Stepanovich et al v. City of Naples, Florida et al
OPINION AND ORDER granting in part and denying in part 92 Motion to dismiss, to Strike, and for More Definite Statement as set forth in the Opinion and Order. Plaintiffs shall file a Second Amended Complaint within 14 days and the deadline to file a Joint Pretrial Statement is extended to on or before October 10, 2016. Signed by Judge John E. Steele on 9/15/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MONIKA MOZOLICOVA, and IVANA
Case No: 2:14-cv-270-FtM-29MRM
CITY OF NAPLES, FLORIDA,
KYLE BRADSHAW, Officer, and
STACY WALKER, Officer,
OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motions to Dismiss, to Strike, and for a More Definite Statement
(Doc. #92) filed on September 3, 2015.
Plaintiffs filed an
September 17, 2015.
Since the filing of the First Amended Complaint (Doc. #84),
Weshler, Officer Ryan Harp, Captain John Barkley, and Sergeant
(Docs. ## 103, 126, 191.)
Plaintiff Milan Uzunovic’s claims
prejudice on June 24, 2015. (Doc. #76.)
dismissed claims against Master Sergeant Michael O’Reilly with
This leaves the City of Naples and the individual
defendant Officer Kyle Bradshaw, and no counterclaims.
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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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).
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,”
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
“Factual allegations that are merely
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal quotation marks and citations
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Plaintiffs set forth events starting in the early morning of
May 17, 2012, when defendant Officer Kyle Bradshaw of the City of
Naples Police Department responded to a noise complaint at the
fourth floor apartment of plaintiffs Aleksandar Stepanovich and
Taking all the allegations as set forth in the
First Amended Complaint (doc. #84) as true for purposes of the
motion to dismiss, Bradshaw asked the individuals on the deck of
the apartment to turn down the music, and demanded that Stepanovich
come downstairs to speak with him after the music was off and the
party was ended.
When Stepanovich declined to come downstairs,
complainant provided officers entrance into the common areas, and
directed them to the apartment.
The officers knocked on the door, and Mozolicova and another
individual complied and went downstairs with the officers to accept
a notice to appear on the noise ordinance violation.
and her friend returned to the apartment.
A few minutes later,
Bradshaw and another officer regained entrance to the building and
spoke to the noise complainant about providing a sworn statement,
and then once again sought out Mozolicova by knocking on the
When the friend opened the door, Bradshaw and
another officer grabbed the friend from inside the apartment,
pulled her into the hallway, and ripped her shirt in the process
of arresting her.
Bradshaw then kicked the apartment door open,
entered without consent or a warrant, and attempted to grab and
After Bradshaw and the other officer (Harp) each admitted
that they had no right to enter the apartment, and Bradshaw smashed
the cellular telephone of Stepanovich when he tried to film what
was happening, things escalated.
Bradshaw arrested Stepanovich
without resistance and took him into the hallway to be detained
with the friend.
Bradshaw re-entered the apartment to arrest
Mozolicova, and followed her into the dark bedroom of Mozolicova’s
young daughter and closed the door.
Bradshaw grabbed Mozolicova,
slammed her face into the windowsill causing her to bleed, and
forced her to the floor to execute an arrest.
Stepanovich, while still handcuffed, reentered the apartment to
check on his wife and saw her with O’Reilly holding her down.
he approached, Stepanovich was hit by a Taser and fell to the
O’Reilly used it a second time while Stepanovich was on
O’Reilly and Bradshaw then hit and kicked Stepanovich
while he was on the floor and still handcuffed.
Bradshaw took Mozolicova downstairs while she continued to bleed
from her face.
Walker and another office arrived and entered the apartment.
During the arrest of Mozolicova and Stepanovich, their guest
Uzunovic had locked himself in the bathroom in fear for his safety,
arrested him too.
Bradshaw then arrested Kavaja, an overnight
guest who had been staying in the young daughter’s room, and placed
her outside with the friend, and returned to the apartment to take
Stepanovich downstairs and into the rear of a police vehicle.
In the police car, Stepanovich had difficulty breathing and
requested medical assistance but to no avail.
attend to Mozolicova, and Harp refused to provide the name of
Bradshaw when asked how all this could happen.
transported to Naples Community Hospital, and the others were
transported to Naples Jail Center.
At the Naples Jail Center,
Stepanovich vomited several times and again requested medical
None was provided.
Each of the arrestees was charged with a third degree felony
for resisting arrest with violence, and various misdemeanors.
Bradshaw also claimed that he found an active INTERPOL warrant
seeking to arrest Stepanovich for a homicide in Serbia, and made
a sworn statement to that effect.
Bradshaw and others told news
agencies about the “valid and active warrant”, and that extradition
proceedings were ongoing.
Employees of the City of Naples went
further and disseminated the information to the Board of Directors
resided, and even provided a statement to the press confirming the
facts of an outstanding INTERPOL warrant and a pending extradition.
This was despite the fact that officers should have known that
Stepanovich was a United States citizen and could not be extradited
to Serbia, and that the validity of the warrant was unconfirmed.
Bradshaw’s sworn statement was later amended by hand to state that
the INTERPOL warrant was unconfirmed and could take up to 10 days
It was later verified that there was no warrant for
Stepanovich out of Serbia, and naplesnew.com published an article
stating that he was not actually an international fugitive.
charges against Stepanovich were dismissed by the Court.
prosecution declined to proceed against Mozolicova and Kavaja for
the misdemeanors, but did move forward with the third degree felony
for resisting arrest with violence, which were “second-in-time
crime[s] not based on the lawfulness of the original arrest.”
Mozolicova and Kavaja pled no contest to a lesser misdemeanor
charge to avoid potential deportation consequences.
As a result of the events, Stepanovich, Kavaja, and Mozolicova
were terminated from their employment, their landlord terminated
their lease, and their access to the private beach of Pinnacle was
On moving day, four officers appeared at the moving dock
as they were loading their furniture.
The facts set forth in
Allegations, are incorporated into each of the counts.
Counts I, II, III, V, VI, VII, XIV, and XIV are all claims
against Bradshaw only.
Count V is brought by Mozolicova only,
Count VIII is brought by Stepanovich and Mozolicova but not Kavaja,
and Count XIV is brought by Stepanovich only.
Counts VIII, Count
XI, and XIII are against both Bradshaw and the City of Naples. 2
Counts VIII and XIII were dismissed with prejudice.
Counts IX, IX 3, and XII are all claims against the City of Naples
Defendants seek to “dismiss Counts I and II”, however the
motion goes on to seek dismissal of the other counts.
arguments are all addressed below.
Count I is a claim for invasion of privacy based on the
initial entry into the home, Count II alleges false arrest upon
the second entry into the home, and Count III alleges excessive
force to effectuate the arrest of plaintiffs.
Count V 4 alleges a
right to bodily integrity on behalf of Mozolicova only, Count VI
asserts that evidence was fabricated by Bradshaw, Count VII alleges
malicious prosecution under federal and state law, all pursuant to
42 U.S.C. § 1983 and the Fourth and the Fourteenth Amendments of
the United States Constitution.
Count XIV alleges deliberate
This Count appears twice, and it is likely that the second
one should have been Count X. (Doc. #84, p. 34.)
Count IV was brought against Master Sergeant Michael
O’Reilly only, who was voluntarily dismissed with prejudice.
Therefore, this Count is deemed dismissed and warrants no further
indifference by Bradshaw for the failure to provide medical care
Count VIII alleges stigma plus defamation in violation of the
Fourteenth Amendment, and on September 1, 2016, the parties filed
a Notice of Stipulation to Dismissal (Doc. #199) of this count
Count XI against Bradshaw and the City of Naples
imprisonment, unlawful search, harmful or offensive contact, and
invasion of privacy under a theory of respondeat superior.
XIII alleges defamation against both Bradshaw and the City of
Naples, but by Notice of Stipulation to Dismissal (Doc. #199), it
was dismissed with prejudice.
City of Naples
Count IX 5 against the City of Naples alleges a failure to
adequately train and/or supervise based on an unconstitutional
Count XII against the City of Naples alleges negligent
hiring, supervision, and retention of Bradshaw and others.
As previously stated there are two Count IXs.
identified Count X.
There is no
Defendants move for dismissal of Counts I and II but also
present arguments as to the remaining counts, or in the alternative
for a more definite statement, and to strike certain impertinent
allegations. Defendants also contend that the entire First Amended
Complaint should be dismissed as a shotgun pleading.
The Eleventh Circuit Court of Appeals recently delineated the
“four rough types or categories of shotgun pleadings” that have
been filed since 1985:
The most common type — by a long shot — is a
complaint containing multiple counts where each count
adopts the allegations of all preceding counts, causing
each successive count to carry all that came before and
the last count to be a combination of the entire
complaint. The next most common type, at least as far
as our published opinions on the subject reflect, is a
complaint that does not commit the mortal sin of realleging all preceding counts but is guilty of the venial
sin of being replete with conclusory, vague, and
immaterial facts not obviously connected to any
particular cause of action. The third type of shotgun
pleading is one that commits the sin of not separating
into a different count each cause of action or claim for
relief. Fourth, and finally, there is the relatively
rare sin of asserting multiple claims against multiple
Defendants without specifying which of the Defendants
are responsible for which acts or omissions, or which of
the Defendants the claim is brought against.
allegations is overly broad, the extensive facts listed therein
are not vague or immaterial to all of the counts alleged.
even if plaintiffs committed the “rare sin” of asserting multiple
claims against multiple defendants, this is now a nullity since
most of the defendants have in fact been dismissed.
will be denied on this basis.
Defendants also seek to strike certain paragraphs pursuant to
Fed. R. Civ. P. 12(f) as irrelevant to the claims asserted, or
otherwise impertinent or scandalous.
For example, the allegations
plaintiffs move out of their apartment, and the allegation of
officers returning to the apartment to kick the dog.
The motion will be denied as the friend is part of
the timeline of general facts and therefore she is not irrelevant.
The motion will be granted with regard to the fact that Bradshaw
knocked the teeth out of the dog’s mouth while unlawfully in the
apartment, and the allegation that officers were sent to intimidate
plaintiffs while they moved out of their apartment.
have no relevance to any specific claim and clearly only serve to
constitutional claim of trespass as alleged by defendants, and are
McClish v. Nugent, 483 F.3d 1231, 1248 (11th Cir. 2007).
First Amended Complaint, plaintiffs allege that Bradshaw entered
into the apartment to effectuate the arrest, and admitted that his
entry was unlawful, and then removed an individual from within the
confines of the apartment while plaintiffs were within the zone of
privacy of the apartment with the door closed.
188, 191, 198.)
(Doc. #84, ¶¶ 187,
Count I is limited to the forcible removal of the
non-party friend only, and doesn’t address the forcible removal of
Mozolicova, a plaintiff in this case.
A threshold issue before an
individual can assert a Fourth Amendment challenge is “whether the
individual maintains a legitimate expectation of privacy.”
States v. McBean, 861 F.2d 1570, 1573 (11th Cir. 1988).
It is not
immediately apparent that the non-party friend of plaintiff could
assert an expectation of privacy in the apartment, however if this
fact is stricken 6, Count I still asserts a Fourth Amendment claim
for the unlawful entry and invasion of the apartment of plaintiffs.
The Court finds that Count I does state a plausible claim and will
deny the motion to dismiss.
apartment and approach of Officer O’Reilly constituted an act of
Paragraph 191 states:
“Both officers admit that they
unlawfully removed Miric, a guest and relative of STEPANOVICH,
MOZOLICOVA, and KAVAJA from the Apartment.” (Doc. #84, ¶ 191.)
resisting arrest, and therefore Stepanovich cannot now claim false
Taking the allegations as true, plaintiffs allege that
Bradshaw unlawfully entered into the apartment a second time to
arrest Mozolicova without a warrant, exigent circumstances, or
without probable cause, handcuffed and detained him, and carried
him outside of the apartment to turn Stepanovich over to the
custody of Harp.
Bradshaw then reentered the apartment a third
time, pursued Mozolicova through the house and into a bedroom to
restrain her on the ground and arrest her without probable cause.
Bradshaw smashed Kavaja’s cellular telephone,
arrested her without probable cause, and transported her outside.
(Doc. #84, ¶¶ 206-216.)
The later reentry of Stepanovich into the
apartment is not alleged in Count II.
Complaint alleges that the entry into the apartment to arrest
Stepanovich was unlawful.
To support a conviction for resisting
arrest without violence, “the State must prove: (1) the officer
was engaged in the lawful execution of a legal duty; and (2) the
thereof, constituted obstruction or resistance of that lawful
C.E.L. v. State, 24 So. 3d 1181, 1185–86 (Fla. 2009).
Taking all the allegations in Count II as true, Bradshaw was not
engaged in the lawful execution of his duty at the time, and there
obstructed or resisted the initial arrest.
Resisting arrest while
in custody and after the initial arrest is still resisting of an
arrest, but the underlying arrest must have been valid for a
defendant to be guilty of resisting without violence.
v. State, 636 So. 2d 144, 151 (Fla. 1st DCA 1994) (distinguishing
Grant v. State, 366 So. 2d 843 (Fla. 1st DCA 1979) and English v.
State, 293 So. 2d 105 (Fla. 1st DCA 1974) where the court found
that the offense of resisting arrest could not be supported if the
underlying arrest was invalid). 7
Plaintiff alleges false arrest
for the initial arrest, and therefore the motion will be denied as
to Count II.
Defendants argue that the excessive force claim of Kavaja is
due to be dismissed, and even an objectively reasonable officer
would find that the allegations fail to rise to anything more than
de minimis force.
Defendants do not seek to dismiss the claim as
to Mozolicova or Stepanovich.
The validity of the arrest will not serve as a defense for
resisting with violence. Id. (citing cases).
In a light most favorable to plaintiffs, they allege that
Bradshaw used more force than was necessary to effectuate the
arrest of each plaintiff.
Plaintiffs further allege that that the
amount of force was not objectively reasonable because there was
no probable cause to arrest plaintiffs who were within their home.
Plaintiffs allege that Bradshaw caused “substantial injury” to
Mozolicova and to Stepanovich.
(Doc. #84, ¶¶ 224-226, 227.)
Plaintiffs argue that the force used against Kavaja was excessive
based on the unlawful presence of the officers inside the home of
The parties agree that plaintiffs’ claims are reviewed under
an “objective reasonableness standard.”
Crenshaw v. Lister, 556
objective standard is from the “perspective of a reasonable officer
on the scene” and not “with the 20/20 vision of hindsight.”
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
considers “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade
arrest by flight.”
Graham, 490 U.S. at 396.
See also Mobley v.
Palm Beach Cty. Sheriff Dep’t, 783 F.3d 1347, 1353 (11th Cir.
In this case, there are no factual allegations of excessive
force against Kavaja.
Plaintiffs allege that Kavaja was startled
from a deep sleep, Bradshaw walked towards her and grabbed the
cellular telephone from her hand, Bradshaw “physically engaged
with” her to place her into custody, Bradshaw “disengaged with”
Kavaja and placed Kavaja outside the apartment on a bench, and
that Bradshaw used force to arrest her.
(Doc. #84, ¶¶ 49, 72-73,
“Under this Circuit's law . . . a claim that any
force in an illegal stop or arrest is excessive is subsumed in the
illegal stop or arrest claim and is not a discrete excessive force
Bashir v. Rockdale Cty., Ga., 445 F.3d 1323, 1331 (11th
Therefore, an excessive force claim based entirely on
the presence of an illegal arrest is not a discrete claim and fails
as a matter of law.
The motion will be granted as to Kavaja.
Count V 8
Defendants argue that Mozolicova’s bodily integrity requires
an element of sexual motivation, and does not rise to the level of
inadvertent as a result of Mozolicova resisting arrest.
First Amended Complaint, plaintiffs allege that Bradshaw pursued
Count IV was specific to O’Reilly and has been dismissed.
See supra pp. 7-8.
Mozolicova through the apartment to her daughter’s dark bedroom
and shut the door behind him.
Bradshaw then touched and grabbed
her thighs and other parts of her legs.
Mozolicova told Bradshaw
he was hurting her, and Bradshaw grabbed Mozolicova, turned her
face down onto the bed, and slammed her face into the windowsill
adjacent to the bed causing her to bleed.
While being handcuffed
on the floor of the bedroom, Mozolicova’s dress was up around her
midsection and her legs and underwear were exposed.
(Doc. #84, ¶¶
intentionally and unlawfully violated Mozolicova’s right to bodily
integrity by exposing her naked to the view of himself and others
without legal justification.
(Id., ¶ 255.)
Plaintiffs argue that
the claim is precisely the kind of conscience shocking conduct
that rises to the level of a substantive due process violation.
When asserting a substantive due process violation, plaintiff
conscience.” Daniel v. Hancock Cty. Sch. Dist., 626 F. App'x 825,
829 (11th Cir. 2015) (citations omitted).
“Force is conscience-
shocking under the Fourteenth Amendment only where it is used
maliciously and sadistically to cause harm.”
Id. at 830 (quoting
Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)).
this narrow standard, “even intentional wrongs seldom violate the
Due Process Clause.”
Id. (quoting Doe v. Braddy, 673 F.3d 1313,
1318 (11th Cir. 2012) (citations omitted)).
The Court finds, the
unintentional exposure of Mozolicova’s underwear – but not of her
genitalia - during the arrest, does not shock the conscience.
(discussing benchmark for shocking of the conscience).
to dismiss will be granted as to Count V.
Counts VI & VII
Defendants argue that there is no distinct constitutional
claim for malicious prosecution for fabrication of evidence and
therefore Count VI should be dismissed for failure to state a
claim, or as redundant.
Defendants further argue that there must
be an allegation that the fabricated evidence caused the judicial
proceeding against plaintiffs. The motion will be granted in part.
evidence to protect himself from disciplinary action.
fabricated a claim that Stepanovich struck him during the arrest,
and he fabricated multiple felonies and misdemeanors to retaliate
causing hardship on plaintiffs Mozolicova and Kavaja who faced
Stepanovich alleges that the fabricated charges also caused an
enormous monetary hardship as he was forced to defend himself
against false claims at great expense.
(Doc. #84, ¶¶ 264-269.)
Plaintiffs go on to allege that Bradshaw maliciously initiated
criminal proceedings based on the fabricated charges, and that the
termination of criminal proceedings against Stepanovich was a bona
fide termination in Stepanovich’s favor.
Two of the fabricated
charges against Mozolicova and Kavaja were also dismissed for lack
of probable cause, and there was no probable cause for the charges
Plaintiffs allege that one fabricated charge
of resisting arrest with violence remained, but that it was not
dependent on the lawfulness of the initial arrest.
(Id., ¶¶ 277-
Plaintiffs allege that Bradshaw was the legal cause of the
criminal proceedings, and that plaintiffs all suffered damages as
a result of the original proceeding.
The parties agree as to the elements of a claim for malicious
prosecution as set forth in Kingsland v. City of Miami, 382 F.3d
1220, 1234 (11th Cir. 2004).
(Doc. #92, p. 13; Doc. #101, p. 11.)
The combined allegations also make clear that Bradshaw fabricated
evidence, that the fabricated evidence was the legal cause of the
resulting judicial proceedings against plaintiffs, and there was
a bona fide termination of proceedings in favor of at least
Plaintiffs also allege the absence of probable cause
for the judicial proceedings, that Bradshaw acted with malice when
he fabricated evidence, and that plaintiffs suffered damages.
fabrication of evidence is itself a malicious prosecution claim
and that the counts are redundant.
See, e.g., Williams v. Miami-
Dade Police Dep't, 297 F. App'x 941, 947 (11th Cir. 2008) (finding
prosecutor’s reliance on false and misleading evidence provided
the “legal cause of the original prosecution”).
The Court will
grant the motion to dismiss to the extent that the counts will be
considered as one combined count of malicious prosecution, and not
separate counts of malicious prosecution.
Counts IX 9 and IX 10
policy or custom of the City of Naples that was the moving force
of the alleged constitutional violations, and that paragraph 323
is incorrect as a matter of law because City Councilman Finlay is
not the final policymaker for the City of Naples.
Plaintiffs allege that the City of Naples failed to adequately
and properly supervise and train its police officers, especially
as to the issue of noise ordinance violations and when it is
As previously noted, there are two Counts labeled as IX and
no Count X. See supra p. 7, n.3; p. 8, n.5.
Count VIII was voluntarily dismissed, see supra p. 7, n.2.
unlawful to enter a suspect’s home for a misdemeanor offense.
Plaintiffs allege that the unlawful policies, practices, and/or
customs include falsely charging persons to cover up wrongdoing by
its officers, encouraging unlawful detentions and arrests, and
failing to investigate, discipline, or terminate officers after
misconduct. Plaintiffs allege that the City of Naples demonstrated
(Doc. #84, ¶¶ 305-310, 314, 316.)
Plaintiffs go on
to allege that Weschler as the Chief of Police and Finlay as City
Councilman were both the final policymakers for the City of Naples.
Plaintiffs allege that the City of Naples failed to adequately
supervise and train its police officers as to the duty of care
owed to the accused, the duty to investigate claims before making
public statements, and to not defame the accused.
include the dissemination of false or unverified information about
active investigations to media outlets and others, and doing so
maliciously or negligently.
Plaintiffs allege that Weschler acted
with malice when he sent an email to the City Manager containing
defamatory statements that Stepanovich had a valid and active
warrant for the crime of homicide in Serbia, and ultimately Finlay
further disseminated the email to the group that managed the
apartment building occupied by Stepanovich and Mozolicova.
¶¶ 322-325, 326, 328, 330.)
“[T]the inadequacy of police training may serve as the basis
for § 1983 liability only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the
police come into contact.”
City of Canton, Ohio v. Harris, 489
stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.”
Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410
“Without notice that a course of training is deficient in
a particular respect, decisionmakers can hardly be said to have
deliberately chosen a training program that will cause violations
of constitutional rights.”
Connick v. Thompson, 563 U.S. 51, 62
See also Gold v. City of Miami, 151 F.3d 1346, 1351 (11th
Cir. 1998) (“without notice of a need to train or supervise in a
particular area, a municipality is not liable as a matter of law
for any failure to train and supervise”).
In this case, there are
no allegations of actual or constructive notice by the City, only
that there was a general failure to train based on the actions of
The conclusory allegation that the “action of” the city
of Naples was the moving force behind plaintiffs’ injuries is
(Doc. #84, ¶ 335.)
The motion to dismiss will be
granted as to both counts 11, without prejudice, for failure to
Defendants move for a more definite statement as to this
count, which is entitled “Wrongful Acts Under State Law” and
appears to encompass several claims within one count, and for the
dismissal altogether of the invasion of privacy claim.
respond that the count reasserts the constitutional claims as state
claims under a theory of respondeat superior.
Plaintiffs allege, in the alternative, that while acting in
imprisoned plaintiffs, unlawfully searched plaintiffs, committed
a battery, and invaded the privacy of plaintiffs.
allege that the City of Naples is responsible for the wrongful
acts of its employees under a doctrine of respondeat superior.
(Doc. #84, ¶¶ 340-342.)
It is well established that a local government may not be
sued under 42 U.S.C. § 1983 under a theory of vicarious liability,
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
The Court notes that the counts are essentially duplicative
as both raise the same issue of failure to train.
694 (1978), however it is unclear what state claims are relied
upon and a more definite statement is required.
The motion will
be granted without prejudice.
Defendants state that they are unable to determine what facts
apply to the claims, and therefore they are unable to respond.
This count is also brought “in the alternative”, against the City
of Naples only, alleging that it had a duty to screen, hire train,
supervise, investigate, discipline and terminate Bradshaw, and
that Bradshaw was negligent and breached his duty of care to
(Doc. #84, ¶¶ 345-346.)
The count appears to be
against the City of Naples, however the allegations are that
Bradshaw and others breached the duty of care.
This appears to be
another respondeat superior claim based on the negligence of
individual officers, however there are no facts set forth as to
how Bradshaw breached the duty of care.
The motion will be granted
Count XIV 12
Plaintiff Stepanovich seeks relief against Bradshaw alleging
that he intentionally violated Stepanovich’s right to receive
Count XIII was voluntarily dismissed, see supra p. 7, n.2.
medical care in response to serious medical injuries that were
apparent and complained about. 13
(Doc. #84, ¶ 362.)
requested assistance from the paramedics because he was having
Bradshaw told Stepanovich to “shut the fuck
up you mother fucker, you fucking foreign piece of shit”, and then
he kicked and pushed Stepanovich in the rear seat of the police
Stepanovich again requested medical assistance but was
not provided any prior to being taken to the police station.
at the Naples, Jail Center, Stepanovich vomited several times, and
again requested medical attention.
Stepanovich alleges that he
sustained injuries or damages as a result of defendants’ callous
indifference to his health and safety.
(Id., ¶¶ 120-122, 126,
Eighth Amendment prohibition on cruel and unusual punishment,
governs pretrial detainees.”
1326 (11th Cir. 2007).
Goebert v. Lee Cty., 510 F.3d 1312,
The standard is the same as that under
Eighth Amendment’s prohibition of cruel and unusual punishment.
Plaintiff must show a serious medical need, that Bradshaw
Most of the count actually alleges that Herman and Weschler
had notice and/or contributed to the wrongful acts of Bradshaw by
failing to adequately investigate, supervise, or by acquiescing to
or condoning the misconduct. (Doc. #84, ¶¶ 363-365.)
acted with deliberate indifference to his serious medical need,
and that the injury was caused by defendant’s wrongful conduct.
objective component is one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay
Id. (citation omitted).
There are no allegations of
a diagnosis or injury that could objectively be deemed a serious
As a result, the Court finds that the motion to
dismiss must be granted.
Bradshaw asserts that he is entitled to qualified immunity
with respect to a number of the claims without specifying which
claims. Bradshaw also argues that plaintiffs have not sufficiently
alleged a clearly established constitutional violation.
doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
The Court finds that plaintiffs have adequately
alleged violations of clearly established constitutional rights.
The motion will be denied.
Accordingly, it is now
Defendant’s Motions to Dismiss, to Strike, and for a
More Definite Statement (Doc. #92) are GRANTED IN PART AND DENIED
IN PART as follows:
1. Paragraphs 138, 182, and 183 are stricken pursuant to Fed.
R. Civ. P. 12(f);
2. Paragraph 191 is stricken and the motion is otherwise
denied as to Count I;
3. The motion is denied as to Count II;
4. The motion is granted as to Kavaja as to Count III and
5. The motion is granted as to Count V;
6. The motion is granted as to Counts VI and VII to the extent
that they will be construed as a single claim of malicious
7. The motion is granted as to Counts IX and X (labeled as
another Count IX);
8. The motion is granted as to Counts XI and XII;
9. The motion is denied as moot with regard to Counts IV,
VIII, and XIII; and
The motion is granted as to Count XIV.
The motion is otherwise denied.
Plaintiffs shall file a Second Amended Complaint within
FOURTEEN (14) DAYS of this Opinion and Order consistent with the
deadline to file a Joint Pretrial Statement is extended to on or
before October 10, 2016.
DONE AND ORDERED at Fort Myers, Florida, this
Counsel of record
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