          Case: 15-10997   Date Filed: 01/14/2016   Page: 1 of 13


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 15-10997
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:14-cv-81248-DTKH

MARTIN O’BOYLE,

                                             Plaintiff - Appellant,

versus

WILLIAM H. THRASHER,
individually,
GARRET WARD,
individually,
 TOWN OF GULF STREAM,

                                             Defendants - Appellees.

                      ________________________

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

                           (January 14, 2016)

Before HULL, MARCUS and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant Martin O’Boyle appeals from the district court’s final

order dismissing his amended complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which relief may be granted. O’Boyle’s

complaint raised federal claims under 42 U.S.C. § 1983 based on the unlawful

seizure of his property and person in violation of the Fourth Amendment as well as

state law assault and battery claims. These claims arose from alleged interactions

he had with officials employed by the Town of Gulf Stream, Florida on two

separate occasions -- first, by Gulf Stream Town Manager William Thrasher, and

second, by Gulf Stream Chief of Police Garrett Ward. On appeal, O’Boyle argues

that the district court erred: (1) when it concluded that Ward’s seizures of

O’Boyle’s papers and of O’Boyle’s person were reasonable under the Fourth

Amendment; and (2) when it dismissed his state law claims for being conclusory.

After thorough review, we affirm.

      We review de novo a grant of a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim, “accepting the factual

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff.” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir.

2006). To survive dismissal, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). This “requires more than


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labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not” be enough to survive a Rule 12(b)(6) motion to dismiss. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). We may affirm a dismissal “on any

ground that finds support in the record,” even if the district court did not rely on it.

Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).

      The relevant facts -- as contained in the complaint -- are these. O’Boyle

alleges that on July 15, 2014, he entered the office of Gulf Stream’s Town Clerk

and was accompanied by a “clean air technician” he had retained to take air

samples in the Town Hall, as well as an assistant carrying videotaping equipment.

As authorization for this activity, O’Boyle presented Police Chief Ward and the

Town Clerk with a copy of “a court order from Atlantic County, New Jersey

concerning [his] ability to videotape while in public buildings.” The Town Clerk

copied the docket number and other information so that the court document could

be retrieved through a public records request. Upon request, O’Boyle handed

Chief Ward the order to inspect, but when Chief Ward said he was going to copy

it, O’Boyle “immediately and unequivocally instructed [Chief Ward] that he did

not consent to have the document copied, only inspected and returned.”               As

O’Boyle attempted to retrieve the order, Chief Ward allegedly grabbed O’Boyle’s

“right-hand wrist and forearm to prevent [him] from retrieving the document,” but

O’Boyle was able to “quickly retrieve[]” the order with his free left hand before it


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was copied. According to O’Boyle, Chief Ward “shoved [O’Boyle] with his whole

body almost knocking him onto the sharp edges of a nearby desk.” Chief Ward

“then grabbed plaintiff’s right wrist and elbow with both hands and forcibly

ejected the plaintiff from the copy machine area,” and said O’Boyle “was being

disruptive and . . . would be arrested if he did not immediately leave the building.”

      On another occasion, on September 8, 2014, O’Boyle alleges that he entered

the Town Hall “to conduct public business, mainly inspect and/or attempt to

retrieve public records,” again “accompanied by his associate who filmed the

interaction.” He was then approached by Town Manager Thrasher who “became

irate with plaintiff regarding a discussion about public records.” O’Boyle claims

that “[a]t one point, [Town Manager Thrasher] took an aggressive ‘pre-combat’

stance and extended his arm towards [O’Boyle’s] chest as if he were going to push

and make contact with [O’Boyle’s ] left breast.”         Instead of shoving, Town

Manager Thrasher allegedly “extended his finger and brought it close to

[O’Boyle’s] body, within an inch or so of [O’Boyle’s] chest.” Thrasher allegedly

demanded to know if he was being recorded, and “began to repeatedly harass Mr.

O’Boyle’s associate in a rude and demeaning tone regarding the recording.”

O’Boyle himself then took the video camera to begin recording Thrasher’s actions,

at which point Thrasher allegedly “stuck his nose into the camera making contact

with the camera and thus [O’Boyle].”


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      First, we are unpersuaded by O’Boyle’s argument that the district court erred

in dismissing his property seizure claim. The Fourth Amendment requires that

searches and seizures be reasonable. U.S. Const. amend. IV. While a search or

seizure is ordinarily unreasonable in the absence of individualized suspicion of

wrongdoing, the Supreme Court has “upheld certain regimes of suspicionless

searches where the program was designed to serve ‘special needs, beyond the

normal need for law enforcement’” or to serve “certain administrative purposes . . .

provided that those searches are appropriately limited.” City of Indianapolis v.

Edmond, 531 U.S. 32, 37-38 (2000) (gathering cases upholding suspicionless

searches involving random drug testing of student-athletes; drug tests for United

States Customs Service employees seeking transfer or promotion to certain

positions; drug and alcohol tests for railway employees involved in train accidents

or found to be in violation of particular safety regulations; administrative

inspection of premises of “closely regulated” business; administrative inspection of

fire-damaged premises to determine cause of blaze; and administrative inspection

to ensure compliance with city housing code).

      In City of Indianapolis, the Supreme Court also recognized “the validity of

border searches or searches at places like airports and government buildings, where

the need for such measures to ensure public safety can be particularly acute.” Id. at

47-48 (distinguishing airport and government building searches from a city


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checkpoint program in which its primary purpose was “ultimately indistinguishable

from the general interest in crime control”).     In these special situations, “the

permissibility of a particular practice is judged by balancing its intrusion on the

individual’s Fourth Amendment interests against its promotion of legitimate

governmental interests.” Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602,

619 (1989) (quotation omitted). In addition, the Supreme Court has acknowledged

“a de minimis level of imposition with which the Constitution is not concerned.”

Ingraham v. Wright, 430 U.S. 651, 674 (1977); see also United States v. Jacobsen,

466 U.S. 109, 125 (1984) (holding that destruction of a small amount of cocaine

powder during a field test was a de minimis violation where “only a trace amount

of material was involved,” the cocaine’s previous possessors did not seem to have

noticed its loss, and the cocaine had already been lawfully detained); Cardwell v.

Lewis, 417 U.S. 583, 591-92 (1974) (plurality opinion) (examination of

automobile’s tires and taking of paint scrapings was a de minimis invasion of

constitutional interests); United States v. Hernandez, 418 F.3d 1206, 1212 n.7

(11th Cir. 2005) (stating that “[o]f trifles the law does not concern itself: De

minimis non curat lex”).

      For starters, Chief Ward did not violate O’Boyle’s Fourth Amendment right

when he did not immediately return the court order to O’Boyle. As the complaint

alleges, O’Boyle voluntarily relinquished his possessory interest in the order at the


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outset for the specific purpose of an official inspection to be conducted by Chief

Ward; the substance of the order was a matter of public record; and once O’Boyle

said that he wanted the order back, Chief Ward only retained it in order to

photocopy it. Although the complaint does not estimate for how long Chief Ward

held onto the order after O’Boyle’s asked for its return, it describes the encounter

as taking place over the amount of time it took the parties to approach the copy

machine, at which point O’Boyle positioned his right hand over the machine and

“quickly retrieved” the order with his left hand.        Given the briefness of this

encounter and the property at stake -- a court order allegedly available publicly --

we cannot say that there was anything more than a de minimis intrusion on

O’Boyle’s property rights. Moreover, in balancing the alleged seizure against the

Town’s undisputed interest in conducting searches of individuals entering public

buildings, see City of Indianapolis, 531 U.S. at 47-48 -- especially here, where

O’Boyle claimed he had obtained permission from a New Jersey court to videotape

inside a Florida Town Hall -- we conclude that Chief Ward did not violate

O’Boyle’s Fourth Amendment right when he briefly retained the court order that

O’Boyle intended Chief Ward to read and rely upon in his official capacity.

      Nor are we convinced by O’Boyle’s argument that the district court erred in

dismissing his claim that Chief Ward unlawfully seized his person. “When the

actions of the police do not show an unambiguous intent to restrain . . . a seizure


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occurs if, in view of all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.” Brendlin v. California,

551 U.S. 249, 255 (2007) (quotation and citation omitted). Notably, “a Fourth

Amendment seizure does not occur whenever there is a governmentally caused

termination of an individual’s freedom of movement (the innocent passerby), nor

even whenever there is a governmentally caused and governmentally desired

termination of an individual’s freedom of movement (the fleeing felon), but only

when there is a governmental termination of freedom of movement through means

intentionally applied.” West v. Davis, 767 F.3d 1063, 1068 (11th Cir. 2014).

Courts consider “whether a citizen’s path is blocked or impeded; whether

identification is retained; the suspect’s age, education and intelligence; the length

of the suspect’s detention and questioning; the number of police officers present;

the display of weapons; any physical touching of the suspect, and the language and

tone of voice of the police.” Id. at 1074 (quotation omitted). The “ultimate

inquiry” is whether the officer used force as a means of “coercion that would make

[the plaintiff] feel he was not free to leave.” Miller v. Harget, 458 F.3d 1251, 1258

(11th Cir. 2006).

      Construing the facts in a light most favorable to O’Boyle, we simply do not

see how a reasonable person in O’Boyle’s position would not have believed that he

was free to leave at any time. Specifically, the complaint describes the encounter


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as beginning when O’Boyle placed his hand over the copy machine that Chief

Ward was attempting to use and snatched the order from Chief Ward with his other

hand.    During this encounter, Chief Ward grabbed O’Boyle’s hand, shoved

O’Boyle, and “grab[bed] Plaintiff’s wrist and elbow in order to restrict or direct his

physical movement” and to “forcibly eject[] the Plaintiff from the copy machine

area.” Chief Ward then told O’Boyle that he was being disruptive and would be

arrested if he did not immediately leave the building.       In short, the complaint

admits that Chief Ward’s actions were done in an attempt to “eject” O’Boyle from

the copy area, and that Ward confirmed that O’Boyle should leave the building.

The complaint does not suggest that O’Boyle did not feel free to leave.

        This is true even though Chief Ward allegedly used physical contact to grab

O’Boyle’s arm and escort him from the copy machine. Indeed, when Chief Ward

grabbed O’Boyle’s wrist and pushed him away, the only conduct O’Boyle was

prevented from doing was standing next to the copier -- which, O’Boyle admits,

was “out of the Clerk’s office.” Nowhere does O’Boyle allege that he otherwise

was permitted access to the copy-machine area outside the Clerk’s office or had

“business” there, especially since, as we’ve already discussed, Ward had not acted

unlawfully in attempting to copy the order. Thus, unlike the plaintiff in West,

O’Boyle was “free to walk away or end the encounter and proceed about [his]

business.” West, 767 F.3d at 1070. Furthermore, once Chief Ward escorted


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O’Boyle from the area, O’Boyle remained on the scene without any force of any

kind being used. According to the complaint, “[a] few minutes” after O’Boyle’s

encounter with Chief Ward, O’Boyle asked Ward if the clean air technician would

be arrested, and Ward said no. In short, because the complaint describes O’Boyle

as always being free to leave, we cannot conclude that he was seized by Chief

Ward under the Fourth Amendment.

      Finally, we find no merit to O’Boyle’s claim that the district court erred by

dismissing his state law claims of assault and battery against Chief Ward and Town

Manager William Thrasher for being conclusory. O’Boyle’s state law claims

against Chief Ward arose from the incident with the copy machine. His state law

claims against Town Manager Thrasher arose from the separate incident during

which O’Boyle was videotaping another visit to the Town Hall when Thrasher

became “irate” in a discussion about “public records,” pointed a finger close to

O’Boyle’s chest, and then stuck his nose in the video camera O’Boyle was holding.

The district court concluded that Chief Ward and Town Manager Thrasher were

entitled to statutory immunity against the state law claims.

      Under Florida law,

      [n]o officer, employee, or agent of the state or of any of its subdivisions
      shall be held personally liable in tort or named as a party defendant in any
      action for any injury or damage suffered as a result of any act, event, or
      omission of action in the scope of her or his employment or function, unless
      such officer, employee or agent acted in bad faith or with malicious purpose


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      or in a manner exhibiting wanton and willful disregard of human rights,
      safety, or property.

Fla. Stat. § 768.28(9)(a).

      In the complaint, O’Boyle alleged, in each state law claim and with very

similar language, that the Defendants Thrasher and Ward “acted intentionally in

bad faith, with malicious purpose, and in a manner exhibiting wanton and willful

disregard for human rights and safety.” Florida law provides that “[m]alice, intent,

knowledge, mental attitude, and other conditions of mind of a person may be

averred generally.” Kist v. Hubbard, 93 So. 3d 1100, 1102 (Fla. Dist. Ct. App.

2012) (citing with approval a case in which a plaintiff had successfully pled malice

by providing that the “prosecution . . . was commenced . . . from malice towards

the plaintiff; that certain acts were committed by the [defendant] and these actions

were taken with actual malice.”). However, the Supreme Court has squarely

rejected pleadings alleging malice as O’Boyle has alleged:

      It is true that Rule 9(b) requires particularity when pleading “fraud or
      mistake,” while allowing “[m]alice, intent, knowledge, and other conditions
      of a person's mind [to] be alleged generally.” But “generally” is a relative
      term. In the context of Rule 9, it is to be compared to the particularity
      requirement applicable to fraud or mistake. Rule 9 merely excuses a party
      from pleading discriminatory intent under an elevated pleading standard. It
      does not give him license to evade the less rigid -- though still operative --
      strictures of Rule 8. See 5A C. Wright & A. Miller, Federal Practice and
      Procedure § 1301, p. 291 (3d ed. 2004) (“[A] rigid rule requiring the detailed
      pleading of a condition of mind would be undesirable because, absent
      overriding considerations pressing for a specificity requirement, as in the
      case of averments of fraud or mistake, the general ‘short and plain statement
      of the claim’ mandate in Rule 8(a) ... should control the second sentence of
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      Rule 9(b)”). And Rule 8 does not empower respondent to plead the bare
      elements of his cause of action, affix the label “general allegation,” and
      expect his complaint to survive a motion to dismiss.

Ashcroft, 556 U.S. at 686-87 (emphasis added). Since O’Boyle pled nothing more

than the “bare elements” of malice, bad faith, and wanton and willful disregard, his

state law claims do not sufficiently overcome § 768.28(9)(a) immunity.

      Nor do the limited factual allegations alleged in the complaint demonstrate

that Chief Ward and Town Manager Thrasher acted with the requisite bad faith,

malice, and wanton and willful disregard needed to overcome § 768.28 immunity.

Indeed, Florida courts have held that bad faith, malice, and wanton and willful

disregard language found in § 768.28(9) “connotes conduct much more

reprehensible and unacceptable than mere intentional conduct.” Richardson v.

City of Pompano Beach, 511 So. 2d 1121, 1123 (Fla. Dist. Ct. App. 1987). But in

describing his encounters with Chief Ward and Town Manager Thrasher, O’Boyle

has alleged nothing more than “mere intentional conduct,” rather than the kind of

extraordinary conduct required for bad faith, malice, and wanton and willful

disregard. Among other things, O’Boyle has not alleged that the physical contact

was repeated or prolonged, or that he was knocked down, transported to the

hospital, permanently injured, or that he otherwise suffered from “reprehensible”

conduct. Accordingly, the district court did not err in dismissing O’Boyle’s state

law claims for failure to overcome the immunity found in § 768.28(9).


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AFFIRMED.




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