Daley v. Scott et al
Filing
26
OPINION AND ORDER granting in part and denying in part 21 Defendants' Motion to Dismiss Plaintiff's Amended Complaint. Counts III, VI, XII, XIII and XIV of the 18 Amended Complaint are dismissed without prejudice. Plaintiff may file a Second Amended Complaint within 14 days of this Opinion and Order. The motion is otherwise denied. See Opinion and Order for details. Signed by Judge John E. Steele on 8/19/2015. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DENNIS DALEY, individually,
Plaintiff,
v.
Case No: 2:15-cv-269-FtM-29DNF
MIKE SCOTT, in his official
capacity as Sheriff of Lee
County,
Florida,
MIKE
DZUBIA,
in
his
official
capacity and individually,
and KENNETH SHERMAN, in his
official
capacity
and
individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of Defendants'
Motion to Dismiss Plaintiff’s Amended Complaint (Doc. #21) filed
on July 17, 2015.
7, 2015.
Plaintiff filed a Response (Doc. #25) on August
For the reasons set forth below, the motion is granted
in part and denied in part.
I.
Plaintiff Dennis Daley (Daley) has filed a fifteen-count
Amended Complaint (Doc. #18) against Lee County Sheriff Mike Scott
(Sheriff Scott) and Lee County Sheriff’s Office Deputies Mike
Dziuba
(Deputy
Dziuba)
and
Kenneth
Sherman
(Deputy
Sherman)
alleging that Defendants battered him, falsely imprisoned him,
maliciously prosecuted him, and violated his civil rights in
connection with Daley’s arrest in September 2014.
The underlying
facts, as set forth in the Amended Complaint, are as follows:
On September 21, 2014, Daley pulled into the driveway of his
home, followed by Deputy Dziuba and Deputy Sherman (the Deputies).
(Id. at ¶ 15.)
As Daley was walking to his front door, Deputy
Sherman grabbed him and forcibly slammed Daley’s head into the
door twice.
(Id. at ¶ 16.)
Deputy Sherman then placed Daley in
a chokehold and dragged Daley to the ground.
(Id. at ¶ 17.)
While
Daley was on the ground, Deputy Dziuba repeatedly shot him with a
Taser and Deputy Sherman repeatedly struck him in the face.
at ¶¶ 19-25.)
(Id.
According to Daley, the Deputies did not have
probable cause to arrest and/or detain him and at no time did Daley
resist arrest or otherwise attempt to fight back against the
Deputies.
(Id. at ¶¶ 18, 28-31.)
Daley was then handcuffed and
arrested.
In support of the arrest, Deputies Sherman and Dziuba
falsely swore that Daley had attacked them and attempted to grab
Deputy Sherman’s gunbelt.
(Id. at ¶¶ 28-31.)
charges against Daley were dismissed.
Ultimately, all
(Id. at ¶ 32.)
Based on these allegations, Daley brings causes of action
against Defendants for depriving him of his constitutional rights
in violation of 42 U.S.C. §§ 1983, 1985, & 1986 (Counts I-VII,
XIII-XIV); battery (Counts VII-IX); false imprisonment (Counts X-
2
XI);
negligent
(Count XV).
and XII-XIV.
supervision
(Count
XII),
and
civil
conspiracy
Defendants now move to dismiss Counts III, VI, VII,
Plaintiff concedes that Counts XIII and XIV are
subject to dismissal and contends that the remaining challenged
counts are 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,
556
U.S.
662,
678
(2009)
(citations omitted).
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
3
factual support are entitled to no assumption of truth,” Mamani v.
Berzaín, 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.
III.
A.
Counts II-III and V-VI: Section 1983 Claims Against
Deputies Sherman and Dziuba for Illegal Search & Seizure
and False Arrest
In Counts II and V, Daley alleges that Deputies Sherman and
Dziuba denied him his constitutional right to be free from unlawful
searches and seizures in violation of Section 1983.
In Counts III
and VI, Daley alleges that Deputies Sherman and Dziuba denied him
his constitutional right to be free from unlawful arrest in
violation of Section 1983.
Deputies Sherman and Dziuba argue that
Daley’s false arrest causes of action (Counts III and VI) are
4
duplicative of the unlawful search and seizure causes of action
(Counts II and V) and must be dismissed on that basis.
Under the Fourth Amendment, an individual has a right to be
free from “unreasonable searches and seizures.” U.S. Const. amend.
IV.
“[A]
Fourth
Amendment
seizure
occurs
when
there
is
a
governmental termination of freedom of movement through means
intentionally applied.”
West v. Davis, 767 F.3d 1063, 1071 (11th
Cir. 2014) (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).
“The Fourth Amendment applies to all seizures of the person,
including seizures that involve only a brief detention short of
traditional arrest.”
873, 878 (1975).
person.”
brief
United States v. Brignoni-Ponce, 422 U.S.
An arrest is “the quintessential seizure of the
California v. Hodari D., 499 U.S. 621, 624 (1991).
seizures
Constitution
short
unless
of
“there
traditional
exists
criminal activity may be afoot.”
arrest
reasonable
violate
the
suspicion
that
West, 767 F.3d at 1077 (11th
Cir. 2014) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
warrantless
the
Constitution and provides a basis for a section 1983 claim.”
Case
Eslinger,
555
without
F.3d
1317,
probable
1326
cause
“A
violates
v.
arrest
Even
(11th
Cir.
2009)
(quoting
Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004)).
The
Deputies
argue
that
Daley’s
unlawful
seizure
counts
should be dismissed as duplicative of his false arrest counts
5
because both categories assert a Fourth Amendment claim arising
from Daley’s encounter with the Deputies that ultimately resulted
in his arrest.
In his Response, Daley argues that the causes of
action are not duplicative because he intends to show that the
Deputies’ conduct constituted multiple unconstitutional seizures
of his person, one of which was his arrest.
However, that is not
how the causes of action are pled in the Amended Complaint.
Both
the false arrest counts and the unlawful seizure counts cite the
entire interaction between Daley and the Deputies as their factual
predicate, and the counts do not specify which actions constituted
an arrest and which constituted seizures short of arrest.
Thus,
as pled, Counts III and VI are duplicative of Counts II and V and
are dismissed without prejudice on that basis.
Daley is granted
leave to amend should he seek to plead the alleged unlawful arrest
separately from other alleged unlawful seizures.
B.
Count VII:
Section 1983 Claim Against Sheriff Scott
In Count VII, Daley alleges that Sheriff Scott violated
Section 1983 because the Deputies’ depravation of Daley’s Fourth
Amendment rights via the use of excessive force occurred as a
direct result of Sheriff Scott’s policies and practices.
Scott
argues
that
Count
VII
must
be
dismissed
Sheriff
because
it
impermissibly alleges several theories of recovery within a single
count.
In the alternative, Sheriff Scott seeks an order requiring
6
Daley to provide a more definite statement.
Daley responds that
Count VII is adequately pled.
A Sheriff sued in his official capacity may not be held liable
for a constitutional violations under a theory of respondeat
superior, but instead may only be held liable when his “official
policy” or custom causes the violation.
Servs.,
436
U.S.
658,
694
(1978).
Monell v. Dep’t of Soc.
Daley
can
establish
the
requisite “official policy” in one of two ways: (1) by identifying
an
officially
promulgated
policy,
or
(2)
by
identifying
an
unofficial custom or practice shown through the repeated acts of
the final policymaker of the entity.
Grech v. Clayton County, 335
F.3d 1326, 1320-30 (11th Cir. 2003).
Daley must identify the
policy or custom which caused the 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 Board of the County Comm’rs v.
Brown, 520 U.S. 397, 403 (1997); Gold v. City of Miami, 151 F.3d
1346, 1350 (11th Cir. 1998).
Here, Daley alleges in detail multiple instances of excessive
force committed by the Deputies (Doc. #18, ¶¶ 11-25), and those
allegations are incorporated by reference in Count VII.
¶ 136.)
(Id. at
Daley further alleges that Sheriff Scott’s customs and
7
policies “encourage his law enforcement officers to apply force in
such a way that it maximizes injury to citizens” and that it is
Sheriff Scott’s custom and policy “to ignore and fail to discipline
misconduct by his deputies when they use excessive force against
citizens.” (Id. at ¶ 140.) In support, Daley alleges that Sheriff
Scott gave a recent speech in which he advocated the use of
excessive force as a means to establish authority (Id. at ¶¶ 3437),
and
that
Sheriff
Scott
refused
to
investigate
multiple
instances of excessive force committed by his deputies. (Id. at ¶¶
38-46.)
According to Daley, these actions constitute a policy
whereby Sheriff Scott’s deputies are encouraged to use excessive
force and understand that they will not be investigated or punished
when they do so.
(Id.)
Finally, Daley alleges that the Deputies
acted in furtherance of the aforementioned policies during the
course of his arrest and, therefore, the policies were the driving
force behind the Deputies’ constitutional violations.
144-49.)
(Id. at ¶¶
Taking these allegations as true, the Court concludes
that Daley has adequately pled a Section 1983 claim against Sheriff
Scott violating Daley’s Fourth Amendment rights via an official
custom or policy. Accordingly, Defendants’ motion to dismiss Count
VII is denied.
8
C.
Count XII:
Scott
Negligent Supervision Claim Against Sheriff
In Count XII, Daley alleges that Sheriff Scott was negligent
in his supervision of the Deputies.
“Negligent supervision occurs
when during the course of employment, the employer becomes aware
or should have become aware of problems with an employee that
indicated his unfitness, and the employer fails to take further
actions such as investigation, discharge, or reassignment.”
Dep't
of Envtl. Prot. v. Hardy, 907 So. 2d 655, 660 (Fla. 5th DCA 2005).
“[T]he alleged acts by employees giving rise to liability for
negligent supervision must occur outside the employees' scope of
employment.”
Santillana v. Florida State Court Sys., No. 09-CV-
2095, 2010 WL 271433, at *11 (M.D. Fla. Jan. 15, 2010).
Sheriff Scott argues that Count XII must be dismissed because
Daley does not allege that the Deputies were acting outside the
scope of their employment.
The Court agrees.
In Count XII Daley
does not specifically allege whether or not the Deputies acted
within the scope of their employment.
Complaint,
Daley
alleges
that
the
Elsewhere in the Amended
Deputies
were
acting
“in
furtherance” of Sheriff’ Scott’s policies and practices. (Doc.
#18, ¶ 47.)
This suggests that Daley intends to allege that the
Deputies were acting within the scope of their employment.
To be
clear, pleading in the alternative is permissible even if the
alternative claims are inconsistent.
9
Fed. R. Civ. P. 8(d).
Thus,
Daley may plead that the Deputies were acting within the scope of
their employment for the purposes of his Section 1983 claim against
Sheriff Scott while also pleading that the Deputies were acting
outside the scope of their employment for the purposes of his
negligent supervision claim.
Id.
However, Daley does not allege
in Count XII that the Deputies were acting outside the scope of
their employment and his allegations elsewhere in the Amended
Complaint suggest the opposite.
without prejudice.
Therefore, Count XII is dismissed
Daley is granted leave to amend.
Accordingly, it is now
ORDERED:
Defendants' Motion to Dismiss Plaintiff’s Amended Complaint
(Doc. #21) is GRANTED IN PART AND DENIED IN PART.
Counts III, VI,
XII, XIII and XIV of the Amended Complaint (Doc. #18) are dismissed
without prejudice.
Plaintiff may file a Second Amended Complaint
within FOURTEEN (14) DAYS of this Opinion and Order.
The motion
is otherwise DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2015.
Copies: Counsel of record
10
19th
day of
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