Kirkland et al v. Mosaic Fertilizer, LLC et al
Filing
71
ORDER granting in part and denying in part 49 motion to dismiss; granting in part and denying in part 51 motion to dismiss; granting in part and denying in part 65 motion to dismiss or, in the alternative, motion for summary judgment. Signed by Judge Susan C Bucklew on 4/29/2015. (KTW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIAM KIRKLAND and STANLEY
KIRKLAND,
Plaintiffs,
v.
Case No: 8:14-cv-1715-T-24TGW
MOSAIC FERTILIZER, LLC, ARNOLD
LANIER, ANDREW MCGUCKIN, JAMIE
WRIGHT, MICHAEL LAKE and
THOMAS ABBOTT,
Defendants.
ORDER
This cause comes before the Court on three motions: (1) Defendant Mosaic Fertilizer,
LLC’s Motion to Dismiss (Dkt. 51), (2) Defendant Arnold Lanier’s Motion to Dismiss (Dkt. 49),
and (3) Defendant Thomas Abbott’s Amended Dispositive Motion to Dismiss Counts I & III of
the First Amended Complaint or, in the Alternative, Motion for Summary Judgment (Dkt. 65).
Plaintiffs oppose these motions. (Dkts. 58, 61, and 68).
I.
BACKGROUND
On July 15, 2014, Plaintiffs William and Stanley Kirkland filed a complaint against
Defendants Mosaic Fertilizer, LLC (“Mosaic”), Arnold Lanier, in his official capacity as Sheriff
of Hardee County, Florida, Andrew McGuckin, as agent for Mosaic and in his individual capacity,
and Jamie Wright, Michael Lake, and Thomas Abbott in their individual capacities. Plaintiffs filed
an amended complaint on December 30, 2014, which includes three counts brought pursuant to 42
U.S.C. § 1983: unlawful arrest as to both Plaintiffs against all Defendants (Count I), excessive
force as to Plaintiff William Kirkland (“W. Kirkland”) against Mosaic, Lanier, and McGuckin
(Count II), and excessive force as to Plaintiff Stanley Kirkland (“S. Kirkland”) against all
Defendants (Count III).
The amended complaint alleges that W. Kirkland lives near a phosphate mine owned by
Mosaic. In December 2006, Plaintiffs allege that Mosaic “entered into a contract” with the Hardee
County Sheriff’s Office (“HCSO”) in which HCSO agreed to provide off-duty uniformed deputies
to patrol Mosaic’s property. (Dkt. 48, ¶ 11). Plaintiffs assert the primary focus of the contract was
to “keep members of the public away” from the Mosaic mine. Id. Because of environmental
concerns, W. Kirkland allegedly had been instrumental in a lawsuit brought by the Sierra Club
against Mosaic, in which a temporary restraining order was entered enjoining Mosaic from
excavating, dredging, filling or altering waters near its South Fort Meade Extension site. (See Dkt.
48-2). Plaintiffs allege that Mosaic wanted to keep the public from seeing Mosaic’s violations of
the temporary restraining order.
On July 16, 2010, Plaintiffs allege W. Kirkland stopped his car on the side of a public road
in Hardee County where he could observe the Mosaic site and take photographs of what he
believed to be activity in violation of the temporary restraining order. He left the location, but
returned later in the evening, and was joined by S. Kirkland, in order to find glasses that he left on
the side of the road. While Plaintiffs were at the roadside, Defendant McGuckin, an off-duty HCSO
deputy, was patrolling Mosaic’s boundaries to keep the public away, pursuant to Mosaic’s and
HCSO’s instructions.1 McGuckin approached Plaintiffs on the roadside and stated “Mosaic [does]
not permit anyone in the area and [they] had to leave” and “Mosaic wants you out of here.” (Dkt
48, ¶ 16). In response, Plaintiffs left the roadside and drove to a nearby location in Polk County,
1
Plaintiffs assert that at all relevant times, McGuckin was acting as the agent of Mosaic and HCSO.
2
on County Line Road where they pulled onto the shoulder of the road and conversed with each
other.
While Plaintiffs were at the County Line Road location, McGuckin approached Plaintiffs
and inquired why W. Kirkland had stopped after being told to leave the area. W. Kirkland became
visibly upset and McGuckin called for back-up. McGuckin requested W. Kirkland’s driver’s
license, which W. Kirkland provided. McGuckin then asked Plaintiffs to leave. W. Kirkland
responded that he could not leave without his driver’s license. S. Kirkland advised McGuckin that
W. Kirkland was in pain due to a recent back surgery. During Plaintiffs’ and McGuckin’s
confrontation, Defendants Wright,2 Abbott3, and Lake4 arrived at the scene. Thereafter, McGuckin
arrested W. Kirkland, placing W. Kirkland’s hands behind his back and handcuffing him.
McGuckin’s actions in handcuffing W. Kirkland allegedly caused W. Kirkland pain due to his
recent surgery. While W. Kirkland was being arrested, S. Kirkland verbally demanded his father
be released, after which, Wright placed S. Kirkland under arrest for obstructing a law enforcement
officer from fulfilling his duties. Plaintiffs allege Abbott and Lake assisted with Plaintiffs’ arrests.
After S. Kirkland was placed under arrest, Wright deployed his taser on S. Kirkland two or three
times, aggravating a lung disability and causing S. Kirkland to defecate. Plaintiffs were transported
to jail, with S. Kirkland riding in Abbott’s patrol car. Abbott allegedly drove S. Kirkland to a
hospital, but returned to the jail without S. Kirkland receiving any treatment from the hospital.
Plaintiffs were detained at the jail until they posted bond and were released.
2
Wright was employed as a police officer for Wachula Police Department, Hardee County, Florida at all times
material hereto.
3
Abbott was employed as a police officer for of the city of Bowling Green, Hardee County, Florida at all times
material hereto.
4
Lake was employed as a deputy sheriff for Hardee County, Florida at all times material hereto.
3
Plaintiffs claim that Defendants’ actions constituted unlawful arrests and excessive use of
force, and that they are entitled to relief pursuant to 42 U.S.C. § 1983. Defendants Mosaic, Lanier,
and Abbott now move to dismiss.5
II.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to
state a claim upon which relief can be granted. When reviewing a Rule 12(b)(6) motion to dismiss,
a court must accept all factual allegations contained in the complaint as true, and view the facts in
a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However,
unlike factual allegations, conclusions in a pleading “are not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). On the contrary, legal conclusions “must be
supported by factual allegations.” Id. Indeed, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta
Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
In Counts I-III of the amended complaint, Plaintiffs allege that Defendants violated the
Civil Rights Act of 1871, 42 U.S.C. § 1983. Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of
the United States ... to a deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress ....
42 U.S.C. § 1983. To state a cause of action under section 1983, a plaintiff must allege: “(1) that
he was deprived of rights, privileges or immunities secured by the Constitution or laws of the
United States; and (2) that the conduct complained of was committed by a person acting under
5
Alternatively, Defendant Abbott has moved for summary judgment.
4
color of state law.” Ridley v. Stewart, No. 3:07–cv–1173–J–16JRK, 2008 WL 876960, at *3 (M.D.
Fla. March 27, 2008) (citing Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992)).
III.
MOSAIC’S MOTION TO DISMISS
Mosaic argues that Plaintiffs cannot state a claim against it pursuant to § 1983 because
Mosaic cannot be held vicariously liable for the actions of its alleged agent, McGuckin, and
because it did not act under color of state law. Plaintiffs in response assert that Mosaic acted under
color of state law because: (a) Mosaic is vicariously liable for the actions of McGuckin, who was
acting as the agent of Mosaic at the time of the alleged unlawful arrest; and (b) Mosaic’s
relationship with HCSO reflects sufficient joint action with the state to sustain a § 1983 claim.
A.
Vicarious Liability Under § 1983
Mosaic argues that it cannot be held vicariously liable for any alleged violations of
Plaintiffs’ civil rights by its agents because it is merely a private entity that engaged an off-duty
police officer to provide security. In response, Plaintiffs argue the McGuckin was acting as an
agent for Mosaic and acting at the direction of Mosaic to keep Plaintiffs away from Mosaic’s
property.
“A defendant cannot be held liable under section 1983 on a respondeat superior or
vicarious liability basis.” Harvey, 949 F.2d at 1130 (11th Cir.1992) (citing Monell v. Department
of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). This rule applies to both
municipal and private corporations. Harvey, 949 F.2d at 1130. “Therefore, supervisors, employers,
and private contractors cannot be sued under § 1983 simply on a theory of respondeat superior.”
Jones v. Eckloff, No. 2:12-CV-375-FTM-29, 2014 WL 272666, at *6 (M.D. Fla. Jan. 23, 2014)
(citations omitted).
5
However, a corporation may be held liable for the unconstitutional acts of employees where
there is a policy, custom, or action by those who represent official policy which causes the injury.
Edwards v. Acadia Realty Trust, Inc., 141 F. Supp. 2d 1340, 1347-48 (M.D. Fla. 2001) aff’d sub
nom. Edwards v. Acadia Realty Trust, 31 F. App’x 936 (11th Cir. 2002) (citations omitted). The
plaintiff must demonstrate that the entity was the “moving force” behind the injury, demonstrating
both culpability and causation through the entity’s policies. See Rey, 1998 WL 656070, at *4
(citing Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 117 S. Ct. 1382,
1388, 137 L.Ed.2d 626 (1997)).
B.
Nexus/Joint Action of Mosaic and HCSO
Mosaic argues Plaintiffs have not established a sufficient nexus to show that Mosaic acted
jointly with McGuckin, thereby qualifying Mosaic as a state actor. Plaintiffs in response argue that
Mosaic acted under color of state law because it acted jointly with McGuckin, who was working
for Mosaic as a result of an agent agreement between Mosaic and HCSO.
Under the nexus/joint action test, a court must consider whether the State had so far
insinuated itself into a position of interdependence with the private parties that it was a joint
participant in the enterprise. See id. at 1278 (citing Rayburn ex rel. Rayburn v. Hogue, 241 F.3d
1341, 1347 (11th Cir.2001) (alterations and internal quotation marks omitted)). To establish this
type of action under 42 U.S.C. § 1983, “the plaintiff must plead in detail, through reference to
material facts, the relationship or nature of the conspiracy between the state actor(s) and the private
persons.” Harvey, 949 F.2d at 1133 (citing Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.
1984)). Merely conclusory allegations are insufficient to establish state action through joint action.
See Harvey, 949 F.2d at 1133.
To establish that a private party is a state actor, “the governmental body and private party
6
must be intertwined in a symbiotic relationship [that] involve[s] the specific conduct of which the
plaintiff complains.” Focus on the Family, 344 F.3d at 1278 (internal quotation marks omitted);
see also Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1316 (11th Cir. 2000) (“to sustain a § 1983
claim under the nexus/joint action test, the symbiotic relationship between the public and private
entities must involve the alleged constitutional violation.”) Private parties are only rarely deemed
to be state actors under § 1983. Brivik v. Law, 545 F. App’x 804, 808 (11th Cir. 2013). “[E]ach
case must be analyzed on its own facts to determine whether the interdependence between the
private and state entities reflects sufficient state involvement to sustain a § 1983 claim.” Patrick,
201 F.3d at 1315.
C.
Mosaic’s Motion to Dismiss
Plaintiffs allege in their First Amended Complaint that Mosaic and HCSO entered into a
contract that provided Mosaic would directly pay HSCO for deputies to patrol the Mosaic property
during off-duty hours, with the “primary focus to keep members of the public away from the
Mosaic Hardee County phosphate mine.” (Dkt 48., ¶ 11). The amended complaint also alleges that
at all material times, McGuckin was acting pursuant to instructions from Mosaic and Sheriff
Lanier, to “patrol the boundaries of Mosaic to keep the public away from seeing Mosaic violate
the federal court order.” Id. at ¶ 15. In support of their claims, Plaintiffs attach an “Agent
Agreement,” which they allege to be evidence of a contract between Mosaic and HCSO. The
“Agent Agreement” states in relevant part:
Mosaic Company, being fully aware of our legal and constitutional property rights,
do individually and collectively appoint the Sheriff of Hardee County and his
deputies as our agents for the following purposes: (1) To have free access to each
of our properties in order to seek out and arrest those who may be trespassing
thereon, or otherwise engaged in illegal activities; AND (2) To perform such duties
on our property as they may be directed to do in their capacity as Deputy Sheriff.
(Dkt. 48-1).
7
Plaintiffs further allege McGuckin stated to Plaintiff W. Kirkland “Mosaic did not permit
anyone in the area” and “Mosaic wants you out of here.” (Dkt 48, ¶ 16). According to Plaintiffs’
allegations, McGuckin’s decision to order Plaintiffs to move from the roadside upon their initial
encounter was “not pursuant to Florida law, but to the orders of Mosaic….” Id. at ¶ 20. Plaintiffs
also allege they were transported to jail “to ensure the goal of Mosaic to keep the public away from
its mining operations.” (Dkt. 58, p. 3, 8).
1.
Count I: Unlawful Arrest with Respect to W. Kirkland
The Court finds that Plaintiffs’ allegations are sufficient to preclude Mosaic’s motion to
dismiss as to W. Kirkland’s unlawful arrest claim on the bases of vicarious liability and joint
action.
With regard to vicarious liability, Plaintiffs allege Mosaic and HSCO agreed that HSCO
would provide off-duty deputies to enforce Mosaic’s plan to keep the public, and specifically, W.
Kirkland away from Mosaic property. Plaintiffs allege that McGuckin’s arrest of W. Kirkland was
made in furtherance of Mosaic’s plan and based on Mosaic and HSCO’s instructions, rather than
any violation of Florida law. These allegations establish a causal link between Mosaic’s policy and
its agent, McGuckin’s arrest of W. Kirkland. Plaintiffs also allege W. Kirkland’s arrest was
unlawful due to lack of probable cause. Therefore, the Court concludes that Plaintiffs have
adequately pleaded that W. Kirkland’s unlawful arrest was caused by Mosaic’s policy of keeping
the public away from its property.
Plaintiffs’ allegations also preclude dismissal of W. Kirkland’s claim for unlawful arrest
based on the nexus/joint action test. As discussed above, Plaintiffs allege Mosaic and HSCO were
intertwined in a relationship in which Mosaic paid HSCO to provide off-duty deputies to carry out
Mosaic’s policy of keeping the public away from its property. Because Plaintiffs have also alleged
8
that the arrangement between Mosaic and HSCO resulted in McGuckin’s arrest of W. Kirkland,
Plaintiffs’ claim for W. Kirkland’s unlawful arrest is sufficient to survive Mosaic’s motion to
dismiss. Accordingly, Mosaic’s motion to dismiss must denied as to Count I of the amended
complaint, with respect to W. Kirkland’s arrest.
2.
Count I: Unlawful Arrest with Respect to S. Kirkland
With regard to S. Kirkland’s claim for unlawful arrest, Plaintiffs allege that Defendant
Wright placed S. Kirkland under arrest and that Defendant Lake handcuffed S. Kirkland. Plaintiffs
allege that Wright was employed as a police officer for Wachula Police Department at the time of
the arrest. Plaintiffs do not allege that Wright was an employee or agent of Mosaic, thus Mosaic
cannot be vicariously liable for Wright’s actions on the basis of respondeat superior. See Ramsey
v. Gamber, 469 F. App’x 737, 741 (11th Cir. 2012) (holding that a party relying on the doctrine of
respondeat superior has the burden of proving the principal-agent relationship). Plaintiffs also fail
to allege any relationship between the Wachula Police Department and Mosaic, therefore,
Plaintiffs fail to state a claim against Mosaic on the basis of joint action with the state with regard
to Wright. See Focus on the Family, 344 F.3d at 1278.
With regard to Defendant Lake, whom Plaintiffs allege was employed as a deputy sheriff
for Hardee County, Plaintiffs merely allege that he assisted S. Kirkland’s arrest and that he “knew
or should have known that no arrest was authorized under the law.” (Dkt. 48, ¶ 33). However, the
amended complaint also contains factual allegations that S. Kirkland was demanding W.
Kirkland’s release at the time S. Kirkland was arrested for “obstructing a law enforcement officer
from fulfilling his duties.” (Dkt. 48, ¶ 23). Taken together, these allegations create ambiguity as to
the motivation behind Lake’s actions. Additionally, Plaintiffs have not alleged that Lake was
acting pursuant to any instructions from Mosaic. As such, Plaintiffs have not alleged sufficient
9
facts to show that Mosaic’s policy was the moving force behind Lake’s actions. See Rey, 1998 WL
656070, at *4. Therefore, Plaintiffs have failed to state a cause of action against Mosaic for the
unlawful arrest of S. Kirkland on the basis of Lake’s actions. Accordingly, Mosaic’s motion to
dismiss must be granted as to Count I with regard to S. Kirkland’s unlawful arrest claim.
3.
Counts II and III: Excessive Force
With regard to Plaintiffs’ claims for excessive force, Plaintiffs have made no allegations
that Mosaic had a policy that encouraged the use of excessive force by its agents. Similarly,
Plaintiffs do not allege that the memorandum of understanding between Mosaic and the HCSO
provided for the use of excessive force. The “Agent Agreement” Plaintiffs submit as evidence of
an agreement between Mosaic and HCSO does not mention the use of excessive force and restricts
the actions of agents to those that they “may be directed to do in their capacity as a Deputy Sheriff.”
(Dkt. 48-1). Because Plaintiffs have not established that Mosaic’s policy involved or was moving
force behind the use of excessive force by any Defendant, Plaintiffs’ claims for excessive force in
Counts II and III against Mosaic must be dismissed. See e.g. Patrick, 201 F.3d at 1316; Edwards,
31 F. App’x at 936.
IV.
SHERIFF ARNOLD LANIER’S MOTION TO DISMISS
Lanier argues that Plaintiffs have failed to state a claim against him pursuant to § 1983 on
the basis of respondeat superior or vicarious liability. Plaintiffs argue that the factual allegations
contained in the amended complaint establish the existence of a plan or conspiracy between
Mosaic, Lanier, and McGuckin, precluding dismissal. Plaintiffs also argue the lack of disciplinary
action against the deputy Defendants evinces Lanier’s policy, custom, or plan to keep the public
away from Mosaic’s property.6
6
In their response, Plaintiffs concede that no punitive damages can be assessed against Lanier in his official capacity.
See Dkt. 61, at 4. Accordingly, Plaintiffs’ requests for punitive damages with respect to Lanier shall be stricken from
10
A.
Vicarious Liability Under § 1983
It is well established in the Eleventh Circuit that “supervisory officials are not liable under
§ 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or
vicarious liability.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.1999) (internal quotation
marks and citation omitted); see also Monell, 436 U.S. at 691 & 694 n. 58. Instead, under § 1983,
supervisory liability occurs only when the supervisor personally participates in the alleged
misconduct or when there is a causal connection between the supervising official’s actions and the
alleged constitutional deprivation. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003)),
vacated on other grounds, 449 F.3d 1149 (11th Cir. 2006).
For liability purposes, “a suit against a public official in his official capacity is considered
a suit against the local government entity he represents.” See Owens v. Fulton County, 877 F.2d
947, 951 n. 5 (11th Cir.1989). A local government is, however, liable under § 1983 “when
execution of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S.
at 694 (holding that liability of municipalities and other governmental entities under § 1983 is
limited to instances of official policy or custom). To attribute liability to a public official in his
official capacity under § 1983, Plaintiffs must demonstrate that the public official had an official
policy or custom that was “the moving force of the constitutional violation.” Vineyard v. County
of Murray, Ga., 990 F.2d 1207, 1211 (11th Cir.1993) (quoting Polk County v. Dodson, 454 U.S.
312, 326, 102 S. Ct. 445, 70 L.Ed.2d 509 (1981)).
the amended complaint.
11
B.
Lanier’s Motion to Dismiss
The Court will consider Plaintiffs’ claims against Lanier in his official capacity as claims
against HCSO.7 See Owens, 877 F.2d at 951 n. 5. Plaintiffs’ allegations sufficiently plead that
Mosaic paid HSCO to provide off-duty deputies to carry out Mosaic’s plan or policy of keeping
the public away from its property. Plaintiffs argue that Lanier is liable in his official capacity
because he approved and instructed his deputies to carry out Mosaic’s plan.
1.
Count I: Unlawful Arrest with Respect to W. Kirkland
As discussed above, Plaintiffs have sufficiently plead that Mosaic had a plan or policy to
keep the public away from its property. Plaintiffs have also alleged that Mosaic agreed to pay
HSCO to provide off-duty deputies to carry out its plan, and that McGuckin8 was acting pursuant
to Mosaic and Lanier’s instructions to enforce the plan when he arrested W. Kirkland. Taking
Plaintiffs’ factual allegations as true, Lanier’s instructions to McGuckin to keep the public away
from Mosaic’s property establishes a causal connection between Lanier’s conduct and McGuckin’s
arrest of W. Kirkland. Therefore, the Court finds that Plaintiffs’ allegations adequately state a
cause of action against Lanier in his official capacity with respect to W. Kirkland’s unlawful arrest
claim.
2.
Count I: Unlawful Arrest with Respect to S. Kirkland
With regard to S. Kirkland’s arrest, Plaintiffs’ factual allegations do not establish that
Lanier’s policy was “the moving force” of the alleged constitutional violation by his agents. As an
7
The Court notes that Plaintiffs seeks punitive damages against Lanier in his official capacity. However, in their
response to Lanier’s motion to dismiss, Plaintiffs assert that they are also pursuing claims against Lanier in his
individual capacity. See Dkt. 61, at 4. However, the first amended complaint only asserts claims against Lanier in his
official capacity. Therefore, the Court will disregard Plaintiffs’ arguments against Lanier in his individual capacity.
Should Plaintiffs wish to assert claims against Lanier in his individual capacity, they must move to amend the
complaint and show cause as to why such amendment is warranted.
8
Plaintiffs allege that McGuckin was acting as an “agent for the Sheriff of Hardee County under color of law in his
capacity as a Deputy Sheriff for Hardee County.” (Dkt. 48, ¶ 5).
12
initial matter, Plaintiffs’ allege that S. Kirkland was placed under arrest by Defendant Wright. As
discussed above, Wright is not alleged to be an agent or employee of Lanier or the HSCO;
therefore, Plaintiffs have failed to state a claim against Lanier for vicarious liability based on the
actions of Wright. See Ramsey, 469 F. App’x at 741. Additionally, Plaintiffs have not alleged that
Lanier’s policy or custom was the moving force behind Wright’s arrest of S. Kirkland. Instead,
Plaintiffs allege that Wright arrested S. Kirkland for “‘rude behavior’ and ‘obstructing a law
enforcement officer from fulfilling his duties,’” “[i]n response to [S. Kirkland’s] demands to set
his father free so they all could leave.” (Dkt. 48, ¶ 23). Therefore, S. Kirkland’s claim for unlawful
arrest must be dismissed as to Lanier, with respect to the actions of Wright.
Plaintiffs also fail to state a claim against Lanier for unlawful arrest of S. Kirkland with
respect to the actions of Defendant Abbott. Plaintiffs allege that Abbott “aided” and “assisted”
Plaintiffs’ unlawful detention and that S. Kirkland was placed in Abbott’s patrol car after he was
arrested. However, Plaintiffs fail to allege that Abbott was an agent or employee of Lanier.9 Thus,
for the same reasons discussed with respect to Wright, Plaintiffs have failed to state a claim against
Lanier for unlawful arrest based on the actions of Abbott. See Ramsey, 469 F. App’x at 741.
Finally, to the extent Plaintiffs allege that Defendant Lake aided the purportedly unlawful
detention and arrest of S. Kirkland, Plaintiffs fail to show that Lake’s actions were motivated by
Lanier’s policy. With regard to Defendant Lake, Plaintiffs merely assert that Lake “aided”
Plaintiffs’ unlawful detention and handcuffed S. Kirkland after he was placed under arrest. (Dkt.
48, ¶¶ 21, 24). Unlike with McGuckin, whom Plaintiffs allege received instructions from Lanier
to carry out the alleged policy, Plaintiffs make no factual allegations that support their conclusion
9
Plaintiffs allege that “Defendant, Thomas Abbott, was…employed as a[] police officer of the city of Bowling
Green…” rather than HSCO. (Dkt. 48, ¶ 7).
13
that Lake was acting pursuant to the same policy. Without such factual allegations, Plaintiffs have
failed to state a claim against Lanier for S. Kirkland’s unlawful arrest based on the actions of Lake.
See Iqbal, 129 S. Ct. at 1950 (holding that legal conclusions must be supported by factual
allegations in order to survive a motion to dismiss). Moreover, S. Kirkland’s unlawful arrest claim
fails on the basis of Lake’s actions because Plaintiffs do not allege facts that show that Lanier’s
policy was the “moving force” behind Lake’s actions. See Vineyard, 990 F.2d at 1211. Thus,
Plaintiffs’ claim for the unlawful arrest of S. Kirkland must be dismissed with respect to Lanier.
3.
Counts II and III: Excessive Force
As with Plaintiffs’ claims of excessive force against Mosaic, Plaintiffs’ excessive force
claims must be dismissed as to Lanier because Plaintiffs have not alleged that Lanier or HSCO
had a policy that encouraged the use of excessive force by its agents. As discussed above, in order
to establish Lanier is vicariously liable under § 1983, Plaintiffs must demonstrate that Lanier had
an official policy or custom that was “the moving force” behind Defendants’ excessive force.
Plaintiffs have made no allegations that Lanier encouraged, condoned, or directed the use of
excessive force in any way. As such, Plaintiffs have failed to state a claim for vicarious liability of
Lanier for excessive force.
Plaintiffs’ response in opposition to Lanier’s motion to dismiss also contains arguments
regarding Lanier’s ratification of the use of excessive force by HSCO deputies because the deputies
were not disciplined. In order to establish Lanier’s liability by ratification, Plaintiffs must show a
“persistent failure to take disciplinary action against officers” who use excessive force, which “can
give rise to the inference that a municipality has ratified conduct, thereby establishing a ‘custom’
within the meaning of Monell.” Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th
Cir.1985). Plaintiffs have made no allegations regarding a widespread practice of excessive force
14
by HSCO. Without such allegations, Plaintiffs cannot establish Lanier deliberately ignored an
unconstitutional custom or policy; therefore, Plaintiffs have failed to state a claim on this basis.
See Griffin v. City of Opa–Locka, 261 F.3d 1295, 1308 (11th Cir.2001) (discussing § 1983 liability
for a municipality based on “governmental ‘custom’ ”). Therefore, Counts II and III must be
dismissed with respect to Lanier.
V.
ABBOTT’S MOTION TO DISMISS
Plaintiffs assert claims against Abbott in Counts I and III. Abbott moves to dismiss Counts
I and III because Plaintiffs have not alleged sufficient facts to state a claim for unlawful arrest or
excessive force against Abbott and because qualified immunity bars Plaintiffs’ claims against him.
Abbott requests the Court consider his motion to dismiss as a motion for summary judgment under
Fed. R. Civ. P. 56. He provides a sworn affidavit in support of his arguments.
To establish § 1983 liability, a plaintiff must show “proof of an affirmative causal
connection” between a government actor’s acts or omissions and the alleged constitutional
violation, which “may be established by proving that the official was personally involved in the
acts that resulted in the constitutional deprivation.” Brown v. City of Huntsville, Ala., 608 F.3d
724, 737 (11th Cir. 2010) (citing Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir.1986)). Merely
being present with the arresting officers at the scene is not enough, unless the plaintiff can show
that the defendant officer was part of the chain of command authorizing the arrest action. Brown,
608 F.3d at 737.
At all material times, Plaintiffs allege that Abbott was acting pursuant to his employment
as a police officer of the city of Bowling Green. Plaintiffs allege that upon Abbott’s arrival to the
scene of Plaintiffs’ arrests, Abbott “immediately learned…that McGuckin had no probable cause
to detain or arrest anyone as no criminal or civil traffic violation had occurred.” (Dkt. 48, ¶ 21).
15
Plaintiffs also allege that Abbott knew or should have known Plaintiffs had not violated any law,
“particularly since Plaintiffs were located on the Polk County side of the road outside of their
jurisdiction.” Id. With regard to Abbott’s actions, Plaintiffs assert Abbott “aided” and “assisted”
the unlawful detention of Plaintiffs. (Id. at ¶¶ 21, 33).
Abbott argues Plaintiffs’ claim for unlawful arrest as to W. Kirkland should be dismissed
because Plaintiffs have not alleged facts showing that Abbott participated in W. Kirkland’s arrest.
The Court agrees.
Plaintiffs’ allegations are not supported by any facts that show Abbott’s personal
involvement in W. Kirkland’s arrest. It is well established that “conclusory allegations,
unwarranted factual deductions or legal conclusions masquerading as facts will not prevent
dismissal.” Davila, 326 F.3d at 1185. Thus, Plaintiffs’ conclusory allegations that Abbott “aided”
or “assisted” W. Kirkland’s arrest, without more, are insufficient to support a claim for unlawful
arrest under § 1983. See Brown, 608 F.3d at 737. Therefore, Count I must be dismissed as to Abbott
with respect to the arrest of W. Kirkland.
Because the Supreme Court has mandated that qualified immunity issues be resolved “at
the earliest possible stage in litigation,” Hunter v. Bryant, 112 S. Ct. 534, 536 (1991), the Court
will treat Abbott’s motion to dismiss as to Count I with respect to S. Kirkland’s unlawful arrest
and Count III as a motion for summary judgment, as these Counts implicate Abbott’s argument
that he is entitled to qualified immunity and require consideration of matters outside of the
pleadings. Upon conversion of a motion to dismiss to a motion for summary judgment, notice must
be given to each party that the status of the action is now changed, and they must be given a
“reasonable opportunity” to present legal and factual material in support of or in opposition to the
motion for summary judgment.” Bischoff v. Florida, 242 F. Supp. 2d 1226, 1232 (M.D. Fla. 2003)
16
(citations and quotations omitted). Accordingly, pursuant to Fed. R. Civ. P. 56 (c), Plaintiffs shall
have an opportunity to present legal and factual material in opposition to the motion for summary
judgment as to Count I with respect to S. Kirkland’s unlawful arrest and Count III.
VI.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that:
1.
Defendant Mosaic Fertilizer, LLC’s Motion to Dismiss (Dkt. 51) is
GRANTED as to Count I with respect to the arrest of S. Kirkland, Count II, and
Count III. The motion is DENIED as to Count I with respect to the arrest of W.
Kirkland.
2.
Defendant Arnold Lanier’s Motion to Dismiss (Dkt. 49) is GRANTED as
to Count I with respect to the arrest of S. Kirkland, Count II, and Count III. The
motion is DENIED as to Count I with respect to the arrest of W. Kirkland.
Plaintiffs’ request for punitive damages with respect to Defendant Lanier are hereby
STRICKEN.
3.
Defendant Thomas Abbott’s Amended Dispositive Motion to Dismiss
Counts I & III of the First Amended Complaint or, in the Alternative, Motion for
Summary Judgment (Dkt. 65) is GRANTED as to Count I with respect to the arrest
of W. Kirkland. The Court will consider Abbott’s motion as a motion for summary
judgment with regard to Count I with respect to the arrest of S. Kirkland and Count
III excessive force as to S. Kirkland; Plaintiffs shall have until May 13, 2015 to
provide a response to include legal and factual material in opposition to Abbott’s
motion for summary judgment.
DONE AND ORDERED at Tampa, Florida, this 29th day of April, 2015.
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Copies To: Counsel of Record and Parties
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