              Case: 12-11520      Date Filed: 05/17/2013   Page: 1 of 10


                                                               [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 12-11520
                               Non-Argument Calendar
                             ________________________

                     D.C. Docket No. 6:09-cv-01667-GAP-DAB

EARNEST E. TILLMAN,

                           Plaintiff - Appellant,

versus

ORANGE COUNTY, FLORIDA
a political subdivision of the State of Florida, et al.,

                           Defendants,

TIMOTHY HENRIQUEZ,
individually and in his official capacity as
Deputy Sheriff of Orange County, FL,
ORANGE COUNTY SHERIFF'S OFFICE,

                           Defendants - Appellees.

                             ________________________

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

                                     (May 17, 2013)
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Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Earnest Tillman, appearing pro se, appeals the district court’s dismissal of

his claims, arising under 42 U.S.C. § 1983 and under state law, against the Orange

County Sheriff’s Office; Sheriffs Kevin Beary and Jerry Demings; and Deputy

Sheriffs Phillips Parks Duncan, Timothy Henriquez, Carlos Torres, Sylvester

Herrera, and Donald Melville. In his complaint, Tillman alleged that he was

charged with aggravated battery on a law enforcement officer and resisting an

officer with violence based on the falsified charging affidavits of Henriquez,

Duncan, and Melville, and convicted based on the false trial testimony of

Henriquez and Torres. Although Tillman’s conviction was initially affirmed in

Tillman v. State, 807 So. 2d 106 (Fla. Dist. Ct. App. 2002), the Florida Supreme

Court later quashed it, concluding that Florida law only made it criminal to resist

an officer in an arrest situation, as opposed to an investigatory situation. Tillman

v. State (Tillman II), 934 So. 2d 1263 (Fla. 2006), superseded by statute, FLA.

STAT. § 776.051(1), as recognized in J.M. v. Gargett, 101 So. 3d 352 (Fla. 2012).

On remand, the state trial court found that the deputy sheriffs were not lawfully

executing their legal duty at the time of Tillman’s arrest, and Tillman’s conviction

and sentences were set aside for lack of probable cause to arrest and prosecute.

Tillman then filed this lawsuit.


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      In this appeal, Tillman argues that the district court erred by: (1) dismissing

his conspiracy to maliciously prosecute claim (against Henriquez, Duncan,

Melville, and Torres) and his intentional infliction of emotional distress (IIED)

claim (against all defendants) as time-barred; and (2) granting summary judgment

against his malicious prosecution claim (against Henriquez) based on the

preclusive effect of a conviction that was entirely set aside. The Appellees argue

that the district court’s dismissal of Tillman’s conspiracy claim may be affirmed

under the intracorporate conspiracy doctrine. After careful review, we affirm in

part, and vacate and remand in part.

      We review de novo the grant of a motion to dismiss, accepting as true the

complaint’s factual allegations and construing them in a light most favorable to the

plaintiff. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). We

also review the application of statutes of limitations de novo. Center for Biological

Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006). And, we review de

novo the district court’s grant of summary judgment, applying the same standard as

the district court. Burton v. Tampa Housing Auth., 271 F.3d 1274, 1276-77 (11th

Cir. 2001). Finally, we review de novo a district court’s legal conclusions about

collateral estoppel. Richardson v. Miller, 101 F.3d 665, 667-68 (11th Cir. 1996).

      First, we agree with Tillman that the district court erred in dismissing his

conspiracy and IIED claims as time-barred. Although § 1983 provides a federal

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cause of action, we look to the law of the state in which the cause of action arose to

determine the length of the statute of limitations. Wallace v. Kato, 549 U.S. 384,

387 (2007). Florida has a four-year statute of limitations for personal-injury torts.

Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003); Fla. Stat. § 95.11(3)(o)-

(p). However, the accrual date of a § 1983 claim, from which the statute of

limitations begins to run, is determined by federal law. Wallace, 549 U.S. at 388.

Section 1983 accrual occurs when the plaintiff has a “complete and present cause

of action” and can thus “file suit and obtain relief.” See Bay Area Laundry & Dry

Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)

(quotation omitted).

      For § 1983 claims that “necessarily imply the invalidity of [a] conviction or

sentence,” plaintiffs have no cause of action and cannot file suit until that

conviction or sentence has been invalidated. Heck v. Humphrey, 512 U.S. 477,

486-87 (1994). Heck thus institutes a rule of deferred accrual, “delay[ing] what

would otherwise be the accrual date of a tort action until the setting aside of an

extant conviction which success in that tort action would impugn.” Wallace, 549

U.S. at 393 (emphasis omitted).

      Whether a claim necessarily implicates the invalidity of a conviction is a

“fact-specific question requiring careful review.” Abusaid v. Hillsborough Cnty.

Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1315-17 n.9 (11th Cir. 2005); see Heck,

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512 U.S. at 489-90 (“[A] § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until the conviction or

sentence has been invalidated.”).

      As the record shows here, Tillman’s complaint alleges that his conspiracy

claim is based on a conspiracy to maliciously prosecute, a claim that benefits from

the Heck rule of delayed accrual. Construing Tillman’s pro se pleadings liberally,

see Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), Tillman

has also adequately alleged his IIED damages to be based on malicious

prosecution. Because Heck prevented Tillman from bringing his conspiracy and

IIED claims, both based on malicious prosecution, until the underlying conviction

was reversed, the district court erred in dismissing Tillman’s conspiracy and IIED

claims as time-barred.

      Nevertheless, we conclude that Tillman’s conspiracy claim does not survive.

The intracorporate conspiracy doctrine, under which “a corporation cannot

conspire with its employees, and its employees, when acting in the scope of their

employment, cannot conspire among themselves,” applies to § 1983 conspiracy

claims. Grider v. City of Auburn, 618 F.3d 1240, 1260-61 (11th Cir. 2010)

(quotation omitted). The intracorporate conspiracy doctrine also applies to public

entities, like the Orange County Sheriff’s Office, and its personnel. See id. at

1261. Because the subject of the alleged conspiracy in this case -- prosecution of

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Tillman by false charges -- “involves job-related functions well within [their]

scope of employment as police officers,” Tillman’s conspiracy to maliciously

prosecute claim must be dismissed. See id. at 1261-62. Thus, the district court did

not err in dismissing Tillman’s conspiracy claim. See Bircoll v. Miami-Dade

Cnty., 480 F.3d 1072, 1088 n.21 (11th Cir. 2007) (holding that we may affirm the

district court’s decision on any grounds supported by the record).

      Next, we hold that the district court’s dismissal of the IIED claim can only

be affirmed as to certain defendants. As a federal court assessing a state-law

claim, we look to Florida law to determine the elements of intentional infliction of

emotional distress. Lopez v. Target Corp., 676 F.3d 1230, 1235-36 (11th Cir.

2012). To state an IIED claim under Florida law, a plaintiff must allege (1)

deliberate or reckless infliction of mental suffering, (2) outrageous conduct that (3)

caused the emotional distress, and (4) that the distress was severe. Liberty Mutual

Ins. Co. v. Steadman, 968 So. 2d 592, 594 (Fla. Dist. Ct. App. 2007). For conduct

to be sufficiently outrageous, it must be “so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Lopez, 676 F.3d at 1236 (quotation omitted). As a

result, the IIED claim against Herrera must be dismissed because Tillman does not

allege any conduct by Herrera related to emotional distress caused by malicious




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prosecution. Similarly, the dismissal of the IIED claim against Beary is affirmed

because Tillman does not allege that Beary was present at his arrest or prosecution.

      A government entity cannot be liable for the willful and wanton actions of

its employees. Fla. Stat. § 768.28(9); Ford v. Rowland, 562 So. 2d 731, 734 (Fla.

Dist. Ct. App. 1990). Police officers, like all witnesses, possess absolute immunity

for their testimony at trial. Briscoe v. Lahue, 460 U.S. 325, 342-345 (1982). Thus,

in this case, we affirm the dismissal of the IIED claim against the Orange County

Sheriff’s Office. See Ford, 562 So. 2d at 734. Tillman does not claim the district

court improperly dismissed Demings from his suit, and we do not disturb this

decision. Additionally, the IIED claim against Torres cannot stand because the

only remaining action upon which it can be based is his alleged false testimony at

trial, conduct for which he is immune. Briscoe, 460 U.S. at 342-45.

      However, we do not believe that the dismissal of the IIED claim against

Duncan, Melville, and Henriquez should be affirmed. In his complaint, Tillman

asserted that Henriquez, Duncan, and Melville gave false, consistent statements in

their charging affidavits, leading to his malicious prosecution.          Because this

allegation -- that police officers falsified charging documents in order to convict a

man of a nonexistent crime -- is the type of extreme conduct considered to be

intolerable in a civilized society, we remand this claim for reconsideration.




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      We also conclude that the grant of summary judgment against Tillman’s

malicious prosecution claim should be largely affirmed. For Tillman’s § 1983

malicious prosecution claim to survive summary judgment, the facts viewed in a

light most favorable to Tillman must show “(1) the elements of the common law

tort of malicious prosecution, and (2) a violation of [his] Fourth Amendment right

to be free from unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d

1220, 1234 (11th Cir. 2004). Under Florida law, malicious prosecution has six

elements: (1) an original judicial proceeding was commenced or continued; (2) the

defendants were the legal cause of the proceeding; (3) the proceeding was

terminated in the plaintiff’s favor; (4) there was an absence of probable cause for

the underlying proceeding; (5) there was malice on the part of the defendants; and

(6) the plaintiff suffered damages as a result of the original proceeding. Id. On the

motion for summary judgment, the district court ruled as to the fifth element,

malice, and concluded that Tillman’s previous conviction collaterally estopped him

from proving this element.

      Collateral estoppel, or issue preclusion, bars relitigation of an issue that has

already been litigated and resolved in a prior proceeding. Pleming v. Universal-

Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998). In considering whether to

give preclusive effect to a Florida judgment, we apply Florida’s law of collateral

estoppel. Vasquez v. Metro. Dade Cnty., 968 F.2d 1101, 1106 (11th Cir. 1992).

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       Under Florida law, collateral estoppel applies if (1) an identical issue is

disputed; (2) that has previously been fully litigated; (3) by the same parties or

their privies; and (4) a final decision has been rendered by an appropriate court.

Quinn v. Monroe Cnty., 330 F.3d 1320, 1329 (11th Cir. 2003). Florida also

permits “defensive collateral estoppel,” which eliminates the mutuality of parties

requirement if a criminal defendant is attempting to relitigate an essential issue

from a separate criminal suit. Vasquez, 968 F.2d at 1106-07.     “A judgment that

has been vacated, reversed, or set aside on appeal is thereby deprived of all

conclusive effect . . . .” Kobatake v. E.I. Dupont de Nemours & Co., 162 F.3d 619,

624 (11th Cir. 1998) (quotation omitted); see also Quarles v. Sager, 687 F.2d 344,

346 (11th Cir. 1982) (“The judgment of the district court was vacated; thus, no

final judgment on the merits exists.”).

       In Tillman’s situation, the conviction, verdict, and sentence was entirely set

aside based on a subsequent Florida Supreme Court decision that established

Henriquez was not lawfully executing a legal duty at the time of Tillman’s arrest.

See Dorsey v. Continental Casualty Co., 730 F.2d 675, 678 (11th Cir. 1984) (“The

law of the case does not apply to a finding that is later vacated.” (emphasis in

original)).   Any “issues” determined in Tillman’s trial are thereby denied

preclusive effect. Thus, we hold that the district court clearly erred in determining




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that Tillman could not establish the malice element due to the supposed preclusive

effect of a sentence and conviction set aside by the state trial court.

      In short, we conclude that the district court erred in dismissing the IIED

claim against Henriquez, Duncan, and Melville; and that the district court erred in

granting summary judgment in favor of Henriquez as to Tillman’s malicious

prosecution claim. As to these limited grounds, we reverse the district court’s

decision and remand for further consideration.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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