Jones v. Leocadio et al
Filing
113
OPINION AND ORDER granting 98 Defendant Sheriff's Motion for Summary Judgment; denying 99 Defendants', Leocadio and McManus, Motion for Summary Judgment. Summary judgment is granted as to 25 the Amended Civil Rights Complaint in favor of Kevin Rambosk, Sheriff of Collier County, Florida. The Clerk shall withhold entry of judgment until the conclusion of the case. See Opinion and Order for details. Signed by Judge John E. Steele on 1/17/2014. (AAA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NORMAN WAYNE JONES,
Plaintiff,
vs.
Case No.
ROB LEOCADIO,
MCMANUS, Det.,
RAMBOSK,
2:12-cv-285-FtM-29UAM
Cpl. and PATRICK
and SHERIFF KEVIN
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant Sheriff’s
Motion for Summary Judgment (Doc. #98) filed on October 16, 2013
and Defendants’, Leocadio and McManus, Motion for Summary Judgment
(Doc. #99) filed on October 21, 2013.
On November 8, 2013, a
Summary Judgment Notice (Doc. #100) was issued advising plaintiff
that a response to a motion for summary judgment must be filed
within fourteen days of service of the motion for summary judgment
and provided additional explanatory admonitions for the benefit of
plaintiff, who is proceeding pro se.
Thereafter, on November 21,
2013, plaintiff filed a Response (Doc. #101) to Defendants’,
Leocadio
and
McManus,
Motion
for
Summary
Judgment;
however,
plaintiff has not filed a response to Defendant Sheriff’s Motion
for Summary Judgment.
Both motions are ripe for review.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(c).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp. Co. v.
M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)(finding
summary judgment “may be inappropriate where the parties agree on
the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from the
facts, and if that inference introduces a genuine issue of material
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fact, then the court should not grant summary judgment.”
Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
Allen v.
In the
summary judgment context, the Court must construe pro se pleadings
more liberally than those of a party represented by an attorney.
Loren v. Sasser, 309 F.3d 1296, 1301 (11th Cir. 2002).
II.
The undisputed facts are as follows: On October 6, 2011,
plaintiff was arrested by defendants Rob Leocadio and Patrick
McManus of Collier County Sheriff’s Office and charged with: (1)
tampering/destruction of evidence; (2) resisting arrest without
violence; (3) providing false information to a law enforcement
officer
when
paraphernalia;
arrested/detained;
(5)
failure
to
(4)
appear
possession
for
felony
of
narcotic
offense
in
violation of Florida Statute § 843.15-1a; and (6) failure to appear
for misdemeanor offense in violation of Florida Statute § 843.151b.
(Doc. #108, p. 4.)
By Information, the State Attorney’s
Office charged plaintiff with:
On or about October 6, 2011 in Collier County, Florida,
did unlawfully resist, obstruct, or oppose Detective
Patrick McManus of Collier County Sheriff’s Office in the
execution of legal process or in the lawful execution of
a legal duty, to-wit: preventing defendant from ingesting
possible narcotics, contrary to Florida Statute 843.02,
On or about October 6, 2011, in Collier County, Florida,
did unlawfully possess with intent to use, drug
paraphernalia as defined in § 893.145, contrary to
Florida Statute 893.147.
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(Id.; Doc. #99-5.)
On December 27, 2011, plaintiff entered a plea
of no contest to the charges against him and he was adjudicated
guilty of obstructing an officer without violence and possession
and use of narcotic paraphernalia.
Doc. #99-7; Doc. #99-8.)
overturned.
(Doc. #108, p. 4; Doc. #99-6;
Plaintiff’s conviction has not been
(Doc. #108, p. 5.)
III.
Plaintiff alleges a violation of his Fourth Amendment right to
be free from the use of excessive force by defendants Rob Leocadio
(Leocadio)
and
Patrick
McManus
(McManus)
in
their
capacities under 42 U.S.C. § 1983 (Section 1983).
individual
(Doc. #25, pp.
5, 6; Doc. #108, pp. 1, 2.)
Plaintiff also brings a claim against
Kevin
Collier
Rambosk,
Sheriff
of
County,
Florida
(Sheriff),
pursuant to Section 1983, alleging that he is responsible for the
actions of his deputies.
(Doc. #25, pp. 6, 7; Doc. #108, pp. 1,
2.)
Plaintiff alleges and in his deposition states: plaintiff was
pulled over by defendants Leocadio and McManus, (Doc. #25, p. 5;
Doc. #99-3, p. 19); plaintiff exited the car and was escorted to an
unmarked
vehicle,
defendants
(Doc.
verified
that
#25,
p.
there
5;
Doc.
was
an
#99-3,
active
pp.
27-29);
warrant
for
plaintiff’s arrest, (Doc. #25, p. 5; Doc. #99-3, p. 29); defendants
placed handcuffs on plaintiff, (id.); a few seconds later defendant
McManus grabbed plaintiff by his neck and stated “quit resisting”
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and “spit it out” because he believed that plaintiff had pieces of
crack cocaine in his mouth, (Doc. #25, pp. 5, 6; Doc. #99-3, pp.
29-31); at the same time, Leocadio had one hand on the handcuffs
and used the other to punch plaintiff in the face four or five
times while yelling “spit it out,” (Doc. #25, p. 6; Doc. #99-3, p.
30); plaintiff attempted to advise defendants that he did not have
anything in his mouth but could not do so, (Doc. #25, p. 6); while
plaintiff was handcuffed, Leocadio tased him in the back for 2 or
3 seconds, (Doc. #25, p. 6; Doc. #99-3, pp. 35, 36); plaintiff was
then placed under arrest and transported to Naples Community
Hospital where he was medically cleared and transported to the
Collier County Jail, (Doc. #25, p. 6); plaintiff had previously
filed grievances against Leocadio when he was a guard at the
Collier County Jail and plaintiff believes that Leocadio’s actions
were in retaliation for the grievances, (Doc. #99-3, pp. 26, 27,
33).
As it relates to plaintiff’s allegations against defendant
Sheriff, plaintiff alleges and states: the Sheriff is liable
because he is Leocadio and McManus’ boss, the officers were on duty
and trained under the Sheriff’s supervision, and the Sheriff is
responsible
officers.
for
his
employees’
actions
and
to
reprimand
his
(Doc. #25, pp. 6, 7; Doc. #99-3, pp. 50-53.)
Defendants, relying primarily on sworn statements made by
defendants Leocadio and McManus to the Collier County Sheriff’s
Office Professional Responsibility Bureau, contend that: after
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plaintiff exited the vehicle, McManus observed what he believed
were three pieces of crack cocaine in plaintiff’s mouth, (Doc. #992, p. 2); McManus motioned to Leocadio to inform him of what he
observed in plaintiff’s mouth and Leocadio confirmed that he also
saw the object, (Doc. #99-1, p. 2; Doc. #99-2, p. 2); in order to
prevent plaintiff from swallowing the crack cocaine because of
evidentiary and health reasons, McManus placed his hand on the back
of plaintiff’s neck, pushed him forward, and repeatedly ordered him
to spit out the object, Leocadio then proceeded to deliver short
strikes to plaintiff’s face, (Doc. #99-1, p. 3; Doc. #99-2, p. 24); McManus released plaintiff’s neck and attempted to place
handcuffs on him, (Doc. #99-2, p. 3); plaintiff resisted by tensing
his arms and pushing his body away from the vehicle, (Doc. #99-1,
p.
4;
Doc.
#99-2,
p.
3);
Leocadio
warned
plaintiff
to
stop
resisting and after plaintiff continued to resist arrest, Leocadio
administered one five second drive stun cycle with a taser, (Doc.
#99-1, p. 4; Doc. #99-2, p. 3).
IV.
Defendants Leocadio and McManus assert that they are entitled
to summary judgment because (1) Heck v. Humphrey, 512 U.S. 477
(1994) bars plaintiff from bringing a Section 1983 excessive force
claim against defendants, and (2) defendants are entitled to
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qualified immunity as to plaintiff’s claim of excessive force.1
(Doc. #99.)
A.
Heck Bar
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States
Supreme Court held:
[I]n order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.
Thus, when a state
prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.
Heck, 512 U.S. at 486-87 (emphasis added)(internal citation and
footnote omitted).
Here, defendants Leocadio and McManus acknowledge that it is
possible for plaintiff to allege a cause of action that is not
barred by Heck, (Doc. #99, pp. 9-10), but assert he has not done
so. Defendants argue that the cause of action alleged by plaintiff
1
Defendants Leocadio and McManus also assert that they are
entitled to summary judgment as to any Section 1983 Fourteenth
Amendment claims because an excessive force violation is not
actionable under the Fourteenth Amendment. (Doc. #99, pp. 6, 7.)
This argument is denied as moot as plaintiff only brings his claim
under the Fourth Amendment. (Doc. #108, p. 1.)
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is barred because plaintiff’s deposition testimony establishes that
his
theory
of
excessive
force
is
based
on
the
premise
that
plaintiff never resisted or obstructed the deputies at any time
during the arrest.
undermines
(Id.)
plaintiff’s
This, defendants assert, directly
conviction
for
obstructing
without violence, and is thus barred by Heck.
conviction
did
not
relate
to
officer
(Id.)
The Court does not come to the same conclusions.
charge of
an
Deputy
First, the
Leocadio,
and
therefore Heck has no application to the claim against Deputy
Leocadio.
Second, the allegations in his Amended Civil Rights
Complaint (Doc. #25) do not suggest that plaintiff’s claim is so
limited.
Plaintiff’s Amended Civil Rights Complaint includes a
statement of facts in which plaintiff alleges multiple actions that
plausibly give rise to his excessive force claim, including: (1)
McManus grabbing plaintiff by the neck and back and choking him;
(2) Leocadio punching plaintiff 4 or 5 times in the face; and (3)
Leocadio tasing plaintiff for 2 or 3 seconds.
6.)
(Doc. #25, pp. 5,
Given the general nature of the charge and viewing the
evidence in the light most favorable to plaintiff, a jury could
conclude that both McManus and Leocadio’s actions support an
excessive
force
claim,
even
if
they
disbelieved
plaintiff’s
deposition testimony of complete cooperation.
See Hadley v.
Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008).
See also Dyer v.
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Lee, 488 F.3d 876, 882-83 (11th Cir. 2007).
Therefore, the Court
finds plaintiff’s claim is not barred by Heck.
B.
Qualified Immunity
Defendants Leocadio and McManus next raise the defense of
qualified immunity. “Qualified immunity offers complete protection
for government officials sued in their individual capacities when
acting within their discretionary authority if their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.”
Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1305 (11th Cir. 2009)(citation and
quotation marks omitted).
The standard for qualified immunity is
well established. First, the government official must show that he
was engaged in a “discretionary function” when he committed the
allegedly unlawful acts.
Corey Airport Servs., Inc. v. Decosta,
587 F.3d 1280, 1285 (11th Cir. 2009)(citation omitted).
If the
official acted within his discretionary authority, the burden
shifts to the plaintiff to show that qualified immunity is not
appropriate.
Id.
To do this, plaintiff must show: (1) the
defendant violated a constitutional right, and (2) this right was
clearly established at the time of the violation.
Id.
A defendant acts within his discretionary authority when “his
actions were undertaken pursuant to the performance of his duties
and within the scope of his authority.”
Rich v. Dollar, 841 F.2d
1558, 1564 (11th Cir. 1988)(citations and internal quotation marks
-9-
omitted).
There does not seem to be a dispute that Leocadio and
McManus were engaged in a “discretionary function” in pulling over
plaintiff for a traffic violation and arresting him.
Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
See Lee v.
Therefore, the
Court will consider only whether plaintiff has shown that qualified
immunity is not appropriate.
Plaintiff
must
first
allege
violated a constitutional right.
that
the
officers’
conduct
Plaintiff alleges a violation of
his Fourth Amendment rights based upon excessive force.
“The
Fourth Amendment’s freedom from unreasonable searches and seizures
encompasses the plain right to be free from the use of excessive
force in the course of an arrest.”
omitted).
Lee, 284 F.3d at 1197 (citation
Viewing the evidence in the light most favorable to
plaintiff, a jury could conclude that the amount and type of force
utilized under the circumstances was unreasonable and in violation
of the Fourth Amendment.
See Hadley, 526 F.3d at 1330 (allowing
excessive force claim to proceed when an officer punched in the
stomach an arrestee who was handcuffed, did not pose a danger to
the officer, and was not resisting arrest); Lee, 284 F.3d at 1198
(allowing excessive force claim to proceed when an officer slammed
arrestee’s head onto the hood of a car when she was handcuffed, not
posing a threat to the officer, and not posing a flight risk);
Thompson v. Mostert, 489 F. App’x 396 (11th Cir. 2012)(allowing
excessive force claim to proceed when officer forced arrestee to
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ground and deployed a taser device to his back, even though
arrestee did not resist being handcuffed); Hall v. Ala. Dep’t of
Pub. Safety, 249 F. App’x 749, 751 (11th Cir. 2007)(allowing
excessive force claim to proceed when officer sprayed arrestee with
mace, after he was already subdued in handcuffs).
Second,
plaintiff
established law.
must
show
defendant
violated
clearly
The cases cited above establish that the law was
clearly established and that no reasonable officer could have
believed the force utilized (as viewed in the light most favorable
to plaintiff) was within the permissible limits of the Fourth
Amendment.
Therefore, the Court cannot, at this stage of the
proceedings, find that qualified immunity bars plaintiff’s Fourth
Amendment claim.
V.
Defendant Sheriff asserts that he is entitled to summary
judgment
because
the
record
does
not
demonstrate
that
the
plaintiff’s constitutional rights were violated as a direct result
of the Sheriff’s policies, customs, practices, or procedures.
(Doc. #98.)
Under § 1983, a governmental entity may not be held liable
under a theory of respondeat superior, but instead may only be held
liable
when
violation.
its
“official
policy”
causes
a
constitutional
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). Plaintiff can establish the requisite “official policy” in
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one of two ways: (1) identifying an officially promulgated policy,
or (2) identifying an unofficial custom or practice shown through
the repeated acts of the final policymaker of the entity. Grech v.
Clayton Cnty., Ga., 335 F.3d 1326, 1329-30 (11th Cir. 2003).
Plaintiff must identify the policy or custom which caused his
injury so that liability will not be based upon an isolated
incident,
McDowell
v.
Brown,
392
F.3d
1283,
1290
(11th
Cir.
2004)(citations omitted), and the policy or custom must be the
moving force of the constitutional violation, Grech, 335 F.3d at
1330.
See also Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397,
403 (1997); Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.
1998).
“A policy is a decision that is officially adopted by the
municipality, or created by an official of such rank that he or she
could be said to be acting on behalf of the [entity]. . . . A
custom is a practice that is so settled and permanent that it takes
on the force of law.”
Cooper v. Dillon, 403 F.3d 1208, 1221 (11th
Cir. 2005)(quoting Sewell v. Town of Lake Hamilton, 117 F.3d 488,
489 (11th Cir. 1997)).
“Municipal policy or custom may include a failure to provide
adequate
training
if
the
deficiency
evidences
indifference to the rights of its inhabitants.
[ ]
a
deliberate
To establish
a city’s deliberate indifference, a plaintiff must present some
evidence that the municipality knew of a need to train and/or
supervise
in
a
particular
area
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and
the
municipality
made
a
deliberate choice not to take any action.”
Lewis v. City of West
Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009)(internal
citations and quotation marks omitted).
Plaintiffs can show the
entity was deliberately indifferent by either showing that (1) the
city was aware of a pattern of constitutional violations and
nevertheless
failed
to
provide
adequate
training
or
(2)
the
likelihood of constitutional violation was so high that the need
for training was obvious.
Id.
In this case, plaintiff alleges and in his deposition stated
that: the Sheriff is liable because he is Leocadio and McManus’
boss, the officers were on duty and trained under the Sheriff’s
supervision, and the Sheriff is responsible for his employees’
actions and to reprimand his officers.
#99-3, pp. 50-53.)
(Doc. #25, pp. 6, 7; Doc.
Plaintiff has failed to identify an officially
promulgated policy or an unofficial custom or practice shown
through the repeated acts of the Sheriff that resulted in the
violation of plaintiff’s constitutional rights.
Additionally,
plaintiff has not presented sufficient evidence that the Sheriff
was deliberately indifferent.
Plaintiff has failed to show any
evidence that there was a pattern of constitutional violations or
that the likelihood that an officer would use excessive force was
so high that the need for training was obvious.
Thus, the Court
will grant defendant Sheriff’s motion for summary judgment.
Accordingly, it is now
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ORDERED:
1. Defendant Sheriff’s Motion for Summary Judgment (Doc. #98)
is GRANTED.
Summary judgment is granted as to the Amended Civil
Rights Complaint (Doc. #25) in favor of Kevin Rambosk, Sheriff of
Collier County,
Florida.
The
Clerk
shall
withhold
entry
of
judgment until the conclusion of the case.
2.
Defendants’, Leocadio and McManus, Motion for Summary
Judgment (Doc. #99) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 17th day of
January, 2014.
Copies:
Counsel of record
Pro se parties
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