Raftopoulos v. The City of Palm Bay et al

Filing 55

ORDER granting in part and denying in part 48 motion to dismiss; granting in part and denying in part 49 Motion to Dismiss for Failure to State a Claim. See Order for details and deadlines. Signed by Judge Roy B. Dalton, Jr. on 10/11/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOHN RAFTOPOULOS,
Plaintiff,
v.

Case No. 6:15-cv-1063-Orl-37KRS

THE CITY OF PALM BAY, et al.,,
Defendants.
ORDER
This case is before the Court on Defendants Steve Mimbs and John Doe Hughes’
Motion to Dismiss the Third Amended Complaint (Doc. 48), Defendants Evans, Richards.
And Muldoon’s Motion to Dismiss the Third Amended Complaint (Doc. 49), and
Plaintiff’s Responses in Opposition (Doc. Nos. 53, 54). As discussed hereinafter,
Defendants’ Motions to Dismiss are granted in part and denied in part.
I.

FACTUAL BACKGROUND 1

Plaintiff, a prisoner proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983.
(Doc. 47.) Plaintiff is suing John Doe Hughes, Walter Evans, Mark Richards, Steve Mimbs,
Douglas F. Muldoon, John Doe Shedrick, 2 and ten unidentified officers for actions
occurring on July 7, 2012, during his arrest. (Id. at 5-7.) According to Plaintiff, Defendants

1 The

following statement of facts is derived from Plaintiff’s Third Amended
Complaint (Doc. 47).
2

Defendant Shedrick was previously dismissed from the action. (Doc. 46 at 2.)
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Evans, Hughes, and ten unidentified officers placed him on the ground. (Id. at 7.) After
Plaintiff was subdued and while the ten unidentified officers were “mounted” on his
back, Defendant Hughes, a K-9 handler, brought a K-9 to Plaintiff’s face and commanded
it to attack Plaintiff. (Id.). An unidentified officer told Defendant Hughes that an
emergency response unit was in route and to call off the dog before it arrived. (Id.) The
unidentified officers failed to protect Plaintiff while he was mauled by the K-9. (Id.).
Defendant Hughes ordered the dog to cease its attack when the emergency response unit
arrived. (Id.) Plaintiff suffered an injury to his left arm from the dog attack. (Id.).
While Plaintiff was being attacked by the K-9, Defendant Richards repeatedly
deployed his Taser on Plaintiff’s back without provocation. (Id.) The force lasted for
approximately eight minutes. (Id.) The unidentified officers failed to protect Plaintiff from
Defendant Richards’ use of the Taser. (Id.) Plaintiff suffers from a heart condition caused
by the Taser. (Id.) After the incident, Plaintiff sought to preserve the videotape of the
incident. (Id.) Defendants Mimbs, Muldoon, and Shedrick destroyed the videotape to
cover-up the other Defendants’ conduct. (Id. at 7-8).
Plaintiff asserts Defendants violated his Fourth Amendment rights by allowing a
K-9 to attack him and by tasering him. (Id. at 9-10.) Plaintiff further contends that
Defendants conspired to violate his Fourth and Fourteenth Amendment rights. (Id.)
Finally, Plaintiff maintains Defendants Mimbs and Muldoon violated his Fourteenth
Amendment right to due process by destroying the videotape. (Id. at 11-12.)
II.

STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal

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Rules of Civil Procedure, courts must accept all factual allegations in the complaint as
true and read them in the light most favorable to the plaintiff. Erickson v. Pardus, 551
U.S. 89, 93-94 (2007); see also Christopher v. Harbury, 536 U.S. 403, 406 (2002). A complaint
must contain a short and plain statement demonstrating an entitlement to relief, and the
statement must “give the defendant ‘fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.’” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319
(2007) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346 (2005)) (citations
omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff must
supply enough facts “to state a claim to relief that is plausible on its face,” rather than
simply “conceivable.” Twombly, 550 U.S. at 570. Thus, “[w]hile a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . 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 (citations omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all the allegations
in the complaint are true.” Id. (citations omitted). In the case of a pro se action, however,
the Court should construe the complaint more liberally than it would pleadings drafted
by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).
III.

ANALYSIS

Defendants assert that the Third Amended Complaint should be dismissed inter
alia because it does comply with the pleading requirements of the Federal Rules of Civil
Procedure and does not state a claim upon which relief may be granted. Defendants

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further argue that they are entitled to qualified immunity. The Court will address
Defendants’ arguments in relation to Plaintiff’s claims.
A.

Fourth Amendment Excessive Force Claims (Claims One, Two, and Five)

Defendants Hughes, Evans, and Richards contend that Plaintiff has failed to state
a claim upon which relief may be granted for violation of the Fourth Amendment. They
further argue that they are entitled to qualified immunity.
“The doctrine of 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.”Pearson v.
Callahan, 555 U.S. 223, 232 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))
(quotation omitted). To be entitled to qualified immunity, a government official first must
demonstrate that “he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.” Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir. 1988)
(quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983)). If the defendant satisfies this
burden, then the Court must grant qualified immunity unless the plaintiff can
demonstrate first, that the facts viewed in the light most favorable to the plaintiff establish
a constitutional violation by the officers; and, second, that it was clearly established at the
time of the incident that the actions of the defendant were unconstitutional. See Saucier v.
Katz, 533 U.S. 194, 201 (2001); see also McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.
2009). Courts are permitted to exercise discretion in determining which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand. See Pearson, 555 U.S. at 236.

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“’To assert a Fourth Amendment claim based on the use of excessive force, the
plaintiffs must allege (1) that a seizure occurred and (2) that the force used to effect the
seizure was unreasonable.’” Burge v. Ferguson, 619 F. Supp. 2d 1225, 1236 (M.D. Fla. 2008)
(quoting Troupe v. Sarasota County, Fla., 419 F.3d 1160, 1166 (11th Cir. 2005)). An excessive
force claim arising out of an arrest is governed by the objective reasonableness standard
of the Fourth Amendment. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). A
determination of whether the force was objectively reasonable requires the examination
of numerous factors like “’(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.’” Burg,
619 F. Supp. 2d at 1236-37 (quoting Hadley, 526 F.3d at 1329). The necessity for the use of
force depends on factors such as “the severity of the crime, immediate danger to the
officer or others, and attempts to resist arrest or evade arrest by flight.” Id. at 1237 (citing
Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003)). “’[T]he right to make an arrest . .
. necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “’[Q]ualified
immunity applies unless application of the [reasonableness] standard would inevitably
lead every reasonable officer . . . to conclude the force was unlawful.’” Id. (quoting Slicker
v. Jackson, 215 F.3d 1225, 1232 (11th Cir. 2000)).
Plaintiff alleges Defendants Evans, Hughes, and ten unidentified officers placed
him on the ground, and while he was subdued with officers on his back, Defendant
Hughes, assisted by Defendant Evans, commanded a K-9 to attack Plaintiff. (Doc. 47 at 7-

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9). Likewise, Plaintiff asserts Defendant Richards deployed a Taser repeatedly to his back
during this time without provocation. (Id.) According to Plaintiff, the use of force lasted
for approximately eight minutes. (Id.). Plaintiff suffered physical injuries as a result of the
use of force. (Id.) From Plaintiff’s allegations, the use of force, both the K-9 and the Taser,
occurred after he was subdued. Consequently, the Third Amended Complaint states a
claim for the use of excessive force against these Defendants. See, e.g., Hadley, 526 F.3d at
1330 (“Our cases hold that gratuitous use of force when a criminal suspect is not resisting
arrest constitutes excessive force.”); Hayden v. Broward Cty., No. 12-62278-CIV, 2014 WL
1877405, at *9 (S.D. Fla. May 9, 2014) (“While it was reasonable to use a certain amount of
force to subdue Plaintiff and secure his firearm, . . . punching Plaintiff while he was
already on the ground and under control, if true, may constitute a higher degree of force
than was necessary to achieve the officers’ aims.”). Therefore, Defendants are not entitled
to qualified immunity at this time. See, e.g., Russe v. Losa-ID. 04159, No. 09-20297CIV, 2009
WL 577758, at *3 (S.D. Fla. Mar. 5, 2009) (concluding the defendants could not establish
entitlement to qualified immunity where the plaintiff alleged defendants ordered and
encouraged dogs to attack him when he was already subdued on the ground).
Accordingly, Plaintiff may proceed on his excessive force claims against Defendants
Hughes, Evans, and Richards.
B.

Conspiracy Claims (Claims Four and Six)

Defendants Hughes, Evans, and Richards argue that Plaintiff has failed to state a
claim upon which relief may be granted for conspiracy to violate Plaintiff’s Fourth and
Fourteenth Amendment rights.

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“To establish a prima facie case of a Section 1983 conspiracy, a plaintiff must
show that “the defendants reached an understanding to deny the plaintiff’s
rights.” Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th Cir. 2008) (citing
Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990)). Additionally, the
plaintiff must show “an underlying actual denial of [his] constitutional
rights.” Hadley, 526 F.3d at 1332 (quoting GJR Invs., 132 F.3d at 1370).
Finally, to allege a conspiracy, a plaintiff must make “particularized
allegations” that a conspiracy exists. GJR Invs., 132 F.3d at 1370. Vague and
conclusory allegations suggesting a Section 1983 conspiracy are insufficient.
Fullman v. Graddick, 739 F.2d 553, 556–57 (11th Cir. 1984).
Burge v. Ferguson, 619 F. Supp. 2d 1225, 1236–37 (M.D. Fla. 2008). “‘[T]o allege the
existence of an agreement on the part of the defendants, a plaintiff need not point to a
‘smoking gun;’ instead, ‘nothing more than an ‘understanding’ and ‘willful participation’
. . . is necessary to show the kind of joint action that will subject . . . parties to § 1983
liability.’” Williams v. Fulton Cty. Sch. Dist., 181 F. Supp. 3d 1089, 1148 (N.D. Ga. 2016)
(quoting Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990)).
The Third Amended Complaint summarily alleges that Defendants Hughes and
Evans conspired with ten unidentified officers to deprive him of his Fourth Amendment
right to be free from bodily harm and his Fourteenth Amendment right to due process.
(Doc. 47 at 10.) Similarly, Plaintiff asserts in a conclusory fashion that Defendant Richards
conspired with Defendants Hughes, Evans, and ten unidentified officers to deprive him
of his Fourth Amendment right to be free from bodily harm and his Fourteenth
Amendment right to due process. (Id. at 11.) However, Plaintiff has not pled facts
demonstrating that Defendants reached an agreement or understanding to violate his
constitutional rights. Additionally, Plaintiff has not asserted how the alleged conspiracy
violated his right to due process. Consequently, the Court concludes that Plaintiff has

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failed to state a claim for conspiracy. See, e.g., Dukes v. Miami-Dade Cty., 232 F. App’x 907,
911–12 (11th Cir. 2007) (affirming dismissal of conspiracy claim because the plaintiff’s
allegation that the actions of the defendants were the result of a conspiracy were vague
and conclusory). Accordingly, Plaintiff’s conspiracy claims (Claims Four and Six) are
dismissed.
C.

Destruction

of

Videotape

Claims

(Claims

Seven

and

Eight)

Defendants Mimbs and Muldoon assert that Plaintiff has failed to state a claim for
violation of his right to due process premised on the destruction of the videotape of the
incident. They argue, therefore, that they are entitled to qualified immunity.
Although it is not clear to which due process right Plaintiff refers, the Court
assumes Plaintiff intends to assert that his due process right to access to court was
violated by the destruction of the videotape. “Cover-ups that prevent a person who has
been wronged from vindicating his rights violate the right of access to the courts
protected by the substantive due process clause.” Estate of Smith v. Marasco, 318 F.3d 497,
511–12 (3d Cir. 2003) “To succeed on a denial of access claim, a plaintiff must show that
the defendants (1) engaged in deliberate and malicious conduct that (2) resulted in actual
injury, i.e., that hindered the plaintiff’s effort to pursue a legal claim.” DeMeo v. Tucker,
509 F. App’x 16, 18 (2d Cir. 2013) (citing Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003)).
Plaintiff has alleged that Defendants Mimbs and Muldoon destroyed the
videotape of the incident to cover-up the other Defendants’ use of excessive force.
Plaintiff’s allegation, if true, demonstrates an attempt to deprive Plaintiff of access to
courts for redress of this harm. Without such extrinsic evidence, it becomes Plaintiff’s

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word against those of Defendants. Consequently, Plaintiff has alleged facts
demonstrating that the destruction of the videotape resulted in an actual injury. Thus,
Plaintiff has sufficiently alleged a claim for violation of his right to due process based on
the destruction of the videotape. Accordingly, Defendants Mimbs’ and Muldoons’
motions to dismiss these claims are denied.
D.

Official Capacity Claims

Defendants contend that Plaintiff has failed to state a claim against them in their
official capacity. A suit against an individual in his official capacity is the same as a suit
against the municipality. See Cooper v. Dillon, 403 F.3d 1208, 1221 n.8 (11th Cir. 2005)
(citing McMillian v. Monroe County, 520 U.S. 781, 785 n. 2 (1997)). “When suing local
officials in their official capacities under § 1983, the plaintiff has the burden to show that
a deprivation of constitutional rights occurred as a result of an official government policy
or custom.” Id. at 1221 (footnote omitted) (citing Little v. City of North Miami, 805 F.2d 962,
965 (11th Cir. 1986)). The Third Amended Complaint does not allege any claims premised
on an official government policy or custom. Consequently, to the extent Plaintiff may
have intended to sue Defendants in their official capacity, those claims are dismissed.
Any of Defendants’ arguments not specifically addressed herein have been
considered and are without merit.
IV.

CONCLUSION

In accordance with the foregoing, it is hereby ORDERED as follows:
1.

Defendants Hughes and Mimbs’ Motion to Dismiss the Third Amended

Complaint (Doc. 48) is GRANTED IN PART AND DENIED IN PART. Plaintiff’s claims

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for conspiracy are dismissed. Plaintiff may proceed on his claims for use of excessive
force and destruction of the videotape.
2.

Defendants Richards, Evans, and Muldoon’s Motion to Dismiss the Third

Amended Complaint (Doc. 49) is GRANTED IN PART AND DENIED IN PART.
Plaintiff’s claims for conspiracy are dismissed. Plaintiff may proceed on his claims for use
of excessive force and the destruction of the videotape.
3.

The parties are directed to conduct discovery so that the due date of any

discovery requested shall be not later than December 8, 2017. Any motions relating to
discovery or motions to amend the pleadings, including to amend the complaint to name
the John Doe Defendants or join other parties, shall be filed no later than FOURTEEN
(14) DAYS thereafter.
4.

All motions to dismiss and/or for summary judgment shall be filed by

January 15, 2018.
5.

On or before February 5, 2018, Plaintiff shall file a statement entitled

“Pretrial Narrative Statement.” The Pretrial Narrative Statement shall contain:
(a)

A brief general statement of the case;

(b)

A narrative written statement of the facts that will be offered by oral
or documentary evidence at trial;

(c)

A list of all exhibits to be offered into evidence at the trial of the case;

(d)

A list of the full names and addresses of places of employment for
all the non-inmate witnesses that Plaintiff intends to call (Plaintiff
must notify the Court of any changes in their addresses);

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(e)

A list of the full names, inmate numbers, and places of incarceration
for all the inmate witnesses that Plaintiff intends to call (Plaintiff
must notify the Court of any changes in their places of incarceration);

(f)

A summary of the anticipated testimony of each witness named in
(d) and (e).

(g)

A stipulation of facts/issues to be tried; and

(h)

An estimated length of trial.

Plaintiff shall serve a copy of this in accordance with paragraph 9.
6.

On or before February 26, 2018, Defendants shall file and serve upon

Plaintiff a “Pretrial Narrative Statement,” entitled as such. The Pretrial Narrative
Statement shall comply with paragraph 5 (a) through (h).
7.

Failure of the parties to disclose fully in the Pretrial Narrative Statement or

at the pretrial conference the substance of the evidence to be offered at trial will result in
the exclusion of that evidence at the trial. The only exceptions will be (1) matters which
the Court determines were not discoverable at the time of the pretrial conference, (2)
privileged matters, and (3) matters to be used solely for impeachment purposes.
8.

If Plaintiff fails to file a Pretrial Narrative Statement, as required by

paragraph 5 of this order, paragraph 6 of this order shall be inoperative and Defendants
shall notify the Court of Plaintiff’s failure to comply.
9.

Plaintiff shall serve upon defense counsel, at the address given for him/her

in this order, a copy of every pleading, motion, memorandum or other paper submitted
for consideration by the Court and shall include on the original document filed with the
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Clerk of the Court a certificate stating the date that a true and correct copy of the pleading,
motion, memorandum, or other paper was mailed to counsel. All pleadings, motions,
memoranda, or other papers shall be filed with the Clerk and must include a certificate
of service or they will be disregarded by the Court.
10.

On the consent of all parties, a United States Magistrate Judge may either

(a) conduct all proceedings, including the entry of a final order determining the case and
a jury or non-jury trial, if warranted, or (b) conduct any and all proceedings and enter a
final order as to specified motions only. 28 U.S.C. ' 636(c); Fed. R. Civ. P. 73; Local Rule
6.05. Appeal is directly to the United States Court of Appeals for the Eleventh Circuit in
Atlanta, Georgia, in the same manner as an appeal from any other judgment of the district
court. 28 U.S.C. ' 636(c)(3); Fed. R. Civ. P. 73(c).
Consent to proceed before a United States Magistrate Judge may reduce litigation
time and costs, and secure the just, speedy, and inexpensive determination of this action.
See Fed. R. Civ. P. 1. The parties are free to withhold consent without adverse substantive
consequences, in which case a United States District Judge will enter final adjudication.
If all parties wish to consent to proceed before a United States Magistrate Judge
for all proceedings including a final order and a trial, if warranted, each party shall sign
and date Form AO85 and return the form to the Clerk of Court. If all parties wish to
consent to proceed before a United States Magistrate Judge for all proceedings and entry
of a final order as to only specified motions, each party shall sign and date Form AO85

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and return the form to the Clerk of Court. Consent forms should not be submitted unless
they are signed by all parties. The Clerk of the Court is directed to send to all counsel of record
and all unrepresented parties a letter to counsel regarding proceedings before a United States
Magistrate Judge, Form AO85, and Form AO85A.
DONE AND ORDERED in Orlando, Florida, on October 11th, 2017.

Copies to:
John Raftopoulos
Counsel of Record

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