Homonai et al v. The City of Fruitland Park et al
Filing
28
ORDER denying 21 Defendants' Motion to Dismiss. Signed by Judge James S. Moody, Jr. on 4/26/2017. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JAMES HOMONAI and
RITA HOMONAI,
Plaintiffs,
v.
Case No: 5:16-cv-610-Oc-30PRL
THE CITY OF FRUITLAND PARK,
STEVEN FOSTER and JARED
CRENSHAW,
Defendants.
ORDER
Rita and James Homonai allege City of Fruitland Park Police Officers Steven Foster
and Jared Crenshaw used excessive force against them. The Homonais sued the City and
officers for violations of their constitutional rights and Florida law. The City and officers
now move to dismiss the nine-count Complaint for myriad reasons. Because the claims are
properly pled, the Court concludes the motion to dismiss should be denied.
FACTUAL BACKGROUND
On October 28, 2012, James Homonai (“JH”) was driving his motorcycle with his
wife, Rita Homonai (“RH”), on the back. City of Fruitland Park Police Officer Jared
Crenshaw conducted a traffic stop for speeding. Officer Steven Foster arrived to assist
Crenshaw. A video recording of the stop was filed by the parties and reviewed by the
Court. 1
During the traffic stop, Crenshaw learned JH had a suspended license and began to
place JH under arrest. During the arrest, Crenshaw had JH lean over the passenger side of
the police cruiser and place his hands on the hood. Crenshaw began to search JH, and JH
told Crenshaw he had a knife in his pocket. JH was, at this point, compliant and did not
resist Crenshaw. RH, now standing at the front of the cruiser, told the officers she wanted
to take JH’s phone, and became upset when the officers denied her request.
The video of what follows speaks for itself, and the Court declines to provide its
own commentary or characterization. Suffice to say, Foster took RH by the arm, and used
his stun gun on JH and RH, before placing RH in handcuffs. Crenshaw and JH moved out
of the camera’s range, but it appears Crenshaw also used his stun gun on JH before
handcuffing him and placing him in the police cruiser. Paramedics were called to attend to
RH, who allegedly suffered significant injuries. RH was taken away by ambulance.
The Homonais were both charged: RH with resisting arrest without violence; and
JH with driving on a suspended license, resisting arrest with violence, and battery on a law
1
Although courts do not normally consider traffic stop videos at the motion to dismiss
stage of the proceedings, the Court concludes it is permitted to take judicial notice of this video as
a public record under Federal Rule of Evidence 201. Universal Express, Inc. v. U.S. S.E.C., 177 F.
App'x 52, 53 (11th Cir. 2006); and see generally Brewer v. Pensacola Police Dep't, No.
3:15CV469/MCR/CJK, 2015 WL 8113253, at *4 (N.D. Fla. Nov. 13, 2015) (noting that an arrest
video is available through Florida’s Public Records Act). Regardless, all parties refer to the video
in their filings, and it is referenced in the Complaint. (Doc. 1, ¶ 36).
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enforcement officer. The charge against RH was dismissed; the Court does not know what
happened to JH’s charges.
The Homonais sued the officers and the City of Fruitland Park (the “City”), alleging
the following counts:
Count I: § 1983 claim by RH against Foster for violation of Fourth and
Fourteenth Amendments for using excessive force and for false arrest;
Count II: § 1983 claim by RH against Crenshaw for violation of Fourth and
Fourteenth Amendments for failing to intervene and false arrest;
Count III: § 1983 claim by JH against Foster for violation of Fourth and
Fourteen Amendments for failing to intervene and for excessive force;
Count IV: § 1983 claim by JH against Crenshaw for violation of Fourth and
Fourteenth Amendments for failing to intervene and for excessive force;
Count V: § 1983 claim by RH against the City for violation of Fourth and
Fourteenth Amendments for false arrest and for excessive force;
Count VI: § 1983 claim by JH against the City for violation of Fourth and
Fourteenth Amendments for excessive force;
Count VII: Florida law claim by RH against the City for False Arrest and
False Imprisonment;
Count VIII: Florida law claim by RH against the City for battery; and
Count IX: Florida law claim by JH against the City for battery.
MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for
failure to state a claim on which relief can be granted. When reviewing a motion to dismiss,
courts must limit their consideration to the well-pleaded allegations, documents central to
or referred to in the complaint, and matters judicially noticed. See La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal citations omitted); Day v.
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Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Courts must accept all factual allegations
contained in the complaint as true, and view the facts in a light most favorable to the
plaintiff. See Erickson, 551 U.S. at 93–94.
Legal conclusions, however, “are not entitled to the assumption of truth.” Ashcroft
v. Iqbal, 556 U.S. 662, 664 (2009). In fact, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila
v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). To survive a motion to
dismiss, a complaint must instead contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citations omitted). This plausibility standard is met when the plaintiff
pleads enough factual content to allow the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
DISCUSSION
Defendants raise numerous grounds for why the Complaint should be dismissed, all
of which are without merit for the reasons explained below. The Court has also reorganized
Defendants’ arguments in a more logical order and to condense repetitive arguments raised
in several parts of their motion.
A. Statute of Limitations
Defendants claim the Homonais claims are all time-barred by the applicable fouryear statute of limitations. Defendants argue the limitation periods began to run on October
28, 2012, which is more than four years before the Complaint was filed on January 18,
2017. This argument, though, is easily dismissed because the Complaint was not filed on
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January 18, 2017—it was filed October 11, 2016, within four years of October 28, 2012.
So Defendant’s argument that the claims are time-barred is meritless.
B. Failure to Provide Pre-Suit Notice, pursuant to § 768.28, Fla. Stat.
Defendants also claim the Homonais failed to plead that they provided the pre-suit
notice required by section 768.28(6)(a), Florida Statutes, for Counts VII, VIII, and IX, and
that the pre-suit notice was actually not provided. This claim is also easily dismissed. The
Complaint (Doc. 1) alleges compliance with the pre-suit notice requirements in paragraphs
90, 99, and 109. And the Homonais provided copies of the pre-suit notice letters they sent.
(Doc. 27, Exs. 1 and 2). So this argument also fails.
C. Failure to Comply with Federal Rules of Civil Procedure 8 and 10, Complaint
is a Shotgun Pleading, and Failure to State a Claim, Generally
Defendants’ next arguments are that the Complaint fails to comply with Federal
Rules of Civil Procedure 8 and 10—thus failing to state claims—and that the Complaint is
an improper shotgun pleading. Defendants argue the Complaint “contains nothing more
than labels, legal conclusions and boilerplate statutory language.” (Doc. 21, p. 4).
Contrarily, Defendants argue the Complaint is defective because it incorporates nearly 45
factual allegations into each count. (Doc. 21, pp. 5–6). Defendants also argue the
Complaint fails to comply with Rule 10 because it is “not properly separated into
counts….” (Doc. 21, p. 5) (emphasis in original).
All of these arguments lack merit. The Complaint provides a detailed factual
background, and then reincorporates that background—and only that background—into
each count. The allegations are not so vague that Defendants cannot respond, and the
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Complaint is not an impermissible shotgun pleading. The Complaint is also properly
separated into nine counts. The Complaint provides notice to Defendants of their
complained of conduct and alleged violations of federal and Florida law, thus complying
with rules 8 and 10 and providing Defendants “fair notice of what the claim[s are] and the
grounds upon which [they] rest.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 1964, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957)).
D. Qualified Immunity for Officers for § 1983 Claims
Crenshaw and Foster each claim qualified immunity. “To receive qualified
immunity, ‘the public official must first prove that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred.’ ” Kingsland v. City of
Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). There is no dispute here that Crenshaw and
Foster were acting within the scope of their discretionary authority. Once a defendant
demonstrates he was acting within the scope of his discretionary authority, “the burden
then shift[s] to the [plaintiff] to show that qualified immunity should not apply because:
(1) the [official] violated a constitutional right, and (2) that right was clearly established at
the time of the incident.” Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009).
A plaintiff withstands a motion to dismiss predicated on qualified immunity by alleging
“sufficient facts to support a finding of a constitutional violation of a clearly established
law.” Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1198 (11th Cir. 2012)
(citing Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009)); see also Andreu v. Sapp,
919 F.2d 637, 639 (11th Cir. 1990) (“[T]he defendant is entitled to dismissal when the
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plaintiff has failed to allege a violation of a clearly established right.”). The Court notes
the officers’ qualified immunity claims encompass the false arrest, excessive force, and
failure to intervene claims, which are analyzed separately below.
1. Qualified immunity for false arrest
To be entitled to qualified immunity for a section 1983 false arrest claim, an officer
need only have arguable probable cause to make the arrest. Kingsland, 382 F.3d at 1232.
A plaintiff, therefore, “must demonstrate that no reasonable officer could have found
probable cause under the totality of the circumstances.” Id. Probable cause exists “where
the facts and circumstances within the collective knowledge of the law enforcement
officials, of which they had reasonably trustworthy information, are sufficient to cause a
person of reasonable caution to believe that an offense has been or is being committed.”
United States v. Pantoja–Soto, 739 F.2d 1520, 1523 (11th Cir. 1984).
The Court concludes the officers are not entitled to qualified immunity for RH’s
claim of false arrest in Counts I and II because the officers did not have arguable probable
cause RH was committing a crime when she was seized. The traffic stop conducted by
Crenshaw was for speeding, and during that stop he learned that the driver, JH, was driving
on a suspended license. That gave Crenshaw probable cause to arrest JH, but not RH, who
was only a passenger. RH was seized by Foster while she was attempting to get JH’s cell
phone while he was being arrested, and RH “was not interfering with the officers’ lawful
performance of their duties.” (Doc. 1, ¶ 43). In fact, after her arrest, RH was only charged
with resisting arrest without violence, further indicating she was not committing a crime
when she was seized and undermining the officers’ reports that RH was interfering with
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the arrest of JH. Accordingly, the Court concludes RH properly pled the violation of the
clearly established right to be free from false arrest. That said, the Court is willing to
reconsider this ruling at the summary judgment stage once the facts are further developed.
2. Qualified immunity for excessive force claims
“[C]laims of excessive force are to be judged under the Fourth Amendment's
‘objective reasonableness' standard.” Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir.
2009) (quoting Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 598, 160 L.Ed.2d
583 (2004)). Courts are to consider whether an officer’s use of force is reasonable in light
of the facts confronting the officer on the scene “rather than with the 20/20 vision of
hindsight.” Id. So courts must weigh the facts of each case, “including the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Id. Other considerations are “(1) the need for the application of force, (2) the relationship
between the need and the amount of force used, (3) the extent of the injury inflicted and,
(4) whether the force was applied in good faith or maliciously and sadistically.” Id. Force
is excessive when the amount and degree surpass what is “necessary in the situation at
hand.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002).
Three counts allege that Foster (Counts I and III) and Crenshaw (Count IV) used
excessive force against RH (Count I) and JH (Counts III and IV). Because the facts are
different for RH and JH, their excessive force claims must be analyzed separately.
As to RH, the Court concludes Foster is not entitled to qualified immunity. As pled,
RH had not committed a crime and was not being arrested when Foster first seized RH by
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the arm. And Foster’s use of the stun gun on RH’s neck after he had seized her appears to
surpass the amount of force necessary to restrain her. Finally, the alleged injuries RH
suffered appear to be egregious. So the Court concludes Foster is not entitled to qualified
immunity for the excessive force claim brought by RH. 2
Turning to JH, the Court also concludes that neither officer is entitled to qualified
immunity. JH was being peacefully arrested for a simple driving on suspended license
charge, and told the officers about the knife in his pocket. When Foster seized RH, JH
stood up but kept his hands on the hood of the police cruiser—never reaching for anything
or attempting to flee. Crenshaw immediately seized JH, at which point Crenshaw and JH
move out of range of the video camera. At this point in the recording, Crenshaw repeatedly
yells, “Stop resisting!” while JH yells “I’m on the ground!” Foster then allegedly shot the
barbs of his stun gun into JH’s face and stunned him while he was on the ground.
Considering these facts, the Court cannot say that the officers’ use of force was reasonable
because (1) the arrest was for a minor charge; (2) as pled, JH was not resisting arrest when
the force against him was used; and (3) the amount of force by both officers appears
disproportionate to the force necessary to arrest JH.
Based on the above, the Court concludes the Homonais have pled the violation of
clearly established constitutional rights sufficient to survive the officers’ motion to dismiss.
2
If a factfinder determines RH was falsely arrested, then any force against her would be
deemed excessive, and this claim would be subsumed into the false arrest claim. Thus, this analysis
would be unnecessary. Bashir v. Rockdale Cty., Ga., 445 F.3d 1323, 1331 (11th Cir. 2006).
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The Court is willing to reconsider this issue at the summary judgment stage once the facts
are more fully developed.
3. Qualified immunity for failure to intervene claims
Law enforcement officers can be held liable for failing to intervene when another
officer uses excessive force if (1) the officer “is present at the scene” and (2) “fails to take
reasonable steps to protect the victim.” Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir.
2002) (quoting Fundiller v. City of Cooper City, 777 F.2d 1436, 1441-42 (11th Cir. 1985)).
“Therefore, an officer who is present at such a beating and fails to intervene may be held
liable though he administered no blow.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1342
(11th Cir. 2007). “This liability, however, only arises when the officer is in a position to
intervene and fails to do so.” Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924
(11th Cir. 2000).
Three counts allege that Foster (Counts II and III) and Crenshaw (Count IV) failed
to intervene against the unlawful use of excessive force against RH (Count II) and JH
(Counts III and IV). There is no dispute that both Foster and Crenshaw were present at the
scene. So whether they are entitled to qualified immunity turns on whether the officers
were in a position to intervene and failed to do so.
The Court concludes RH and JH sufficiently alleged in the Complaint that Foster
and Crenshaw were in a position to intervene and failed to do so. The video, in this respect,
is unhelpful as it is impossible to tell where Crenshaw and JH were located after they
moved out of the camera’s range. But Foster was certainly close enough to use his stun gun
on JH, which indicates Foster and Crenshaw were in close enough proximity to have
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intervened in the other’s allegedly unlawful use of force. So the Court concludes the
Homonais pled the violation of a clearly established constitutional right. Whether the
officers were occupied such that they had no reasonable opportunity to intervene is an issue
the Court is willing to consider at summary judgment once those facts are developed.
E. State Law Immunity for Officers for Florida Law Claims
Foster and Crenshaw also claim they have immunity based on section 768.28(9)(a),
Florida Statutes. While the statute does provide immunity for state law claims against
officers acting within the scope of their employment, the Homonais have not brought state
law claims against the officers. And the immunity provided by section 768.28(9)(a) does
not extend to the section 1983 claims brought by the Homonais. Hufford v. Rodgers, 912
F.2d 1338, 1341 (11th Cir. 1990) (“State sovereign immunity may protect Sheriff Rodgers
from state claims in state court; state immunity, however, has no application to claims, in
federal court, under Section 1983.”); see also Claridy v. Golub, 632 F. App'x 565, 571
(11th Cir. 2015) (discussing section 768.28(9)(a) immunity as it relates solely to state law
claims). So the Court concludes section 768.28(9)(a) is inapposite to the claims against
Foster and Crenshaw.
F. Sovereign Immunity for the City
The City argues that it is not liable for the Homonais’ state law claims (Counts VII,
VIII, and IX) because it has sovereign immunity pursuant to section 768.28(9), Florida
Statutes. The statute provides in part,
The state or its subdivisions shall not be liable in tort for the acts or omissions
of an officer, employee, or agent committed while acting outside the course
and scope of her or his employment or committed in bad faith or with
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malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.
§ 768.28(9), Fla. Stat. This argument fails, though, because the Homonais do not allege
that Crenshaw and Foster were acting outside the scope of their employment, or that they
acted in bad faith, with malicious purpose, or with wanton and willful disregard of human
rights, safety, or property. And even if the Complaint did allege such conduct by the
officers, the Homonais can plead these claims against the City in the alternative. Duquesne
v. City of Miami Beach, No. 12-20575-CIV, 2012 WL 3061603, at *13 (S.D. Fla. July 26,
2012). As such, this argument fails.
G. No Cause of Action for Battery Incident to Arrest against the City
The City argues that it cannot be held liable in Counts VIII and IX for battery as a
result of an arrest “where the acts alleged are simply part of the arrest process.” (Doc. 21,
p. 14). It is true that officers cannot be held liable for battery under Florida law for acts that
are ordinary incidents of the arrest. Lester v. City of Tavares, 603 So. 2d 18, 19 (Fla. Dist.
Ct. App. 1992). But a battery claim involving arguably excessive force “can present a jury
question on an assault and battery count against an officer and municipality.” Johnson v.
State Dep't of Health & Rehabilitative Servs., 695 So.2d 927, 929 (Fla. Dist. Ct. App. 1997)
(citing City of Homestead v. Suarez, 591 So.2d 1125, 1126 (Fla. Dist. Ct. App. 1992)). So
the Court concludes Counts VIII and IX should not be dismissed on this basis.
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H. No Cause of Action Exists for False Arrest or False Imprisonment Because
Probable Cause Existed
The City also argues the false arrest and false imprisonment claims (Counts V and
VII) 3 should be dismissed because the officers had probable cause—or arguable probable
cause—to arrest the Homonais. The false arrest and false imprisonment claims are both
brought by RH, so whether the officers had probable cause to arrest JH is irrelevant. For
the reasons explained in the qualified immunity section above, the Court again concludes
that RH sufficiently pled claims for false arrest and false imprisonment, which are
sufficient to survive the City’s motion to dismiss.
I. No Municipal Liability
Lastly, the City argues that the Homonais’ section 1983 claims are not cognizable
based on Monell v. Department of Social Services of the City of New York, 436 U.S. 658,
694–95(1977) and Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Monell
and Busby discuss when a municipality, such as the City, can be held liable for the acts of
its employees in a section 1983 action. Here, the Homonais seek to hold the City
responsible in the Counts V and VI for (1) failing to institute policies to ensure against
unlawful arrests and the use of excessive force; (2) failing to have a policy for investigating,
disciplining, retraining, or remediating officers who use excessive force; (3) failing to have
a policy to receive and review complaints of officer misconduct; and (4) failing to have a
use-of-force policy. (Doc. 1, ¶¶ 33–41, 73, 75–76, 82, and 84–85). As explained below, the
3
The City mistakenly refers to Counts VI and VII in its motion (Doc. 21, p. 15), but there
is no false arrest or false imprisonment claim in Count VI.
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allegations in the Complaint are sufficient for the section 1983 claims against the City to
move forward even if the Homonais are ultimately unable to prove a connection between
the policies and the alleged harm.
A municipality cannot be held liable under section 1983 on the basis of respondeat
superior or vicarious liability. Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir.
2016). Instead, plaintiffs can hold a municipality liable by showing that acts or omissions
pursuant to official municipal policy caused their injury. Connick v. Thompson, 563 U.S.
51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). Plaintiffs can do so by proving a
municipality has “practices so persistent and widespread as to practically have the force of
law.” Id. at 61, 131 S.Ct. 1350. Further,
A municipality's “policy of inaction” in light of actual or constructive
notice “that its program will cause constitutional violations is the functional
equivalent of a decision by the [county] itself to violate the Constitution.”
“Deliberate indifference is a stringent standard of fault, requiring proof that
a municipal actor disregarded a known or obvious consequence of his
action.” “A pattern of similar constitutional violations” is therefore
“ordinarily necessary to demonstrate deliberate indifference.”
Buckler v. Israel, No. 16-11115, 2017 WL 710431, at *3 (11th Cir. Feb. 23, 2017) (internal
citations omitted).
The Homonais have alleged enough at this stage to survive the City’s motion to
dismiss. In addition to alleging the City’s failure to implement certain policies, the
Homonais allege the following:
40. The City had notice of oversight deficiencies at the Fruitland Park Police
Department from prior scandals over multiple years, including KKK
membership by its officers, its officers paying informants for false testimony,
and the chief of police purchasing fake diplomas that he claimed as his own.
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(Doc. 1, ¶ 40). While the Court is uncertain whether any of the specific scandals alleged
would amount to deliberate indifference for the Homonais’ supposed constitutional
violations, the Court does not view the above list as exhaustive. As such, the Court
concludes the Homonais should be given the chance to prove the City’s deliberate
indifference caused their claimed constitutional violations. Of course, if the Homonais are
unable to do so, these claims may be resolved at the summary judgment stage.
Accordingly, it is ORDERED AND ADJUDGED that Defendants’ Motion to
Dismiss (Doc. 21) is DENIED.
DONE and ORDERED in Tampa, Florida, this 26th day of April, 2017.
Copies furnished to:
Counsel/Parties of Record
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