Campbell v. The City of Jacksonville et al
Filing
12
ORDER granting in part and denying in part 5 Defendants' Motion to Dismiss. Case Management Report due April 12, 2018. Signed by Judge Marcia Morales Howard on 3/23/2018. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DENEANE CAMPBELL, as Personal
Representative of the Estate of K.A.,
Deceased,
Plaintiff,
v.
Case No. 3:17-cv-914-J-34JRK
THE CITY OF JACKSONVILLE, et al.,
Defendants.
ORDER
THIS CAUSE is before the Court on the Defendants’ Motion to Dismiss, filed by the
City of Jacksonville, Mike Williams, individually and in his Official Capacity as Sheriff of the
Consolidated City of Jacksonville and Duval County, and J.C. Nobles, (Doc. 5, Motion), on
August 25, 2017.
In the Motion, Defendants request that the Court dismiss plaintiff
Deneane Campbell’s Complaint, (Doc. 2, Complaint), which she filed in state court July
12, 2017.1 Deneane Campbell, who files this action as the Personal Representative of
the Estate of her deceased minor son, K.A., opposes the Motion.
See Plaintiff’s
Response to Defendants’ Motion to Dismiss and Incorporated Memorandum of Law (Doc.
11, Response), filed October 4, 2017. Accordingly, this matter is ripe for review.
1
On August 19, 2017, Defendant, the City of Jacksonville, with the consent of all Defendants, removed the
action to this Court. See Notice of Removal (Doc. 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
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
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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 action arises out of an encounter between defendant Officer J.C. Nobles
(“Nobles”) and K.A., in which Nobles shot K.A., resulting in his death.
In the early afternoon of March 19, 2015, Nobles responded to a report of a stolen
vehicle in Jacksonville, Florida. Complaint at ¶ 8. Nobles identified the stolen vehicle
and waited for additional officers to arrive at the scene to set up a tactical plan. Id. While
he was waiting, Nobles noticed two males approach the vehicle, enter it, and drive away.
Id. at ¶ 9. One of these males was K.A., who was sixteen years old at the time. Id. at ¶
4. Nobles followed the vehicle with his siren and lights activated. After a short pursuit,
the vehicle crashed into bushes, and the two men in the car fled on foot. At the same
time, Nobles “exited his patrol vehicle, and drew his weapon.” Id. at ¶ 10. He determined
that K.A. had a weapon in his hands, fired two shots at K.A., and pursued him on foot. Id.
K.A. then discarded the weapon he was carrying, fled a short distance, and crouched
behind a vehicle. Id. at ¶ 11. Nobles continued his pursuit. As Nobles approached him,
K.A. “stood and turned to flee at which time . . . Nobles [] fired two shots, striking . . . K.A.
in the back of the head.” Id. K.A. died from his wounds. Id. at ¶ 12.
2
In considering a motion to dismiss, the Court must accept all factual allegations in the 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. Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir.
2015) (quotations and citations omitted). As such, the recited facts are drawn from the Complaint and may
differ from those that ultimately can be proved.
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At the time of these events, Nobles was “an officer acting within the course and
scope of his employment by the Jacksonville Sheriff’s Office and the City of Jacksonville.”
Id. at ¶ 7. Likewise, Defendant Mike Williams (“Williams”) was “the duly elected Sheriff of
Jacksonville, Duval County, Florida.”
Id. at ¶ 6.
In this position, Williams “was
responsible for the supervision, training, instruction, control, discipline and conduct of the
employees and agents of the Jacksonville Sheriff’s Office [(JSO)], an agency of the City of
Jacksonville,” id., including Nobles. As such, “Nobles acted in conformance with the
policies of . . . [Sheriff] Williams.” Id. at ¶ 7.
Deneane Campbell (“Campbell”), K.A.’s mother, and the Personal Representative
of the Estate of K.A., brings this action against the City of Jacksonville (“City”), Williams,
and Nobles. In Count I, she asserts a Florida state law claim of negligent wrongful death
against the City of Jacksonville. Id. at 4-6. In support of this claim, she asserts that the
City, by and through its “law enforcement officers, agents and employees,” breached its
duty of care in the “exercise of the use of deadly force in the pursuit” of fleeing suspects.
Id. at ¶ 16. More particularly, she asserts that the City’s negligence is evidenced by
Nobles’ failure to follow the City’s Deadly Force and Firearms policies, id. at ¶ 16.a.,
coupled with the City’s failure to train, supervise and discipline Nobles for his past alleged
use of excessive and deadly force, id. at ¶ 16.e-h, and the City’s failure to take appropriate
corrective measures to prevent other unjustified shootings “in light of the documented
history within the Jacksonville Sheriff’s office of such” events. Id. at ¶ 16.i.
In Count II, Campbell asserts that Nobles is liable under 42 U.S.C. § 1983 for
depriving K.A. of his life without substantive due process of law under the Fourth and
Fourteenth Amendments. Id. at ¶¶ 18-22. In Count III, she brings a § 1983 claim of
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municipal liability against the City and Williams, asserting that Williams “through his agents
and employees, acting within their authority and under color of state law, instituted
customs, practices, and/or policies . . . that directly deprived . . . K.A. of his life and liberty
without due process of law . . . as a violation of the Fourth and Fourteenth Amendments.”
Id. at ¶ 24. 3
Within this claim, Campbell asserts that Williams failed to adequately
discipline his officers in the use of deadly force; failed to adequately train his officers in
regard to the effective use of force, especially in the context of pursuing fleeing and
unarmed African-American male suspects; and ratified his officers’ excessive force
decisions and actions, thereby creating a custom, policy, and practice of the use of
excessive force. Id. at ¶¶ 25, 27. Additionally, as part of Count III Campbell asserts that
Nobles, in the context of his encounter with K.A., was a final policy maker for Williams, in
that Nobles’ “decisions were not immediately or effectively reviewable.”
Id. at ¶ 26.
Campbell seeks a jury trial, compensatory damages, punitive damages, and attorney’s
fees and costs.4
3
At the outset, Defendants note that Campbell sues Williams, in part, “in his capacity as the ‘duly elected’
Sheriff of Jacksonville, Duval County, Florida,” while also naming the “City of Jacksonville” as a defendant.
Motion at 1, n.1. A suit against an individual in his official capacity is “to be treated as a suit against the
entity” the individual represents. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Yeldell v. Cooper
Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992). Here, Sheriff Williams represents the City of
Jacksonville, and therefore, these two defendants are one and the same. Hence, the Court will refer to both
interchangeably, as context requires.
The Court also notes that in the caption of her Complaint, along with listing Williams as a defendant
in his official capacity, Campbell also lists Williams in his individual capacity. Complaint at 1. However,
Count III of Campbell’s Complaint is titled “Municipal Liability for Deprivation of Life without Substantive Due
Process.” Id. at 7. There, Campbell re-alleges and incorporates earlier portions of her Complaint, where
she addresses the City’s actions. See id. at ¶ 23 (incorporating ¶¶ 1-16, 16.e-i). More importantly, in the
specific paragraphs associated with Count III, she alleges facts which she contends show that Williams
instituted customs, policies, and practices which should be attributed to the City. Id. at ¶¶ 24-29. Campbell
does not, however, set forth any factual allegations suggesting how Williams would be individually liable for
K.A.’s death. Accordingly, the Court concludes that it was Campbell’s intent to name Williams solely in his
official capacity and will analyze Count III of the Complaint and the parties’ arguments accordingly.
4
The Court notes that Campbell initially filed her action in state court. Defendants removed the action to
this Court. Doc. 10 (Notice of Removal) filed August 9, 2017. In doing so, Defendants asserted that the
Court has jurisdiction over the matter pursuant to 28 U.S.C. 1331 (federal question jurisdiction) and 28 U.S.C.
§ 1441 (removal of civil actions). Doc. 1 at ¶ 3. The Court agreed. See Doc. 3 (Jurisdictional Notice),
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III.
Arguments of the Parties
Defendants seek to dismiss all three counts in Campbell’s Complaint.
As to
Campbell’s Count I negligence claim, Defendants assert that the claim is barred by the
state statute of limitations. Motion at 3-5. Defendants further assert that Count I should
be dismissed because it constitutes a “shotgun pleading,” in that it “presents multiple state
claims interwoven in a haphazard fashion.” Id. at 5-6 (internal quotations and citations
omitted). In parsing through the potential claims subsumed within Count I, Defendants
contend that Nobles’ failure to follow city policies is not sufficient to state a claim of
negligence, id. at 6; there is no such claim under Florida law for the negligent use of
excessive or deadly force, id. at 7-8; and that as a matter of law, Campbell cannot bring a
claim of negligent training and supervision against the City. Id. at 8-11.
In addressing Campbell’s federal claims against Nobles and Williams for the
unconstitutional deprivation of K.A.’s life, Defendants assert that both claims are barred by
the relevant statute of limitations for § 1983 claims.
Id. at 11-12.
Additionally,
Defendants contend that to the extent Campbell denominates Counts II and III as
presenting substantive due process violations under the Fourteenth Amendment, those
counts must be dismissed based on the facts alleged. Id. at 12. Defendants alternatively
argue that Counts II and III are due to be dismissed because Campbell fails to sufficiently
allege a constitutional violation as to either Nobles’ actions or those of the City. Id. at 1315, 18-21. Finally, Defendants assert that Nobles is entitled to qualified immunity. Id. at
15-18.
filed August 14, 2017. The Court has jurisdiction over Campbell’s two § 1983 claims (Counts II and III)
pursuant to federal question jurisdiction, 28 U.S.C. § 1331, and exercises supplemental jurisdiction over her
state law negligence claim (Count I). See 28 U.S.C. § 1367(a); United Mine Workers v. Gibbs, 383 U.S.
715, 725 (1966).
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In response, Campbell asserts that Count I is not barred by the state statute of
limitations. Response at 3-4. She further counters that the Complaint is not a “shotgun
pleading,” id. at 4-5, and that the allegations in Count I are sufficient to state a claim under
Florida law. Id. at 5-7. Similarly, as to Counts II and III, Campbell contends that neither
claim is barred by the appropriate limitations period for § 1983 claims, and both are
sufficiently pled under either the Fourteenth or Fourth Amendments.
Id. at 7-9.
Specifically addressing Count II against Nobles, Campbell proffers that Nobles should not
be afforded qualified immunity as the Complaint sufficiently alleges a constitutional
violation the contours of which were clearly established at the time of the events giving rise
to the claim. Id. at 9-16. Finally, Campbell contends that as to Count III against the City
and Williams, the Complaint sufficiently alleges the existence of unconstitutional city
policies, customs and practices. Id. at 16.
IV.
Discussion
a. Count I – Negligence Claim Against the City
In Count I, Campbell asserts that the City “through its law enforcement officers,
agents, and employees,” failed to use reasonable care in any number of instances
associated with the City’s implementation of, and responses to, deadly force used by its
officers. Complaint at ¶¶ 16-17. In the Motion, Defendants argue that the applicable
limitations period for Campbell’s negligence claims against the City has expired, and
therefore the claim should be dismissed as untimely. Motion at 3-5.
The statute of limitations for Campbell’s negligence claim against the City for K.A.’s
death is determined under Florida Statutes section § 768.28, which requires that a
wrongful death claim brought “against the state or one of its agencies or subdivisions for
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damages” be brought within two years of the accrual of the action.5 See Cone v. Orosa,
No. 13-cv-24674-JLK, 2014 WL 1383028, *3 (S.D. Fla. April 8, 2014) (noting two year
statute of limitations for wrongful death claims against a municipality). Under Florida law,
a cause of action for wrongful death accrues on the date of the death. Fulton County
Adm’r v. Sullivan, 753 So.2d 549, 552 (Fla. 1999). However, a party cannot bring a
wrongful death claim against a municipality until the claimant first presents “the claim in
writing to the appropriate agency” and the “agency denies the claim in writing.” FLA. STAT.
ANN. § 768.28(6)(a). During the period between the claimant’s presentation of the claim
and the agency’s denial of it, the limitations period is tolled. Id. at § 768.28(6)(d). Florida
law further provides that “the failure of the . . . appropriate agency to make a final
disposition of the claim within 90 days after it is filed shall be deemed a final denial of the
claim.” Id. See also Skyles v. McCoy, No. 6:16-cv-1968-Orl-37TBS, 2017 WL 1322071,
*2-3 (M.D. Fla. April 7, 2017) (statute of limitations is tolled for period of time taken by
agency to deny claim, or ninety days if agency fails to make a final disposition of the claim);
Cone, 2014 WL 1383028 at *3 (same). Therefore, Campbell had two years from the date
of K.A.’s death to file her wrongful death action against the City. However, during the
period in which she presented her claim to the City pursuant to Florida Statute section
768.28(6)(a), the limitations period paused, but would start again upon the City’s written
denial of her claim, or in the absence of a written denial, ninety days after her submitting
notice to the City.
5
Section 768.28 provides that “an action for damages arising from . . . wrongful death must be commenced
within the limitations for such actions in s. 95.11(4).” FLA. STAT. ANN. § 768.28(14). Section 95.11(4) of
the Florida code guides that an action for wrongful death must be brought within two years. FLA. STAT. ANN.
§ 95.11(4). Additionally, section 768.28(2) directs that “‘state agencies or subdivisions’ include . . . counties
and municipalities.” FLA. STAT. ANN. § 768.28(2).
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Here, K.A. died on Sunday, March 19, 2015, and as such without tolling the twoyear limitations period would end on Monday, March 20, 2017.6 On January 23, 2017,
Campbell presented her notice of claim to the City pursuant to Florida Statutes section
768.28(6)(a), Complaint at ¶ 2, which temporarily stopped the running of the limitations
period. The City, however, did not provide Campbell with a written denial of her claim.
As a result, the limitations period began to run again on April 24, 2017, ninety days after
Campbell presented her claim to the City. Therefore, the limitations period on K.A.’s
wrongful death claim expired on June 19, 2017.
In asserting that her negligence claim against the City is not untimely, Campbell
misreads section 768.28(6)(d) and overlooks case law interpreting that provision.
Campbell reads the language which states that the “statute of limitations for . . . wrongful
death actions is tolled for the period of time taken by the . . . appropriate agency to deny
the claim,” FLA. STAT. ANN. § 768.28(6)(d), to suggest that unless and until the City
affirmatively denies the claim, the limitations period remains tolled. Response at 3-4.
She argues that the language “to deny the claim,” indicates that there must be some action
by the agency before the limitations period resumes. Id. at 4. Additionally, she contends
that to the extent section 768.28 sought to deviate from common law sovereign immunity
standards by imposing liability on state and municipal entities, such statutes must be
construed strictly. Id. As such, she asserts that
[t]he legislature in amending section 768.28, as it relates to claims for
wrongful death, could easily have stated that the limitations period was
tolled until the agency denied the claim or the expiration of 90 days without
any action. Instead, a strict reading of the statute indicates that the
6
The two year period actually would have ended on March 19, 2017, but that date falls on a Sunday.
Florida Rule of Judicial Administration 2.514(a)(1)(C) directs that if the last day of the limitations period is a
“Saturday, Sunday, or legal holiday . . . the period continues to run until the next day that is not a Saturday,
Sunday, or legal holiday.” FLA. R. OF JUD. ADMIN. 2.514(a)(1)(C).
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limitations period is tolled until such time as the agency affirmatively denies
the claim. This places the onus on the agency, if it wishes to end the tolling
period, to deny the claim. The expiration of the 90 day period without such
a denial permits the plaintiff to file suit but does not end the tolling.
Based on a strict construction of the statute, plaintiff’s claim was
timely filed.
Id. (emphasis in original). However, in making this argument, Campbell overlooks the
statute’s explicit language providing that “the failure of the . . . appropriate agency to make
a final disposition of a claim within 90 days after it is filed shall be deemed a final denial of
the claim.” FLA. STAT. ANN. § 768.28(6)(d). This language is followed by the language
which directs that “[t]he statute of limitations for . . . wrongful death actions is tolled for the
period of time taken by the . . . appropriate agency to deny the claim.” Id. (emphasis
added). Taken together, these two sentences dictate that the limitations period is tolled
for the period of time that the agency takes to deny the claim, and if the agency takes no
such action within ninety days, the claim will be deemed denied. Case law supports this
interpretation. See Thomas v. City of Jacksonville, No. 3:13-cv-737-J-32MCR, 2017 WL
3316478, *8 (M.D. Fla. Aug. 3, 2017) (agency’s failure to dispose of a claim within ninety
days is deemed a final denial of the claim); Skyles, 2017 WL 1322071 at *2-3 (statute of
limitations is tolled for period of time taken by agency to deny claim, or ninety days if
agency fails to make a final disposition of the claim); Cone, 2014 WL 1383028 at *3 (same).
In short, K.A.’s wrongful death claim accrued on March 19, 2015, and the limitations
period began to run. It was tolled beginning on January 23, 2017, for ninety days, at which
point the City’s failure to respond to Campbell resulted in a denial of her claim. The
limitations period then resumed on April 24, 2017, and expired on June 19, 2017.
Campbell filed her legal action against the City on July 12, 2017. See Complaint at 1.
Therefore, the Florida wrongful death claim is due to be dismissed with prejudice as barred
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by the statute of limitations.7
b. Counts II and III – § 1983 Claims Against Nobles and the City
i. Denomination of § 1983 Claims
As to both Counts II and III, Defendants assert the claims in these counts are due
to be dismissed because Campbell has incorrectly labeled them as implicating K.A.’s
substantive due process rights. Motion at 12-13. While the Court agrees that Campbell
improperly denominated Counts II and III, her erroneous naming of these claims does not
warrant dismissal.
Campbell titles Count II as “Deprivation of Life Without Substantive Due Process by
Defendant Nobles.” Complaint at 6. Likewise, she titles Count III as a claim of “Municipal
Liability for Deprivation of Life Without Substantive Due Process.” Id. at 7. Within each
of these counts Campbell includes allegations consistent with claims based on a
substantive due process violation. See id. at ¶ 19 (Nobles’ action “shockingly offends a
universal sense of justice and conscience”); ¶ 24 (municipal policy, practices, and customs
violated rights in a way that “shocks the conscience”). See also County of Sacramento v.
Lewis, 523 U.S. 833, 847 (1998) (articulating the shocks the conscience standard of review
for substantive due process claims); Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir.
2007 (applying shocks the conscience standard of review for substantive due process
claims). However, within each count, Campbell also asserts that Nobles’ and the City’s
actions are subject to liability “under 42 U.S.C. section 1983, as a violation of the Fourth
and Fourteenth Amendments.” Complaint at ¶¶ 19, 24.
7
In their Motion, Defendants assert a number of additional reasons that Count I should be dismissed. See
Motion at 5-11. Because the Court has determined that Count I is due to be dismissed as barred by the
statute of limitations, it is unnecessary to address Defendants’ additional arguments.
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The Supreme Court has unequivocally instructed that “all claims that law
enforcement officers have used excessive force – deadly or not – in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due
process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original).
Likewise, a “substantive due process analysis is inappropriate if a plaintiff’s claim is
covered by the Fourth Amendment.” Hardy v. Town of Hayneville, 50 F.Supp.2d 1176,
1186 (M.D. Ala. 1999) (citing County of Sacramento, 523 U.S. at 843). See also Griffin
v. Runyon, No. 5:04-CV-348 (DF), 2006 WL 1344818, *6 (M.D. Ga. May 16, 2006)
(excessive force claim is properly analyzed under the Fourth Amendment). Moreover, the
Court observes the well-established principle that the Federal Rules “do not countenance
dismissal of a complaint for [an] imperfect statement of the legal theory supporting the
claim asserted.” See Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346 (2014); see
also Eiber Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 673 Fed. Appx. 925, 927 (11th
Cir. 2016). Indeed, “[a] complaint need not specify in detail the precise theory giving rise
to recovery. All that is required is that the defendant be on notice as to the claim being
asserted against him and the grounds on which it rests.” Sams v. United Food & Comm.
Workers Int'l Union, AFL–CIO, CLC, 866 F.2d 1380, 1384 (11th Cir. 1989); see also
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981) (“The form of the
complaint is not significant if it alleges facts upon which relief can be granted, even if it fails
to categorize correctly the legal theory giving rise to the claim.”). See also Keene v. Prine,
477 Fed. Appx. 575, 584 (11th Cir. 2012);8 Evans v. McClain of Ga., Inc., 131 F.3d 957,
8
In citing to Keene, 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
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964 n.2 (11th Cir. 1997); Southern Pan Servs. Co. v. S.B. Ballard Const. Co., No. 3:07-cv592-J-33TEM, 2008 WL 3200236, *4 (M.D. Fla. Aug. 6, 2008).
The facts alleged in Campbell’s Complaint, however unartfully titled, focus on
Nobles’ alleged use of excessive and deadly force, and of the City’s purported customs,
policies, and practices instituting, supporting, and permitting the same. See Complaint,
¶¶ 11-12, 16. Similarly, subsumed in both Counts II and III, Campbell asserts that Nobles
and the City violated K.A.’s Fourth Amendment rights.
Id. at ¶¶ 19, 24.
Notably,
Defendants had no difficulty identifying that the factual basis of Campbell’s claims are
grounded in the Fourth Amendment and responding accordingly. See Motion at 14-15.
Therefore, to the extent Defendants seek dismissal of Counts II and III on the basis of how
Campbell named those counts in the Complaint, that request is due to be denied. The
Court seeks to avoid turning pleading into “a game of skill in which one misstep by counsel
may be decisive to the outcome.” Siedle v. Nat’l Ass’n of Sec. Dealers, 248 F. Supp. 2d
1140, 1143 (M.D. Fla. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957), abrogated
on other grounds by Bell Atlantic Corp., 550 U.S. 544, 562-63 (2007)). Accordingly, the
Court will proceed to review the Defendants’ substantive challenges to the sufficiency of
Counts II and III of the Complaint.
ii. Statute of Limitations
Defendants contend that both Counts II and III are barred by the applicable statute
of limitations, and therefore are due to be dismissed. More specifically, they assert that
Campbell’s § 1983 claims should be subject to the same two-year limitations period which
governs her Florida state law wrongful death claim, and therefore, her claims are untimely.
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.”).
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Defendants are incorrect.
The law regarding the timeliness of claims under § 1983 is “[a] hodgepodge of state
and federal law[.]” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). This
is so because § 1983 does not itself contain a statute of limitations. Wilson v. Garcia, 471
U.S. 261, 266 (1985). In such circumstances, the Supreme Court has recognized that
“[w]hen Congress has not established a time limitation for a federal cause of action, the
settled practice has been to adopt a local time limitation as federal law if it is not
inconsistent with federal law or policy to do so,” id. at 266-267, and 42 U.S.C. § 1988
codifies this approach. Id. Indeed, pursuant to 42 U.S.C. § 1988, courts are required to
follow a three step process in determining the appropriate limitations period for a federal
statute that is otherwise silent on the matter. Wilson., 471 U.S. at 267. First,
courts are to look to the laws of the United States so far as such laws are
suitable to carry [the civil and criminal civil rights statutes] into effect. If no
suitable federal rule exists, courts undertake the second step by considering
application of state common law, as modified and changed by the
constitution and statutes’ of the forum state. A third step asserts the
predominance of the federal interest: courts are to apply state law only if it
is not inconsistent with the Constitution and laws of the United States.
Id. (internal quotations and citations omitted). Following this process, the Wilson Court
determined that courts should apply the relevant state’s personal injury statute of
limitations to all § 1983 claims. Id. at 275.
In Owens v. Okure, 488 U.S. 235 (1989), the Court noted that its decision in Wilson
did not address the question of “what limitations period should apply to a § 1983 action
where a State has one or more statutes of limitations for certain enumerated intentional
torts, and a residual statute for all other personal injury actions.” Id. at 236. As to that
question, the Owens Court held “that where state law provides multiple statutes of
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limitations for personal injury actions, courts considering § 1983 claims should borrow the
general or residual statute for personal injury actions.” Id. at 249-50. Together, Wilson
and Owens guide that the statute of limitations for all § 1983 claims should be drawn from
the relevant state personal injury statute of limitation, and where that state has several
limitations periods for different types of personal injury claims, a court should select the
state’s general or residual limitations period for personal injury actions.
Applying this precedent to § 1983 claims arising in the state of Florida, as is the
case here, the Eleventh Circuit has consistently found that Florida’s residual four-year
statute of limitations applies to a broad range of § 1983 claims. See e.g., McGinley v.
Mauriello, 682 Fed. Appx. 868, 871 (11th Cir. 2017) (applying state residual four year
limitations period in context of access to courts § 1983 claim); Ellison v. Lester, 275 Fed.
Appx. 900, 901-02 (11th Cir. 2008) (applying state residual four-year limitations period in
context of prisoner personal property § 1983 claim); City of Hialeah, Fla. v. Rojas, 311
F.3d 1096, 1103 (11th Cir. 2002) (applying state residual four-year limitations period in
context of racially discriminatory hiring practices § 1983 claim); Burton v. City of Belle
Glade, 178 F.3d 1175, 1188 (11th Cir. 1999) (applying state residual four-year limitations
period in context of voting rights § 1983 claim). Additionally, federal district courts in
Florida, when applying a statute of limitations to § 1983 wrongful death claims, have
appropriately followed suit. See Fuston v. Florida, No. 2:12-cv-279-FtM-99DNF, 2013 WL
937575, *2 (M.D. Fla. Mar. 11, 2013); Estate of Bashimam v. City of Tallahassee, No.
4:10cv343-RH/WCS, 2011 WL 13232538, *2 (N.D. Fla. Mar. 11, 2011); Niesen v. Egger,
No. 8:08-cv-1599-T-30EAJ, 2010 WL 1852036 (M.D. Fla. May 6, 2010).
- 15 -
Despite the foregoing precedent, Defendants assert that the state’s two-year
wrongful death limitations period, rather than the four-year residual period, should apply to
Campbell’s § 1983 claims arising from K.A.’s untimely death. In doing so, they attempt to
distinguish Wilson and Owens by contending first that the wrongful death statute of
limitations is more appropriate in this case, which alleges a wrongful death, than the state’s
general personal injury statute of limitations. Motion at 11. Second, Defendants contend
that Owens’ guidance does not apply here because that case dealt solely with “what
limitations period should apply to a § 1983 action where a State has one or more statutes
of limitations for certain enumerated intentional torts, and a residual statute for all other
personal injury actions.” Id. (citing Owens, 488 U.S. at 236. Defendants reason that
because “Florida does not provide multiple statutes of limitations for certain enumerated
intentional torts and a residual statute for all other personal injury actions,” id. at 11-12,
Owens’ holding is inapposite.
In making this argument, Defendants mischaracterize
Florida’s statute of limitations scheme which unquestionably provides specific statutes of
limitation for certain intentional torts and a residual limitations period for all other claims.
Compare FLA. STAT. ANN. §§ 95.11(3)(o) and (4)(d), (g) with § 95.11(3)(p). Moreover,
they read Owens too narrowly and miss the broader context in which that decision was
rendered.
Nothing in either Wilson or Owens suggests that courts should have the option to
select a limitations period other than the state’s sole or residual personal injury limitations
period. Indeed, in Wilson and Owens, the Court intentionally sought to bring a measure
of uniformity and consistency to the limitations periods applicable to § 1983 claims, rather
than permitting courts to select different limitations periods for different types of § 1983
- 16 -
claims. Owens, 488 U.S. at 248 (using a single residual limitations period allows potential
§ 1983 plaintiffs and defendants to “readily ascertain, with little risk of confusion or
unpredictability, the applicable limitations period in advance of filing a § 1983 action);
Wilson, 471 U.S. at 266 (rendering decision to eliminate the “conflict, confusion, and
uncertainty concerning the appropriate statute of limitations to apply” to § 1983 actions).
Defendants’ arguments to the contrary call for a significant departure from the Court’s
guidance in Wilson and Owens, as well as Eleventh Circuit precedent applying Florida’s
four-year residual limitations period to a broad spectrum of § 1983 claims. See McGinley,
682 Fed. Appx. at 871; Ellison, 275 Fed. Appx. at 901-02; City of Hialeah, Fla., 311 F.3d
at 1103; Burton, 178 F.3d at 1188.
Having considered the arguments of the parties, the Court concludes that
Campbell’s § 1983 claims arising from K.A.’s death are governed by Florida’s residual fouryear limitations period. As noted earlier in this Order, K.A. died on March 19, 2015.
Therefore, Campbell had four years from the date of K.A.’s death to bring her § 1983
claims against Nobles and the City. She filed her action in July of 2017, slightly two years
after her son’s death. As such, her § 1983 claims are timely.9
9
The Court acknowledges that there exists a measure incongruence between the limitations period for
Campbell’s state law negligence wrongful death claim and her § 1983 claims. While both claims are borne
out of the same set of facts, Campbell’s state law claim is barred by the state’s two-year limitations period
for wrongful death claims against state and municipal employees, see FLA. STAT. ANN. § 95.11(4)(d),
768.28(14), while her § 1983 claims against Nobles and the City are timely because she brought the claims
within the state’s four-year residual personal injury limitations period. See id. at § 95.11(3)(p). The
possibility of incongruent limitations periods for related state and federal claims was raised by Justice
O’Connor in her dissent to the Wilson decision. See Wilson, 471 U.S. at 280 (O’Connor, J., dissenting).
There, she specifically noted that while the Court’s decision might create uniformity within a given state for
§ 1983 claims, the Wilson decision did not eliminate the possibility that a § 1983 claim could have a different
statute of limitations than that “provided by the state for common law or state statutory action on the identical
set of facts.” Id. at 285-86 (internal citations and quotations omitted). And indeed, this case highlights that
very curiosity. Nonetheless, when faced with similar arguments to select a limitations period other than that
required by Wilson and Owens, courts have rejected such a position. See e.g., King-White v. Humble Indep.
Sch. Dist., 803 F.3d 754, 758-761 (5th Cir. 2015); Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993);
Szymanski v. Davidson, No. 4:09-cv-062, 2011 WL 5593134, *5-6 (D.N.D. Nov. 17, 2011).
- 17 -
iii. Count II – § 1983 Wrongful Death Claim against Nobles
Turning to the substance of Campbell’s claims, the Court addresses Defendants’
challenges to Campbell’s § 1983 claim against Nobles first. In Count II Campbell asserts
that when Nobles shot K.A., he violated K.A.’s Fourth and Fourteenth Amendment rights.
Complaint at ¶¶ 18-22. Nobles seeks dismissal of Count II arguing that Campbell has
failed to allege a constitutional violation, Motion at 13-15, and in the alternative, that Nobles
is entitled to qualified immunity. Id. at 15-18. Because the qualified immunity analysis
necessarily requires the Court to consider whether Campbell’s allegations are sufficient to
state a claim for a constitutional violation, the Court will begin with Nobles’ assertion that
he is protected from suit by qualified immunity.
“[S]ection 1983 provides individuals with a federal remedy for the deprivation of
rights, privileges, or immunities protected by the Constitution or the laws of the United
States that are committed under color of state law.” Brown v. City of Huntsville, Ala., 608
F.3d 724, 733 n.12 (11th Cir. 2010) (citation omitted); see 42 U.S.C. § 1983. Thus, to
state a claim for relief under § 1983, a plaintiff must sufficiently allege that he or she was
“‘deprived of a right secured by the Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state law.’” See Focus on the Family v.
Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003) (quotation
omitted).
A defendant sued under § 1983 may raise the defense of qualified immunity. Scott
v. Harris, 550 U.S. 372, 375-76 (2007). “Qualified immunity protects from civil liability
government officials who perform discretionary functions if the conduct of the officials does
not violate ‘clearly established statutory or constitutional rights of which a reasonable
- 18 -
person would have known.’” Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As a result, this defense protects from
suit “‘all but the plainly incompetent or those who knowingly violate the law.’”10 Carr v.
Tatangelo, 338 F.3d 1259, 1266 (11th Cir. 2003) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)). Indeed, as “‘government officials are not required to err on the side of
caution,’ qualified immunity is appropriate in close cases where a reasonable officer could
have believed that his actions were lawful.” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th
Cir. 2002) (quoting Marsh v. Butler Cnty., 268 F.3d 1014, 1031 n. 8 (11th Cir. 2001)). In
order to be entitled to qualified immunity, Nobles must first establish that his conduct was
within the scope of his discretionary authority.11 See Webster v. Beary, 228 Fed. Appx.
844, 848 (11th Cir. 2007) (per curiam); Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002).
In this case, the parties do not dispute that the allegations in Campbell’s Complaint
support a finding that Nobles, in pursuing K.A. on March 19, 2015, for potentially
possessing a stolen vehicle, was acting within his discretionary authority. See Motion at
16; Response at 10. As such, for the purpose of resolving the Motion, the Court finds that
Nobles has satisfied this threshold burden to invoke the protection of qualified immunity.
See Lee, 284 F.3d at 1194 (finding that “there can be no doubt that [the officer] was acting
10
In determining whether a defendant is entitled to qualified immunity, the court views the facts and all
reasonable inferences in the light most favorable to the plaintiff, to determine if the factual allegations in the
complaint “support reasonable inferences that: (1) the Defendant Officers’ respective conduct violated the
Fourth Amendment; and (2) the illegality of such conduct was ‘clearly established.’” Scott v. City of Orlando,
No. 6:15-cv-533-Orl-37TBS, 2015 WL 6688262, *3 (M.D. Fla. Oct. 30, 2015) (quoting and citing Epps v.
Watson, 492 F.3d 1240, 1243 (11th Cir. 2007); Behrens v. Pelletier, 516 U.S. 299, 309 (1996)).
11
“‘A government official acts within [his] discretionary authority if the actions were (1) undertaken pursuant
to the performance of [his] duties and (2) within the scope of [his] authority.’” Jones v. City of Atlanta, 192
Fed. Appx. 894, 897 (11th Cir. 2006) (per curiam) (quoting Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir.
1995)).
- 19 -
in his discretionary capacity when he arrested [the plaintiff],” even though the plaintiff
asserted that the officer used excessive force in the manner in which she was arrested).
The burden thus shifts to Campbell to demonstrate that qualified immunity is not
appropriate, using the two-prong test established by the Supreme Court in Saucier v. Katz,
533 U.S. 194, 201 (2001). The first inquiry is, taken in the light most favorable to the nonmoving party, “do the facts alleged show the officer's conduct violated a constitutional
right?” Id.; see also Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007) (quoting
Scott, 550 U.S. at 377). If the court finds that a violation of a constitutional right has been
alleged based on the plaintiff's version of the facts, then the next question is whether the
right was clearly established at the time of the violation.12 Saucier, 533 U.S. at 201; Scott,
550 U.S. at 377; Lee, 284 F.3d at 1194. The court must undertake this second inquiry “in
light of the specific context of the case, not as a broad general proposition.” Saucier, 533
U.S. at 201.
The Court will turn first to the question of whether Campbell’s allegations are
sufficient to state a plausible claim that Nobles violated K.A.’s Fourth Amendment rights.
The Fourth Amendment "guarantees citizens the right 'to be secure in their persons . . .
against unreasonable . . . seizures.’" Graham, 490 U.S. at 394. Consequently, the
amendment "provides the right to be free from the use of excessive force in the course of
an investigatory stop or other seizure of the person." Beshers v. Harrison, 495 F.3d 1260,
1265 (11th Cir. 2007) (internal quotations marks omitted); Mercado v. City of Orlando, 407
F.3d 1152, 1156-57 (11th Cir. 2005). There is no dispute that Nobles’ actions in shooting
12
In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court modified the procedure mandated in
Saucier permitting trial judges the discretion to determine which prong of the qualified immunity analysis
should be resolved first. See Pearson, 555 U.S. at 236.
- 20 -
K.A. resulted in a seizure under the Fourth Amendment. See Scott v. Harris, 550 U.S.
372, 381 (2007); Tennessee v. Garner, 471 U.S. 1, 7 (1985). However, not every seizure
results in liability under § 1983; "the seizure must be unreasonable." Beshers, 495 F.3d
at 1266. Therefore, the initial inquiry turns on whether Nobles’ actions were objectively
reasonable. See Scott, 550 U.S. at 381; Graham, 490 U.S. at 397; Beshers, 495 F.3d at
1263 n.4 & 1266; Mercado, 407 F.3d at 1157 ("In determining whether the officers' force
was reasonable, [the court] must determine 'whether a reasonable officer would believe
that this level of force is necessary in the situation at hand.'").
In evaluating the reasonableness of a seizure, the Court must "balance the nature
and quality of the intrusion on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." Garner, 471
U.S. at 8 (internal quotation marks omitted); see also Scott, 550 U.S. at 383-84; Graham,
490 U.S. at 396. This is a key principle underlying the Fourth Amendment. See Garner,
471 U.S. at 8. In balancing the interests, such as the individual's interest in his own life
and the effectiveness of law enforcement, it is plain that, regardless of the existence of
probable cause to seize an individual, "an officer may not always [effect a seizure] by killing
the person." Id. at 9. Thus, in establishing an outside boundary for reasonableness of
the use of deadly force in the case of a fleeing felon, the United States Supreme Court
found that such force may not be used, as a matter of course, to seize nondangerous,
fleeing felons when those felons pose no immediate threat to the officer or others. See
id. at 11.
On the other hand, if "the officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or to others, it is not
- 21 -
constitutionally unreasonable to prevent escape by using deadly force." Id.; see also
Pace v. Capobianco, 283 F.3d 1275, 1281 (11th Cir. 2002). Indeed, the Supreme Court
has specifically concluded that an officer may use deadly force when: (1) "the suspect
threatens the officer with a weapon" or "there is a probable cause to believe that he has
committed a crime involving the infliction or threatened infliction of serious physical harm";
(2) the force is necessary to prevent escape; and (3) a warning has been given, if feasible.
Garner, 471 U.S. at 11-12; see also Pace, 283 F.3d at 1281.
Nevertheless, although the Garner Court identified several factors that may be
considered when determining whether an officer's use of deadly force was lawful, see
Beshers, 495 F.3d at 1267, the Supreme Court has cautioned that these factors are not to
be applied rigidly or in every case involving deadly force. See Scott, 550 U.S. at 382
(opining that "Garner did not establish a magical on/off switch that triggers rigid
preconditions whenever an officer's actions constitute 'deadly force'"). Regardless of the
factors considered in determining whether deadly force was appropriate, the operative
inquiry is whether, upon consideration of the totality of the circumstances, the officer acted
reasonably. See Scott, 550 U.S. at 383-384; Garrett v. Athens-Clarke County, Ga., 378
F.3d 1274, 1279 (11th Cir. 2004). Indeed, the Supreme Court has eschewed easy-toapply legal tests in favor of "slosh[ing] . . . through the fact-bound morass of
'reasonableness.'" Scott, 550 U.S. at 383; see also Graham, 490 U.S. at 396 (recognizing
that "the test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application" (internal quotation marks omitted)).
Here, the Court must determine whether Campbell’s complaint sufficiently alleges
that Nobles acted in a constitutionally unreasonable manner when he shot K.A., an
- 22 -
unarmed fleeing suspect, in the back of the head.
At this point in the proceedings,
drawing all reasonable inferences in favor of Campbell, as the Court must, Omar ex. rel.
Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003), the Court determines Campbell
has alleged facts sufficient to support a plausible claim that Nobles violated K.A.’s
constitutional rights.
In her Complaint, Campbell alleges that Nobles encountered K.A. in the course of
responding to a report of a stolen vehicle. Complaint at ¶ 8. After identifying the stolen
vehicle and awaiting backup, Nobles observed two individuals, one of whom was the
sixteen year old K.A., id. at ¶ 4, enter the vehicle and drive away. Id. at ¶ 9. Nobles
briefly pursued the vehicle with his siren and lights activated, but after the vehicle crashed
into bushes, its occupants fled on foot. Id. at ¶ 10. At that point, Nobles “exited his patrol
vehicle, and drew his weapon.” Id. He determined that K.A. had a weapon in his hands,
fired two shots at him, and pursued K.A. on foot. Id. K.A. then discarded the weapon he
was carrying, fled a short distance, and crouched behind a parked vehicle. Id. at ¶ 11.
Nobles continued his pursuit. As Nobles approached him, K.A. “stood and turned to flee
at which time . . . Nobles [] fired two shots, striking . . . [him] in the back of the head.” Id.
K.A. died from his wounds. Id. at ¶ 12.
Given the limited facts as they are currently presented in Campbell’s Complaint, the
Court cannot find as a matter of law that Nobles’ actions were objectively reasonable.
Without resorting to a formulaic application of the factors suggested by the Supreme Court
in Garner, one cannot ignore that the facts presented by Campbell’s allegations fall well
short of the indicia of reasonableness laid out by the Court regarding an officer’s use of
deadly force. For example, there is no allegation that K.A. threatened Nobles, that he
- 23 -
posed a threat to others, or that Nobles had probable cause to believe that K.A. had
“committed a crime involving the infliction or threatened infliction of serious physical harm.”
Garner, 471 U.S. at 11-12. Moreover, from Campbell’s allegations, the Court cannot infer
that Nobles gave K.A. any warning. Finally, Campbell asserts that at the time Nobles shot
K.A., the teenager was unarmed. Id. at ¶ 11.
The Supreme Court has recognized that the police “may not seize an unarmed nondangerous suspect by shooting him dead.” Garner, 471 U.S. at 11. Here, viewing the
facts as alleged by Campbell in the light most favorable to her, Campbell has stated a
plausible claim, that Nobles shot a fleeing unarmed non-threatening suspect in the back
of the head to stop that suspect’s escape. These allegations state a plausible claim of a
constitutional violation. This is not to say that Campbell has stated a winning claim, only
that she has stated a plausible claim sufficient to survive dismissal.
Nobles’ arguments to the contrary are limited and conclusory. Nobles broadly
contends that Campbell’s allegations “most plausibly show[] that Sgt. Nobles acted lawfully
in pursuit of an armed fleeing felon and that [K.A.’s] own actions and decisions were the
cause of his injuries. At most, the allegations describe a mistake . . . , which is not a
Fourth Amendment violation.”
Motion at 15.
In making this argument, Nobles
misconstrues the Court’s inquiry at the motion to dismiss stage. The question is not what
a plaintiff’s allegations “most plausibly show,” it is whether a plaintiff’s factual allegations
state a claim that is plausible. “The allegations must be plausible, but plausibility is not
probability.” Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir. 2016) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2016)).
Moreover, in arguing that at most, Nobles was merely
mistaken, Nobles invites the Court to view the facts in the light most favorable to him.
- 24 -
However, in determining whether Campbell has stated a claim that Nobles violated K.A.’s
constitutional right, the Court must view the facts in the light most favorable to the plaintiff,
not Nobles. See Saucier, 533 U.S. at 201. Doing so, the Court finds that Campbell has
pled sufficient facts to plausibly assert that Nobles violated a constitutional right.
Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004) (citing Saucier, 533 U.S.
at 201). Thus, to the extent that Defendants seek dismissal of Count I for failure to state
a claim for a constitutional violation, the Motion is due to be denied.
Moreover, for
purposes of overcoming Nobles’ request for dismissal on qualified immunity grounds,
Campbell has satisfied the first Saucier prong.
Having determined that Campbell has pled a plausible claim that Nobles violated
K.A.’s constitutional rights, the Court must now consider whether the right was clearly
established at the time of the incident. Id. The Supreme Court has instructed that in
order
[f]or a constitutional right to be clearly established, its contours “must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right. This is not to say that an official action is protected
by qualified immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation omitted) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). For purposes of this analysis the critical question
is whether the state of the law gave the government actor “fair warning” that his alleged
treatment of the plaintiff was unconstitutional. Vinyard v. Wilson, 311 F.3d 1340, 1350
(11th Cir. 2002) (quoting Hope, 536 U.S. at 741); see also Marsh, 268 F.3d at 1031 (“[F]air
and clear notice to government officials is the cornerstone of qualified immunity.”). The
Eleventh Circuit recognizes three sources of law that would provide a government official
- 25 -
adequate notice of statutory or constitutional rights: “specific statutory or constitutional
provisions; principles of law enunciated in relevant decisions; and factually similar cases
already decided by state and federal courts in the relevant jurisdiction.” Goebert v. Lee
County, 510 F.3d 1312, 1330 (11th Cir. 2007). Thus, where the words of the federal
statute or federal constitutional provision are specific enough “to establish clearly the law
applicable to particular conduct and circumstances,” then the plaintiff can overcome the
qualified immunity privilege, even in the absence of case law. Vinyard, 311 F.3d at 1350.
In this type of “obvious clarity” case “the words of the federal statute or federal
constitutional provision may be so clear and the conduct so bad that case law is not needed
to establish that the conduct cannot be lawful.” Id.
Alternatively, where the conduct alleged is not so egregious as to violate a statutory
or constitutional right on its face, courts look to case law to determine whether the law is
“clearly established.” Id. at 1351. If the case law contains “some broad statements of
principle” which are “not tied to particularized facts,” then it may be sufficient to clearly
establish the law applicable in the future to different facts. Id. However, to provide
officials with sufficient warning, the case law must establish a principle such that “every
objectively reasonable government official facing the circumstances would know that the
official's conduct did violate federal law when the official acted.” Id. Last, in the absence
of broad statements of principle, precedent can clearly establish the applicable law where
“the circumstances facing a government official are not fairly distinguishable, that is, are
materially similar,” to the particularized facts of prior case law. Id. at 1352. See also
Gates v. Khokhar, No. 16-15118, 2018 WL 1277395, *3 (11th Cir. March 13, 2018). Such
precedent must be found in decisions from the Supreme Court, the controlling circuit court
- 26 -
of appeals, or the pertinent state supreme court. Id. at 1351. However, a case “on all
fours” with materially identical facts is not required to establish “fair warning” to government
officials. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004) (discussing the
impact of Hope on Eleventh Circuit precedent).
Here, Nobles invokes the “principle that clearly established law should not be
defined at a high level of generality but instead must be particularized to the facts of the
case.” Motion at 17 (citing White v. Pauly, 137 S.Ct. 548, 552 (2017)). He goes on to
contend that “no case law from the Supreme Court, the U.S. Court of Appeals for the
Eleventh Circuit, or the Florida Supreme Court provided Nobles with fair notice that the
conduct alleged in the complaint violated a constitutional right under these particular
circumstances.” Id. at 17-18. Nobles is incorrect.
In Garner, the Supreme Court stated that “[t]he use of deadly force to prevent the
escape of all felony suspects, whatever the circumstances, is constitutionally
unreasonable. . . . A police officer may not seize an unarmed, non-dangerous suspect by
shooting him dead.” Garner, 471 U.S. at 11. On the other hand, if the suspect “threatens
the officer with a weapon or there is probable cause to believe that he has committed a
crime involving the infliction or threatened infliction of serious physical harm, deadly force
may be used if necessary to prevent escape, and if, where feasible, some warning has
been given.” Id. at 11-12. See also Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004).
The particular facts of Garner are important to the analysis here. In Garner, an
officer responded to a “prowler inside call” and was informed by a nearby resident that
someone had entered a neighboring property and was still inside. Garner, 471 U.S. at 3.
The officer then observed an individual fleeing from the back of the home, who then
- 27 -
stopped at a 6-foot-high fence at the edge of the property’s yard. Id. The officer was
able to see the fleeing suspect’s face and hands and saw no sign of a weapon. Id. The
officer called out “police, halt,” but the suspect began to climb over the fence. Id. at 4.
“Convinced that if [the suspect] made it over the fence he would elude capture, [the officer]
shot him.” Id. The suspect, who was 15 years old, died from a gun shot in the back of
his head. Id. On these facts, the Court determined that the state statute allowing the
officer to use deadly force under those circumstances was constitutionally impermissible.
Id. at 22.
While the Supreme Court has recognized that “Garner and Graham do not by
themselves create clearly established law outside an ‘obvious case,’” White, 137 S.Ct. at
552, at this stage of the proceedings, the similarities between the instant case and Garner
are significant enough to support a conclusion that a reasonable officer would have had
fair warning that his actions violated an established constitutional right. See Hope, 536
U.S. at 739-740. See also Holloman, 370 F.3d at 1277 (noting that a case “on all fours”
with materially identical facts is not required for the “clearly established” prong of a qualified
immunity analysis). Here, as in Garner, Campbell alleges that Nobles, without warning,
shot a fleeing, unarmed teenaged suspect who posed no immediate threat to him or others.
Notably, Garner was decided nearly thirty years before Nobles’ interaction with K.A., and
since Garner, the Eleventh Circuit has affirmed that an officer’s use of deadly force is
constitutionally unreasonable under similar circumstances.
See e.g., Lundgren v.
McDaniel, 814 F.2d 600, 603 (11th Cir. 1987) (affirming jury verdict in favor of plaintiff
where evidence in support of verdict indicated that officers “were neither threatened by a
weapon, nor appeared to be threatened by a weapon, nor were fired upon, but rather that
- 28 -
the officers without provocation shot at a nondangerous suspect”); Pruitt v. City of
Montgomery, Alabama, 771 F.2d 1475, 1483-84 (11th Cir. 1985) (officer’s actions were
unreasonable where he did not fear his safety in the context of shooting a fleeing felony
suspect). Accordingly, based on the law in existence at the time Nobles shot K.A., the
Court determines that it was clearly established that Nobles’ actions, as described by, and
viewed in the light most favorable to Campbell, would have been constitutionally
unreasonable. Therefore, Nobles is not entitled to qualified immunity at the Motion to
Dismiss stage of the proceedings, and hence Campbell’s § 1983 wrongful death claim
against him is not due to be dismissed.13
iv. Count III – Municipal Liability Claim Against Williams, in His
Official Capacity as Sheriff for the City of Jacksonville, and the
City
In addition to her claim against Nobles, Campbell asserts that Williams, in his official
capacity as Sheriff for the City of Jacksonville, “instituted customs, policies, and/or
practices” that were the direct and proximate result of K.A.’s alleged unconstitutional
deprivation of life.
Complaint at ¶¶ 24, 28.
Campbell further asserts that Williams,
through his failure to “adequately discipline his officers for their actions and inactions . . .
ratified the officers’ decisions and their reasons for those decisions, thus constituting a
custom, practice, and/or policy.” Id. at ¶ 25. She also claims that Williams “failed to
adequately train his agents and employees with respect to the use of deadly force in
13
In so ruling, the Court notes that its decision in this Order does not preclude Nobles from reasserting his
qualified immunity defense later in this action as the facts of the case become more developed. See
Oladeinde v. City of Birmingham, 230 F.3d 1275, 1285 (11th Cir. 2000) (“We stress, however, that
defendants retain the right to assert the qualified-immunity defense at the next stage of the proceedings
(and, for that matter, throughout the proceedings) as more facts are developed.”) (citation omitted).
- 29 -
pursuit of fleeing and unarmed suspects, particular African American male[] suspects,
despite a clear and obvious need for such training reflected in the clear pattern of
unconstitutional officer shootings.”
Id. at ¶ 27.
Finally, Campbell claims that in the
alternative, Nobles, in the act of seizing and killing K.A., “was the final policy maker for . .
. Williams as [Nobles’] decisions were not immediately or effectively reviewable.” Id. at ¶
26. In seeking to dismiss this claim, Defendants assert that Campbell’s Complaint “fails
to identify with any factual specificity any municipal custom, policy or practice that existed
and caused any violation of [K.A.’s] constitutional rights.” Motion at 19. Defendants also
contend that Campbell failed to sufficiently allege how Williams failed to train or discipline
his officers, or how Williams ratified Nobles’ actions. Id. at 19-20.
The Supreme Court of the United States has soundly rejected the theory of
respondeat superior as a basis for municipal 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
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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’
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 city] 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). As a supervisor will rarely have an
express written or oral policy of inadequately training or supervising his or her employees,
a supervisor’s failure to train and/or supervise his or her employees amounts to an
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actionable policy under § 1983 where the plaintiff demonstrates that the supervisor’s failure
to train and/or supervise amounts to deliberate indifference to the rights of citizens with
whom the supervisor’s employees come into contact. See Gold, 151 F.3d at 1350; see
also Battiste v. Sheriff of Broward Cnty., 261 Fed. Appx. 199, 202 (11th Cir. 2008) (per
curiam) (“A supervisory official is liable under § 1983 when ‘his failure to train amounts to
deliberate indifference to the rights of persons with whom the subordinates come into
contact; and the failure has actually caused the injury of which the plaintiff complains.’”
(quoting Belcher v. City of Foley, Ala., 30 F.3d 1390, 1397 (11th Cir. 1994))). Notably,
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
also Rocker v. City of Ocala, Fla., 355 Fed. Appx. 312, 314 (11th Cir. 2009) (per curiam).
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,
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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)).
Campbell’s assertions in support of her municipal liability claims are nothing more
than broad conclusory statements devoid of any factual support. She recites that the City
“failed to properly train . . . Nobles in the use of deadly force,” Complaint at ¶ 16.e.; “failed
to properly supervise . . . Nobles in the use of deadly force,” id. at ¶ 16.f.; and also failed
to properly discipline . . . Nobles after multiple improper prior uses of deadly and/or
excessive force.” Id. at ¶ 16.g. She also asserts that the City “failed to follow an early
warning protocol which, if followed, would have resulted in additional evaluation and
training of” Nobles, id. at ¶ 16.h, and “failed to take appropriate corrective measures to
prevent unjustified officer shootings of suspects in light of the documented history within
the Jacksonville Sheriff’s office of such unjustified shooting carried out by officers,
particularly shooting involved unarmed, African-American male suspects.” Id. at ¶ 16.i.
However, nothing within this litany of conclusory allegations identifies any facts suggesting
how the City’s training, supervision, or discipline of Nobles was deficient, or how that
allegedly lacking oversight proximately caused K.A.’s constitutional injuries and death.
Rather, Campbell attempts to extrapolate out of the single instance of Nobles’ alleged
misconduct, a municipal policy, custom, and practice.
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A custom, however, cannot be derived from a single incident of officer wrongdoing.
See City of Oklahoma City v. Tuttle, 471 U.S. 808, 821-822 (1985); see also Grech, 335
F.3d at 1330 n.6 (11th Cir. 2003) (noting that “a single incident would not be so pervasive
as to become a custom or practice”). As the Eleventh Circuit has explained,
[a] single incident would not be so 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. This requirement of proof prevents the
imposition of liability based upon an isolated incident, and ensures that a
municipality is held liable only for those deprivations resulting from the
decisions of its duly constituted legislative body or of those officials whose
acts may fairly be said to be those of the municipality.
Craig v. Floyd County, Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (internal citations and
quotations omitted). Nevertheless, the Court notes that the Supreme Court, in dictum,
has left open the possibility that “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). The Supreme Court offered the example of
the 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. However, Campbell does not even assert that the
City failed to provide any training on the use of deadly force. Instead, she acknowledges
that the City did have a deadly force policy and a firearms policy, Complaint at ¶ 16a.i-ii,
but contends that Nobles failed to comply with those policies. Id. These allegations are
insufficient to fall within the narrow exception arguably left open in City of Canton for cases
involving only a single incident of misconduct.
Likewise, Campbell provides no facts to support her conclusory suggestion that
Nobles may have improperly used deadly and/or excessive force in the past. Complaint
at ¶ 16.g.
Also, she does not provide the Court with anything more than a broad
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suggestion that the City had an “early warning protocol” system that it nonetheless failed
to use, id. at ¶ 16.h., nor does she provide any facts supporting an alleged “documented
history” and “clear pattern of unconstitutional officer shootings” by the City of “unarmed,
African-American male suspects.” Id. at ¶¶ 16h.i, 27. Finally, while Campbell generally
asserts that the City’s failings represent a municipal policy, custom, and practice, id. at ¶¶
24, 25, 27, she pleads no facts suggesting how these broad alleged failures actually
constitute municipal policy, custom or practice. As the Supreme Court instructs, “[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); see also Sada v. City of Altamonte Springs, No. 6:09-cv-506-Orl-31KRS,
2009 WL 3241984, *3 (M.D. Fla. Oct. 5, 2009) (“Such a mechanical recitation of the
elements of a deliberate indifference claim is insufficient to survive a motion to dismiss.”).
In short, Campbell fails to identify any actual City policies, and in describing only
the single incident of deadly force involving K.A., fails to offer any facts to support the
existence of a widespread custom. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
570; see also Harvey v. City of Stuart, 296 Fed. Appx. 824, 826 (11th Cir. 2008) (affirming
dismissal of § 1983 action against municipality because the plaintiff “failed to identify any
policy or custom that caused a constitutional violation, and his vague and conclusory
allegations were insufficient to support the complaint.”); Reyes v. City of Miami Beach, No.
07-22680-CIV, 2007 WL 4199606, at *6 (S.D. Fla. Nov. 26, 2007) (recognizing that
although there is no heightened pleading standard for § 1983 claims against municipalities,
plaintiffs must nevertheless satisfy Twombly’s generally applicable basic pleading
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standard, and holding dismissal warranted because “[i]n recounting only their own alleged
incident, offering no other facts to support their claim that the City had an official policy or
widespread custom that was directly responsible for their injuries, and failing to identify
even one responsible final City policymaker, Plaintiffs have failed to raise their section
1983 claim against the City above the speculative level.”).14 Accordingly, Count III is due
to be dismissed with prejudice.15
In light of the foregoing, it is
ORDERED:
1. Defendants, City of Jacksonville, Mike Williams, in his Official Capacity as
Sheriff of the Consolidated City of Jacksonville and Duval County, and J.C.
Nobles’ Motion to Dismiss (Doc. 5), is GRANTED in part, and DENIED in part;
a. The claims against the City in Count I, are DISMISSED with prejudice;
b. The claims against the City and Mike Williams in Count III are
DISMISSED with prejudice;
c. In all other respects, Defendants’ requests are DENIED.
14
The Court also rejects Campbell’s alternative position that Nobles, in the specific instance when he shot
and killed K.A., should be deemed a “final policy maker for . . . Williams as [Nobles’] decisions were not
immediately or effectively reviewable.” Id. at ¶ 26. The argument that an officer of Nobles’ rank is a “final
policy maker for the City is implausible on its face.” Irons v. City of Holly Hill, No. 6:16-cv-479-Orl-31GJK,
2016 WL 4810721, *5 (M.D. Fla. Sept. 14, 2016) (citing Iqbal, 556 U.S. at 678). While Nobles certainly
made decisions in the course of seizing and shooting K.A., “it cannot be inferred that his actions ‘may fairly
be said to represent official [municipal] policy.’” Id. (quoting Monell, 436 U.S. at 694).
15
Although there is some tension among the cases, the Court’s application of Iqbal and Twombly does not
run afoul of the Supreme Court’s decision in Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168 (1993), which holds merely that courts may not apply a heightened
pleading standard to § 1983 actions against municipalities, that is, “a more demanding rule for pleading a
complaint under § 1983 than for pleading other kinds of claims for relief.” See Leatherman, 507 U.S. at
168. Here, the Court has not applied a heightened pleading standard, but rather the generally applicable
pleading requirements that a complaint, stripped of bare labels and legal conclusions, plead enough factual
material “to state a claim that is plausible on its face[,]” that is, to allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 570.
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2. Defendants shall respond to Plaintiff Deneane Campbell’s Complaint (Doc. 2) in
accordance with the requirements of Rule 12 of the Federal Rules of Civil
Procedure.
3. The parties are directed to conduct a case management conference and file a
case management report no later than April 12, 2018.
DONE AND ORDERED in Jacksonville, Florida this 23rd day of March, 2018.
lc26
Copies to:
Counsel of Record
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