LTC 458-2022 Federal Court Victory in Alberonick Valsaint v. City of Miami Beach, et al. and State Court Victory in Ernesto Orsetti v. City of Miami Beach, et al.MIAM I BEACH
OFFICE OF THE CITY ATTORNEY
LTC No.
TO:
FROM:
DATE:
458-2022
LETTER TO COMMISSION
Mayor Dan Gelber and Members of the City Commission
Rafael A. Paz, City Attorney ~
November 4, 2022
SUBJECT: Federal Court Victory in Alberonick Va/saint v. City of Miami Beach, et al.
and State Court Victory in Ernesto Orsetti v. City of Miami Beach, et al.
The purpose of this L TC is to advise you of two legal victories this week in lawsuits
alleging constitutional violations by Miami Beach Police Department officers.
First, I am pleased to inform you that United States District Judge Robert Scola granted
the City's Motion to Dismiss the Complaint in Alberonick Va/saint v. City of Miami Beach,
et al. In this case, the Plaintiff, who is homeless, alleged that his constitutional rights were
violated when officers asked that he leave private property and subsequently arrested
him when he refused to do so. Notably, the Plaintiff was represented by a large national
law firm, which aggressively litigated the case. The Court, however, found that the City
did not commit any constitutional violation and dismissed Plaintiff's claim with prejudice.
Second, I am pleased to inform you that Circuit Judge Migna Sanchez-Llorens granted
the City's Motion to Dismiss the Complaint in Ernesto Orsetti v. City of Miami Beach, et
a/. Plaintiff, who was arrested for impersonating a police officer, alleged a claim for abuse
of process against the City. The Court dismissed the claim against the City as a matter of
law.
The cases were litigated on behalf of the City by Chief Deputy City Attorney Rob
Rosenwald, First Assistant City Attorney Henry Hunnefeld, and Assistant City Attorney
Benjamin Braun.
A copy of the court's Orders in Alberonick Va/saint v. City of Miami Beach, et al., Case
No. 21-24143 (S.D. Fla. 2022) and Ernesto Orsetti v. City of Miami Beach, et al., Case
No. 2021-022375-CA-01 are attached.
Please feel free to contact me or Chief Deputy City Attorney Rob Rosenwald for further
information about this or any City litigation matter.
RAP/RFR/bb
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 1 of 12
United States District Court
for the
Southern District of Florida
Alberonick Valsaint, Plaintiff,
V.
City of Miami Beach, Florida and
others, Defendants.
Civil Action No. 21-24143-Civ-Scola
Order on Motions to Dismiss
Plaintiff Alberonick Valsaint seeks to recover damages from the City of
Miami Beach and three named police officers-Gustavo Blacio, David Cajuso, and
Orlando Sosa Jr. (collectively, the "Officers")-and one unidentified officer-"John
Doe"-for violations of his constitutional rights that he says occurred when he
was wrongfully detained, or perhaps arrested, on one occasion, in 2017, and
wrongfully arrested, on another, in 2018. (Am. Compl. ("Compl."), ECF No. 38.) In
his ten-count complaint, Valsaint alleges liability under 42 U.S.C. § 1983 for
violations of his fourth, eighth, and fourteenth amendment rights, along with
municipal liability against the City. The City and the Officers have filed motions to
dismiss. (City's Mot., ECF No. 41; Officers' Mot., ECF No. 42.) In those motions,
the Defendants argue that Valsaint has failed to set forth facts establishing any
actual underlying constitutional violations. Further, the City separately argues
that Valsaint has also failed to properly allege municipal liability under§ 1983.
The Officers additionally maintain, in their motion, that even if a constitutional
violation is set forth in the complaint, the officers are nonetheless entitled to
qualified immunity. Valsaint has filed a unified response, opposing both motions
(Pl.'s Resp., ECF No. 44) and the City and the Officers have, separately, replied
(City's Reply, ECF No. 45; Officers' Reply, ECF No. 42). After review, the Court
agrees with the Officers that the counts based on Valsaint's arrest, in October
2018, should be dismissed for failing to state a claim. It also appears, though,
that the claims Valsaint bases on the September 2017 incident, involving only
Blacio and the John Doe officer, are time barred. Finally, even if the claims
against the John Doe officer are not time barred, it appears those claims should,
in any event, be dismissed because that officer has yet to be identified and,
therefore, has never been served. On the other hand, the Court agrees with the
City that the sole count in the complaint against it, for municipal liability is
wholly lacking and should be dismissed for failing to state a claim. In sum, then,
the Court grants, in part, and defers ruling on, in part, the Officers' motion to
dismiss (ECF No. 42) and grants, in its entirety, the City's motion to dismiss
(ECF No. 41). As to the remaining claims, the Court orders Valsaint to show
cause, on or before November 10, 2022, why they too should not be dismissed.
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 2 of 12
1. Background 1
Valsaint describes two incidents involving the Officers in his complaint: one
that occurred in September 2017 and another in October 2018. During the first
incident, Valsaint, who describes himself as homeless, Haitian American, and
Black (e.g., Compl. ,r,r 75, 86), was sitting near the corner of Lincoln Road and
Pennsylvania Avenue one night, in September 2017 (id. ,r 21). He had his
backpack on his lap and describes himself as being quiet and peaceful when two
officers-Blacio and the John Doe officer-approached him from behind. (Id.)
Valsaint describes the officers as approaching him aggressively, yelling at him to
turn around. (Id.) As Valsaint turned, he saw that the John Doe officer had his
gun pointed at him. (Id. ,r 22.) That officer circled Valsaint, at gunpoint, and
shouted at him to open his backpack while asking him what type of weapon he
was carrying. (Id. ,r 24.) During the interaction, Blacio stood by, smiling. (Id.)
Valsaint informed the two officers he did not have a weapon in his bag,
opening his bag and emptying its contents to show them. (Id. ,r,r 27-28.) Valsaint
also complied with Blacio's demand to show his identification, providing him with
his Florida license. (Id. ,r,r 28-29.) Blacio also asked Valsaint where he was from
and whether he was Haitian, questioning Valsaint about whether he was legally
in the United States. (Id. ii 30.) Upon Blacio's questioning Valsaint about his
occupation and why he was "out here," Valsaint explained he was a student,
studying computer technology and that he "was just sitting down." (Id.) At the
same time, there was a white man, across the street sleeping, whom the officers
left alone. (Id. ,r 31.) When Valsaint queried the officers about why they were
harassing him and not the sleeping white man, Blacio told him not to worry about
the white man, telling Valsaint, "you are the one we need -you are the one that
we want." (Id.)
After a short conversation over his radio, Blacio was told to let Valsaint go.
(Id. ,r 32.) At this point, the John Doe officer lowered his gun and Blacio handed
Valsaint his license back, along with a small, yellow piece paper, telling Valsaint
to go to social services. In all, the interaction lasted between twenty-five and
thirty minutes. (Id. ,r 33.)
Over a year later, in October 2018, Valsaint was in the vicinity again, this
time "sitting on the ground, lying against a wall near the back alley of a
building''-a clothing store-"on Lincoln Road." (Id. ,r 37; Arrest Aff.,2 Ex. A, City's
1 The Court accepts the complaint's factual allegations, as set forth below, as true for the purposes
of evaluating the motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364, 1369 (11th Cir. 1997).
2 The City attached the "Complaint/ Arrest Affidavit" from the October 2018 incident to its motion
to dismiss. (ECF No. 41-1.) Valsaint references or quotes from this report, signed by both Blacio
and Sosa, multiple times in his complaint. (E.g., Compl. ,r,r 18, 45, 60, 81, 1st 89 (the complaint
includes duplicates of paragraphs 89 through 95 so the Court differentiates them by indicating
first or second), 2nd 94, 152, 158, 166.) The affidavit also goes to the h eart of many of Valsaint's
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 3 of 12
Mot., ECF No. 41-1.) Valsaint had his sneakers behind his back, for support, with
his socks tucked inside of them. (Compl. ,r 37.) When Blacio and Cajuso, while on
a "quality of life" detail, encountered Valsaint, it was just before 4:00 am. (Id. ,r,r
39, 59; Arrest Aff. at 1.) Without even allowing him to put his shoes on, Blacio
ordered Valsaint to stand and put his hands behind his back so that Blacio could
cuff him, arresting him for trespassing after a warning. (Compl. ,r,r 40, 81; Arrest
Aff. at 1.) Blacio patted Valsaint down and walked him to a transport van, all
while he remained shoeless. (Compl. ,r 41.) Because the cuffs were so tight, they
left Valsaint with bruises and marks. (Id. ,r 43.) Valsaint also says someone, he
doesn't specify whom, asked him questions about either his race or national
origin. (Id. ,r 42.)
The business where Valsaint was arrested, and other businesses in the
City, have agreements with the City to arrest people on their properties who are
trespassing. (Id. ,r,r 60, 1st 89, 2nd 94, 166; Arrest Aff. at 1.) Valsaint alleges these
agreements are pretextual and target homeless people and minorities who are
really doing nothing more than "performing harmless, inoffensive life-sustaining
conduct in public." (E.g., Compl. ,r,r 60, 1st 89, 2nd 94, 166.) In the arrest affidavit,
Blacio described an "ongoing problem" at the location where he arrested Valsaint.
(Arrest Aff. at 1.) Blacio also noted that the business, closed at the time, had
"clearly posted" "no trespassing'' signs, with letters that are two inches high. (Id.)
Blacio further explained, in the affidavit, that "the business has a trespass
authorization letter on file with the Miami Beach Police Department authorizing
any police officer ... to arrest if compliance," presumably with the no-trespassing
signs, "is not met." (Id.)
Valsaint filed a formal complaint with the City's internal-affairs department,
in August 2020, but no investigation was initiated nor were Blacio, Cajuso, or
Sosa ever reprimanded. (Compl. ,r,r 56, 63-64.) Valsaint then initiated this
lawsuit, on November 24, 2021, complaining that the Defendants' conduct was
unlawful and that he was targeted because of his race, national origin, and
homeless status.
2. Legal Standard
A court considering a motion to dismiss must accept all the complaint's
allegations as true, construing them in the light most favorable to the
claims, based on the constitutionality of his arrest in October 2018. Finally, none of the parties
dispute the authenticity of the report. Accordingly, the Court considers this document, in
evaluating the parties' motions to dismiss, without converting the motions into motions for
summary judgment. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (finding that a
"court may consider a document attached to a motion to dismiss without converting the motion
into one for summary judgment if the attached document is (1) central to the plaintiffs claim and
(2) undisputed").
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 4 of 12
plaintiff. See Pi.elage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
Although a pleading need only contain a short and plain statement of the claim
showing that the pleader is entitled to relief, a plaintiff must nevertheless
articulate "enough facts to state a claim to relief that is plausible on its face." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "But where the well-pleaded
facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not shown-that the pleader is
entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A court must
dismiss a plaintiffs claims if she fails to nudge her "claims across the line from
conceivable to plausible." Twombly, 550 U.S. at 570.
3. Analysis
A. Statute of Limitations
Counts one through nine are lodged against the officer defendants; count
ten, against the City. Counts one through three target just Blacio and are all
based on both the 201 7 as well as the 2018 incidents. Counts four through six
are aimed only at the John Doe officer and are based solely on the 2017 incident.
Counts seven through nine, in turn, are maintained against Cajuso and Sosa,
together, and relate only to the 2018 incident. Finally, c;ount ten, against the City,
is premised on both incidents.
While § 1983 does not provide for a statute of limitations, it has been
established that "[a]ll constitutional claims brought under§ 1983 are tort actions,
subject to the statute of limitations governing personal injury actions in the state
where the§ 1983 action has been brought." Sneed v. Pan Am. Hosp., 370 F. App'x
47, 49 (11th Cir.2010) (cleaned up). The applicable statute of limitations in
Florida provides for a four-year limitations period. Fla. Stat. § 95. l 1(3)(p)
(2011); see also Sneed, 370 F. App'x at 47 (stating same). When a statute-of-
limitations defense "is apparent from the face of the complaint or the court's
records, courts need not wait and see if the defense will be asserted in a defensive
pleading." Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636,641 (11th
Cir. 1990).
From the face of the complaint, it appears Valsaint's claims, to the extent
they are based on the 2017 interaction with Blacio and the John Doe officer, are
time barred: that incident took place on September 18, 2017, but Valsaint did not
file his complaint until November 24, 2021-over four years later. Because this
issue was raised for the first time only in reply to Valsaint's opposition, however,
the Court will afford Valsaint the opportunity to rebut this affirmative defense if
he can, in good faith, do so. In the meantime, however, to avoid a dismissal on
the merits regarding the claims based on the 201 7 event, the Court will confine
its substantive analysis to those claims that are premised solely on the 2018
incident.
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 5 of 12
B. The Officers
Valsaint's claims, in relation to his arrest on October 25, 2018, against
Blacio, Cajuso, and Sosa are all premised on their violations of the Fourth,
Eighth, and Fourteenth Amendments. Valsaint argues his Fourth Amendment
rights were violated because all three officers "arrested Plaintiff without warning
and without probable cause." (Pl.'s Resp. at 4 .) As to his Eighth Amendment
claims, Valsaint maintains he can sustain his claim that he was subjected to
cruel and unusual punishment despite failing to allege any post-conviction
wrongful conduct. And, Valsaint maintains his Fourteenth Amendment claims
cannot be dismissed because he has alleged facts sufficient to show that he was
treated differently from similarly situated, non-minority individuals and that he
was singled out because of his race, nation of origin, and homeless status. As to
all three constitutional bases, the Court finds Valsaint's claims do not survive
dismissal.
As an initial matter, "[t)he doctrine of qualified immunity protects
government officials 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." Pearson v. Callahan, 555 U.S. 223, 231,
129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009). "To receive qualified immunity, the
public official must first prove that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred." Wood v.
Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (cleaned up). "Once the defendant
establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that qualified immunity is not appropriate." Id.
(cleaned up). "Officers who act within their discretionary authority are entitled to
qualified immunity under§ 1983 unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct was clearly
established at the time." Williams v. Aguirre, 965 F.3d 1147, 1156 (11th Cir.
2020) (cleaned up). As to the second prong, "[t)he Supreme Court has emphasized
that determining whether a constitutional right was clearly established must be
undertaken in light of the specific context of the case, not as a broad general
proposition." Battiste v. Sheriff of Broward Cnty., 261 F. App'x 199, 202 (11th Cir.
2008) (cleaned up). This inquiry turns on whether a plaintiff can establish that "it
would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted, and whether the state of the law gave the officer fair
warning that his actions were unconstitutional." Id. (cleaned up); see also
Murdock v. Cobb Cnty., Ga., No. l:12-CV-01743-RWS, 2013 WL 2155465, at ·kg
(N.D. Ga. May 17, 2013) ("Plaintiffs bear the burden of establishing that the
constitutional right at issue was clearly established at the time of the violation.").
There is no dispute here that the Officers were all acting within their
discretionary authority. Accordingly, then, the Court evaluates whether Valsaint
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 6 of 12
has shown qualified immunity should not attach. In doing so, it is within the
Court's discretion, in light of the circumstances of the case, to determine which of
the two prongs of the qualified immunity analysis to address first as to each
claim. Pearson, 555 U.S. at 236.
As to Cajuso and Sosa, the Court finds Valsaint's allegations fail as to all
three counts against them both. Other than conclusory statements, Valsaint fails
to set forth facts that support these officers' involvement in any of the alleged
constitutional violations. As to the encounter in October 2018, Cajuso's alleged
involvement was minimal, establishing only his presence at the scene and his role
in transporting Valsaint to the police department. Sosa's involvement was even
more tangential, having simply "signed off' on Blacio's arrest affidavit. Valsaint's
speculation, in both his complaint and his opposition brief, that Cajuso
participated "in a collaborative approach with Officer Blacio" in arresting Valsaint
is insufficient to state a§ 1983 claim against Cajuso. (See, e.g., Pl.'s Resp. at 10
n. 2; Compl. ,i~ 39, 150, 152.) Similarly, Valsaint's allegations that Cajuso and
Sosa both knew there was no probable cause for his arrest are devoid of any
factual underpinnings. Finally, Valsaint's argument that Sosa's liability stems
from his supervisory position also misses the mark. Importantly, "supervisory
officials are not liable under § 1983 for the unconstitutional acts of their
subordinates on the basis of respondeat superior or vicarious liability." Hartley v.
Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Instead, for supervisory liability to
attach, either the supervisor must personally participate in the alleged
constitutional violation or there must be a causal connection between the actions
of that supervisor and the alleged constitutional deprivation. Id. Valsaint has not
alleged facts establishing either. Based on the dearth of relevant facts, the Court
dismisses counts seven through nine-directed only at Cajuso and Sosa-in their
entireties.
Valsaint's allegations against Blacio, on the other hand, are more
substantial but still fail to overcome Blacio's qualified immunity, as explained in
more detail, below.
(1) Valsaint fails to show that Blacio is not shielded by qualified immunity
as to his claims for cruel and unusual punishment under the Eighth
Amendment or excessive force under the Fourth Amendment.
Valsaint's allegations, in count two, that Blacio subjected him to cruel and
unusual punishment, miss the mark. As an initial matter, the Court notes
Valsaint has captioned this count as arising under the Eighth Amendment. But,
as the Officers point out, the Eighth Amendment "applies only to confinement
that occurs subsequent to and as a consequence of a person's lawful conviction of
a crime." Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572 (11th Cir. 1985).
"Conditions of confinement imposed prior to conviction," conversely, "are limited
instead by the due process clause of the fourteenth amendment." Id. Further still,
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 7 of 12
claims of mistreatment, or excessive force, during the course of an arrest, "should
be analyzed under the Fourth Amendment and its reasonableness standard,
rather than under a substantive due process approach." Graham v. Connor, 490
U.S. 386, 395 (1989). Because the purported abuses Valsaint claims to have
suffered occurred prior to his acquiring pretrial-detainee status, and certainly
prior to any confinement as a result of a conviction, the Court construes his
allegations, under count two, as a claim of excessive force arising under the
Fourth Amendment, as opposed to the Eighth Amendment, as he has captioned
it.
"To establish a Fourth Amendment claim for excessive force, a plaintiff
must allege (1) that a seizure occurred and (2) that the force used to effect the
seizure was unreasonable." Corbitt v. Vickers, 929 F.3d 1304, 1315 (11th Cir.
2019) (cleaned up). Ordinarily, "a Fourth Amendment violation depends
upon intentional action on the part of the officer." Id. at 1317 (emphasis in
original). That is, "the focus of the Fourth Amendment analysis is on the misuse
of power, not the accidental effects of otherwise lawful government conduct." Id.
at 1320 (cleaned up).
While there is no dispute that Valsaint has set forth facts establishing that
a seizure occurred, the Court finds allegations as to the second element
thoroughly lacking. The only facts that V alsaint alleges that even remotely touch
on his excessive-use-of-force claim are ( 1) Blacio cuffed him and made him walk
to the transport van in his bare feet; (2) Valsaint could barely fit in the transport
van due to other arrestees; (3) Blacio ignored Valsaint's complaint that the
handcuffs were too tight; (4) the handcuffs left "bruises and marks"; and (5) the
transport van did not take Valsaint directly to the station but instead continued
driving around the City. Valsaint fails to convince that these allegations amount
to the violation of a clearly established constitutional right: at most Valsaint has
shown he suffered de minimis injuries as a result of an otherwise unremarkable
arrest that reveals no evidence of a concrete intent to harm.
Valsaint's reliance on Pottinger v. City of Miami is misplaced. 810 F. Supp.
1551 (S.D. Fla. 1992). In that case, in relevant part, the plaintiff class members-
all homeless-challenged an ordinance that, as applied to them, "punish[ed] them
for something for which they may not be convicted under the eighth
amendment-sleeping, eating and other innocent conduct." Id. at 1565. Pottinger
is inapplicable for many reasons, not the least of which is that the ordinance at
issue here targets trespassing on private property, as opposed to loitering on
public property. Accordingly, to the extent Valsaint claims that his
"circumstances are identical to th[e] plaintiffs in Pottinger," he is wrong.
Furthermore, the part of Pottinger that Valsaint relies on is directed towards the
Eighth Amendment, not the Fourth Amendment.
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 8 of 12
(2) Valsaint fails to show that Blacio is not shielded by qualified immunity
as to his claim under the Fourteenth Amendment's Equal Protection
Clause.
Valsaint's allegations regarding the Equal Protection Clause are also
lacking. According to Valsaint, he was targeted for arrest because of his race,
national origin, and homelessness status. (E.g., Compl. ,r 99.)
To the extent Valsaint's claim hinges on his belonging to a protected class,
he must set forth facts establishing that "individuals of a different race [or
nationality] could have been ... arrested for the same crime, but were not."
Urbanique Prod. v. City of Montgomery, 428 F. Supp. 2d 1193, 1224 (M.D. Ala.
2006). Or, to the extent Valsaint's equal-protection count hinges on a "class of
one" claim, he "must show that (1) he has been intentionally treated differently
from others similarly situated, and (2) there is no rational basis for the difference
in treatment." Watkins v. Cent. Broward Reg'l Park, 799 F. App'x 659, 664 (11th
Cir. 2020). As to Blacio's 2018 encounter with Valsaint, the complaint is replete
with generalities and unsupported conclusions of disparate treatment, but is
wholly devoid of any facts that could come even close to establishing an equal-
protection claim: Valsaint fails to alleges facts establishing either Blacio's racial
animus or discriminatory conduct. Accordingly, the Court finds Blacio shielded
by qualified immunity in the face ofValsaint's claim for violations of his equal-
protection rights, at least as relates to the 2018 incident.
(3) Valsaint fails to show that Blacio is not shielded by qualified immunity
as to his Fourth Amendment false arrest claim.
As to the October 2018 incident, Valsaint maintains he was subjected to
arrest without probable cause. He says Blacio's charge of trespassing on private
property, after a warning, was mere pretext, and that, in actuality, Valsaint was
merely sitting down, peacefully, in a public place, when he was unlawfully
arrested. (Compl. ,r,r 79, 81.) The Court finds Valsaint's showing lacking and
inadequate to overcome Blacio's qualified immunity regarding Valsaint's
unlawful-arrest claim.
In a wrongful-arrest claim, an officer will be shielded from liability "if there
was arguable probable cause, i.e., if a reasonable police officer, knowing what [the
defendant officer] knew, could have believed there was probable cause for the
warrantless arrest." Jones v. Cannon, 174 F.3d 1271, 1283 (11th Cir. 1999).
Here, Valsaint alleges he was sitting or lying against a wall, barefoot, near the
back alley of a building on Lincoln Road. (Compl. ,r 37.) According to the arrest
affidavit, which the Court considers in evaluating the motion-to-dismiss briefing
(as explained above, in note 1), the encounter occurred at 3 :52 in the morning,
when the business inside the building was closed. (Arrest Aff. at 1.) The affidavit
also describes a "clearly posted ... 'NO TRESPASSING' sign," with two-inch high
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 9 of 12
lettering. (Id.) Continuing, the affidavit explains that the business has a "trespass
authorization letter on file with the Miami Beach police department authorizing
any police officer ... to arrest if compliance is not met." (Id.) Although Valsaint
does not dispute the affidavit's description of where he was, he insists that the
area was public, not private, space. (E.g., Compl. ,r 38.) Valsaint also does not
dispute the affidavit's description of the no-trespassing sign, but nonetheless
maintains Blacio arrested him "without any verbal or written warnings" (id. ,r 40)
and argues in briefing that "there was no conspicuous trespass sign for (him] to
heed." (Pl.'s Resp. at 11 (emphasis added).) Importantly, Valsaint acknowledges at
least some signage in the area but simply notes that it is not in compliance with
Florida law because the sign did not specify the name of the business that owned
the property or that the actual spot where Valsaint was located was in a "trespass
zone." (Pl.'s Resp. at 12.)
Notably, missing from the complaint, and even Valsaint's response brief,
are any facts that would show Blacio lacked arguable probable cause to arrest
Valsaint. Reading the facts in the light most favorable to Valsaint, Blacio
encountered Valsaint, barefoot and lying against a wall, in an alley behind
Lincoln Road in Miami Beach, at nearly four o'clock in the morning. Blacio
perceived what he described as a "clearly posted" no-trespassing sign that he
believed was associated with the building and the area where Valsaint was
located. Blacio also was aware of a letter the business had on file that he believed
authorized him to arrest anyone who was not in compliance with the sign's
warning. Even if the spot where Valsaint was lying was actually public property;
and even if the sign was not actually conspicuous or in compliance with the
Florida statute sections he cites, Valsaint fails to show that a reasonable police
officer, knowing what Blacio knew, could not have believed there was probable
cause to make the arrest. That is, even though Blacio may have been mistaken,
Valsaint alleges no facts, as opposed to his conjecture about Blacio's true
motives, that Blacio acted unreasonably in effecting the arrest. Accordingly,
Blacio is entitled to be shielded from Valsaint's unlawful arrest claim, as to the
2018 incident, set forth in count one.
C. The City
In count ten, Valsaint seeks to hold the City liable for his wrongful
detention, arrest, and treatment by the Officers. He argues that the City has
"continuously affirmed or willfully ignored" its officers' constitutional violations.
In support, he points to what he describes as the City's "official" quality-of-life
policy and the "pre-textual agreements" the City has with local businesses to
arrest trespassers. (Pl.'s Resp. at 44.) And while he concedes he has not alleged a
pattern of events establishing the City's deliberate indifference through an
unofficial policy, he argues he has identified a need to train that is so plainly
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 10 of 12
obvious that he need not set forth such a pattern in this case. The Court
disagrees.
"[T]o impose§ 1983 liability on a municipality, a plaintiff must show: (1)
that his constitutional rights were violated; (2) that the municipality had a
custom or policy that constituted deliberate indifference to that constitutional
right; and (3) that the policy or custom caused the violation." McDowell v. Brown,
392 F.3d 1283, 1289 (11th Cir. 2004). To establish such a policy, a plaintiff must
"identify either (1) an officially promulgated [municipal] policy or (2) an unofficial
custom or practice ... shown through the repeated acts of a final policymaker for
the [municipality]." Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir.
2003).
Valsaint fails to allege facts from which the Court could infer a municipal
custom or policy that constituted deliberate indifference to the violation of his
constitutional rights. Instead, he relies on purely conclusory and unsupported
generalities, referencing things like the City's "long history of arresting and/ or
rounding up individuals ... who are not engaging criminal activity'' (Compl. ,i
50); officers, including the Defendants, who "target and harass peaceful, law
abiding individuals" (id. ,i 51); the City's failure to implement or enforce "polices,
procedures and training that complied with industry standards and the law to
ensure that the civil rights of individuals were not violated by law enforcement
officers" (id. i!52); the City's knowledge that its "officers routinely arrested and
targeted minorit[ies] and [the] homeless," making unlawful stops and arrests (id.
,i,i 53-54); deficiencies in training regarding "racial profiling, equal protection,
and non-discrimination" (id. ,i 57); a "custom, pattern, practice, or policy that the
City and MBPD ... follow[ed] to target minorities and [the] homeless ... who are
publicly performing harmless, inoffensive life-sustaining conduct" (id. ,i 58); and
pretextual '"quality of life' details" and agreements with businesses which were
used to unlawfully arrest homeless people who were not engaged in any criminal
activity (id. ,r,r 59-60). To begin with, these allegations, either alone or together,
do not come anywhere near qualifying as "an official promulgated policy." See
Perez v. Metro. Dade Cnty., No. 06-20341 -CIV, 2006 WL 4056997, at *2 (S.D. Fla.
Apr. 28, 2006) (Moreno, J.) ("[T]he simple mention of'policy and/or custom' is not
enough, for a plaintiff must do something more than simply allege that such an
official policy exists.") (cleaned up).
Nor do they constitute facts showing an unofficial custom or policy. To
proceed on the basis of an unofficial custom or policy, Valsaint must allege facts
demonstrating "repeated acts of a final policymaker for the [municipality]." Grech,
335 F.3d at 1329. The alleged acts 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." Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991)
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 11 of 12
(cleaned up). Valsaint does not dispute that his complaint fails to set forth
repeated acts that would establish a widespread practice. Nor does he disagree
that he has failed to identify a final policymaker: indeed, his complaint does not
make a single reference to any policymaking authority who "openly or tacitly
approved of the alleged actions of the police officers, much less final
policymakers." Sanchez v. Miami-Dade Cnty., No. 06-21717-ClV, 2007 WL
1746190, at *3 (S.D. Fla. Mar. 28, 2007) (King, J.).
Instead, Valsaint points to caselaw that he says allows him to proceed with
his claim against the City "without proof of a pre-existing pattern of violations."
Connick v. Thompson, 563 U.S. 51, 64 (2011). This kind of "single-incident
liability'' was first conceived of by the United States Supreme Court in Canton v.
Harris where the Court posed the hypothetical example of a city that arms its
police force with guns and sends them out into the public to capture fleeing
felons without training as to the constitutional bounds of using deadly force. 489
U.S. 378, 390 n. 10 (1989). Through that example, the Court has come to
recognize that, "in a narrow range of circumstances," a city's failure to train
"could be so patently obvious that a city could be liable under§ 1983 without
proof of a pre-existing pattern of violations." Connick, 563 U.S. at 63-4. The Court
is not convinced: Valsaint fails to explain how the hypothetical failure to train
officers regarding the constitutional bounds of the use-of-deadly force is
analogous to the facts here. Instead, Valsaint simply assumes that, because the
City's officers purportedly targeted and detained Valsaintjust based on his
homelessness status, race, and nation of origin, they must not have been
properly trained. (Compl. ,r,r 187-88.) Valsaint then extrapolates, without any
connecting facts, that because the Defendant Officers were not properly trained,
the City has failed to adequately train any of its officers. (Id. ,r 190-91.) Notably,
Valsaint focuses on the adequacy of the City's training of its officers, as opposed
to a lack of training at all. This readily distinguishes Valsaint's case from the
circumstances envisioned in Canton. See Rebalko v. Coral Springs, 552 F. Supp.
3d 1285, 1326 (S.D. Fla. Nov. 3, 2020) (Altman, J.) (recognizing "the 'so obvious'
path is generally reserved for those cases in which the government actor was
provided no training whatsoever') (cleaned up) (emphasis in original). Additionally,
V alsaint fails to set forth any facts explaining exactly "how or why the City's
training was insufficient-an omission that renders (his] failure-to-train claim
conclusory and, in material respects, implausible." Id.
In sum, Val saint has failed to allege sufficient facts to survive dismissal on
his Monell claim.
4. Conclusion
As set forth above, the Court grants, in part, and defers ruling on, in
part, the Officers' motion to dismiss (ECF Nos. 42) and grants, in its entirety,
Case 1:21-cv-24143-RNS Document 58 Entered on FLSD Docket 11/02/2022 Page 12 of 12
the City's motion to dismiss (ECF No. 41). The dismissed claims, against the City
(count ten) and against the Officers as to the 2018 incident (part of counts one,
two, and three, plus counts seven, eight, and nine, in their entireties), are
dismissed with prejudice, based on Valsaint's failure to state a claim.
Additionally, the Court denies Valsaint's cursory request for leave to amend his
complaint, inserted as an afterthought, in the last sentence of his eighteen-page
response to the Defendants' motions (Pl.'s Resp. at 18): the request is
procedurally defective and lacking in substantive support. See Newton v. Duke
Energy Florida, LLC, 895 F.3d 1270, 1277 (11th Cir. 2018) ("[W]here a request for
leave to file an amended complaint simply is imbedded within an opposition
memorandum, the issue has not been raised properly."); Avena v. Imperial Salon
& Spa, Inc., 740 F. App'x 679, 683 (11th Cir. 2018) ("[W]e've rejected the idea that
a party can await a ruling on a motion to dismiss before filing a motion for leave
to amend.") (noting also that "a motion for leave to amend should either set forth
the substance of the proposed amendment or attach a copy of the proposed
amendment") (cleaned up). Further, Valsaint has already amended his complaint
once, with the assistance of counsel, and, in any event, the deadline to amend the
pleadings has long since passed.
As to the statute of limitations issues, the Court orders Valsaint to show
cause, on or before November 14, 2022, why the remaining claims, associated
with the 2017 event, should not be dismissed as time barred. To the extent
Valsaint seeks, in good faith, to pursue those claims, he must then also show
cause, by the same date, why his claims against the John Doe officer should not
also be dismissed: Valsaint has failed to identify or even describe this fictitious
defendant nor, obviously, has this defendant been served, with the time to do so
having long since passed.
In the meantime, the Court stays the remaining deadlines in this case,
directing the Clerk to administratively close this case. Accordingly, the Court
denies as moot (ECF No. 52) the Officers' unopposed motion for an extension of
various pretrial deadlines and to reset the trial date. If any of the remaining
claims are determined to survive dismissal, the Court will reopen this case and
enter an amended scheduling order.
Done and ordered, in chambers at Miami, Florida, on November 2, 2022.
Ro~---
United States District Judge
Filing# 160522702 E-Filed 11/02/2022 07:23:54 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMl-DADE COUNTY, FLORIDA
CASE NO: 2021-022375-CA-01
SECTION: CA31
JUDGE: Migna Sanchez-Llorens
Ernesto Orsetti
Plaintiff(s)
vs.
City of Miami Beach et al
Defendant(s) _________ /
ORDER GRANTING DEFENDANT CITY OF MIAMI BEACH'S MOTION TO DISMISS
CLAIM THREE OF PLAINTIFF'S COMPLAINT UNDER THE DOCTRlNE OF
SOVEREIGN IMMUNITY AND FOR FAILURE TO STATE A CAUSE OF ACTION
THIS MATTER came before the Court upon the Defendant City of Miami Beach's Motion to
Dismiss Claim Three of Plaintiffs Complaint Under the Doctrine of Sovereign Immunity and for Failure to
State a Cause of Action. The Comt having carefully considered the Motion, having reviewed the Court file
and having been fully advised in the premises, finds that there is good cause to grant the relief requested. It
is therefore:
ORDERED AND ADJUDGED as follows:
1. That the City of Miami Beach's Motion to Dismiss Claim Three of Plaintiff's Complaint is
hereby GRANTED.
2. Plaintiff, ERNESTO ORSETTI, shall have ten (10) days, until November 11, 2022 within
which to file an Amended Complaint.
Case No: 2021-022375-CA-0J Page I of2
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 2nd day of
November, 2022.
2021-022375-CA-01 11-02-2022 7:17 PM
Hon. Migna Sanchez-Llorens
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Electronically Served:
Benjamin Z Braun, benjaminbraun@miamibeachfl.gov
Bradley F Zappala, bzappala@switkeslaw.com
Bradley F Zappala, paralegal@switkeslaw.com
Faudlin Pierre, fplaw08@yahoo.com
Faudlin Pierre, fparalegal@gmail.com
Henry J Hunnefeld, henryhunnefeld@miamibeachfl.gov
Henry J Hunnefeld, yamilexmorales@miamibeachfl.gov
Henry J Hunnefeld, sandraperez@miamibeachfl.gov
Kishnee Theus, Esquire, kishneetheus@gmail.com
Robert L Switkes, Rswitkes@switkeslaw.com
Robert L Switkes, paralegal@switkeslaw.com
Robert L Switkes, bzappala@switkeslaw.com
Physically Served:
Case No: 2021-022375-CA-01
CIRCUIT COURT .JUDGE
Electronically Signed
Page 2 of2