Opinion
Case No. 5:18-cv-267-TKW/MJF
2021-02-22
Tarvis WILSON, Plaintiff, v. HARRELL, et al., Defendants.
Tarvis Wilson, Raiford, FL, pro se. Omar Jose Famada, Florida Attorney Generals Office Office of Attorney General, Tallahassee, FL, for Defendants.
Tarvis Wilson, Raiford, FL, pro se.
Omar Jose Famada, Florida Attorney Generals Office Office of Attorney General, Tallahassee, FL, for Defendants.
ORDER
Michael J. Frank, United States Magistrate Judge
In this section 1983 action, Plaintiff has filed a motion for leave to file a third amended complaint and has attached his proposed third amended complaint. Because allowing Plaintiff to amend his complaint would be futile, this court must deny his motion for leave to file a third amended complaint and strike his proposed third amended complaint from the docket.
I. BACKGROUND
In Plaintiff's proposed third amended complaint, he seeks to add claims against two new Defendants: (1) Ashley Wester, a nurse at Apalachee Correctional Institution; and (2) Kenneth Futch, an inspector for the Florida Department of Correction's Central Office. (Doc. 111 at 2-4). Plaintiff alleges that Wester and Futch violated a criminal statute that prohibits official misconduct: Florida Statute § 838.022.
In Plaintiff's first amended complaint, as well as his proposed third amended complaint, Plaintiff alleges that on December 7, 2014, Defendants Harrell, Brown, Edenfields, and Edwards utilized excessive force and battered him about the face and body. In Plaintiff's proposed third amended complaint, he seeks to add one claim of "official misconduct" in violation of Fla. Stat. § 838.022 against Wester as well as one claim of "official misconduct" against Futch. Plaintiff alleges that Wester "falsified medical records stating Plaintiff did things that wasn't observed nor heard by Defendant Wester," in order to help "cover-up" Plaintiff's battery and sexual assault by Defendants Harrell, Brown, Edwards, and Edenfields. As to Futch, Plaintiff alleges that on December 8, 2014, Futch arrived at Apalachee Correctional Institution to investigate the purported excessive use of force. Plaintiff contends that Futch "cut the interview short with Plaintiff" because "Plaintiff wasn't following Futch's lead on the coaching of the interview." Plaintiff states that Futch attempted to "cover-up the malicious battery/sexual battery for the involved Defendants."
II. DISCUSSION
Rule 15 of the Federal Rules of Civil Procedure governs amending and supplementing pleadings. Rule 15(a) states:
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
Fed. R. Civ. P. 15(a). A party seeking leave to amend under Rule 15(a) bears the burden of establishing entitlement to such leave. See In re Engle Cases , 767 F.3d 1082, 1119 n.37 (11th Cir. 2014).
In this case, Defendants have not provided written consent for Plaintiff to amend his complaint yet again.
A "district court's discretion to deny leave to amend a complaint ‘is severely restricted’ by Fed. R. Civ. P. 15, which stresses that courts should freely give leave to amend ‘when justice so requires.’ " Woldeab v. Dekalb Cnty. Bd. Of Educ. , 885 F.3d 1289, 1291 (11th Cir. 2018) (quoting Thomas v. Town of Davie , 847 F.2d 771, 773 (11th Cir. 1988) ). A court should deny leave to amend, however, when the amendment would be futile. In re Engle Cases , 767 F.3d at 1108-09 ; SFM Holdings, Ltd. v. Banc of Am. Sec., LLC , 764 F.3d 1327, 1344 (11th Cir. 2014) ; Bryant v. Dupree , 252 F.3d 1161, 1163 (11th Cir. 2001). An amendment would be futile "if an amended complaint would still fail at the motion-to-dismiss or summary-judgment stage." L.S. ex rel. Hernandez v. Peterson , 982 F.3d 1323, 1332 (11th Cir. 2020) (citing Cockrell v. Sparks , 510 F.3d 1307, 1310 (11th Cir. 2007) ); Silberman v. Miami Dade Transit , 927 F.3d 1123, 1133 (11th Cir. 2019) ; Chang v. JPMorgan Chase Bank, N.A. , 845 F.3d 1087, 1094 (11th Cir. 2017).
Plaintiff attempts to state a claim against Wester and Futch for purportedly violating Florida Statute § 838.022(1), which is a criminal statute. A cause of action exists under state law only when a particular state's statutory or common law so declares. Ragan v. Merch. Transfer & Warehouse Co. , 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) (noting that federal courts must look to state law to determine the cause of action and a claim brought pursuant to state law "accrues and comes to an end when local law so declares"). Federal courts do not have the authority to create new causes of action under state law. Wolk v. Saks Fifth Ave., Inc. , 728 F.2d 221, 223 (3d Cir. 1984) (noting that it is "beyond the authority of a federal court ... to create entirely new causes of action"). Federal courts "are supposed to apply state law, not rewrite it." Bonney v. Canadian Nat'l Ry. , 800 F.2d 274, 280 (1st Cir. 1986) ; see Burris Chem., Inc. v. USX Corp. , 10 F.3d 243, 247 (4th Cir. 1993) (noting that federal courts "rule upon state law as it exists and do not surmise or suggest its expansion"); Tidler v. Eli Lilly & Co. , 851 F.2d 418, 426 (D.C. Cir. 1988) (noting that federal courts "are obligated to apply, not to amend, existing state law"). Thus, a "federal court is not the place to press innovative theories of state law." Anderson v. Marathon Petroleum Co. , 801 F.2d 936, 942 (7th Cir. 1986).
The question of the existence of a statutory cause of action is one of statutory construction. Nw. Airlines, Inc. v. Transport Workers Union of Am., AFL-CIO , 451 U.S. 77, 91, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981) ; Touche Ross & Co. v. Redington , 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) ; Cannon v. Univ. of Chi. , 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Because the statute at issue here is a Florida statute, this court must apply Florida's rule of statutory construction when construing the statute. See Belanger v. Salvation Army , 556 F.3d 1153, 1155-57 (11th Cir. 2009) ; Birnholz v. 44 Wall St. Fund, Inc. , 880 F.2d 335, 338-41 (11th Cir. 1989).
"Under Florida law, a mere violation of the penal statutes does not give rise to liability per se." Lavis Plumbing Servs., Inc. v. Johnson , 515 So. 2d 296, 298 (Fla. 3d Dist. Ct. App. 1987). Rather, it "remains for the Legislature to create a private cause of action ...." Mailloux v. Briella Townhomes, LLC , 3 So. 3d 394, 396 (Fla. 4th Dist. Ct. App. 2009). "Whether a violation of a statute can serve as the basis for a private cause of action is a question of legislative intent" as it is expressed in the text of the statute. Aramark Unif. & Career Apparel, Inc. v. Easton , 894 So. 2d 20, 23 (Fla. 2004). That is, Florida courts, like federal courts, look to the plain meaning of the text of the statute to determine legislative intent. Halifax Hosp. Med. Ctr. v. State , 278 So. 3d 545, 547 (Fla. 2019) ; Daniels v. Fla. Dep't of Health , 898 So. 2d 61, 64 (Fla. 2005). "If that language is clear, the statute is given its plain meaning, and the court does not ‘look behind the statute's plain language for legislative intent or resort to rules of statutory construction.’ " Halifax Hosp. Med. Ctr. , 278 So. 3d at 547 (quoting City of Parker v. State , 992 So. 2d 171, 176 (Fla. 2008) ); Daniels , 898 So. 2d at 64 ("When the statutory language is clear, ‘courts have no occasion to resort to rules of construction—they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.’ ") (quoting Nicoll v. Baker , 668 So. 2d 989, 990-91 (Fla. 1996) ).
Florida Statute 838.022(1) provides:
8838.022 Official Misconduct.—
(1) It is unlawful for a public servant or public contractor, to knowingly and intentionally obtain a benefit for any person or to cause unlawful harm to another, by:
(a) Falsifying, or causing another person to falsify, any official record or official document;
(b) Concealing, covering up, destroying, mutilating, or altering any official record or official document, except as authorized by law or contract, or causing another person to perform such an act; or
(c) Obstructing, delaying, or preventing the communication of information relating to the commission of a felony that directly involves or affects the government entity served by the public servant or public contractor.
Fla. Stat. § 838.022(1). Any individual who violates this statute "commits a felony of the third degree." Fla. Stat. § 838.022(3).
Nothing in the language of this statute explicitly creates a cause of action or assigns rights to individuals which normally would be enforced through a private civil action. Indeed, there is nothing in this provision which suggests that the Florida Legislature intended to create a private cause of action to augment the criminal sanctions it imposed. If the Florida Legislature desired to create a private cause of action, it could have stated explicitly that it was doing so. See Touche Ross & Co. , 442 U.S. at 572, 99 S.Ct. 2479 (noting that "when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly"). The Florida Legislature's decision not to create a private cause of action explicitly strongly suggests that the Florida Legislature did not intend to establish a private right of action. See Esra Ripley Thayer, Public Wrong & Private Action , 27 HARV. L. REV. 317, 320 (1914) ("Its omission in this instance must therefore be treated as the deliberate choice of the legislature, and the court has no right to disregard it.").
Courts sometimes have implied a private right of action from a statutory provision when the courts perceive that the statute "would serve no useful purpose in the absence of a private right of action." Universal Prop. & Cas. Ins. v. Loftus , 276 So. 3d 849, 851 (Fla. 4th Dist. Ct. App. 2019) (citing Smith v. Piezo Tech. & Pro. Adm'rs , 427 So. 2d 182, 184 (Fla. 1983) ). But proper "regard for the legislature includes the duty both to give full effect to its expressed purpose, and also to go no further." Esra Ripley Thayer, Public Wrong & Private Action , 27 HARV. L. REV. at 320. When a "court recognizes an implied claim for damages on the ground that doing so furthers the ‘purpose’ of the law, the court risks arrogating legislative power." Hernandez v. Mesa , 589 U.S. ––––, 140 S. Ct. 735, 741, 206 L.Ed.2d 29 (2020). After all, a legislature "that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue the provision's purpose to the extent of authorizing private suits for damages." Id. at 742.
The purpose of Florida Statute § 838.022(1), like all criminal provisions, is to induce individuals to conform their conduct to the standard prescribed by the legislature. United States v. Wilson , 159 F.3d 280, 295 (7th Cir. 1998) ("The purpose of criminal laws is to bring about compliance with desired norms of behavior."); OLIVER WENDELL HOLMES , JR ., THE COMMON LAW 49 (1881) ("For the most part, the purpose of the criminal law is only to induce external conformity to rule."). After proscribing certain conduct, legislatures typically then attempt to deter unlawful conduct by imposing "an appropriate punishment on the person who engages in it." Bartnicki v. Vopper , 532 U.S. 514, 529, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001). "The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them." OLIVER WENDELL HOLMES , JR ., THE COMMON LAW , at 46.
The Florida Legislature has prescribed significant criminal punishments for violations of Florida Statute § 838.022(1) : a maximum term of five years of imprisonment and a maximum fine of $5,000. Fla. Stat. §§ 838.022(3), 775.082(3)(e), 775.083(1)(c). Such punishments provide sufficient incentive for individuals to strive to ensure that their conduct does not violate the law. A credible threat of criminal punishment influences behavior and deters criminal conduct. United States v. Goldberg , 491 F.3d 668, 672 (7th Cir. 2007). Imposing civil liability through creation of a private cause of action may entail some additional pain for malefactors, and thus might serve the purposes of the statute by eliciting some additional level of deterrence. Hudson v. United States , 522 U.S. 93, 102, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (noting that all civil penalties likely entail some deterrent effect); Dep't of Revenue of Mont. v. Kurth Ranch , 511 U.S. 767, 778, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (same). But the pain of enduring a civil action and incurring a civil judgment pales in comparison to the credible threat of a stiff term of imprisonment. See Bailey v. Alabama , 219 U.S. 219, 247, 31 S.Ct. 145, 55 L.Ed. 191 (1911) (Holmes, J., dissenting) (noting that the threat of imprisonment is more likely to deter individuals than the threat of a mere monetary penalty).
The threat of confinement in a prison, "a condition that most people presumably find undesirable," usually is a strong deterrent. Pell v. Procunier , 417 U.S. 817, 822-23, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). If the threat of five years of imprisonment and a $5,000 fine does not deter a public servant or contractor from committing the proscribed acts of misconduct, the threat of a civil action is unlikely to entail any additional deterrent effect. Thus, creation of a private cause of action is unnecessary to ensure that the purposes of Florida Statute § 838.022(1) are well served. If the Florida Legislature wanted to increase the magnitude of deterrence, it likely would have increased the criminal penalties associated with violations of the statute, rather than creating a private cause of action. See United States v. Newman , 965 F.2d 206, 210 (7th Cir. 1992) (noting that stronger sentences generally entail greater deterrence of crime).
Generally "a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing a civil liability." Murthy v. N. Sinha Corp. , 644 So. 2d 983, 986 (Fla. 1994) (quoting Moyant v. Beattie , 561 So. 2d 1319, 1320 (Fla. 4th Dist. Ct. App. 1990) ). Likewise, Florida courts typically do not find an implied private cause of action when "the legislature has provided criminal penalties for the violation" but "has not provided civil remedies" explicitly. Ochab v. Morrison, Inc. , 517 So. 2d 763, 764 (Fla. 2d Dist. Ct. App. 1987) ; see Temple v. Aujla , 681 So. 2d 1198, 1199 (Fla. 5th Dist. Ct. App. 1996) (Plaintiff has asked "the court to create a civil remedy where the legislature has already created a criminal one.... [W]here the legislature has spoken by delineating a specific remedy, it is not the judicial branch's role to overstep the legislature's authority and create an additional remedy."). To infer that a statute creates a private right of action, therefore, there must at least "be ‘a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone.’ " Ali v. Shabazz , 8 F.3d 22, 22 (5th Cir. 1993) (quoting Cort , 422 U.S. at 79, 95 S.Ct. 2080 ); see Chrysler Corp. v. Brown , 441 U.S. 281, 316, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) ; Cort , 422 U.S. at 78-80, 95 S.Ct. 2080 (holding that "a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone" did not give rise to an implied civil cause of action under federal law). There is nothing in Florida Statute § 838.022(1) from which a court could infer that this statute creates a private right of action. Rather, the statute entails a straightforward criminal punishment for those persons who commit the acts it proscribes.
In many instances, "finding" that a statute creates a private cause of action entails an act of creation as opposed to statutory interpretation. As one commentator has noted:
A court may construe a statute which expressly provides only for a criminal liability to create a civil obligation as well. It may find that the statute creates a crime expressly and a tort by implication. In a good many cases courts have given this meaning to criminal enactments. It is, perhaps, more conventional to say that courts have found this meaning in the statute, but the exact character of the judicial process by which this is achieved is expressed less fictitiously by given than found.
Charles L.B. Lowndes, Civil Liability Created By Criminal Legislation , 16 Minn. L. Rev. 361, 362 (1932). Not surprisingly, therefore, the "Supreme Court historically has been loath to infer a private right of action from ‘a bare criminal statute’ ...." Doe v. Broderick , 225 F.3d 440, 447-48 (4th Cir. 2000) (quoting Cort v. Ash , 422 U.S. 66, 80, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) ).
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"Statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’ " Alexander v. Sandoval , 532 U.S. 275, 289, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (quoting California v. Sierra Club , 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981) ). Thus, criminal statutes which entail only prohibitions of conduct and specify criminal penalties for violations are "poor candidates for the imputation of private rights of action." Chapa v. Adams , 168 F.3d 1036, 1038 (7th Cir. 1999) ; see Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. , 511 U.S. 164, 190, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (noting that courts are "quite reluctant to infer a private right of action from a criminal prohibition alone"); Charles L.B. Lowndes, Civil Liability Created By Criminal Legislation , 16 MINN. L. REV. at 363 ("When a statute explicitly creates a criminal liability, the court which reads a civil obligation into the enactment is embarking upon a perilous speculation.").
In light of this, it is not surprising that no other court has ever concluded that Florida Statute § 838.022(1) implies a private cause of action. There simply is no reason to believe that this statute created a private cause of action. When state law does not clearly recognize a cause of action on a particular theory, a claim brought on such a theory should be dismissed. Villegas v. Princeton Farms, Inc. , 893 F.2d 919, 925 (7th Cir. 1990) ; Burns v. Preston Trucking Co., Inc. , 621 F. Supp. 366, 370 (D. Conn. 1985).
Because Florida Statute § 838.022(1) neither explicitly nor implicitly creates a private cause of action, it would be futile to allow Plaintiff to assert such a non-existent cause of action against Wester and Futch. Because the additional counts contained in Plaintiff's proposed third amended complaint are futile, this court must deny Plaintiff's motion to amend his complaint.
III. CONCLUSION
For the reasons set forth above, it is ORDERED that Plaintiff's motion to file a third amended complaint is DENIED , and the clerk of the court shall strike Plaintiff's proposed third amended complaint from the docket.
SO ORDERED this 22nd day of February, 2021.