Andrews v. Scott et al
Filing
53
ORDER denying 15 Defendants Deputy Brandon Marshall and Sergeant Robert Kizzire's Motion to Dismiss. Defendants Sheriff Mike Scott and Deputies John and Mary Does' Motion to Dismiss 16 is GRANTED in part and DENIED in part. Count XVII is DISMISSED without prejudice to filing an Amended Complaint within FOURTEEN (14) DAYS of this Opinion and Order. Counts XIV, XV, and XVIII are dismissed with prejudice. Defendant Corizon, LLC's Motion to Dismiss 32 is GRANTED. Count XVI is DISMISSED without prejudice to filing an Amended Complaint within FOURTEEN (14) DAYS of this Opinion and Order. Signed by Judge Sheri Polster Chappell on 9/1/2017. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANITA ANDREWS,
Plaintiff,
v.
Case No: 2:16-cv-814-FtM-99MRM
MIKE SCOTT, DEPUTY BRANDON
MARSHALL, SERGEANT ROBERT
KIZZIRE, DEPUTIES JOHN AND
MARY DOES and JANE AND JOHN
DOES,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendants Deputy Brandon Marshall
(“Deputy Marshall”) and Sergeant Robert Kizzire's (“Sergeant Kizzire”) Motion to
Dismiss (Doc. 15) filed on February 28, 2017; Defendants Sheriff Mike Scott (“Sheriff
Scott”) and Deputies John and Mary Does’ (“Deputy Does”) Motion to Dismiss (Doc. 16)
filed on February 28, 2017; and Defendant Corizon, LLC’s (“Corizon”) Motion to Dismiss
(Doc. 32) filed on March 20, 2017. Plaintiff Anita Andrews (“Plaintiff”) has filed
Responses in Opposition to the respective Motions to Dismiss. (Doc. 36; Doc. 37; Doc.
44).
1
Deputy Marshall, Sergeant Kizzire, and Corizon have filed Reply-Briefs to
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Plaintiff’s Responses in Opposition. (Doc. 43; Doc. 48). These Motions are now ripe for
the Court’s review.
This is a civil rights action stemming from a traffic stop that took place in the early
morning hours of November 7, 2012, resulting in the arrest of Plaintiff. On November 4,
2016, Plaintiff filed an eighteen-count Complaint2 (Doc. 1), alleging both common law
and 42 U.S.C. § 1983 claims against Defendants for false arrest/imprisonment, failure to
supervise, assault/battery, intentional infliction of emotional distress, retaliation, and
excessive force. Deputy Marshall and Sergeant Kizzire are sued in their individual and
official capacities, and Sherriff Scott is sued in his official capacity only. Defendants
now move to dismiss all counts for failure to state a claim, and Sheriff Scott moves to
strike the prayer for punitive damages against him.
BACKGROUND
The facts as set forth in Plaintiff’s Complaint, which the Court accepts as true,
are as follows: On the late evening of November 6, 2012, until the early morning of
November 7, 2012, Plaintiff was a passenger in a pick-up truck driven by her friend,
Keith O’Bryant (“O’Bryant”); undertaking post-election clean up by removing political
signs from the public roadways and intersections. As a result, the bed of O’Bryant’s
pick-up truck was filled with campaign signs. Around 1:00 a.m., Deputy Marshall pulled
O’Bryant’s truck over for a broken headlight. O’Bryant complied with Deputy Marshall’s
request to turn over his license and registration and informed the deputy that he was
aware of the faulty headlight but had not had the opportunity to fix it. Plaintiff alleges
2
Beginning at Count 7, Plaintiff misnumbers the Counts, off by one number. For
purposes of this Opinion and Order, the Court has renumbered the Counts to avoid any
error or confusion.
2
Deputy Marshall then began interrogating the two. Refusing to answer some of the
questions, Plaintiff informed Deputy Marshall of her privacy guarantees under the
Constitution.
Deputy Marshall then asked Plaintiff to provide identification.
She
asserted that she had none and was not legally required to have any as a passenger.
Again, Deputy Marshall insisted that she provide identification, but Plaintiff asserted her
right to refuse to disclose her name.
Marshall admitted to Plaintiff and O’Bryant that he did not suspect either of
committing a crime and even commented that the couples’ appearance discounted the
possibility that they did anything wrong.
Plaintiff alleges that Deputy Marshall had
already obtained her name from O’Bryant and ran an identification check on her.
Despite this, Plaintiff alleges that Deputy Marshall and several of his colleagues
informed her that they were calling in “the big guns,” and summoned additional officers
to the scene. (Doc. 1 at ¶ 41). Deputy Marshall’s supervisor, Sergeant Kizzire, was
called to the scene.
After informing other officers that there were no guns or drugs in the vehicle,
Plaintiff alleges that Sergeant Kizzire announced, “I’m tired of this” and proceeded to
arrest her. (Doc. 1 at ¶ 42). In doing so, Sergeant Kizzire aggressively pulled her out of
the vehicle, forcefully turned her around, and handcuffed her. Plaintiff was then patted
down all over, including her breasts and crotch area, and directed to enter the back of
the police vehicle. Deputy Marshall then asked, “So, Anita, are you going to tell us your
name?” and told her that he was seizing her to “teach her a lesson.” (Id. at ¶ 43).
Deputy Marshall, Sergeant Kizzire, and the other officers at the scene huddled together
to discuss how to arrest her. Plaintiff was read her Miranda rights, asked additional
3
questions about the campaign signs, and taken to the police station along with
O’Bryant. Again, Plaintiff claims she heard one of the officers state, “we need to teach
her a lesson.” (Id. at ¶ 45).
During the car ride to the police station, Deputy Marshall explained to Plaintiff
that he was arresting her for loitering and prowling. Deputy Marshall went so far as to
explain that loitering and prowling was a term that officers are taught to use when they
cannot tell if a crime has been committed and need a legal justification to bring
someone in. When asked what she was specifically being brought in for, one of the
officers stated “I don’t know, but we’re going to find something really good for her.”
(Doc. 1 at ¶ 46).
Upon arrival at the police station, Plaintiff alleges her right arm was swollen to
twice its normal size due to the rough handling of the officers. Plaintiff was told that she
would not be able to leave until she identified herself before being placed in isolation.
Plaintiff was disrobed, left barefoot with inadequate clothing in a freezing cold room, and
without aid for her swollen arm and shoulder. She then advised her jailors that she
suffers from “thick blood,” requiring continuing hydration and warm temperatures.
Plaintiff warned officers that without salt water and an aspirin, her blood could coagulate
or she could lose consciousness. She also warned that excessively cold temperatures
in the jail could send her into shock and that she had not had any water for hours. None
of her requests for aid were met. Instead, the officers informed her that receipt of
medical assistance was conditioned on her stating her name. During the numerous
instances where officers lobbied Andrews to identify herself, they called her by her full
name.
4
When Plaintiff met with a nurse, she was refused aid. Plaintiff asserts the
grounds for this denial was premised on her failure to surrender her name. At the front
booking desk, Plaintiff was again told she could leave the police station if she provided
her name. Eventually, Plaintiff was admitted to the county jail. The officer who handed
her over stated, “She is crazy. You can do anything you want to with her.” (Doc. 1 at ¶
56).
After being booked and entering the jail, Andrews was told to disrobe. Plaintiff
lost consciousness while putting on her prison wear and was told to remain on the floor
until being placed in a wheelchair. Again, she requested water and aspirin but received
none. Plaintiff was then taken from her jail cell and transported to the psych ward. She
was pulled out of the van and told to stand up. At this point, she lost consciousness and
hit her head on the concrete floor. Plaintiff remembers being pulled up by her hair and
asked multiple questions. Multiple officers taunted her with the following statements:
“Sit up,” “Tell us your name or we will drop you again,” “Tell us your name, or we will
spray you,” and “Tell us your name and we will give you water.” (Doc. 1 at ¶ 61). At this
point, Plaintiff gave in and told her name, resulting in a series of congratulatory remarks
amongst the officers and jailors for finally getting her to say it.
Plaintiff was then taken to a cell “to teach her a lesson.” (Doc. 1 at ¶ 62). There,
Plaintiff lost consciousness and awoke to find herself surprised that she was in the
psych ward. Plaintiff discovered she would not receive medical attention for at least
three days. While there, Plaintiff complained of terrible headaches. Although she
continued her requests for medical attention, Plaintiff received none.
Plaintiff
additionally requested to make a phone call or speak with a judge, which were denied.
5
Plaintiff spent the night in county jail prior to being “Baker Acted”3 to the Lee
County Mental Health Hospital. Plaintiff was scheduled to spend the next seventy-two
(72) hours under mandatory observation.
While there, Plaintiff observed personnel
disagreeing over the decision to send her there because she was not suicidal and had
not threatened to kill herself or others. Later that evening, Plaintiff was released after
speaking with a psychiatrist. The psychiatrist concluded that “She doesn’t belong in
here; she can go.” (Doc. 1 at ¶ 68). All charges against Plaintiff were dropped.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), "a [c]omplaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on
its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. at 678. The issue in resolving such a motion is
not whether the non-movant will ultimately prevail, but whether the non-movant is
entitled to offer evidence to support his claims. See id. at 678-79.
"Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
The Florida Mental Health Act of 1971 is commonly known as the “Baker Act.” Fla.
Stat. § 394.451 et seq. The Baker Act allows the voluntary and involuntary
institutionalization and examination of an individual suffering from a mental illness and
who is considered a harm to self, a harm to others or is self-neglectful. Id. at §§
394.4625–467.
3
6
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions
couched as factual allegations are not sufficient, nor are unwarranted inferences,
unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555.
Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading
requirements that also must be satisfied. Under this rule, "a pleading 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). "[T]he pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more than an unadorned, the-defendantunlawfully-harmed-me-accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 555). Labels, conclusions, and formulaic recitations of the elements of a cause of
action are not sufficient.
See id. at 678-79.
Mere naked assertions are also
inadequate. See id.
DISCUSSION
A. Deputy Marshall and Sergeant Kizzire’s Motion to Dismiss (Doc. 15)
1. Counts I, II - 42 U.S.C. § 1983 False Arrest/Imprisonment
Counts I and II assert claims under 42 U.S.C. § 1983, alleging that Deputy
Marshall and Sergeant Kizzire violated plaintiff’s Fourth Amendment rights by arresting
and detaining her without probable cause that she had committed the state law offense
of loitering and prowling. She contends that her ongoing detention was “intentional,
unreasonable,” and “done to intimidate [her] with a show of force and to be vindictive.”
(Doc. 1 at ¶¶ 88, 99). Plaintiff further claims that the stop was without probable cause
7
and that the stated charges of loitering and prowling were a false pretext under which to
arrest her. (Id. at ¶¶ 92, 103).
Deputy Marshall and Sergeant Kizzire seek dismissal of Counts I and II because
there was probable cause to arrest or detain Plaintiff, arguing that Plaintiff’s presence in
an “unfamiliar residential neighborhood at 1 AM in a pickup truck filled with an
assortment of campaign signs taken from nearby properties” amounted to probable
cause. (Doc. 15 at 9). Alternatively, Deputy Marshall and Sergeant Kizzire assert that
at the very least they are entitled to qualified immunity because there was arguable
probable cause to arrest and detain Plaintiff.
“Section 1983 creates a private cause of action for deprivations of federal rights
by persons acting under color of state law.” Laster v. City of Tampa Police Dept., 575
F. App’x 869, 872 (11th Cir. 2014) (citing 42 U.S.C. § 1983). An arrest qualifies as a
“seizure” of a person under the Fourth Amendment. Ashcroft v. Al-Kidd, 563 U.S. 731,
735 (2011); California v. Hodari D., 499 U.S. 621, 624 (1991). So does the detention of
a person. Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017). The reasonableness of an
arrest and detention under the Fourth Amendment “turns on the presence or absence of
probable cause” for the arrest/detention. Case v. Eslinger, 555 F.3d 1317, 1326–27
(11th Cir. 2009) (citing Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir.
2007)). “Probable cause to arrest exists when the facts and circumstances within an
officer’s knowledge are sufficient to warrant a reasonable belief that the suspect had
committed or was committing a crime.” Feliciano v. City of Miami Beach, 707 F.3d
1244, 1251 (11th Cir. 2013) (citation omitted). “Whether probable cause exists depends
8
upon the reasonable conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
An arrest or detention without probable cause violates the Fourth Amendment,
Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997), and a cause of action for
damages may be asserted under § 1983. Brown v. City of Huntsville, Ala., 608 F.3d
724, 734 n.15 (11th Cir. 2010). Plaintiff has the burden of establishing the absence of
probable cause to succeed on a § 1983 claim. Rankin v. Evans, 133 F.3d 1425, 1436
(11th Cir. 1998). To do so, plaintiff must show that no reasonably objective police
officer would have perceived there to be probable cause based upon the totality of the
circumstances. Coffin v. Brandau, 642 F.3d 999, 1006 (11th Cir. 2011). The existence
of probable cause “constitutes an absolute bar” to a § 1983 claim for false arrest.
Rankin, 133 F.3d at 1435.
In deciding whether probable cause exists, an officer is “not required to sift
through conflicting evidence or resolve issues of credibility, so long as the totality of the
circumstances present a sufficient basis for believing that an offense has been
committed. Nor does probable cause require certainty on the part of the police.” Dahl
v. Holley, 312 F.3d 1228, 1234 (11th Cir. 2002) (citations omitted). The fact that the
arrestee was never prosecuted, or the charges were dropped, or the arrestee was
acquitted of any offense stemming from the arrest, does not impact the existence of
probable cause. Knight v. Jacobson, 300 F.3d 1272, 1275 (11th Cir. 2002); Lee v.
Ferraro, 284 F.3d 1188, 1195-96 (11th Cir. 2002); Marx v. Gumbinner, 905 F.2d 1503,
1507 (11th Cir. 1990).
9
An officer who makes an arrest or detention without actual probable cause is
nonetheless entitled to qualified immunity in a § 1983 action if there was “arguable
probable cause” for the arrest. When qualified immunity is raised as a defense to false
arrest claims, courts inquire whether arguable probable cause existed for the arrest.
Davis v. Williams, 451 F.3d 759, 762 (11th Cir. 2006). “The standard for arguable
probable cause is whether a reasonable officer in the same circumstances and
possessing the same knowledge as the officer in question could have reasonably
believed that probable cause existed in the light of well-established law.” Gold v. City of
Miami, 121 F.3d 1442, 1445 (11th Cir. 1997) (quotations omitted). Qualified immunity
allows ample room for mistaken judgments to prevent officials from erring on the side of
caution due to a fear of litigation. Id. at 1446 (quotations omitted). A court looks to the
totality of the circumstances to determine whether arguable probable cause exists.
Davis, 451 F.3d at 763.
Here, Plaintiff was arrested for loitering and prowling under Section 856.201,
which encompasses the following:
(1) the defendant loitered or prowled in a place, at a time, or in a manner
not usual for law-abiding individuals;
(2) such loitering and prowling were under circumstances that warranted a
justifiable and reasonable alarm or immediate concern for the safety of
persons or property in the vicinity.
State v. Ecker, 311 So. 2d 104, 106 (Fla. 1975). Here, accepting the facts of the
Complaint as true, Deputy Marshall pulled over the pickup truck for a broken headlight
around 1:00 a.m. (Doc. 1 at ¶ 33). He noted that both Plaintiff and O’Bryant were
unfamiliar with the residential neighborhood in which they were stopped. (Id. at ¶ 36).
While executing the traffic stop, Deputy Marshall observed multiple campaign signs in
10
the bed of the truck and was informed by Plaintiff and O’Bryant that they were cleaning
up following the election. (Id. at ¶ 32). Deputy Marshall admitted that he did not suspect
either Andrews or O’Bryant of committing a crime and even commented that it did not
look like they were doing anything wrong. Despite this, the officers continued to detain
the couple and question them, ultimately arresting Plaintiff and telling her that they
charge someone with loitering and prowling when they do not know what else to charge
them with. Based upon these facts asserted, the Court cannot determinate as a matter
of law that probable cause existed for the arrest based on the totality of the
circumstances, which will continue to be borne out through the discovery process.
Plaintiff has alleged enough facts to support a constitutional violation that survives a
motion to dismiss.
Alternatively, Deputy Marshall and Sergeant Kizzire argue that they are entitled
to qualified immunity on any false arrest claims because arguable probable cause
exists. (Doc. 15 at 11-13). Again, looking to the totality of the circumstances, which at
the motion to dismiss stage encompasses the well-pled allegations in Plaintiff’s
Complaint, the Court denies the motion to dismiss Counts I and II on qualified immunity
grounds.
2. Count IV - Assault & Battery; Count XII - 42 U.S.C. § 1983 Excessive
Force
Under Counts IV and XII, Plaintiff asserts a state law claim for assault and
battery against Sergeant Kizzire for use of excessive force when arresting her. Plaintiff
contends he “inflicted a harmful and offensive touching by … aggressively pulling [her]
out of the vehicle, forcefully turning her around, and cuffing her hands behind her back.”
(Doc. 1 at ¶ 122). Plaintiff adds that the touching was intentional and done for the
11
purpose of humiliating her. (Doc. 1 at ¶ 123). In response, Sergeant Kizzire avers the
force was proportional to that used in a custodial arrest.
Pursuant to Florida law, police officers are entitled to a presumption of good faith
in regard to the use of force applied during a lawful arrest, and officers are only liable for
damage where the force used is “clearly excessive.” Davis v. Williams, 451 F.3d at 768
(quoting City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996)). “If excessive
force is used in an arrest, the ordinarily protected use of force by a police officer is
transformed into a battery.” Sanders, 672 So. 2d at 47. “A battery claim for excessive
force is analyzed by focusing upon whether the amount of force used was reasonable
under the circumstances. Law enforcement officers are provided a complete defense to
an excessive use of force claim where an officer ‘reasonably believes [the force] to be
necessary to defend himself or another from bodily harm while making the arrest.’” Id.
(quoting § 776.05(1), Fla. Stat.).
Qualified immunity may be granted to an officer using force during an arrest “if an
objectively reasonable officer in the same situation could have believed the use of force
was not excessive.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 738 (11th Cir.
2010) (citations omitted). Whether the use of such force is reasonable is then
objectively evaluated “from the perspective of a reasonable officer on the scene, rather
than with 20/20 hindsight.”
Graham v. Connor, 490 U.S. 386, 396 (1989). The
subjective officer’s belief is not considered. Hadley v. Gutierrez, 526 F.3d 1324, 1330
(11th Cir. 2008).
Here, Plaintiff was pulled out of the car, pushed against it, handcuffed, and
patted down. Here, accepting Plaintiff’s allegations as true, the Court finds that Plaintiff
12
has adequately pled an excessive amount of force in making the arrest and in her
detention. Whether the amount of force used was reasonable under the circumstances
is not an issue the Court looks at at the motion to dismiss stage.
3. Counts VI & VII - Intentional Infliction of Emotional Distress
Plaintiff brings state law claims for intentional infliction of emotional distress
against Deputy Marshall and Sergeant Kizzire. She maintains their conduct was
“extreme and outrageous,” “beyond all bounds of decency,” and “odious and utterly
intolerable in a civilized community.” (Doc. 1 at ¶ 135). As a result, Plaintiff contends
such conduct has caused her physical harm and severe emotional distress. (Id. at ¶
136). In response, both officers maintain that their conduct does not rise to the level of
actionable outrageous conduct under Florida law. (Doc. 15 at 14).
To sufficiently allege intentional infliction of emotional distress, the following
elements must be met:
(1) The wrongdoer’s conduct was intentional or reckless, that is, he
intended his behavior when he knew or should have known that
emotional distress would likely result;
(2) The conduct was outrageous, that is, as to go beyond all bounds of
decency, and to be regarded as odious and utterly intolerable in a
civilized community;
(3) The conduct caused emotion[al] distress; and
(4) The emotional distress was severe.
Gallogly v. Rodriguez, 970 So. 2d 470, 471 (Fla. 2d DCA 2007) (citations omitted).
Here, Plaintiff alleges that the officers seized her until she learned to obey, said
they needed to teach her a lesson and would find something really good for her, and
taunted and teased her until she revealed her name, which they were already aware of.
13
The Court finds that Plaintiff plausibly alleges enough to satisfy the elements of
intentional infliction of emotional distress.
4. Count IX, X – 42 U.S.C. § 1983 Retaliation
Plaintiff contends both officers retaliated against her for exercising her First and
Fourth Amendment rights. (Doc. 1 at ¶¶ 139, 145). Plaintiff claims she had a First
Amendment right to question the authority of both officers and safeguard her privacy
from intrusive questioning, refuse to provide her name, and question whether the
officers had a basis to believe she was engaged in criminal activity without fear of
retaliation. (Id. at ¶¶ 140, 146). In response, Deputy Marshall and Sergeant Kizzire
contend that Plaintiff’s claims under the Fourth Amendment are void because Plaintiff’s
constitutional claims fail. (Doc. 15 at 19). To the extent Plaintiff claims a retaliatory
arrest in violation of the First Amendment, both officers respond that arguable probable
cause exists and acts as a bar to any relief. (Id. at 20).
The Court has already addressed any possible Fourth Amendment violations in
its above analysis discussing Plaintiff’s false arrest claims, and finds that the allegations
are adequately pled.
To allege retaliation under the First Amendment, the plaintiff must prove the
following elements:
(1) That plaintiff’s speech or act was constitutionally protected;
(2) That plaintiff’s retaliatory conduct adversely affected the protected
speech; and
(3) That there is a causal connection between the retaliatory actions and
the adverse effect on speech.
14
Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). “To establish a causal
connection, the plaintiff must allege that the protected conduct was the motivating factor
behind the defendants’ actions.” Abella v. Simon, 482 F. App’x 522, 523 (11th Cir.
2012) (quotations omitted).
Here, Plaintiff believes her arrest was retaliatory because she failed to disclose
her name and questioned the officers, which is constitutionally protected speech. (Doc.
1 at ¶¶ 140, 146). Along with all of the remaining allegations as set forth in the
Complaint, which the Court accepts as true, Plaintiff has plausibly alleged a claim for
retaliation.
B.
Sheriff Mike Scott and Deputies John and Mary Does’ Motion to Dismiss
(Doc. 16)
1. Count III – 42 U.S.C. § 1983 Failure to Supervise, Train, and Take
Corrective Measures
Plaintiff asserts a claim for failure to supervise, train, and take corrective
measures against Sheriff Scott.4 Plaintiff alleges that Sheriff Scott “promulgated and
maintained a de facto unconstitutional custom, policy, or practice of permitting, ignoring,
and condoning and/or encouraging officers, deputies, and other employees and agents
to use pre-textual allegations of ‘Loitering and Prowling’ to unlawfully arrest citizens.”
(Doc. 1 at ¶ 106). Turning to the night of her arrest, Plaintiff alleges that Deputy
Marshall was not properly trained when he arrested her under the pretext of “Loitering
and Prowling” and called in Sergeant Kizzire and other deputies to the scene. (Id. at ¶
106). Plaintiff attributes this lack of training to Sheriff Scott. In particular, she lists
Scott’s deficiencies in training as follows:
4
All claims against Sheriff Scott are brought against him in his official capacity.
15
(a) Educate officers in the standards of law enforcement, and about the
limits of a traffic stop;
(b) Ensure that [Lee County Sheriff’s Office (“LCSO”)] officers to
understand both the concepts of reasonable suspicion and probable
cause, and the natural limits of those concepts;
(c) Instruct LCSO officers on how to keep from abusing the power reposed
in them, including training them on the usage of force, how to attend
appropriately to medically challenged arrestees, and training officers to
not falsely report on official documents (including reporting conditions
for either probable cause or mental health commitments).
(Doc. 1 at ¶ 110).
Plaintiff argues that this lack of training contributed to tortious
conduct including, “being subjected to the use of excessive force, false arrest, and cruel
and unusual punishment through deliberate indifference to [her] worsening condition.”
(Id. at ¶ 112).
In response, Sheriff Scott contends this claim fails because Plaintiff
does not assert an underlying constitutional violation because the officers’ actions were
supported by probable cause and recites conclusory statements. (Doc. 16 at 8-14).
Under § 1983, suits against an officer in his official capacity are simply “another
way of pleading an action against an entity of which an officer is an agent.” Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978). Thus, a suit against an officer in
his official capacity is, in effect, a suit against the county. Martin v. Wood, 648 F. App’x
911, 914 (11th Cir. 2016) (citation omitted). To state a § 1983 claim against a county,
the plaintiff must prove the following elements:
(1) that the [plaintiff’s] constitutional rights were violated;
(2) that the [county] had a custom or policy that constituted deliberate
indifference to that constitutional right; and
(3) that the policy or custom caused the violation.
16
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). With regard to policy or
custom, the plaintiff must necessarily “show a persistent and wide-spread practice.” Id.
at 1290.
Besides custom or policy violations, municipal employees may also be liable
“under § 1983 when its employees cause a constitutional injury as a result of the
municipality’s failure to adequately train or supervise its employees.” Martin, 648 F.
App’x at 914 (citation omitted). If asserting a § 1983 claim for failure to train, the
inadequate training must amount to a “deliberate indifference to the rights of persons
with whom the [municipal employees] come into contact.” City of Canton v. Harris, 489
U.S. 378, 388 (1989). To demonstrate this indifference, “a plaintiff must put forward
some evidence that the municipality was aware of the need to train or supervise its
employees in a particular area.” Am. Fed’n of Labor & Cong. of Indus. Orgs., 637 F.3d
1178, 1189 (11th Cir. 2001). Plaintiff must show that it was obvious that “the
municipality’s failure to train or supervise its employees would result in a constitutional
violation” and that “the city made a deliberate choice not to train its employees.” Id.
(quotation marks omitted).
Here, the Court has found that Plaintiff has adequately alleged a constitutional
violation; thus, at this stage in the proceedings there is a constitutional violation to
premise Plaintiff’s failure to train claim upon. For these reasons, the Court denies the
motion to dismiss Count III.
2. Counts V & XV – Assault & Battery
Plaintiff brings claims for assault and battery against Sheriff Scott (Count V) and
Deputy Does (Count XV). Plaintiff seeks to hold Sheriff Scott vicariously liable for the
17
conduct of Sergeant Kizzire and other LCSO officials. (Doc. 1 at ¶ 127). Specifically,
she maintains Sergeant Kizzire inflicted a harmful and offensive touching when
arresting her, and the other LCSO officials inflicted a harmful and offensive touching by
“dragging her up by her hair, holding her by the neck/collar of her prison suit, and
threatening to spray her with a hose.” (Id. at ¶ 124). In response, Sheriff Scott avers
that Sergeant Kizzire used reasonable force during the arrest.
The Court has already found that Plaintiff has adequately pled a claim for assault
and battery against Sergeant Kizzire’s regarding his use of force during the arrest and
detention; thus, the request to dismiss Count V fails.
With regard to Count XV, Plaintiff requests leave to amend her Complaint to
name the John and Mary Doe Deputies. The Court will not allow the amendment as the
substitution of actual parties would not relate back and the four-year statute of
limitations has run.
See Wayne v. Jarvis, 19 F.3d 1098, 1102-03 (11th Cir. 1999).
Therefore, Count XV will be dismissed with prejudice.
3. Count VIII – 42 U.S.C. § 1983 Retaliation
Plaintiff brings a retaliation claim against Sheriff Scott in his official capacity and
Sherriff Scott argues it should be dismissed because there was probable cause for
Plaintiff’s arrest.
As the Court has found that Plaintiff has adequately alleged an
underlying constitutional violation, the claim survives a motion to dismiss.
4. Count XI – 42 U.S.C. § 1983 Excessive Force
Plaintiff brings a retaliation claim against Sheriff Scott in his official capacity and
Sherriff Scott argues it should be dismissed because the conduct alleged is not
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unconstitutional.
As the Court has found that Plaintiff has adequately alleged an
underlying constitutional violation, the claim survives a motion to dismiss.
5. Count XIII – 42 U.S.C. § 1983 Failure to Provide Medical Care
Plaintiff brings a failure to provide medical care claim against Sheriff Scott. Upon
her arrival to the station, Plaintiff contends the “LCSO officers observed a swollen arm
in handcuffs,” placing them on notice of her circulatory problems. (Doc. 1 at ¶ 174).
Plaintiff alleges she “made LCSO jailors aware of her serious medical condition, and her
need for immediate and continued hydration, aspirin and moderate temperature, and
made them aware that without those specific conditions by which she kept her body in
equilibrium, the consequences could range from passing out to going into shock.” (Id.
at ¶ 174). Despite being in custody for over twelve hours, Plaintiff alleges she did not
receive any hydration and consequently, “passed out and hit her head on the hard floor
at least four times.” (Id. at ¶¶ 174-175). After booking her, she alleges overhearing the
officers making statements such as, “she is crazy” and “do whatever you want to with
her.” (Id. at ¶ 176).
Plaintiff maintains Sheriff Scott has “a de facto policy, custom, or practice of
allowing arrestees to be medically mistreated.” (Doc. 1 at ¶ 177). Building on this
assertion, she adds that Sheriff Scott “was on notice for the need for instruction,
guidance, and proper policies and procedures to ensure that arrestees and detainees
were not medically mistreated or wrongfully incarcerated on pretense of mental
defects.” (Id. at ¶ 178). In response, Sheriff Scott argues that Plaintiff fails to allege the
existence of an unconstitutional policy or custom. (Doc. 16 at 23). Instead, he responds
that Plaintiff asserts mere conclusory allegations. (Id. at 23-24).
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“Deliberate indifference to a detainee’s serious medical needs requires: 1) an
objectively serious medical need and 2) a defendant who acted with deliberate
indifference to that need.” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th
Cir. 2010) (citation omitted). A serious medical need “is diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person would recognize the need
for medical treatment.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008). “For
liability, the defendant must have 1) subjective knowledge of a risk of serious harm, 2)
disregard that risk, and 3) display conduct beyond gross negligence.” PourmoghaniEsfahani, 625 F.3d at 1317. “Even where medical care is ultimately provided, a prison
official may nonetheless act with deliberate indifference by delaying the treatment of
serious medical needs.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). “The
reason for the delay and the nature of the medical need is relevant in determining what
type of delay is constitutionally intolerable.” Id. (citation omitted).
Here, the Court finds that Plaintiff has adequately pled that LCSO acted with
deliberate indifference to Plaintiff’s needs.
6. Count XIV – 42 U.S.C. § 1983 False Arrest
Plaintiff brings a false arrest claim against Sheriff Scott in his official capacity and
Sherriff Scott argues it should be dismissed because there was probable cause for
Plaintiff’s arrest. “There is no respondeat superior liability making a municipality liable
for the wrongful actions of its police officers in making a false arrest.” Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (internal citation omitted). Therefore, the
motion to dismiss is granted and Count XIV is dismissed with prejudice.
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7. Count XVII – Negligent Hiring
Plaintiff brings a claim for negligent hiring of Defendant Corizon Health against
Sheriff Scott, alleging that Corizon had a record of negligence and recklessness that
Sheriff Scott knew or should have known about. (Doc. 1 at ¶ 210). Plaintiff further
alleges that reasonably careful and prudent law enforcement officers would have
investigated Corizon’s record of negligence and recklessness. (Id. at ¶ 210). In
response, Sheriff Scott avers that Plaintiff does not state the necessary elements of
such a claim and alleges no facts to show that Corizon acted outside the scope of
employment. (Doc. 16 at 22-23). The Court agrees.
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. [T]he
alleged acts by employees giving rise to liability for negligent supervision
must occur outside the employees’ scope of employment.
Daley v. Scott, No. 2:15-cv-269-FtM-29DNF, 2015 WL 4999215, at *4 (M.D. Fla. Aug.
19, 2015) (citations and quotations omitted).
Here, Plaintiff does not allege facts to establish that the Corizon employees acted
outside the scope of their employment. At best, Plaintiff makes conclusory statements
concerning Corizon’s record of negligence and recklessness. As such, the Court
dismisses Count XVII without prejudice with leave to amend.
8. Count XVIII – Custom, Policy, or Practice Causing Constitutional
Violations
Plaintiff brings a claim for custom, policy, or practice causing constitutional
violations against both Sheriff Scott and Corizon in the same Count. This is a shotgun
pleading as it pleads allegations against two defendants under a single count and in any
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event is duplicative of Count XIII - failure to provide medical care. Furthermore, an
unconstitutional policy or practice is an element of certain 1983 claims, not an
independent cause of action. The Court will dismiss the Count.
C.
Corizon, LLC’s Motion to Dismiss (Doc. 32)
Plaintiff brings a claim for negligent hiring against Corizon (Count XVI). She
alleges that Corizon knew or should have known of its employees’ incompetence and
negligent dispositions (Doc. 1 at ¶¶ 201-02). Plaintiff further alleges that Corizon should
have known that this incompetence would lead to the injuries of her and other
detainees. (Id. at ¶¶ 203-04). In response, Corizon contends its employees were not
acting outside the scope of employment. Alternatively, Corizon suggests that Plaintiff’s
claim is effectively a medical malpractice claim.
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. [T]he alleged acts by employees giving rise to liability
for negligent supervision must occur outside the employees’ scope of
employment.
Daley v. Scott, No. 2:15-cv-269-FtM-29DNF, 2015 WL 4999215, at *4 (M.D. Fla. Aug.
19, 2015) (citations and quotations omitted).
Here, Plaintiff does not allege facts to establish that Corizon employees acted
outside the scope of their employment. At best, Plaintiff makes conclusory statements
concerning Corizon’s incompetence and negligence. As such, the Court dismisses
Count XVI without prejudice and will allow amendment.
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C. Punitive Damages
Sheriff Scott moves to dismiss or strike the punitive damages request because
punitive damages are not available against a Sheriff who is sued in his official capacity.
The Court agrees. Plaintiffs cannot recover punitive damages from government officials
sued in their official capacities. Colvin v. McDougall, 62 F.3d 1316, 1319 (11th Cir.
1995). As such, to the extent Plaintiff demands punitive damages against Sheriff Scott
(or any of the deputies) in their official capacity, the request is stricken.
Accordingly, it is now
ORDERED:
(1) Defendants Deputy Brandon Marshall and Sergeant Robert Kizzire's Motion
to Dismiss (Doc. 15) is DENIED.
(2) Defendants Sheriff Mike Scott and Deputies John and Mary Does’ Motion to
Dismiss (Doc. 16) is GRANTED in part and DENIED in part.
Count XVII is
DISMISSED without prejudice to filing an Amended Complaint within FOURTEEN (14)
DAYS of this Opinion and Order.
Counts XIV, XV, and XVIII are dismissed with
prejudice.
(3) Defendant Corizon, LLC’s Motion to Dismiss (Doc. 32) is GRANTED. Count
XVI is DISMISSED without prejudice to filing an Amended Complaint within
FOURTEEN (14) DAYS of this Opinion and Order.
DONE and ORDERED in Fort Myers, Florida this 1st day of September, 2017.
Copies: All Parties of Record
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