Evgeny Ryzhov v. Manuel A. Morales, etc.

• Court: District Court of Appeal of Florida
• Decided: March 20, 2024
• Docket: 2022-2079
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 20, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-2079 Lower Tribunal No. 22-21946 ________________

Evgeny Ryzhov, Appellant,

vs.

Manuel A. Morales, etc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge.

Evgeny Ryzhov, in proper person.

Victoria Méndez, City Attorney, and Eric J. Eves, Senior Appellate Counsel, for appellee, Manuel A. Morales.

Before SCALES, LINDSEY and GORDO, JJ.

GORDO, J. Evgeny Ryzhov (“Ryzhov”) appeals an order dismissing his petition for

writ of mandamus. We have jurisdiction. 1 Fla. R. App. P. 9.030(b)(1)(A).

Because the trial court correctly recognized it lacked the authority to order

the named law enforcement agencies to investigate and prosecute certain

individuals, we affirm.

Ryzhov petitioned the trial court to compel Manuel A. Morales, the

Chief of the Miami Police Department, and several other law enforcement

agencies2 to investigate and prosecute various crimes he alleges were

committed against him. The trial court dismissed the petition as facially

insufficient, finding that requiring a law enforcement agency to conduct a

criminal investigation interferes with the exercise of that law enforcement

agency’s discretion. This appeal followed.

On appeal, Ryzhov argues the trial court erred in dismissing his petition

for writ of mandamus because he has alleged a clear legal right to

performance, an indisputable legal duty and no adequate remedy at law.

See Fla. Agency for Health Care Admin. v. Zuckerman Spaeder, LLP, 221

1 “A trial court’s dismissal of a petition for a writ of mandamus is reviewed by direct appeal.” Thomas v. Fla. Parole Comm’n, 963 So. 2d 777, 778 (Fla. 1st DCA 2007). 2 The petition also named Edward Santiago in his capacity as the Police Chief of the Sunny Isles Beach Police Department and Mark Glass in his capacity as the Commissioner of the Florida Department of Law Enforcement.

2 So. 3d 1260, 1263 (Fla. 1st DCA 2017) (“In order to be entitled to a writ of

mandamus, the petitioner must have a clear legal right to the requested

relief, the respondent must have an indisputable legal duty to perform the

requested action, and the petitioner must have no other adequate remedy

available.” (quoting Putnam Cnty. Env’t Council v. Johns River Water Mgmt.

Dist., 168 So. 3d 296, 298 (Fla. 1st DCA 2015))).

We disagree. In Florida, “[t]here has never been a common law duty

of care owed to an individual with respect to the discretionary judgmental

power granted a police officer to make an arrest and to enforce the law.”

Everton v. Willard, 468 So. 2d 936, 938 (Fla. 1985); see also Schmitt v. State,

590 So. 2d 404, 409 (Fla. 1991) (recognizing that police forces should be

given discretion to investigate the probability that a crime has occurred). To

require a law enforcement agency to investigate and invoke the criminal

process violates the separation of powers, “one of the structural pillars upon

which American freedoms rest.” Detournay v. City of Coral Gables, 127 So.

3d 869, 873 (Fla. 3d DCA 2013). To require a state attorney to charge and

prosecute likewise violates this constitutional doctrine. See Trianon Park

Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 922 (Fla. 1985) (stating

that a police officer’s discretionary power to enforce a criminal statute is no

different from the discretionary power exercised by a prosecutor in deciding

3 whether to prosecute); Valdes v. State, 728 So. 2d 736, 738-39 (Fla. 1999)

(“This Court has long held that as the prosecuting officer, the state attorney

has ‘complete discretion’ in the decision to charge and prosecute and the

judiciary cannot interfere with this ‘discretionary executive function.’” (internal

citation omitted) (quoting State v. Bloom, 497 So. 2d 2, 3 (Fla. 1986))).

Thus, there is no clear legal right to the requested relief and the

respondents here do not have an indisputable legal duty to perform the

specific requested action. Moreover, because the trial court has no authority

to interfere with a law enforcement agency’s discretion to pursue an

investigation or a state attorney’s discretion in deciding whether and how to

prosecute, we find the trial court did not err in dismissing Ryzhov’s petition.

Affirmed.