Harris v. Rambosk et al

Filing 183

OPINION and ORDER granting defendant's 126 Motion for Summary Judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 11/6/2019. (CMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT DALE HARRIS,
Plaintiff,
v.

Case No:

2:18-cv-17-FtM-29MRM

KEVIN
RAMBOSK,
in
his
official capacity as Sheriff
of Collier County, Florida,
KASEY
P.
WINGO,
individually,
MICHAEL
D.
CHAPMAN, individually, SCOTT
PEPIN,
individually,
and
ROSS ANTHONY, individually,
Defendants.

OPINION AND ORDER
This

matter

comes

before

the

Court

on

defendant

Kevin

Rambosk’s Motion for Summary Judgment (Doc. #126) filed on June
24, 2019.

Plaintiff filed a Response (Doc. #135) on July 8, 2019,

defendant Kevin Rambosk filed a Reply (Doc. #139) on July 24, 2019,
and plaintiff filed a Sur-Reply (Doc. #140) on July 29, 2019.

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 issue as to any material fact
and that the moving party 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

2

a genuine issue of material fact, then the court should not grant
summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).
II.
On May 2, 2018, plaintiff Robert Dale Harris (Plaintiff) filed
an Amended Complaint (Doc. #51) against defendant Kevin Rambosk
(Sheriff Rambosk) in his official capacity as Sheriff of Collier
County.

The Amended Complaint asserts two claims against Sheriff

Rambosk under 42 U.S.C. § 1983 (Counts I and XV), alleging that he
was deprived of his constitutional rights as a result of Sheriff
Rambosk’s failure to properly train his deputies.

The undisputed

facts1 are as follows:
A.

The March 9, 2014 Trespass Warning to the CCSO
On

March

9,

2014,

Plaintiff

called

the

Collier

County

Sheriff’s Office (CCSO) to complain about Deputy Michael D. Chapman
(Deputy Chapman).

(Doc. #113, p. 3; Doc. #135, p. 2.)

Plaintiff

complained that while he was sitting outside of a McDonald’s in
Naples, Florida, Deputy Chapman threatened to trespass Plaintiff
from “all local businesses.”

(Id.)

Sergeant Bartolome Amengual

Sheriff Rambosk adopts the statements of undisputed facts
set forth in the motions for summary judgment filed by Deputies
Wingo, Chapman, and Pepin.
(Doc. #126, p. 2.)
Thus, where
appropriate, the Court cites to those motions below.
1

3

(Sergeant Amengual) and Deputy Kasey P. Wingo (Deputy Wingo)
arrived at the scene and took Plaintiff’s complaint.
B.

(Id.)

The April 4, 2014 Arrest
On April 4, 2014, Plaintiff was repairing his friend Randy

Leon Sulwilcowski’s motorcycle that was warehoused at a storage
facility in Naples, Florida.
3.)

(Doc. #113, pp. 3-4; Doc. #135, p.

Deputies Chapman and Wingo encountered Plaintiff as he was

exiting the storage facility.

(Id.)

Deputies Wingo and Chapman

ultimately arrested Plaintiff and engaged in a physical with
Plaintiff while placing him under arrest.
Doc. #135, p. 3.)

(Doc. #113, pp. 5-7;

Deputy Pepin arrived at the scene to assist

Deputies Wingo and Chapman with Plaintiff’s arrest.
p. 6; Doc. #135, p. 3.)

(Doc. #113,

Deputy Pepin struck Plaintiff’s back

several times with a baton and deployed his Taser into Plaintiff’s
back.

(Doc. #113, p. 6; Doc. #135, p. 3.)

Plaintiff was ultimately charged with three (3) counts of
battery on a police officer; one (1) count of assault on a police
officer; one (1) count of resisting an officer without violence;
and one (1) count of loitering and prowling.
62; Doc. #135, p. 3.)

(Doc. #51, ¶¶ 59-

On April 17, 2014, the State Attorney’s

Office filed a “Not Filing Charge” on all six counts.
p. 8; Doc. #135, p. 3.)

4

(Doc. #113,

C.

The May 29, 2014 Trespass Warning
On May 29, 2014, CCSO Deputy Ross Anthony (Deputy Anthony)

issued Plaintiff two trespass warnings: one for a Waffle House
restaurant located at 3824 Tollhouse Drive in Naples, Florida, and
one for a Shell gas station located at 3825 Tollgate Boulevard in
Naples, Florida.2

(Doc. #126, p. 3; Doc. #135, p. 4.)

Plaintiff

purchased cigarettes from the Shell gas station, sat outside for
approximately five minutes, observed Deputy Anthony approaching,
and entered the Waffle House.

(Id.)

Deputy Anthony testified

that he approached Plaintiff because he had issued Plaintiff a
trespass warning for the Shell gas station “a couple of weeks
prior.”

(Doc. #135-16, p. 14.)

Deputy Anthony then entered the Waffle House, requested that
Plaintiff leave the Waffle House to speak with him outside, and
placed Plaintiff in handcuffs and took him outside the Waffle
House.

(Doc. #126, pp. 3-4; Doc. #135, pp. 4-5.)

Deputy Anthony

issued Plaintiff a trespass warning for the Waffle House restaurant

Under “Reason for Contact,” the Shell trespass warning
states “bothering customers at Circle K.” (Doc. #126-1.) Deputy
Anthony testified at deposition that he referenced Circle K on the
Shell trespass warning because the store attached to the Shell gas
station is a Circle K and displays Circle K logos. (Doc. #13516, p. 13.) Plaintiff asserts that there were no Circle K logos
at the Shell gas station store.
That dispute is ultimately
irrelevant, however, because it is undisputed that on May 29, 2014,
Plaintiff was issued a trespass warning for the Shell gas station
located at 3825 Tollgate Boulevard in Naples, Florida – the same
address listed on the trespass warning.
2

5

at the request of a Waffle House employee.
#135, p. 17.)

(Doc. #126, p. 4; Doc.

The Shell gas station employees asked Plaintiff to

leave the premises, and the trespass warning lists Ben Bagheri,
the Shell gas station owner, as the “Name of Complainant.”

(Doc.

#126-1, p. 1; Doc. #126, p. 4; Doc. #135, p. 17.)
D.

The June 10, 2014 Trespass Warning
On June 10, 2014, Plaintiff purchased donuts from Dunkin’

Donuts in Naples, Florida; Plaintiff then took the donuts to the
neighboring McDonald’s, purchased a coffee from the McDonald’s,
and used his computer at an outside table.
#135, p. 5.)

(Doc. #113, p. 9; Doc.

Deputy Pepin and Deputy Sean Ellis (Deputy Ellis)

arrived at the scene, and Deputy Ellis ultimately issued Plaintiff
a trespass warning for the Dunkin’ Donuts.
#135, p. 6.)

(Doc. #113, p. 9; Doc.

Under “Reason for Contact/Other Comments” the

trespass warning states, “Trespass.
does not consent to this.”

Robert Harris stated that he

(Doc. #116-1, p. 23.)

Deputy Pepin testified at deposition that he and Deputy Ellis
were

dispatched

to

the

McDonald’s

because

the

management wanted Plaintiff to leave the premises.
pp. 75-76.)
at

the

McDonald’s
(Doc. #116,

Deputy Pepin further testified that when he arrived

McDonald’s,

Sara

Wolin,

6

a

Dunkin’

Donuts

employee,

approached him and asked that Deputy Pepin and Deputy Ellis3
trespass

Plaintiff

from

the

Dunkin’

Donuts

“‘harassing customers and stealing stuff.’”

because

he

was

(Doc. #116, p. 76.)

Sarah Wolin testified at deposition that she “had seen the cop
next to [Dunkin’ Donuts] at the McDonald's and [] called him over
and [] asked him to have [Plaintiff] trespassed.”
18.)

(Doc. #117, p.

Sarah Wolin testified that, earlier on June 10, 2014,

Plaintiff “got upset because [she] told him that [she] couldn't
give him [free food]” and that Plaintiff “got very mad and stormed
out and then came back in and then stormed back out again.”
pp. 17-18.)

(Id.

Sarah Wolin further testified that she requested that

Plaintiff be trespassed from Dunkin’ Donuts because he had “been
coming to [her] place of employment for several months, getting
free food, making [her] uncomfortable, and [she] did not want
[Plaintiff] at [her] place of employment anymore.”
E.

(Id. p. 21.)

The March 26, 2015 Trespass Warning
On March 26, 2015, CCSO Corporal Robert Bremer (Corporal

Bremer) issued Plaintiff a trespass warning for Sew Shore, a retail
business located in Naples, Florida.
p. 10.)

(Doc. #126, p. 4; Doc. #135,

Sew Shore sells police uniforms and equipment, and

Plaintiff was at Sew Shore on March 26, 2015 to purchase handcuffs.

It is unclear to the Court which other deputies were present
at the scene.
3

7

(Doc. #126, p. 4; Doc. #135, p. 11.)

A Sew Shore employee

ultimately became concerned with Plaintiff’s presence at the store
and called the police.4

(Doc. #126, p. 4; Doc. #135, pp. 10-12.)

Corporal Bremer responded to the scene, and John Marshall, a Sew
Shore employee5, requested that Corporal Bremmer issue Plaintiff
the trespass warning because Plaintiff was acting “belligerent”
and “difficult.”
F.

(Doc. #126-4, p. 83.)

The December 16, 2016 Arrest
On

December

16,

2016,

Deputy

Wingo

stopped

Plaintiff’s

vehicle after observing it being driven with an invalid license
plate.6

(Doc. #112, p. 7; Doc. #129, pp. 6-7; Doc. #135, p. 8.)

Deputy Wingo had received information that Plaintiff’s vehicle was
involved in transporting narcotics.7
p. 8.)

(Doc. #112, p. 7; Doc. #135,

After initiating the traffic stop, Deputy Wingo approached

Plaintiff and the following interaction occurred and was captured
on Plaintiff’s in-car camera:

4

The parties dispute what led to this employee’s concern.

The parties refer to John Marshall as the Sew Shore owner.
However, John Marshall testified that at the time of the trespass
warning he was a Sew Shore employee and had not yet purchased the
business. (Doc. #126-4, pp. 9-10.)
5

Specifically, Plaintiff was driving a Ford vehicle on which
a license plate registered to a GMC vehicle was affixed.
6

Deputy Wingo believed that Plaintiff’s brother was using
Plaintiff’s vehicle to transport narcotics.
(Doc. #112, p. 7;
Doc. #129, p. 7.)
7

8

Deputy Wingo:

“Hello, sir.”

Plaintiff:

“One
second,
attorney.”

Deputy Wingo:

“I need your license, registration,
[and] insurance.”

Plaintiff:

“Let me call my attorney.”

Deputy Wingo:

“No, you need it now.”

(Plaintiff Video, at 3:17-3:24.)

I’m

calling

my

Deputy Wingo then attempted to

open the vehicle door, but Plaintiff pulled the door closed.
Deputy Wingo next opened the vehicle door and attempted to remove
Plaintiff from the vehicle.

(Id. at 3:24-3:26.)

As Deputy Wingo

entered the vehicle, Plaintiff lifted his knees, which prevented
Deputy Wingo from removing Plaintiff from the vehicle.

(Id.)

Deputy Wingo then attempted to deploy his Taser on Plaintiff, but
Plaintiff grabbed the Taser and pushed it away.
3:38.)

(Id. at 3:35-

Deputy Wingo continued his attempts to subdue Plaintiff

with his Taser, but Plaintiff continued to resist Deputy Wingo’s
efforts.
arrived

(Id. at 3:40-6:51.)
at

the

scene

and

Shortly thereafter, other deputies

assisted

Deputy

Wingo

in

Plaintiff from the vehicle and placing him under arrest.

removing
(Id. at

6:52-9:47.)
Plaintiff was ultimately charged with one (1) count of assault
on a law enforcement officer; one (1) count of battery on a law
enforcement officer; one (1) count of resisting an officer with

9

violence; and one (1) count of resisting an officer without
violence.

(Doc. #129-8, p. 8.)

Plaintiff was held in jail for

several days, and the charges were later dismissed on January 17,
2017 when the State Attorney’s Office filed a “Not Filing Charge”
on all four counts.

(Doc. #129-8, p. 8.)
III.

Counts I and XV assert claims against Sheriff Rambosk under
§ 1983 for failing to properly and adequately train his deputies.
Specifically, Counts I and XV allege that the CCSO deputies’ false
arrests, use of excessive force, and issuance of illegal trespass
warnings were

the result of Sheriff Rambosk’s failure to properly

train his deputies “in the law regarding probable cause”; the law
regarding “unlawful seizure during an investigatory stop [and]
excessive force in making such unlawful seizure”; “how his deputies
respond

to

individuals

of

lower

socio-economic

standing

and

cognitive deficiencies”; and the law regarding unlawful trespass
warnings.

(Doc. #51, ¶¶ 192, 193, 202, 373-92.)

Under § 1983, a municipality may not be held vicariously
“liable for the wrongful actions of its police officers . . . .”
Gold

v.

City

of

Miami,

1998)(citation omitted).

151

F.3d

1346,

1350

(11th

Cir.

Thus, “a municipality may be held liable

for the actions of a police officer only when municipal ‘official
policy’ causes a constitutional violation.”

10

Id.

“In limited circumstances, a local government's decision not
to

train

certain

employees

about

their

legal

duty

to

avoid

violating citizens' rights may rise to the level of an official
government policy for purposes of § 1983.”
563 U.S. 51, 61 (2011)(citation omitted).

Connick v. Thompson,
A plaintiff asserting

such a claim “must prove that official municipal policy was
responsible for the action that caused his injury.”

Johnson v.

Dixon, 666 F. App'x 828, 830 (11th Cir. 2016)(citation omitted).
A municipality’s failure to train its “employees about their legal
duty to avoid violating citizens’ rights may rise to the level of
an official government policy for purposes of § 1983” where the
failure to train “amount[s] to deliberate indifference to the
rights of persons with whom the untrained employees come into
contact.”

Id. at 830.

Municipal “culpability for a deprivation

of rights is at its most tenuous where a claim turns on a failure
to train.”

Connick, 563 U.S. at 61.

Deliberate indifference “is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.”

Bd. of Cty. Comm'rs of Bryan

Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997).
similar

constitutional

violations

by

untrained

“A pattern of
employees

is

ordinarily necessary to demonstrate deliberate indifference for
purposes of failure to train.”
and quotation omitted).

Connick, 563 U.S. at 62 (citation

“A single incident would not be so

11

pervasive as to be a custom . . . because a custom must be such a
longstanding

and

widespread

practice

[that

it]

is

deemed

authorized by the policymaking officials because they must have
known about it but failed to stop it.”
643

F.3d

1306,

1310

(11th

Cir.

Craig v. Floyd Cty., Ga.,

2011)(citation

and

quotation

omitted).8
Sheriff Rambosk argues he is entitled to summary judgment on
Counts I and XV because Plaintiff has failed to establish a pattern
of similar constitutional violations.

The Court agrees.

While

the Court has found that Plaintiff’s April 4, 2014 arrest was not
supported by probable cause or arguable probable cause, Plaintiff
has set forth no evidence establishing a prior pattern of unlawful
seizures or arrests by CCSO deputies.

Similarly, Plaintiff has

not identified a pattern of arrests with excessive force by CCSO
deputies.9

Plaintiff

has

similarly

failed

to

set

forth

any

As Plaintiff recognizes (Doc. #135, p. 19), “a pattern of
similar violations might not be necessary to show deliberate
indifference” in a “narrow range of circumstances,” such as
“training [] officers in the constitutional limitation on the use
of deadly force.” Connick, 563 U.S. at 63 (quotations omitted).
The Court finds this exception inapplicable in this case.
8

To the extent Plaintiff relies on his December 16, 2016
arrest to demonstrate a pattern of false arrests and use of
excessive force by CCSO deputies, that incident is inapplicable to
this analysis. As set forth in the Court’s Opinion and Order (Doc.
#173, pp. 33-38), Deputy Wingo’s December 16, 2016 arrest was
supported by probable cause and his use of force was objectively
reasonable under the circumstances.
9

12

evidence establishing a pattern of deputies’ inability to respond
to individuals of lower socioeconomic standing or with cognitive
deficiencies.

See Mercado v. City of Orlando, 407 F.3d 1152, 1162

(11th Cir. 2005)(“[A] plaintiff [cannot] establish a [municipal
liability] claim when he [cannot] point to any other incidents
involving similar facts.”).
Plaintiff has also failed to establish a pattern of CCSO
deputies issuing unlawful trespass warnings.

It is undisputed

that Plaintiff was asked to leave the Shell gas station by Shell
employees and that the Shell trespass warning lists the gas station
owner, Ben Bagheri, as the person requesting the trespass warning.10
It is further undisputed that (1) the Waffle House trespass warning
was requested by a Waffle House employee; (2) the Sew Shore
trespass warning was requested by a Sew Shore employee; and (3)

Plaintiff disputes that Mr. Bagheri authorized the Shell
gas station trespass warning, relying on an affidavit by
Plaintiff’s private investigator. In the affidavit, Plaintiff’s
private investigator avers that he spoke with two Shell gas station
employees who told him that Mr. Bagheri “would not have authorized
a trespass warning against” Plaintiff.
(Doc. #135-15, p. 6.)
Plaintiff also relies on this affidavit to establish that the Shell
employees only asked Plaintiff to leave the Shell gas station “to
‘keep the peace’ with the Sheriffs [sic] Department in case they
needed to call a deputy for assistance in the future.” (Id. pp.
6-7.) Such hearsay, however, is insufficient to create an issue
of fact as to whether Mr. Bagheri authorized the trespass warning
or whether the Shell employees asked Plaintiff to leave.
See
Hughes v. Amerada Hess Corp., 187 F.R.D. 682, 688 (M.D. Fla.
1999)(A party “may not rely on rank hearsay . . . to oppose proper
motions for summary judgment.”).
10

13

the Dunkin’ Donuts trespass warning was requested by a Dunkin’
Donuts employee.11

As discussed in the Court’s previous Opinion

and Order (Doc. #175, pp. 24-27), although Plaintiff asserts the
CCSO

deputies

had

unlawful

motives

for

issuing

the

trespass

warnings, such trespass warnings are nonetheless lawful.

See

Gestewitz v. State, 34 So. 3d 832, 834-35 (Fla. 4th DCA 2010)(“[A]
police officer . . . may issue a trespass warning for unauthorized
entrance into a structure” at the request of “a ‘person authorized’
to issue a trespass warning.”); Fla. Stat. § 810.08(3)(defining
“the term ‘person authorized’” to include “any owner or lessee, or
his or her agent.”).

The Court thus finds that these incidents

are insufficient to establish that Sheriff Rambosk “knew of a need
to train and/or supervise in a particular area and the municipality
made a deliberate choice not to take any action.”

Gold, 151 F.3d

at 1350.
For the foregoing reasons, Plaintiff has failed to set forth
evidence

establishing

violations.

a

pattern

of

similar

constitutional

Sheriff Rambosk is therefore entitled to summary

Even assuming the Shell and Waffle House incident was
unlawful, such evidence is insufficient to establish a pattern of
deputies issuing unlawful trespass warnings. See Church v. City
of Huntsville, 30 F.3d 1332, 1344 (11th Cir. 1994)(“[S]ingle
instance of ‘harassment’ . . . certainly does not establish a
pattern or evidence a policy.”).
11

14

judgment on Plaintiff’s failure to train claims because there can
be no municipal liability without “evidence of a history of
widespread prior abuse by [d]epartment personnel that would have
put the sheriff on notice of the need for improved training or
supervision.”

Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir.

1990); Rosa v. City of Fort Myers, No. 205-CV-481-FTM-29SPC, 2007
WL 3012650, at *17 (M.D. Fla. Oct. 12, 2007)(“[T]he City cannot be
found to have acted with deliberate indifference in training”
regarding excessive force where “there is no evidence of any prior
similar incidents . . . [involving] excessive force.”).
Accordingly, it is now
ORDERED:
Defendant Kevin Rambosk’s Motion for Summary Judgment (Doc.
#126) is GRANTED.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2019.

Copies: Counsel of record

15

6th

day of