. Finally, Defendants move to strike paragraphs twenty to forty-eight of the complaint on the grounds that the material contained in these paragraphs is immaterial to Plaintiffs' claims.
II. Standard of Review
In ruling on a motion to dismiss, the court should not dismiss a complaint unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering a motion to dismiss, the court must take all material allegations of the complaint as true, and liberally corstrue those allegations in favor of the plaintiff. Erickson v. Hunter, 932 F. Supp. 1380 (M.D. Fla. 1996). In this circuit, a § 1983 claim must be pled under a "heightened pleading requirement.," meaning that the facts that make out the claim must be alleged with "some specificity." (GJR Inv., Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998) ("Some factual detail in the pleadings is necessary to the adjudication of § 1983 claims.").
Motions to strike on the grounds of insufficiency, immateriality, irrelevancy, and redundancy are not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. Cherry v. Crow, 845 F. Supp. 1520, 1524 (M.D. Fla. 1994) (citing Poston v. American President Lines Ltd., 452 F. Supp. 568, 570 (S.D. Fla. 1978) (citingAugustus v. Board of Pub. Instruction, 306 F.2d 862 (5th Cir. 1962))).
III. Discussion
1. Due Process Claim
A. Motion to Dismiss
In Counts II, VI, and VIII of the complaint, Plaintiffs claim that Defendant Antolini, in his individual capacity, violated their due process rights under the Fourteenth Amendment for failing to include material information in the affidavit for the warrants to search Plaintiff Heine's residence, New Pipe, and TE.
This coupt of Plaintiffs' complaint also asserts a claim against Defendant McLean; however, because Defendant McLean did not join in this motion, this Court will not address the claims against Defendant McLean.
The Due Process Clause of the Fourteenth Amendment prevents the states from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. Two types of claims can arise under the Due Process Clause — substantive or procedural due process claims. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Substantive due process protects fundamental rights from "'certain government actions regardless of the fairness of the procedures used to implement them.'"County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Fundamental rights include most of the rights specified in the Bill of Rights, and any right that is "'implicit in the concept of ordered liberty'" McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)), cert. denied, 513 U.S. 1110 (1995). Procedural due process, on the other hand, refers to the existence of adequate constitutional procedures in depriving a person of their life, liberty, or property. Id. at 1561.
In order to assert a § 1983 claim, the specific constitutional deprivation must be identified. Graham v. Connor, 490 U.S. 386, 394 (1989). Plaintiffs have asserted violations of their substantive due process rights under the Fourteenth Amendment. However, substantive due process claims are very limited in nature. "As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Consequently, the scope of subs live due process claims has been limited to areas relating to family, procreation., marriage, and bodily integrity. Albright v. Oiver, 510 U.S.2 66, 27 1-72 (1994) (Rehnquist, O'Connor, Scalin Ginsburg, JJ., plurality opinion). Instead of relying on substantive due process to restrict the exercise of the government's arbitrary authority in particular situations, courts are to look to the protections granted in the first Ten Amendments of the Constitution. Id. at 273. If a particular Amendment provides protection from an alleged violation of a constitutional right; "'that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims.'" Id. (quoting Graham, 490 U.S. at 395).
The Fourteenth Amendment incorporates many of the protections provided in the Bill of Rights, making them applicable to the states. Wolf v. Colorado, 338 U.S. 25 (1949).
In Albright, the plaintiff filed a § 1983 malicious prosecution claim against a city police detective on the grounds that the detective deprived the plaintiff of his substantive due process rights under the Fourteenth Amendment by infringing on his liberty right to be free from prosecution without probable cause. Id. at 270. The Court held that the plaintiff failed to state a claim upon which relief could be granted because the plaintiffs claim alleged a Fourth Amendment violation rather than a due process violation under the Fourteenth Amendment. Id. at 275. Because the plaintiff failed to allege a Fourth Amendment violation, the Court upheld the dismissal of plaintiff's claim. Id.
Although Albright was a plurality opinion, seven Justices agreed that the plaintiff's proper cause of action was under the Fourth Amendment, not the Fourteenth Amendment. 510 U.S. at 270-92. However, the Court did not address whether a malicious prosecution claim was proper under the Fourth Amendment. Id.
Here, Plaintiffs claim that Defendant Antolini violated their substantive due process rights under the Fourteenth Amendment by withholding information from the affidavits for the search warrants, presumably leaving the Defendant without probable cause for the search warrant. Like the plaintiffs claim in Albright, the allegations contained in Plaintiffs' complaint assert a cause of action under the Fourth Amendment, not the Fourteenth Amendment because they are challenging the search that took place as a result of the warrants that were issued. Therefore, to be entitled to relief under § 1983, Plaintiffs must file a claim under the Fourth Amendment; they are not entitled to relief under the substantive due process clause of the Fourteenth Amendment.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants are entitled to qualified immunity if the complaint fails to allege a violation of a clearly established constitutional right. St. George v. Pinellas County, No. 99-1947-CIV-T-24E, 1999 U.S. Dist. LEXIS 18686, at *7 (M.D. Fla. Oct. 22, 1999). Because Plaintiffs have not alleged a violation of any constitutional right, "it is `axiomatic that the [P]laintiffs likewise have failed to allege violation of a `clearly established' right.'" Id. at *8 (quoting GJR Inv., 132 F.3d at 1367). Therefore, this Court must grant Defendants' Motion to Dismiss Counts II, VI, and VIII.
2. Search and Seizure Claim
Counts I, V, and VII of the complaint assert that Defendants violated Plaintiffs' Fourth Amendment rights to be free from unreasonable searches and seizures. Defendants allege that Plaintiffs did not meet the heightened pleading requirement for § 1983 claims because they did not specifically allege that Defendants violated a clearly established constitutional right; therefore, their complaint fails to state a legally cognizable claim under § 1983. Under the law of this circuit, a plaintiff must plead a § 1983 claim under a "heightened pleading requirement," meaning that the facts that make out the claim must be alleged with "some specificity." GJR Inv., 132 F.3d at 1367. Defendants also assert that they are entitled to qualified immunity because they were acting within the scope of their duty and because there was no allegation in the complaint that Defendants were acting outside of their scope of authority.
Qualified immunity shields a government official in his individual capacity from both suit and liability if his conduct does not violate clearly established constitutional rights of which a reasonable person would have known. Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Eleventh Circuit established a two-part analysis to determine whether qualified immunity is available. Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995). First, the defendant must prove that he was acting within the scope of his discretionary authority when the alleged wrongful action took place. Id. (citing Ziegler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983)). Second, the plaintiff must show that the defendant violated the plaintiff's clearly established constitutional rights. Id.
To establish whether a government official acts within his discretionary authority, the actions must have been "undertaken pursuant to the performance of his duties and within the scope of his authority." Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988). In applying this two-part test, the court must ask whether the act complained of, if done for a proper purpose, would be within or reasonably related to the "outer perimeter" of an official's discretionary duties. Harbert Int'l. Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998).
Defendant Antolini has served as a narcotics detective for the PCSO since 1996. (Defs.' Ex. A). He received specialized training in narcotics law violations from the Pasco/Hernando County Police Academy and the Investigation and Identification of Narcotics (which the Florida Department of Criminal Justice Standards and Training Commission recognizes). (Defs.' Ex. A). Further, Defendant Antolini has participated in numerous narcotics academies and has participated in illegal narcotics investigations within Pinellas County. (Defs.' Ex. A).
Investigating narcotics violations is certainly within the scope of his authority as a narcotics detective. Defendant Antolini's actions in applying for a search warrant based on his investigation of Plaintiffs were done for a proper purpose and within or reasonably related to the "outer perimeter" of his duties. Further, Plaintiffs do not allege in their complaint that any of the Defendants acted outside of their discretionary authority. Rather, Plaintiffs argue that Defendant Antolini did not have probable cause to search his residence, New Pipe, or TE, resulting in a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Therefore, Defendants have cleared the first hurdle in determining whether they are entitled to qualified immunity because they acted within their discretionary authority as deputy sheriffs of PCSO.
After determining that Defendants acted within the scope of their authority, the burden shifts to Plaintiffs to show that Defendants' alleged conduct violated Plaintiffs' clearly established constitutional rights. For a constitutional right to be clearly established, "'the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'"Williams v. Alabama State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "Unless a government agent's act is so obviously wrong, in light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit." Lassiter v. Alabama State Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (citing Malley v. Briggs, 475 U.S. 335, 34 1-343 (1986)). The plaintiff's burden is not discharged simply by "referring to general rules and to the violation of "rights.'" Id. at 1150 (citingAnderson, 483 U.S. at 639-41). Instead, to defeat qualified immunity, the plaintiff must point to actual specific details of the case that correspond with factual terms of case law that clearly establish the right in question. Id. Although the facts of cases relied on as precedent are important in showing a clearly established right, the facts do not need to be the same as the facts of the immediate case — only "materially similar." Id.
Turning to the issues in this case, Counts II, VI, and VIII are analyzed under the Fourth Amendment's protection from unlawful search and seizure. Plaintiffs assert claims against the individual Defendants for different reasons under these counts. For this reason, this Court will address the claims as they apply to each Defendant individually.
a. Defendant Antolini
Plainliffs allege that Defendant Antolini violated their Fourth Amendment rights to be free from unreasonable searches and seizures because he lacked probable cause in applying for search warrants for Plaintiff Heine's residence, New Pipe, and TE. Specifically, Plaintiffs claim that Defendant Antolini omitted material information from the affidavits, resulting in a lack of probable cause in applying for the warrants. In order to be entitled to qualified immunity from a Fourth Amendment claim, an officer need not have actual probable cause, but only arguable probable cause, in that the facts and circumstances of the situation must be such that a reasonable officer could believe that probable cause existed. Cannon 174 F.3d at 1283 n. 3 (citing Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997) cert denied, 525 U.S. 870 (1998)). The analysis is not whether probable cause existed, but whether a reasonable officer could have believed that probable cause existed in light of the information that he possessed. Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). The information that is known to the defendant officers at the time of their conduct is what counts for qualified immunity purposes, "not the facts known to the plaintiff then or those known to a court later." Cannon, 174 F.3d at 1283 n. 4 (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
In the case at hand, Plaintiffs claim that Defendant Antolini lacked probable cause because he omitted material information from the affidavit when applying for the search warrant. The Eleventh Circuit has held that "an officer would not be entitled to qualified immunity when "the facts omitted . . . were . . . so clearly material that every reasonable Law officer would have known that their omission would lead to a search in violation of federal Law.'" Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997) (quoting Haygood v. Johnson, 70 F.3d 92, 95 (11th Cir. 1995), cert. denied sub. nom., Haygood v. Savage, 117 S.Ct. 359 (1996)). Plaintiffs claim that Defendant Antolini failed to include portions of the confidential informants' statements, that the thermal imaging was inconclusive, that there was no current marijuana growing operation inside Plaintiff Heine's residence, and that certain items were not illegal per Se.
As stated earlier, Plaintiff cannot rely on facts that were not known to Defendant at the time of his actions, nor can he rely on facts that the court later learns to strip Defendant Antolini of qualified immunity. Cannon, 174 F.3d at 1283 n. 4. Defendant Antolini has extensive training in narcotics investigation and has participated in numerous narcotics investigations. (Defs.' Ex. A). Just because the trial judge found that the results were inconclusive does not mean that Defendant Antolini, at the time he applied for the search warrant, believed the results to be inconclusive. Plaintiffs cannot rely on the judge's findings after Defendant Antolini's actions to show that he lacked probable cause in applying for the search warrants.
Also, the Eleventh Circuit has previously held that thermal imaging is constitutional and can help establish probable cause for a search warrant. United States v. Robinson, 62 F.3d 1325 (11th Cir. 1995), cert. denied, 517 U.S. 1220 (1996); United States v. Ford, 34 F.3d 992 (11th Cir. 1994). The results of the thermal imaging of Plaintiff Heine' s house could have given a reasonable officer in Defendant Antolini's situation arguable probable cause for the search warrant.
Although the Supreme Court has not addressed the issue of thermal imaging, the Sixth Seventh, Eighth, and Ninth Circuits have addressed the issue and all have held that thermal imaging is proper to support probable cause for a search warrant.
Turning to the issue that Defendant Antolini left material information relating to the confidential informants out of the search warrant, Plaintiffs complaint alleges that Defendant Busch knew that the confidential informants were adversarial to Plaintiff Heine. Also, Judge Laughlin found that Defendant Busch had personal knowledge that grow operation in Plaintiff's Heine's residence had not been reconstructed. However, these allegations do not show how Defendant Antolini is liable for violating Plaintiffs' Fourth Amendment rights. Plaintiffs do not allege that Defendant Antolini knew of the information that Defendant Busch knew, nor is there any allegation showing that Defendant Antolini intentionally omitted these facts. Under the heightened pleading standard of this circuit, Plaintiffs must allege with "some specificity" how Defendant Antolini knew of these facts and how the omission of these facts denied Defendant of arguable probable cause. Plaintiffs have failed to do this.
Further, the elimination of this material would not itself eliminate arguable probable cause. The omission of information from an affidavit will only strip Defendant of qualified immunity if the omission was the sole basis of the affidavit. Cannon, 174 F.3d at 1285. Defendant Antolini did not rely solely on the information of the confidential informants' statements in applying for search warrants. Besides the confidential informant statements, the probable cause for Plaintiff Heine's residence also was established through thermal imaging, aerial photos, and energy usage comparisons from structure similar to Plaintiff Heine's home. A reasonable officer in Defendant Antolini's position, with the information and experience that he had, could believe that probable cause existed when applying for a search warrant for Plaintiff Heine's home.
Like the search warrant for Plaintiff Heine's residence, Defendant Antolini did not rely only on the confidential informant's information in applying for the search warrant for New Pipe. He relied on trash pulls at New Pipe, TE, and Plaintiff's Heine's residence, as well as undercover buys at TE that recovered drug paraphernalia with the New Pipe logo. Also, another detective at the PCSO had previously observed drug paraphernalia while inside New Pipe, and Defendant McLean examined drug paraphernalia that had been recovered by the PCSO in previous narcotics investigating and observed the New Pipe logo on many of these items. Any reasonable officer armed with the information and experience that Defendant Antolini had when he applied for the search warrants could have reasonably believed t probable cause existed.
The trash pulls at both TE and Plaintiff Heine's residence established probable cause for the search of New Pipe because the pulls recovered evidence linking all three, including drug paraphernalia with the New Pipe logo.
As for TE's claim against Defendant Antolini, Judge Laughlin found that Defendant Antolini did have probable cause in applying for the search warrant; therefore, Plaintiff TE's claim is without merit. For these reasons, this Court finds that Defendant Antolini had arguable probable cause in applying for the search warrants for Plaintiff Heine and New Pipe. Therefore, because Defendant Antolini was acting within his discretionary authority as a deputy sheriff and did not violate any clearly established law, he is entitled to qualified immunity. This Court grants Defendants' Motion to Dismiss Counts I, V, VII of Plaintiff's complaint to the extent that they apply to Defendant Antolini.
b. Defendants Busch, Narum, and Queen
Plaintiffs assert a cause of action against Defendants Busch, Narum, and Queen for violating their Fourth Amendment right to be free from unreasonable search and seizure. Specifically. Plaintiffs claim that Defendant Busch, Narum, and Queen knew of information that Defendants Antolini and McLean omitted from the affidavits in support of the search warrants. Defendants argue that there is no duty to intervene when another law enforcement officer omits information from an application for a search warrant.
Plaintiffs have failed to allege with specificity exactly how Defendants Busch, Narum, and Queen have violated their constitutional rights. Plaintiffs must show this Court that there was a violation of their constitutional rights and that the constitutional right was clearly established at the time of Defendants' actions. Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1378 (11th Cir. 1997). It is not clear from the face of Plaintiffs' complaint that Defendants Busch, Narum, or Queen violated Plaintiffs' constitutional rights. Plaintiffs have also failed to show clearly established law that confirms that Defendants had a duty to intervene when Defendants Antolini and McLean omitted information from the affidavits in support of the search warrants for Plaintiff Heine's residence, New Pipe, and TE. Because Plaintiffs have failed to meet their burden in overcoming Defendants' qualified immunity, this Court must grant Defendants' Motion to Dismiss Counts I, V, VII as they relate to Defendants Busch, Narum, and Queen.
3. Malicious Prosecution Claim
Count IX of Plaintiff Heine's complaint asserts a cause of action against Defendants for malicious prosecution. Plaintiff Heine brings this claim "under federal law" and relies on Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and Uboh v. Reno, 141 F.3d 1000 (11th Cir. 1998). Defendants move to dismiss this claim on the grounds that Plaintiff Heine has failed to state a claim upon which relief can be granted. Defendants argue that Bivens actions assert claims against federal agents acting under color of federal law; therefore, because the Defendants are not federal officials acting under color of law, Plaintiff Heine has failed to state a claim under which relief can be granted.
Plaintiff Heine has filed claims against Defendant Rice in his Official Capacity in Counts III and IV of the complaint. Only his malicious prosecution claim against Defendants includes Defendant Rice in his individual Capacity. Defendant Rice joins in this Motion to Dismiss Count IX.
Although Bivens did not involve a claim for malicious prosecution, it did recognize a federal cause of action against federal officials in violation of a plaintiff's constitutional rights. 403 U.S. at 397. Because Defendants are state officials acting under color of state law,Bivens is not applicable to Plaintiff Heine's malicious prosecution claim. On the other hand, Uboh did involve a malicious prosecution claim, but the plaintiffs claim arose under Bivens — not § 1983 — because the defendants involved were federal officials. 141 F.3d at 1000. However, the Uboh court did recognize that the Eleventh Circuit "unequivocally has identified malicious prosecution to be a constitutional tort that is cognizable under § 1983." Id. at 1002-03 (citing Strength v. Hubert, 854 F.2d 421, 426 n. 5 (11th Cir. 1988)). To the extent that Uboh recognizes a cause of action against federal officials for malicious prosecution under Bivens, Uboh is not helpful in determining whether Plaintiff Heine states a claim of relief for malicious prosecution under § 1983.
In bringing a claim for malicious prosecution under § 1983, a plaintiff must base his claim on the specific violation of a federal right. Whiting v. Traylor 85 F.3d 581, 586 (11th Cir. 1996). Section 1983 is not a source of substantive rights; therefore, to assert any claim under § 1983, the plaintiff must identify the specific constitutional right that has been infringed. Singer v. Fulton County sheriff, 63 F.3d 110, 115-16 (2d Cir. 1995), cert. denied, 517 U.S. 1189 (1996).
Here, Plaintiff Heine's claim for malicious prosecution asserts only that this action arises under federal law, namely Bivens and Uboh. As previously discussed, Bivens gives rise to a federal cause of action for constitutional violations by federal officials. Even under Bivens, a plaintiff claiming a constitutional violation of his or her rights must point to the. specific constitutional right that entitles him or her to relief under Bivens. Furthermore, Uboh, like Bivens, is based on a constitutional infringement by federal officials and derives its authority from Bivens. Neither Bivens nor Uboh are sources of "federal law" upon which Plaintiff Heine may rely. Because Plaintiff Heine has not pointed to the specific constitutional violation that would give rise to his claim for malicious prosecution, he has failed to state a claim upon which relief may be granted. For these reasons, this Court must grant Defendants' Motion to Dismiss Count IX of Plaintiffs' complaint.
In Strength, the Eleventh Circuit held that freedom from malicious prosecution was a federally protected right. 854 F.2d at 426. However, the plaintiffs in Strength claimed that their right to be free from malicious prosecution violated their Fourth and Fourteenth Amendment rights. Here, Plaintiff Heine has failed to claim any violation of any constitutional right or applicable federal law.
B. Motion to Strike
Under Rule 12(f) of the Federal Rules of Civil Procedure, Defendants move to strike paragraphs twenty through forty-eight of Plaintiffs' complaint because the allegations in these paragraphs have nothing to do with Plaintiffs' claims. Rule 12(f) allows the court to strike any matter in a pleading that is "redundant, immaterial, impertinent, or scandalous." Fed.R.Civ.P. 12(f)(2000). "'Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded, or a statement of unnecessary particulars in connection with and descriptive of that which is material." 5A CHARLES ALLAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1382, pp. 706-08 (2d ed. 1990).
Paragraphs twenty through forty-eight detail events in Plaintiff Heine's life from the early seventies until the early nineties. These events include his advocacy for reform of laws criminalizing marijuana; prior businesses that he owned; Defendant Rice's statements expressing his disapproval of drug paraphernalia; PCSO's prior investigations of Plaintiff Heine's businesses; ordinances passed outlawing paraphernalia in certain Florida counties and his challenges to these ordinances; and Plaintiff Heine's failed congressional campaigns, as well as his attempts to be elected as mayor, state representative, and sheriff.
Defendants are incorrect in stating that this Court should strike these statements because of the four-year statute of limitation on § 1983 claims in Florida. Statutes of limitations apply to the accrual of a cause of action. Plaintiffs are not asserting that the allegations in paragraphs twenty to forty-eight are part of their claims. No where in the complaint do Plaintiffs say that these statements were a violation of their constitutional rights. Therefore, Defendants' statute of limitations argument is not relevant to whether paragraphs twenty through forty-eight should be stricken from Plaintiffs' complaint.
Plaintiffs' allegations in paragraphs twenty through forty-eight are also not wholly immaterial to the claims against Defendants. Plaintiff Heine has alleged a violation of his First Amendment rights by Defendant Rice, alleging that Rice singled Plaintiff Heine out for law enforcement and prosecution for advocating reform of marijuana laws. Because the allegations in paragraphs twenty to forty-eight are not wholly immaterial to Plaintiffs' claims, Defendants' Motion to Strike is denied.
Accordingly, it is ORDERED AND ADJUDGED that Defendants' Motion to Dismiss Counts I, II, V, VI, VII, VIII and IX (Doc. No. 19) is GRANTED, and Defendants' Motion to Strike (Doc. No. 19) is DENIED.