Bostick v. Sheriff of Orange County, Florida Sheriffs Office et al

Filing 30

ORDER granting in part and denying in part 16 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 3/25/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TYRONE BOSTICK,
Plaintiff,
v.

Case No. 6:15-cv-1533-Orl-37GJK

DEPUTY LATASHA McGUIRE;
DEPUTY JOHN DOE 1; and DEPUTY
JOHN DOE 2,
Defendants.
ORDER
This matter is before the Court on the following:
1.

Defendant Deputy Latasha McGuire’s Motion to Dismiss Plaintiff’s
Amended Complaint and Memorandum of Law in Support (Doc. 16), filed
October 20, 2015; and

2.

Plaintiff’s Response to Defendant, Latasha McGuire’s Motion to Dismiss
Plaintiff’s Amended Complaint and Plaintiffs [sic] Motion to Strike
References to Sheriff Demings Who is No Longer a Defendant (Doc. 20),
filed November 3, 2015.
BACKGROUND

This civil rights and state tort action was initiated by Plaintiff Tyrone Bostick in the
Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida
(“State Court”). (Doc. 1-2.) Defendant Deputy Latasha McGuire (“McGuire”) and former
Defendant Sheriff Jerry L. Demings (“Demings”) removed the action to this Court based
on federal question and supplemental jurisdiction. (Doc. 1.) A week after removal,

McGuire and Demings each filed a Motion to Dismiss the State Court Complaint.
(Docs. 6, 7; Doc. 2.) Plaintiff then timely filed an Amended Complaint 1 (Doc. 13), which
did not name Demings as a Defendant, but did name McGuire and two “DOE”
Defendants who allegedly are “law enforcement officer[s] employed by” the Orange
County Sheriff’s Office (“OCSO”). (See Doc. 13, ¶¶ 12–14, 16.) McGuire again moved
to dismiss (Doc. 16 (“Rule 12 Motion”)), and Plaintiff filed a response (Doc. 20
(“Rule 12 Response”)).
THE AMENDED COMPLAINT
The Amended Complaint sets forth the following factual allegations, which are
considered true for purposes of resolving the Rule 12 Motion:
•

On or about August 22, 2011, McGuire initiated a stop upon Plaintiff.
(Doc. 13, ¶ 15.)

•

“According to the charging affidavit, McGuire was doing proactive
patrol of Lenox Blvd. and S. Ivey Lane” when “she observed a black
male walking along the sidewalk.” The Doe Defendants were with
McGuire in an unmarked vehicle (“Vehicle”), which McGuire drove
“slightly behind” the Plaintiff “‘in an attempt to initiate a consensual
encounter.’” (Id. ¶ 16.)

•

“There were no allegations that [Plaintiff] had committed, was
committing or was about to commit a crime” (Id. ¶ 20.)

•

The Doe Defendants “exited the vehicle driven by McGuire and began
chasing” Plaintiff. “At no time did she identify herself as law
enforcement.” (Id. ¶ 17.)

•

Plaintiff began to run as he was not able to identify the
Doe Defendants as law enforcement officers. (Id.) When the Doe
Defendants caught up to Plaintiff, they “slammed him down to the

1

Pursuant to Federal Rule of Civil Procedure 15(a)(1), plaintiffs may file an
amended complaint without leave of court within 21 days after service of a motion under
Rule 12. Plaintiff’s Rule 15 Motion was filed within this time period and more than two
months before the deadline set in the Court’s Case Management and Scheduling Order
(“CMSO”) to add parties or to amend pleadings. (See Doc. 21, p. 1.)

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ground,” hit him “with a baton and dragged [him] through a drainage
ditch.” (Id.)
•

Plaintiff “was thereafter searched and arrested for resisting an officer
without violence, in violation of Fla. Stat. § 843.02 and was taken to the
Orange County Jail by the Defendants.” (Id. ¶ 23.)

•

During the transport to jail, the Doe Defendants “continued to hit
[Plaintiff] with a baton while he was in the back seat.” (Id. ¶ 18.)

•

McGuire “filed a false police report and booked [Plaintiff] into jail as if
she arrested him by herself and intentionally left out the facts about”
the Doe Defendants beating Plaintiff. (Id. ¶ 19.)

•

On or about October 21, 2011, the Office of the State Attorney entered
a Nolle Prosequi. (Id. ¶ 32.)

•

Defendants did not have warrants for the search or arrest of Plaintiff,
nor did they have reasonable suspicion or probable cause that Plaintiff
was engaged in criminal activity. (See id. ¶¶ 21, 22, 24, 26, 122.)

Based on these factual allegations, Plaintiff asserts ten federal civil rights claims
and eleven state law claims against McGuire and the Doe Defendants. (Id. ¶¶ 34–223.)
Brought pursuant to 42 U.S.C. §§ 1983 & 1988, Counts Twelve through Twenty are for
unlawful search, unlawful seizure, and use of excessive force in violation of the Fourth
and Fourteenth Amendments to the U.S. Constitution. (Id. ¶¶ 121–207). The last federal
claim—Count Twenty-One—is asserted only against McGuire for her alleged filing of a
false police report in violation of Plaintiff’s constitutional right to due process of law.
(See id. ¶¶ 208–23.) Counts Four and Five set forth state law battery claims against the
DOE Defendants. (See id. ¶¶ 49–60.) The remaining state law claims—invasion of
privacy, false imprisonment, and intentional infliction of emotional distress—are
asserted against all three Defendants. (See id. ¶¶ 34–120.)

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PLEADING STANDARDS
The Federal Rules of Civil Procedure set forth minimum requirements concerning
the form of a Complaint. Rule 8 requires that a complaint consist of simple, concise and
direct allegations, and a short and plain statement of the claims Under Rule 10, a
plaintiff is required to use numbered paragraphs, each limited to a single set of
circumstances. Rule 12 provides for dismissal of a complaint that does not comply with
minimum pleading requirements or otherwise “fails to state a claim to relief that is
plausible on its face,” the defendant may seek dismissal of the complaint under Rule
12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 672, 678–79 (2009).
A complaint states a plausible claim if it includes “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 679 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Courts
must resolve a Rule 12(b)(6) motion based solely on the complaint, its attachments,
“documents incorporated into the complaint by reference, and matters of which a court
may take judicial notice.” See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
323 (2007). Further, courts must accept all well-pled factual allegations—but not legal
conclusions—in the complaint as true. See id.
DISCUSSION
McGuire argues that the Court should grant the Rule 12 Motion because:
(1) “Plaintiff’s Amended Complaint contains self-serving and vague statements without
sufficient factual allegations to meet the pleading requirements of Rule 8;” and
(2) McGuire is entitled to qualified immunity concerning Plaintiff’s civil rights claims—
Counts Four, Twelve, Twenty, and Twenty-One; (3) Count Twenty fails because
McGuire cannot be held liable based on the excessive force allegedly used against

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Plaintiff by the Doe Defendants; and (4) Count Twenty-One—which alleges a due
process violation related McGuire’s alleged filing of a false police report—is not a claim
recognized under controlling law. (Doc. 16, pp. 5, 8, 17–18.) Plaintiff urges the Court to
reject McGuire’s first three arguments because they are founded on disputed issues of
fact and they are not supported by the law. (See Doc. 20.)
McGuire’s first two arguments require that the Court draw several inferences
against Plaintiff and accept as true the following statements set forth in McGuire’s police
report (“Report”): 2
•

The area of Lenox Bv and S. Ivey Ln, Orlando FL “is a documented
high crime area in which I have made, and assisted other deputies in
making, multiple drug and gun related arrests.”

•

McGuire stopped her unmarked car “slightly behind” where Plaintiff
was walking along a sidewalk, and she exited the vehicle while
wearing her “full Orange County issued uniform with badge, patches,
and equipment, clearly identifying” McGuire as “law enforcement.”

•

Plaintiff “suddenly ran, taking headlong flight back eastbound” away
from McGuire.

•

While in flight, Plaintiff committed “a pedestrian violation” by crossing
the “street diagonally, not crossing at a right angle.”

2

The Report was not filed with the Amended Complaint, the State Court
Complaint, or the Rule 12 Motion. (See Docs. 2, 13, 16.) Rather, it was filed as an
exhibit to McGuire’s motion to dismiss the State Court Complaint (Doc. 7), which motion
was denied as moot when Plaintiff filed the Amended Complaint (Doc. 14).
Nonetheless, the Court will disregard the Report as it is central to Plaintiff’s claims, it is
referenced in the Amended Complaint (see Doc. 13, ¶ 16 (summarizing the “charging
affidavit”); id. ¶ 19 (referencing the “police report”)), and—although the truth of the
statements in the Report are disputed—there is no dispute concerning the authenticity
of the Report. See Tellabs, 551 U.S. at 322 (“[C]ourts must consider the complaint in its
entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.”).

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•

After Plaintiff committed the pedestrian violation, McGuire “yelled” for
Plaintiff “to stop running and talk” to McGuire, but Plaintiff continued to
run until he tripped on a drainage ditch, fell, and caused “lacerations to
his hands.”

•

After Plaintiff fell, McGuire was able to “secure” Plaintiff and transport
him to jail “without incident.”

(Doc. 7-1, p. 2.)
The version of the facts in the Report are directly at odds with the factual
allegations in the Amended Complaint—including Plaintiff’s explicit allegation that the
Report is untrue and that it omits pertinent facts. (See Doc. 13.) Because such factual
disputes cannot be resolved at the pleading stage, the Court rejects McGuire’s first two
arguments. The Court also rejects McGuire’s third argument because Count Twenty
sets forth a plausible failure-to-intervene claim against McGuire. See Priester v. Riviera
Beach, 208 F.3d 919, 924–25 (11th Cir. 2000). Finally, given Plaintiff’s concession that
“there is no viable claim for filing a false police report,” the Court finds that Count
Twenty-One is due to be dismissed.
CONCLUSION
It is hereby ORDERED AND ADJUDGED:
1.

Defendant Deputy Latasha McGuire’s Motion to Dismiss Plaintiff’s
Amended Complaint and Memorandum of Law in Support (Doc. 16) is
GRANTED IN PART AND DENIED IN PART.
a.

The Motion to Dismiss (Doc. 16) is GRANTED with respect to
Count Twenty-One of the Amended Complaint.

b.

The Motion to Dismiss (Doc. 16) is DENIED in all other respects.

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2.

Count Twenty-One of the Amended Complaint (Doc. 13) is DISMISSED.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 25, 2016.

Copies:
Counsel of Record

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