Gustavo Abella v. Officer Juan F. Rodriguez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 31, 2020
• Docket: 20-10833
• Status: Unpublished

Opinion

Case: 20-10833 Date Filed: 08/31/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10833 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cv-24889-DLG

GUSTAVO ABELLA,

Plaintiff-Appellee,

versus

OFFICER JUAN F. RODRIGUEZ, Individually and Official Capacity,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 31, 2020)

Before LAGOA, BRASHER, and FAY, Circuit Judges.

PER CURIAM:

This case is the latest in the ongoing saga between Gustavo Abella and Officer

Juan Rodriguez. In another lawsuit between these litigants in 2013, this Court

affirmed the district court’s denial of Rodriguez’s defense of qualified immunity to Case: 20-10833 Date Filed: 08/31/2020 Page: 2 of 9

Abella’s First Amendment retaliation claim. See Abella v. Simon, 522 F. App’x 872

(11th Cir. 2013). Now, Abella is back with a new lawsuit against Rodriguez based

on more recent, albeit similar, alleged conduct. As he did in 2013, Abella asserts that

Rodriguez retaliated against him because of his speech. And, as he did in 2013,

Rodriguez argues on appeal that he is entitled to qualified immunity to that claim.

Because the law remains clearly established that police officers may not harass or

threaten citizens with unlawful arrest for exercising their First Amendment rights,

we again affirm the district court’s order denying qualified immunity.

I.

We view the evidence in the light most favorable to Abella, as we must at this

posture. See Perez v. Suszczynski, 809 F.3d 1213, 1217 (11th. Cir. 2016).

Abella and Rodriguez have been embroiled in controversy since at least 2007.

Abella resides in the Town of Miami Lakes where Rodriguez serves as a police

officer. Abella describes himself as “quite politically active with respect to local

Miami Lakes issues.” In 2016, Abella began displaying a sign in his car’s rear

window that read: “Town of Miami Lakes TOWN MANAGER ALEX REY is

Corrupt. You TUBE: Justice 4 MEnU.”

Abella asserts that Rodriguez harassed and intimidated him and his family in

relation to this sign. He lodged formal and informal complaints with the police

department and other local officials about sixteen encounters between May 17, 2016,

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and October 4, 2018. These encounters include (1) Rodriguez appearing at Abella’s

home and following him in his police vehicle while Abella displayed a political sign

on his truck; (2) Rodriguez driving by Abella and telling him to remove the political

sign or he would issue him a citation; (3) Rodriguez telling Abella to remove the

sign or he would have Abella arrested; (4) Rodriguez driving next to or following

Abella on public roads; (5) Rodriguez’s police vehicle blocking an intersection so

that Abella could not exit his condominium complex; (6) Rodriguez following

Abella in his police vehicle and making unspecified hand gestures while Rodriguez

had political signs displayed on his truck; and (7) Rodriguez making unspecified

hand gestures toward Abella and his daughter and recording them with his cell

phone. Rodriguez has never arrested Abella and has not issued him any citations

since 2009.

II.

Abella filed his initial complaint on November 21, 2013 against the Town of

Miami Lakes, former Miami Lakes Mayor Michael Pizzi, Town Manager Alex Rey,

Miami Dade County, and Rodriguez. Abella amended that complaint on February

11, 2019. In his First Amended Complaint, Abella alleged that defendants violated

42 U.S.C. § 1983 by, acting under color of law, retaliating against him for exercising

his First Amendment rights to display political signs and file grievances against a

police officer. The district court granted in part a motion to dismiss as to all

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defendants except Rodriguez and partially dismissed Abella’s First Amendment

retaliation claims against Rodriguez for all but the sixteen encounters previously

referenced.

Rodriguez filed a motion for summary judgment based on qualified immunity,

which the district court denied. The district court determined that (1) it is undisputed

that Rodriguez acted within the scope of his discretionary authority; (2) the law is

clearly established that public officials may not retaliate against private citizens for

exercising their First Amendment rights; and (3) that Abella presented sufficient

evidence to create a genuine issue of fact about whether Rodriguez’s conduct had

adversely affected his protected speech and whether there is a causal connection

between Rodriguez’s acts and Abella’s protected speech. Rodriguez now appeals

that order.

III.

We review the district court’s denial of summary judgment based on qualified

immunity de novo and view the evidence in the light most favorable to Abella as the

nonmoving party. Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015) (citing

Kesinger ex re. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir.

2004)). Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

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IV.

Government officials are entitled to qualified immunity for their actions in

performing discretionary functions unless the plaintiff can establish “(1) that the

defendant violated her constitutional rights, and (2) that, at the time of the violation,

those rights were clearly established in light of the specific context of the case, not

as a broad general proposition.” Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th

Cir. 2017) (cleaned up). It is undisputed that Rodriguez was acting within the scope

of his discretionary authority at all times relevant to this case. As to the second

element, a plaintiff can show that his rights were clearly established in one of three

ways: (1) identifying a “materially similar case” decided before the alleged

violation; (2) pointing to “a broader, clearly established principle that should control

the novel facts of the situation;” or (3) demonstrating that the conduct at issue “so

obviously violates the constitution that prior case law is unnecessary.” Terrell v.

Smith, 668 F.3d 1244, 1255–56 (11th Cir. 2012) (cleaned up).

To succeed on a First Amendment retaliation claim, a plaintiff must establish

“that (1) he engaged in protected speech; (2) the defendant’s conduct adversely

affected the protected speech; and (3) a causal connection exists between the speech

and the defendant’s retaliatory actions.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th

Cir. 2016) (citing Smith v. Mosely, 532 F.3d 1270, 1276 (11th Cir. 2008); Bennett v.

Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)).

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Rodriguez erroneously argues that the district court should be reversed

because it (1) defined Abella’s clearly established rights too generally; and (2)

mistakenly found that a genuine issue of material fact exists regarding the causation

element of Abella’s First Amendment retaliation claim. In response, Abella argues

that (1) this Court lacks jurisdiction over Rodriguez’s appeal; (2) Rodriguez violated

Abella’s First Amendment Rights with “obvious clarity;” and (3) the district court

properly considered the causation element and found sufficient conflicting facts to

send that issue to a jury. As an initial matter, this Court has jurisdiction over

Rodriguez’s appeal because he raises “a legal question concerning a clearly

established federal right that can be decided apart from considering sufficiency of

the evidence relative to the correctness of the plaintiff’s alleged facts.” Koch v. Rugg,

221 F.3d 1283, 1294 (11th Cir. 2000) (citing Johnson v. Jones, 414 U.S. 304, 312

(1995); Fed. R. Civ. P. 56(c)). We address the remaining arguments in turn.

First, Rodriguez argues that the district court committed an error by invoking

broadly defined, generalized principles of First Amendment rights instead of looking

for cases more clearly on point. We disagree.

This Court’s precedent clearly establishes the contours of the right at issue.

Rodriguez has not attempted to justify his alleged conduct by reference to reasonable

suspicion, probable cause, or any other law enforcement purpose. And it is clearly

established that a police officer cannot harass or threaten unlawful arrest and citation

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because of a person’s protected speech. See NAACP v. Button, 371 U.S. 415, 433

(1963) (“The threat of sanctions may deter [the exercise of First Amendment

freedoms] almost as potently as the actual application of sanctions.”); see also Cate

v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983) (“direct retaliation by the state for

having exercised First Amendment freedoms in the past is particularly proscribed by

the First Amendment”); see also Bennett v. Hendrix, 423 F.3d 1247, 1255-56 (11th.

Cir. 2005) (collecting cases).

In Bennett, this Court held that police officers violated the First Amendment

when they “followed, pulled over, cited, intimidated, or otherwise harassed the

plaintiffs” because of their speech. Id. at 1254. Of course, the alleged conduct here

is not as extensive in scope as it was in Bennett. There, the officers were accused of

“a prolonged and organized campaign of harassment,” which included an “attempt[]

to obtain arrest warrants against the plaintiffs without probable cause.” Id. Here,

Abella alleges that Rodriguez threatened to arrest him twice, blocked his car, and

followed him around town in an intimidating manner. But the differences between

this case and Bennett are a matter of degree, not of kind. Bennett gives “fair and clear

notice” to police officers that harassing and threatening a private citizen with

unlawful arrest and citation for political speech is unconstitutional. See generally

Marsh v. Butler Cnty., 268 F.3d 1014, 1031 (11th Cir. 2001) (en banc) (“fair and

clear notice to government officials is the cornerstone of qualified immunity”),

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abrogated in part by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561–63 (2007). To

succeed at trial, Abella will have to establish that Rodriguez’s alleged conduct

deterred or chilled his expression in violation of the First Amendment.

Second, the district court did not err in finding a genuine issue of material fact

regarding the causation element of Abella’s First Amendment retaliation claim. It is

undisputed that Abella engaged in constitutionally protected speech and acts when

he displayed a political sign and filed complaints against Rodriguez. The only

question is whether Abella presented sufficient evidence that Rodriguez took the

alleged actions because of Abella’s speech. Rodriguez argues that the district court

erred by “collapse[ing] the causation prong of the retaliation analysis into the

adverse conduct prong” by merely restating the alleged adverse conduct. We

disagree.

A district court’s role at the summary judgment stage is to determine, viewing

the facts in the light most favorable to the nonmoving party, whether a genuine issue

of material fact exists. Salvato, 790 F.3d at 1292. As the district court emphasized,

Abella testified that Rodriguez threatened him with citation and arrest if he did not

remove a political sign from his vehicle on two occasions. On Abella’s version of

the facts, Rodriguez expressly linked his threats to the sign and had no probable

cause to arrest or cite Abella on either occasion. Abella further alleged that

Rodriguez followed him around town, blocked his vehicle, shouted at him, and made

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hand gestures at him while Abella displayed a political sign on his truck and

immediately after Abella had filed numerous grievances against Rodriguez. Abella’s

testimony would support a finding that his display of a political sign and filing of

grievances caused Rodriguez’s conduct. Therefore, the district court was correct in

holding that the question of causation should be resolved by a jury.

V.

For the foregoing reasons, we AFFIRM the district court’s denial of summary

judgment.