JOAN A. LENARD, District Judge.
THIS CAUSE is before the Court on Defendants' Motion to Dismiss Second Amended Complaint and Motion to Strike Demand for Punitive Damages ("Motion," D.E. 68), filed April 25, 2014. Plaintiff filed a Response on May 28, 2013 ("Response," D.E. 71), to which Defendants filed a Reply on June 21, 2013 ("Reply,"
This is a case related to the destruction of a vessel called the "METIS 0." Plaintiff James Edward Hoefling, Jr. ("Hoefling") owned and lived on the "METIS 0." In his Second Amended Complaint ("SAC"), Hoefling alleges that on August 20, 2010, two officers from the City of Miami Police Department's Marine Patrol Detail, Sergeant Jose Gonzalez ("Gonzalez"), and Officer Ricardo Roque ("Roque"), searched the "METIS 0," removed a generator, destroyed the vessel and the rest of Hoefling's personal belongings, and committed the remains to a trash dumpster. (SAC ¶ 10.) Hoefling alleges that the officers destroyed his vessel without providing him notice (id. ¶ 11); however, this assertion is contradicted by an exhibit attached to the original Complaint
Plaintiff provided as an exhibit to his original Complaint a document entitled "City of Miami Office of Code Enforcement NOTICE," which was signed by Officer Alejandro Macias and dated May 27, 2010. (Compl., D.E. 1, Ex. 3 (Notice).) This Notice was attached to Plaintiff's vessel and informed Plaintiff that the vessel was unlawfully on the property. (See id.)
Plaintiff provided as an exhibit to the FAC three City of Miami Police Department Incident Reports, dated May 27, 2010, August 20, 2010, and September 20, 2010 (Exhibit 3). The narrative from the May 27, 2010 City of Miami Police Department Incident Report shows that Hoefling had notice of the derelict condition of the vessel and provides the following description of the events:
(FAC Ex. 3 (August 20, 2010 Incident Report).) The report indicates that the item recovered from the vessel was a "red inverter." (Id.) The September 20, 2010 City of Miami Police Department Incident Report narrative provides the following description of the events:
(FAC Ex. 3 (September 20, 2010 Incident Report).)
Hoefling's Second Amended Complaint contains five counts against Defendants City of Miami, Gonzalez, and Roque: (1) "Substantive and Procedural Due Process Violation" (SAC ¶¶ 41-47); (2) "Unreasonable Search and Seizure" (id. ¶¶ 48-55); (3) "Intentional Destruction of Property" (id. ¶¶ 56-59); (4) "Negligent Destruction of Property" (id. ¶¶ 60-66); and (5) "Takings" (id. ¶¶ 64-66). The SAC also contains a prayer for relief that includes punitive damages "based on defendants' willful conduct ... and their intentional disregard for plaintiff's property rights as guaranteed by the United States Constitution[.]" (Id. at 13.)
On April 25, 2013, Defendants moved to dismiss the SAC and to strike Plaintiff's demand for punitive damages. (Motion, D.E. 68.) In their Motion, Defendants make the following arguments: (1) Plaintiff's substantive due process claim is precluded; (2) even if the substantive due process claim is not precluded the officers' conduct is not "conscience shocking"; (3) Plaintiff's procedural due process claim fails because he was provided proper notice; (4) Plaintiff's procedural due process claim fails because he has an adequate post-deprivation remedy; (5) Plaintiffs claims in Counts III and IV for intentional and negligent destruction of property, respectively, fail because general maritime law does not impose a duty of reasonable care upon a law enforcement officer with respect to the enforcement of the law; (6) Plaintiff's claim under the Fourth and Fourteenth Amendments for unreasonable search and seizure fail because the search and seizure was reasonable; (7) Plaintiff's Takings claim fails because enforcing Florida's Derelict Vessel Statute, which requires a vessel to be properly maintained or be removed from public waters, does not constitute a taking; (8) Gonzalez and Roque are entitled to qualified immunity; and (9) Plaintiff is not entitled to punitive damages. (Id. at 7-19.)
In response, Plaintiff appears to make the following arguments: (1) Defendants' Motion is improperly based upon materials
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Conclusory statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. "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." Id.; see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir.2010) (setting forth the plausibility standard). In recent decisions, the Eleventh Circuit further advised that courts may make reasonable inferences in a plaintiff's favor, but they are not required to draw plaintiff's inference. Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260 (11th Cir.2009).
The Eleventh Circuit has set forth a heightened pleading standard for claims brought pursuant to 42 U.S.C. section 1983, stating as follows:
Keating v. City of Miami, 598 F.3d 753, 762-63 (11th Cir.2010) (internal citations and quotations omitted).
In their Motion, Defendant's Gonzalez and Roque assert that they are entitled to qualified immunity on the claims based on Fourth and Fourteenth Amendment violations
"Because qualified immunity is an entitlement not to stand trial or face the other burdens of litigation, ... questions of qualified immunity must be resolved at the earliest possible stage in litigation." Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir.2003); see also Scott v. Harris, 550 U.S. 372, 376 n. 2, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (stating that "[q]ualified immunity is an immunity from suit rather than a mere defense to liability"). "Qualified immunity shelters government officials performing discretionary functions from `liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280, 1284-85 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
"Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (internal quotations omitted). To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority. Gonzalez, 325 F.3d at 1234 (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002)). "A government official acts within his or her discretionary authority if objective circumstances compel the conclusion that challenged actions occurred in the performance of the official's duties and within the scope of this authority." Hill v. Dekalb Reg'l Youth Detention Ctr., 40 F.3d 1176, 1185 n. 17 (11th Cir.1994).
The Parties dispute whether the Defendant Officers were acting within their discretionary authority. Plaintiff's argument — which is relegated to a footnote — is that Defendants have not demonstrated that the conduct alleged in the SAC falls within the scope of their discretionary authority. (Response at 16-17 n. 11.) Defendants argue that the Eleventh Circuit's seminal decision on the issue, Rich v. Dollar, 841 F.2d 1558 (11th Cir. 1988), commands the conclusion that they were acting within their discretionary authority. (Reply at 6-7.) In Rich, the court of appeals explained that a "government official can prove he acted within the scope of his discretionary authority by showing `objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.'" 841 F.2d at 1564 (quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir.1981)
According to the SAC, "[t]he two sources of legislative authority for the investigation and destruction of lost, abandoned, or derelict vessels are chapter 705 and section 823.11, Florida Statutes." (SAC ¶ 25.) "[C]hapter 705 provides that law enforcement shall take lost/abandoned property into custody, if easily removable from the public property ... [but] [i]f not easily removable, law enforcement is required to place on the lost or abandoned property, a notice in the form set forth in Florida Statute [section] 705.103(2)."
Prior to having the vessel destroyed, Gonzalez and Roque, while on duty in their capacity as Marine Patrol Detail for the City of Miami Police Department, advised Hoefling that his vessel was derelict and needed to be removed or brought into compliance. (FAC Ex. 3 (May 27, 2010 Incident Report). Nearly three months later, "[w]hile conducting a derelict vessel cleanup in Dinner Key Marina the above listed item[
"Once the defendants have established that they were acting within their discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Gonzalez, 325 F.3d at 1234 (citing Vinyard, 311 F.3d at 1346). On a motion to dismiss, "[t]o evaluate claims of qualified immunity, the Court considers whether (1) the plaintiff has alleged a violation of a constitutional right; and (2) whether the right was `clearly established' at the time of the defendant's misconduct."
Neither Plaintiff's Response nor his Surreply so much as mention a "clearly established" right, much less "show" that the right Defendants allegedly violated was a clearly established one. Rather, with respect to Defendants' entitlement to qualified immunity on the Constitutional Claims, Plaintiff's entire argument — again, relegated to a footnote — is that Defendants have not established that they were acting within their discretionary authority when seizing and destroying the vessel. (See Response at 16-17 n. 11.) However, the Court has already determined that Defendants were acting within their discretionary authority when taking the actions described in the SAC. Because Plaintiff cites the Court to no case or statute establishing that the seizure and destruction of a vessel, determined to be derelict by marine patrolmen acting in their discretionary authority, violates a clearly established constitutional right, he has not satisfied his burden of showing that qualified immunity is inappropriate.
Counts III and IV are maritime tort claims for intentional and negligent destruction of property, respectively. (SAC ¶¶ 56-63.) Although there is very little case law on the issue, in the Eleventh Circuit, the doctrine of qualified immunity also appears to apply to non-constitutional maritime torts. See Harrell v. United States, 875 F.2d 828, 831 (11th Cir.1989) (summarily stating that "[t]he same considerations which apply to the constitutional claims demonstrate Lt. Atkin's entitlement to qualified immunity for the alleged non-constitutional maritime torts" and remanding the case to the district court "with instructions to dismiss the claims against Lt. Atkin on the grounds of qualified immunity"). The qualified immunity issues in maritime tort cases are governed by the same legal principles that apply when a government agent is sued under 42 U.S.C. § 1983. Sol v. City of Miami, 776 F.Supp.2d 1375, 1380 (S.D.Fla.2011); see also Harrell, 875 F.2d at 831.
Defendants contend that they are entitled to qualified immunity for Counts III and IV. (Motion at 16-19.) Plaintiff's one-paragraph response to this claim rests on the assertion that Defendants were not "acting within the scope of their discretionary authority [because] [t]hey lack the legal authority or discretion to summarily destroy private property, which is the exact conduct alleged as the basis for plaintiff's claims." (Response at 17.) The Court disagrees. As explained in the Court's Order Granting Defendants' Motion to Dismiss the FAC:
Hoefling, 876 F.Supp.2d at 1329-30 (footnotes omitted).
Furthermore, Plaintiff makes no argument with respect to whether Defendants violated a "clearly established" right. As the Court previously found in its Order Granting Defendants' Motion to Dismiss the FAC:
Hoefling, 876 F.Supp.2d at 1331. Accordingly, the Court concludes that Gonzalez and Roque are entitled to qualified immunity because (1) they were acting within their discretionary authority when performing the allegedly tortious actions, and (2) because Plaintiff has failed to meet his burden of showing that the officers violated his clearly established rights. See Hoefling, 876 F.Supp.2d at 1331.
In sum, Gonzalez and Roque are entitled to qualified immunity as to Counts I, II, III, and IV.
In Counts I and II, Hoefling attempts to allege two claims under 42 U.S.C. section 1983 against the City of Miami for (1) Fourteenth Amendment substantive and procedural due process violations (id. ¶¶ 41-47), and (2) Fourth and Fourteenth Amendment unreasonable search and seizure violations (id. ¶¶ 48-55). "The Supreme Court has placed strict limitations on municipal liability under
Id. Accordingly, Plaintiff "has two methods by which to establish a [city's] policy: identify either (1) an officially promulgated [city] policy or (2) an unofficial custom or practice of the [city] shown through the repeated acts of a final policymaker for the [city]." Id. (citations omitted). The second avenue — which Hoefling attempts to invoke here — is far more common because "a [city] rarely will have an officially-adopted policy of permitting a particular constitutional violation...." Id. "Under either avenue, a plaintiff (1) must show that the local governmental entity ... has authority and responsibility over the governmental function in issue and (2) must identify those officials who speak with final policymaking authority for that local governmental entity concerning the act alleged to have caused the particular constitutional violation in issue." Id. at 1330.
Counts I and II attempt to allege unofficial customs or practices of Constitutional violations against Defendants. With respect to the alleged Due Process violations, the SAC vaguely claims that, "[b]ased on information and belief, in connection with the investigation of potentially derelict and/or abandoned vessels, the defendant City and its police department's Marine Patrol Detail, as a matter of policy, custom, and/or practice, ignored plaintiff's fundamental rights...." (SAC ¶ 45.) With respect to the alleged search and seizure violations, the SAC vaguely claims that "based on information and belief, the City instituted and followed policies, customs, and/or practices that were a central and moving force behind the violation of plaintiff's right to be free from unreasonable searches and seizures." (Id. ¶ 54.) To begin with, this is precisely the sort of pleading "that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action'" that is insufficient to survive a 12(b)(6) Motion. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). And, if it is insufficient under this baseline 12(b)(6) standard, then, a fortiori, it is insufficient under the heightened pleading standard for section 1983 claims. See Keating, 598 F.3d at 762-63 (requiring "that a § 1983 plaintiff allege with some specificity the facts which make out its claim"). More fundamentally, Hoefling fails to plead the necessary elements of an unofficial policy claim because he wholly fails to identify, as is required, "those officials who speak with final policymaking authority for that local governmental entity concerning the act alleged to have caused the particular constitutional violation in issue." Grech, 335 F.3d at 1329. "Regardless of whether a plaintiff attempts to state a claim under section 1983 by alleging a policy or a custom, he or she must also identify an official who speaks
The SAC contains two tort counts against Defendants: (1) intentional destruction of property (SAC ¶¶ 56-59), and (2) negligent destruction of property (id. ¶¶ 60-63). A local government entity cannot assert sovereign immunity as a defense to an admiralty suit. See Northern Ins. Co. of N.Y. v. Chatham Cnty., Ga., 547 U.S. 189, 196-97, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006). Local governments have been held liable for the maritime torts of their employees. See Workman v. City of New York, 179 U.S. 552, 573, 21 S.Ct. 212, 45 L.Ed. 314 (1900) (stating that "[a] recovery can be had in personam ... for a maritime tort when the relation existing between the owner and the master and crew of the vessel, at the time of the negligent collision, was that of master and servant" and further finding that the City of New York could be held liable for its employees' negligence resulting in a collision of its fireboat with another vessel); cf. Cent. Rivers Towing, Inc. v. City of Beardstown, 750 F.2d 565, 570 (7th Cir. 1984) (finding that the City of Beardstown was liable for damages to a vessel because "the City was negligent in failing to remove the pier remains after they became a hazard to navigation"); Pelican Marine Carriers, Inc. v. City of Tampa, 791 F.Supp. 845, 854 (M.D.Fla.1992) (finding the City of Tampa liable for damage to a vessel when that vessel hit a submerged sewer line because "[a]s the owner of the sewer line, the City had the duty to warn mariners of submerged hazards to navigation"). Accordingly, the Court turns to the merits of Plaintiff's tort claims.
"General maritime law incorporates the general law of torts when not inconsistent with the law of admiralty." Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 977 (5th Cir.1978) (citations omitted). "The elements of maritime negligence are essentially the same as those for common law negligence." Crayton v. Oceania Cruises, Inc., 600 F.Supp.2d 1271, 1275 (S.D.Fla.2009) (citing Stuart Cay Marina v. M/V Special Delivery, 510 F.Supp.2d 1063, 1071 (S.D.Fla. 2007)). "Generally, the elements necessary to prove a cause of action for negligence are: (1) a duty recognized by the law requiring a certain standard of conduct for the protection of others against unreasonable risks; (2) breach of the duty; (3) a reasonably close causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another." Id. (citation omitted); see also Stuart Cay Marina, 510 F.Supp.2d at 1070-71 (stating that "to make out a prima facie case of maritime negligence, a plaintiff must establish that the defendant owed a duty to the plaintiff under the law to conform to a particular standard of conduct in order to protect others against an unreasonable risk of
The SAC alleges that "Defendants had a duty to plaintiff not to enter upon, seize, or destroy plaintiff's home and other belongings, in the absence of lawful authority to do so" (SAC ¶ 57, 61), and that they breached this duty, either intentionally or negligently, by "entering upon [his] home/vessel, seizing the vessel and its contents, and effecting the complete destruction thereof (id. ¶¶ 58, 62). The City contends that general maritime law does not impose a duty of reasonable care upon law enforcement officers with respect to enforcement of the law. (Motion at 9-12.). In response, Plaintiff contends that the City's argument "is premised on the erroneous assertion that defendants were indisputably acting with lawful authority when they seized and destroyed plaintiff's home and other property." (Response at 17.) However, in the Court's Order Granting Defendants' Motion to Dismiss the FAC, the Court found that (1) the exhibits attached to the first two complaints filed in this case establish that Gonzalez and Roque were enforcing the law — i.e., acting with lawful authority — when they took the actions alleged in the SAC, and (2) that maritime law does not impose a duty of care upon officers with respect to their enforcement of the law:
Finally, Plaintiff asserts that "Defendants have violated the Takings Clauses of the Constitutions of the United States and Florida in that they have taken plaintiff's property without public purpose and without just, full, and fair compensation."
Once again, the flaw in Plaintiff's argument is that the seizure and destruction of Plaintiff's home and possession was not unlawful. As previously noted, "the Incident Reports attached as exhibits to the Amended Complaint show that during all relevant periods, the officers were enforcing the provisions of Florida Statute Section 823.11." Hoefling, 876 F.Supp.2d at 1334. Thus, the question becomes whether a viable Takings claims exists for the lawful seizure and destruction of Plaintiff's property. The Court must answer that question in the negative: "[I]t is settled that in the exercise of the police power a State `may take, damage, or destroy private property without compensation, when the public necessity, the public health, or the public safety require it to be done.'" Ashe v. City of Montgomery, 754 F.Supp.2d 1311, 1315 (M.D.Ala.2010) (quoting Hulen v. City of Corsicana, 65 F.2d 969, 970 (5th Cir.1933)).
In City of Ft. Lauderdale v. Scott, the City issued citations to several property owners for violations of the City Code. 888 F.Supp.2d 1279, 1284-1289 (S.D.Fla.2012). After the code violations went uncorrected, the City issued foreclosure, lien, and demolition notices to the various property owners. Id. Ultimately, the City filed foreclosure actions, and the property owners counterclaimed, arguing, inter alia, that "the City's acquisition of [the property owners'] properties through foreclosure
In Ashe, the City initiated abatement procedures and removed several vehicles and other items from the plaintiff's yard pursuant to a state law that provides "`all cities and towns of this state shall have the power to prevent injury or annoyances from anything dangerous or offensive or unwholesome and to cause all nuisances to be abated and assess the cost of abating the same against the person creating or maintaining the same.'" Id. (citing Ala. Code § 11-47-117 (1975)). The Court found that because the City acted within the scope of its police power in accordance with city law for the abatement of a public nuisance, no viable takings claim existed. Id. Accordingly, the court granted summary judgment to the City of Montgomery on the Plaintiff's takings claim. Id.; see also Johnson v. City of Prichard, 771 F.Supp.2d 1310, 1319-20 (S.D.Ala.2011) (finding that the City's "exercise of police power, was clearly reasonable and within the limits of public necessity and the destruction of her property without compensation did not violate the Fifth Amendment Takings Clause").
In State Plant Board v. Smith, the Supreme Court of Florida addressed whether the statutorily-mandated destruction of citrus trees infested with (or possibly infested with) a citrus disease constituted a Taking under the state and federal constitutions. 110 So.2d 401, 404-05 (Fla.1959). In concluding that it was not a taking, the Court distinguished between a taking pursuant to a state's power of eminent domain and the destruction of property pursuant to its police power:
Id. The court ultimately determined that the statute complied with the Florida Takings Provision as it provided for "just and fair" compensation for the destruction of the citrus trees. Id. at 406. However, in concluding its analysis on the issue, the court noted:
Id. at 406-07; see also Adams v. Hous. Auth. of City of Daytona Beach, 60 So.2d 663, 666 (Fla.1952) (noting that "the police power is that power by which the Government may destroy or regulate the use of property in order to `promote the health, morals and safety of the community', and the police power may be exercised without making compensation for the impairment of the use of property or any decrease in the value of property by reason of the regulated use") (citing City of Miami Beach v. Ocean & Inland Co., 3 So.2d 364 (Fla.1941); Blitch v. City of Ocala, 142 Fla. 612, 195 So. 406 (1940); Lott v. City of Orlando, 142 Fla. 338, 196 So. 313 (1939); Pasternack v. Bennett, 138 Fla. 663, 190 So. 56 (1939); 29 C.J.S. Eminent Domain § 6; 18 Am.Jur. Eminent Domain § 11) (overruled in part on other grounds in Baycol, Inc. v. Downtown Dev. Auth. of City of Ft. Lauderdale, 315 So.2d 451 (Fla. 1975)).
These cases establish that when law enforcement officers destroy private property in the lawful exercise of the state's police power, there is no viable cause of action under the Takings Clauses of the Florida and U.S. Constitutions. Here, Defendants were acting within their lawful authority when they removed Plaintiff's vessel from public waters and had it destroyed. As explained above:
Hoefling, 876 F.Supp.2d at 1330. Because Defendants were acting within their lawful authority and pursuant to the state's police power when it removed Plaintiff's vessel from public waters and had it destroyed, Plaintiff has no viable takings claim. See Hulen, 65 F.2d at 970; Ashe, 754 F.Supp.2d at 1315; Johnson, 771 F.Supp.2d at 1319-20; Scott, 888 F.Supp.2d at 1298; Smith, 110 So.2d at 404-05, 406-07. Therefore, Count V of the SAC must be dismissed.
Accordingly, it is
Hoefling v. City of Miami, 876 F.Supp.2d 1321, 1330-31 (S.D.Fla.2012). Plaintiff tries to escape this prior finding by not attaching (and disavowing) the exhibits he attached to his original Complaint and the FAC, and by relying on the conclusory and self-serving allegations that "(1) plaintiff's vessel
