Johnson v. City of Daytona Beach et al

Filing 34

ORDER granting in part and denying in part 19 Defendants' Motion to Dismiss the Plaintiff's Complaint. Count III is dismissed and Counts VII and IX are dismissed with prejudice. Defendants shall answer the remainder of Plaintiff's Complaint within fourteen (14) days of this Order. Signed by Judge Paul G. Byron on 1/12/2017. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

OTHA JOHNSON
Plaintiff,
v.

Case No: 6:16-cv-941-Orl-40TBS

CITY OF DAYTONA BEACH, et al.,
Defendants.
ORDER
This cause comes before the Court on Defendants’ Motion to Dismiss the Plaintiff’s
Complaint (Doc. 19), filed July 5, 2016. Plaintiff responded in opposition on July 20, 2016.
(Doc. 27). Upon consideration, Defendants’ motion to dismiss will granted in part and
denied in part.
I.

BACKGROUND
A.

Facts 1

On March 1, 2015, Defendants, Brian Biddix (“Officer Biddix”) and Dawn Marie
Harris (“Officer Harris”), were on duty as police officers for the Daytona Beach Police
Department. At approximately 8:05 p.m. that day, Officer Biddix and Officer Harris arrived
at 900 Peninsula Drive, Daytona Beach, Florida, in response to a disturbance call
involving a female. (Doc. 1, ¶ 31). Upon arriving, Officer Biddix and Officer Harris found
Kayla Strunk asleep in the driver’s seat of a vehicle that was parked in the parking lot at

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This account of the facts is taken from Plaintiff’s Complaint (Doc. 1), the allegations of
which the Court must accept as true in considering Defendants’ Motion to Dismiss.
See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de
Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th
Cir. 1983).

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the apartment complex where Plaintiff, Otha Johnson (“Johnson”), lived. (Doc. 1, ¶¶ 32–
33). When Officers Biddix and Harris approached Ms. Strunk, Johnson exited his
apartment and informed the officers that Ms. Strunk was intoxicated and that he had
argued with her about driving due to her intoxicated state. (Id. ¶ 34). Officer Harris asked
Johnson whether Ms. Strunk was his girlfriend, and Johnson responded that he and Ms.
Strunk were not romantically involved, but that they were friends. (Id. ¶ 35).
Officer Harris then demanded information from Johnson, informed him that there
was a criminal investigation, and threatened him with arrest if he did not comply with her
demands. (Id. ¶ 36). Johnson provided his name, at which point Officer Harris demanded
to see his identification. (Id. ¶ 37). Johnson informed Officer Harris that he had
identification in his apartment and began to walk toward his apartment. (Id. ¶ 38). Officer
Harris advised Johnson that he was not permitted to leave, informed him he was being
detained for investigation and threatened him with arrest for obstruction of justice and
disorderly conduct. (Id. ¶ 39). Officer Harris then contacted Defendant, Timothy Blowers
(“Sergeant Blowers”), her sergeant and supervisor, and requested assistance. (Id. ¶ 40).
Upon arriving a short time later, Sergeant Blowers placed Johnson under arrest by seizing
him and handcuffing his hands behind his back. (Id. ¶¶ 41–42). During the course of the
arrest, Officer Harris placed Johnson in a choke hold, struck him in the face, and caused
Johnson to contact the body of the police car as he was being placed into the vehicle. (Id.
¶ 45). At no time did Johnson resist arrest, refuse to be handcuffed, attempt to escape,
or otherwise interfere with his arrest by Officer Biddix, Officer Harris, and Sergeant
Blowers. (Id. ¶ 47).
Johnson was ultimately charged with breaching the peace and resisting an officer
without violence. (Id. ¶ 59). Johnson was incarcerated and held in the Volusia County Jail

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from March 1, 2015 until June 10, 2015. (Id. ¶ 60). On June 10, 2015, the State of Florida
dismissed all criminal charges against Johnson. (Id. ¶ 68).
B.

Procedural History

Johnson initiated this lawsuit on May 31, 2016 against Officer Biddix, Officer
Harris, Sergeant Blowers, the City of Daytona Beach (the “City”), and the City’s Chief of
Police, Michael Chitwood (“Chief Chitwood”). In his Complaint, Johnson brings eleven
federal constitutional claims pursuant to 42 U.S.C. § 1983 and eleven state law tort
claims.
As for his federal claims, Counts II and III allege that the City and Chief Chitwood
failed to properly train and supervise its officers regarding their law enforcement duties;
Counts IV, V, and VI, allege that Officer Biddix, Officer Harris, and Sergeant Blowers
unlawfully arrested Johnson; Counts VII, VIII, and IX allege that Officer Biddix, Officer
Harris, and Sergeant Blowers used excessive force against Johnson; and Counts X, XI,
and XII allege that Officer Biddix, Officer Harris, and Sergeant Blowers maliciously
procured Johnson’s prosecution.
As for Johnson’s state law claims, Count I alleges that Officer Biddix, Officer Harris,
and Sergeant Blowers entered into a conspiracy to deprive him of various federal
constitutional rights; Counts XIII, XIV, and XV allege that Officer Biddix, Officer Harris,
and Sergeant Blowers assaulted Johnson; Counts XVI, XVII, and XVIII allege that Officer
Biddix, Officer Harris, and Sergeant Blowers battered Johnson; Counts XIX and XX allege
that Officer Harris and Sergeant Blowers defamed Johnson; and Counts XXI and XXII
allege that the City and Chief Chitwood negligently supervised and retained Officer Biddix,
Officer Harris, and Sergeant Blowers.

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Defendants now move to dismiss Johnson’s Complaint in its entirety pursuant to
Federal Rule of Civil Procedure 12(b)(6).
II.

STANDARD OF REVIEW
A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6)

tests the legal sufficiency of a plaintiff’s complaint. In order to survive a motion to dismiss
made under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its
face when the plaintiff alleges enough facts that “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The mere recitation of the elements of a claim are not enough
and the district court need not give any credence to legal conclusions that are not
supported by sufficient factual material. Id. District courts must accept all well-pleaded
allegations within the complaint as true and read the complaint in the light most favorable
to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam).
III.

DISCUSSION
Officer Biddix, Officer Harris, and Sergeant Blowers move to dismiss Johnson’s

federal constitutional claims against them on the ground that they are entitled to qualified
immunity and to dismiss Johnson’s state law tort claims against them on the ground that
they are entitled to individual immunity under Florida law. Chief Chitwood also asserts
that he is entitled to individual immunity on Johnson’s state law tort claim against him,
and further moves to dismiss Johnson’s Monell claim against him as duplicative of the
Monell claim against the City. Finally, the City moves to dismiss Johnson’s Monell claim
and state law tort claim against it for failing to state claims for relief. The Court addresses
Defendants’ arguments in the most logical order.

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A.

Whether Officer Biddix, Officer Harris, and Sergeant Blowers
are Entitled to Qualified Immunity on Johnson’s Federal
Constitutional Claims (Counts IV–XII)

First, Officer Biddix, Officer Harris, and Sergeant Blowers assert that they are
entitled to qualified immunity on Counts IV through XII, in which Johnson alleges the
violation of various constitutional rights. 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 first prove that he was 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) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)) (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 the defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Lee, 284 F.3d at 1194. To do so, the plaintiff must demonstrate that the
facts of the case, if proven true, would make out the violation of a clearly established
constitutional right. Wate v. Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016). Because
qualified immunity provides a complete defense from suit, “courts should ascertain the
validity of a qualified immunity defense as early in the lawsuit as possible.” Gilmore v.
Hodges, 738 F.3d 266, 272 (11th Cir. 2013).
The facts alleged in the Complaint clearly show that Officer Biddix, Officer Harris,
and Sergeant Blowers were acting within the scope of their discretionary authority at all

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relevant times. Officers Biddix and Harris arrived at Johnson’s apartment complex in
response to a disturbance call. The officers thereafter questioned Johnson relative to the
disturbance call, sought Johnson’s identification, and detained and arrested Johnson.
Similarly, Sergeant Blowers responded to Officer Harris’ request for backup and assisted
in Johnson’s detention and arrest. These acts are legitimate police functions which were
within Officer Biddix’s, Officer Harris’, and Sergeant Blowers’ powers to perform. The
burden therefore shifts to Johnson to show that qualified immunity is inappropriate by
alleging sufficient factual material to warrant the reasonable inference that Officer Biddix,
Officer Harris, and Sergeant Blowers violated his clearly established constitutional rights.
1.

False Arrest (Counts IV, V, and VI)

The Fourth Amendment to the United States Constitution affords a number of
clearly established protections that are relevant to this case. 2 First, the Fourth
Amendment prohibits arrests 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

2

The Fourth Amendment provides as follows:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV. The Fourth Amendment’s guarantees are made applicable to
the states through the Due Process Clause of the Fourteenth Amendment. Mapp v.
Ohio, 367 U.S. 643, 655 (1961).

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724, 734 (11th Cir. 2010). Although a police officer who makes an arrest without probable
cause violates the Fourth Amendment, the officer is nevertheless entitled to qualified
immunity if he or she 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[s] 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). “Whether an officer possesses . . . arguable probable
cause depends on the elements of the alleged crime and the operative fact pattern.”
Brown, 608 F.3d at 735. An officer need not hold proof of every element of a crime to
have arguable probable cause. Id. All that is required is the officer’s objectively
reasonable belief that probable cause could exist to arrest the suspect. Skop, 485 F.3d
at 1137.
Accepting the facts alleged in the Complaint as true, none of the officers in this
case had arguable probable cause to arrest Johnson on March 1, 2015. Johnson’s
account indicates that he complied with all of Officer Harris’ requests for information
relative to her investigation. (Doc. 1, ¶¶ 36–38). The facts also establish that Johnson
never resisted the officers, never attempted to flee, and never interfered in any way with
the officers’ investigation. (Id. ¶ 47). Lastly, none of the officers had received any
information—whether from witnesses, complainants, or otherwise—that Johnson was
involved in a crime. (Id. ¶¶ 43–44). Johnson’s conduct as alleged in the Complaint is
insufficient to warrant a reasonably cautious police officer in the same circumstances to
believe that he had committed or was about to commit a crime. Accordingly, Officer
Biddix, Officer Harris, and Sergeant Blowers are not entitled to qualified immunity on
Johnson’s false arrest claims.

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2.

Excessive Force (Counts VII, VIII, and IX)

Second, the Fourth Amendment protects against the use of excessive force by
police officers during the course of an arrest. Fils v. City of Aventura, 647 F.3d 1272, 1287
(11th Cir. 2011). A claim of “excessive force in the course of making an arrest,
investigatory stop, or other ‘seizure’ of his person is properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard.” See Graham v. Connor, 490 U.S.
386, 388 (1989). The reasonableness of a particular use of force must be judged “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) (quoting
Graham, 490 U.S. at 394). In measuring whether a specific use of force is excessive, 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 sadistically. See
Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). Liability under § 1983 may
also extend to an officer who did not actively participate in using force but failed or refused
to intervene against officers who were. Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th
Cir. 2002); see also Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985)
(“[A]n officer who is present at the scene and who fails to take reasonable steps to protect
the victim of another officer’s use of excessive force, can be held liable for his
nonfeasance.”).
The facts alleged in the Complaint, if proven true, would establish that Officer
Harris applied excessive force when she detained and arrested Johnson. Johnson states
that at no time did he resist arrest, refuse to be handcuffed, attempt to escape, or
otherwise interfere with his arrest. (Doc. 1, ¶¶ 47–48). Nevertheless, Johnson alleges that

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Officer Harris placed him in a chokehold, struck him in the face, and caused his body to
contact a police vehicle. (Id. ¶ 45). 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. And there should be no doubt that the prohibition against the use of
force on a law abiding citizen is clearly established; any reasonable officer would know
that using force on an individual who was complying with the officer’s commands violated
the Fourth Amendment. Officer Harris is therefore not entitled to qualified immunity on the
excessive force claim against her.
However, Johnson alleges no facts which permit the reasonable inference that
either Officer Biddix or Sergeant Blowers used excessive force against Johnson.
Johnson does not assert that Officer Biddix or Sergeant Blowers joined Officer Harris in
placing Johnson in a chokehold, striking him in the face, or throwing him against a police
vehicle. Further, Johnson does not allege that Officer Biddix or Sergeant Blowers failed
or refused to protect Johnson from Officer Harris’ use of excessive force despite their
ability to do so. In short, there are no facts alleged in the Complaint indicating that Officer
Biddix or Sergeant Blowers are in any way liable for Officer Harris’ use of force against
Johnson. 3 Officer Biddix and Sergeant Blowers are therefore entitled to qualified immunity
on Johnson’s excessive force claims against them (Counts VII and IX).
3.

Malicious Prosecution (Counts X, XI, and XII)

Lastly, Officer Biddix, Officer Harris, and Sergeant Blowers all move to dismiss
Johnson’s malicious prosecution claims on the ground that Johnson cannot state a claim
for relief. To state a claim for malicious prosecution under § 1983, a plaintiff must allege
3

While Johnson argues in his response to Defendants’ motion to dismiss that Officer
Biddix, Officer Harris, and Sergeant Blowers entered into a conspiracy to use
excessive force against him, this is not alleged in the Complaint.

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sufficient facts demonstrating “(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).
Officer Biddix, Officer Harris, and Sergeant Blowers contend that Johnson cannot
establish the requisite Fourth Amendment violation. However, as the Court explained in
Section III.A.1, supra, the facts alleged in the Complaint demonstrate that Officer Biddix,
Officer Harris, and Sergeant Blowers violated Johnson’s right under the Fourth
Amendment right to be free from unlawful arrests. Johnson therefore alleges a violation
of the Fourth Amendment right to be free from unreasonable seizures sufficient to state
a claim for malicious prosecution under § 1983.
B.

Whether Johnson States Monell Claims Against the City and
Chief Chitwood (Counts II and III)

Chief Chitwood moves to dismiss Johnson’s Monell claim against him on the
ground that it is duplicative of the claim against the City. In his response to Defendants’
motion to dismiss, Johnson acknowledges that his claim against Chief Chitwood is legally
the same as his claim against the City and agrees to its dismissal. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (holding that “an official-capacity suit is, in all respects
other than name, to be treated as a suit against the [government] entity”). As a result,
Count III will be dismissed.
The City also moves to dismiss Johnson’s Monell claim against it, arguing that
Johnson cannot state a claim for municipal liability. Under § 1983, a municipality such as
the City is only responsible for the unconstitutional conduct of its officers when the
municipality itself caused the constitutional violation. Skop, 485 F.3d at 1145. A
municipality causes a constitutional violation when it acts “pursuant to [an] official
municipal policy of some nature.” Monell v. Dep’t of Social Servs. of NY, 436 U.S. 658,

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691 (1978). Therefore, a plaintiff who intends to impose liability against a municipality
must show a “direct causal link” between a municipal policy and his constitutional injuries.
City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Municipal policy can come in different forms. Intuitively, the most obvious
examples are officially promulgated ordinances, rules, regulations, codes, or a decision
rendered by a policymaker. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988) (plurality opinion); Monell, 436 U.S. at 694–95. Less-than-formal policies may
subject a municipality to liability as well, such as when the plaintiff’s constitutional injuries
are caused by an unofficial custom or practice that is so well-settled, permanent,
pervasive, and wide-spread “that it takes on the force of the law.” McDowell v. Brown,
392 F.3d 1283, 1290 (11th Cir. 2004) (quoting Wayne v. Jarvis, 197 F.3d 1098, 1105
(11th Cir. 1999)). Additionally, a municipality’s failure to train or supervise its employees
regarding their duty not to violate citizens’ constitutional rights can also rise to the level of
policy where the municipality tacitly approves of or shows deliberate indifference toward
police misconduct. Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987). Ultimately,
however, a municipality cannot be held liable under § 1983 for conduct of which its
officials were unaware; instead, the plaintiff must show that municipal officials had actual
or constructive knowledge of the misconduct, but that they failed to take corrective action.
Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986).
Johnson alleges that the City failed to adequately train and supervise its officers
with respect to making lawful arrests and the appropriate use of force, and otherwise
permitted a culture of constitutional violations. In support, Johnson cites twenty-four
instances of founded misconduct by Officer Biddix, Officer Harris, and Sergeant Blowers,
in which the officers had previously been disciplined for using excessive force, for

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falsifying arrest affidavits and police reports, and for failing to follow proper police
practices. (Doc. 1, ¶ 29). Despite the City’s actual knowledge about this laundry list of
founded misconduct by the officers, the City continued to employ the officers on the date
at issue. (Id. ¶¶ 9–12). The Court can therefore reasonably infer that the City was
deliberately indifferent to the violation of citizens’ constitutional rights. As a result, the
Court will not dismiss Count II.
C.

Whether Officer Biddix, Officer Harris, Sergeant Blowers, and
Chief Chitwood are Entitled to Individual Immunity on
Johnson’s State Law Tort Claims (Counts XIII–XX and XXII)

Next, Officer Biddix, Officer Harris, Sergeant Blowers, and Chief Chitwood move
to dismiss Johnson’s state tort claims against them on the ground that they are entitled
to individual immunity under Florida law. 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. Fla. Stat. § 768.28(9)(a). Like qualified immunity
under federal law, when individual 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). Officer Biddix, Officer Harris, Sergeant Blowers, and Chief Chitwood
contend that the facts alleged in the Complaint fail to demonstrate the bad faith, malicious
purpose, or wanton and willful conduct necessary to overcome their individual immunity.
Florida’s sovereign immunity statute identifies three categories of conduct which
will overcome a police officer’s individual immunity: (1) bad faith, (2) malicious purpose,

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and (3) wanton and willful disregard of human rights, safety, or property. Both bad faith
and malicious purpose require a plaintiff to allege facts demonstrating that the officer
acted with actual malice, see Drudge v. City of Kissimmee, 581 F. Supp. 2d 1176, 1195
(M.D. Fla. 2008), which requires a showing of “ill will, hatred, spite, [or] an evil intent,”
Reed v. State, 837 So. 2d 366, 369 (Fla. 2002) (quoting State v. Gaylord, 356 So. 2d 313,
314 (Fla. 1978)). Alternatively, “[f]or conduct to be willful and wanton, it must be shown
that the defendant knew, or reasonably should have known . . . , that his [or her] conduct
would naturally or probably result in injury and, with such knowledge, disregarded the
foreseeable injurious consequences.” Gregory v. Miami-Dade Cty., 86 F. Supp. 3d 1340,
1343 (S.D. Fla. 2015) (quoting Lemay v. Kondrk, 860 So. 2d 1022, 1025 (Fla. Dist. Ct.
App. 2003) (Ofinger, J., dissenting)). Facts alleging the violation of constitutional rights by
a police officer do not, on their own, demonstrate bad faith, malicious purpose, or wanton
and willful conduct. See Moore v. Seminole Cty., No. 6:13-cv-224-Orl-31GJK, 2014 WL
4278744, at *6 (M.D. Fla. Aug. 29, 2014), aff’d, 806 F.3d 1036 (11th Cir. 2015), cert.
denied, 136 S. Ct. 2014 (2016).
The facts contained in Johnson’s Complaint specifically allege that Officer Biddix,
Officer Harris, and Sergeant Blowers entered into an agreement and acted together to
cover up their wrongful detention, arrest, assault, and battery of Johnson by agreeing to
fabricate evidence, lying in police reports and court documents, and committing perjury
by falsely attesting to the truth of the documents and contents therein. (Doc. 1, ¶¶ 49, 52–
58, 64–65). The facts of the Complaint consequently go beyond mere allegations of
constitutional violations, and instead show that the officers knew their conduct was illegal
and that they attempted to conceal their malfeasance in order to escape punishment.
Accordingly, the Court can reasonably infer that Officer Biddix, Officer Harris, and

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Sergeant Blowers acted with bad faith, malicious purpose, or with wanton and willful
disregard of Johnson’s human rights and safety. These officers are therefore not entitled
to individual immunity as to Johnson’s state law claims against them.
Johnson also alleges sufficient facts indicating that Chief Chitwood is not entitled
to individual immunity under Florida law. Johnson claims that, despite Chief Chitwood’s
knowledge that Officer Biddix, Officer Harris, and Sergeant Blowers had committed
numerous constitutional violations in the past—including founded instances where the
officers falsified police records, used excessive force, and failed to adhere to proper police
practices—Chief Chitwood nevertheless continued to employ the officers. (Doc. 1, ¶¶ 29,
229–233). The Court can reasonably infer that Chief Chitwood’s failure to act in these
circumstances to prevent future misconduct constitutes wanton and willful disregard for
human rights, safety, and property. Chief Chitwood is consequently not entitled to
individual immunity either.
D.

Whether Johnson States a Claim for Negligent Supervision and
Negligent Retention Against the City (Count XXI)

Lastly, the City moves to dismiss Johnson’s negligent supervision and negligent
retention claim on the ground that he cannot state a claim for relief. Specifically, the City
argues that, as Officer Biddix’s, Officer Harris’, and Sergeant Blowers’ employer, Johnson
must show that the City had actual or constructive knowledge that the officers were unfit
to work as police officers. See M.V. ex rel. W.W. v. Gulf Ridge Council Boy Scouts of Am.,
Inc., 529 So. 2d 1248, 1248 (Fla. Dist. Ct. App. 1988). The City contends that, since it
had no knowledge that any of the officers would commit the torts Johnson alleges they
committed, Johnson cannot state a claim for negligent supervision or retention.
However, as explained previously, the City was on notice of numerous confirmed
instances where Officer Biddix, Officer Harris, and Sergeant Blowers used excessive

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force, falsified police documents, and departed from proper police practices. (Doc. 1,
¶ 29). Accordingly, the Court can reasonably infer that the City had actual knowledge that
the officers were unfit for their employment and that this unfitness caused Johnson’s
injuries in this case. The Court will therefore not dismiss Johnson’s negligent supervision
and retention claim against the City.
IV.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion to Dismiss the Plaintiff’s Complaint (Doc. 19) is
GRANTED IN PART and DENIED IN PART. Count III is DISMISSED and
Counts VII and IX are DISMISSED WITH PREJUDICE. Defendants’ motion
is otherwise denied.
2. Defendants shall answer the remainder of Plaintiff’s Complaint within
fourteen (14) days of this Order.
DONE AND ORDERED in Orlando, Florida on January 12, 2017.

Copies furnished to:
Counsel of Record

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