Prison Phone Justice

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Case 0:06-cv-61182- KAM

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 06- 61182- Civ- MARRAlJOHNSON

JOSEPH SAWCHUCK and
RICHARD SPENCER
individually and on behalf
of all others similarly situated

Plaintiffs

vs.
KEN JENNE , in his official and
individual capacity as SHERIFF
OF BROWARD COUNTY
BROWARD COUNTY , FLORIDA
a political subdivision , BROW ARD
COUNTY SHERIFF'S OFFICE , and
NETIX TELECOMMUNICATIONS
SERVICES, INC.

Defendants.
OPINION AND ORDER
This cause is before the Court upon Broward County' s Motion to Dismiss (DE

16). The Court has carefully considered the motion , response , reply, entire court file
and is otherwise fully advised in the premises.

Introduction
Plaintiffs initiated this action pursuant to 42 U.

C. ~ 1983 against Broward

County (" County ), Broward County Sheriff , Ken Jenne , in his individual and official

capacity and T- Netix Telecommunications Services ,

Inc. Plaintiffs

inmates ' constitutional rights by allegedly tape recording privileged attorney- client
communications initiated by inmates of Broward County Sheriff' s Office ("BSO"

detention facilities. On August 22 , 2006 , County served its Motion to Dismiss arguing

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that Plaintiffs ' claims against County are duplicitous of the ~ 1983 claims brought

against BSO. On September 8, 2006 , Plaintiffs filed their Memorandum of Law in
Opposition to County s Motion to Dismiss. Plaintiffs advance two primary arguments in
opposition to County s Motion to Dismiss. First , Plaintiffs allege that the authority relied

upon by County does not support dismissal. Second, Plaintiffs claim that dismissal of
their claim is premature at this juncture.
LeQal Standard

It is long settled that a complaint should not be dismissed unless it appears

beyond a doubt that the plaintiff could prove no set of facts in support of his claim which

Conley v. Gibson , 355 U. S. 41 (1957). The allegations of

would entitle him to relief.

the claim must be taken as true and must be read to include any theory on which the
plaintiff may recover.

See Linder v. Portocarrero , 963 F. 2d 332 , 334- 336 (11th

citinQ Robertson v. Johnston , 376 F. 2d 43 (5th Cir.1967).

Cir.1992)

Discussion
The Court begins its analysis with an examination of Eleventh Circuit precedent

on the pivotal issue before the Court; namely, is a suit against a Florida sheriff a suit

against the county that he or she represents. Neither party

a suit against

a governmental official in his official capacity is deemed a suit against an entity that he

represents Brown v. Neumann , 188 F. 3d

1289

1290 (11th Cir. 1999) (internal

omitted). The issue here is

, as Broward County s Sheriff

represent.
Lucas v. O' LouQhlin , a case brought

The Eleventh Circuit examined this issue in

by a deputy sheriff against a sheriff, St. Johns County, Florida , and others pursuant to

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Case 0:06-cv- 61182- KAM

42 U.

C. ~ 1983.

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Lucas v. O' LouQhlin , 831 F. 2d 232

court had dismissed the county from the case. l!l

case argued that the sheriff has " absolute and unfettered authority" over his deputies

and that the sheriff's acts represent the " official policy" of the county.

contrast , St. Johns County argued that the sheriff' s functions are " completely
independent" of the county government.
Although elected by virtue of state law , (the sheriff) was elected to serve the
county as sheriff.

appointment and control of his deputies. His and their salaries

local taxation and
commissioners. We

, that his act was the act of St.

Johns County. The trial court erred in dismissing the county as a
Id. at 235.
Here, the parties make arguments similar to those made by the parties in

Lucas

Compare Def. Mot. at 5 (the internal operation of the Sheriff's Office belong uniquely to the
Sheriff and as a independent constitutional officer he unilaterally determines the purpose

of the office and exercises control and discretion over the organization and operations of

the Sheriff's Office) and PI.
conduct of the Sheriff and BSO for the policy of tape recording privileged attorney- client

conversations
F . 3d

, which was executed at all Broward County detention facilities) to

Lucas , 831

at 234 (noting that the sheriff' s salary and that of his deputies were paid out of county

funds , that these salaries and the expenses of his
maintenance of the jail , were budgeted each year by the sheriff and submitted to the board

I In dismissing the county, the district court

Lucas commented that the " (t)he
law is screwed up in this area " and "there is no telling what the appellate court is going
to do. Lucas , 831 F. 2d at 236.

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of county commissioners of the county). The Eleventh Circuit , however , rejected St. Johns

Lucas , and held that the district court' s dismissal of the county was

County's arguments in

Lucas, 831 F. 3d at 235-36.

erroneous.

Lucas

Hufford v. RodQers , 912 F. 2d 1338

was reexamined in

Hufford sued the Sheriff of Gilchrist County, Florida and a deputy sheriff in their

plaintiff in

official capacities pursuant to 42 U.

C. ~ 1983. l!l at 1340. The issue

whether a Florida sheriff is a state officer for

purposes. .!!t at 1340-41. The

Hufford Court noted that a sheriff in Florida is a county

officer and that the county funds the sheriff' s budget and salary. l!l at 1341-42. In

that the sheriff is a county official in Florida , the Court cited two Eleventh Circuit cases:

Lucas

and

LundQren v. McDaniel 814 F. 2d 600 605 n.4

Lundren

decided before Lucas , stated in a footnote that the Eleventh Amendment does not bar a

recovery against a county sheriff and that any judgment against a sheriff in his official
capacity is against the county sheriff' s office. .!!t Although both

Lucas

and

Lundren stand

for the proposition that the
sheriff from liability, the

Hufford

court did not discuss the discrepancy between

Lucas,

which stated that an official capacity suit against a Florida sheriff is a ~Jll dyainst a county,
and the

Lundren , which implied that an official capacity suit against a Florida sheriff is a

suit against the sheriff' s office.
Nor did the 1990 decision of

WriQht v. Sheppard shed light on this issue. In that

case , the plaintiff sued the Sheriff of Highland County, Florida and a deputy sheriff in their

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individual and official capacities pursuant to 42 U.

C. ~ 1983.

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WriQht v. Sheppard , 919

2d 665 666- 67 (11th Cir. 1990).
the claim brought pursuant to 42 U.

C. ~ 1983 , the Eleventh Circuit implied that the entity

being sued was the sheriff' s department. l!l at 673- 75. There was no

how this conclusion was reached nor did it discuss Lucas or Lundren.
Brown v. Nuemann , 188 F .

The Eleventh Circuit recognized this inconsistency in

1289 (11

Florida in his official capacity.

was a suit against the governmental entity that he or she represents.

footnote, the Court stated:

We recognize that our
whether the relevant entity in an
Florida is the

Compare Lucas v. O' LouQhlin , 831 F.
WriQht v. Sheppard , 919 F. 2d 665,

autonomously from the County).

232
674 (11th Cir. 1990)

235 (11th Cir.1987) (County) with

(implying that the Sheriffs

relevant entity). We do not address this point because our holding today is
that whatever the relevant entity was , it is not liable under
Monell.

l!l at 1290 n. 2 (internal citations partially omitted).
Most recently, the Eleventh Circuit addressed this issue in

Cook ex

Tessier v. Sheriff of Monroe County, Fla. , 402 F. 3d 1092

reI.

Estate of

Cook , the

plaintiff sued the Sheriff of Monroe County, Florida pursuant to 42 U.

C. ~ 1983, but did

not name Monroe County as a co- defendant. In
42 U.

C. ~ 1983 ,
2 The

the Court stated U (w)hen ,

as here , the defendant is the county sheriff

WriQht also brought claims pursuant to federal Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.

Florida RICO , Fla. Stat. ~ ~ 895. 01

et seq.

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C. ~ ~ 1961

et seq. , and

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the suit is effectively an action against the governmental entity he represents - in this case,

Monroe County. " l!l at 1115.
Brown .

previously noted in

This holding

Adcock v. Baca , 157 F. App x. 118 (11th

, a claim was brought against a

Polk County Florida Sheriff pursuant to 42 U.
cited

C. ~ 1983. l!l at 119. The Eleventh Circuit

Cook and stated that this action was " effectively an action against the government

entity he represents - in this case , Polk County. "

l!l

Based on the foregoing, the Court rejects the County s motion to dismiss it from this
action. Although the law in this area lacks

Lucas that the

dismissal of the County as a defendant may

, given that the
Lucas .

Eleventh Circuit reversed a district court for dismissing the county in

Significantly,

Lucas is the only case that addressed the
brought against a sheriff and a county pursuant to 42 U.
WriQht and

C. ~ 1983. Moreover, although

Lundren implied that the entity that represents the county

office , those cases did not state that

Lucas was no longer good law nor did they state

unequivocally that the sheriff did not represent the county.
inconsistency between

WriQht

and

Lundren

in contrast with

Brown noted this

Lucas , bUl ala not resolve it.

When faced with conflicting panel decisions , the law in the Eleventh Circuit holds that the
en banc Local Union 48 Sheet

earlier decision is binding until the court decides the issue

Metal Workers v. S. L. Pappas & Co. ,

Inc.

, 106 F. 3d 970 , 975

Clark v.

HousinQ Auth. of City of Alma , 971 F. 2d 723 726 n.4

from the Eleventh Circuit , as stated in

Cook

and

Adcock , convince this Court that the

County should not be dismissed from this lawsuit. That stated , the Court recognizes that

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Case 0:06-cv- 61182- KAM

the language in

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Cook and

Adcock may simply be dicta. After all

Cook nor

, neither

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Adcock

Brown . However , these recent cases provide

resolve the inconsistency discussed in

additional support that

Entered on FLSD Docket 03/30/2007

Lucas should be followed, and no reading of these cases suggest

that it is improper to find that a Florida sheriff represents the county.

concludes that there is no basis to dismiss the County from this case.

Conclusion
It is hereby ORDERED AND ADJUDGED

s Motion to Dismiss

(DE 16) is DENIED.

DONE AND ORDERED in Chambers at West Palm Beach , Palm Beach County,

Florida , this 30th day of March , 2007.

KENNETH A. MARRA
United States District Judge
copies to:

All counsel of record

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Page 1 of2

Nyla Libhart

From: cmecfautosender~flsd. uscourts. gov

Sent:

, 2007 6:31 PM

To: flsd

cmecCnotice~flsd. uscourts. gov

Subject: Activity in Case 0:06-cv- 61182- KAM Sawchuck , et al v. Jenne, et al" Order on Motion to Dismiss

***NOTE TO PUBLIC ACCESS USERS*** You may view the fIled documents once without charge.
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S. District Court
Southern District of Florida
Notice of Electronic Filing
The following transaction was received from mt entered on 3/30/2007 at 6:30 PM EDT and filed on 3/30/2007
Case Name: Sawchuck , et al v. Jenne , et al
Case Number: Oi2~-:Qy: 61182

Filer:
Document Number: 42

Docket Text:
ORDER denying (16) Motion to Dismiss (see order for details)Signed by Judge Kenneth A. Marra on 3/30/2007. (mt)
The following document(s) are associated with this transaction:

Document description:Main Document
Original fIlename:nla

Electronic document Stamp:
(STAMP dcecfStamp_ID=1105629215 (Date=3/30/2007) (FileNumber=3862060) (62d~?d3 5fG6ca4a7
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ffaa4acd8b 7 87 83065

O:06-cv- 61182 Notice will be electronically mailed to:
Fernando Eugenio Amuchastegui

famuchastegui~broward. org

Eleanor Trotman Barnett
sjoyce~kelleydrye. com

ebamett~bilzin. com , eservice~bilzin. com;

Stuart Andrew Davidson

sdavidson~lerachlaw . com , e _file

Paul Jeffrey Geller

pgeller~lerachlaw . com

William R. Scherer

wrs~conradscherer. com

O:06-cv- 61182 Notice will be delivered by

4/2/2007

mvangils~bilzin. com;

com

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Stephanie A. Joyce
Kelley Drye Collier Shannon
3050
K Street NW
4th Floor

Washington , DC

20007

Glen H. Waldman

Bilzin Sumberg Baena Price & Axelrod
200
S Biscayne Boulevard
Suite 2500
Miami , FL 33131- 2336

4/2/2007