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«UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION ASHLEY DRURY, Plaintiff, -vs- Case No. 6:10-cv-1176-Orl-28DAB VOLUSIA ...»

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Case 6:10-cv-01176-JA-DAB Document 176 Filed 01/19/12 Page 1 of 37 PageID 4423

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ASHLEY DRURY,

Plaintiff,

-vs- Case No. 6:10-cv-1176-Orl-28DAB

VOLUSIA COUNTY, FLORIDA; ROBERT

PAUL TAMERIS; JECOA DUANE

SIMMONS; CHRISTIAN DUARTE; and KEVIN SWEAT;

Defendants.

______________________________________

ORDER This lawsuit involves allegations of sexual intercourse between three adult males over the age of twenty-nine and a then-minor female, Plaintiff Ashley Drury, all of whom were formerly employed by the Volusia County Beach Patrol (“the Beach Patrol”). Plaintiff asserts that her constitutional rights were violated by the sexual encounters, and pursuant to 42 U.S.C. § 1983 she brings three claims for violations of those rights. She also asserts six claims under Florida law. Named as Defendants are the three men involved in the sexual activity, the director of the Beach Patrol, and Volusia County (“the County”).

The case is currently before the Court on the three summary judgment motions filed by the parties.1 Having considered the record evidence, the parties’ arguments, and The pertinent filings are: (1) the Motion for Summary Judgment filed by Defendants Volusia County and Kevin Sweat (Doc. 105), Plaintiff’s Response thereto (Doc. 120), and the Reply (Doc. 135) filed by the County and Sweat; (2) the Motion for Summary Judgment filed by Defendants Jecoa Duane Simmons and Robert Paul Tameris (Doc. 107) and Case 6:10-cv-01176-JA-DAB Document 176 Filed 01/19/12 Page 2 of 37 PageID 4424 pertinent law, the Court concludes that the motion filed by Tameris and Simmons must be granted as to Plaintiff’s federal claims; that the motion filed by the County and Sweat must also be granted as to Plaintiff’s federal claims, and that Plaintiff’s state law claims shall be dismissed without prejudice to Plaintiff pursuing them in state court. All three summary judgment motions will accordingly be denied without prejudice as to the state law claims.

I. Background2 The Beach Patrol is a division of the Department of Public Protection of the County.

Employees of the Beach Patrol include part-time lifeguards, full-time lifeguards, and sworn law enforcement officers (“LEOs”); these LEOs, who also are trained as lifeguards, serve the law enforcement function on the County’s beaches.3 The minimum age to work as a lifeguard for the Beach Patrol is sixteen, and many high school students work as lifeguards full-time during the summer and part-time during the rest of the year. Currently, during the peak summer season the Beach Patrol employs 58 sworn LEOs, 11 unsworn full-time Plaintiff’s Response thereto (Doc. 122); and (3) the Motion for Partial Summary Judgment as to Robert Paul Tameris filed by Plaintiff (Doc. 109) and Tameris’s Response thereto (Doc.

123). Defendant Duarte has not filed a summary judgment motion, but some of the arguments made by the other Defendants apply to the claims against him as well.

The facts in the Background section are taken largely from the deposition testimony of Plaintiff. For the purpose of ruling on Defendants’ motions, her testimony must be accepted as true.

From approximately 1986 to 1996, the law enforcement function on the beach was served by LEOs known as “Beach Rangers” who were not part of the Beach Patrol and were not lifeguards. In approximately 1996, however, the Beach Rangers were discontinued and lifeguards at the Beach Patrol were cross-trained as LEOs and emergency medical technicians. Since that cross-training occurred in the mid-1990s the law enforcement function on the beach has been provided by these LEOs who work for the Beach Patrol.

-2Case 6:10-cv-01176-JA-DAB Document 176 Filed 01/19/12 Page 3 of 37 PageID 4425 lifeguards who hold the title of Beach Safety Specialist, and 180 to 200 other lifeguards.

–  –  –

In June 2008, during the summer break between her junior and senior years in high school, Plaintiff—then sixteen years old—began working for the Beach Patrol as a lifeguard.

Plaintiff had applied to be a lifeguard earlier that year and had spent her spring break completing the forty-hour course required for employment as a lifeguard. Plaintiff’s brother, Shea—three years her elder—had previously worked as a lifeguard for the Beach Patrol.

Among the full-time adult Beach Patrol employees in 2008 were Defendants Robert Tameris, who was forty-three years old at the time and a sworn LEO; thirty-five-year-old Jecoa Duane Simmons, who also was a sworn LEO and held the position of captain; and thirty-year-old Christian Duarte, who had formerly served as a LEO but was no longer sworn and held the position of Beach Safety Specialist.4 Defendant Kevin Sweat is the Director of the Beach Patrol and has been since December 2001.

In this lawsuit, Plaintiff claims that in early August 2008, when she was sixteen years old, she had sexual intercourse with Tameris and that after she turned seventeen in midAugust she had sexual intercourse with Tameris on two other occasions. Plaintiff also claims to have had sexual intercourse once with Simmons in November 2008 and once with Duarte in November or December 2008. When asked at their depositions about these allegations of sexual activity with Plaintiff, Tameris invoked his rights under the Fifth Amendment, (Tameris Dep. at 44-46), while both Simmons and Duarte denied engaging in any sexual

–  –  –





activity with Plaintiff, (Simmons Dep. at 6-7; Duarte Dep. at 123-24).

Plaintiff met Tameris on August 5, 2008 while she was lifeguarding. (Pl. Dep. at 77, 95). Tameris was in a truck patrolling the beach with another officer, and he approached Plaintiff’s tower and introduced himself. (Id. at 77). He told her that if she needed anything to let him know and that he was there to help. (Id.). Plaintiff thanked Tameris, who was the first officer who had stopped and gotten out of his truck to speak with her rather than just waving and continuing on. (Id. at 77-80).

Four days after they first met on the beach, Tameris and Plaintiff began exchanging text messages and talking on their cell phones; according to phone records, the first text message was sent from Plaintiff to Tameris at 6:34 p.m. on Saturday, August 9. (Id. at 81Ex. 5 to Pl. Dep.). Tameris sometimes sent Plaintiff texts telling her that he “liked her butt” or “liked watching her run or swim” when she did the morning drills required of the working lifeguards. (Pl. Dep. at 99). Tameris also sent her text messages telling her that he wanted to kiss her. (Id. at 101). Plaintiff had never received such text messages, and although she enjoyed receiving Tameris’s compliments she was unsure “how to take them.” (Id. at 100-01, 288). She responded to Tameris’s text messages with “thank you” or “okay.”

–  –  –

Sometime after the first text message on August 9 but before Plaintiff’s seventeenth birthday on August 16, Plaintiff and Tameris had sexual intercourse at Tameris’s home. (Id.

at 102). On Plaintiff’s birthday, Plaintiff went to a lifeguard banquet, to a tavern, and then to Tameris’s house, where she had sexual intercourse with him again. (Id. at 103). Sometime later in August or early in September, Plaintiff and Tameris went out to dinner at a

–  –  –

steakhouse and then again had sex at Tameris’s house. (Id. at 106).

All three times that Plaintiff had sex with Tameris, Plaintiff drove herself to Tameris’s house and no one forced her to go there. (Id. at 110, 127). She and Tameris discussed having a long-term relationship and talked about having children someday. (Id. at 108).

Sometimes Plaintiff would ride with Tameris in the truck on the beach while he was on duty but she was not; she did not remember whether she asked to ride in the truck or if Tameris suggested it. (Id. at 122). She and Tameris agreed to keep their relationship a secret, though he did not threaten her to keep quiet about it. (Id. at 134). The last text message between Plaintiff and Tameris was exchanged on September 13, 2008. (Id. at 98).

Plaintiff also testified in her deposition that she had sexual intercourse with Defendant Simmons once. Phone records reflect that Plaintiff and Simmons exchanged text messages from November 8, 2008 until November 29, 2008, and the sexual encounter occurred during that period of time. (Id. at 135). Simmons acknowledged in his deposition that he initiated the text messaging with Plaintiff after obtaining her cell phone number from an employee phone list. (Simmons Dep. at 10-11). Some of the text messages were exchanged during the workday. (Id. at 11). Plaintiff had first met Simmons at the recruitment class she attended during her spring break. (Pl. Dep. at 138). She would see Simmons once in a while if he happened to be in the areas where she was working, but she had never had a personal conversation with Simmons until they began texting in November. (Id. at 138-39).

Simmons told her in his text messages that he wanted to kiss her and, later, that he wanted to have sex with her. (Id. at 140). Plaintiff felt flattered but also “almost violated” by

–  –  –

Simmons’s messages.5 (Id.). She did not tell him this, though, because she “didn’t know how.” (Id.). One evening when Simmons was on duty patrolling near the beach, Simmons texted Plaintiff to come sit in the truck with him and hang out. (Id. at 137). Plaintiff was not working at that time, and she drove herself to meet Simmons; no one forced her to do so.

(Id. at 141). She met him at the old Main Street Lifeguard Station, which was vacant because the Beach Patrol had moved to a new headquarters; Simmons opened the door for her and they had sex upstairs. (Id. at 137-38). Sometime thereafter, Simmons wanted to meet with Plaintiff again, which she assumed was also for the purpose of having sex;

however, Plaintiff declined to meet him again. (Id. at 142).

Plaintiff exchanged text messages with Defendant Duarte from November 21, 2008 until December 2, 2008. (Id. at 150-51). Plaintiff did not know who Duarte was until he left a message on her phone one Saturday when she was taking the SAT to see if she was available to work that day. (Id. at 151-52). Sometime thereafter, Plaintiff made the next contact by “reaching out” to Duarte to ask about her schedule, and the text messaging continued from there. (Id. at 153). Plaintiff would sometimes visit Duarte while he was dispatching but while Plaintiff was not working. (Id. at 155-56). One day when she and Duarte were texting, Duarte asked Plaintiff to meet him to watch a movie. (Id. at 157).

In approximately October 2008—sometime after she had stopped communicating with Tameris but before she started communicating with Simmons—Plaintiff had sexual intercourse on at least one occasion with another lifeguard with whom she was friends and who is not a named Defendant in this case. (Pl. Dep. at 135, 243-44, 296, & 307-08).

Plaintiff distinguished her sexual encounter(s) with that lifeguard from those with named Defendants in part based on that lifeguard not sending her sexual text messages or “making advances” in the way that the Defendants did. (Pl. Dep. at 308).

-6Case 6:10-cv-01176-JA-DAB Document 176 Filed 01/19/12 Page 7 of 37 PageID 4429 Plaintiff drove to the Granada bridge to meet Duarte, and she then got into Duarte’s truck and they drove to another location and had sex in the back of the truck. (Id. at 158). Some time after that encounter, Duarte expressed interest in having sex again but Plaintiff declined. (Id. at 159-60).

Plaintiff told no one of the sexual incidents with these three men until February 2009, when her boyfriend of two months, Kristopher Yackel—who also worked as a lifeguard for the Beach Patrol—confronted Plaintiff about a rumor6 he had heard regarding Plaintiff and Tameris. When Plaintiff admitted to Yackel that she had had sex with Tameris, Yackel encouraged her to tell her parents, and she did so. Shortly thereafter, Plaintiff and her father contacted an attorney.

Meanwhile, in early February 2009—prior to when Plaintiff informed her parents about the sexual liaisons—a rumor about Tameris engaging in sexual intercourse with Plaintiff made its way to Elisa Prugar, a female Beach Patrol captain with over twenty years of service. Prugar was told of the rumored activity by Jodie Stafford, a male lifeguard and friend of Yackel’s.7 Prugar immediately reported the rumor to one of the deputy chiefs at the Beach Patrol, and an Internal Affairs investigation was promptly initiated regarding Tameris.

The names of Simmons and Duarte came up during the Tameris investigation, and Internal

–  –  –

Affairs investigations were later initiated regarding them as well. All three were ultimately terminated from the Beach Patrol.8 Plaintiff has not worked for the Beach Patrol since December 2008 and now attends college in north Florida.

On August 6, 2010, Plaintiff filed this lawsuit. In her Amended Complaint, she alleges three federal constitutional claims and six state law claims: Count I—violation of her Fourteenth Amendment substantive due process rights (against all Defendants); Count II—violation of her Fourteenth Amendment equal protection rights (against all Defendants);

Count III—violation of her Fourth Amendment (applicable through the Fourteenth Amendment) right to be free of unreasonable seizures (against all Defendants except Duarte); Count IV—negligent supervision against the County only; Count V—negligent retention against the County only; Count VI—battery against Tameris only; Count VII—battery against Simmons only; Count VIII—battery against Duarte only; and Count IX—intentional infliction of emotional distress against Tameris, Simmons, and Duarte.9 The summary judgment motions filed by Plaintiff (Doc. 109), Tameris and Simmons (Doc. 107), and the County and Sweat (Doc. 105) are now ripe for ruling.

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