Guarda v. The City of Melbourne, Florida et al
Filing
29
ORDER granting in part and denying in part 21 motion to dismiss. On or before, Monday, July 31, 2017, Plaintiff may file an amended complaint with respect to Counts II and V. Signed by Judge Roy B. Dalton, Jr. on 7/18/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JASMINE GUARDA,
Plaintiff,
v.
Case No. 6:17-cv-756-Orl-37TBS
THE CITY OF MELBOURNE,
FLORIDA; CHIEF STEVE MIMBS; and
SGT. (FORMER) BLAKE LANZA,
Defendants.
_____________________________________
ORDER
In this action, Defendants Steve Mimbs, police chief for the City of Melbourne,
Florida (“Chief Mimbs”) and the City of Melbourne (“City”) move for dismissal of
several of Plaintiff’s claims. (Doc. 21.) For the reasons set forth below, the motion is due
to be granted in part and denied in part as moot.
I.
BACKGROUND 1
On December 14, 2014, Plaintiff alleges she was victimized twice. (Doc. 1, ¶¶ 11, 12,
16.) First, she was assaulted by an unknown male assailant. (Id. ¶ 12.) Second, by a
sergeant with the Melbourne police department, Blake Lanza (“Sgt. Lanza”), who,
inexplicably and without provocation, grabbed Plaintiff, “body-slammed” her to the
ground, and hit her with closed fists. (Id. ¶ 16.) Sgt. Lanza then arrested Plaintiff, charged
The following facts from Plaintiff’s Complaint (Doc. 1) are taken as true and
construed in the light most favorable to Plaintiff. See Hill v. White, 321 F.3d 1334, 1335
(11th Cir. 2003).
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her with resisting an officer without violence and disorderly conduct, and allegedly
falsified the probable cause affidavit substantiating Plaintiff’s arrest and his use of force.
(Id. ¶¶ 16, 18.) Following her arrest, Plaintiff overheard Sgt. Lanza comment that he had
arrested Plaintiff because “Latin women are always angry.” (Id. ¶ 17.)
Infected with “an atmosphere of police misconduct” that included the use of
excessive force, Plaintiff alleges that the City condoned Sgt. Lanza’s misconduct by failing
to take corrective action despite knowledge that Sgt. Lanza was unfit to serve as a police
officer. (Id. ¶ 24, 25.) Plaintiff alleges that the City and Chief Mimbs knew of “numerous
prior incidents” concerning Sgt. Lanza’s “harassment, [use of] racially insensitive
language, aggressive behavior, and [falsification of] affidavits” along with his
disciplinary history “for lacking competency, knowledge of the law, using inappropriate
language, retaliating against other officers in the workplace, sexual harassment, and
many other sustained complaints” (“Alleged Misconduct”). (Id. ¶¶ 21, 22, 41.) Chief
Mimbs ultimately terminated Sgt. Lanza in 2015 after conducting an investigation that
began in October of 2013. (Id. ¶ 23.) In support of his decision, Chief Mimbs stated that
Sgt. Lanza’s “every action and statement will be suspect in the eyes of the community.”
(Id.)
Based on the foregoing, Plaintiff filed a five-count Complaint against Sgt. Lanza,
Chief Mimbs, and the City. (Doc. 1.) Specifically, Plaintiff asserts two federal claims: (1) an
unlawful arrest and use of excessive force claim against Sgt. Lanza (“Count I”); and (2) a
municipal liability claim against Chief Mimbs and the City (“Count II”). (Doc. 1, ¶¶ 33–
55.) In addition, Plaintiff lodges three state-law claims against the City for battery
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(“Count III”), false arrest (“Count IV”), and negligent retention (“Count V”). (Id. ¶¶ 56–
79.) On May 25, 2017, the City and Chief Mimbs moved for dismissal of: (1) Counts II and
V on the ground that Plaintiff failed to state a claim; and (2) Plaintiff’s requested attorney
fees in Counts III–V. (Doc. 21 (“MTD”).) As the MTD has been fully briefed (see Doc. 25),
it is ripe for the Court’s adjudication.
II.
A.
LEGAL STANDARDS
General Pleading Standards
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When a complaint fails “to state a
claim to relief that is plausible on its face” and merely offers “labels and conclusions,” the
defendant
may
seek
dismissal
of
the
complaint
under
Rule
12(b)(6).
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). When considering a Rule 12(b)(6) motion, courts also must accept all well-pled
factual allegations—but not legal conclusions—in the complaint as true and construed in
the light most favorable to Plaintiff. Speaker v. U.S. Dept. of Health & Human Servs. Ctrs. for
Disease Control, 623 F.3d 1371, 1379 (11th Cir. 2010). After disregarding any legal
conclusions made, the court must determine whether the complaint includes “factual
content” sufficient to “draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 556).
B.
Municipal Liability Under 42 U.S.C. § 1983
Section 1983 provides aggrieved persons with a procedural mechanism to seek
redress for constitutional violations that are committed while a defendant is acting under
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color of state law. 42 U.S.C. § 1983. A municipality may be liable under § 1983 where a
plaintiff shows: (1) that his constitutional rights were violated; (2) that the municipality
had a custom or policy that constituted deliberate indifference to that constitutional right;
and (3) that the policy or custom caused the violation. See Monell v. N.Y.C. Dep’t of Social
Servs., 436 U.S. 658, 690, 694 (1978); McDowell v. Brown, 392 F.3d 1283, 1289
(11th Cir. 2004). A custom or policy can be established by showing that: (1) the
municipality’s legislative body enacted an official policy on point; (2) the final
policymakers for the municipality “have acquiesced in a longstanding practice that
constitutes the entity’s standard operating procedure”; or (3) someone with final
policymaking authority adopts or ratifies the unconstitutional act or decision of a
subordinate. Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016).
III.
ANALYSIS
As an initial matter, Plaintiff seeks to sue Chief Mimbs in his official capacity.
(See Doc. 1, p. 1.) But a suit against a governmental officer “in his official capacity” is the
functional equivalent of one against the entity of which the officer is an agent.
MacMillan v. Monroe Cty., 520 U.S. 781, 785 n.2 (1997); Cooper v. Dillon,
403 F.3d 1208, 1221 n.8 (11th Cir. 2005). Thus, Chief Mimbs is due to be terminated as a
party to this action.
A.
Municipal Liability
In Count II, Plaintiff asserts a claim against the City for municipal liability based
on two theories: (1) the City’s failure to train its employees (“Failure to Train Theory”);
and
(2)
ratification
of
Sgt.
Lanza’s
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conduct
(“Ratification
Theory”).
(Doc. 1, ¶¶ 42, 43, 46, 50.) Asserting that Plaintiff has not sufficiently alleged either theory,
the City seeks dismissal. (Doc. 21, pp. 4–9.) The Court agrees with the City.
1. Failure to Train Theory
In limited circumstances, a municipality’s failure to train its employees may rise
to the level of an official government policy for purposes of § 1983. Connick v. Thompson,
563 U.S. 51, 61 (2011); see also City of Canton v. Harris, 489 U.S. 387, 388 (1989). To be
actionable, the failure to train employees “in a relevant respect must amount to deliberate
indifference to the rights of persons with whom the untrained employees come into
contact.” Connick, 563 U.S. at 61. Deliberate indifference is a stringent standard. Id.
A municipality may be deemed deliberately indifferent if it maintains a “’policy of
inaction’ in light of actual or constructive notice that a particular omission in their training
program will cause constitutional violations.” Id. For purposes of a failure to train theory,
a plaintiff must ordinarily demonstrate a “pattern of similar constitutional violations by
untrained employees.” See id. at 62; see also Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d 1313, 1328–29 (11th Cir. 2015) (affirming dismissal of the plaintiff’s failure to
train claim because he failed to allege a pattern of similar constitutional violations by
untrained employees); see also, e.g., Espinoza v. Harrelson, No. 6:15-cv-1923-Orl-37GJK,
2016 WL 39826497, at *5 (M.D. Fla. Jul. 21, 2016) (dismissing plaintiff’s failure-to-train
claim because plaintiff did not allege relevant specific instances to support a policy under
Monell). 2
2 Cf.
Johnson v. City of Daytona Beach, No. 6:16-cv-941-Orl-40TBS, 2017 WL 119744,
at *5 (M.D. Fla. Jan. 12, 2017) (finding that the plaintiff had adequately pled a failure to
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Here, Plaintiff alleges that the City failed “to instruct, supervise, control, and
discipline.” (Doc. 1. ¶ 45.) In support, Plaintiff recites Sgt. Lanza’s Alleged Misconduct.
(Id. ¶ 41.) But apart from the instant case, she does not allege a single instance where
Sgt. Lanza employed, or was disciplined for, the use of excessive force. (See id. ¶¶ 41, 42.)
It is true that the complaint recites a litany of character or behavioral traits attributed to
Sgt. Lanza, but none are fact specific and none are alleged to be the cause of Plaintiff’s
injuries. (See id. ¶¶ 22, 27.) Instead, Plaintiff contends that the Alleged Misconduct results
from a failure to train of which the City had notice. (Doc. 25, p. 6.) The facts alleged do
not plausibly support this inferential leap. To begin, the Complaint does not identify a
particular omission in the City’s training program. Rather, Plaintiff points to the City’s
policies and training generally. (Doc. 1, ¶ 42.) In addition, Plaintiff relies on imprecise
and conclusory allegations, untethered to the use of excessive force and devoid of even
minimal factual development, which do not approach the requisite pleading of a pattern
of similar constitutional violations. (See id. ¶ 41.) Having failed to establish a pattern of
constitutional violations, Plaintiff’s allegations concerning the City’s constructive or
actual notice of such a failure are necessarily deficient. Consequently, Plaintiff has not
met the deliberate indifference standard and has failed to sufficiently plead her Failure
to Train Theory.
train by alleging twenty-four prior incidents of defendants’ misconduct related to the use
of excessive force); Rivas v. Figueroa, No. 11-23195-Civ., 2012 WL 1378161, at *4
(S.D. Fla. Apr. 20, 2012) (denying the defendant’s motion to dismiss because the plaintiff
had sufficiently pled a failure to train by alleging five instances where officers had
unlawfully searched and seized personal property).
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2. Ratification Theory
Plaintiff also tacitly alleges that the City ratified Sgt. Lanza’s conduct.
(Doc. 1, ¶ 53.) A “persistent failure to take disciplinary action against officers” who use
excessive force, “can give rise to an inference that a municipality has ratified” such
conduct, thereby establishing a “custom” for purposes of municipality liability.
Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985). But even under this
theory, courts have required a plaintiff to establish a widespread policy of the relevant
constitutional violations and that
the prior
conduct
is sufficiently
similar.
See, e.g., Pellegrino v. Wengert, No. 15-CIV-60535, 2015 WL 4065376, at *5–6
(S.D. Fla. Jul. 2, 2015). As explained above, Plaintiff’s conclusory and superficial
allegations fail to identify prior instances where Sgt. Lanza used excessive force. Thus,
Plaintiff has not properly pled this theory of municipal liability. As Plaintiff has failed to
properly allege a theory of municipal liability under § 1983, the MTD is due to be granted
as to Count II.
B.
Negligent Retention Claim
Turning to Count V, Plaintiff appears to allege a state-law claim against the City
for the negligent retention of Sgt. Lanza. (Doc. 1. ¶ 71.) The Complaint, however, contains
inconsistent allegations, which prevent the Court from assessing the intended claim or
the City’s arguments for dismissal. Such confusion requires repleader.
Under Florida law, courts have held that a negligent retention claim is cognizable
when (1) an employer becomes aware or should become aware of problems with an
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employee that indicates his unfitness; and (2) the employer fails to take appropriate action
such as investigation, discharge, or reassignment. See Samedi v. Miami-Dade Cty.,
134 F. Supp. 2d 1320, 1352-53 (S.D. Fla. 2001); Watson v. The City of Hialeah,
552 So. 2d 1146, 1148 (Fla. 3d DCA 1989). Florida law, however, does not recognize a
cause of action for negligent retention if the acts of the employee occur within the course
and scope of employment. See City of Boynton Beach v. Weiss, 120 So. 3d 606, 610
(Fla. 4th DCA 2013); Watson, 552 So. 2d at 1148.
Here, Plaintiff, inconsistently, asserts that: (1) Count V is a negligent retention
claim against the City; and (2) Sgt. Lanza acted within the course and scope of his
employment when arresting her. (Doc. 1, ¶¶ 71, 74.) These conflicting allegations provide
a sufficient basis for dismissal. 3 Second, absent the allegation that Sgt. Lanza acted within
the course of his employment, Plaintiff insufficiently alleges plausible facts in support
her negligent retention claim. While the complaint describes generalized bad behavior on
the part of Sgt. Lanza and attributes knowledge to the City, there is no description of the
acts, how the City was aware of them, and, most crucially, how the City’s alleged failure
to act caused Plaintiff’s injury. (See id. ¶¶ 24, 27.)
Plaintiff’s
allegations
also
raise
the
specter
of
sovereign
immunity.
See Fla. Stat. 768.28(1). Generally, “a governmental agency is immune from tort liability
based upon actions that involve its ‘discretionary’ functions.” Cook ex rel. Estate of Tessier
v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1117 (11th Cir. 2005) (quoting Lewis v. City of
Notably, Plaintiff failed to even respond to the City’s scope of employment
argument (Doc. 21, p. 11).
3
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St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001)). Basic “judgmental or discretionary
governmental functions are immune from legal action, whereas operational acts are not
protected by sovereign immunity.” Pollock v. Fla. Dep’t of Highway Patrol,
882 So. 2d 928, 933 (Fla. 2004). In making this assessment, the Court must ascertain the
character of the alleged negligent governmental act. Id. A discretionary function, under
Florida law, is one in which the challenged act involves the exercise or legislative power
such that, were a court to intervene it would “inappropriately entangle itself in
fundamental questions of policy and planning. 4 Cook, 402 F.3d at 1117-18 (quoting
Henderson v. Bowden, 737 So. 2d 532, 538 (Fla. 1999)). An “operational” function is one not
necessary or inherent in the policy or planning, but rather reflects a secondary decision
as to how those polices or plans will be implemented. Henderson, 737 So. 2d at 538. Despite
these nebulous definitions, the task of determining whether an act is “discretionary” or
“operational” is necessarily fact specific. Storm v. Town of Ponce Inlet, 866 So. 2d 714, 719
(Fla. 5th DCA 2004).
The lack of specificity of the challenged acts makes the operational versus
discretionary analysis impossible. Contrary to the City’s argument (Doc. 21, p. 10),
Other courts have described a “discretionary,” act as one that meets all of the
following elements: (1) the action involves a basic governmental policy, program, or
objective; (2) the action is essential to the realization or accomplishment of that policy,
program or objective; (3) the action requires the exercise of basic policy evaluations,
judgments, and expertise on the part of governmental agency involved; and (4) the
governmental agency involved possess the requisite constitutional statutory, or lawful
authority and duty to do or make the challenged act, omission, or decision. Lewis, 260 F.3d
at 1264 (citing Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918
(Fla. 1985)).
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whether an act is discretionary or operational is not reducible to a one-size-fits all
analysis. See Hemmings v. Jenne, No. 10-61126-CIV, 2010 WL 4005333, *1, *6-7
(S.D. Fla. 2010) (“negligent hiring, retention, and supervision claims are not always
barred by sovereign immunity, because these functions are sometimes deemed
operational rather than discretionary . . . depending on the facts”); see also Horn v. Volusia
Cty., No. 6:08-cv-18-Orl-19DAB, 2008 WL 977179, *4 (M.D. Fla. Apr. 9, 2008). Indeed, the
point is crystalized upon review of the authority addressing the issue. See Vaden v.
Campbell, No. 4:09cv12-RH/WCS, 2009 WL 1919474, *3–4 (N.D. Fla. July 2, 2009) (finding
negligent retention to be “operational”); Wills v. Dade Cty. Sch. Bd., 411 So. 2d 245, 246
(Fla. 3d DCA. 1982) (finding negligent retention to be “operational”); Cf. Storm,
866 So. 2d at 719 (finding decision to hire, fire or retain “falls, without question, at the far
end of the ‘discretionary’ basic fundamental decision-making spectrum”); Napier ex rel.
Napier v. Fla. Dep’t of Corr., No. 09-CV-61158, 2010 WL 2427442, *5 (S.D. Fla. June 16, 2010)
(finding insufficient facts to determine whether negligent retention was “operational” or
“discretionary”). 5 Plaintiff’s allegations are insufficiently precise to determine if
immunity for discretionary acts is available. Hence, repleader is necessary for this reason
as well.
See also Slonin v. City of West Palm Beach, Fla., 896 So. 2d 882, 884 (Fla. 4th DCA
2005) (“There is no sovereign immunity barrier to making a claim against a governmental
agency for negligent retention . . . .”).
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C.
Attorney Fees
Finally, Defendant seeks dismissal of Plaintiff’s claims for attorney fees as to her
state-law claims set forth in Counts III–V. Because Plaintiff has withdrawn such claims
(Doc. 25, pp. 8–9), the Court finds that the MTD is due to be denied as moot.
IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
Defendant City of Melbourne, Florida and Chief Mimbs’ Motion to Dismiss
(Doc. 21) is GRANTED IN PART AND DENIED AS MOOT IN PART.
a.
The Motion is granted as to Counts II and V (Doc. 1, ¶¶ 38–55,
70–79). Such claims are DISMISSED WITHOUT PREJUDICE.
b.
The Motion is denied as moot with respect to Plaintiff’s claims
for attorney fees set forth in Counts III–V (Doc. 1, pp. 10, 11, 13).
2.
On or before, Monday, July 31, 2017, Plaintiff may file an amended
complaint with respect to Counts II and V that addresses the deficiencies
identified in this Order.
3.
The Clerk is DIRECTED to terminate Steve Mimbs as a party to this action.
DONE AND ORDERED in Chambers in Orlando, Florida, on July 18, 2017.
Copies to:
Counsel of Record
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