Alicea v. Mallard et al

Filing 48

ORDER denying 35 Motion for summary judgment. The Motion for Summary Judgment filed by Brian Mallard and Jeffrey Brough (Doc. 35) is DENIED. Signed by Judge Gregory A. Presnell on 3/12/2018. (MAF)

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

Case No: 6:16-cv-1327-Orl-31DCI

BRIAN MALLARD, JEFFREY BROUGH
and HOUSE OF BLUES ORLANDO
RESTAURANT CORP.,
Defendants.

ORDER
This Matter comes before the Court without a hearing on the Motion for Summary Judgment
(Doc. 35) filed by Brian Mallard and Jeffrey Brough, the Response (Doc. 44) filed by the Plaintiff,
and the Reply filed by Mallard and Brough (Doc. 45).
I.

Factual and Procedural Background
On December 23, 2013, the Plaintiff was visiting the House of Blues in Downtown Disney.

At that time, Deputy Brian Mallard and Corporal Jeffrey Brough of the Orange County Sheriff’s
Office were providing off-duty services to the House of Blues. Around 2:05 AM, after the House of
Blues had closed, Mallard and Brough were attempting to clear guests out of the House of Blues
area, as well as the adjacent Downtown Disney area. The Plaintiff alleges that, when he attempted
to get Mallard’s attention in order to ask if he could take a picture of his friends, Mallard attacked
him, and Brough later joined in on the physical altercation.
According to the Motion for Summary Judgment, “Mallard was unaware of the Plaintiff’s
presence” when the Plaintiff reached out to tap Mallard on the shoulder in order to get his attention.
Doc. 35 at 6 n.4. Mallard managed to knock the Plaintiff’s arm to the side before the Plaintiff could

successfully tap Mallard’s shoulder. Doc. 31-11 at 15. After that, the Plaintiff just stood there, and
said “Hey, what the hell,” shocked at Mallard’s reaction. Id. at 15, 62. Mallard then pushed the
Plaintiff, grabbed his neck, and proceeded to “throw [him] on the floor, using [his] neck.” Id. at 15.
Mallard began to kick the Plaintiff, and while he was holding on to the Plaintiff’s head, the Plaintiff
fell on top of him. Id. After the Plaintiff fell, Mallard continued to hold the Plaintiff’s head “pinned
against [Mallard’s] chest.” Id. At that point, Brough joined in on the altercation. According to the
Plaintiff’s testimony, at no point did Mallard give any verbal commands, and the Plaintiff never
fought back. Id. at 16. Instead, the Plaintiff tried to stay still. Id.
Defendants Mallard and Brough filed the Motion for Summary Judgment (Doc. 35) on
December 22, 2017. On January 26, 2018, the Plaintiff filed his Response (Doc. 44), and the
Defendants filed their Reply (Doc. 45) on February 9, 2018.
II.

Legal Standards
A. Summary Judgment
A party is entitled to summary judgment when the party can show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56. Which facts are material depends on the substantive law applicable to the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing
that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991).
When a party moving for summary judgment points out an absence of evidence on a
dispositive issue for which the nonmoving party bears the burden of proof at trial, the nonmoving
party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue

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for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986) (internal quotations and citation
omitted). Thereafter, summary judgment is mandated against the nonmoving party who fails to make
a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25. The party
opposing a motion for summary judgment must rely on more than conclusory statements or
allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)
(“conclusory allegations without specific supporting facts have no probative value”). The Court
must consider all inferences drawn from the underlying facts in the light most favorable to the party
opposing the motion, and resolve all reasonable doubts against the moving party. Anderson, 477
U.S. at 255.
B. Qualified Immunity
Qualified immunity protects government officials performing discretionary functions from
individual liability as long 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). Qualified immunity is an immunity from suit rather than a mere defense to
liability, and it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). Unless the plaintiff's allegations state a claim of violation of a clearly
established constitutional right, a defendant pleading qualified immunity is entitled to dismissal
before the commencement of discovery. Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001).
Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly
established law, the defendant is entitled to summary judgment if discovery fails to uncover
evidence sufficient to create a genuine issue as to whether the defendant in question in fact
committed those acts. Mitchell, 472 U.S. at 526.

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To receive qualified immunity, a government official first must prove that he was acting
within his discretionary authority. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003). Once
the defendants establish this, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate. Id. The Supreme Court has established a two-part test to determine whether qualified
immunity should apply. The court must determine whether plaintiff's allegations, if true, establish a
constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). This requires the court to
determine whether the facts alleged, taken in the light most favorable to the party asserting the
injury, show the officer's conduct violated a constitutional right. Gonzalez, 325 F.3d at 1234. The
second prong of the test requires the court to determine whether the right was “clearly established.”
Id. Although it will often be appropriate to consider whether a constitutional violation has been
alleged before assessing whether the right at issue is clearly established, the two determinations may
be made in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
III.

Analysis
A. Excessive Force
1. Count I
Defendant Mallard seeks summary judgment on the §1983 excessive force claim in Count I

based on qualified immunity. Doc. 35 at 2. The Fourth Amendment's freedom from unreasonable
searches and seizures encompasses the plain right to be free from the use of excessive force in the
course of an arrest. See, e.g., Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham
v. Connor, 490 U.S. 386, 394–95 (1989)). The Fourth Amendment's “objective reasonableness”
standard supplies the test to determine whether the use of force was excessive. Penley v. Eslinger,
605 F.3d 843, 849–50 (11th Cir. 2010). Accordingly, the court must carefully balance the nature

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and quality of the intrusion on the individual's Fourth Amendment interests against the
countervailing governmental interests at stake. Id. at 850 (citing Graham, 490 U.S. at 396).
The analysis requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
pose[d] an immediate threat to the safety of the officers or others, and whether [the
suspect] ... actively resist[ed] arrest or attempt[ed] to evade arrest by flight.
Id. (internal quotation marks and citations omitted). To determine whether the amount of force used
by a police officer was proper, a court must ask whether a reasonable officer would believe that this
level of force is necessary in the situation at hand. Lee, 284 F.3d at 1197 (internal quotation marks
and citations omitted). “Use of force 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) (quoting Graham, 490 U.S. at 396), modified,
14 F.3d 583 (11th Cir. 1994).
The Motion states that “it is also clear that [Mallard and Brough] were acting within the
scope of their discretionary authority during the detention and arrest of the Plaintiff.” Doc. 35 at 10.
Assuming Mallard was acting within the scope of his discretionary authority when the initial
altercation occurred, Mallard still would not be entitled to qualified immunity on the excessive force
claim in Count I. Viewing the facts in the light most favorable to the Plaintiff, Mallard (1) violated
the constitutional rights of the Plaintiff and (2) did so by violating clearly established law.
The severity of the crime here was virtually nonexistent; the Plaintiff testified that he did not
commit any crime at all, and the Defendants’ accusations are not persuasive. Although the Plaintiff
reached out to touch Mallard’s shoulder, he testified that he did not actually touch it. Doc. 31-11 at
62. According to the Plaintiff’s testimony, he was merely approaching Mallard to ask for
clarification on the instructions to leave. The Plaintiff simply approaching Mallard posed no threat
whatsoever to the safety of the officers or others. He did not actively resist arrest, nor did he try to

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flee. Even after Mallard struck his hand, the Plaintiff just stood still. Id. at 63. No reasonable officer
would believe additional force was necessary under these circumstances. The Plaintiff has upheld
his burden of showing that his constitutional rights were violated by Mallard when Mallard pushed
him, kicked him, and slammed him on the ground, even before Brough joined in on the altercation.
Doc. 31-11 at 15. Taking the evidence in the light most favorable to the Plaintiff, the Plaintiff has
also shown that Mallard violated clearly established law. Here, there was no justification for the
officer’s continued use of force after initially striking the Plaintiff’s hand away, and the use of force
without justification violates well-established constitutional law. See Stephens v. DeGiovanni, 852
F.3d 1298, 1316 (11th Cir. 2017).
2. Count V
Defendant Mallard also seeks summary judgment on Count V, arguing that his use of force
was reasonable and did not violate state law. Doc. 35 at 15. Courts analyze battery claims for
excessive force by examining whether “the amount of force used was reasonable under the
circumstances.” City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996). An officer’s
reasonable belief that the force was “necessary to defend himself or another from bodily harm while
making the arrest” is a complete defense to an excessive use of force claim. Id. (quoting § 776.05(1),
Fla. Stat. (1995)).
Mallard and Brough indicate that, for purposes of the instant motion, they agree to accept
that the Plaintiff was not the aggressor. Doc. 35 at 7 n.7. Taking the evidence in the light most
favorable to the Plaintiff, the Plaintiff never touched Mallard. Perhaps when Mallard initially saw a
hand in his peripheral vision, swatting away that hand was justified. But when the Plaintiff stood
back and did not touch Mallard, any reasonable justification for Mallard using force against the
Plaintiff ceased to exist. Mallard could have instructed the Plaintiff to put his hands on his head, or

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even told him to get on the ground, before pushing him, kicking him, and slamming him on the
ground, as the Plaintiff testified Mallard did. Doc. 31-11 at 15. The Reply criticizes the Plaintiff for
“fail[ing] to retreat” and failure to “communicate that he did not intend to harm” Mallard. Doc. 45
at 3. But Mallard had no reason to believe that the Plaintiff intended to harm Mallard. Based on the
Plaintiff’s testimony, the force used by Mallard was unreasonable under the circumstances.
Accordingly, there remain disputed issues of material fact as to Count V.
B. Unlawful Seizure: Counts I and II
Defendants Mallard and Brough seek summary judgment on the § 1983 claims for unlawful
seizure in Count I and Count II based on qualified immunity. Doc. 35 at 2, 16. An individual has a
constitutional right to be free from “unreasonable searches and seizures.” U.S. Const. amend. IV.
An arrest qualifies as a seizure of a person. Case v. Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009)
(citations omitted). The reasonableness of an arrest depends on whether probable cause existed to
make the arrest. Id. at 1326. An arrest without probable cause violates the Constitution and provides
a basis for a Section 1983 claim, but the existence of probable cause at the time of arrest is an
absolute bar to a subsequent constitutional challenge to the arrest. Brown v. City of Huntsville, Ala.,
608 F.3d 724, 734 (11th Cir. 2010) (citation omitted). An officer has probable cause to arrest when
the arrest is objectively reasonable based on the totality of the circumstances. Coffin v. Brandau,
642 F.3d 999, 1006 (11th Cir. 2011). “This standard is met when the facts and circumstances within
the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a
prudent person to believe, under the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Coffin, 642 F.3d at 1006–07 (quoting Lee, 284 F.3d
at 1195). Whether a particular set of facts gives rise to probable cause for arrest depends on the
elements of the crime. Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). Where the

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facts are undisputed, whether probable cause existed is a question of law. Marx v. Gumbinner, 905
F.2d 1503, 1506 (11th Cir. 1990).
“In the context of a qualified immunity defense on an unlawful search or arrest claim,
[courts] ascertain whether a defendant violated clearly established law by asking whether there was
arguable probable cause for the challenged conduct.” Stonecipher v. Valles, 759 F.3d 1134, 1141
(10th Cir. 2014) (internal quotation and citation omitted); see Montoute v. Carr, 114 F.3d 181, 184
(11th Cir. 1997) (“In order to be entitled to qualified immunity from a Fourth Amendment claim,
an officer need not have actual probable cause but only ‘arguable probable cause,’ i.e., the facts and
circumstances must be such that the officer reasonably could have believed that probable cause
existed.”) (citations omitted). Under the arguable probable cause standard, “the inquiry is not
whether probable cause actually existed, but instead whether an officer reasonably could have
believed that probable cause existed, in [light] of the information the officer possessed.” Montoute,
114 F.3d at 184. As with probable cause, the arguable probable cause inquiry “naturally depends on
the elements of the alleged crime.”1 Pruitt v. Cote, No. 6:12-cv-1038-ORL-28, 2013 WL 4700185,
at *4 (M.D. Fla. Aug. 30, 2013) (quoting Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th
Cir.2007) (internal quotation marks omitted) (emphasis added).
The officers were clearly acting within the scope of their discretionary authority when they
arrested the Plaintiff. Consequently, the Court must determine whether the Plaintiff has met his
burden of establishing that (1) his constitutional rights were violated, and (2) the Defendants violated
clearly established law. The Plaintiff was arrested for resisting an officer with violence,2 battery on
1

The Defendants appear to argue that arguable probable cause is present if a reasonable
officer could have believed there was probable cause to arrest the Plaintiff for any crime whatsoever,
but none of the cases cited by the Defendants actually support that proposition.
Although the Defendants refer to the Plaintiff’s arrest for “resisting an officer without
violence,” Doc. 35 at 17 (emphasis added), the Arrest Affidavit (Doc. 35-2 at 6) they submitted as
2

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a law enforcement officer, and disorderly intoxication. Arrest Affidavit, Doc. 35-2 at 6. Viewing
the evidence in the light most favorable to the Plaintiff, there is no information that would cause a
prudent person to believe the Plaintiff had committed any of those crimes. The Plaintiff testified
that he never touched the officers. The Plaintiff—and a witness, Priscilla Rivera— also testified that
he did not drink that night, nor did he smell of alcohol. Additionally, approaching an officer to ask
him a question, under these circumstances, cannot be termed “disorderly.” The Plaintiff has met his
burden of showing that his constitutional rights were violated.
In order to meet his burden of showing that the Defendants violated clearly established law,
the Plaintiff must also show that the Defendants lacked arguable probable cause for the arrest. In
this situation, there is no basis for believing the officers were merely mistaken about anything. They
claimed to have witnessed first-hand all of the events that would give rise to probable cause. Either
they observed that the Plaintiff was intoxicated, disorderly, and that he violently resisted arrest and
battered an officer, or they did not. There is no allegation that there were some factors that would
lead one officer to mistakenly find probable cause where another would not. While proof of all
elements of a given crime is not necessary for arguable probable cause, here, taking the Plaintiff’s
evidence as true, the objective facts available to the Defendants at the time of arrest provide no basis
for even suspecting the Plaintiff of any of the charged crimes. Accordingly, the Defendants are not
entitled to summary judgment on the issue of unlawful seizure under § 1983.

an attachment to the Motion makes clear that the Plaintiff was arrested for resisting an officer with
violence. However, probable cause for resisting an officer without violence is discussed below in
the context of the Plaintiff’s malicious prosecution claim, as it appears the Plaintiff was ultimately
tried for resisting an officer without violence.

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C. Malicious Prosecution: Counts III and IV
Defendants Mallard and Brough seek summary judgment on the malicious prosecution
§1983 claims in Counts III and IV on the basis of qualified immunity. Doc. 35 at 2, 20. A malicious
prosecution claim under § 1983 requires proof of the six elements of the common law tort and a
violation of the Fourth Amendment right to be free from unreasonable seizure. Kingsland v. City of
Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). The common law elements of malicious prosecution
in Florida are as follows:
(1) an original judicial proceeding against the present plaintiff was commenced or
continued; (2) the present defendant was the legal cause of the original proceeding;
(3) the termination of the original proceeding constituted a bona fide termination of
that proceeding in favor of the present plaintiff; (4) there was an absence of probable
cause for the original proceeding; (5) there was malice on the part of the present
defendant; and (6) the plaintiff suffered damages as a result of the original
proceeding.

Id. As with unlawful seizure, qualified immunity applies to § 1983 claims for malicious prosecution
if the defendant had arguable probable cause for the alleged crime. See Grider v. City of Auburn,
618 F.3d 1240, 1257 (11th Cir. 2010).
Because it is clear that, in arresting and causing a judicial proceeding to be instituted against
the Plaintiff, the Defendants were acting within the scope of their discretionary authority, “the
burden shifts to the [P]laintiff to show that the defendant[s] [are] not entitled to qualified immunity.”
Mack v. Mazzarella, 554 F. App'x 800, 802 (11th Cir. 2014). In the Motion and their Reply,
Defendants only dispute two of the elements of malicious prosecution: whether there was probable
cause for the original proceeding and whether there was malice on the part of the present Defendant.
While the Arrest Affidavit indicates that the Plaintiff was arrested for resisting with violence, the
trial transcript indicates that the Plaintiff was ultimately tried on charges of battery on a law
enforcement officer and resisting an officer without violence. Doc. 31-15 at 335-36.

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As discussed above, the Court has found that, taking the Plaintiff’s evidence as true, there
was no probable cause, arguable or otherwise, for the charge of battery on a law enforcement officer.
But the Defendants claim that probable cause to arrest the Plaintiff also arose when the Plaintiff was
asked to leave the area, did not immediately do so, and instead approached Mallard to ask him a
question. This, the Defendants argue, was “resisting an officer without violence.” Doc. 45 at 1. But
disobeying an instruction that comes from an off-duty officer does not automatically constitute
“resisting an officer.” The off-duty officers’ instructions were also being given by House of Blues
security guards and employees; the instructions to leave the area did not become a “lawful execution
of a legal duty” within the meaning of Florida Statute § 843.02 simply because off-duty officers
gave them. Rather, the instructions to leave were generally communicated by both officers and nonofficers to a very large group of people. And, there was no indication that the Plaintiff defied an
order to leave. What he was actually doing, according to his testimony, was seeking clarification on
the general instructions that had been given. The mere fact that he approached a uniformed police
officer who had given general instructions to leave does not constitute arguable probable cause to
charge him with resisting an officer without violence. Taking the evidence in the light most
favorable to the Plaintiff, no reasonable officer under the same circumstances could have believed
that probable cause existed to charge the Plaintiff with resisting an officer. The Plaintiff has upheld
his burden of establishing a violation of his constitutional rights and a violation of clearly established
law by the Defendants.
As for the question of malice, the Plaintiff’s position is not that the officers were mistaken,
but that they knew he did not resist or batter an officer. Taking the Plaintiff’s testimony as true, the
Defendants made false allegations in order to charge the Plaintiff with crimes he did not commit.

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That certainly constitutes malice. Accordingly, the Defendants are not entitled to summary judgment
on the § 1983 claims for malicious prosecution in Counts III or IV.
D. Statutory Immunity: Counts III, IV, and V
Defendant Mallard seeks summary judgment on the state law claims in Counts III and V
based on statutory immunity. Doc. 35 at 2, 21. Defendant Brough seeks summary judgment on the
state law claim in Count IV, also based on statutory immunity. Id. Florida Statute § 768.28
immunizes Florida law enforcement officers from individual liability for tortious acts performed
within the scope of their employment, unless they act “in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Drudge v.
City of Kissimmee, 581 F. Supp. 2d 1176, 1194-95 (M.D. Fla. 2008). “In the context of
§ 768.28(9)(a), conduct committed in bad faith has been characterized as conduct acted out with
actual malice.” Kastritis v. City of Daytona Beach Shores, 835 F. Supp. 2d 1200, 1225 (M.D. Fla.
2011). Willful and wanton conduct “must be worse than gross negligence and more reprehensible
and unacceptable than mere intentional conduct.” Id. (internal quotations and citations omitted).
The Defendants argue that they are entitled to summary judgment on the state law claims
in Counts III, IV, and V because “undisputed material facts show that the Defendants did not act
in bad faith or with a malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights and safety.” Doc. 35 at 22. However, the Plaintiff’s testimony, along with the trial
testimony of witness Priscilla Rivera, creates a genuine dispute of material fact as to whether the
officers acted in bad faith. If they did untruthfully claim that the Plaintiff was drunk and that he
battered and resisted an officer when he did not, and they physically attacked him when they had
no reasonable justification for doing so, then they acted in bad faith for purposes of statutory

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immunity. The Defendants are not entitled to summary judgment on the state law claims in Counts
III, IV, or V.
IV.

Conclusion
For the foregoing reasons, the Motion for Summary Judgment filed by Brian Mallard and

Jeffrey Brough (Doc. 35) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on March 12, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Party

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