JAMES I. COHN, District Judge.
This case stems from the November 1983 rape and murder of Ada Jankowski and the subsequent arrest and conviction of Plaintiff Anthony Caravella ("Caravella") for this crime. On the morning of November 5, 1983, Ms. Jankowski's body was found on the grounds of the Miramar Elementary School. See Amended Complaint [DE 34] ("Am. Compl.") ¶ 27. She had been raped, strangled, and stabbed. Id. ¶¶ 28, 30. Defendants Guess, Mantesta, and Pierson participated in the investigation of the crime scene. Id. ¶ 33.
At the time of the Jankowski murder, Caravella was fifteen years old and lived with his mother and siblings in Miramar. Id. ¶ 43. He had previously served as an informant for Defendants Guess and Pierson regarding criminal activities in his Miramar neighborhood. Id. ¶ 44. His I.Q. score was only 67, placing him in the mildly mentally challenged range. Id. ¶ 51. On December 28, 1983, Defendant Mantesta obtained a warrant from juvenile court to arrest Caravella for failure to appear in court on a bicycle theft charge. Id. ¶ 49. That evening, Defendants Pierson and Mantesta went to the home of Caravella's friend, Dawn Simone, to arrest him. Id. ¶ 50. The officers were extremely aggressive with Caravella and also arrested his friend, Ms. Simone, for attempting to hide him. Id. ¶¶ 52-53. At the police station, Caravella was immediately taken into an interrogation room and questioned about the Jankowski murder. Id. ¶ 55. He was not read his Miranda rights, the interrogation was not recorded, and his mother was neither called nor present. Id. ¶ 56. Defendants Pierson and Mantesta encouraged Caravella to give them a statement about the Jankowski murder by promising him that they would let his friend Ms. Simone go home in exchange for his statement. Id. ¶ 57. Before eliciting his statement, however, they prompted him with numerous details about the victim and crime. Id. ¶ 61.
On December 30, 1983, Defendants obtained a court order which allowed Defendant Fantigrassi of the BSO to perform a polygraph examination on Caravella. Id. ¶¶ 63-64. Despite Caravella's repeated denial of any involvement in the crime, after over four hours of questioning Caravella alone, Fantigrassi informed Caravella's mother that he had confessed to participating in the murder and that the results of the polygraph confirmed that he
Hair and fiber evidence collected from the crime scene linked Cyril Cozier, an individual observed near the crime scene wearing a bloody shirt, to the murder victim. Id. ¶¶ 33, 85-86. Caravella alleges Defendants Pierson, Mantesta, Guess, and Fantigrassi "all conspired in fabricating and falsifying evidence in the form of false police reports, false taped statements ... and by giving false testimony under oath in order to knowingly frame CARAVELLA, an innocent boy, for this crime." Id. ¶ 84. He also alleges that Defendants Pierson, Mantesta, Guess, and Fantigrassi "[w]ithheld and/or concealed other evidence from the criminal courts, the prosecutors, Plaintiff's counsel and the public, that would have negated the fabricated evidence" they created. Id. ¶ 94(b). As a result of their actions, Caravella was convicted on August 2, 1984, of the rape and murder of Ada Jankowski and sentenced to life in prison. Id. ¶ 102. He was only 16 years old at the time. Id. ¶ 103.
Caravella alleges that Defendant Jenne, BSO Sheriff from January 1998 to September 2007, failed to provide proper oversight of the BSO. Id. ¶¶ 113, 140. He also alleges that Defendant Jenne concealed criminal conduct of his sheriffs, including Defendant Fantigrassi, despite evidence that would exonerate Caravella. Id. ¶¶ 130, 132. Likewise, Defendant Lamberti, BSO Sheriff from September 2007 through the present, is accused of overseeing a pattern or practice of misconduct within the BSO. Id. ¶¶ 140-41. According to Caravella, Defendant City of Miramar has overseen a pattern and practice of misconduct amongst members of the Miramar Police Department. Id. ¶ 146.
In April 2001, Assistant Public Defendant Diane Cuddihy contacted the State Attorney's Office to request DNA testing of evidence collected in Caravella's case. Id. ¶ 106. DNA testing conducted over eight years later, in August 27, 2009, conclusively established that Caravella was not the donor of sperm found on the victim's body. Id. ¶ 109. These test results were later confirmed by another laboratory. Id. ¶ 111. Thereafter, on March 25, 2010, the state court vacated and set aside Caravella's judgment and sentence. Id. ¶ 112.
On June 28, 2011, Donald R. Spadaro, Esq., as limited guardian for Caravella, filed suit against Defendants City of Miramar, Pierson, Mantesta, Guess, BSO, Lamberti, Jenne, and Fantigrassi in the Seventeenth Judicial Circuit Court in and for Broward County, alleging that the acts or practices of the Defendants had violated Caravella's constitutional rights. Complaint [DE 1-3] ¶ 3. The City Defendants removed to this Court on July 19, 2011. Notice of Removal [DE 1]. On August 26, 2011, Caravella filed his Amended Complaint. The Amended Complaint brings claims against the various Defendants for
Under Fed.R.Civ.P. 12(b)(6), a court shall grant a motion to dismiss where, based upon a dispositive issue of law, the factual allegations of the complaint cannot support the asserted cause of action. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir.2006). Indeed, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Nonetheless, a complaint must be liberally construed, assuming the facts alleged therein as true and drawing all reasonable inferences from those facts in the plaintiff's favor. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complaint should not be dismissed simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. Id. Accordingly, a well pleaded complaint will survive a motion to dismiss "`even if it appears that a recovery is very remote and unlikely.'" Id. at 556, 127 S.Ct. 1955.
Both the City and BSO Defendants contend that Caravella's claims are barred by the applicable statute of limitations. City Motion at 7-14; BSO Motion at 5-7. The City Defendants argue that Caravella's claims are time barred because the last act alleged by Caravella occurred in 1984 and Caravella has not plead any facts that warrant equitable tolling. City Motion at 7, 13. In his Amended Complaint, Caravella alleges that the applicable statute of limitations on each of his claims has been tolled because the Defendants fraudulently concealed their misconduct. Am. Compl. ¶ 153. Caravella also disputes Defendants' claims that the statute of limitations has expired on his claims. City Response at 5-13; BSO Response at 3-4. Generally, whether a claim is barred by the statute of limitations should be raised as an affirmative defense in the answer rather than in a motion to dismiss. Cabral v. City of Miami Beach, 76 So.3d 324, 326 (Fla.Dist.Ct. App.2011). However, if facts on the face of the pleadings show that the statute of limitations bars the action, the defense can be raised by motion to dismiss. Id.; see also Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir.2005) (noting that the granting of a motion to dismiss on statute of limitations grounds is appropriate if it is apparent from the face of the complaint that the claim is time-barred). Thus, the Court will individually address Defendants' statute of limitations arguments for each claim to determine whether dismissal is appropriate based on the face of the Amended Complaint.
The BSO Defendants argue that Caravella's intentional infliction of emotional distress
Florida law provides a four year statute of limitations for intentional infliction of emotional distress claims. Fla. Stat. § 95.11(3)(o). In Florida, a cause of action accrues "when the last element constituting the cause of action occurs." Fla. Stat. § 95.031(1). Based on the allegations of the Amended Complaint, the Court finds that the doctrine of equitable estoppel is likely inapplicable. The doctrine of equitable estoppel "presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant's conduct." Black Diamond Props., Inc. v. Haines, 69 So.3d 1090, 1093 (Fla.Dist.Ct.App.2011) (internal quotations and citations omitted) (emphasis in original). "Stated another way, [e]quitable estoppel arises where the parties recognize the basis for suit, but the wrongdoer prevails upon the other to forego enforcing his right until the statutory time has lapsed." Id. Paragraph 153 of the Amended Complaint states:
Likewise, the delayed discovery doctrine is inapplicable to Caravella's case. The "`delayed discovery' doctrine generally provides that a cause of action does not
Florida recognizes the continuing torts doctrine. Pearson v. Ford Motor Co., 694 So.2d 61, 68 (Fla.Dist.Ct.App. 1997). Under this doctrine, the limitations period runs to the date the tortious conduct ceases. Id. If the plaintiff has alleged some continuing conduct on the part of the defendants, a jury must decide whether a continuing tort has occurred. Id. (holding that the jury must decide whether a continuing tort occurred where the plaintiff alleged that the defendant continued to make false representations). A continuing tort is "established by continual tortious acts, not by continual harmful effects from an original, completed act." Suarez v. City of Tampa, 987 So.2d 681, 686 (Fla. Dist.Ct.App.2008) (internal citations and quotations omitted). "When a defendant's damage-causing act is completed, the existence of continuing damages to a plaintiff, even progressively worsening damages, does not present successive causes of action accruing because of a continuing tort." Id. Thus, in order for the doctrine of continuing torts to apply, Caravella needs to allege continuous, tortious acts by the Defendants which would allow a jury to conclude that a continuing tort has occurred.
Here, the Amended Complaint specifically alleges that from November 1983 onward, Defendants Pierson, Mantesta, Guess, and Fantigrassi "had available detailed reports and evidence which would have excluded the Plaintiff as the murderer of Ada Jankowski" and that this evidence was ignored or withheld from Caravella, his counsel, and the courts. Am. Compl. ¶ 128. Each intentional infliction of emotional distress count incorporates this paragraph by reference. Id. ¶¶ 158, 162, 167, 208. Taking this allegation in the light most favorable to Caravella, the Court finds that he has sufficiently alleged continuing, tortious acts by Defendants Pierson, Mantesta, Guess, and Fantigrassi. Accordingly, the Court declines to find that the statute of limitations has expired on Caravella's intentional infliction of emotional distress claims at this time because the Amended Complaint has sufficient allegations to allow application of the doctrine of continuing torts.
The City Defendants argue that Caravella's claim for negligent hiring, supervision, and retention against Defendant City of Miramar is time barred because he "knew or should have known about such negligence at time of trial." City Motion at 8. Likewise, the BSO Defendants contend that the statute of limitations has expired on Caravella's identical claim against Defendant Lamberti because the cause of action accrued at the time of his incarceration. BSO Motion at 6. In response, Caravella points to the Eleventh Circuit's decision in Rowe v. City of Fort Lauderdale, 279 F.3d 1271 (11th Cir.2002), where the court held that, under Florida law, a claim for negligent hiring, supervision, and retention does not accrue until a plaintiff first obtains relief from his conviction. City Response at 5-6. The City Defendants urge this Court to find that Rowe is an incorrect interpretation of Florida law. City Reply at 3-5.
Florida law provides a four year statute of limitations for any claim based on negligence. Fla. Stat. § 95.11(3)(a). Caravella argues that the Court must follow the Eleventh Circuit's holding in Rowe and find that his claims for negligent hiring, supervision, and retention did not accrue until his sentence was vacated. Defendants, on the other hand, urge this Court to reject the Eleventh Circuit's interpretation of Florida law. See City Reply at 4-5.
The City Defendants contend that Caravella's section 1983 claim against the City of Miramar is barred by the statute of limitations because his "injuries should have been well-known to him at the time of his arrest and certainly by the conclusion of his criminal trial in 1984." City Motion at 10.
The statute of limitations for section 1983 actions is the same as the statute of limitations for personal injury torts in the state in which the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Here, Florida law provides a four year statute of limitations. Fla. Stat. § 95.11(3). Caravella's section 1983 claim against Fantigrassi (Count IX), like his section 1983 claim against Defendants Pierson, Mantesta, and Guess is based on malicious prosecution. See Am. Compl. ¶¶ 213-220. As the Supreme Court held in Heck v. Humphrey, "[j]ust as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, ... so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." 512 U.S. 477, 489-90, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Thus, the statute of limitations did not begin to run on Caravella's section 1983 claim against Fantigrassi until Caravella's conviction was vacated on March 25, 2010.
The statute of limitations for the section 1983 claims against Lamberti, Jenne, and the City of Miramar
The BSO Defendants argue that Caravella's section 1983 conspiracy claim against Defendants Pierson, Mantesta, Guess, and Fantigrassi accrued on January 4, 1984 and is time bared. City Motion at 10. The BSO Defendants similarly argue that all Caravella's section 1983 claims accrued after Caravella's incarceration in 1984. BSO Motion at 5. The Court disagrees. Defendants read the Amended Complaint too narrowly. The Amended Complaint alleges that Defendants conspired
Finally, Defendants contend that Caravella's claims under the state and federal RICO statutes are time barred. The BSO Defendants argue that Caravella suffered damage from the alleged RICO violations no later than 1984. BSO Motion at 7. The City Defendants posit that Caravella's RICO claims accrued in 1984 because Caravella knew his injuries as soon as he was incarcerated for a crime he claims he did not commit. City Motion at 12. Caravalla disputes this, pointing to Paragraph 153 of the Amended Complaint, where he alleges that Defendants City of Miramar, Guess, Pierson, Mantesta, Fantigrassi, Jenne, and Lamberti fraudulently concealed their misconduct, preventing him from discovering the wrongfulness of their conduct until he was independently exonerated by DNA testing. City Response at 9 (citing Am. Compl. ¶ 153).
Additionally, Caravella contends that because his RICO claims against the Defendants "stem from Defendants' illegal actions causing the malicious prosecution against him, and his continued wrongful detention as a result of their actions," he could not have brought suit until his conviction was invalidated. City Response at 10. Thus, pursuant to the rule articulated in Heck, Caravella claims he had no right to sue for injury to his business or property until all criminal charges against him had been dismissed. Id. at 11. Caravella also argues that the statute of limitations did not expire on his RICO claims because, under the separate accrual rule, he suffered a continuing series of separately accruing injuries. Id. Finally, Caravella argues that equitable tolling of the statute of limitations is appropriate, where as here, Defendants have fraudulently concealed evidence and records relating to their illegal conduct. Id. at 13.
The statute of limitations for federal RICO claims is four years. Rotella v. Wood, 528 U.S. 549, 553, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). The equivalent Florida act provides a five year statute of limitations. Fla. Stat. § 772.17. Unless tolled, the statute of limitations for RICO actions runs from the date the plaintiff knew he was injured. Pac. Harbor Capital, Inc. v. Barnett Bank, N.A., 252 F.3d 1246, 1251 (11th Cir.2001). The Eleventh Circuit has not addressed the applicability of Heck to civil RICO claims. Harrison v. Grand Jurors, No. 3:05CV348/MCR/MD, 2006 WL 354218, at *2 (N.D.Fla. Feb. 13, 2006) (finding that Heck applies equally to civil RICO actions where the RICO claim
The Court also is not persuaded that the separate accrual rule applies to Caravella's case. In Pilkington v. United Airlines, 112 F.3d 1532 (11th Cir.1997), the Eleventh Circuit examined whether the statute of limitations had expired for RICO claims of a group of pilots who alleged that they endured continuous, illegal harassment from other pilots because they had worked during a May 1985 strike and that the harassment continued through the date of the appeal. 112 F.3d at 1534. The plaintiffs argued that the statute of limitations had not expired on their RICO claims because, under the separate accrual rule, each time the plaintiffs suffered injury from the harassment, a new RICO cause of action accrued. Id. at 1536. The Eleventh Circuit, however, found that "the injuries suffered by the plaintiffs were not new and independent injuries, but rather, a single, continuous course of injury-specifically, ongoing emotional and physical distress designed to force the plaintiffs to either leave their employment or to lower job performance." Id. at 1537. Accordingly, the court found that the statute of limitations had expired on the plaintiffs' RICO claims. Id.
Here, Caravella has alleged that he suffered "irreparable damages and personal injury" stemming from the 25 year period he was wrongfully incarcerated. Am. Compl. ¶¶ 263, 269, 277. However, the Amended Complaint contains no allegations from which the Court can conclude that he suffered new and independent injuries from the Defendants' conduct. Rather, Caravella appears to have suffered one continuous injury, i.e. his 25 year wrongful incarceration. Accordingly, as currently plead, the separate accrual rule would not prevent the statute of limitations from expiring on Caravella's RICO claims.
Nonetheless, because the Court finds that equitable tolling may apply to Caravella's RICO claims, the Court declines to find that the statute of limitations has expired at this time. Equitable tolling is a doctrine under which a plaintiff may sue after the statutory time period has expired if he has been prevented from doing so due to inequitable circumstances. Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir.1998). Equitable tolling should be read into every federal statute of limitations unless Congress has explicitly provided otherwise. Id. Florida law also recognizes that a statute of limitations may be equitably tolled based on the defendant's fraudulent concealment. Grossman v. Greenberg, 619 So.2d 406, 408 (Fla.Dist.Ct.App.1993) (finding that statute of limitations was tolled where defendant has engaged in fraudulent concealment).
Caravella and the Defendants spend considerable energy arguing whether the Motion to Vacate and Set Aside the Defendant's Judgments and Sentence and to Dismiss the Indictment filed by the State Attorney in the Seventeenth Judicial Circuit ("Motion to Vacate") can be considered by the Court when ruling upon the Motions to Dismiss. City Motion at 1 n. 1; BSO Motion at 2 n. 1; City Response at 1-3; City Reply at 1-2. The Motion to Vacate was originally attached to Caravella's Complaint as Exhibit C. On August 18, 2011, Caravella sought leave to file an Amended Complaint which removed the Motion to Vacate because this exhibit had been inadvertently attached to the Complaint. See DE 25. Defendants opposed Caravella's request, arguing that they should be allowed to rely on the factual record contained within the Motion to Vacate in their Motions to Dismiss. See DE 31, 32. The Court granted the motion for leave to file an amended complaint and noted that "[t]he Court may consider the Motion to Vacate when ruling on Defendants' motions to dismiss." See DE 33. Because Caravella has disputed the contents of the Motion to Vacate, the Court will re-address whether and to what extent the Motion to Vacate can be considered by the Court when ruling upon Defendants' Motions to Dismiss.
Caravella argues that the Court should not consider the Motion to Vacate for any purpose because it is not central to his claims and he disputes its contents. City Response at 2. By contrast, the City Defendants contend that Caravella cannot dispute the authenticity of the Motion to Vacate and that the Motion to Vacate provides a proper basis to dismiss the Amended Complaint. City Reply at 2. In essence, Defendants ask the Court to dismiss Caravella's Amended Complaint because the contents of the Motion to Vacate are inconsistent with the allegations in the Amended Complaint. For the reasons discussed below, the Court declines to do so.
Generally, when ruling upon a motion to dismiss, a district court may consider an extrinsic document if it is (1) central to the plaintiff's claim; and (2) its authenticity is not challenged. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir.2010). But, a court should not take judicial notice of the accuracy of factual allegations in the documents of other courts. Fireman v.
Here, Defendants ask the Court to accept as true facts that the state prosecutor included in the Motion to Vacate.
The City Defendants argue that Caravella's claims for intentional infliction of emotional distress against Defendants Pierson, Mantesta, and Guess (Counts I-III) should be dismissed pursuant to Rule 12(b)(6) because "Plaintiff's allegations that Officers Pierson, Mantesta, and Guess coerced confessions from the Plaintiff and false statements cannot, as a matter of law, be deemed sufficiently `outrageous' to state a cause of action for intentional infliction of emotional distress." City Motion at 14. The BSO Defendants contend that the intentional infliction of emotional distress claim against Fantigrassi (Count VIII) should be dismissed because (1) Fantigrassi is immune from suit on this claim; (2) Fantigrassi owed no duty to perform the polygraph in a nonnegligent manner; (3) Fantigrassi's alleged conduct does not rise to the level of extreme and outrageous conduct; and (4) Fantigrassi's conduct did not cause Caravella emotional distress. BSO Motion at 10-11. For the reasons discussed below, the Court finds that Caravella has stated a claim for intentional infliction of emotional distress against Defendants Pierson, Mantesta, Guess, and Fantigrassi.
To state a claim for intentional infliction of emotional distress under Florida law, a plaintiff must allege: (1) deliberate or reckless infliction of mental suffering; (2) outrageous conduct; (3) the conduct caused the emotional distress; and (4) the distress was severe. Liberty Mut. Ins. Co. v. Steadman, 968 So.2d 592, 594 (Fla.Dist.Ct.App.2007) (citing Dependable Life Ins. Co. v. Harris, 510 So.2d 985, 986 (Fla.Dist.Ct.App.1987)). Intentional infliction of emotional distress claims require behavior that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
Here, the Court finds that Caravella has alleged all the elements of an intentional infliction of emotional distress claim. Caravella's allegations that Defendants Pierson, Mantesta, Guess, and Fantigrassi fabricated evidence against a fifteen year old boy with mental deficiencies, and "conspired to convict [him] of a crime they knew he did not commit" constitutes extreme and outrageous conduct by these Defendants. Am. Compl. ¶¶ 95, 97; see Diaz-Martinez v. Miami-Dade Cnty., No. 07-20914-CIV, 2009 WL 2970468, at *14 (S.D.Fla. Sept. 10, 2009) (finding that plaintiff had sufficiently alleged extreme and outrageous conduct where defendants' conduct during photo array was alleged to have lead to plaintiff's false imprisonment for over 20 years). Additionally, the Amended Complaint adequately alleges that this conduct caused Caravella emotional distress because it states that he suffered "[p]ermanent physical and emotional injuries, humiliation and embarrassment and damage to his reputation" as a result of the Defendants' actions. Am. Compl. ¶ 157(d).
Defendant Fantigrassi also claims that he has immunity against Caravella's intentional infliction of emotional distress claim. BSO Motion at 10. The Court disagrees. The cases cited by the BSO defendants for this proposition are inapplicable to this case. As Caravella points out in his response, both Cassell v. India, 964 So.2d 190 (Fla.Dist.Ct.App.2007), and Stephens v. Geoghegan, 702 So.2d 517 (Fla.Dist.Ct. App.1997), involved whether a communication made by a police officer within the scope of his official duties entitled him to absolute immunity from a defamation claim. See BSO Response at 6.
Finally, the Court finds the BSO Defendants' argument that "Fantigrassi owed no duty to perform the polygraph in a non-negligent manner" unpersuasive. See BSO Motion at 10. As Caravella points out, nowhere in the Amended Complaint does Caravella allege that Fantigrassi performed the polygraph in a negligent manner. See BSO Response at 6. Instead, the Amended Complaint is replete with allegations that Fantigrassi participated in a conspiracy to convict Caravella for a murder that he did not commit. Fantigrassi is alleged to have intentionally fabricated the results of the polygraph investigation. Accordingly, whether Fantigrassi had a duty to perform the polygraph in a non-negligent manner has no bearing on whether Caravella has stated a claim for intentional infliction of emotional distress.
The City Defendants have moved to dismiss Caravella's state law claim for negligent hiring, supervision, and/or retention against the City of Miramar (Count VI) on the basis that the method and manners in which the City conducted its hiring, retention and supervision is discretionary and not subject to the waiver of the City's sovereign immunity. City Motion at 15. The City Defendants further contend that this claim should be dismissed because the Amended Complaint lacks the elements or factual allegations necessary to constitute negligent hiring, supervision and/or retention. Id. at 16. The BSO Defendants also move to dismiss the negligent hiring, supervision, and/or retention claim against Defendant Lamberti (Count XI) because Fantigrassi was not negligent and no action by any BSO employee caused Caravella any damage. BSO Motion at 15.
Florida recognizes a cause of action for negligent hiring, supervision and/or retention. Green v. RJ Behar & Co., Inc., No. 09-62044-CIV, 2010 WL 1839262, at *3 (S.D.Fla. May 6, 2010). Negligent hiring and retention theories of liability permit an injured plaintiff to recover damages against an employer for the acts of an employee committed outside the scope and course of employment. Garcia v. Duffy, 492 So.2d 435, 438 (Fla.Dist.Ct. App.1986). Under these liability theories, an employer may be held responsible for an employee's willful torts if the employer knew or should have known that the employee was a threat to others. Magill v. Bartlett Towing, Inc., 35 So.3d 1017, 1020 (Fla.Dist.Ct.App.2010) (citing Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. Dist.Ct.App.1980)).
To evaluate a negligence claim against a governmental entity for the purposes of a motion to dismiss, the Court performs a two-step analysis. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11 th Cir.2001); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989). First, the Court analyzes whether the plaintiff has alleged circumstances that would subject a private citizen to liability under Florida law. Lewis, 260 F.3d at 1262; Kaisner, 543 So.2d at 734. To state a claim for negligent hiring, supervision and/or retention, a plaintiff must establish that the employer owed a legal duty to the plaintiff to exercise reasonable care in hiring and retaining safe and competent employees. Magill, 35 So.3d at 1020. For an employer to owe a plaintiff a duty, the plaintiff must be in the zone of risk that was reasonably foreseeable to the employer. Id. Accordingly, to state a claim, the plaintiff must "allege facts that would establish some relationship or nexus between the plaintiff and the tortfeasor's employment from which a legal duty would flow from the defendant-employer to that particular plaintiff." Id. at 1021. The plaintiff must then establish that the defendant-employer breached that duty and that the breach caused him damage. Hemmings v. Jenne, No. 10-61126-CIV, 2010 WL 4005333, at *5 (S.D.Fla. Oct. 12, 2010).
Here, the Court finds that Caravella has alleged all the elements necessary to state negligent hiring, supervision, and/or retention claims against the City of Miramar and Lamberti.
Second, the Court analyzes whether the plaintiff has alleged actions that are governmentally discretionary in nature and thereby barred by the discretionary act exception to the government's waiver of sovereign immunity. Lewis, 260 F.3d at 1262-63. In the instant case, the Court is unable to determine at this time whether sovereign immunity bars Caravella's negligent hiring, supervision, and/or retention claims. As this Court held in Hemmings, "[d]epending on the facts, ... hiring, retention, and supervision decisions could be operational." 2010 WL 400533, at *7. Without any information regarding whether the City of Miramar or Sheriff Lamberti's decisions related to hiring, retention, or supervision were discretionary or operational, the Court declines to dismiss these claims at this time.
In his Amended Complaint, Caravella brings claims for malicious prosecution under 42 U.S.C. § 1983 against Defendants Pierson, Mantesta, Guess, and Fantigrassi. Am. Compl. at Counts IV, IX. He also brings a section 1983 claim against Defendant City of Miramar under a theory of municipal liability. Id. at Count VII. Finally, Caravella brings section 1983 claims against Broward County Sheriffs Jenne individually and in his official capacity as Broward County Sheriff and Lamberti in his official capacity as Broward County Sheriff. Id. at Counts X, XII. The Court will address Defendants' Motions to Dismiss on each type of section 1983 claim individually below.
The City Defendants contend that Caravella's section 1983 malicious prosecution claim against Defendants Pierson, Mantesta, and Guess (Count IV) must be dismissed because they are entitled to qualified immunity. City Motion at 17-19.
Qualified immunity "offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wood v. Kesler, 323 F.3d 872, 877 (11th Cir.2003) (internal citations and quotations omitted). Qualified immunity is intended "to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Id. Once an official establishes that he was acting within the scope of his discretionary authority, the burden shifts to the plaintiff to overcome the privilege of qualified immunity. See Case v. Eslinger, 555 F.3d 1317, 1325-26 (11th Cir.2009). To do so, the plaintiff must prove: (1) that the defendant violated a constitutional right and (2) that this right was clearly established at the time. See id. Qualified immunity may be raised and addressed on a motion to dismiss. Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1327 (11th Cir.2003). A motion to dismiss will be granted on qualified immunity grounds if "the complaint fails to allege the violation of a clearly established constitutional right." Id. (internal citations and quotations omitted).
To plead a claim for malicious prosecution under section 1983, a plaintiff must establish (1) the elements of the common law tort of malicious prosecution and (2) a violation of his fourth amendment right to be free from unreasonable seizures. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir.2004). Under Florida law, a malicious prosecution plaintiff must show that (1) an original judicial proceeding was commenced or continued against him; (2) the defendants involved were the legal cause of the proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in the plaintiff's favor; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the defendants; and (6) the plaintiff suffered damages as a result of the original proceeding. Id. (citing Durkin v. Davis, 814 So.2d 1246, 1248 (Fla.Dist.Ct.App.2002)).
Here, the allegations contained within the Amended Complaint do not support that Defendants were acting within the scope of their discretionary duties and are entitled to qualified immunity. Caravella alleges, among other things, that Defendants knowingly fabricated evidence, filed false police reports, and conspired to convict him of a crime they knew he did not commit. See, e.g., Am. Compl. ¶ 122. In Holloman ex rel. Holloman v. Harland, cited by Caravella, the Eleventh Circuit held that "[e]mployment by a local, county, state, or federal government is not a carte blanche invitation to push the envelope and tackle matters far beyond one's job description or achieve one's official goals through unauthorized means. Pursuing a job-related goal through means that fall outside the range of discretion
Even assuming that Defendants' actions, as alleged in the Amended Complaint, were discretionary, dismissal on the grounds of qualified immunity would be improper at this time because Caravella has alleged that Defendants violated a clearly established constitutional right. Specifically, Caravella has alleged that Defendants' malicious prosecution of him violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. Am. Compl. ¶¶ 173-74; 214-15; City Response at 16. The Eleventh Circuit has held that an arrest without probable cause
The Court also rejects the BSO Defendants' argument that Fantigrassi's actions did not cause Caravella any constitutional injury. BSO Motion at 13. The BSO Defendants argue that Caravella "was arrested, tried and convicted based on his confessions to the Miramar detectives and his mother." Id. They ignore that Caravella has alleged that Fantigrassi "withheld or concealed exculpatory evidence and provided false reports, information and testimony to the criminal courts, the prosecutors, Plaintiff's criminal defense counsel, and the public." BSO Response at 8 (citing Am. Compl.). Accordingly, the Court cannot conclude that Fantigrassi did not cause Caravella constitutional injury at this time.
Finally, because the Court finds that Caravella has plead all the necessary
The City Defendants' argument that they were not the legal cause of Caravella's prosecution because the grand jury and the State Attorney's Office were responsible for his prosecution is similarly unavailing. The Eleventh Circuit has held that a plaintiff establishes a section 1983 malicious prosecution claim where the police officer responsible for the plaintiff's arrest allegedly fabricated evidence against him. Williams v. Miami-Dade Police Dep't, 297 Fed.Appx. 941, 947 (11th Cir.2008). Thus, a plaintiff's section 1983 claim based upon the defendant's alleged fabrication of evidence, which resulted in the prosecutor being presented with false and misleading evidence, satisfies the requirement that the defendant was the legal cause of the original prosecution. Id. Because Caravella has alleged that Defendants knowingly fabricated evidence, filed false police reports, and conspired to convict him of a crime they knew he did not commit, he has adequately alleged that Defendants were the legal cause of his prosecution. See, e.g., Am. Compl. ¶ 122.
The Court also finds that Caravella has adequately alleged that Defendants acted with malice. The section 1983 claim against Defendant Fantigrassi specifically alleges that he acted with malice. Am. Compl. ¶ 218. Moreover, malice may be inferred from an absence of probable cause. Brown v. Benefield, 757 F.Supp.2d 1165, 1181 (M.D.Ala.2010). Because the Court has already established that Caravella has adequately plead that Defendants Pierson, Guess, Mantesta, and Fantigrassi acted without probable cause, it is reasonable for the Court to infer that the prosecution was malicious. See id.
The City Defendants contend that Caravella's section 1983 claim against the City of Miramar should be dismissed because he "makes no allegations whatsoever
A municipality cannot be held liable under section 1983 for the acts of its employees on a theory of respondeat superior. Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir.1997) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). To impose section 1983 liability on a municipality, a plaintiff must identify a municipal policy or custom that caused his injuries. Gomez v. Lozano, 759 F.Supp.2d 1335, 1338 (S.D.Fla.2011). A court may hold the municipality liable only if its custom or policy caused the municipal "employees to violate a citizen's constitutional rights." Id. (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998)). To establish section 1983 liability against a municipality based on custom, "a plaintiff must establish a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir.2001) (internal citations and quotations omitted). A municipality's failure to correct the constitutionally offensive actions of its employees can rise to the level of a custom or policy "if the municipality tacitly authorizes these actions or displays deliberate indifference" towards the misconduct. Id. However, "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Scala, 116 F.3d at 1399 (quoting Pembaur v. City of Cincinnati 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Thus, a municipality may be liable "for constitutional deprivations resulting from governmental custom, even where such custom has not received formal approval through official decision-making channels." Hornstein v. Miami-Dade Cnty., No. 0521521 CIV-HUCK, 2005 WL 3890636, at *3 (S.D.Fla. Sept. 9, 2005).
Inadequate police training may create liability for a municipality if the inadequate training arises from deliberate indifference to those with whom the police interact. Gomez, 759 F.Supp.2d at 1338. To establish deliberate indifference, a plaintiff must show a pattern of improper training and that the municipality was aware of its training program's deficiencies. Id. (citing Skop v. City of Atlanta, 485 F.3d 1130, 1145 (11th Cir.2007)). A municipality may similarly be liable under section 1983 for failure to supervise. Diaz-Martinez, 2009 WL 2970468, at *12.
The Amended Complaint, despite the City Defendants' arguments to the contrary, specifically alleges that a custom of police misconduct existed and that the City of Miramar was aware of this misconduct. For example, paragraph 146(e) alleges that "[t]here exists a pattern and practice of engaging in false arrests, imprisonment, false prosecution, excessive use of force, as evidenced by, but not limited to, incidents involving the Plaintiff, Ian Kissoonial, Chiquita Hammonds, Cornelius Green and Macquerita Quire. Am. Compl. ¶ 146(e). Moreover, the Amended Complaint states that the City of Miramar had knowledge of this misconduct based on injuries suffered by the individuals listed in the preceding subsection. Id. ¶ 146(f). Caravella additionally alleges that the City of Miramar condoned or tolerated constitutional violations by its police department because of the "number of homicides which
The BSO Defendants seek to dismiss the section 1983 claim brought against Defendant Jenne in both his official and individual capacities. BSO Motion at 14-15. First, the BSO Defendants argue that the claim against Jenne in his individual capacity must be dismissed because "the Complaint contains no allegations Jenne had personal participation in the alleged wrongdoing or that there was a causal connection between his acts and Caravella's alleged damages." Id. at 14. Second, the BSO Defendants argue that no official capacity claim can be brought against Jenne because he has not been Sheriff since 2007. Id. Third, they contend that a section 1983 action cannot lie against Jenne based on an allegation that the BSO had a policy of coercing confessions decades after Caravella was arrested and investigated for a murder by Miramar detectives. Id. at 15. In opposition, Caravella cites to a number of paragraphs from the Amended Complaint in which he alleges that Jenne personally participated in causing damage to Caravella by concealing and covering up illegal and unconstitutional conduct on the part of his agents. BSO Response at 9.
Where a section 1983 plaintiff sues government employees (such as police officers) in their official capacities, the suit is in actuality against the governmental entity that the individuals represent. Farred v. Hicks, 915 F.2d 1530, 1532 (11th Cir.1990) (citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)). Because Defendant Jenne ceased to be Broward County Sheriff in 2007, the Court agrees that Jenne can no longer be sued in his official capacity. See Williams v. Goldsmith, 4 F.Supp.2d 1112, 1122 (M.D.Ala.1998) (finding that it was improper to allow official capacity claims to proceed against individuals who were no longer representatives of the entity). Accordingly, the Court will dismiss the allegations against Defendant Jenne in his official capacity only. To the extent the allegations against Jenne in his official capacity are not already encompassed in his claim against Defendant Lamberti (Count XI I), Caravella may re-plead his official capacity allegations against Jenne as to a proper defendant.
Supervisory liability under section 1983 is appropriate "either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional violation." Keating v. City of Miami, 598 F.3d 753, 762 (11th
Finally, to the extent the BSO Defendants argue that this count should be dismissed because the investigation and prosecution of Caravella "was not their case", the Court finds this argument unavailing. See BSO Motion at 15. At the motion to dismiss stage, the Court must take all allegations in the Amended Complaint as true. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Caravella has alleged that BSO Defendant Fantigrassi participated in a conspiracy to fabricate evidence and convict Caravella of a crime he knew Caravella did not commit. Am. Compl. ¶¶ 96-97. He has also alleged that because of errors committed in the Broward County Sheriff's Crime Laboratory in 2001, DNA evidence that exonerated Caravella was not obtained until 2009, eight years after DNA evidence was originally submitted to a laboratory for testing. Am. Compl. ¶¶ 106-107, 109. Accordingly, the BSO Defendants unsupported factual argument that this "was not their case" cannot serve as a basis to dismiss Count X.
The BSO Defendants also move to dismiss the section 1983 claim brought against Defendant Lamberti in his official capacity. BSO Motion at 16-18. The BSO Defendants reiterate that dismissal of this claim is proper because City of Miramar detectives, not the BSO, investigated the Jankowski murder. Id. at 16.
The standard for municipal liability is set forth in Subsection F.2 above. The Court finds that Caravella has stated a section 1983 claim against Defendant Lamberti. The Amended Complaint specifically alleges that Defendant Fantigrassi employed the same illegal techniques utilized against Caravella on another man, Jerry Frank Townsend, who was also wrongfully convicted and incarcerated, until he was exonerated by DNA testing. Am. Compl. ¶ 65. The Amended Complaint further alleges that the same coercive and illegal
The City Defendants seek to dismiss Caravella's section 1983 conspiracy claim against Defendants Pierson, Mantesta, and Guess because Caravella "does not plead that Officers Pierson, Mantesta, and Guess reached any specific type of agreement to violate the Plaintiff's rights, much less than any facts about such an agreement." City Motion at 23. The BSO Defendants seek to dismiss the conspiracy count against Defendant Fantigrassi because Caravella has not plead the required elements for a conspiracy pursuant to 42 U.S.C. § 1985. BSO Motion at 8. The BSO Defendants also argue that Caravella has failed to allege "particular facts to support a conspiracy claim." Id. at 9.
To state a section 1983 claim for conspiracy, a plaintiff must allege a conspiracy that resulted in the actual denial of some underlying constitutional rights. Grider, 618 F.3d at 1260. The plaintiff must show that the parties "reached an understanding to deny the plaintiff his or her rights." Id. (quoting Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990)). Additionally, the plaintiff must establish that the conspiratorial acts impinge upon the federal right. Bendiburg, 909 F.2d at 468. To avoid dismissal on a motion to dismiss, the plaintiff must make particularized allegations that a conspiracy exists. Hansel v. All Gone Towing Co., 132 Fed. Appx. 308, 309 (11th Cir.2005) (citing GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1370 (11th Cir.1998)). Vague and conclusory allegations suggesting a section 1983 conspiracy are insufficient to withstand a motion to dismiss. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). The Court agrees with Caravella that the conspiracy claim alleged in the Amended Complaint is brought pursuant to section 1983, not section 1985. See BSO Response at 5. Accordingly, the BSO Defendants' arguments that this count should be dismissed because "there are no allegations Caravella belonged to a discreet class, or that Fantigrassi entered a conspiracy to deprive him of his equal protection rights based on that class" are without merit. See BSO Motion at 8.
The Court also finds that the Amended Complaint adequately alleges that Defendants Pierson, Mantesta, Guess, and Fantigrassi reached an agreement to deprive Caravella of his constitutional rights. To prove conspiracy under section 1983, a plaintiff must (1) prove the parties had a "meeting of the minds" or reached an understanding to violate the plaintiff's rights and (2) prove an actionable wrong to support the conspiracy. Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty., Fla., 956 F.2d 1112, 1122 (11th Cir.1992). "[T]he linchpin for conspiracy is agreement, which presupposes communication ...." Id. Here, the Amended Complaint specifically alleges that all four Defendants met
Am. Compl. ¶ 129.
The Court rejects Defendants' arguments that the conspiracy claim should be dismissed for failure to plead specific facts supporting the conspiracy. The Amended Complaint is replete with specific factual allegations regarding a conspiracy between Defendants Pierson, Guess, Mantesta, and Fantigrassi. For example, the Amended Complaint alleges that Defendants Pierson and Mantesta specifically selected Caravella "to close the Jankowski investigation." Am. Compl. ¶ 60.
Caravella brings RICO claims pursuant to 18 U.S.C. § 1962(b)-(d) and Fla. Stat. § 772.103(2)-(4) against Defendants Pierson, Mantesta, Guess, Fantigrassi, and Jenne.
In response, Caravella contends that he has adequately alleged that the BSO and the City of Miramar are enterprises under the federal and state RICO acts. City Response at 23-24; BSO Response at 16. He also argues that there are adequate allegations that Fantigrassi and Jenne's conduct caused injury to Caravella, BSO Response at 17, and that he has alleged a threat of continued racketeering activity. City Response at 25. Finally, Caravella contends that the injuries he suffered from his wrongful conviction and incarceration were injuries to business or property. Id. at 27-30. In any event, Caravella points out that the Florida RICO statute does not limit damages to "injury to business or property." Id. at 27.
To successfully bring a RICO claim
"A plaintiff can establish a RICO conspiracy claim in one of two ways: (1) by showing that the defendant agreed to the overall objective of the conspiracy; or (2) by showing that the defendant agreed to commit two predicate acts." Cigna Corp., 605 F.3d at 1293 (quoting Republic of Pan. v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 950 (11th Cir.1997)). A plaintiff need not offer direct evidence of a RICO agreement; the existence of conspiracy "may be inferred from the conduct of the participants." Id. (quoting Republic of Pan., 119 F.3d at 950).
Florida's RICO law "is informed by case law interpreting the federal RICO statute ... on which Chapter 772 is patterned." Jackson, 372 F.3d at 1263 (quoting Jones v. Childers, 18 F.3d 899, 910 (11th Cir.1994) (internal citation omitted)). Because "Florida courts often look to the Federal RICO decisions for guidance in interpreting and applying the act[,] Fla. Software Sys., Inc. v. Columbia/HCA Healthcare Corp., 46 F.Supp.2d 1276, 1284 (M.D.Fla.1999), the analysis we apply to the plaintiffs' federal RICO claims is equally applicable to their state RICO claims." Jackson, 372 F.3d at 1263-64 (internal quotation marks omitted); see also All Care Nursing Serv., Inc. v. High Tech Staffing Servs., Inc., 135 F.3d 740, 745 (11th Cir.1998) ("Florida's RICO statutes have consistently been interpreted using federal RICO claim cases."); Bortell v. White Mountains Ins. Grp., Ltd., 2 So.3d 1041, 1047 (Fla.Dist.Ct.App.2009) ("Because the Florida RICO Act is patterned after the federal act, Florida looks to federal authorities in construing its own RICO statute."). The Court will address Defendants' various arguments to dismiss the RICO counts individually below.
Title 18 U.S.C. § 1961(4) defines "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). The Florida RICO statute similarly defines "enterprise" as "any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and the term includes illicit as well as licit enterprises and governmental, as well as other, entities." Fla. Stat. § 772.102(3). Here, Caravella contends that he has adequately alleged that the City of Miramar Police Department and the BSO are enterprises under these definitions. City Response at 23. Caravella also argues that an association-in-fact enterprise existed between Defendants Pierson, Mantesta, Guess, and Fantigrassi (later joined by Defendant Jenne). Id. at 24.
The Court agrees with Caravella that he has adequately alleged a RICO enterprise. As Caravella notes, there is ample support for the notion that a police department or sheriff's office may constitute a RICO enterprise. See, e.g., United States v. Casamayor,
The City Defendants also challenge that Caravella has established an association-in-fact enterprise between Defendants Pierson, Mantesta, Guess, and Fantigrassi. They cite Palm Beach County Environmental Coalition v. Florida for the proposition that "merely alleging that the `Defendants conspired with each other and with others ...' does not allege an enterprise." 651 F.Supp.2d 1328, 1349 (S.D.Fla.2009). "[T]he existence of an enterprise is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." Mohawk Indus., Inc., 465 F.3d at 1284 (quotations omitted). "[T]he definitive factor in determining the existence of a RICO enterprise is the existence of an association of individual entities, however loose or informal, that furnishes a vehicle for the commission of two or more predicate acts." Id. In Mohawk Industries, the Eleventh Circuit declined, at the motion to dismiss stage, to find that the plaintiff had failed to allege an association-in-fact enterprise where the complaint specifically alleged a conspiracy between the defendant and third party recruiters to bring illegal workers into the country. Id. Similarly here, the Amended Complaint contains numerous allegations of a conspiracy between Defendants Pierson, Guess, Mantesta, and Fantigrassi to wrongfully convict Caravella. See, e.g., Am. Compl. ¶¶ 92-97. On these facts, the Court finds that Caravella has adequately alleged an association-in-fact enterprise.
The City Defendants contend that the RICO claims must be dismissed because Caravella has failed to allege a continuing pattern of racketeering activity on the part of Defendants Pierson, Mantesta, and Guess. City Motion at 27-28. Furthermore, they contend it would be impossible for Caravella to establish continuing racketeering activity on the part of any of these Defendants because they are no longer employees of the City of Miramar Police Department. Id. at 28 n. 19.
Jackson, 372 F.3d at 1265 (quoting H.J. Inc., 492 U.S. at 241-42, 109 S.Ct. 2893). Where RICO allegations concern only "a single scheme with a discrete goal," courts have refused to find a closed-ended pattern of racketeering. Id. at 1267 (citing cases). To establish open-ended continuity, a plaintiff must establish that the predicate acts were the enterprise's "regular way of doing business" or threaten repetition in the future. Jackson, 372 F.3d at 1265.
In his Response, Caravella argues that he has established an open-ended pattern of racketeering activity. City Response at 26.
The City Defendants additionally argue that Caravella's federal RICO claims should be dismissed because he has failed to allege an injury to business or property. City Motion at 28.
The Court disagrees with the BSO Defendants' argument that Caravella has failed to allege that Defendants Fantigrassi and Jenne caused him damage. As noted in Caravella's response, the Amended Complaint alleges that Defendants Jenne and Fantigrassi committed predicate acts in violation of state and federal statutes. BSO Response at 17. For example, the Amended Complaint alleges that:
Am. Compl. ¶ 130. Accordingly, the Court finds that Caravella has sufficiently alleged that Defendants Jenne and Fantigrassi caused him damage.
Title 18 U.S.C. § 1964 limits those who may bring civil RICO actions to "[a]ny person injured in his business or property." 18 U.S.C. § 1964(c). Caravella contends that he has alleged injury to business or property "in the form of lost employment and employment opportunities and wages." City Response at 28. The City Defendants cite a Judge Jordan opinion from Townsend v. City of Miami, Case No. 03-21072-CIV-JORDAN (S.D.Fla. Nov. 7, 2007) [DE 219], for the proposition that injuries related to lost employment and wages cannot be injuries to business or property. City Reply at 17. The Court agrees.
In Townsend, the Court dismissed with prejudice claims brought under the federal civil RICO statute by a plaintiff exonerated by DNA testing after 22 years imprisonment because he had "not alleged an
Based on the foregoing, it is
Fla. Stat. § 772.103 similarly provides that:
It is unlawful for any person:
Additionally, in Townsend police officer defendants James Boone and Kevin Roberson and former city manager defendants Howard V. Gary, Cesar H. Odio, and Donald Warshaw did not contend that the RICO claims should be dismissed because they were no longer employed by the City of Miami. See Motion to Dismiss Counts VVIII and/or Motion for Judgment on the Pleading [DE 185]; Former City Manager's Motion to Dismiss, or in the Alternative, Motion for Judgment on the Pleadings [DE 187].
