Andrews et al v. Scott et al
Filing
26
OPINION and ORDER granting in part and denying in part 6 Defendants' Motion to Dismiss and Motion to Strike Plaintiffs' Complaint. See Opinion and Order for details. Plaintiffs are granted leave to file an Amended Complaint within fourteen days. Signed by Judge John E. Steele on 11/18/2014. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANITA ANDREWS
O’BRYANT,
and
KEITH
Plaintiffs,
v.
Case No: 2:14-cv-269-FtM-29CM
MIKE SCOTT, as Sheriff of
Lee County Sheriff’s Office,
in his official capacity,
DEPUTY
OFFICE
BRANDON
MARSHALL, individually and
in his official capacity,
SERGEANT
ROBERT
KIZZIRE,
individually
and
in
his
official capacity, UNKNOWN
LAW ENFORCEMENT OFFICERS, as
unnamed
Law
Enforcement
Personnel
of
Lee
County
Sheriff’s Office in their
official capacities, and LEE
COUNTY SHERIFF’S OFFICE,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of Defendants’,
Mike
Scott,
Deputy
Officer
Brandon
Marshall,
Sergeant
Robert
Kizzire, and Lee County Sheriff’s Office’s Motion to Dismiss and
Motion to Strike Plaintiffs' Complaint (Doc. #6) filed on July 16,
2014.
Plaintiff filed a Response (Doc. #17) on August 12, 2014.
For the reasons set forth below, the motion is granted in part and
denied in part, and Plaintiffs will be required to file an Amended
Complaint.
I.
Plaintiffs
Anita
Andrews
(Andrews)
and
Keith
O’Bryant
(O’Bryant) have filed an eleven-count Complaint (Doc. #1) against
Lee County Sheriff Mike Scott (Scott or Sheriff), Deputy Officer
Brandon Marshall (Marshall), Sergeant Robert Kizzire (Kizzire),
the Lee County Sheriff’s Office (LCSO), and unnamed LCSO officers,
concerning
Plaintiffs’
confinement
following
hyperbole,
the
basic
detention
and
subsequent
traffic
stop.
After
a
underlying
facts,
as
and
adjusting
set
arrest
for
forth
the
in
Complaint, are as follows:
At approximately 1:00 AM on November 7, 2012 O’Bryant and
Andrews were pulled over by LCSO Officer Marshall for driving a
truck with a broken headlight.
(Id. at ¶ 15.)
O’Bryant, who was
driving, complied with Marshall’s request that he provide his
license and identification.
(Id. at ¶ 18.)
Andrews, a passenger,
refused to identify herself.
(Id. at 24.)
At Marshall’s request,
additional
LCSO
officers,
including
Kizzire,
arrived
and
questioned O’Bryant and Andrews, despite the fact that Marshall
acknowledged
that
he
did
not
suspect
that
a
crime
had
been
committed. (Id. at ¶ 28.) Following questioning, Kizzire forcibly
removed Andrews from O’Bryant’s truck, handcuffed her, and placed
her in a police vehicle.
(Id. at ¶ 30.)
2
Subsequently, O’Bryant
was placed in the back of the police vehicle with Andrews and both
Plaintiffs were transported to the police station.
Marshall
told
Plaintiffs
that
they
were
being
In transit,
arrested
for
loitering and prowling because LCSO officers were taught to use
that charge when they cannot tell if a crime has been committed
but needed a legal justification to arrest someone.
(Id. at ¶
43.)
Once at the police station, Andrews advised various LCSO
officers that she suffered from a condition known as “thick blood,”
which
required
continuous
hydration
and
warm
temperatures.
Andrews explained that without access to water and an aspirin she
could lose consciousness.
medical
attention
repeatedly
losing
were
(Id. at ¶ 51.)
ignored,
consciousness,
hitting her head on the floor.
which
falling
Andrews’s requests for
resulted
to
the
(Id. at ¶¶ 52-76.)
in
Andrews
ground,
and
After spending
the night in jail, Andrews was transported to Lee County Mental
Health Hospital based on allegedly false reports from LCSO officers
concerning her mental state. (Id. at ¶ 77.) Andrews was evaluated
by a psychiatrist at the hospital who released her that evening.
(Id. at ¶¶ 78-81.)
Ultimately, all charges against Plaintiffs were dropped.
(Id. at ¶¶ 89-91.)
not
have
arguable
According to Plaintiffs, the LCSO officers did
probable
cause
to
arrest
them.
Instead,
Plaintiffs allege that they were detained, arrested and confined
3
on the trumped-up charge of loitering and prowling in order to
punish Andrews for refusing to identify herself.
Based on these
allegations, Plaintiffs bring multiple claims for deprivation of
their constitutional rights in violation of 42 U.S.C. § 1983
(Section 1983) (Counts I-VI, IX), as well as causes of action for
conspiracy
battery
(Count
(Count
VII);
X);
negligence
and
(Count
intentional
VIII);
infliction
assault
of
and
emotional
distress (IIED) (Count XI).
Defendants now move to dismiss and/or strike portions of the
Complaint,
arguing
(1)
that
the
claims
against
unnamed
LCSO
officers must be dismissed because fictitious-party pleading is
not permitted; (2) that the claims against LCSO officers in their
official
capacities
are
duplicative
of
the
official-capacity
claims against Scott and the LCSO; (3) that the LCSO must be
dismissed as a defendant because it is not a legal entity capable
of being sued; (4) that Plaintiffs’ request for punitive damages
against Scott must be dismissed because he is immune from such
damages when sued in his official capacity; (5) that Counts I and
II are duplicative claims for violations of Plaintiffs’ Fourth
Amendment right to be free from unreasonable searches and seizures;
(6) that Andrews’ claim for inadequate medical care must be
dismissed because, as a pre-trial detainee, she cannot bring such
a claim pursuant to the Eighth Amendment; (7) that Count VI must
be dismissed because there is no independent cause of action for
4
an unconstitutional custom, policy, or practice; (8) that Count
VII must be dismissed because it is barred by the intracorporate
conspiracy doctrine; (9) that Count VIII must be dismissed because
law
enforcement
officers
acting
in
their
official
capacities
cannot be held liable for negligence; and (10) that Count XI must
be dismissed because Plaintiffs have not alleged conduct rising to
the level of outrageousness necessary to state an IIED claim.
Plaintiffs concede that Count VI is subject to dismissal but
otherwise argue that each remaining count is adequately pled.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
accusation.”
an
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
(citations omitted).
5
556
U.S.
662,
678
(2009)
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare
recitals
of
the
elements
of
a
cause
of
action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with
a
“Factual allegations that are merely consistent
defendant’s
plausible.”
liability
fall
short
of
being
facially
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (internal quotation marks and citations omitted). Thus,
the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and
then
determine
whether
entitlement to relief.”
they
plausibly
give
rise
to
an
Iqbal, 556 U.S. at 679.
Additionally, under Fed. R. Civ. P. 12(f), “the Court may
strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Courts disfavor
motions to strike and deny them unless the allegations have “no
possible relationship to the controversy, may confuse the issues,
or otherwise prejudice a party.”
Reyher v. Trans World Airlines,
Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995).
6
III.
A.
Claims Against Unnamed LCSO Officers
Counts II and VI-XI allege causes of action against unnamed
LCSO officers in their official capacities (case caption) or in
their
individual
and
official
capacities
(Count
II
caption).
Defendants allege that these causes of action should be dismissed
because fictitious-party pleading is not permitted.
Suits against officers in their official capacities, whether
named or unnamed, “generally represent only another way of pleading
an action against an entity of which an officer is an agent.”
Kentucky v. Graham, 473 U.S. 159, 165 (1985).
Where the entity
may be sued, there is no need to allow an official-capacity action.
Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).
Here, both the Sheriff in his official capacity and the LCSO have
been named as defendants.
unnamed
officers
in
their
Therefore, the actions against the
official
capacities
are
clearly
redundant and will be dismissed without prejudice.
As to the unnamed officers in their personal capacity, the
rule is that “[a]s a general matter, fictitious-party pleading is
not permitted in federal court.”
734, 738 (11th Cir. 2010).
Richardson v. Johnson, 598 F.3d
Suing unnamed officers serves no
purpose in this case, and therefore the claims against the unnamed
officers in their individual capacities will be dismissed without
prejudice.
7
B.
Claims Against
Capacities
Marshall
and
Kizzire
in
Their
Official
Defendants argue that the Section 1983 causes of action
against Marshall and Kizzire in their official capacities should
be dismissed as duplicative of the claims against their employers,
Scott and the LCSO.
agrees.
For the reasons stated above, the Court
Therefore, to the extent they allege Section 1983 claims
against these LCSO officers in their official capacities, Counts
I-V are dismissed without prejudice as to Marshall and Kizzire.
C.
Claims Against The Sheriff’s Office
Counts I, III-VI, VIII, and XI bring claims against the LCSO.
Defendants argue that the LCSO should be dismissed as a defendant
because it is not a legal entity capable of being sued.
Instead,
Defendants assert that the claims against the Sheriff in his
official capacity are sufficient.
“Sheriff's departments and police departments are not usually
considered legal entities subject to suit.” Dean v. Barber, 951
F.2d 1210, 1214 (11th Cir. 1992).
Since an official-capacity suit
required notice to the entity, a question remained as to whether
the LCSO was the appropriate entity.
In 1999 the Eleventh Circuit
noted that it had not decided “whether the relevant entity in an
official-capacity suit against a sheriff in Florida is the County
or the Sheriff's Department (as a unit operating autonomously from
the County).”
Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir.
8
1999).
More recent Eleventh Circuit case law suggests that Lee
County, not the Sheriff’s Office, is the correct governmental
entity in this case.
See Cook v. Sheriff of Monroe County, 402
F.3d 1092, 1115 (11th Cir. 2005) (“When, as here, the defendant is
the county sheriff, the suit is effectively an action against the
governmental entity he represents—in this case, Monroe County.”);
Adcock v. Baca, 157 F. App'x 118, 119 (11th Cir. 2005) (“When, as
here, the defendant in a § 1983 civil rights action is the county
sheriff, the suit is effectively an action against the governmental
entity he represents-in this case, Polk County.”).
Recognizing
this line of cases, Plaintiffs note that “should this Court find
that the correct governmental party defendant was Lee County, then
the Plaintiffs seek leave to amend to drop LCSO and add Lee
County.”
The Court concludes that Lee County is the correct
governmental party and, therefore, grants Defendants’ motion to
dismiss and Plaintiffs leave to file an Amended Complaint.
D.
Claim for Punitive Damages Against Scott
Plaintiffs
Complaint.
against
seek
punitive
damages
for
each
count
in
the
Defendants argue that such relief is not available
Scott
because
governmental
officials
acting
in
official capacities are immune from punitive damages.
their
While
Plaintiffs are correct that punitive damages are available against
government
officials
found
personally
liable
for
conduct
“motivated by evil intent or involv[ing] callous or reckless
9
indifference to federally protected rights,” H.C. v. Jarrard, 786
F.2d 1080, 1089 (11th Cir. 1986), the law is clear that punitive
damages are not available against government officials sued in
their official capacities, Colvin v. McDougall, 62 F.3d 1316, 1319
(11th Cir. 1995) (sheriff sued in his official capacity is immune
from punitive damages).
As Scott is sued in his official capacity
only, Plaintiffs’ demands for punitive damages against Scott are
stricken.
E.
Counts
I
and
II
False
Seizure/Illegal Detention
Defendants
argue
that
duplicative of Count I.
Count
Arrest
II
should
and
be
Unreasonable
stricken
as
Count I alleges that Plaintiffs were
falsely arrested in violation of their constitutional right to be
free
of
any
unreasonable
seizures.
Count
II
alleges
that
Plaintiffs were improperly detained, arrested, and imprisoned in
violation of their rights under the Fourth Amendment to be free
from unreasonable searches and seizures.
The Court concludes that Counts I and II are at best confusing
and must be amended to add needed clarity to the causes of action
which Plaintiffs assert.
While Plaintiffs do not allege the
traffic stop violated their constitutional rights, they seem to
allege a cause or causes of action stemming from the undue length
of the traffic stop, their arrest at the scene, and their resulting
imprisonment.
The Court finds that although there may be valid
10
Fourth Amendment (and/or First Amendment) causes of action arising
from the events alleged, the counts need to be clearer as to what
conduct is alleged to violate what constitutional right.
While
multiple claims can be asserted in a single count, the Court finds
that doing so in this case causes more confusion than necessary.
The Court will dismiss Counts I and II, but grant Plaintiffs leave
to amend.
F.
Count III – Failure to Provide Medical Care/Cruel and Unusual
Punishment
Count III alleges a violation of Andrews’s constitutional
right to be free from cruel and unusual punishment while she was
incarcerated following her arrest.
Specifically, Andrews argues
that
indifferent
Defendants
were
deliberately
to
her
medical
needs, which caused her to suffer various injuries while in
custody.
According to Andrews, Defendants’ conduct violated the
Eighth Amendment’s prohibition of cruel and unusual treatment of
prisoners.
Defendants argue that Count III must be dismissed because the
Eighth Amendment applies only to detention following a conviction.
While Defendants are correct that “[i]n the case of a pre-trial
detainee . . . the Eighth Amendment prohibitions against cruel and
unusual punishment do not apply,” Cook, 402 F.3d at 1115, “[t]he
Eighth Amendment's prohibition on conditions of confinement that
amount to cruel and unusual punishment also applies to pre-trial
11
detainees through the Fourteenth Amendment's due process clause.”
Bennett v. Chitwood, 519 F. App'x 569, 573 (11th Cir. 2013).
Accordingly, Count III will be dismissed without prejudice in light
of an anticipated Amended Complaint correcting the constitutional
basis for the claim.
G.
Count VI – Custom,
Constitutional Rights
Policy,
or
Practice
of
Denying
Count VI alleges that Scott and the LCSO have a custom,
policy, and practice of inadequately training LCSO officers such
that
their
arrests
constitutional rights.
routinely
deprive
individuals
of
their
Defendants argue that Count VI must be
dismissed because, while an unconstitutional policy or practice is
an element of certain Section 1983 claims, such a policy does not
create an independent cause of action.
Plaintiffs concede the
point and agree to drop Count VI, acknowledging “that there is no
independent cause of action of an unconstitutional custom, policy
or practice.”
(Doc. #17, p. 21.)
Accordingly, Count VI is
dismissed.
H.
Count VII – Conspiracy to Deny Constitutional Rights
In Count VII, Andrews alleges that Marshall, Kizzire, and
other unnamed LCSO officers, acting in their official capacities,
conspired to deny Andrews her constitutional rights via an unlawful
arrest and detention.
Defendants argue that this claim is barred
by the intracorporate conspiracy doctrine.
12
Under the intracorporate conspiracy doctrine, “a corporation
cannot conspire with its employees, and its employees, when acting
in the scope of their employment, cannot conspire among themselves.
The doctrine applies to public entities such as the City and its
personnel.”
Denney v. City of Albany, 247 F.3d 1172, 1190 (11th
Cir.
(internal
2001)
quotation
marks
and
citations
omitted)
(intercorporate conspiracy doctrine barred a claim that two city
employees acting in their official capacities conspired to deprive
plaintiffs of their civil rights).
has
recognized
an
exception
However, the Eleventh Circuit
to
the
intracorporate
conspiracy doctrine in civil rights cases when the alleged conduct
violates the federal criminal code.
Grider v. City of Auburn, 618
F.3d 1240, 1263 (11th Cir. 2010).
Here, the only conspirators
identified by Andrews are employed by the LCSO, the acts are
alleged to have been within the scope of their employment, and
Andrews
does
not
criminal conduct.
allege
that
the
conspirators
committed
any
Accordingly, Count VII is dismissed without
prejudice.
I.
Count VIII – Negligence
Count VIII alleges negligence causes of action against the
LCSO, Scott, Kizzire, Marshall, and unnamed LCSO officers solely
in their official capacities.
Defendants argue that these causes
of action must be dismissed as to Kizzire, Marshall, and the
unnamed LCSO officers because state employees acting in their
13
official capacities are not liable for injuries or damages suffered
as a result of negligence.
The Court need not address Defendants’
argument because, for the reasons set forth above, all causes of
action against the unnamed LCSO officers are dismissed.
Likewise,
the causes of action against Kizzire, and Marshall in their
official capacities are dismissed as duplicative of the cause of
action against the LCSO.
Accordingly, Plaintiffs’ sole remaining
negligence cause of action is against the LCSO, which Defendants
have not moved to dismiss.
J.
Count XI – Intentional Infliction of Emotional Distress
Andrews brings IIED causes of action against Scott in his
official capacity and against Marshall, Kizzire, and unnamed LCSO
officers
individually
and
in
their
official
capacities.
Defendants argue that the IIED causes of action should be dismissed
because the conduct alleged by Andrews does not rise to the level
of outrageousness required to prevail on her claim.
Plaintiffs
respond that Count XI is adequately pled.
Under Florida law, to prevail on an IIED claim, a plaintiff
must
prove
“(1)
deliberate
or
reckless
infliction
of
mental
suffering; (2) outrageous conduct, i.e., behavior that goes beyond
all possible bounds of decency and is regarded as atrocious and
utterly intolerable in a civilized community; (3) the conduct
caused the emotional distress; and (4) the distress was severe.”
Rubio v. Lopez, 445 F. App'x 170, 175 (11th Cir. 2011).
14
“Whether
the conduct is outrageous enough to rise to the level required by
the tort may be decided as a question of law when the facts of a
case can under no conceivable interpretation support the tort . .
. .”
Williams v. City of Minneola, 575 So. 2d 683, 692 (Fla. 5th
DCA 1991); see also McIntyre v. Sheriff, Seminole Cnty. Sheriff's
Office, No. 13-CV-251, 2014 WL 5419996, at *9 (M.D. Fla. Oct. 23,
2014); Moore v. Eslinger, No. 13-CV-224, 2013 WL 1786642, at *5
(M.D. Fla. Apr. 26, 2013).
“Florida courts use a very high
standard in evaluating whether the facts alleged are sufficiently
outrageous, requiring that the conduct be beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”
Frias v. Demings, 823 F.
Supp. 2d 1279, 1288 (M.D. Fla. 2011) (quoting Metro. Life Ins. Co.
v. McCarson, 467 So.2d 277, 278–279 (Fla. 1985).
For the reasons set forth above, the causes of action against
Marshall and Kizzire in their official capacities are dismissed as
duplicative of the official capacity cause of action against Scott.
Likewise, as set forth above, all causes of action against the
unnamed LCSO officers are dismissed.
Additionally, the IIED cause
of action against Scott in his official capacity, which, as set
forth above, is a cause of action against the LCSO/Lee County, is
dismissed because “[a] government entity cannot be liable for the
willful and wanton actions of its employees.”
Tillman v. Orange
County, 519 F. App'x 632, 636 (11th Cir. 2013) (dismissing IIED
15
claim against sheriff’s office premised upon alleged misconduct by
its officers).
Therefore, all that remains are Andrew’s IIED claims against
Marshall and Kizzire in their individual capacities.
Given the
anticipated Amended Complaint, the Court need not decide at his
time whether Marshall’s and Kizzire’s alleged misconduct rises to
the
level
of
intentional
outrageousness
infliction
of
necessary
emotional
to
state
distress.
a
claim
for
Accordingly,
Defendants’ motion is granted as to all IIED causes of action with
the exception of the claims against Marshall and Kizzire in their
individual capacities.
Accordingly, it is now
ORDERED:
1.
Defendants’
Motion
to
Dismiss
and
Motion
to
Strike
Plaintiffs' Complaint (Doc. #6) is GRANTED IN PART and DENIED IN
PART.
2.
Sheriff’s
All
causes
Office
of
action
officers
in
against
their
unnamed
individual
Lee
County
capacities
are
DISMISSED without prejudice.
3.
All causes of action against Deputy Officer Brandon
Marshall,
Sergeant
Sheriff’s
Office
Robert
officers
Kizzire,
and
in
official
their
unnamed
Lee
County
capacities
are
DISMISSED without prejudice as duplicative of the causes of action
against the Lee County Sheriff’s Office.
16
4.
All causes of action against the Lee County Sheriff’s
Office are DISMISSED without prejudice and Plaintiffs are granted
leave to substitute Lee County as a Defendant.
5.
All demands for punitive damages against Lee County
Sheriff Mike Scott are STRICKEN.
6.
Counts I-III and VI-VII are DISMISSED without prejudice.
7.
Count
XI
is
DISMISSED
without
prejudice
with
the
exception of the causes of action against Deputy Officer Brandon
Marshall
and
Sergeant
Robert
Kizzire
in
their
to
file
individual
capacities.
8.
The motion is otherwise DENIED.
9.
Plaintiffs
are
granted
leave
an
Amended
Complaint within FOURTEEN (14) DAYS of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2014.
Copies: Counsel of record
17
18th
day of
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