Roberts v. City of Cape Coral
Filing
32
OPINION AND ORDER granting 18 Motion for summary judgment in favor of defendants on all counts, and plaintiff shall take nothing. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 9/13/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VIRGIL D. ROBERTS,
Plaintiff,
v.
Case No:
2:17-cv-510-FtM-29MRM
CITY OF CAPE CORAL, acting
in its official capacity as
a Police Department, Lee
County, Florida,
Defendant.
OPINION AND ORDER
This matter comes before the Court on the defendant’s Motion
for Summary Judgment (Doc. #18) filed on April 25, 2018. Plaintiff
filed a Response to Motion for Summary Judgment (Doc. #24) on June
5, 2018.
Defendant filed a Reply Brief (Doc. #28) on June 19,
2018, with leave of Court.
For the reasons set forth below, the
motion is granted.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if the
record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A
court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)
(finding summary judgment “may be inappropriate even where the
parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts”)).
“If a
reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant
2
summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306,
1315 (11th Cir. 2007).
II.
In the Second Amended Complaint (Doc. #2), plaintiff Virgil
D.
Roberts
(plaintiff
or
Roberts)
alleges
false
arrest
and
imprisonment (Count I) and excessive force (Count II) under 42
U.S.C. § 1983 against the City of Cape Coral (defendant or the
City).
The
undisputed
facts
set
forth
below
are
based
on
defendant’s admissions in the Answer to Second Amended Complaint
(Doc. #6), and the supporting documents filed by the parties.
At all relevant times, Officer Brady, Officer Goff, and
Officer Correa were operating as police officers for the Cape Coral
Police Department, and plaintiff and his wife, who jointly owned
their residence, were going through a divorce.
at ¶¶ 5-7.)
(Doc. #2 & Doc. #6
On August 23, 2013, Mrs. Roberts called the Cape Coral
Police Department to report a domestic dispute with plaintiff.
Officers Brady and Goff responded, and interviewed or questioned
plaintiff inside the house.
Officer Correa arrived at the scene,
and interviewed or questioned Mrs. Roberts outside the house. (Id.
at ¶¶ 10, 11, 13, 14.)
Plaintiff was ultimately arrested at the
residence pursuant to Fla. Stat. § 784.08 for battery on a person
65 years of age or older.
(Id. at ¶ 4; Doc. #25-2, p. 1.)
a jury trial, plaintiff was not convicted.
After
The Officers acted
within the scope of their employment with the City of Cape Coral
3
Police Department at all relevant times.
(Doc. #2 & Doc. #6 at ¶¶
22, 23.)
During trial 1, Officer Brady testified that he was the first
officer to arrive at the residence, and that Officer Goff came in
afterwards.
walkway.
Mrs. Roberts was outside the residence on the front
After having a “brief exchange” with her, Officer Brady
announced himself and entered the residence, and eventually found
plaintiff inside.
(Doc. #25-1, pp. 3-4.)
Officer Brady asked him
if he was okay, and whether he needed medical attention, to which
plaintiff responded in the negative.
(Id., p. 4.)
Officer Correa was the second Officer to arrive on the scene,
after Officer Brady, and interviewed Mrs. Roberts outside the
residence.
(Doc. #18-1, pp. 8-9.)
Mrs. Roberts provided a sworn
statement to Officer Correa as follows:
I came home from getting work done an [sic] my
car & came into the house & started to eat
lunch when my husband (Virgil [ ]) came inside
& started to yell at me why hadn’t I picked up
3 pieces of dog food that were on the floor.
I told him I would do it later when he grabbed
me by the head & pushed my head down to the
floor. While doing this he was yelling for me
to get over there & pick up the dog food. Once
he released me I picked up the dog food &
called 911. I am afraid for my safety & the
safety of my pets.
1
No deposition for Officer Brady was attached by either
party. Plaintiff submitted an excerpt from the trial testimony,
and states that he could not locate Officer Brady to reset his
deposition after Hurricane Irma. (Doc. #24, p. 4.)
4
I want to press charges against Virgil Roberts
for hitting me.
(Doc. #18-2.)
Inside the house, Officer Brady spoke with plaintiff and could
see that plaintiff was angry and tense.
(Doc. #25-1, pp. 4-5.)
Plaintiff stated that the argument was over some dog food on the
floor, and he was surprised that the police were present since it
was just a “verbal argument.” 2
(Id., p. 5.)
Officer Goff, who
joined Officer Brady inside the house, states that plaintiff became
agitated in explaining the incident and said “I told her she was
going to pick up that fucking dog food.”
(Doc. #18-5.)
During the conversation, Officer Correa came in and listened
to the Officers talking to plaintiff, and then confronted plaintiff
with what Mrs. Roberts told her.
(Doc. #25-1, p. 6.)
Plaintiff
started getting angry, waving his arms, and cursing at Officer
Correa.
(Id., pp. 6-7.)
Contrary to Officer Correa’s statements,
plaintiff states that Officer Correa came into the house at least
2
Plaintiff states that he yelled at Mrs. Roberts, but did
not touch her:
And I said, “Look, you fat ass,” I said, “Get
your fat ass out of that chair and I want this
dog food cleaned up and I want it cleaned up
right now.” And I -- and I said, “That’s the
end of it.”
I said, “I'm tired of this
bullshit.”
And I says, “You’re not pulling
this stuff on me.” I said, “I want this stuff
cleaned up.”
(Doc. #18-3, p. 65.)
5
three times asking the same question.
81.)
Plaintiff
started
getting
(Doc. #18-3, pp. 76-77,
upset
after
the
repeated
questioning, and said “you’ve asked that question three times and
I gave you three answers that are all the same.
I’m telling you,
she’s [Mrs. Roberts] lying and I’m not answering that question
anymore.”
(Id., pp. 81, 82.)
When Officer Correa left, the front
door closed behind her loudly, which infuriated plaintiff.
#25-1, p. 7.)
(Doc.
Plaintiff started cursing “You’re not going to slam
my door”, and he started taking a few steps towards the front door.
(Id.)
Officer Goff heard plaintiff make a comment along the lines
of “[Officer Correa] is not going to come in my house and slam my
fucking door”, and [plaintiff] started to go after Officer Correa.
(Doc. #18-4, p. 14.)
Officer
Brady
placed
handcuffs
on
plaintiff
for
officer
safety because it was unclear what plaintiff might do next.
#25-1, p. 7.)
(Doc.
Officer Goff assisted Officer Brady in securing the
handcuffs on plaintiff.
(Doc. #18-5.)
Plaintiff placed his hands
behind his back, and Officer Brady applied the handcuffs without
any issues.
Officer Goff did not discuss the arrest with Officers
Correa and Brady after he left the residence, and he went straight
home.
(Doc. #18-4, p. 15.)
During the handcuffing process, Officer Brady did not touch
plaintiff anywhere other than his wrists, and plaintiff did not
complain that the handcuffs were too tight or that they caused
6
pain to the wrists.
(Doc. #18-3, pp. 88, 121.)
Plaintiff states
that he was not permitted to put shoes on, but did not require any
medical treatment as a result of walking to the patrol car.
p. 89.)
(Id.,
Officer Brady had to assist plaintiff with getting his
legs into the patrol car because of the handcuffs, and in doing so
he grabbed plaintiff’s left arm.
Plaintiff asserts that during
this process, Officer Brady injured his shoulder.
93.)
(Id., pp. 91,
Plaintiff states that “he” grabbed his arm and jerked on it
until he broke the tendon going down to his bicep muscle according
to a Dr. Martinez.
available.
During
(Id., p. 52.)
Medical records were not
(Id., pp. 53-54.)
transport,
plaintiff
complained
about
conditioning not working in the back of the patrol car.
the
air
Plaintiff
did not ask for treatment for heat exhaustion or overheating once
he arrived at Lee County Jail, just a drink of water, which he
received
“reluctantly.”
(Id.,
p.
95.)
After
leaving
jail,
plaintiff did not seek treatment or receive treatment for any
injury related to his wrists, or for heat-related ailments.
pp. 95-96.)
About a year later, plaintiff sought treatment for an
injured shoulder.
(Id., p. 96.)
Plaintiff did not have any out
of pocket fees for medical treatment on his shoulder.
112.)
(Id.,
(Id., p.
Plaintiff has not sought the care of any psychologist,
psychiatrist, counselor, or therapist.
(Id., p. 114.)
Plaintiff
is claiming emotional distress but did not seek treatment, and he
7
did not start any medication for anxiety or stress, or require
anything to fall asleep.
(Id., p. 115.)
Plaintiff states he was
in a very hot car for 30 minutes, sweating, but he was not burned
in any way.
(Id., pp. 117-118.)
Officer Brady “started the engine
and then turned it on” when he was sitting in the car working on
his laptop computer.
(Id., p. 118.)
Plaintiff stated no further
plans to see any medical doctors for any injuries arising from the
incident other than a scheduled shoulder surgery.
(Id., p. 149.)
III.
Section 1983 allows a citizen who has been subjected to a
“deprivation of any rights, privileges, or immunities secured by
the Constitution and laws,” by any person acting under the color
of state or federal law to bring suit against that person.
U.S.C. § 1983.
42
“By its terms, of course, the statute creates no
substantive rights; it merely provides remedies for deprivations
of rights established elsewhere.” City of Oklahoma City v. Tuttle,
471 U.S. 808, 816 (1985).
Municipalities cannot be held liable on a theory of vicarious
liability for violations by its officers, and plaintiff must prove
that the City had a policy, custom, or practice that caused the
deprivation.
Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th
Cir. 2016); Monell v. Dep't of Soc. Servs. of City of N.Y., 436
U.S. 658, 692-693 (1978).
“Thus, our first inquiry in any case
alleging municipal liability under § 1983 is the question whether
8
there is a direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.”
v. Harris, 489 U.S. 378, 385 (1989).
City of Canton, Ohio
Additionally, to impose
liability, plaintiff must show that his constitutional rights were
violated, and that “the municipality had a custom or policy that
constituted deliberate indifference to that constitutional right.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
See also
Martin v. Wood, 648 F. App'x 911, 914 (11th Cir. 2016).
This
deliberate indifference may be established by evidence that the
municipality
had
notice
and
knew
of
a
need
to
train
and/or
supervise in a particular area, and that the municipality made a
deliberate choice not take action.
Gold v. City of Miami, 151
F.3d 1346, 1350, 1351 (11th Cir. 1998) (citations omitted).
If plaintiff does not challenge an official policy or custom,
“he must show that the alleged violation of his constitutional
rights was caused by an unofficial practice or custom that is
persistent and wide-spread.” Carter v. Columbus Consol. Gov't, 559
F. App'x 880, 881 (11th Cir. 2014) (citing Depew v. City of St.
Marys, 787 F.2d 1496, 1499 (11th Cir. 1986)).
The practice or
custom must be “so pervasive as to be the functional equivalent of
a formal policy.”
Carter v. Columbus Consol. Gov't, 559 F. App'x
880, 881 (11th Cir. 2014) (citing Grech v. Clayton Cnty., 335 F.3d
1326, 1330 n.6 (11th Cir. 2003)).
9
A. False Arrest and Imprisonment (Count I)
In
Count
I,
plaintiff
alleges
that
he
had
a
clearly
established constitutional right to be free from any unreasonable
seizures, and that on or about August 23, 2013, the Cape Coral
Police
Department
caused
him
to
be
unlawfully
detained,
and
deprived him of his liberty and freedom of movement pursuant to
the Police Department’s policy, custom, and practice of arresting
persons without probable case, “and the de facto policies, customs
and practices of such arrests being sustained on the ability to
imagine and write up pre-textual narratives.”
Plaintiff
alleges
that
the
Police
(Doc. #2, ¶ 30.)
Department
condoned
and
supported the practices of the above officers “who falsely arrested
individuals for alleged ‘loitering and prowling,’” on the day in
question.
“The
Department
implemented
a
policy,
custom,
or
practice of allowing Department’s officers to make false arrests
and to detain persons without probable cause by using the veneer
of
loitering
detentions.”
and
prowling
to
paper
over
unconstitutional
(Id., ¶ 31.)
No factual or evidentiary support of a pattern, practice, or
custom was provided in response to summary judgment, and for the
new allegation in the Response of gender-profiling for arrests in
domestic violence cases, “or, in other words anti-men, gender-bias
in
complaints
of
domestic
violence.”
(Doc.
#24,
pp.
1-2.)
Plaintiff questions an arresting officer’s discretion to arrest
10
the male participant based solely on the allegation of the female
participant.
(Id., p. 2.)
A warrantless arrest without probable cause is a basis for a
§ 1983 claim, as well as detention on the basis of the false
arrest.
Ortega v. Christian, 85 F.3d 1521, 1525 & 1526 (11th Cir.
1996).
However, the existence of probable cause at the time of
arrest is an absolute bar to a constitutional challenge.
Martin
v. Wood, 648 F. App'x 911, 915 (11th Cir. 2016) (citing Brown v.
City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010)).
An officer has probable cause for an arrest
when the arrest is “objectively reasonable
based on the totality of the circumstances.”
Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.
2003). “This standard is met when the facts
and
circumstances
within
the
officer’s
knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent
person to believe, under the circumstances
shown, that the suspect has committed, is
committing, or is about to commit an offense.”
Id.
Vickers v. Georgia, 567 F. App'x 744, 746 (11th Cir. 2014).
“Merely being present with the arresting officers at the scene is
not enough, unless the plaintiff can show that the defendant
officer was part of the chain of command authorizing the arrest
action.”
Brown v. City of Huntsville, Ala., 608 F.3d 724, 737
(11th Cir. 2010).
Plaintiff was initially detained by Officer Brady for reasons
of officer safety, and ultimately booked and provided a notice to
11
appear
for
violation
of
Florida
Statute
784.08(2)(c),
which
states:
Whenever a person is charged with committing
an assault or aggravated assault or a battery
or aggravated battery upon a person 65 years
of age or older, regardless of whether he or
she knows or has reason to know the age of the
victim, the offense for which the person is
charged shall be reclassified as follows:
. . .
(c) In the case of battery, from a misdemeanor
of the first degree to a felony of the third
degree.
Fla. Stat. § 784.08(2)(c).
The detention based on officer safety
was unrelated to the ultimate charge based on the statement of
Mrs. Roberts.
The allegation that plaintiff intentionally caused
harm to Mrs. Roberts, supported by her sworn statement, would
provide a prudent person under the same circumstances a reasonable
basis to believe that a crime had been committed. 3
police
officer
evaluating
the
should
consider
existence
of
a
suspect’s
probable
cause,
“Thus, while a
explanation
he
is
under
in
no
obligation to give any credence to a suspect’s story nor should a
plausible explanation in any sense require the officer to forego
arrest pending further investigation if the facts as initially
3
As noted by defendant in its Reply, an officer may rely on
a victim’s complaint in support of probable cause. See Bijou v.
Rambosk, No. 2:14-CV-517-FTM-29MRM, 2015 WL 5952906, at *4 (M.D.
Fla. Oct. 13, 2015).
12
discovered provide probable cause.”
Bijou, 2015 WL 5952906, at *4
(citation omitted).
In this case, the detention was made in the discretion of the
arresting officer based on the circumstances known to him at the
time, including plaintiff’s agitation, language, and anger, which
led him to believe that plaintiff was pursuing Officer Correa in
a
way
that
threatened
officer
safety.
“The
Court
has
long
recognized that officer safety is a concern whenever officers and
arrestees or potential arrestees are in close proximity.”
McClish
v. Nugent, 483 F.3d 1231, 1261 (11th Cir. 2007) (Anderson, J.,
concurring).
There
is
nothing
in
the
record
to
dispute
or
contradict the objectively reasonable actions of Officer Brady.
With probable cause to arrest, there can be no constitutional
violation.
Summary judgment will be granted as to Count I.
B. Excessive Force (Count II)
In Count II, plaintiff alleges that the officers unlawfully
authorized
plaintiff’s
arrest
without
probable
cause
that
plaintiff had committed a crime for the improper motivation of
teaching him a lesson.
(Doc. #2, ¶ 40.)
Plaintiff alleges that
he was placed in the patrol car by officers, spun around and
slammed against the car door, and cuffed behind his back in a
manner that injured his shoulder.
(Id., ¶ 42.)
Plaintiff alleges
that the circumstances indicated no crime, nor was plaintiff
displaying any kind of provocation or threats, yet he was placed
13
in the car for an extended period of time without air conditioning
or open windows when the outside temperature was in the 90s.
¶ 43.)
Plaintiff alleges that this use of excessive force was a
pattern and practice or custom of the Police Department.
45.)
(Id.,
(Id., ¶
Plaintiff alleges that the Police Department was aware of
various lawsuits complaining that its officers used excessive
force on other arrestees in circumstances not warranting such use
of
force,
practice
and
of
that
the
these
Police
lawsuits
Department
demonstrate
a
impermissibly
pattern
and
training
its
officers to make arrests in circumstances where it is “objectively
apparent” that no law has been broken.
(Id., ¶ 46.)
Again, no factual or evidentiary support was submitted of a
pattern, practice, or custom in response to summary judgment.
Plaintiff seems to allege a general pattern of excessive force
against arrestees by failing to provide air conditioning in patrol
vehicles at all times.
Excessive force is established through a
“reasonableness inquiry”:
The “reasonableness” of a particular use of
force must be judged from the perspective of
a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight. [ ]
. . . .
The calculus of reasonableness must embody
allowance for the fact that police officers
are
often
forced
to
make
split-second
judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the
14
amount of force that
particular situation.
is
necessary
in
a
. . .
[T]he question is whether the officers’
actions are “objectively reasonable” in light
of the facts and circumstances confronting
them, without regard to their underlying
intent or motivation.
Graham v. Connor, 490 U.S. 386, 396-397 (1989) (internal citations
omitted).
“‘[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.’”
Rodriguez v.
Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (quoting Graham, 490
U.S. at 396).
Painful handcuffing, without more, is not excessive
if resulting injuries are minimal.
Id., at 1351.
“Where the
officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to
others, use of deadly force does not violate the Constitution.”
Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (quoting
Tennessee v. Garner, 471 U.S. 1, 11 (1985) (noting that this is
the case even where an officer uses deadly force merely to prevent
the suspect's escape)).
No evidence is presented in plaintiff’s deposition that he
suspected or had reason to believe that Officer Brady knew he had
some preexisting injuries that could have been exacerbated.
The
facts above reflect that Officer Brady applied the handcuffs
without any issues, and Officer Goff did not touch plaintiff.
15
Officer Brady did not touch plaintiff anywhere other than his
wrists, and plaintiff did not complain about the handcuffing.
Officer Brady had to assist plaintiff with getting into the car,
and in doing so, plaintiff states that Officer Brady jerked on his
arm until he broke the tendon going down to his bicep muscle, but
no
medical
records
of
diagnosis
or
treatment
were
provided.
Plaintiff did not complain at the time of arrest, during transport,
or
upon
arrival
at
the
Lee
County
Jail.
During
transport,
plaintiff complained about the air conditioning not working in the
back of the patrol car but suffered no repercussions.
About a
year later, plaintiff sought treatment for an injured shoulder,
and had no out of pocket medical expenses.
Based on the facts of the arrest, coupled with plaintiff’s
behavior leading up to the arrest and handcuffing of plaintiff, a
reasonable officer in the same position would likely have taken
the same actions.
There is nothing objectively unreasonable with
arresting an individual who may pose a threat to a fellow officer,
or where probable cause has been established based on the sworn
statement of a victim.
The process was not excessive.
judgment will be granted as to Count II.
Accordingly, it is now
ORDERED:
16
Summary
1.
Defendant’s Motion for Summary Judgment (Doc. #18) is
GRANTED in favor of defendant on all counts, and Plaintiff shall
take nothing.
2.
The Clerk shall enter judgment accordingly, terminate all
pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2018.
Copies:
Counsel of record
17
13th
day of
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