Johnson v. Scott et al
Filing
15
ORDER granting in part and denying in part 10 Defendants' Motion to Dismiss. Count I is dismissed against Defendant Scott only. Count II is dismissed. Count III is dismissed. Count IV is dismissed with regard to the negligent hiring claim and the discretionary aspects of the negligent training claim. Plaintiff may file an amended complaint on or before November 15, 2013. Signed by Judge Sheri Polster Chappell on 11/1/2013. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ADAM J. JOHNSON,
Plaintiff,
v.
Case No: 2:13-cv-500-FtM-38UAM
MIKE SCOTT, THOMAS W. COLE
and UNKNOWN SHERIFFS
DEPUTY(S),
Defendants.
/
ORDER1
This matter comes before the Court on Defendants' Motion to Dismiss (Doc. #10)
filed on September 23, 2013. Plaintiff has filed a response in opposition. (Doc. #14).
The Motion is fully briefed and ripe for the Court’s review.
BACKGROUND
Plaintiff Adam J. Johnson is a resident of Fort Myers, Florida within Lee County
Florida. (Doc. #1, ¶1). Defendant Mike Scott is the Lee County Sheriff (Doc. #1, ¶3),
Defendant Thomas W. Cole and Defendant Unknown Sheriff Deputy(s) were deputies
at all times relevant. (Doc. #1, ¶¶4-5). Plaintiff filed his four count Complaint on July 9,
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2013, alleging violations of his constitutional rights under 42 U.S.C. § 1983, and various
state law claims arising out of the arrest and subsequent detention of Plaintiff by
Defendants.
The Complaint alleges on or about October 29, 2009, Defendants negligently
investigated a burglary. (Doc. #1, ¶¶15, 32). This burglary encompassed the theft of
personal property including several firearms. (Doc. #1, ¶15). Defendants arrested
several suspects and then recorded their interviews with these suspects. (Doc. #1,¶16).
A witness was shown a picture lineup of white males that included a picture of Plaintiff.
(Doc. #1, ¶17). However, Plaintiff was distinctly represented in this picture lineup
because Plaintiff’s picture contained his face but not his shoulders unlike the other
pictures.2 (Doc. #1, ¶17). Also, the lineup picture of Plaintiff filed in the investigative file
was circled as if Plaintiff was identified by a witness during the lineup. (Doc. #1, ¶18).
Plaintiff asserts video evidence reveals Plaintiff was not identified during this lineup
process. (Doc. #1, ¶18).
Defendant Thomas W. Cole “issued” a warrant for the arrest of Plaintiff after
learning that an individual with the name “Adam” was seen loading stolen property on
his truck. (Doc. #1, ¶16). Thereafter, Plaintiff was arrested at home, placed inside a
Sherriff’s cruiser, and held in jail. (Doc. #1, ¶¶16, 22). Plaintiff was released from jail
after a month and eventually his charges were deemed nolle prosequi. (Doc. #1,¶19).
The four counts in the Complaint are as follows: Count I - Violation of Civil Rights
Pursuant to 42 U.S.C. § 1983 against all Defendants; Count II – False Imprisonment
2
The Court assumes that Plaintiff intended to say “emphasizing the Plaintiff for the witness” instead of
saying, “The picture of his face was larger than the rest of the others in the lineup because it only
contained his face and not his shoulders as the rest of the pictures, thereby emphasizing the Defendant
for the witness.” (Doc. #1, ¶17).
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against all Defendants; Count III – Negligence against all Defendants; and Count IV –
Negligent Hiring and Training against Defendant Scott as Sheriff. Defendants seek to
dismiss all four counts.
DISCUSSION
When deciding a motion to dismiss under Federal Rule 12(b)(6), the Court must
accept all factual allegations in a complaint as true and take them in the light most
favorable to the plaintiffs. Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179,
153 L. Ed. 2d 413 (2002). Under Rule 8, stating a claim upon which relief may be
granted requires that enough factual matter is pled to make relief plausible. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556, 561–63, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007) (aboragating Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99, 2 L. Ed. 2d 80
(1957)). Although detailed factual allegations are not required, a plaintiff’s obligation to
provide the “grounds” of his “entitlement” to relief requires more than labels,
conclusions, and a formulaic recitation of the cause of action’s elements. Id. at 561–63.
Thus, a complaint must state more than an unadorned, “the-defendant-unlawfullyharmed-me accusation.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir.
2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009)).
Additionally, unwarranted deductions of fact in a complaint are not admitted as
true for the purpose of testing the sufficiency of the allegations. Id. (citing Aldana v. Del
Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)). Accordingly,
the facts as pled must state a claim for relief that is plausible on the face of the
pleading. Id. (citing Iqbal, 129 S. Ct. at 1950).
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The Court will now consider each count in the Complaint based on the foregoing
standard of review in the order of Defendants’ arguments.
A. Whether Plaintiff has Adequately Plead a Claim in Count I – Violation of Civil
Rights Pursuant to 42 U.S.C. § 1983.
Defendants contend Plaintiff’s claims in Count I are vague and conclusory.
Defendants state that municipalities and political subdivisions may not be held liable
under theories of vicarious liability or respondeat superior. Further, Defendants contend
the Complaint does not meet the higher standard required under 42 U.S.C. § 1983.
Defendants contend Plaintiff alleges no specific facts and alleges no connection
between the alleged policies and conduct of Defendants.
Plaintiff responds by arguing the Complaint has more than mere conclusory
allegations related to this claim. Plaintiff believes he gave specific allegations of what
Defendants did and did not do in regards to the police policies. Plaintiff directs the Court
to paragraphs 4, 5, 12, and 13 of the Complaint.
Only two allegations are required to state a cause of action pursuant to 42 U.S.C.
§ 1983. First, that some person has deprived him of a federal right and second, that the
person who has deprived him of that right acted under color of state or territorial law.
Gomez v. Toledo, 446 U.S. 635, 640 (1980). A Sheriff has the final policymaking
authority for his agency and accordingly may render a municipality liable under Section
1983. Hemmings. v. Jenne, No. 10-61126-CIV, 2010 WL 4005333, at *2 (S.D. Fla. Oct.
12, 2010) (citing Hill v. Clinton, 74 F.3d 1150, 1152 (11th Cir. 1996); Lucas v.
O’Loughlin, 831 F.2d 232, 235 (11th Cir. 1987), cert denied, 485 U.S. 1035 (1988)).
However, a Sheriff cannot be held liable based on a respondeat superior theory. Hartley
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v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Instead, a “plaintiff must establish a
direct causal connection between a custom policy, practice, or procedure and the
alleged constitutional deprivation.” Hemmings, 2010 WL 4005333, at *2 (citing Bd. of
Cty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403-04 (1997); Monell v.
Department of Social Services of City of New York, 436 U.S. 658, 691-92 (1978)). A
plaintiff can do so by either identifying an official promulgated policy or by identifying an
unofficial custom or practice shown through the repeated acts of the final policymaker of
the entity. Grech v. Clayton County, Ga., 335 F.3d 1326, 1320-30 (11th Cir. 2003). An
isolated incident is not sufficient to establish a de facto policy. McDowell v. Brown, 392
F.3d 1283, 1290 (11th Cir. 2004) (citation omitted). Also, a plaintiff must establish that
through deliberate conduct, the municipality was the moving force behind the alleged
injury. Grech, 335 F.3d at 1330; Hemmings, 2010 WL 4005333, at *2. There is no
heightened pleading requirement for such claims. Randall v. Scott, 610 F.3d 701, 70910 (11th Cir. 2010) (“Pleadings for § 1983 cases involving defendants who are able to
assert qualified immunity as a defense shall now be held to comply with the standards
described in Iqbal. A district court considering a motion to dismiss shall begin by
identifying conclusory allegations that are not entitled to an assumption of truth-legal
conclusions must be supported by factual allegations. The district court should assume
on a case-by-case basis that well pleaded factual allegations are true, and then
determine whether they plausibly give rise to an entitlement to relief.”).
Here, Plaintiff has alleged Defendant, in his official capacity as Sherriff of Lee
County, had customs and de facto policies which were the moving force behind the
deprivation of his Constitutional due process rights. The Complaint states the Sheriff
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had customs and policies that entailed not supervising the deputies in the course of
criminal investigations and tolerating wrongful arrests of citizens. (Doc. #1, ¶¶12-13).
However, the Complaint does not describe any of Defendant Scott’s customs or
policies. The allegations regarding Defendants are such broad statements as “[t]he
SHERIFF’S custom and de facto policy of not supervising or regulating their officers’ in
the court of their criminal investigations was deliberately indifferent to JOHNSON’S
constitutional rights,” (doc. #1, ¶12), and “failure to properly investigate and have proper
probable cause, the SHERIFF knew or should have known that its custom and de facto
policy would eventually cause the constitutional rights of a citizen within its jurisdiction,
such as JOHNSON, to be violated by one of its deputies or detectives,” (Doc. #1, ¶12).
Plaintiff mentions no complaint or documentation of other instances when any of the
Defendants acted improperly in the past. Instead, Plaintiff states only general and
conclusory statements. Although a complaint “does not need detailed factual
allegations,” “mere labels and conclusions” do not meet Plaintiff’s obligation to provide
the grounds for his entitlement to relief. Twombly, 550 U.S. at 545. Therefore, the Court
will dismiss Count I against Defendant Scott for failure to state a claim upon which relief
can be granted.
B. Whether the Deputies are entitled to Qualified Immunity regarding Count I.
Defendants state Plaintiff does not allege he was arrested without probable
cause. Moreover, Defendants contend Plaintiff’s claim for wrongful arrest against the
Deputies cannot viably stand whether or not there was probable cause to arrest Plaintiff.
Further, Defendants state even if there was only arguable cause to arrest Plaintiff, then
the deputies are entitled to qualified immunity. In response, Plaintiff contends that he
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stated he was arrested without probable cause. Specifically, Plaintiff points to
paragraphs 1 of page 4 and page 14 of the Complaint. Thereafter, Plaintiff contends
that the claim is sufficient to survive a motion to dismiss.
“Probable cause to arrest exists when law enforcement officials have facts and
circumstances within their knowledge sufficient to warrant a reasonable belief that the
suspect had committed or was committing a crime. Probable cause determinations
traditionally have been guided by reviewing the totality of the circumstances.” United
States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992) (citing Beck v. Ohio, 379 U.S.
89 (1964); Illinois v. Gates, 462 U.S. 213 (1983)). “Probable cause itself is a doctrine of
reasonable probability and not certainty.” United States v. Magluta, 44 F.3d 1530, 1535
(11th Cir. 1995). Further, arguable cause exists when “under all of the facts and
circumstances, an officer reasonably could – not necessarily would – have believed that
probable cause was present.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir.
2004). So long as there was arguable probable cause, qualified immunity applies even if
actual cause did not exist. McDonald v. Gee, No. 8:05-cv-141-T-MAP, 2006 WL
1540277, at *2 (M.D. Fla. May 31, 2006).
Reviewing the Complaint and taking the facts in the light most favorable to
Plaintiff, it is not clear whether probable or arguable cause existed at the time of arrest.
If only an individual named “Adam” was identified as a suspect in a burglary without
anything more, then this is not sufficient to create probable or arguable cause. C.f.
United States v. Murphy, 17 Fed.Appx. 545, 547 (9th Cir. 2001) (affirming probable
cause existed when officers knew suspect’s full name, physical description, and more);
United States v. Taylor, 106 F.3d 801, 803 (8th Cir. 1997) (probable cause existed
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when informant provided suspect’s first name, address, phone number, and vehicle
information). This is especially true if Plaintiff was not identified in the photo lineup as
alleged in the Complaint. See e.g., White v. Brown, No. 08-606-ER, 2010 WL 1718205,
at *5 (E.D. Penn. Apr. 28, 2010) (Plaintiff’s arrest was grounded in the positive photo
identification by an eyewitness). Based on Defendants’ arguments, the motion to
dismiss on this issue is due to be denied.
C. Whether Plaintiff has Adequately Plead a Claim in Count II – False
Imprisonment against all Defendants.
Defendants contend Count II is vague and fails to state a cause of action. (Doc.
#10, at 9). Specifically, Defendants contend it is unclear whether Plaintiff is bringing a
claim pursuant to state or federal law. (Doc. #10, at 9; Doc. #1, ¶¶27, 29). Defendants
contend if Plaintiff is bringing the claim pursuant to state law, then Defendants are
entitled to sovereign immunity. (Doc. #10, at 9). Further, if Plaintiff is bringing the claim
pursuant to federal law, then Defendants contend they are entitled to qualified immunity
based on the existence of arguable or probable cause. (Doc. #10, at 9-10). In response,
Plaintiff avers that it has listed all of the necessary elements to allege a count for false
imprisonment pursuant to Florida Standard Jury Instructions. (Doc. #14, at 7). Plaintiff
makes no references to federal law.
As a preliminary matter, Florida’s sovereign immunity statute renders the liability
of the officers and their respective employers mutually exclusive. Fla. Stat. § 768.28.
With respect to this issue, either the officer, or the employer, or neither is liable to
plaintiff, but both cannot be liable to plaintiff. Perez v. School Bd. of Miami-Dade
County, Fla., 917 F.Supp.2d 1261, 1268 (S.D. Fla. 2013). A plaintiff must therefore
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plead his claims against each defendant separately. Id. Plaintiff may plead liability in the
alternative, but must do so in distinct counts. Thus, the Complaint is due for an
amendment and this count is due to be denied. Id.
Moreover, Florida Statute § 768.28 states when the state’s sovereign immunity
will be waived. A municipality can be liable for an intentional tort committed by an
employee, provided that the action at issue was within the scope of the employee’s
employment, and the conduct did not involve bad faith, malicious purpose, or a wanton
and willful disregard of human rights, safety, or property. Geidel v. City of Bradenton
Beach, 56 F. Supp. 2d 1359, 1365 (M.D. Fla. 1999). The Complaint does not allege
Defendants acted with bad faith, malicious purpose, or wanton and willful disregard.
Accordingly, sovereign immunity does not apply here.
In the event Plaintiff intended to bring this claim pursuant to federal law; qualified
immunity does not apply for the reasons stated previously. Nevertheless, for the
foregoing reasons, Count II is due to be dismissed.
D. Whether Defendants are entitled to Sovereign Immunity from Plaintiff’s Claim
in Count III - Negligence against all Defendants.
Defendants contend they are entitled to sovereign immunity in regards to
Plaintiff’s claim for negligence pursuant to Florida Statute § 768.28. Defendants assert
Plaintiff has brought this claim against them in their individual capacity without alleging
they were acting outside the scope of their employment, with bad faith, with malicious
purpose, or with a willful disregard of human rights, safety or property. (Doc. #10, at 1011). In response, Plaintiff contends there is a question as to whether Defendants Cole
and Unknown Sheriff’s Deputy(s) acted in bad faith, with malicious purpose, or
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negligence. (Doc. #14, at 4) Plaintiff contends this is an issue that will be resolved
during the discovery process. (Doc. #14, at 4). Plaintiff makes no argument with regard
to Defendant Scott.
To state a claim for negligence under Florida law, a plaintiff must alleged the
defendant owed the plaintiff a duty of care, the defendant breached that duty, and the
breach caused the plaintiff to suffer damages. Lewis v. City of St. Petersburg, 260 F.3d
1260, 1262 (11th Cir. 2001) (citing Paterson v. Deeb, 472 So.2d 1210, 1214
(Fla.Dist.Ct.App. 1985)). However, municipalities are generally immune from tort liability
but there are circumstances in which this immunity is waived. Id. (citing Fla. Const. Art.
X, § 13; Fla. Stat. § 768.28(1)).
Upon review of the Complaint, the Court finds Plaintiff has failed to even allege
that Defendants had a duty to Plaintiff. Accordingly, Plaintiff has failed to state a cause
upon which relief can be granted. Count III is due to be dismissed.
E. Whether Defendant Scott is entitled to Sovereign Immunity from Plaintiff’s
Claim in Count IV - Negligent Hiring and Training against Defendant Scott as
Sheriff.
Defendants contend a negligent hiring tort claim arising out of Florida law only
applies when the employee tortfeasor acts outside of the scope of employment. (Doc.
#10, at 12). Here, Plaintiff states all Defendants were acting within the scope of their
employment at all relevant times. (See Doc. #1, ¶¶2-4). Therefore, Defendants contend
Plaintiff cannot maintain a claim for negligent hiring. (Doc. #10, at 12). Also, Defendants
contend Plaintiff’s negligent training claim is barred because of sovereign immunity.
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(Doc. #10, at 13). Specifically, Defendants argue training is a discretionary activity and
therefore Defendant is entitled to sovereign immunity. (Doc. #10, at 12-13).
Plaintiff counters in a confusing manner by citing blocks of case law most of
which is not similar factually to the instant case. Plaintiff states creating a job position for
a law enforcement officer is discretionary but the “actual filing of the job is operational.”
(Doc. #14, at 5). Although citing to case law related to employees operating outside the
scope of their employment, Plaintiff suggests that negligent retention or supervision of
police officers, albeit not the exact claim here, is a proper case. (Doc. #14, at 5-6). Also,
Plaintiff states the Complaint is sufficient because it states Defendants had de facto
policies of not supervising or regulating officers as well as ignoring and tolerating
wrongful arrests of citizens.
A negligent hiring, retention, or supervision claim is allowed against an employer
for acts of an employee committed outside the scope and course of employment. Garcia
v. Duffy, 492 So.2d 435 (Fla. 2d DCA 1986); Santillana v. Florida State Court System,
No. 6:09-cv-2095-Orl-19KRS, 2010 WL 271433, at *11 (M.D. Fla. Jan. 15, 2010) (citing
Watson v. City of Hialeah, 552 So.2d 1146, 1148 (Fla. 3d DCA 1989); Garcia, 492
So.2d at 438). Here, Plaintiff has stated that at all times relevant to the actions arising in
this matter, Defendants acted within the scope of their employment. (See Doc. #1, ¶¶24). Accordingly, Plaintiff has failed to state a cause of action in which relief can be
granted in regards to the negligent hiring claim.
A successful negligent training claim demonstrates there was a failure to
exercise a duty of care causing an injury and establishes that the training program did
not involve a discretionary function. Wynn v. City of Lakeland, 727 F.Supp.2d 1309,
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1316 (M.D. Fla. 2010). Defendants are correct in that claims challenging only
discretionary acts are barred by sovereign immunity. Wynn, 727 F.Supp.2d at 1318.
Decisions “regarding how to train its officers and what subject matter to include in the
training is clearly an exercise of governmental discretion regarding fundamental
questions of policy and planning.” Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266
(11th Cir. 2001); Bussey-Morice v. Kennedy, No. 6:11-cv-970-Orl-36GJK, 2013 WL
71803, at *5 (M.D. Fla. Jan. 7, 2013). Here, Plaintiff contends that Sheriff Scott “failed to
establish and implement operating rules, procedures, and regulations in the Lee
County Sheriff Office to ensure the safety of residents and the protection of their civil
rights….” (Doc. #11, ¶38) (emphasis added). See generally, Mercado v. City of Orlando,
407 F.3d 1152, 1162 (11th Cir. 2005). The Court reads this language to challenge the
creation of rules within the training program, a discretionary act, and the implementation
of the training program, an operational act. Thus, to the extent Plaintiff’s claim regards
the implementation of the training program, sovereign immunity does not bar the claim.
To the extent Plaintiff’s claim regards the establishing and creating training rules, such a
claim is barred by sovereign immunity and therefore is due to be dismissed.
Accordingly, it is now
ORDERED:
Defendants' Motion to Dismiss (Doc. #10) is GRANTED in part and DENIED in
part. Count I is dismissed against Defendant Scott only. Count II is dismissed. Count
III is dismissed. Count IV is dismissed with regard to the negligent hiring claim and the
discretionary aspects of the negligent training claim. Plaintiff may file an amended
complaint on or before November 15, 2013.
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DONE and ORDERED in Fort Myers, Florida this 1st day of November, 2013.
Copies: All Parties of Record
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