Merricks v. Adkisson et al
Filing
20
ORDER denying Motion to Dismiss re 18 Answer to amended complaint and Motion to Dismiss filed by Jeffery Adkisson, City of Clearwater. Signed by Judge Elizabeth A. Kovachevich on 7/10/2013. (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SARITA MERRICKS
Plaintiff,
CASE NO. 8:12-CV-1805-T-17AEP
v.
JEFFERY ADKISSON,
etc., et al.,
Defendants.
ORDER
This cause is before the Court on:
Dkt. 18
Motion to Dismiss Count
Dkt. 19
Response in Opposition
This case includes Plaintiff's claim of excessive force and unlawful or offensive
touching by Defendant Adkisson. Plaintiffs Amended Complaint (Dkt. 17) includes:
Count I
42 U.S.C. Sec. 1983
Jeffery Adkisson
Count
State Claim of Battery
Jeffery Adkisson,
Individually
Count III
State Claim for Battery
City of Clearwater
Vicarious Liability
Standard of Review
"Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short
and plain statement of the claim showing that the pleader is entitled to relief." "[Djetailed
factual allegations" are not required, Bell Atlantic v. Twombly. 550 U.S. 544, 555 (2007),
Case No. 8:12-CV-1805-T-17AEP
but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to
relief that is plausible on its face," kL at 570. A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. IcL at 556. Two working principles
underlie Twombly. First, the tenet that a court must accept a complaint's allegations as
true is inapplicable to threadbare recitals of a cause of action's elements, supported by
mere conclusory statements. kL at 555. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense. kL at 556. A court considering a motion to dismiss
may begin by identifying allegations that, because they are mere conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the complaint's
framework, they must be supported by factual allegations. When there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v.
Iqbal. 129 S.Ct. 1937, 1955-1956 (2009)(quoting Bell Atlantic v. Twombly. 550 U.S. 544
(2007).
II. Discussion
Defendant Adkisson moves to dismiss Count II
for failure to state a claim
under Rule 12(b)(6). Defendant Adkisson argues that Plaintiff has not alleged that
Defendant Adkisson acted in bad faith, with malicious intent, or in a manner exhibiting
wanton and willful disregard of human rights, safety or property. Defendant relies on
Sec. 768.28(9)(a), Florida Statutes:
No officer, employee, or agent of the state or any of its subdivisions shal
be held personally liable in tort or named as a party defendant in any
action for any injury or damage suffered as a result of any act, event, or
omission of action in the scope of his employment or function, unless
Case No. 8:12-CV-1805-T-17AEP
such officer, employee, or agent acted in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard of human
rights, safety or property.
Plaintiff Merricks responds that Plaintiffs factual allegations are sufficient to raise
Plaintiff's right to relief above the speculative level, when the factual allegations are
taken as true.
The Court notes the factual allegations of Plaintiff's Amended Complaint. The
Court is not required to accept legal conclusions, e.g. "Corporal Adkisson did not have
probable cause to believe Ms. Merricks had committed a crime" as true. The Court
understands that Defendant Adkisson initiated a traffic stop, that Plaintiff provided her
license and registration, which were held by Defendant Adkisson, that during the traffic
stop Defendant Adkisson continued to question Plaintiff, and requested consent to
search Plaintiff's vehicle. Plaintiff declined to permit Defendant Adkisson to search the
vehicle; Defendant Adkisson insisted upon searching the vehicle, and, without consent,
reached into the vehicle, pushed the unlock buttons, opened the front door, and turned
the vehicle key to the off position. Plaintiff refused to allow Defendant Adkisson to
"disengage her vehicle." Defendant Adkisson then tried to pull Plaintiff out of the
vehicle, but Plaintiff's seat belt was still on; after disengaging the seat belt, Defendant
Adkisson pulled Plaintiff out of the vehicle.
In Par. 33 of the Amended Complaint, Plaintiff alleges:
33. Corporal Adkisson's actions of intentionally, recklessly, and
offensively reaching into the car and grabbing Ms. Merricks by the wrist
and subsequently dragging her to the ground against her will when she
was compliant, unarmed, and had not having committed any crimes (sic)
was done with malicious intent. As such, Corporal Adkisson should be
held liable for damages to Ms. Merricks in his individual capacity.
Case No. 8:12-CV-1805-T-17AEP
It is unclear to the Court what Plaintiff's refusal to allow Defendant Adkisson to
"disengage her vehicle" entailed; nevertheless, after consideration, the Court finds that
Plaintiff has alleged sufficient facts, construed in the light most favorable to Plaintiff, to
state a claim for battery.
The Court understands that Counts II and III are pled in the alternative. Either
Defendant's Adkisson's actions which caused injury to Plaintiff were done with
malicious intent, such that Defendant Adkisson may be personally liable for Plaintiff's
injuries, or Defendant Adkisson's actions which caused injury to Plaintiff were done
within the scope of Defendant Adkisson's employment, for which Defendant Adkisson's
employer, City of Clearwater, may be vicariously liable.
After consideration, the Court denies the Motion to Dismiss. Accordingly, it is
ORDERED that Defendant Adkisson's Motion to Dismiss Count II (Dkt. 18) is
denied.
DONE and ORDERED in Chambers, in Tampa, Florida on this 10th day of July,
2013.
Copies to:
All parties and counsel of record
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