S.D. v. City of Cape Coral

Filing 21

OPINION AND ORDER granting in part and denying in part 7 motion to dismiss; granting 19 Motion for Leave to File to Amend to correct errors. Counts I and II are dismissed without prejudice to filing an amended complaint, and plaintiff may incorporate the amendments to correct errors. The Fifth Amendment portion of Count V is dismissed with prejudice, and the motion is otherwise denied as to the Fourteenth Amendment portion of Count V. See Opinion and Order for details. Signed by Judge John E. Steele on 9/29/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
S.D.,
Plaintiff,
v.

Case No: 2:17-cv-111-FtM-99MRM

CITY
OF
CAPE
Florida
corporation,

CORAL,
a
municipal

Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss (Doc. #7) filed on February 24, 2017.

Plaintiff filed a

response in opposition (Doc. #16) on March 9, 2017.

On May 23,

2017, plaintiff filed a Motion for Leave to Amend Complaint (Doc.
#19) to correct minor scriveners’ errors regarding the spelling of
a name in Counts III and IV.
Complaint

contains

the

same

Because the proposed Amended
substantive

allegations

as

the

Complaint, the Court will issue a ruling on whether the allegations
state a claim and grant the request to correct scriveners’ errors
in any amended complaint.

For the reasons set forth below, the

motion to dismiss is granted in part and denied in part.
I.
On February 7, 2016, plaintiff S.D. (a minor) filed a fivecount Complaint (Doc. #2) in state court against defendant City of
Cape Coral (the City or defendant), alleging both common law

negligence claims and a 42 U.S.C. § 1983 claim for deprivation of
civil rights.

On February 22, 2017, defendant removed the case

to this Court on the basis of federal question jurisdiction under
28 U.S.C. § 1331.

(Doc. #1.)

The Complaint sets forth the following material facts:

On

May 13, 2013, Cape Coral police officer Casey Ortiz transported
S.D., a 16-year old girl, to meet with a Fort Myers Police Officer.
During that trip Officer Ortiz stopped at a supermarket parking
lot and forced S.D. to perform oral sex on him.

The sexual abuse

and battery occurred while Officer Ortiz was on his shift with the
Cape Coral Police Department and while he was charged with carrying
out the business and/or services of the City.

Plaintiff states

that it was generally known by the Cape Coral Police Department
and

its

staff

that

S.D.

had

a

history

of

sexual

abuse

victimization, particularly at the hands of older men.
Plaintiff
negligence

brings

(Count

I),

the

following

respondeat

claims

against

superior/vicarious

the

City:

liability

(Count II), negligent hiring (Count III), negligent supervision
(Count IV), and violation of the Fifth and Fourteenth Amendments
pursuant to 42 U.S.C. § 1983 (Count V).

Defendant moves to dismiss

Counts I, II, and V for failure to state a claim.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing

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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.

See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
than

an

unadorned,

accusation.”

Ashcroft

This requires “more

the-defendant-unlawfully-harmed-me

v.

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
factual support are entitled to no assumption of truth.”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal citations omitted).

Thus, the

Court engages in a two-step approach: “When there are well-pleaded

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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.
III.

A. Negligence (Count I)
Count I alleges that the City owed a duty of care to S.D. to
act with reasonable care and to provide proper supervision and
treatment to S.D. while she was in its custody during her transport
to the Fort Myers Police Department.

(Doc. #2, ¶16.)

It further

alleges that the City breached this duty of care by failing to
provide proper and adequate supervision of S.D. on May 13, 2013,
while S.D. was in its custody.

(Id. at ¶17.)

As a result, S.D.

was subjected to sexual battery and/or assault (Id. at ¶18), which
caused various injuries to S.D.

(Id. at ¶ 19).

The City argues that it is not clear if Count I is based on
direct or vicarious liability, as it appears Count I is a negligent
supervision claim.

Plaintiff responds that Count I alleges that

the City is directly (not vicariously) liable for its failure to
properly supervise and treat plaintiff, and Count I is not based
on the City’s failure to supervise Officer Ortiz (which is alleged
in Count IV).

The Court accepts this construction of Count I, and

concludes that it only alleges a claim for direct liability against
the City of Cape Coral.

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The Court finds that as a direct liability negligence claim,
Count I is not sufficiently pled.

Unlike a suit based on the

doctrine of respondeat superior, a direct liability action is
grounded upon the negligence of the employer itself.
alleges

that

the

City

had

a

duty

to

“supervise

and

Count I
treat”

plaintiff, and that this duty was breached, but nowhere does the
count set forth what such a duty entails or the source of that
duty by the City.

Additionally, while a theory of direct liability

“is not dependent on a finding that the abuser’s conduct fell
within the scope of the agency or, for that matter, that the abuser
was an agent,” Special Olympics Florida, Inc. v. Showalter, 6 So.
3d 662, 666 (Fla. 5th DCA 2009), it does require that the wrongdoer
is akin to a managing agent of the entity.

“We note that although

the record supports a theory of vicarious liability for punitive
damages, we reject the argument that the evidence supports one of
direct liability, as a job foreman is not, as required for imposing
direct liability, a managing agent of the company.”

Ryder Truck

Rental, Inc. v. Partington, 710 So. 2d 575, 576 (Fla. 4th DCA 1998)
(citing cases).

A police officer is clearly not such a person for

a city, and Count I identifies no one else upon whom liability can
be based.

While Florida recognizes that, independent of the

doctrine of respondeat superior, an employer is liable for an
employee’s willful tort committed against a third person if he
knew or should have known that the employee was a threat to others,

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Williams v. Feather Sound, Inc., 386 So. 2d 1238, 1239-40 (Fla. 2d
DCA 1980), no such allegations are contained in Count I.
Plaintiff has failed to state a plausible claim against the
City for direct negligence; therefore, the motion is granted and
Count I is dismissed without prejudice.
B. Vicarious Liability - Count II
Count II is titled “Respondeat Superior/Vicarious Liability.”
(Doc. #1.)

Count II alleges that the staff, employees, agents,

and servants of the City were acting within the course and scope
of

their

employment

(Doc.

#2,

¶

21),

thus

making

the

City

vicariously liable for any and all of their negligent acts or
omissions and any intentional torts in: (a) failing to prevent the
abuse of S.D., and (b) failing to enforce or follow the City’s own
policies and procedures.

(Id. at ¶ 22.)

Defendant argues that the claim should be dismissed because
the doctrine of respondeat superior is not a separate, stand-alone
claim for which relief can be afforded; rather, it is a legal
theory of transferred liability for which a party who has not
committed a wrong can be held liable for the conduct of another.
Florida courts, however, have held that vicarious liability must
be alleged as a separate cause of action in a complaint, wherein
it must set forth ultimate facts that establish either an actual
or apparent agency or any other basis for vicarious liability.
See Goldschmidt v. Holman, 571 So. 2d 422, 423-24 (Fla. 1990).

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Plaintiff has alleged as much in her Complaint.

(Doc. #2, ¶¶ 20-

23.)
Defendant

further

argues

that

any

theory

of

vicarious

liability fails because Officer Ortiz was acting outside the scope
of his employment to further some purpose of his own when he
sexually assaulted plaintiff, thus leaving the City immune from
liability for his tortious acts.

Plaintiff responds that because

the initial act of transporting S.D. was within the scope of
Officer Ortiz’s employment, any subsequent actions of Officer
Ortiz – including sexual battery – should also be found to be
within the course and scope of his employment.
“An employer’s liability for an employee’s intentional acts
may arise when the acts are within the ‘real or apparent scope’ of
employment.”

Trabulsy v. Publix Super Mkt., Inc., 138 So. 3d 553,

555 (Fla. 5th DCA 2014) (quoting Weiss v. Jacobson, 62 So. 2d 904,
906 (Fla. 1953)).
Conduct is within the scope of employment if it occurs
substantially within authorized time and space limits,
and it is activated at least in part by a purpose to
serve the master. The purpose of the employee’s act,
rather than the method of performance thereof, is said
to be the important consideration. Stated another way,
only when the employee steps aside from his employment
to ... accomplish some purpose of his own, is the act
not within the scope of employment. This is generally
a question of fact for the jury.
Id. at 555 (internal citations and punctuation omitted).

An

employee’s conduct is within the scope of his employment, where:
(1) the conduct is of the kind he was employed to perform, (2) the

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conduct occurs substantially within the time and space limits
authorized or required by the work to be performed, and (3) the
conduct is activated at least in part by a purpose to serve the
master.

Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783

So. 2d 353, 356 (Fla. 3d DCA 2001) (holding pastor’s criminal
conduct was independent, self-serving act and did not occur within
course and scope of employment)
“Sexual assaults and batteries committed by employees are
generally held to be outside the scope of an employee’s employment
and, therefore, insufficient to impose vicarious liability on the
employer.

An exception exists when the employee purported to act

on behalf of the employer or when the employee was aided by the
agency relationship.”

Goss v. Human Services Associates, Inc.,

79 So. 3d 127, 132 (Fla. 5th DCA 2012) (citing Sussman v. Fla. E.
Coast Props., Inc., 557 So. 2d 74, 75-76 (Fla. 3d DCA 1990));
Nazareth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076, 1078
(Fla. 5th DCA 1985).

“Unless it can be established that the abuse

occurred in furtherance of the employer’s business, this type of
conduct is not within the scope of employment.”

Agriturf Mgmt.,

Inc. v. Roe, 656 So. 2d 954 (Fla. 2d DCA 1995) (finding abuse
occurring on Agriturf’s property during time perpetrator closing
business not within scope of employment because sexual abuse not
in furtherance of employer’s business objectives); see Mason v.
Fla. Sheriffs’ Self–Ins. Fund, 699 So. 2d 268 (Fla. 5th DCA 1997)

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(holding sexual assault by officer not within scope of employment,
even though officer on duty, in uniform, and serving warrant on
woman he raped); Special Olympics Fla., Inc. v. Showalter, 6 So.
3d 662, 665–66 (Fla. 5th DCA 2009).
Plaintiff has failed to state a plausible claim against the
City for vicarious liability for the intentional torts committed
by Ortiz as they were not within the course and scope of his
employment and there is no allegations that it was in furtherance
of the City’s business; therefore, the motion is granted and Count
II is dismissed without prejudice.
C. 42 U.S.C. § 1983 – Count V
Under Count V, plaintiff alleges that the City violated her
“substantive

rights

guaranteed

by

the

Due

Process

and

Equal

Protection clauses of the Fourteenth and Fifth Amendments to the
United States Constitution.” 1

(Doc. #1, ¶ 34.)

“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)

1

Defendant argues that to the extent the claim is based on
the Fifth Amendment, it should be dismissed, as civil rights claims
brought against state actors are available only under the
Fourteenth Amendment. See Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1328 (11th Cir. 2015) (noting that the Fifth
Amendment protects a citizen’s rights against infringement by the
federal government, not by state government). Plaintiff agrees.
Therefore, Count V will only proceed as a Fourteenth Amendment
substantive due process claim.

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(citing 42 U.S.C. § 1983).

“Persons” include individuals and

municipalities and other local-government units.

Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690-91 (1978).
It

is

well

established

in

the

Eleventh

Circuit

that

supervisory officials are generally not liable under § 1983 for
the unconstitutional acts of their subordinates on the basis of
respondeat superior or vicarious liability.

Instead, supervisory

liability under § 1983 occurs when the supervisor personally
participates in the alleged unconstitutional conduct or when there
is

a

causal

connection

between

the

actions

a

supervising

official and the alleged constitutional violation.

Cottone v.

Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

of

However, Monell

liability can be predicated upon an official policy or custom that
caused

the

violation

of

the

plaintiff’s

rights.

Hartley

v.

Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (noting that “the
causal connection may be established and supervisory liability
imposed where the supervisor’s improper custom or policy results
in deliberate indifference to constitutional rights”).
Here, plaintiff alleges that “severely deficit supervisory
protocol and practices” led to the acts perpetrated against S.D.,
and that the City’s actions are the “result of a policy or custom
of failing to properly investigate and supervise its employees
like Ortiz and ignoring information in its possession or easily
obtained regarding Ortiz’s propensities and actions.”

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(Doc. #2,

¶¶ 35, 38.)

Plaintiff alleges that the City’s failures are

“widespread” and a “policy or a custom.”
pleading

stage,

plaintiff

has

stated

(Id. at ¶ 38.)
a

plausible

At the

claim

for

vicarious liability as to Count V.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant’s Motion to Dismiss (Doc. #7) is GRANTED in

part and DENIED in part.

The motion is granted to the extent that

Counts I and II are dismissed without prejudice to filing an
amended complaint within FOURTEEN (14) days of this Opinion and
Order.

Furthermore, the Fifth Amendment portion of Count V is

dismissed with prejudice; otherwise, the motion is denied as to
the Fourteenth Amendment portion of Count V.
2.
correct

Plaintiff’s
minor

plaintiff

may

Motion

for

scriveners’

errors

incorporate

these

Leave
(Doc.

to

Amend

#19)

amendments

is

into

Complaint
GRANTED
the

to
and

amended

complaint to be filed within FOURTEEN (14) days pursuant to this
Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2017.

Copies:
Counsel of Record

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29th

day