Opinion
Case No. 6:09-cv-1934-Orl-31GJK.
December 22, 2010
ORDER
This matter comes before the Court on the motions to dismiss (Doc. 37, 38) filed by Defendant Frank Walters ("Walters") and Defendant City of Palm Bay (the "City"), respectively. The Plaintiff has not responded, although the deadline for doing so passed on December 16, 2010.
Both Walters and the City seek dismissal of Count II of the Complaint (Doc. 1), which asserts a claim for false arrest and imprisonment. (Doc. 1 at 5). They do so on different grounds. Walters relies on Fla. Stat. § 768.28(9)(a), which bars tort claims against state employees in the absence of bad faith, malicious purpose or wanton disregard for human rights. Walters argues that the Plaintiff has not pled that he acted in bad faith or otherwise in such a way as to fall outside the protection afforded by the statute, and therefore the tort claim against him is barred. (Doc. 37 at 2-3). The City relies on Fla. Stat. § 768.28(6)(a), which requires tort claimants against entities such as the City to file a notice of claim with the entity before bringing suit. The City argues that the Plaintiff did not file such a notice, and has failed to plead that he did so, requiring dismissal of his claim. See, e.g., Lee v. South Broward Hosp. Dist., 473 So.2d 1322, 1323-24 (Fla. 4th DCA 1985).
In the absence of a response from the Plaintiff, the Court has reviewed the Complaint and the pertinent statutes, and finds the motions are well founded and due to be granted. Accordingly, it is hereby
ORDERED that the motions to dismiss (Doc. 37, 38) are GRANTED, and Count II (only) of the Complaint is DISMISSED WITHOUT PREJUDICE. DONE and ORDERED in Chambers, Orlando, Florida on December 22, 2010.