Vielma et al v. Gruler et al
Filing
66
ORDER granting 49 Defendants' Dispositive Motion to Dismiss. The 37 Second Amended Complaint is dismissed with prejudice. The Clerk of Court is directed to close the file. Signed by Judge Paul G. Byron on 11/14/2018. (JRJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSE VIELMA, CARMEN NILDA CAPOQUINONES,
BERNEDETTE CRUZ,
DIMARIE
RODRIGUEZ,
BERNICE
DEJESUS, ISMAIL MORALES, OLGA
M. DISLA-MENCIA, DIGNA ROSAFERNANDEZ, MARELY MENENDEZ,
KEINON
CARTER,
JUAN
JOSE
CUFINO
RODRIGUEZ,
JOAQUIN
ROJAS, KALIESHA
M. ANDINO,
NORMAN
ESTEVENT
CASIANOMOJICA, LEONEL MELENDEZ, RUBEN
ENRIQUE GARCIA-TEJADA, CARLOS
JAVIER PEREZ-ANGLERO, SANDY
ROBERTS,
KADIM
RAMOS,
CHRISTIAN
ORTIZ-CARDONA,
CARLOS B. MUNIZ-TORRES, JUAN
ANTONETTI,
JAVIER
ANTONETTI,
CARLEEN THOMAS, JOSE CARLOS
RAMIREZ-MARTINEZ,
ROLANDO
JOSE RODRIGUEZ, EDWIN RIVERA
ALVAREZ,
NATHAN
OROZCO,
NICHOLAS
PEREZ,
COREY
RICHARDS, VICTOR MALDONADO,
MERCEDES GARCIA, MERCEDES A.
MCQUERY, RONISE ROSE CELESTIN,
OMAR
DELGADO,
JORDAN
M.
BOTELHO, JOSE ELMER PACHECO
ANDRADE,
ROBERT
TEXIDORCARRASQUILLO,
EMILY
ANN
PORTALATIN,
JAMMY
VALENTIN
FERNANDEZ,
MARIA
SANFELIZ,
NEREIDA
RIBOT,
MICHAEL
GONZALEZ,
ARACELIS
MARIA
JIMENEZ, MIGUEL VEGA, RODNEY
SUMTER, JACKSON J. JOSAPHAT,
JUAN GUERRERO, YAZMIN REYES,
MARISSA
DELGADO,
DONALD
BROWN,
MAVELYN
MERCED,
CHRISTOPHER
LITTLESTAR,
CARLOS SANFELIZ, DIANA MONTES,
CHRISTINE
LEINONEN,
NELSON
RODRIGUEZ
ARACENA,
and
BIENVENIDO
Plaintiffs,
v.
Case No: 6:18-cv-884-Orl-40KRS
ADAM TODD GRULER, JOHN DOES 120, JOHN DOES 21-30, CITY OF
ORLANDO and JOHN DOES 1-15,
Defendants.
/
ORDER
This case involves unfathomable tragedy. On June 12, 2016, an armed gunman
entered the Pulse nightclub and gunned down as many people as he could, killing and
injuring dozens. In the aftermath of the horrific attack, Plaintiffs filed suit alleging
constitutional deprivations by the City of Orlando and its officers for not preventing the
massacre, not going in quickly enough to “neutralize” the shooter, and for unreasonable
searches and seizures during the subsequent investigation. These Plaintiffs have
suffered immeasurably, and if magnitude of loss determined whether Plaintiffs could
recover, then they surely would. But Plaintiffs assert constitutional claims that are patently
foreclosed by Supreme Court and Eleventh Circuit precedent that requires this Court to
dismiss the suit.
This matter is before the Court without oral argument on Defendants’ Dispositive
Motion to Dismiss (Doc. 49 (the “Motion”)). Plaintiffs responded in opposition on
September 28, 2018. (Doc. 55). With briefing complete, the matter is ripe. Upon
consideration, the Motion is due to be granted and the case dismissed.
2
I.
BACKGROUND 1
The events giving rise to this suit begin the early hours of June 12, 2016. (Doc. 37,
¶¶ 76, 80). At that time, Defendant Adam Todd Gruler (“Officer Gruler”), a City of Orlando
law enforcement officer, was on duty providing security at the Pulse nightclub in Orlando,
Florida. (Id. ¶¶ 70, 78). By approximately 2:00 a.m., Officer Gruler had “abandoned his
post.” (Id.). Around this time, an individual (the “Shooter”) entered Pulse intent on
carrying out a mass shooting. (Id. ¶¶ 76–77). After scouting the club and seeing no
security personnel, the Shooter went to his car to retrieve his weapons—a semi-automatic
rifle and semi-automatic pistol. (Id. ¶¶ 76–78).
Upon re-entering Pulse, the Shooter opened fire on the patrons within. (Id. ¶ 81).
When the shooting began, Officer Gruler “immediately became aware that an active
shooter was shooting patrons in Pulse,” but allegedly “stayed outside.” (Id. ¶¶ 81–82).
“[S]ome time” after the shooting started, Orlando law enforcement officers entered Pulse
and engaged the Shooter, causing him to retreat into a restroom where he barricaded
himself with several hostages. (Id. ¶¶ 84–85). Roughly three hours later, law enforcement
entered Pulse and “neutralized [the] Shooter.” (Id. ¶ 86). All told, forty-nine people were
killed, and fifty-three injured, by the Shooter. (Id. ¶ 87).
Over the next ten hours, Defendants John Does 1–12—most alleged to be Orlando
police officers 2—detained, processed, and interviewed numerous Plaintiffs regarding the
1
This account of the facts is taken from the Second Amended Complaint (Doc. 7
(“SAC”)). The Court accepts these factual allegations as true when considering
motions to dismiss. See Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir.
2007).
2
See infra note 11.
3
shooting. (Id. ¶¶ 10, 88 (“Detained Plaintiffs”)). Additionally, John Does 13–15 searched
and seized personal property from numerous Plaintiffs “for weeks to months after the
shooting.” (Id. ¶¶ 11, 90 (“Seized Property Plaintiffs”)).
Based on the officers’ conduct, Plaintiffs initiated this action on June 7, 2018,
alleging numerous constitutional claims related to the shooting. (Doc. 1). Fifteen days
later, Plaintiffs filed an Amended Complaint (Doc. 18), which the Court dismissed without
prejudice as a shotgun pleading. (Doc. 34). On August 15, 2018, Plaintiffs filed the SAC
now before the Court. (Doc. 37). The SAC includes fifty-six named Plaintiffs, eighteen of
whom are personal representatives of the estates of deceased victims of the shooting.
(Id. ¶ 6). The remaining Plaintiffs were injured at Pulse, suffering gunshot wounds and/or
non-physical injuries, such as post-traumatic stress disorder. (Id. ¶¶ 7–9, 12).
The SAC proceeds in four Counts. Count I alleges 42 U.S.C. § 1983 claims on
behalf of all Plaintiffs against Officer Gruler and the City of Orlando for Defendants’
violation of Plaintiffs’ “interest in life, liberty[,] and property and [] substantive due process
right[s] protected by the 4th and 14th Amendments to the U.S. Constitution.” (Id. ¶¶ 91–
106). Count I is premised on Officer Gruler “abandoning his post” before the shooting and
neglecting “to enter the club immediately after the shooting began to neutralize Shooter.”
(Id. ¶¶ 94–96). Count II avers § 1983 claims on behalf of Detained Plaintiffs against John
Does 1–12 and the City of Orlando based on John Does 1–12 unlawfully arresting and/or
detaining those Plaintiffs. (Id. ¶¶ 107–116). Count III asserts § 1983 claims on behalf of
Seized Property Plaintiffs against John Does 13–15 and the City of Orlando based on the
John Does seizing Plaintiffs’ personal property without legal authority. (Id. ¶¶ 117–20).
Finally, Count IV alleges a Monell claim against the City of Orlando based on a failure-to-
4
train theory. (Id. ¶¶ 121–34). Defendants move to dismiss all claims with prejudice. (Doc.
49).
II.
STANDARD OF REVIEW
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)(1). Thus, in order to survive a motion
to dismiss made pursuant to Rule 12(b)(6), the complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is plausible on its face when the plaintiff “pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.
Though a complaint need not contain detailed factual allegations, mere legal
conclusions or recitation of the elements of a claim are not enough. Twombly, 550 U.S.
at 555. Moreover, courts are “not bound to accept as true a legal conclusion couched
as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 679. Courts must also view the complaint in the
light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of
the complaint in the plaintiff’s favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th
Cir. 1994) (per curiam). In sum, courts must (1) ignore conclusory allegations, bald legal
assertions, and formulaic recitations of the elements of a claim; (2) accept well-pled
factual allegations as true; and (3) view well-pled allegations in the light most favorable
to the plaintiff. Iqbal, 556 U.S. at 67.
5
III.
DISCUSSION
Defendants seek dismissal of Count I because (i) it fails to state a plausible
substantive due process claim, and (ii) Officer Gruler is entitled to qualified immunity.
(Doc. 49). They also request dismissal of Counts I through III as against the City of
Orlando because they fail to state a basis for municipal liability. (Id.). Furthermore,
Defendants ask the Court to dismiss Counts II and III as against the Doe Defendants
because the SAC impermissibly pleads fictitious defendants. (Id.). Finally, Defendants
move to dismiss Count IV against the City of Orlando for failure to state a claim. On
review, the Court agrees and holds the SAC is due to be dismissed in its entirety.
Before analyzing the SAC’s claims, the Court takes note of the animating principles
of the laws on which Plaintiffs’ claims rest. Plaintiffs rely on 42 U.S.C. § 1983 to support
each of their claims. Section 1983 vests individuals whose federal rights are violated by
persons acting under color of state law with a federal cause of action. Congress enacted
the Civil Rights Act of 1871—§ 1983’s parent statute—in response to “the campaign of
violence and deception in the South, fomented by the Ku Klux Klan, which was denying
decent citizens their civil and political rights.” Wilson v. Garcia, 471 U.S. 261, 276 (1985).
Before the law passed, “murder,” “whipping,” and “lynching” were commonplace and
“local administrations [were] found inadequate or unwilling to apply the proper corrective.”
Id. (quoting Cong. Globe, 42d Cong., 1st Sess., 374 (1871) (remarks of Rep. Lowe)).
Section 1983 was therefore created to empower federal courts to vindicate the
federal rights of individuals harmed by those acting with actual or apparent state law
authority. Indeed, “[t]he very purpose of § 1983 was to interpose the federal courts
between the States and the people, as guardians of the people’s federal rights—to protect
6
the people from unconstitutional action under color of state law, whether that action be
executive, legislative, or judicial.” Mitchum v. Foster, 407 U.S. 225, 242 (1972) (citations
omitted). To that end, § 1983 is a vehicle through which individuals can bring
constitutional and federal claims against those clothed with state authority.
One such claim is a Fourteenth Amendment substantive due process claim. The
Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Like § 1983, the Due Process Clause “was intended to prevent
government ‘from abusing [its] power, or employing it as an instrument of oppression.’”
Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992) (quoting DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)). 3 Individuals whose due
process rights have been violated by state actors may sue the state-actor violators under
§ 1983. As a general matter then, the Fourteenth Amendment is not implicated by acts of
private violence.
Fourteenth Amendment substantive due process protections do not “entail a body
of constitutional law imposing liability whenever someone cloaked with state authority
causes harm.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). Neither is the Due
Process Clause a “font of tort law to be superimposed upon whatever systems may
already be administered by the States.” Id. (quoting Daniels v. Williams, 474 U.S. 327,
332 (1986)). The Constitution, instead, deals with “the large concerns of the governors
and the governed.” Id.
3
See also Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due
process is protection of the individual against arbitrary action of government.”).
7
A.
Count I Against Officer Gruler
The Court begins with Count I’s substantive due process claims against Officer
Gruler.
1.
DeShaney and its Progeny Preclude Count I Against Officer Gruler
Before addressing the SAC, the Court submits the following overview of important
precedent in this area, which illustrates why Plaintiffs’ claims fail.
It has long been held that “a State’s failure to protect an individual against private
violence simply does not constitute a violation of the Due Process Clause.” DeShaney,
489 U.S. at 197. That principle stems from the DeShaney case which, like this one, had
tragic facts worthy of recitation. The plaintiffs there were guardians of a four-year-old who
claimed that the Department of Social Services failed to protect the child from his father’s
beatings which resulted in irreversible brain damage. Id. at 193. Over twenty-six months,
the department was repeatedly notified of ongoing abuse but failed to act. Id. at 192. The
plaintiffs brought substantive due process claims against the department for “failing to
intervene to protect [the child] against a risk of violence at his father’s hands of which [the
department] knew or should have known.” Id. at 193.
Despite the department’s notice of the threat and failure to act, the Supreme Court
found no substantive due process violation, holding that the Due Process Clause provides
no guarantee of government protection from private violence.
The Clause is phrased as a limitation on the State's power to act, not as a
guarantee of certain minimal levels of safety and security. It forbids the
State itself to deprive individuals of life, liberty, or property without “due
process of law,” but its language cannot fairly be extended to impose an
affirmative obligation on the State to ensure that those interests do not come
to harm through other means. Nor does history support such an expansive
reading of the constitutional text.
8
Id. at 195. Thus, the Court affirmed the principle that the Due Process Clause affords no
affirmative right to government aid, “even where such aid may be necessary to secure
life, liberty, or property interests of which the government itself may not deprive the
individual.” Id. at 196.
This principle was reaffirmed in another tragic case, Town of Castle Rock v.
Gonzales, 545 U.S. 748 (2005). There, Jessica Gonzales had obtained a Colorado
restraining order limiting her estranged husband’s contact with her and her three
daughters. Id. at 751. One evening, Gonzales’ daughters went missing. Id. at 753. She
immediately called the police, alerting them that she suspected her estranged husband
had taken them. Id. Gonzales contacted the police five times that night, and each time
they did nothing. Id. at 753–54. Hours after the girls went missing, the estranged husband
showed up at the police station and initiated a firefight with police, who shot and killed
him. Id. at 754. Soon after, it was discovered that he murdered the girls and left them in
his car. Id. at 754. Gonzales brought suit, asserting substantive and procedural due
process claims, for the police’s failure to enforce her restraining order.
The Supreme Court summarily found that Gonzales could not state a substantive
due process claim because “the Due Process Clause does not ‘requir[e] the State to
protect the life, liberty, and property of its citizens against invasion by private actors.’” Id.
at 755, 769 (quoting DeShaney, 489 U.S. at 195). The Court likewise found that Gonzales
could not state a procedural due process claim. Id. at 769. Faced with the question of
whether Gonzales had a “legitimate claim of entitlement” in the police enforcing her
restraining order, the Court held that a “benefit is not a protected entitlement if government
officials may grant or deny it in their discretion.” Id. at 756, 760–61. “The practical
9
necessity for [police] discretion” warranted the conclusion that Colorado police were not
under a mandatory duty to take specific action in response to restraining order violations .
Id. at 762–63. Finally, the Court noted that the indeterminacy of the claimed entitlement—
that police should have “use[d] every reasonable means, up to and including arrest, to
enforce the order’s terms”—demonstrated that the police did not owe Gonzales a
mandatory enforcement duty. Id. at 763–64 (“Nor can someone be safely deemed
‘entitled’ to something when the identity of the alleged entitlement is vague.”). The
Supreme Court has thus consistently held that there is no substantive or procedural right
to government protection from private harm. 4
Following the high Court’s direction, the U.S. Circuit Courts of Appeals have
applied this principle in myriad cases. For instance, in Tucker v. Callahan, 867 F.2d 909,
(6th Cir. 1989), the Sixth Circuit affirmed the dismissal of a suit bringing due process
claims against a police officer who watched a brawl that rendered the plaintiff a
quadriplegic but failed to intervene or summon emergency assistance. Id. at 910–14. In
Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (en banc), the Fourth Circuit found no
substantive due process violation where police officers responding to a reported domestic
dispute affirmatively promised the victim that the perpetrator would be arrested and
4
It is a different matter entirely where the state has already deprived someone of their
liberty. Indeed, “the Due Process Clause of its own force requires that conditions of
confinement satisfy certain minimal standards for pretrial detainees, for persons in
mental institutions, for convicted felons, and for persons under arrest.” Collins, 503
U.S. at 127 (citations omitted); see also, e.g., Youngberg v. Romeo, 457 U.S. 307,
315 (1982) (holding that the Due Process Clause guarantees detainees in mental
institutions “adequate food, shelter, clothing, and medical care”); Bell v. Wolfish, 441
U.S. 520, 535, n.16, 545 (1979) (affording pretrial detainees minimal standards of
protection under the Due Process Clause);
10
detained, but actually released the perpetrator who immediately returned to burn the
victim’s house down, killing her three children. Id. at 1172, 1174.
Closer to home, the Eleventh Circuit has consistently affirmed the proposition that
“a person does not have a constitutional right under the Fourteenth Amendment to be
protected from the criminal acts of third parties.” See, e.g., Mitchell v. Duval Cty. Sch. Bd.,
107 F.3d 837, 838 (11th Cir. 1997) (per curiam). In Mitchell, Richard Mitchell tried to call
his father from the school’s administration office to get a ride home, but school officials
denied his entry, so he had to use an outside pay phone and wait there for his father to
arrive. Id. Mitchell was then shot and killed by private actors while waiting for his ride. Id.
The personal representative of Mitchell’s estate sued the school board under the Due
Process Clause. Id. The Eleventh Circuit summarily affirmed the district court’s dismissal,
citing DeShaney and rejecting the plaintiff’s argument that the claim could proceed under
a “special relationship” or “special danger” theory of Fourteenth Amendment liability. Id.
at 838–40.
Against this backdrop, it is clear that Count I against Officer Gruler cannot survive.
Since this entire circumstance begins and ends with a private actor, Officer Gruler cannot
be sued for violating Plaintiffs’ due process rights. Indeed, Count I boils down to a claim
that Gruler initially absconded and then failed to protect Plaintiffs after the attack began.
Yet, “[t]he affirmative duty of protection that the Supreme Court rejected in DeShaney is
precisely the duty [Plaintiffs] rel[y] on in this case.” See Pinder, 54 F.3d at 1174. Officer
Gruler’s alleged failure to protect Plaintiffs “against private violence simply does not
constitute a violation of the Due Process Clause.” See DeShaney, 489 U.S. at 197. The
11
Pulse shooting was a spontaneous act of violence carried out by “a thug with no regard
for human life.” (Doc. 37, ¶ 76). With this, Plaintiffs’ substantive due process claims fail.
2.
Officer Gruler’s Conduct Does Not Shock the Conscience
Even if Count I was not precluded by the DeShaney rule, the SAC does not
plausibly allege that Officer Gruler’s conduct shocks the conscience. Count I is therefore
due to be dismissed on this alternative ground.
To prevail on a substantive due process claim, plaintiffs must plead and ultimately
prove official action that “shocks the conscience.” Lewis, 523 U.S. at 846. The
conscience-shocking standard was first articulated in Rochin v. California, 342 U.S. 165
(1952). There, the Supreme Court found that the illegal forced pumping of a detained
suspect’s stomach “shock[ed] the conscience” because it violated the “decencies of
civilized conduct.” Id. at 172–73. This amounted to a substantive due process violation.
Since then, the Supreme Court has been loath to recognize other circumstances
where the “shocks the conscience” standard is met to support a substantive due process
claim. In Lewis, the Court noted that even intentional harm seldom violates the Due
Process Clause, and “only the most egregious official conduct can be said to be ‘arbitrary
in the constitutional sense.’” 523 U.S. at 846 (quoting Collins, 503 U.S. at 129). In defining
this standard, the Court found that conduct intended to injure a person arbitrarily—i.e.
government conduct disconnected from a legitimate government interest—“is the sort of
official action most likely to rise to the conscience-shocking level.” Id. at 849 (citing
Daniels, 474 U.S. at 331 (“Historically, this guarantee of due process has been applied to
deliberate decisions of government officials to deprive a person of life, liberty, or
property.”)). That means “negligently inflicted harm is categorically beneath the threshold
12
of [a] constitutional due process” violation. Id. at 849. Furthermore, this inquiry turns on
the facts—it is not “subject to mechanical application in unfamiliar territory.” Id.
In the context of police action, the Supreme Court has held that an even “higher
standard of fault” is necessary to support a due process claim when police are required
to act fast in the face of an emergency. Id. at 852–54. “[W]hen unforeseen circumstances
demand an officer's instant judgment, even precipitate recklessness fails to inch close
enough to harmful purpose to spark the shock that implicates ‘the large concerns of the
governors and the governed.’” Id. at 853 (quoting Daniels, 474 U.S. at 332). Furthermore,
courts may “not use hindsight to judge the acts of police officers,” and must instead
consider “what [the officer(s)] knew (or reasonably should have known) at the time of the
act.” Rodriguez v. Farrell, 280 F.3d 1341, 1352–53 (11th Cir. 2002).
The Supreme Court expounded this rule in Lewis, where it addressed the
competing courses of action a police officer must consider when responding in a split
second to a dangerously-fleeing suspect. 523 U.S. at 853. There, police initiated a
dangerous high-speed chase—prohibited by the sheriff’s department’s policy on pursuit—
that ended with a collision that killed a teenage passenger on the motorcycle being
pursued. Id. at 836–37. The teenager’s estate sued, saying the instigation of this chase
“shocked the conscience.” Id. at 837, 854. The Supreme Court rejected that claim in light
of the conflicting considerations an officer in that situation must grapple with. Id. at 853–
55. Consequently, the Court found the officers’ conduct was not so egregious as to shock
the conscience. Id. at 854.
Like the officers in Lewis, Officer Gruler was faced with a sudden emergency and
had no time to deliberate. He could have gone in immediately to face an uncertain threat,
13
potentially harming those inside in an attempt to neutralize the suspect, or alternatively
stayed outside Pulse, called for backup, or set up a perimeter to secure the structure. He
chose to momentarily leave his post and stayed outside when the gunshots began. In
these circumstances, Officer Gruler’s conduct does not “shock the conscience.”
Assuming the truth of the SAC’s allegations and viewing the SAC in the light most
favorable to Plaintiffs, Officer Gruler’s conduct can conceivably be characterized as
negligent—perhaps even reckless. But as noted above, even “precipitate recklessness”
is insufficient to support a substantive due process claim. See Lewis, 523 U.S. at 853.
“Regardless whether [Officer Gruler’s] behavior offended the reasonableness held up by
tort law or the balance struck in law enforcement's own codes of sound practice, it does
not shock the conscience, and [he may] not [be] called upon to answer for it under §
1983.” See id. at 855. So Count I also fails because, DeShaney aside, Officer Gruler’s
alleged conduct does not “shock the conscience.” 5
3.
Deliberate Indifference
Next, Plaintiffs attempt to salvage their substantive due process claims by
advancing a deliberate indifference theory. (Doc. 37, ¶ 92). Like before, this fails.
Outside the custodial context, this claim is hard to come by. “[A]t the very least, [it]
require[s] a showing of deliberate indifference to an extremely great risk of serious injury
to someone in Plaintiffs’ position.” Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300,
1306 (11th Cir. 2003) (emphasis added). “To act with deliberate indifference, a state actor
5
Mindful that the Court must accept the SAC’s well-pled factual allegations as true for
purposes of this motion, the Court notes for completeness that Officer Gruler left his
so-called post outside Pulse before the shooting commenced to intercept an underaged patron who had a habit of illegally sneaking into the club. Officer Gruler testified
to this at criminal trial, and fairness to all concerned dictates inclusion of this fact.
14
must know of and disregard an excessive—that is, an extremely great—risk to the victim’s
health or safety.” Id. This standard is “sensibly employed only when actual deliberation is
practical.” Lewis, 523 U.S. at 851. 6
Accordingly, the “deliberate indifference” standard for substantive due process
claims is inapplicable to this case of unforeseen circumstances where actual deliberation
was impractical. See id. But even if the deliberate indifference standard were applicable
to this case, the SAC is bereft of factual allegations showing that Officer Gruler was aware
of a risk that was “extremely great.” See Waddell, 329 F.3d at 1306. The SAC does not
allege any foreknowledge of the Pulse attack by any Defendants and offers no factual
allegations establishing that nightclubs lacking visible security are under an “extremely
great risk” of attack. See id. Thus, Officer Gruler’s conduct was not deliberately indifferent
to Plaintiffs’ constitutional rights.
Plaintiffs cite several inapposite district court decisions in support of their argument
that Officer Gruler’s conduct was deliberately indifferent to Plaintiffs’ constitutional rights.
First, Olson v. Barrett, No. 6:13–cv–1886, 2015 WL 1277933 (M.D. Fla. Mar. 20, 2015).
In Olson, police went to Shelly Olson’s home one evening, in part to perform a suicide
check. Id. at *1–3. Police questioned Ms. Olson in her home, then went outside to gather
additional information, leaving her unattended. Id. at *3. Moments later, Ms. Olson
retrieved a shotgun and shot herself in the chest. Id. “None of the officers provided Ms.
6
By “deliberate indifference,” the Supreme Court stressed that it did not mean to
describe “‘deliberation’ in the narrow, technical sense in which it has sometimes been
used in traditional homicide law.” Id. at 851 n.11. (citing Caldwell v. State, 84 So. 272,
276 (Ala. 1919) (noting that “‘deliberation here does not mean that the man slayer
must ponder over the killing for a long time’”; rather, “it may exist and may be
entertained while the man slayer is pressing the trigger of the pistol that fired the fatal
shot[,] even if it be only for a moment or instant of time.”)).
15
Olson with basic life support at this time, and no ambulance was called.” Id. Paramedics
arrived nine minutes after the gunshot, too late to save Ms. Olson’s life. Id. at *4. Her
estate brought a substantive due process claim, and the district court found that the
complaint stated a plausible “medical indifference” claim based on officers’ failure to
“undertake any lifesaving actions” in the nine minutes that Ms. Olson laid on the ground
dying in front of police without receiving any medical treatment. Id. at *9–11.
Plaintiffs’ reliance on Olson is misguided. Unlike Olson, which involved a suicide
attempt witnessed by police followed by nine minutes of inaction while Ms. Olson lay dying
in front of police, the instant case stems from a prolonged emergency created by a wellarmed assailant firing dozens of rounds inside a nightclub over several hours. The Court
is not inclined to expand Olson’s narrow holding to the dramatically different facts of this
case. See White v. Lemacks, 183 F.3d 1253, 1259 (11th Cir. 1999) (requiring the arbitrary
and conscience-shocking standards “be narrowly interpreted and applied”).
Second, Plaintiffs offer Waldron v. Spicher, No. 5:16-cv-658, 2017 WL 3972464
(M.D. Fla. Aug. 11, 2017) (Report & Recommendation), adopted, 2017 WL 3922946
(M.D. Fla. Sept. 7, 2017). Waldron is likewise unhelpful to Plaintiffs’ case. In Waldron,
police responded to an emergency call reporting an attempted suicide by Anthony Ybarra,
Jr. Id. at *1. Mr. Ybarra tried to hang himself from a tree but was almost immediately
noticed by family members and a neighbor who cut him down and began administering
CPR. Id. When a deputy arrived, he instructed the person performing CPR to stop, told
incoming emergency units not to hurry, and blocked paramedics from reaching Mr. Ybarra
after they arrived. Id. at *1–2. Paramedics eventually reached Mr. Ybarra and resumed
CPR “with life signs,” but he died in the hospital a week later. Id. at *2. Mr. Ybarra’s estate
16
brought a substantive due process claim for the police’s “medical indifference,” and at the
motion to dismiss stage, the court found that the complaint stated a plausible claim. Id. at
*6. The Court is unpersuaded by Waldron for the same reasons it is unmoved by Olson. 7
Finally, Plaintiffs’ citation to Pinkney v. Davis, 952 F. Supp. 1561 (M.D. Ala. 1997) does
not move the needle because that case involved defendants’ alleged indifference to the
medical needs of an individual detained by the Alabama Department of Corrections. Id.
at 1563–65.
4.
Qualified Immunity
Finally, the Court turns to Officer Gruler’s qualified immunity argument. 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).
Qualified immunity protects all officials except “the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
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) (internal quotation marks
omitted). “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 make a two-part showing.
First, the plaintiff must allege that the facts of the case, if proven to be true, would make
7
In fact, the court in Waldron discussed Olson at length, and found that the plaintiffs in
both cases stated plausible medical indifference claims for similar reasons. Id. at *7–
8.
17
out a constitutional violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Beshers v.
Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007). Second, the plaintiff must show that the
constitutional right was “clearly established” at the time of the alleged misconduct.
Pearson, 555 U.S. at 232. 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).
“For a constitutional right to be clearly established, its contours ‘must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.’”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). Even in novel factual circumstances, “officials can still be on notice that their
conduct violates established law . . . .” Id. at 741 (rejecting a requirement that previous
cases have “materially similar” facts to give officials notice). For instance, officials may be
on notice where “a broader, clearly established principle . . . control[s] the novel facts in
[a] situations,” or where conduct “so obviously violates th[e] constitution that prior case
law is unnecessary.” Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005).
In this case, Plaintiffs can satisfy neither part of the two-part showing to establish
that Officer Gruler is not entitled qualified immunity. As discussed supra Subsections
III.A.1–3, Plaintiffs have not alleged facts that make out a constitutional violation. See
Pearson, 555 U.S. at 232. And even if they had, Plaintiffs have not shown that the
constitutional right at issue was “clearly established.” See id. Plaintiffs rely on Olson and
Waldron to demonstrate that the Pulse nightclub occupants had a “clearly established”
constitutional right to Officer Gruler’s assistance. (Doc. 55, p. 6). But as the Court’s
analysis supra Subsection III.A.3 makes clear, neither Olson nor Waldron supports the
18
proposition that Officer Gruler violated Plaintiffs’ rights. Count I therefore fails to state a
plausible claim against Officer Gruler, and even if it did, he is entitled to qualified immunity.
B.
Counts I–III Against Defendant City of Orlando
Count I also avers claims by all Plaintiffs against the City of Orlando. (Doc. 37, p.
16). However, the Complaint and Response to Defendants’ Motion to Dismiss do not
make clear the theory of liability Count I relies on for this Defendant. Indeed, the City of
Orlando is not mentioned in the SAC’s “GENERAL ALLEGATIONS” section (see Doc. 37,
¶¶ 76–90) or in the allegations specific to Count I (see id. ¶¶ 92–106). Count I incorporates
by reference the SAC’s “PARTIES” section, which mentions Defendant City of Orlando in
a single paragraph. 8 That paragraph—which generically alleges that Defendant City of
Orlando “had a duty to train and supervise its officers to ensure that they abide by the
United States Constitution” and to enact policies consistent with the Constitution—by
itself, fails to state a plausible Monell claim against Defendant City of Orlando. Paragraph
8
The paragraph in question states:
Defendant CITY OF ORLANDO is a political subdivision of the State of
Florida, and at all times relevant herein, was acting under color of state law.
Defendant CITY OF ORLANDO’s policies and procedures, and training or
lack thereof, demonstrated deliberate indifference to the rights Plaintiffs,
and that deliberate indifference caused the herein complained-of harm to
take place. The City at all pertinent times had a duty to train and supervise
its officers to ensure that they abide by the United States Constitution. It
further had, at all pertinent times, an obligation to maintain, through its
policymakers and/or decisionmakers, policies, procedures, customs, and/or
protocols, both written, unwritten, de facto, or otherwise, that were in
conformity with the United States Constitution. The Orlando Police
Department was at all pertinent times under the control of Chief John W.
Mina, who was at all pertinent times a policymaker and/or decisionmaker
for the City of Orlando.
(Id. ¶ 72).
19
seventy-two is bereft of specifics, and instead stitches together a hodge-podge of legal
conclusions and constitutional buzzwords. More is required to state a plausible claim. See
Papasan v. Allain, 478 U.S. 265, 286 (1986). Counts II and III suffer from the same defect.
They name Defendant City of Orlando but lack any allegations supporting liability.
Because municipal governments may not be held liable under respondeat superior or
vicarious liability for the constitutional wrongdoings of their agents, Counts I–III are due
to be dismissed as to Defendant City of Orlando. See City of Canton v. Harris, 489 U.S.
378, 385 (2007); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). 9 The Court
addresses the Monell claims asserted against Defendant City of Orlando in Count IV infra.
C.
Counts II and III Against John Doe Defendants
1.
Impermissible John Doe Pleading
Plaintiffs’ first Amended Complaint alleged claims against thirty John Doe
Defendants without including identifying information specific to any individual John Does.
(Doc. 18). In an August 1, 2018, hearing (the “August Hearing”), the Court cautioned
Plaintiffs of the problems associated with John Doe pleading. (See, e.g., Doc. 35, pp. 5–
9, 17–20). The same day, the Court entered an Order dismissing the Amended Complaint
as a shotgun pleading. (Doc. 34). That Order noted Plaintiffs’ “problematic use of John
Doe Defendants,” and cited the rules governing John Doe pleading as follows:
9
To the extent the SAC pleads claims against Officer Gruler in his “official capacity”
(Doc. 37, ¶ 73), such claims are construed as against the municipality (City of Orlando)
and are likewise due to be dismissed. See Busby v. City of Orlando, 931 F.2d 764,
776 (11th Cir. 1991) (“[W]hen an officer is sued under Section 1983 in his or her official
capacity, the suit is simply ‘another way of pleading an action against an entity of
which an officer is an agent.’” (quoting Kentucky v. Graham, 473 U.S. 159, 165
(1985))).
20
In federal court, “fictitious-party pleading is not permitted.” Richardson v.
Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per curiam). The Eleventh
Circuit has permitted “a limited exception to this rule when the plaintiff’s
description of the defendant is so specific as to be ‘at the very worst,
surplusage.’” Id.
(Doc. 34, p. 3 n.2).
Plaintiffs did not heed the Court’s repeated warnings. Instead, Plaintiffs filed the
SAC, which brought two Counts against fifteen Doe Defendants. (Doc. 37, ¶¶ 116, 120). 10
While the SAC contains some details about the Doe Defendants beyond the Amended
Complaint, 11 given the state of the Amended Complaint, that’s not saying much. Again,
10
Although the SAC mentioned several individuals by name, the Court ignores these
references because such individuals were omitted from the case caption. The SAC
alleges that Plaintiff Nelson Rodriguez was interrogated by “John Doe FBI Agents
more than three times, whom this Plaintiff can describe as FBI Agent Sarah Oats,
three other FBI Agents and US Attorney James Mandolfo.” (Doc. 37, ¶ 116.v). Neither
Agent Sarah Oats nor US Attorney James Mandolfo are named in the SAC’s case
caption. “Pursuant to Federal Rule of Civil Procedure 10(a), a case caption must name
all of [the] parties to a suit. If Plaintiff[s] wish[] to bring suit against a defendant, [they]
must list them in the caption and include a factual basis against each which entitles
[them] to relief.” Prunty v. Arnold & Itkin LLP, No. 2:17-cv-506-FtM-99CM, 2017 WL
5971681, at *3 (M.D. Fla. Dec. 1, 2017); see also Doe v. Frank, 951 F.2d 320, 323
(11th Cir. 1992) (per curiam) (“This rule serves more than administrative convenience.
It protects the public’s legitimate interest in knowing all of the facts involved, including
the identities of the parties.”); Blasingim v. Hill, No. 1:08-CV-2117, 2008 WL
11320088, at *2 (N.D. Ga. Sept. 8, 2008) (collecting cases). Therefore, the Court will
ignore the allegations regarding Sarah Oats and James Mandolfo.
11
The SAC describes John Doe Officer 1 as “a middle-aged white male.” (Doc. 37, ¶
116.i). John Doe Officer 2 is described as “a male detective.” (Id. ¶ 116.ii). John Doe
Officer 3 is described as a “tall medium white Orlando Police Department Officer.” (Id.
¶ 116.iii). “Orlando Police Officer Doe 4” is described as “one of the officers at the
hospital.” (Id.). John Doe Officer 5 is described as “a female police officer of the
Orlando Police Department who wore a dark uniform.” (Id. ¶ 116.iv.). The SAC
mentions, but does not describe, “John Doe FBI Agents” who interrogated Plaintiff
Nelson Rodriguez. (Id. ¶ 116.v). John Doe Officer 6 is described as “the police officer
in charge.” (Id. ¶ 116.vi). John Doe Officer 7 is described as “a male of Asian descent.”
(Id. ¶ 116.vii). Subparagraph 116.viii mentions, but does not describe, John Doe FBI
Agent 1 who detained Plaintiff Cory Richards. (Id. ¶ 116.viii). John Doe Officer 8 is
described “as a built black male Orlando Police Officer.” (Id. ¶ 116.ix). John Doe
Officer 9 is described “as a blonde short[-]haired female officer.” (Id.). Subparagraph
21
the SAC fails to describe a single Doe Defendant so specifically that use of their name
would “be, at the very worst, surplusage.” See Richardson, 598 F.3d at 738. Identifying
Doe Defendants “simply by a title held by numerous other individuals . . . fails to provide
the specificity required to avoid the fictitious-party pleading rule.” Isles v. Doe, 3:18–cv–
632, 2018 WL 2317969, at *2 (M.D. Fla. May 22, 2018).
What’s more, “[a] fictitious name . . . , when the real defendant cannot be readily
identified for service, is insufficient to sustain a cause of action.” Williams v. DeKalb Cty.
Jail, 638 F. App’x 976, 976–77 (11th Cir. 2016). 12 None of the Doe Defendants named in
the SAC are described with adequate specificity to allow service of process. All that is
known of the most-specifically-described Doe Defendant is his or her employer and
general physical description. Most lack even these paltry details. Such descriptions are
obviously inadequate to allow for service. Therefore, Counts II and III are due to be
dismissed as against the John Doe Defendants. Cf. Dean v. Barber, 951 F.2d 1210, 1215
(11th Cir. 1992) (approving claim against fictitious defendant described as Chief of
Alabama jail, where such “description was sufficiently clear to allow service of process on
the ‘Chief’”).
116.ix mentions a third officer without attributing this officer “John Doe” status: Plaintiff
Jordan Bothelo “was interrogated by a female, whom Plaintiff believes was a detective
and of Spanish descent.” (Id.). John Doe Officers 10 and 11 are mentioned but not
described. (Id. ¶¶ 116.x–xi). John Doe Officer 12 is described “as [a] whi[t]e male
officer with black hair.” (Id. ¶ 116.xii). John Doe Officer 13 is described as a “female
white officer about 5 feet 10 – 11 inches in height.” (Id. ¶ 120.i). John Doe Officer 14
is mentioned but not described. (Id. ¶ 120.ii). John Doe Officer 15 is described only as
“an FBI Agent.” (Id. ¶ 120.iii).
12
“Unpublished opinions are not controlling authority and are persuasive only insofar as
their legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340,
1345 (11th Cir. 2007).
22
The conclusion that Plaintiffs’ fictitious-defendant pleading warrants dismissal is
bolstered by Eleventh Circuit caselaw, which has drawn fine distinctions in this area. “It
is important to distinguish suing fictitious parties from real parties sued under a fictitious
name. There may be times when, for one reason or another, the plaintiff is unwilling or
unable to use a party's real name.” Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992).
The likelihood that pleading Doe defendants will be permissible increases where the
plaintiff is pro se 13 and “where allegations in the complaint make clear the plaintiff could
uncover the names through discovery.” Bowens v. Superintendent of Miami S. Beach
Police Dep’t, 557 F. App’x 857, 862 (11th Cir. 2014). These principles, however, have not
been applied in this Circuit to sanction the use of fictitious-defendant pleading by
counseled plaintiffs against a group of defendants described as vaguely as the Doe
Defendants named in the SAC. See Moulds v. Bullard, 345 F. App’x 387, 390 (11th Cir.
2009) (per curiam) (affirming dismissal of claims against group of John Doe officers, some
of whom the complaint “completely failed to describe,” others the complaint described
generally, “such as by indicating the duty stations to which they were assigned”). For
these reasons, the claims against Doe Defendants are due to be dismissed.
2.
Plaintiffs Do Not Qualify for the Limited-Discovery Exception
Plaintiffs seek to invoke an exception that the Court finds inapplicable. Plaintiffs
argue that an exception to the fictitious-party rule allows fictitious-defendant pleading “if
a plaintiff uses the discovery process to determine the identity of the defendants whose
conduct has been described in the complaint.” (Doc. 55, p. 10 (citing Wright & Miller, 5A
13
District courts are required to give pro se plaintiffs additional leeway in pleading. Alba
v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
23
Federal Practice & Procedure, § 1321 (3d ed.))). To that end, Plaintiffs say fictitiousdefendant pleading is appropriate where “a) the fictitious party is a real person whose
identity is unknown, b) plaintiff contemporaneously seeks to ascertain the identity of the
fictitious party through limited discovery, and c) the court finds that such proposed
discovery is narrowly tailored and is likely to lead to identification of the fictitious party.”
(Id. (quoting Quad Int’l, Inc. v. Doe, No. 12–674–N, 2013 WL 718448, at *3 (S.D. Ala. Jan.
7, 2013))).
Plaintiffs fail to establish that the exception applies for several reasons. First,
Plaintiffs have not contemporaneously sought to identify the fictitious party “through
limited discovery.” See Quad Int’l, 2013 WL 718448, at *3. In the August Hearing, Plaintiffs
did not request limited discovery to ascertain the identities of the Doe Defendants. (Doc.
35). Instead, they maintained that the First Amended Complaint’s fictitious-defendant
pleading was appropriate (Id. at pp. 11–12), and that the Doe Defendants’ identities would
be revealed in the normal course of discovery. (Id. at p. 15). Moreover, Plaintiffs for the
first (and only) time mention the limited-discovery exception in their response to
Defendants’ dismissal motion—and nowhere in that filing do they request limited
discovery targeted at identifying the Doe Defendants. (Doc. 55). Conversely, Plaintiffs
joined with Defendants in moving to stay discovery until Defendants’ dismissal motion is
resolved. (Doc. 51). Because Plaintiffs did not “contemporaneously seek[] to ascertain
the identity of the fictitious party through limited discovery,” they have failed to establish
eligibility for the limited-discovery exception. See Quad Int’l, 2013 WL 718448, at *3.
Second, the fact that two Defendants are named in the SAC—Officer Gruler and
the City of Orlando—precludes application of the exception. In Quad Int’l, the court limited
24
the scope of the exception to situations where “plaintiff knows of no party defendant which
could be named and thus cannot otherwise bring suit.” Id. 14 Plaintiffs did not discuss this
requirement in the briefing, but it nonetheless renders the exception inapplicable to this
case, as the SAC names other defendants. See id.; (Doc. 55). 15 Finally, Plaintiffs fail to
establish the exception’s third prong—that limited “discovery is narrowly tailored and is
likely to lead to identification of the fictitious party.” 16 See Quad Int’l, 2013 WL 718448, at
*3. For these alternative reasons, the exception does not apply.
In sum, fictitious-party pleading “wreaks havoc on a defendant’s ability to respond.”
(Doc. 35, p. 23). The SAC’s failure to identify the Doe Defendants with substantial
14
See also id. (“[T]he court makes no determination of the propriety of this procedure
where plaintiff knows the identity of other defendants against whom discovery may
proceed in the usual course of litigation, and where presently-unidentified defendants
may be added by amendment once such discovery leads to identification of the Doe
defendants.”).
15
In a similar vein, the Court stated at the August Hearing: “It's possible in this sort of
case to file suit on the facts that you know, conduct discovery, and then file a separate
suit as opposed to picking [thirty] John Does and hoping to fill it in later.” (Doc. 35, p.
13). Despite this warning, Plaintiffs later filed the SAC, naming a large group of
vaguely-described John Doe Defendants. (Doc. 37).
16
In the August Hearing, Plaintiff’s counsel stated: “I'm assuming that there's some sort
of report somewhere, some sort of statement that was written where, when an officer
took a statement from a person, he wrote down his own name and then he wrote down
the plaintiff's name or the interviewee's name.” (Doc. 35, p. 15). Plaintiffs likewise note
in their brief that they “could reasonably identify Defendants who were assigned to
work during the Pulse incident.” (Doc. 55, p. 10). These unsubstantiated
assumptions—that Plaintiffs could quickly and easily ascertain the identities of the
thirteen Doe Defendants who allegedly violated Plaintiffs’ rights—do not support the
conclusion that limited discovery would identify the Doe Defendants. Cf. Dean, 951
F.2d at 1215 (concluding that discovery would reveal the Doe defendant’s identity
where named defendants were due to submit a Special Report identifying the Doe
defendant).
25
specificity—and
Plaintiffs’
failure
to
meet
the
limited-discovery
exception’s
requirements—requires dismissal of Counts II and III as against the Doe Defendants.
D.
Count IV Against City of Orlando
Last, the Court turns to Count IV, which alleges a Monell claim against Defendant
City of Orlando for its failure to adequately train Officer Gruler and the Doe Defendants
“in how to provide adequate security in public places that are highly susceptible to danger,
and how to enter and neutralize an active shooter.” (Doc. 37, pp. 26–30). Defendants
move to dismiss Count IV on two grounds: (i) Count IV lacks an underlying constitutional
violation; and (ii) Count IV fails to state a plausible claim. (Doc. 49, pp. 21–25). The Court
agrees that dismissal is warranted on either ground.
First, Count IV fails because of the absence of an underlying constitutional
violation. Indeed, a Monell claim is derivative of—and thus requires—an underlying
constitutional violation. City of L.A. v. Heller, 475 U.S. 796, 799 (1986). As the Court
concluded supra, the SAC fails to allege underlying constitutional violations by Defendant
City of Orlando’s officers. Count IV thus does not state a claim. See Knight ex rel. Kerr v.
Miami–Dade Cty., 856 F.3d 795, 821 (11th Cir. 2017) (“There can be no policy-based
liability or supervisory liability when there is no underlying constitutional violation.”). But
even if the SAC alleged an underlying constitutional violation, it fails to allege a custom
or policy supporting Monell liability.
A plaintiff suing a municipality can recover under § 1983 if “action pursuant to
official municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at
691. Official municipal policy includes governmental leaders’ decisions, as well as
“practices so persistent and widespread as to practically have the force of law. These are
26
actions for which the municipality is actually responsible.” Connick v. Thompson, 563 U.S.
51, 61 (2011) (citation and quotation marks omitted). To support a Monell claim, the
official policy must be the “moving force behind the constitutional violation.” Harris, 489
U.S. 378, 389 (1989) (alteration accepted).
Under certain circumstances, a local government may incur liability for failing to
train its employees about their obligation to avoid violating citizens’ rights. Connick, 563
U.S. at 61. Such a claim is only available where “a municipality's failure to train its
employees in a relevant respect . . . amount[s] to ‘deliberate indifference to the rights of
persons with whom the untrained employees come into contact.’” Id. (alteration accepted)
(quoting Canton, 489 U.S. at 388). Generally, “a pattern of similar constitutional violations
by untrained employees” is necessary to establish the requisite deliberate indifferenc e.
Id. at 62. However, there is a second path to failure-to-train liability: the “single-incident”
theory, which Plaintiffs rely upon here. Id. at 63–64; (Doc. 37, ¶ 122; Doc. 55, p. 12).
The single-incident theory was first mentioned in Canton. There, the Supreme
Court hypothesized that a municipality could incur liability for failing to train its employees
based on a single constitutional violation where, because of the employees’ duties, the
need for training is “so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” Canton, 489 U.S. at 390. The Court illustrated with
the following example:
[C]ity policymakers know to a moral certainty that their police officers will be
required to arrest fleeing felons. The city has armed its officers with
firearms, in part to allow them to accomplish this task. Thus, the need to
train officers in the constitutional limitations on the use of deadly force can
be said to be “so obvious,” that failure to do so could properly be
characterized as “deliberate indifference” to constitutional rights.
27
Id. at 390 n.10 (citation omitted).
The theory was put to the test in Connick. John Thompson was convicted of
attempted robbery after Orleans Parish District Attorneys failed to disclose to the defense
exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963). Connick,
563 U.S. at 54. Because of this conviction, Thompson did not testify when he went to trial
for murder, and he was again convicted. Id. After spending eighteen years in prison, the
Brady evidence was discovered and both convictions were vacated. Id. Thompson was
retried and acquitted. Id. at 56. Thompson sued the attorney’s office for its policy of failing
to adequately train its prosecutors on their Brady obligations. Id. at 57. The Supreme
Court found that the attorney’s office was not liable under the single-incident theory,
holding “[t]he obvious need for specific legal training that was present in the Canton
scenario is absent here.” Id. at 64.
Like Connick, Count IV fails because Plaintiffs did not plausibly allege that the City
of Orlando’s failure to train officers on “security in public places that are highly susceptible
to danger, and how to enter and neutralize an active shooter,” (Doc. 37, ¶ 121), fits within
the “narrow range of Canton's hypothesized single-incident liability.” See Connick, 563
U.S. at 64. As discussed more thoroughly above, Plaintiffs have not plausibly alleged that
nightclubs are at such great risk of attack that a municipality’s failure to train its police
officers on how to respond and even “neutralize an active shooter” amounts to deliberate
indifference. The incredibly specific training envisioned by Plaintiffs on responding to and
neutralizing a hypothetical active shooter without violating anyone’s constitutional rights
bears no resemblance to the use-of-deadly-force training envisioned in Canton. Though
municipalities would be wise to train their police officers on responding to active shooters,
28
failure to provide such training does not amount to a constitutional tort. See Gaviria v.
Guerra, No. 17-23490, 2018 WL 1876124, at *7 (S.D. Fla. Apr. 19, 2018) (“Neither the
Supreme Court nor the Eleventh Circuit has ever applied the single-incident liability
exception.”). Count IV thus does not state a plausible claim.
E.
Leave to Amend
Plaintiffs are not entitled leave to amend. District courts must sua sponte grant
leave to amend after dismissing a plaintiff’s pleading the first time. Vibe Micro, Inc. v.
Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). The Court allowed amendment after
dismissing the Amended Complaint on August 1, 2018, and need not do so again. (Doc.
34). Moreover, each claim fell well short of the plausibility threshold, thus the Court finds
that amendment would be futile. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th
Cir. 2005) (stating a district court need not allow amendment where amendment would
be futile). The SAC is thus due to be dismissed with prejudice.
IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendants’ Dispositive
Motion to Dismiss (Doc. 49) is GRANTED. The Second Amended Complaint (Doc. 37) is
DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to close the file.
DONE AND ORDERED in Orlando, Florida on November 14, 2018.
Copies furnished to:
Counsel of Record
29
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