Holloway et al v. The City of Orlando et al

Filing 42

ORDER granting in part and denying in part 27 Defendants' Motion for Summary Judgment. Signed by Judge Paul G. Byron on 8/16/2016. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
REFUS HOLLOWAY and LUCIARE
FRIPP,
Plaintiffs,
v.

Case No: 6:15-cv-129-ORL-40GJK

THE CITY OF ORLANDO, WILLIAM
ESCOBAR, and JOEL WILLIAMS,
Defendants.
ORDER
This cause comes before the Court without oral argument on Defendants’, City of
Orlando and Joel Williams, Motion for Summary Judgment (Doc. 27), filed May 2, 2016.
On May 16, 2016, Plaintiffs responded in opposition (Doc. 29), and, on May 31, 2016,
Defendants replied (Doc. 30). Upon consideration and review of the record as cited by
the parties in their respective briefs, Defendants’ Motion for Summary Judgment will be
granted in part and denied in part.
I.

BACKGROUND1
On March 15, 2014, Plaintiffs, Luciare Fripp (“Fripp”) and Refus Holloway

(“Holloway”), were visiting their cousin, Octavius Sheals (“Sheals”). (Doc. 27-2, 23:8–10).
Sheals’ apartment is situated in a high-crime area of Orlando, Florida. (Id. at 32:13–17;
Doc. 27-5, p. 1). Fripp and Holloway arrived at Sheals’ apartment at an undetermined

1

This account of the facts is drawn from parties’ motions, depositions, and video
evidence. Where parties disagree on facts or there is not clear video evidence, the
Court employs the facts asserted by the non-movant. See Scott v. Harris, 550 U.S.
372, 378 (2007).
1

point in the evening. (See Doc. 27-2, 24:2–7; Doc. 27-3, 22:7–11). During their time at
Sheals’ apartment, both Fripp and Holloway were lightly drinking—neither of them
partaking in more than one beverage. (Doc. 27-2, 24:15–21; Doc. 27-3, 26:12–22).
However, Holloway had consumed “[t]wo cups of peach Ciroc approximately three to four
hours prior to the incident.” (Doc. 27-2, 50:24–51:6). After spending some time in Sheals’
apartment, Fripp, Holloway, and Sheals moved outside because the apartment did not
have functioning air conditioning. (Doc. 27-3, 28:1–6; Doc. 27-4, 15:21–16:1).
While outside, a fight began between two men in an open area near the street and
Sheals’ apartment. (Doc. 27-3, 38:3–25; Doc. 27-4, 18:4–11). Fripp and Holloway did not
know the men at the time. (Doc. 27-2, 25:24–25; Doc. 27-3, 38:14–19). During the fight,
one of the men pulled a gun from his pocket, but the weapon fell to the ground. (Doc. 273, 39:5–11, 40:18–20; Doc. 27-4, 20:23–21:12). After seeing the gun, Sheals picked it
up and placed it in his pocket to prevent it from being used in the fight. (Doc. 27-4, 20:23–
21:12, 40:21–24). Sheals was not armed prior to picking up the gun. (Id. at 21:21–23).
Police were eventually called because of the fight and responded to Sheals’ apartment.
(Doc. 27-5, p. 1; Doc. 27-7, 6:6–14).
Defendants, Officers Joel Williams and William Escobar, arrived at the scene at
approximately 11:30 p.m. (Doc. 27-1, p. 2). Officers Williams and Escobar were members
of the same patrol squad and were in the same vehicle at the time. (Doc. 27-7, 6:23–
7:14). When the Officers arrived at the scene, they drove up to a group of people gathered
in a grassy area near the sidewalk and the street—the group was comprised of
approximately five or six individuals, including Fripp and Holloway. (Doc. 27-3, 30:3–12;
Doc. 27-7, 8:23–9:1). Sometime after the fight, Sheals started walking towards his

2

apartment and was farther from the street than the rest of the group. (Doc. 27-4, 24:18–
25:2).
The Officers arrived at the scene without their vehicle’s emergency lights or siren
activated. (Doc. 27-2, 29:21–23; Doc. 27-3, 33:15–22; Doc. 27-6, 14:1–6; Doc. 27-7, 9:2–
6). The parties vary in their account of what occurred when police first exited their vehicle.
Fripp avers that one of the Officers exited the vehicle, asked Sheals why he was running,
and then “immediately grabbed” his arm. (Doc. 27-3, 37:10–19). Holloway, on the other
hand, claims that the police “ran toward [his] cousin” and then “kicked his feet up from
under him.” (Doc. 27-2, 30:19–23). Officer Williams and Officer Escobar claim that Sheals
was uncooperative with verbal commands to stop moving, (Doc. 27-6, 16:13–17:5;
Doc. 27-7, 12:8–15), and that force was only used following Sheals’ disobedience and
the discovery of the gun in his pocket, (Doc. 27-6, 17:6–11; Doc. 27-7, 12:8–15). Despite
their differing accounts, all pertinent testimony concludes that Sheals was put on the
ground, placed in handcuffs, and the handgun in his pocket was seized by Officer
Williams. (Doc. 27-2, 33:20–23; Doc. 27-3, 43:11–18; Doc. 27-4, 26:20–27:3; Doc. 27-6,
17:6–11; Doc. 27-7, 13:5–14).
While Sheals was being confronted by Officers Williams and Escobar, Holloway
attempted to speak with them and gather information about the situation. (Doc. 27-2,
33:24–34:15). Holloway claims that he never approached the Officers too closely and was
twelve to fifteen feet away when he began to speak to them. (Id. at 34:2–9). According to
Holloway, Officer Williams then “turned completely around and charged at [him],” (id. at
34:18–21), before commanding him to back up, (id. at 35:6–11). Officer Williams avers

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that Holloway came within “arm’s reach” and was aggressively intervening in a manner
that made Officer Williams fear for his safety. (Doc. 27-7, 18:7–24).
While backing up, Holloway states that Officer Williams attempted to kick him, and
that the kick landed near his groin. (Doc. 27-2, 35:15–23). In order to cover himself,
Holloway placed his hands over his groin and, in doing so, caught Officer Williams’ foot
in the middle of the kick. (Id.). Officer Williams alleges that Holloway intentionally grabbed
his foot and refused to release it—nearly causing Officer Williams to fall to the ground.
(Doc. 27-7, 20:6–21:2). Following the contact between Holloway and Officer Williams’
foot, Officer Williams ordered Holloway on the ground. (Doc. 27-2, 36:6–18). However,
before Holloway was on the ground, Officer Williams used his officer-issued chemical
spray to control Holloway and ensure immediate compliance. (Id.; Doc. 27-7, 21:3–15).
With Holloway now on the ground, Officer Williams proceeded to supervise Sheals while
Officer Escobar began to interact with Holloway. (Doc. 27-7, 22:18–25). Between
11:34 p.m. and 11:39 p.m., three more police officers arrived to the scene to assist Officer
Williams and Officer Escobar. (Doc. 27-1, p. 2).
According to Holloway, Officer Escobar walked over and immediately immobilized
him. (See Doc. 27-2, 36:22–37:3; 38:18–23). From this point forward, Fripp began
recording the incident with her cell phone camera. (Doc. 29-1; Doc. 27-2, 36:19–37:3).
Additionally, one of the officers that arrived later at the scene, Donald Lacentra (“Officer
Lacentra”), was equipped with a body camera and filmed the events upon his arrival.
(Doc. 29-2).
Officer Escobar knelt next to Holloway, placed the handcuffs on him, punched him
multiple times on the side of the head, and informed him that he was a cop—asking “do

4

you understand, you stupid motherfucker?” (Doc. 29-1, 0:00–00:07). Officer Escobar then
grabbed Holloway by his shirt and dragged him stomach-down approximately six to eight
yards before throwing him back to the ground. (Id. at 00:07–00:12). With Holloway facedown on the ground, Officer Escobar then kicked Holloway on the back of his right leg
and pushed Holloway’s body into the ground. (Id. at 00:14–00:23). During Officer
Escobar’s

interactions

with

Holloway,

Officer

Williams

stood

near

Sheals—

simultaneously watching the crowd, Sheals, and Holloway. (Id. at 00:00–00:24).
After the officers handcuffed and immobilized Sheals and Holloway, they began to
move the men toward their police vehicles. (Id. at 00:45). Officer Williams helped Sheals
to his feet and walked him to the patrol vehicles. (Id. at 00:45–00:56). Next, Officer
Escobar grabbed at Holloway’s arms and abruptly pulled his wrists to force him to his
feet. (Id. at 00:57–01:03). Officer Escobar then led Holloway to Officer Lacentra’s patrol
vehicle, patted down his body, and placed him in the back seat. (Doc. 29-2, 01:29–02:08;
03:22–03:37). Holloway was arrested for battery on a law enforcement officer, resisting
an officer with violence, and resisting an officer without violence. (Doc. 27-2, 52:9–53:2).
While en route to a secondary location away from the scene, Holloway informed
Officer Lacentra that he was experiencing immense pain. (Id. at 08:27–10:43). Officer
Lacentra consistently responded to Holloway’s requests—informing him that the officers
would help remove the chemical spray as soon as possible. (See, e.g., id. at 09:18–
09:23). Upon arrival at the second location, Officer Lacentra’s body camera footage ends.
(Id. at 10:40–10:43). Holloway alleges that thirty minutes elapsed before the officers
proceeded to the jail, where Holloway was kept overnight. (Doc. 27-2, 41:15–42:5; 43:13–
15). When Holloway arrived at the jail, he was able to wash his face for the first time using

5

the sink in his holding cell—Holloway claims he did not receive any other treatment from
law enforcement. (Id. at 43:16–44:12).
Holloway spent approximately one day in jail. (Id. at 44:17–18). After being
released, Holloway took himself to the hospital to receive treatment for injuries sustained
during the events leading to his arrest. (Id. at 44:25–45:5). The hospital informed
Holloway that his injuries were minor and would not require treatment. (Id. at 45:12–20).
However, due to a persistent burning sensation from the chemical spray, Holloway
shaved his hair five days after the incident. (Id. at 46:3–15). Ultimately, all charges against
Holloway were dismissed. Additionally, the events leading to Holloway’s arrest were
investigated and Officer Escobar was terminated for his role.
Holloway and Fripp initiated this lawsuit against the City of Orlando, Officer
Williams, and Officer Escobar on January 27, 2015. (Doc. 1). The Complaint alleges six
federal claims and nine state law claims. The City of Orlando (the “City”) and Officer
Williams now move for summary judgment on eight of the claims asserted. Officer
Williams moves for summary judgment on the following: Count I brought by Holloway for
false arrest under 42 U.S.C. § 1983, Count III brought by Holloway for excessive force
under § 1983, Count V brought by Holloway for a due process violation based on an
alleged material misrepresentation by Officer Williams, Count VII brought by Holloway for
false imprisonment, Count IX brought by Holloway for battery, Count XII brought by
Holloway for intentional infliction of emotional distress, and Count XIV brought by Fripp
for intentional infliction of emotional distress. The City moves for summary judgment on

6

Count VI, the Monell claim, brought by Holloway for violation of his civil rights under
§ 1983.
II.

STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment must “cit[e] to
particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials” to support its position that it is entitled to summary judgment.
Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials.” Fed. R.
Civ. P. 56(c)(3).
A genuine dispute of material fact is one from which “a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). However, “[a] mere scintilla of evidence in support of the non-movant is
insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger
v. Herrington, 381 F.3d 1243, 1249–50 (11th Cir. 2004) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986)). To defeat a motion for summary judgment, the non-moving
party must “go beyond the pleadings, and present affirmative evidence to show that a
genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006).
The Court must draw all reasonable inferences in favor of the non-moving party, but may
disregard assertions of fact that are “blatantly contradicted” by record evidence, such as
video evidence. See Scott v. Harris, 550 U.S. 372, 380 (2007).

7

III.

DISCUSSION
A.

Qualified Immunity Analysis

Officer Williams moves for summary judgment as to Counts I and III on the ground
that he is entitled to qualified immunity from Holloway’s § 1983 false arrest and excessive
force claims. Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”

Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). To receive qualified immunity, a government official
must have been acting “within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotation marks omitted). A government official acts within his discretionary authority
when he “perform[s] a legitimate job-related function . . . through means that were within
his power to utilize.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th
Cir. 2004). Once it is established that the official was acting within his discretionary
authority, the burden shifts to the plaintiff to make a two-part showing to demonstrate that
qualified immunity is not appropriate. Lee, 284 F.3d at 1194. First, the plaintiff must
establish that the facts of the case, if proven true, make out the violation of a constitutional
right. Scott v. Harris, 550 U.S. 372, 377 (2007). Second, the constitutional right must
have been “clearly established” at the time of the alleged misconduct. Id.
While Officer Williams simply asserts that he was acting within the scope of his
discretionary duties without providing any argument for that conclusion (Doc. 27, p. 7),
the Court finds that Officer Williams was acting within his discretionary authority when he
responded to the police dispatch while on duty, secured the area, apprehended Sheals,

8

and prevented obstruction by other individuals. All of these acts were legitimate jobrelated functions that were within his power to utilize as a police officer. The burden
therefore shifts to Holloway to show the violation of a clearly established constitutional
right.
1.

Holloway’s § 1983 False Arrest Claim (Count I)

The Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. Enshrined within this guarantee is the right to be free from arrests
and that are not supported by probable cause. Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001). “Probable cause exists where the facts within the collective knowledge
of law enforcement officials, derived from reasonably trustworthy information, are
sufficient to cause a person of reasonable caution to believe that a criminal offense has
been or is being committed.” Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir.
2010). Although a police officer who makes an arrest without probable cause violates the
Fourth Amendment, he is nevertheless entitled to qualified immunity if he had “arguable
probable cause.” Id. Arguable probable cause requires the court to ask “whether
reasonable officers in the same circumstances and possessing the same knowledge as
the [Defendant] could have believed that probable cause existed to arrest.” Skop v. City
of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007) (quoting Lee, 284 F.3d at 1195) (internal
quotation marks omitted).
According to the field report, Holloway was arrested for resisting an officer with
violence and battery on a law enforcement officer, (Doc. 27-5, p. 2), both of which are
felonies under Florida law, see Fla. Stat. §§ 784.07(2)(b), 843.01. However, in his Motion

9

for Summary Judgment, Officer Williams states that Holloway was arrested for resisting
an officer without violence, (Doc. 27, p. 9), which is a misdemeanor, see Fla. Stat.
§ 843.02. The parties are essentially unclear in their briefing which offense(s) Holloway
was actually arrested for, and the record evidence cited by the parties fails to conclusively
answer the question. In any event, the Court declines to guess at Holloway’s charge(s)
upon arrest and will consequently deny Officer Williams’ Motion for Summary Judgment
on the § 1983 false arrest claim.
2.

Holloway’s § 1983 Excessive Force Claim (Count III)

The Fourth Amendment additionally guarantees the right to be free from the use
of excessive force during the course of an arrest. See Brosseau v. Haugen, 534 U.S.
194 (2004) (per curiam). “In an excessive force case arising out of an arrest, whether a
constitutional violation occurred is governed by the Fourth Amendment’s ‘objective
reasonableness’ standard.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008).
To that end, the force used by a police officer in effecting an arrest complies with the
Fourth Amendment when an objectively reasonable officer confronted with the same
circumstances would find that the force used is not excessive. Graham v. Connor,
490 U.S. 386, 397 (1989). Importantly, the force used by an officer “must be judged on
a case-by-case basis from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Post v. City of Fort Lauderdale, 7 F.3d 1552,
1559 (11th Cir. 1993) (subsequent history omitted). In measuring whether the use of
force was reasonable, a court must consider myriad factors, including (1) the need for the
force, (2) the proportionality of the force used in relation to its need, (3) the extent of the
injury inflicted on the arrestee, and (4) whether the force was applied maliciously or

10

sadistically. See Hadley, 526 F.3d at 1329; Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th
Cir. 2002).
The facts of this case, if prove true, would establish the use of excessive force by
Officer Williams. Holloway’s account indicates that Officer Williams was an aggressor who
sought physical contact against a merely verbal bystander. Holloway testified that he was
complying with Officer Williams’ commands to step back when Officer Williams kicked at
Holloway’s groin and used chemical spray him. A reasonable officer in the same
circumstances would not have needed to use such force against a citizen who was
complying with the officer’s lawful commands. Moreover, the prohibition on the use of
force on a law abiding citizen is clearly established. Any reasonable officer would know
that using any force on a bystander who was complying with the officer’s commands
would know that the use of such force violated the Fourth Amendment. Therefore, Officer
Williams is not entitled to qualified immunity on Count III.2
B.

Holloway’s § 1983 Malicious Prosecution Claim (Count V)

Officer Williams moves for summary judgment on Holloway’s § 1983 malicious
prosecution claim on the ground that Holloway cannot state a claim for relief.3 This claim
asserts that Officer Williams made material misrepresentations in his arrest affidavit which

2

3

To the extent Holloway’s excessive force claim against Officer Williams is also brought
under the Fourteenth Amendment, it is due to be dismissed because Holloway was
not a pretrial detainee during his interactions with Officer Williams. See Graham v.
Connor, 490 U.S. 386, 395 n.10 (1989) (stating that the Fourteenth Amendment
protects pretrial detainees from the use of excessive force when arrest ends and
pretrial detention begins).
While the Complaint labels this claim a “Material Misrepresentation-Deprivation of
Liberty Without Due Process” claim, (Doc. 1, p. 17), Holloway agrees in his response
to the Motion for Summary Judgment that Count V is a malicious prosecution claim,
(Doc. 29, pp. 15–16).
11

caused him to be falsely prosecuted. (Doc. 1, p. 18). Holloway avers that due to his false
statements, Holloway was prosecuted for resisting with violence, resisting without
violence, and battery on a law enforcement officer. (Doc. 29, p. 3).4 In a malicious
prosecution claim brought under § 1983, “a plaintiff must prove (1) the elements of the
common law tort of malicious prosecution, and (2) a violation of [the] Fourth Amendment
right to be free from unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220,
1234 (11th Cir. 2004).
The only argument Officer Williams makes as to Holloway’s malicious prosecution
claim is that he had arguable probable cause to arrest Holloway for resisting without
violence. (Doc. 27, p. 17). Officer Williams offers no argument or record evidence
speaking to either the common law elements needed for malicious prosecution or a
Fourth Amendment violation. Moreover, as the Court noted in its analysis of Holloway’s
false arrest claim, the field report reflects that Holloway was arrested for resisting an
officer with violence and battery on a law enforcement officer, not for resisting an officer
without violence. The parties’ lack of clarity on what Holloway was arrested for and
charged with again preclude summary judgment. Officer Williams’ Motion for Summary
Judgment will therefore be denied as to Count V.
C.

Monell Claim Against the City (Count VI)

The City moves for summary judgment on Holloway’s Monell claim. When the
defendant is a municipality, the plaintiff can establish liability by demonstrating that an
action occurred “pursuant to [an] official municipal policy of some nature.” Monell v. Dep’t

4

As noted previously, the parties appear to disagree as to which charges were brought
against Holloway. All parties agree that the charge(s) was/were eventually dropped.
12

of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978). Municipal policy exists
in varying forms. The most commonly found example is the enforcement of an officially
endorsed policy such as an ordinance, rule, regulation, code, or policymaker decision.
See, e.g., id. at 694–95; City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality
opinion). However, unofficial or informal policies may also lead to constitutional violations
susceptible to liability. Municipalities may, for example, be found liable if an injury results
from an unofficial custom or practice that is so extensive, permanent, or pervasive that it
essentially “takes on the force of the law.” McDowell v. Brown, 392 F.3d 1283, 1290 (11th
Cir. 2004) (internal quotation marks omitted).
Municipalities are responsible for “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.” Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S.
397, 403–04 (1997). However, municipalities are not liable under § 1983 for random or
isolated occurrences or for conduct of which the officials were unaware. Depew v. City of
St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986). Therefore, although a plaintiff need not
demonstrate that a behavior received formal approval by officials, there must be a
showing of actual or constructive knowledge. Id.
The City is a municipality in Orange County, Florida, and the Orlando Police
Department (“OPD”) is the City’s law enforcement branch. The City shows that OPD has
an official policy regarding the use of force which dictates that all employees must be
objectively reasonable when determining the necessary amount of force to use against
an individual. (Doc. 27-9, p. 2). OPD employees must base their use of force
determination on “the totality of the circumstances known to or considered to by the

13

employee at the moment force was used . . . .” (Id.). To aid officers in determining the
amount of force necessary in a given situation, OPD provides guidelines that suggest
when “hard control,” “soft control,” or other force is appropriate. In his response, Holloway
does not dispute that OPD has an official policy governing the use of force and that this
official policy was not the cause of his alleged constitutional injuries.
Rather, Holloway hinges his Monell claim on the City’s failure to adequately train
its police officers in the use of force. A municipality’s failure to train its officers regarding
their duty not to violate citizens’ constitutional rights can rise to the level of policy where
the failure to train is the result of the municipality’s deliberate indifference toward
constitutional rights. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); City of Canton,
489 U.S. at 388. A plaintiff can prove a municipality’s deliberate indifference in one of two
ways. First, a municipality is deliberately indifferent to constitutional rights where there is
a widespread pattern of similar constitutional violations by untrained employees.
Connick, 131 S. Ct. at 1360. Alternatively, a municipality can be liable for a single incident
where “the need for more or different training is so obvious, and the inadequacy [in
training is] so likely to result in the violation of constitutional rights, that the
policymakers . . . can reasonably be said to have been deliberately indifferent.” City of
Canton, 489 U.S. at 390. The City argues that there is no record evidence that any of its
officers previously committed a similar constitutional violation to put the City on notice of
a need to train with regard to the specific use of force in this case. The burden therefore
shifts to Holloway to demonstrate a genuine issue of material fact for trial. See Riley v.
Newton, 94 F.3d 632, 638 (11th Cir. 1996).

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Holloway asserts that the City is not entitled to summary judgment because prior
complaints and lawsuits indicate that the City was deliberately indifferent in correcting
violative conduct of which the City was aware. Holloway asserts that out of fifty-five cases
filed against the City in the last five years, twenty-seven resulted in monetary awards
either by settlement or jury verdict. (Doc. 29-4). However, Holloway offers no evidence as
to the facts of these twenty-seven cases. Holloway merely produced a list of twenty-seven
cases that included the claimant’s name, docket number, an “Event Cause Description”
of “Excessive Force,” and an “Incurred Sum”—the twenty-eight remaining cases provide
even less information. (Id.). Without more—such as fact summaries, commonalities
between cases, or details regarding how or why a matter was resolved—Holloway cannot
carry his burden of demonstrating a genuine factual dispute as to whether the City was
deliberately indifferent in its alleged failure to train. Accordingly, summary judgment is due
to be granted in favor of the City on Holloway’s Monell claim.
D.

State Law Claims
1.

False Imprisonment and Battery Claims (Counts VII and IX)

Officer Williams also moves for summary judgment on Holloway’s false
imprisonment claim (Count VII) and on Holloway’s claim for battery (Count IX). Officer
Williams argues that he is entitled to summary judgment on these claims because
Florida’s sovereign immunity statute shields police officers from personal liability in tort
for injuries or damages they cause while acting within the scope of their employment.5
See Fla. Stat. § 768.28(9)(a). Like qualified immunity under federal law, when individual

5

The Court notes that Officer Williams does not argue that he is entitled to immunity on
Fripp’s or Holloway’s claims for intentional infliction of emotional distress.
15

immunity under § 768.28(9)(a) attaches, the police officer is protected not just from
liability, but from being sued for state tort claims. Furtado v. Yun Chung Law, 51 So. 3d
1269, 1277 (Fla. Dist. Ct. App. 2011). However, this immunity from suit will not attach and
a police officer may face personal liability for injuries and damages he causes where he
“act[s] in bad faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). In Lemay v.
Kondrk, Florida’s Fifth District Court of Appeal explained “wanton and willful” conduct in
the following way:
Willful and wanton conduct is generally something more than
ordinary negligence but less than deliberate conduct. Most
definitions of willful or wanton conduct require that it appear
that the defendant had knowledge of existing conditions, was
conscious from such knowledge that injury would likely or
probably result from his conduct, and with reckless
indifference to the consequences consciously and
intentionally does some wrongful act or omits to discharge
some duty which produces the injurious result.
923 So. 2d 1188, 1192 (Fla. Dist. Ct. App. 2006) (citation omitted).
Here, a reasonable trier of fact could conclude that Officer Williams’ actions toward
Holloway were committed with wanton and willful disregard of his rights. Record evidence
lends support to Holloway’s version of the facts, in which Holloway did not commit a crime
and complied with all of Officer Williams’ commands, but was nevertheless met with force,
including a kick to his groin and mace sprayed into his eyes. Officer Williams is therefore
not entitled to immunity on Holloway’s false imprisonment and battery claims.
2.

Holloway’s and Fripp’s Intentional Infliction of Emotional
Distress Claims (Counts XII and XIV)

Lastly, Officer Williams moves for summary judgment on Holloway’s and Fripp’s
claims for intentional infliction of emotional distress (“IIED”) on the ground that they canot

16

state a claim for relief. In order to state a claim for IIED, a plaintiff must establish four
elements: (1) the defendant acted intentionally or recklessly, (2) the defendant’s conduct
was outrageous, (3) the defendant’s conduct caused emotional distress to the plaintiff,
and (4) the plaintiff’s emotional distress was severe. Stewart v. Walker, 5 So. 3d 746,
749 (Fla. Dist. Ct. App. 2009). Officer Williams submits that Fripp and Holloway cannot
establish the outrageousness and severity elements of their claims.
a.

Outrageousness

“The standard for ‘outrageous conduct’ is particularly high in Florida.” Patterson v.
Downtown Med. & Diagnostic Ctr., Inc., 866 F. Supp. 1379, 1383 (M.D. Fla. 1994).
Conduct is outrageous where it is “so extreme in degree as to go beyond the bounds of
decency and be deemed utterly intolerable in a civilized community.” Clemente v. Horne,
707 So. 2d 865, 867 (Fla. Dist. Ct. App. 1998) (citing Restatement (Second) of Torts § 46
cmt. d). It is insufficient to show tortious or criminal intent and “it is not enough [to show]
that the defendant intended to inflict emotional distress.” State Farm Mut. Auto. Ins. Co.
v. Novotny, 657 So. 2d 1210, 1212–13 (Fla. Dist. Ct. App. 1995); see also E. Airlines, Inc.
v. King, 557 So. 2d 574, 576 (Fla. 1990). Instead, “the case is one in which the recitation
of the facts to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim, ‘Outrageous!’” Clemente, 707 So. 2d at 867 (quoting
Restatement (Second) of Torts § 46 cmt. d).
The Court finds that a genuine factual dispute exists as to whether an average
member of the community could deem an officer who kicks and maces a citizen who
complies with the officer’s commands to be outrageous. See Williams v. City of Daytona
Beach, No. 604CV1879ORL19KRS, 2005 WL 1421293, at *9 (M.D. Fla. June 16, 2005)

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(collecting cases finding that the conduct of a law enforcement officer who utilizes
physical contact or abuses his position rises to the level of outrageousness under Florida
law). Summary judgment is therefore not appropriate on the grounds that the conduct at
issue is not sufficiently outrageous.
b.

Severity of Emotional Distress

Officer Williams next argues that neither Holloway nor Fripp experienced
sufficiently severe emotional distress. In their depositions, however, both Holloway and
Fripp testified that they are now terrified of police because of Officer Williams’ conduct
and that, if they speak to a police officer, it causes them to shake. (Doc. 27-2, 56:18–
57:4; Doc. 27-3, 69:1–16). Fripp additionally testified that she now has trouble sleeping
because of the incident. (Doc. 27-3, 69:1–16). Officer Williams argues that being nervous
around law enforcement is a common feeling among the general public and does not rise
to the level of severity needed to sustain a claim for IIED. The Court disagrees; it is not a
normal or common response for an individual to become so nervous around a police
officer that it causes physiological reactions such as shaking or loss of sleep. A genuine
factual dispute therefore exists and summary judgment will be denied as to Fripp and
Holloway’s IIED claims.
IV.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that

Defendants’, City of Orlando and Joel Williams, Motion for Summary Judgment (Doc. 27)
is GRANTED IN PART and DENIED IN PART as follows:
1.

Summary judgment is GRANTED as to Count VI and that portion of
Count III arising under the Fourteenth Amendment.

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2.

Summary judgment is otherwise DENIED.

DONE AND ORDERED in Orlando, Florida on August 16, 2016.

Copies furnished to:
Counsel of Record

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