Robert E. Noell, Jr. v. Bob White

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

------------------------------------------- FILED
No. 05-16322 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar September 13, 2006
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-02142-CV-T-24-TBM

ROBERT E. NOELL, JR.,
JENNY NOELLE CHAPMAN,

Plaintiffs-Appellants,

versus

BOB WHITE, Sheriff, Pasco County, Florida,
in his official capacity,
JIM COATS, Sheriff, Pinellas County, Florida,
in his official capacity,
SHARON L. FEOLA, Special Agent,
Florida Department of Law Enforcement,
in her individual capacity,
JANICE THIBODEAUX, Deputy Sheriff,
Pinellas County, Florida, in her individual capacity,
BRIAN BERRY, Deputy Sheriff, Pinellas County,
Florida, et al.,

Defendants-Appellees,

GUY M. TUNNELL, Commissioner,
Florida Department of Law Enforcement,
in his official capacity, et al.,

Defendants.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 13, 2006)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Plaintiffs Robert Noell (“Noell”) and Jenny Noell Chapman (“Chapman”)

appeal the dismissal of their second amended complaint by the district court

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim

upon which relief can be granted. No reversible error has been shown; we affirm.

Noell is the officer, director, and majority shareholder of Lee’s Sunshine

Vending, Inc. (“Lee’s Sunshine”), a Florida corporation that owns amusement

machines located at the Treasure Island Fun Center and the Flying J Travel Plaza.

Chapman works for Lee’s Sunshine and manages the Treasure Island Fun Center.

Plaintiffs filed suit against members of the Pinellas County, Florida Sheriff’s

Department, members of the Pasco County, Florida Sheriff’s Department, and

Florida Department of Law Enforcement (“FDLE”) Agent Sharon Feola, all in

their individual capacity (collectively “the Individual Capacity Defendants”) under

42 U.S.C. § 1983. Plaintiffs argued that their arrest and the unlawful seizure of

2
their amusement machines and other property by a task force, which included the

Individual Capacity Defendants, violated the Fourth Amendment.1 Plaintiffs also

sued Jim Coats, the Sheriff of Pinellas County, and Bob White, the Sheriff of

Pasco County, (collectively the “Sheriffs”) in their official capacities, alleging that

Plaintiffs’ unlawful arrest and seizure of property resulted from the Sheriffs’

policies and customs and the Sheriffs’ failure to train their employees and agents.

The district court concluded that the Individual Capacity Defendants were

entitled to qualified immunity protection. About the claims brought against the

Sheriffs, the district court determined that Plaintiffs failed to identify a policy or

custom of the Sheriffs that caused a constitutional deprivation and failed to show

that the Sheriffs deliberately chose not to provide their employees with needed

training.2

We view the facts given in Plaintiffs’ complaint as true.3 In their complaint,

Plaintiffs assert that, from 1999 to 2001, the Sheriff’s Offices of Pinellas and

1
Plaintiffs also sued the FDLE; but, in a separate order, the district court dismissed Plaintiffs’
claims against the FDLE, which Plaintiffs do not challenge on appeal.
2
The district court also determined that Plaintiffs lacked standing to assert a claim about the
seizure of property not owned by Plaintiffs but instead owned by Lee’s Sunshine. Because Plaintiffs
have not raised this issue on appeal, they have abandoned it. See Marek v. Singletary, 62 F.3d 1295,
1298 n.2 (11th Cir. 1995) (“Issues not clearly raised in the briefs are considered abandoned.”).
3
In reviewing a dismissal under Fed.R.Civ.P. 12(b)(6), we view the allegations in the complaint
as true. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

3
Pasco Counties joined a task force started by the FDLE that conducted “Operation

Bad Bet” to investigate people operating amusement games in violation of Florida

law. This investigation targeted “Cherry Masters” video games, which were

owned by Lee’s Sunshine.

Members of the “Operation Bad Bet” task force paid multiple visits to the

Treasure Island Fun Center and the Flying J Travel Plaza, where Plaintiffs

operated their “Cherry Masters” or “Cherry Pluses” games. The task force

determined that Plaintiffs’ games violated Fla. Stat. §§ 849.15 and 849.16, which,

among other things, proscribe possessing or permitting the operation of coin-

operated slot machines, if, through chance, the player may receive anything of

value from the slot machine. Members of the task force seized seven of Plaintiffs’

amusement games at the Treasure Island Fun Center without a warrant because

these games were in plain view. The task force later obtained a warrant to seize

Plaintiffs’ amusement games at the Flying J Travel Plaza as well as documents and

$5,000 from Plaintiffs’ offices. Plaintiffs later were arrested for various gambling

and RICO violations.

We review a district court’s grant of a motion to dismiss de novo. Owens v.

Samkle Auto., Inc., 425 F.3d 1318, 1320 (11th Cir. 2005). A motion to dismiss

under Fed.R.Civ.P. 12(b)(6) should be granted only if it appears beyond doubt that

4
Plaintiffs can prove no set of facts in support of their allegations that would entitle

them to relief. White v. Lemacks, 183 F.3d 1253, 1255 (11th Cir. 1999).

“The defense of qualified immunity may be raised and addressed on a

motion to dismiss and will be granted if the complaint fails to allege the violation

of a clearly established constitutional right.” Snider v. Jefferson State Cmty. Coll.,

344 F.3d 1325, 1327 (11th Cir. 2003) (internal quotation omitted). “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.”

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). To receive qualified

immunity, the defendant must prove that he was acting within the scope of his

discretionary authority. Williams v. Consol. City of Jacksonville, 341 F.3d 1261,

1267 (11th Cir. 2003). After the defendant establishes that he was acting within

his discretionary authority, “the burden shifts to the plaintiff to demonstrate that

qualified immunity is not appropriate” by showing (1) that a constitutional

violation occurred and (2) that the constitutional right was clearly established.

Lumley v. City of Dade City, 327 F.3d 1186, 1194 (11th Cir. 2003). Because the

parties do not dispute that the Individual Capacity Defendants were acting within

5
their discretionary authority, we must consider whether the Individual Capacity

Defendants violated a clearly established constitutional right.

In this case, Plaintiffs assert that the Individual Capacity Defendants

violated the Fourth Amendment by acting without probable cause in seizing

Plaintiffs’ property and arresting Plaintiffs. An officer is entitled to qualified

immunity if the officer’s act was based on arguable probable cause, which “exists

where reasonable officers in the same circumstances and possessing the same

knowledge as the [d]efendant could have believed that probable cause existed to

arrest.” Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003) (internal

quotation omitted). An officer may have arguable probable cause, even if the facts

later establish that probable cause did not actually exist. See Von Stein v.

Brescher, 904 F.2d 572, 579 (11th Cir. 1990).

Plaintiffs argue that the Individual Capacity Defendants lacked arguable

probable cause to seize their amusement games because the Individual Capacity

Defendants were aware that Plaintiffs’ games were legal under Fla. Stat. §

849.161, which exempts certain amusement games that operate by application of a

player’s skill from the slot machine prohibitions of Fla. Stat. §§ 849.15 and

849.16. Plaintiffs assert that the Individual Capacity Defendants knew of the

section 849.161 exemption through an earlier opinion of the Florida Attorney

6
General that discussed the applicability of this exemption. But Plaintiffs have not

demonstrated that the games seized in this case required a level of skill sufficient

to meet the section 849.161 exemption.

Plaintiffs instead rely on an affidavit4 completed by two of the Individual

Capacity Defendants that states that Plaintiffs’ games were the same kind of

machine as discussed in a Florida appellate court decision that noted, “[w]hile skill

will significantly improve the player’s winning percentage, it does not eliminate

the element of chance in the machine itself.” Plaintiffs argue that the reference to

skill in the affidavit indicates that the Individual Capacity Defendants knew that

Plaintiffs’ games were covered by the section 849.161 exemption. But, as the

district court correctly explained, without clearly established law interpreting

section 849.161, the amount of skill required for the exemption to apply is not

apparent. Therefore, officers acted with arguable probable cause; and Plaintiffs

have failed to demonstrate that the Individual Capacity Defendants are not

protected by qualified immunity. See Harbert Inter., Inc. v. James, 157 F.3d 1271,

1281 (11th Cir. 1998) (“So long as a government official acts within the scope of

4
The affidavit was prepared to obtain a warrant authorizing the seizure of Plaintiffs’ amusement
games located at the Flying J Travel Plaza.

7
his discretionary authority and does not violate clearly established law, the

doctrine of qualified immunity protects him.”).

Plaintiffs next argue that the district court erred in dismissing their section

1983 complaint against Sheriffs White and Coats for relying on customs and

policies that harmed Plaintiffs and for failing to train their agents and employees.

For a plaintiff to prevail in a section 1983 case based on a governmental entity’s

failure to train its employees, the plaintiff must identify a policy or custom that

caused his injury. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)

(discussing municipal liability in a failure-to-train case and explaining a

municipality is “not automatically liable under section 1983 even if it inadequately

trained or supervised its police officers and those officers violated [plaintiff’s]

constitutional rights”). A plaintiff may meet this burden by “present[ing] some

evidence that the municipality knew of a need to train and/or supervise in a

particular area and the municipality made a deliberate choice not to take any

action.” Id.; see also Marsh v. Butler County, 268 F.3d 1014, 1037 (11th Cir.

2001) (“Unless a policymaker knows of the need to train an officer in a particular

subject area, no liability can arise from failure to train him.”).

In this case, Plaintiffs have not identified a custom or policy of the Sheriffs

that resulted in Plaintiffs’ injury, nor have they demonstrated that the Sheriffs were

8
aware of a need to provide additional training to their officers. Therefore, the

district court properly dismissed Plaintiffs’ claims against Sheriffs White and

Coats.

AFFIRMED.