Bing v. Landreville et al
Filing
40
ORDER granting in part and denying in part 28 Defendant City of Jacksonville's Motion to Dismiss. Counts I and IV are dismissed with prejudice. Signed by Judge Marcia Morales Howard on 3/1/2018. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
VERNELL CHARLES BING, SR., as father
and personal representative of the Estate
of his son, Vernell Charles Bing, Jr.,
deceased,
Plaintiff,
Case No. 3:16-cv-1140-J-34JRK
vs.
TYLER L. LANDREVILLE, Deputy Sheriff
Jacksonville Sheriff’s Office, in his
individual capacity, et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on the Defendant City of Jacksonville’s Motion
to Dismiss (Doc. 28, Motion), filed on April 17, 2017.1
In the Motion, the City of
Jacksonville requests that the Court dismiss portions of plaintiff Vernell Charles Bing Sr.’s,
Second Amended Complaint, (Doc. 25, SA Complaint), filed April 1, 2017. Vernell Bing,
Sr. (Bing, Sr.), who files this action as the Personal Representative of the Estate of Vernell
Charles Bing, Jr. (Bing, Jr.), opposes the Motion. See Plaintiff’s Response in Opposition
to Defendant Williams’ Motion to Dismiss (Doc. 36, Response), filed June 7, 2017.
Accordingly, this matter is ripe for review.
1
In the Second Amended Complaint and Demand for Jury Trial (Doc. 25), Plaintiff sues Mike Williams, in
his official capacity as Sheriff of the Consolidated City of Jacksonville and Duval County. A suit against a
public official in his official capacity is treated as a suit against the local government entity he represents,
in this case, the City of Jacksonville. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Owens v.
Fulton County, 877 F.2d 947, 951 n.5 (11th Cir. 1989). As such, the City of Jacksonville filed the instant
Motion. The Court will interchangeably refer to Williams, the Jacksonville Sheriff’s Office (JSO), and the
City of Jacksonville as circumstances require.
1
I.
Standard of Review
In ruling on a motion to dismiss, the Court must accept the factual allegations set
forth in the complaint as true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s
World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable
inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701,
705 (11th Cir. 2010).
Nonetheless, the plaintiff must still meet some minimal pleading
requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004)
(citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint
should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough
facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). A “plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S.
at 555 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that
“conclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal”) (internal citation and quotations
2
omitted). Indeed, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions[,]” which simply “are not
entitled to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 680. Thus, in ruling on
a motion to dismiss, the Court must determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face[.]’”
Id. at 678 (quoting Twombly, 550 U.S. at 570).
II.
Background2
This case arises out of an encounter between Bing, Jr., and Officer Tyler L.
Landreville (Landreville), during which Landreville shot Bing, Jr., resulting in Bing, Jr.’s,
death.
On the early evening of May 22, 2016, Bing, Jr., was driving a red Chevrolet
Camaro convertible in Jacksonville, Florida. SA Complaint at ¶ 16. The car had been
reported stolen in March of that same year, but there was no indication that Bing, Jr., was
the individual who stole the vehicle. Id. At some point, Landreville observed Bing, Jr.,
driving the Camaro and attempted to stop him. Id. Bing did not stop and a brief pursuit
followed, during which Landreville “intentionally rammed his patrol vehicle head-on” into
Bing, Jr.’s, vehicle. Id. at ¶ 17. The pursuit covered approximately 3.7 miles and
concluded with Landreville again “ramming into the vehicle driven by” Bing, Jr., id.,
causing Bing, Jr., to crash into the corner of a building. Id.
As a result of the crash, . . . Bing, Jr. was injured and subsequently pulled
himself out of the driver’s side of the vehicle and into the street. Once . . .
Bing, Jr. exited, he was limping away from the vehicle in the middle of the
2
In considering the Motion, the Court must accept all factual allegations in the Amended Complaint as true,
consider the allegations in the light most favorable to the Plaintiff, and accept all reasonable inferences that
can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v.
Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). As such, the facts recited here are drawn from
the SA Complaint, and may well differ from those that ultimately can be proved.
3
street away from . . . Landreville. At this point in time, . . . Landreville drew
his service weapon from his holster and began firing at unarmed and
defenseless . . . Bing, Jr. At no time was . . . Bing, Jr. ever armed with any
type of weapon nor was . . . Bing, Jr. ever a threat to . . . Landreville. Despite
these facts, . . . Landreville began firing his service weapon at unarmed and
defenseless . . . Bing, Jr. . . . . Bing, Jr., was immediately struck by a bullet
from . . . Landreville’s service weapon in the left side of his head, critically
wounding him as he fell defenseless to the ground completely
incapacitated. Reports indicate . . . Landreville fired his service weapon at
. . . Bing, Jr. more than once severely and critically wounding him.
Id. at ¶ 18. Bing, Jr., was taken to the hospital, id. at ¶ 19, where staff later informed his
family that he “had no brain function and would not recover from his critical head injuries.”
Id. at ¶ 23. The next day, the family made the difficult decision to withdraw life-support
for Bing, Jr., and he died. Id. at ¶ 24.
At the time of the encounter between Bing, Jr., and Landreville, Landreville was
“employed as a member of the Jacksonville Sheriff’s Office [JSO]” and was also on
“reserve status with the United States Army as an active member of the Army Reserves.”
Id. at ¶ 27.
Defendant Sheriff Mike Williams (Williams) was the Sheriff of Jacksonville
and in that capacity was responsible for the direction and oversight of the JSO. Id. at ¶
30.
As alleged in the SA Complaint, in the six years prior to the filing of this action
“Jacksonville Sheriff’s deputies [had] shot 54 people including 40 black citizens, killing
29.” Id. at ¶ 31. Bing, Sr., includes various other statistics regarding the number of
citizens shot by police in Jacksonville in a ten year period, and the seemingly small
number of sheriff’s deputies terminated for their involvement in a shooting. Id. Bing, Sr.,
further alleges that JSO “hires and employs multiple Sheriff’s deputies who have had
active and/or reserve military experience either during, before or after employment as a
duly sworn law enforcement deputy employed by the [JSO].” Id. at ¶ 32. Landreville,
4
along with at least three other deputy sheriffs are “former military members who [have]
been involved in police involved shootings with citizens of Jacksonville.” Id. at ¶ 34. Bing,
Sr., asserts his belief that the military training these men received served as a “foundation
for their decisions, actions and reactions” in police/citizen encounters that resulted in
police shootings and citizen deaths. Id. Likewise, Bing, Sr., contends that these officers
did not receive any assimilation and re-training to help them transition from serving in a
military capacity to serving in a domestic policing capacity. Id. at ¶ 33.
Based on these allegations, Bing, Sr., as the appointed Personal Representative
of Bing, Jr.’s, estate, and as the natural parent of Bing, Jr., filed the instant action against
Landreville, in his individual capacity, and Williams, in his official capacity as Sheriff of the
Consolidated City of Jacksonville. Bing, Sr., asserts five claims in the SA Complaint.3 In
Count I, he asserts that Williams instituted a policy and custom permitting officers to use
deadly force in violation of the Fourth and Fourteenth Amendments through his failure to
instruct, supervise, control and/or discipline his officers. Id. at ¶ 31. In doing so, Bing,
Sr., claims that Williams’ failure to properly re-train and assimilate deputy sheriffs who
“have had active and/or reserve military experience either during, before or after
employment as a duly sworn law enforcement deputy employed by the [JSO],” id. at ¶ 32,
also created a municipal custom, policy, and practice that “created a heightened increase
in police involved shootings of citizens within the Jacksonville community by deputies who
have had military training and experience.” Id. As a result of Williams’ actions, Bing, Sr.,
3
In Counts II and V, Bing, Sr., brings a Florida wrongful death claim and a federal § 1983 excessive force
claim, respectfully, against Landreville in his individual capacity. See SA Complaint ¶¶ 40-45 (Count II –
Wrongful Death); id. at ¶¶ 60 – 65 (Count V – § 1983). Landreville has not sought to dismiss these claims,
but rather, has filed an Answer. See Answer and Affirmative Defenses (Doc. 29, Answer), filed April 17,
2017. Therefore, Bing, Sr.’s, claims against Landreville are not before the Court at this time. Accordingly,
and unless necessary for discussion of the claims against Williams and the City, the Court will not discuss
Counts II and V.
5
claims that Williams caused his son’s death, in violation of the United States Constitution
and 42 U.S.C. § 1983. Id. at ¶¶ 37-38. Bing, Sr., also asserts that as a result of Williams’
actions, Bing, Sr., “suffered mental anguish, and loss of capacity for the enjoyment of life.
The losses are either permanent or continuing, and . . . Bing, [Sr.], will suffer the losses
in the future, in violation of Bing, [Sr.’s] civil rights.” Id. at ¶ 39.
In Count III, Bing, Sr., asserts a claim for wrongful death pursuant to Florida Statute
sections 768.16-21, against Williams in his official capacity. Id. at ¶¶ 46-51. So doing,
he seeks relief on behalf of Bing Jr.’s, estate, and himself, as a survivor of Bing, Jr. Id. at
¶¶ 11-12, 44. Finally, in Count IV, Bing, Sr., asserts a claim pursuant to 42 U.S.C. § 1983
of federal municipal liability against the City for Bing, Jr.’s, death.4
As relief, Bing, Sr.,
seeks damages, attorney’s fees, post-judgment interest, statutory and discretionary
costs, any other relief the Court may deem appropriate, and a jury trial.5
III.
Arguments of the Parties
In the Motion, the City seeks to dismiss the federal § 1983 claim (Count I) and the
Florida statutory wrongful death claim (Count III). As to the § 1983 claim in Count I, the
City asserts that Bing, Sr., fails to allege that his son was deprived of a constitutional right,
and even if he was, the SA Complaint fails to show that the JSO’s customs, policies, or
practices were the moving force that caused the constitutional deprivation. Motion at 612. Similarly, as to the Florida wrongful death claim in Count III, the City contends that
Bing, Sr.’s, SA Complaint fails to state a claim upon which relief can be granted because
4
In the Motion, the City notes that Counts I and IV duplicate and largely overlap one another. Motion at 6
n.8. In his Response, Bing, Sr., acknowledges as much, and “respectfully abandon[s] Count IV as
duplicative of the issues raised in Count I” of the SA Complaint. Response at 5 n.3. As such, the Court will
not devote any further discussion to Count IV, but rather focus solely on the remaining Counts I and III.
5
The Court has jurisdiction over Bing, Sr.’s, § 1983 claims (Count I & IV) pursuant to federal question
jurisdiction, 28 U.S.C. § 1331, and exercises supplemental jurisdiction over his state law wrongful death
claim (Count III). See 28 U.S.C. § 1367(a); United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
6
Bing, Sr., does not sufficiently allege that Landreville used excessive force, thereby
resulting in a “wrongful act,” that caused Bing, Jr.’s, death, as required by Florida law. Id.
at 12-13. In the alternative, the City contends that it is entitled to sovereign immunity
pursuant to Florida Statute section 768.28(9)(a), given that in the SA Complaint Bing, Sr.,
asserts that Bing, Jr., was “brutally and maliciously killed by . . . Landreville.” Id. at 1314.
In response, Bing, Sr., argues as to Count I that “[t]aking all well-pled allegations
as true, the four-corners of [Bing, Sr.’s, SA Complaint] shows [sic] a clear constitutional
violation alleged . . . .” Response at 5. Moreover, he asserts that his SA Complaint also
sufficiently alleges that it was the JSO’s policies, customs, and practices that were the
moving force that caused Landreville’s unconstitutional deprivation of Bing, Jr.’s, life. Id.
at 12-19. Accordingly, he claims the Court should not dismiss Count I. As to Count III,
Bing, Sr., argues that his SA Complaint does sufficiently allege that Landreville used
excessive force in killing his son, and hence his wrongful death claim should not be
dismissed. Id. at 19-20.
IV.
Discussion
a. Count I – § 1983 Custom, Policy and Practice Claim
In Count I, Bing, Sr., claims that Williams, in his official capacity as Sheriff for the
City of Jacksonville, established policies that ultimately caused Bing, Jr.’s, death.6
Subsumed within this claim are three separate arguments. First, Bing, Sr., asserts that
Williams instituted a policy, custom, and practice in the JSO permitting officers to use
6
As previously noted, by asserting this claim against Williams in his official capacity as Sheriff, Bing, Sr., is
essentially bringing a suit against the City of Jacksonville. See Graham, 473 U.S. at 165-66; Owens, 877
F.2d at 951 n.5.
7
excessive and unlawful deadly force. Second, Bing, Sr., proffers that Williams failed to
properly instruct, train, supervise, control, or discipline officers who used unlawful deadly
force. Finally, Bing, Sr., claims that Williams failed to re-train and assimilate officers “who
have had active and/or reserve military experience either during, before or after
employment as a duly sworn law enforcement deputy employed by the [JSO].” Id. at ¶
32. In this context, Bing, Sr., also suggests that Williams effectively ratified Landreville’s
allegedly unlawful and unconstitutional actions. Id. at ¶ 36.
The Supreme Court of the United States has soundly rejected the theory of
respondeat superior as a basis for liability in § 1983 actions. See Monell v. Dept. of Soc.
Servs. of City of New York, 436 U.S. 658 (1978). Instead, a municipality may be liable in
a § 1983 action "only where the municipality itself causes the constitutional violation at
issue." Cook ex. rel. Estate of Tessier v. Sheriff of Monroe County, 402 F.3d 1092, 1115
(11th Cir. 2005) (citations omitted). Thus, a plaintiff must establish that an official policy
or custom of the municipality was the "moving force" behind the alleged constitutional
deprivation. See Monell, 436 U.S. at 693-94. “A policy is a decision that is officially
adopted by the municipality, or created by an official of such rank that he or she could be
said to be acting on behalf of the municipality.” Sewell v. Town of Lake Hamilton, 117
F.3d 488, 489 (11th Cir. 1997) (citation omitted). The policy requirement is designed to
“‘distinguish acts of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.’” Grech v. Clayton County, 335 F.3d 1326, 1329 n.5 (11th Cir. 2003)
(en banc) (quotation omitted). Indeed, municipal liability arises under § 1983 only where
“‘a deliberate choice to follow a course of action is made from among various alternatives’
8
by city policymakers.” City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)). A municipality will rarely have an
officially-adopted policy that permits a particular constitutional violation, therefore, in order
to state a cause of action for damages under § 1983, most plaintiffs must demonstrate
that the municipality has a custom or practice of permitting the violation. See Grech, 335
F.3d at 1330; McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). The Eleventh
Circuit has defined "custom" as "a practice that is so settled and permanent that it takes
on the force of law" or a "persistent and wide-spread practice.” Sewell, 117 F.3d at 489.
Similarly, in some circumstances, “the failure to provide proper training may fairly
be said to represent a policy for which [the county] may be held liable if it actually causes
injury.” City of Canton, 489 U.S. at 390. Failure to train can lead to municipal liability
“only where a municipality’s failure to train its employees in a relevant respect evidences
a ‘deliberate indifference’ to the rights of its inhabitants [such that the failure to train] can
be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id. at
388-89 (alteration added). Thus, in order to assert such a claim, a plaintiff must “present
some evidence that the municipality 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 v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). The Eleventh Circuit has
repeatedly held that "without notice of a need to train or supervise in a particular area, a
municipality is not liable as a matter of law for any failure to train or supervise." Id. at
1351.
Indeed, “the need for such training must be plainly obvious to [City]
decisionmakers,” such as where there is “evidence of a history of widespread prior
abuse.” Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990) (alteration added); see
9
also Rocker v. City of Ocala, Fla., 355 Fed. Appx. 312, 314 (11th Cir. 2009) (per curiam)
(unpublished). 7
Finally, a municipality may be liable “on the basis of ratification when a subordinate
public official makes an unconstitutional decision and when that decision is then adopted
by someone who does have final policymaking authority.” Hoefling v. City of Miami, 811
F.3d 1271, 1279 (11th Cir. 2016) (citing Matthews v. Columbia County, 294 F.3d 1294,
1297 (11th Cir. 2002)). In this context, the “final policymaker, however, must ratify not
only the decision itself, but also the unconstitutional basis for it.” Matthews, 294 F.3d at
1297-98 (internal quotations and citations omitted).
As implicated in this case, the
Eleventh Circuit has also suggested that a City’s “persistent failure to take disciplinary
action against officers can give rise to the inference that a municipality ratified conduct,
thereby establishing a ‘custom’ within the meaning of Monell.” Fundiller v. City of Cooper
City, 777 F.2d 1436, 1443 (11th Cir. 1985); see also Rivas v. Figueroa, No. 11–23195–
Civ., 2012 WL 1378161, *3 (S.D. Fla. Apr. 20, 2012) (“A municipality may be liable for
violating Section 1983 even where the municipality provides rules and regulations for the
operation of its police department, if those rules were repeatedly violated and the
municipality failed to rectify the situation”) (citing Depew v. City of St. Marys, 787 F.2d
1496, 1499 (11th Cir.1986)).
Although the City argues that the § 1983 claim in Count I should be dismissed
because Bing, Sr., fails to allege a constitutional violation, the Court need not decide this
issue, because even if he has, the SA Complaint fails to sufficiently allege that the City’s
7
In citing to Rocker, the Court notes that “[a]lthough an unpublished opinion is not binding . . . , it is
persuasive authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see
generally FED. R. APP. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.”).
10
policies, practices, and customs, or Williams’ failure to train his deputies, caused Bing,
Jr.’s, death. See e.g., Yates v. Cobb County Sch. Dist., 687 Fed. Appx. 866, 873 (11th
Cir. 2017) (assuming, without deciding, the existence of a constitutional violation but
determining that plaintiff had failed to sufficiently allege policy and custom); Thomas v.
Derryberry, No. 8:16-cv-3482-T-33AEP, 2017 WL 2267977, *3 (M.D. Fla. May 24, 2017)
(same); Belizaire v. City of Miami, No. 12-23327-Civ., 2013 WL 5780396, *8 (S.D. Fla.
Oct. 25, 2013) (same); Mersch v. City of Coral Springs, No. 10-60359-CIVMOORE/SIMONTON, 2010 WL 11507131, *5 (S.D. Fla. Sept. 21, 2010) (same).
As referenced above, in order to sufficiently allege a municipal policy and custom,
the plaintiff must assert facts that show a persistent and widespread practice of permitting
a constitutional violation. See Grech, 335 F.3d at 1330; McDowell, 392 F.3d at 1289;
Sewell, 117 F.3d at 489. Similarly, in the context of raising a failure to train claim, the
plaintiff must show that official decision makers were deliberately indifferent to the need
for training and discipline. See City of Canton, 489 U.S. at 390; Wright, 919 F.2d at 674;
Rocker, 2009 WL 4365226 at *2. Notably, the Supreme Court, in dictum, has left open
the possibility that in some instances “a need to train could be ‘so obvious,’” that a city
could be held liable even without a pattern of prior constitutional violations. See Gold,
151 F.3d at 1352 (citing City of Canton, 489 U.S. at 390). As an example, the Supreme
Court pointed to need to train officers in the use of deadly force where the officers are
provided firearms. City of Canton, 489 U.S. at 390 n.10.
Upon review of the SA Complaint, the Court is not persuaded that Bing, Sr., has
sufficiently alleged that the City has established a policy of permitting officers to
unreasonably use deadly force. In his SA Complaint, Bing, Sr., asserts that
11
[i]n the last six years, Jacksonville Sheriff’s deputies have shot 54 people
including 40 black citizens, killing 29. According to a [local newspaper
database], in the last ten years, 124 people have been shot by police in
Jacksonville, Florida. Ninety-six (96) of them or 76% were black. Black
citizens make up about 30% of Jacksonville’s population. Only two (2)
deputies have been fired as a result of the 124 shootings. Two (2) more
resigned under the threat of termination. For twenty-five (25) of the deputies
who shot people in the last ten years, it was not their first time firing at a
citizen. According to a Wall Street Journal analysis, the [JSO] ranked ninth
(9th) in the country for total number of fatal police shootings between 2007
and 2012.
Id. at ¶ 31. Bing, Sr., alleges that these numbers and statistics “serve to re-inforce” that
the City has a policy and custom of permitting deputy sheriffs to use unlawful deadly force
against citizens. SA Complaint at ¶ 31. The Court disagrees.
Rather than re-inforce an already established proposition, the numbers and
statistics Bing, Sr., cites represent a flawed attempt to lay the foundation for his custom
and policy claim. The numbers and statistics cited by Bing, Sr., reflect the race of
individuals shot by the police, the overall number of police shootings in the City of
Jacksonville, and how some officers have been disciplined following a shooting incident.
Id. at ¶ 31. However, that is all they do. Critically, they do not indicate whether the
reported shootings were unjustified, or represented the unlawful or excessive use of
deadly force. The number of police shootings, even combined with the race of the victims,
without more is insufficient to raise a plausible claim that any, much less a significant
number of the shootings, involved unlawful or excessive force. Moreover, Bing, Sr.’s,
own recitation reflects that at least on four instances, deputies who shot citizens were
disciplined or resigned “under the threat of termination.” Id. As such, while the statistics
detailed in the SA Complaint provide a general snapshot of police shooting activity in
Jacksonville, they do not support an allegation that the City has a widespread practice
12
and policy of permitting officers to use unreasonable deadly force when encountering
citizens. See e.g., Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) (eleven
reports of warrantless entries into homes did not create an issue of fact as to the existence
of a policy and practice of unconstitutional searches); Brooks v. D.R. Scheib, 813 F.2d
1191, 1193-94 (11th Cir. 1987) (mere citizen reports of police misconduct, without
verification that the reports had merit, were insufficient to establish a municipal policy and
practice of widespread police misconduct); Tucker v. Bradshaw, No. 11-80058-CIVRYSKAMP/VITUNAC, 2012 WL 13018687, *3 (S.D. Fla. Jan. 19, 2012) (municipal liability
claim undermined where complaint failed to allege that prior complaints of police
misconduct were similar to behavior alleged in current case, or were substantiated to be
valid complaints); Btesh v. City of Maitland, No. 6:10-cv-71-Orl-19DAB, 2011 WL
3269647, *30-31 (M.D. Fla. July 29, 2011) (court unwilling to find city had pattern and
practice of police use of deadly force where 48 prior reports of deadly force were
eventually deemed justified).
Similarly, Bing, Sr., has failed to allege sufficient facts to support the failure to train
prong of his § 1983 claim. Notably, the allegations in the SA Complaint are conclusory
at best. At most, Bing, Sr., asserts that Williams “failed to instruct, supervise, control
and/or discipline, on a continuing basis its agents, servants, and employees, so as to
prevent the use of excessive deadly force.” SA Complaint at ¶ 31. In doing so, he relies
again on the statistics to show that Williams was deliberately indifferent in failing to train
his officers in the use of deadly force. While the numbers and statistics reflect that there
have been police shootings in Jacksonville, nothing in Bing, Sr.’s, statistics suggests that
those shootings were the result of the unlawful use of deadly force, or were the result of
13
insufficient training or the absence of training on the use of deadly force. See e.g.,
Brooks, 813 F.2d at 1193-94; Tucker, 2012 WL 13018687 at *3; Btesh, 2011 WL 3269647
at *32-33. Compare Danley v. Allen, 540 F.3d 1298, 1315 (11th Cir. 2008) (numerous
known incidents of unconstitutional conduct of defendant jailors that bore sufficient
similarity to charges in instant case warranted court finding that supervisor had knowledge
of widespread abuse), abrogated on other grounds as recognized by Randall v. Scott,
610 F.3d 701, 709 (11th Cir. 2010); J.W. v. Birmingham Bd. of Educ., 143 F. Supp. 3d
1118, 1168-73 (N.D. Ala. 2015) (deliberate indifference established where supervising
officer knew of, and permitted, officers to engage in behavior that deviated from stated
policies). Here, Bing, Sr., has presented the Court only with conclusory and speculative
allegations supported by “facts” that fail to support his underlying premise.
As the
Supreme Court has stated, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555). Bing, Sr.’s, failure to train claim, lacking in
factual support, cannot proceed.
Finally, Bing, Sr. also fails to allege sufficient facts to support his argument that
Williams was deliberately indifferent in his failure to re-train and assimilate deputy sheriffs
“who have had active and/or reserve military experience either during, before or after
employment as a duly sworn law enforcement deputy employed by the [JSO],” or that his
alleged failure to discipline officers who have used excessive deadly force amounts to
ratification. SA Complaint at ¶ 32, 36. To adequately plead such a claim, Bing, Sr., must
allege facts supporting a plausible conclusion that Williams’ failure to train or assimilate
14
officers who had military backgrounds was borne out of a deliberate indifference to a
widespread history of prior abuse. City of Canton, 489 U.S. at 388-89; Wright, 919 F.2d
at 674; Rocker, 2009 WL 4365226 at *2. He has failed to do so.
In the SA Complaint, Bing, Sr., asserts that
[t]he [JSO] has ignored the relationship between military training and
experience and active policing and how it impacts police involved shootings
by these deputies who have returned to law enforcement service after
serving in a military capacity. There is no policy and/or practice and custom
in place within the [JSO] to retrain and/or re-assimilate these sworn deputies
despite there being a need for such retraining and assimilation.
SA Complaint at ¶ 33. To support his allegation of the “need for such retraining and
assimilation,” id., Bing, Sr., names three other officers, along with Landreville, who have
military backgrounds and have been “involved in police involved shootings with citizens.”
SA Complaint at ¶ 34. He further asserts that
[t]here are a number of police involved shootings by JSO deputies who were
former and/or active military members whose military training had been a
foundation for their decisions, actions and reactions to police involved
shootings that have resulted in the shootings and/or the shooting deaths at
the hands of law enforcement deputies within the [JSO].
Id.
These allegations suffer from the same defects as did Bing, Sr.’s, allegations
supporting his policy and custom, and failure to train arguments.
First, Bing, Sr.’s, reference to three or four alleged instances in which an officer
with some form of military background was involved in a police shooting does not rise to
the level of representing a widespread history of prior abuse. See e.g., Hays v. Curry,
No. 2:16-cv-00384-RDP, 2016 WL 6395429, *3 (N.D. Ala. Oct. 28, 2016); Burnette v.
Ciolino, 750 F. Supp. 1562, 1564-65 (M.D. Fla. 1990); Prieto v. Metro. Dade County, 718
F. Supp. 934, 938-39 (S.D. Fla. 1989). Second, the bare facts he asserts in regard to
police shootings by officers with military backgrounds do not support an inference that
15
those shooting incidents were in any way unjustified or an unlawful use of deadly force,
much less that the officers’ military background played any role of the use of force. See
e.g., Pineda, 291 F.3d at 329; Brooks, 813 F.2d at 1193-94; Tucker, 2012 WL 13018687
at *3; Btesh, 2011 WL 3269647 at *30-31. Finally, Bing, Sr.’s, allegations as to Williams’
failure to re-train and assimilate officers with a military background are nothing more than
speculative and conclusory statements lacking any factual foundation. He asserts that
the JSO has “ignored the relationship between military training and active policing,” id. at
¶ 33, and that officers with military backgrounds who were involved in shooting incidents
relied on their “military training . . . [as] a foundation for their decisions, actions and
reactions.” Id. at ¶ 34. However, he provides nothing to support these broad, speculative
and conclusory allegations.8 Applying the pleading standards required by Iqbal, 556 U.S.
at 678, and Twombly, 550 U.S. at 555, the Court concludes that Bing, Sr., has failed to
sufficiently allege facts to support the failure to re-train and assimilate military officers
component of his § 1983 claim against the City and Williams.
For the foregoing reasons, the Court concludes that each of Bing, Sr.’s, theories
asserted in support of his § 1983 claim against Williams fails. Therefore, Count I is due
to be dismissed.
8
It is in this context that Bring, Sr., obliquely suggests that Williams ratified Landreville’s conduct. See SA
Complaint at ¶ 36 (“. . . Williams directly or indirectly, under color of law, approved or ratified the unlawful
and deliberately indifferent conduct heretofore described and took no action in an effort to identify, properly
train and re-assimilate military personnel back into policing activity within the [JSO].”). However, Bing, Sr.’s,
SA Complaint does not provide the Court with any allegations supporting the assertion that the City
persistently failed to take disciplinary action against officers so as to establish a custom or policy of failing
to re-train and assimilate deputy sheriff’s with military experience. See Fundiller, 777 F.2d at 1443; Rivas,
2012 WL 1378161 at *3.
16
b. Count III – Florida Wrongful Death Claim
In Count III, Bing, Sr., asserts a wrongful death claim pursuant to Florida Statute
sections 768.16-21, against Williams in his official capacity, based upon the negligent or
wrongful acts or omissions of Landreville. SA Complaint at ¶ 50-51.9 In the Motion, the
City asserts that the facts laid out in the SA Complaint fail to sufficiently allege that
Landreville engaged in a “wrongful act.” Motion at 13. Alternatively, the City asserts that
Bing, Sr.’s, claim against Williams, and by extension, the City, is barred by sovereign
immunity. Id. at 13-14. In response, Bing, Sr., reasserts his contention that he has
sufficiently pled facts to support this claim. Response at 18-19.
Unlike municipal liability claims under § 1983, under Florida law, a municipality can
be vicariously liable for the tortious acts of its employees. See Young v. Borders, No.
5:13-cv-113-Oc-22PRL, 2014 WL 11444072, *21 (M.D. Fla. Sept. 18, 2014); Saballos v.
Bonilla, No. 05-21928-CIV, 2006 WL 3940552, *8 (S.D. Fla. Dec. 5, 2006). Indeed,
Florida’s statutory waiver of sovereign immunity, codified in Florida Statute section 768.28
states
[t]he exclusive remedy for injury or damage suffered as a result of an act,
event, or omission of an officer, employee, or agent of the state or any of its
subdivisions . . . shall be by action against the governmental entity, or the
head of such entity in her or his official capacity, or the constitutional officer
of which the officer, employee, or agent is an employee . . . .
FLA. STAT. § 768.28(9)(a); see also Searer v. Wells, 837 F. Supp. 1198, 1201 (M.D. Fla.
1993).10
However, section 768.28(9)(a) also provides that individual officers can
9
As with Count I, because Bing, Sr., has brought this claim against Williams in his official capacity as Sheriff,
his claim is properly framed as one against the City of Jacksonville. See Graham, 473 U.S. at 165-66;
Owens, 877 F.2d at 951 n.5.
10
A city, as well as its associated units, such as a sheriff’s office, falls under the ambit of section
768.28(9)(a). See e.g., Shehada v. Tavss, 965 F. Supp. 2d 1358, 1375 (S.D. Fla. 2013) (noting
municipalities are governed by FLA. STAT. § 768.28); Battiste v. Lamberti, 571 F. Supp. 2d 1286, 1305-06
(S.D. Fla. 2008) (FLA. STAT. § 768.28 applies to Sheriff).
17
nonetheless be subject to suit where the officer acted “in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or
property,” FLA. STAT. § 768.28(9)(a), but under those circumstances the municipality is
shielded from liability. Id.; see also e.g., Gregory v. Miami-Dade County, No. 16-17093,
2017 WL 5483158, *12 (11th Cir. Nov. 15, 2017); Desai v. Farmer, No. 5:12-cv-495-Oc34PRL, 2014 WL 5474417, *9 (M.D. Fla. Oct. 29, 2014); Hargis v. City of Orlando, No.
6:12-cv-723-Orl-37KRS, 2012 WL 6089715, *6 n.12 (M.D. Fla. Dec. 7, 2012); Petithomme
v. County of Miami Dade, No. 11-20525-CIV, 2011 WL 3648622, *3 n.2 (S.D. Fla. Aug.
16, 2011); Ramos v. City of Jacksonville, No. 3:07-cv-37-J-12TEM, 2007 WL 2310783,
*4 (M.D. Fla. Aug. 9, 2007); Burks v. Beary, 713 F. Supp. 2d 1350, 1360-61 (M.D. Fla.
2010); Searer, 837 F. Supp. at 1202. Thus, where an officer, in the course of his or her
employment with the municipality, engages in a wrongful act but does not do so
maliciously or in bad faith, the municipality is the party to be held responsible. See e.g.,
Gregory, 2017 WL 5483158 at *12; Desai, 2014 WL 5474417 at *9; Hargis, 2012 WL
6089715 at *6 n.12; Petithomme, 2011 WL 3648622 at *3 n.2; Peguero v. Delaurentos,
No. 11-20069-CIV-JORDAN, 2011 WL 13223704, *1 (S.D. Fla. May 12, 2011); Burks,
713 F. Supp. 2d at 1360-61. In other words, under Florida law, a party can only succeed
in an excessive force claim against an individual officer, or the government entity who
employed that officer, but not both. See Ullman v. Fla. Dep’t of Corr., No. 5:17-cv-66-Oc30PRL, 2017 WL 2103392, *2 (M.D. Fla. May 15, 2017) (citing McGhee v. Volusia County,
679 So. 2d 729, 733 (Fla. 1996)); Desai, 2014 WL 5474417 at *9; Hargis, 2012 WL
6089715 at *6 n.12.
18
While Florida sovereign immunity law precludes a plaintiff from recovering
concurrently from both the municipality and the employee for a wrongful death claim, see
FLA. STAT. § 768.28(9)(a), the federal pleading rules permit a plaintiff, in initiating his or
her action, to plead in the alternative against both the municipality and the officer. See
FED. RULE CIV. PRO. 8(d) (Federal Rule(s)) (“A party may set out 2 or more statements of
a claim or defense alternatively or hypothetically, either in a single count or defense or in
separate ones. If a party makes alternative statements, the pleading is sufficient if any
one of them is sufficient.”) Here, Bing, Sr., did just that.
In his claim for wrongful death against the City, he asserted that
Williams, in his official capacity, is liable for the death caused by the
negligent or wrongful acts or omissions of any employee of the [JSO] while
acting within the scope of their employment.
. . . Deputy Landreville was at all relevant times an employee of the
[JSO] and was acting within the scope of his employment during the time of
the incident.
SA Complaint at ¶ 50-51. Conversely, in his wrongful death claim against Landreville,
Bing, Sr., alleged that “Landreville’s actions [were] either in bad faith, with malicious
purpose, or in a manner exhibiting a willful disregard of human rights . . . .” Id. at ¶ 43.11
Ultimately, as the facts are further developed by the parties, only one of these claims can
potentially prevail. However, at this stage of the proceedings, Bing, Sr.’s, alternative
pleading is entirely permissible. See e.g., Gregory, 2017 WL 5483158 at *12; Bickel v.
City of Coral Springs, No. 17-cv-60606, 2017 WL 2439078 at *4 (S.D. Fla. June 6, 2017);
Ullman, 2017 WL 2103392 at *2; Claridy v. City of Lake City, No. 3:13-cv-558-J-39PDB,
11
The Court also notes that Bing, Sr., makes clear that he is pleading in the alternative. See SA Complaint
at ¶ 43 (“ . . . or as set forth in the next Count of the complaint alternatively, the actions were done in the
course and scope of [Landreville’s] employment with the [JSO] making the Sheriff in his official capacity
alternatively liable for the actions of . . . Landreville.”).
19
2014 WL 12656531, *2 n.2 (M.D. Fla. Feb. 11, 2014); Hargis, 2012 WL 6089715 at *6
n.12; Petithomme, 2011 WL 3648622 at *3 n.2; Ashley v. City of Hialeah, No. 11-20490CIV, 2011 WL 3236051, *3 (S.D. Fla. July 28, 2011); Peguero, 2011 WL 13223704 at *1;
Hair v. Lawnwood Med. Ctr., Inc., No. 08-14128-CIV, 2008 WL 2690793 at *1 (S.D. Fla.
July 2, 2008); Searer, 837 F. Supp. at 1202.
The City argues that because Bing, Sr., asserted in his SA Complaint that
Landreville “brutally and maliciously killed” Bing Jr., SA Complaint at ¶ 38, Bing Sr. has
plead facts showing Landreville’s bad faith, and therefore, pursuant to Florida Statute
section 768.28(9)(a), the City is immune from suit. See Motion at 13-14. In making this
argument the City acknowledges that Bing, Sr. did not incorporate the allegations set forth
in paragraph 38 into the wrongful death claim in Count III against the City. See Motion at
13 n.11. However, the City nonetheless notes that paragraph 48 of the SA Complaint,
which is a part of Count III, reads “[a]s a direct and proximate result of the conduct of . . .
Landreville, as set forth above, . . . Bing, Jr., died . . . .” Motion at 13, n.11 (emphasis
added by Defendant). From this, the City suggests that in Count III, Bing, Sr., has alleged
that Landreville acted in bad faith or with malicious intent when he shot Bing, Jr., therefore
precluding the City from liability. The City’s argument goes too far.
Certainly, paragraph 48 of Bing, Sr.’s, SA Complaint does reference Landreville’s
actions “as set forth above,” when asserting under Count III that the City should be liable
under Florida’s wrongful death statute for Bing, Jr.’s, death. SA Complaint at ¶ 48. What
the City fails to acknowledge, however, is that in the first paragraph of Count III, Bing, Sr.,
expressly re-alleges and incorporates by reference the first 27 paragraphs of his SA
Complaint, id. at ¶ 46, but does not incorporate paragraph 38, the paragraph that contains
20
the “brutally and maliciously killed” language. Id. at ¶ 38. Moreover, there is nothing in
paragraphs 1 – 27 of the SA complaint that describes Landreville’s intent or mental state
when he allegedly shot Bing, Jr. Finally, the “brutally and maliciously” language the City
relies upon to attempt to shield itself from liability, is language drawn from Count I of Bing,
Sr.,’s SA Complaint, which asserts a federal § 1983 municipal liability claim against the
City for Landreville’s actions, rather than a state tort claim. Accordingly, the Court rejects
the City’s argument that Count III should be dismissed because Bing, Sr., pled that
Landreville acted “brutally and maliciously,” and therefore the City is immune from suit
pursuant to section 768.28(9)(a). Bing, Sr., is permitted under the alternative pleading
rules to plead both that Landreville may be liable for malicious behavior, and in the
alternative, that the City is liable for Landreville’s actions if he acted in wrongfully
committing an intentional tort. See e.g., Gregory, 2017 WL 5483158 at *12; Bickel, 2017
WL 2439078 at *4; Ullman, 2017 WL 2103392 at *2 n.2; Claridy, 2014 WL 12656531 at
*2; Hargis, 2012 WL 6089715 at *6 n.12; Petithomme, 2011 WL 3648622 at *3 n.2;
Ashley, 2011 WL 3236051 at *3; Peguero, 2011 WL 13223704 at *1; Hair, 2008 WL
2690793 at *1; Searer, 837 F. Supp. at 1202.
Turning to the merits of Count III, the City contends that Bing, Sr., has not
sufficiently alleged that Landreville acted wrongfully by using excessive force in shooting
Bing, Jr. In evaluating whether an officer’s use of force is excessive, courts examine
whether the officer’s actions were reasonable under the circumstances. See Sullivan v.
City of Pembroke Pines, 161 Fed. Appx. 906, 911 (11th Cir. 2006); Vaughn v. City of
Orlando, No. 6:07-cv-1695-Orl-19GJK, 2009 WL 3241801, *8 (M.D. Fla. Sept. 29, 2009)
(aff’d 413 Fed. Appx. 175, 178-79 (11th Cir. 2011)); City of Miami v. Sanders, 672 So. 2d
21
46, 46 (Fla. 3d Dist. Ct. App. 1996). Notably, Florida Statutes section 776.05 provides
that an officer is justified in using any force, even deadly force, which he reasonably
believes to be necessary. See FLA. STAT. § 776.05. However, the statute specifically
states that it will not constitute a defense for the wrongful use of deadly force unless
the use of deadly force was necessary to prevent [an] arrest from being
defeated by . . . flight, and when feasible, some warning had been given,
and; [t]he officer reasonably believes that the fleeing felon poses a threat of
death or serious physical harm to the officer or others; or [t]he officer
reasonably believes that the fleeing felon has committed a crime involving
the infliction or threatened infliction of serious harm to another person.
FLA. STAT. § 776.05(3).
In his SA Complaint, and as specifically incorporated into Count III, Bing, Sr.,
asserts that Landreville engaged in a vehicular pursuit of Bing, Jr., and caused him to
crash into a building. SA Complaint at ¶ 17.
As a result of the crash, . . . Bing, Jr. was injured and subsequently pulled
himself out of the driver’s side of the vehicle and into the street. Once . . .
Bing, Jr. exited, he was limping away from the vehicle in the middle of the
street away from . . . Landreville. At this point in time, . . . Landreville drew
his service weapon from his holster and began firing at unarmed and
defenseless . . . Bing, Jr. At no time was . . . Bing, Jr. ever armed with any
type of weapon nor was . . . Bing, Jr. ever a threat to . . . Landreville. Despite
these facts, . . . Landreville began firing his service weapon at unarmed and
defenseless . . . Bing, Jr. . . . . Bing, Jr., was immediately struck by a bullet
from . . . Landreville’s service weapon in the left side of his head, critically
wounding him as he fell defenseless to the ground completely
incapacitated. Reports indicate . . . Landreville fired his service weapon at
. . . Bing, Jr. more than once severely and critically wounding him.
Id. at ¶ 18. Bing, Jr., ultimately died from his wounds. Id. at ¶ 24.
In reviewing these factual assertions, and drawing all reasonable inferences in
favor of Bing, Sr., see Randall, 610 F.3d 705, the Court must determine if the factual
assertions plausibly allege that Landreville engaged in a wrongful act, and more
specifically, that he used excessive force in shooting Bing, Jr.
22
So doing, the Court
concludes that the SA Complaint states a claim, plausible on its face, that Landreville
used excessive force when he shot Bing, Jr.
As noted earlier, Florida law provides that an officer may be liable for the use of
deadly force unless
the use of deadly force was necessary to prevent [an] arrest from being
defeated by . . . flight, and when feasible, some warning had been given,
and; [t]he officer reasonably believes that the fleeing felon poses a threat of
death or serious physical harm to the officer or others; or [t]he officer
reasonably believes that the fleeing felon has committed a crime involving
the infliction or threatened infliction of serious harm to another person.
FLA. STAT. § 776.05(3). Based on the facts alleged in the SA Complaint, a jury could
conclude that Landreville’s use of deadly force in shooting Bing, Jr., exceeded the bounds
of reasonableness. See e.g., Gregory, 2017 WL 5483158 at *6, *13; Salvato v. Blair, No.
5:12-cv-635-Oc-10PRL, 2014 WL 1899011, *8, *9, *17 (M.D. Fla. May 12, 2014);
Peguero, 2011 WL 13223704 at *2; Saballos, 2006 WL 3940552 at *7-8. According to
the allegations of Bing, Sr.’s, SA Complaint, at the time Landreville shot Bing, Jr., Bing,
Jr., was unarmed, defenseless, and at no time posed a threat of any kind much less a
“threat of death or serious physical harm to the officer or others.” FLA. STAT. § 776.05(3).
While Bing, Jr., was driving a vehicle that had been reported stolen, he was not alleged
to be the person who stole the vehicle. Moreover, nothing in the SA Complaint suggests
that Landreville believed Bing, Jr. had “committed a crime involving the infliction or
threatened infliction of serious harm to another person.”
Id.
Similarly, at the time
Landreville shot Bing, Jr., he was limping away from the officer after having suffered from
a car crash. While Landreville may have shot Bing, Jr., to prevent his escape, that is not
alleged in the SA Complaint, and drawing that inference, which would favor Landreville
rather than Bing, Sr., is not permissible at the motion to dismiss stage of the proceeding.
23
Finally, there are no facts to suggest that Landreville issued a warning to Bing, Jr., prior
to shooting him. See FLA. STAT. § 776.05(3). Accordingly, the Court determines that
Bing, Sr., has stated a plausible claim that Landreville used excessive force when he shot
Bing, Jr.
Finally, Bing, Sr., asserts in his SA Complaint that
[p]ursuant to § 768.28, . . . Williams, in his official capacity, is liable for the
death caused by the negligent or wrongful acts or omissions of any
employee of the [JSO] while acting within the scope of their employment.
Deputy Landreville was at all relevant times an employee of the
[JSO] and was acting within the scope of his employment during the time of
the incident.
SA Complaint at ¶ 50-51. The City does not challenge Bing, Sr.’s, basic proposition that
pursuant to Florida Statutes section 768.28, Williams can be held vicariously liable for
Landreville’s actions. Nor does the City challenge Bing, Sr.’s, assertion that Landreville
was a JSO employee “acting within the scope of his employment during the time of the
incident.” SA Complaint at ¶ 51. Taken as a whole, therefore, Bing, Sr., has sufficiently
alleged that Williams, in his official capacity as Sheriff of the City of Jacksonville, can be
held liable for Landreville’s use of force in shooting Bing, Jr., which resulted in Bing, Jr.’s,
wrongful death.
For these reasons, the Court finds that Count III against Mike Williams, in his
official capacity as Sheriff of the Consolidated City of Jacksonville, Florida, is not due to
be dismissed.
In light of the foregoing, it is
ORDERED:
24
Defendant City of Jacksonville, and Mike Williams, in his official capacity as Sheriff
of the Jacksonville Sheriff’s Office’s, Motion to Dismiss (Doc. 28), is GRANTED in part
and DENIED in part.
1. The Motion to Dismiss is granted to the extent that Counts I and IV are
DISMISSED with prejudice.
2. In all other respects, the Motion to Dismiss is DENIED.
DONE AND ORDERED at Jacksonville, Florida on March 1, 2018.
lc26
Copies to:
Counsel of Record
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