Blossom, et al v. City of St. Petersburg, Florida et al

Filing 10

ORDER granting in part 7 Motion to Dismiss. The "John Doe Officers" and Charles Harmon are hereby dismissed with prejudice insofar as the causes of action are brought against those defendants in their official capacities. Counts II and III are dismissed without prejudice, and Plaintiffs are granted leave to amend the complaint on or before June 15, 2015. See Order for details. Signed by Judge Elizabeth A. Kovachevich on 6/3/2015. (rjm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANDRE BLOSSOM, an individual
RONNIE WYNN, an individual
Plaintiff,
v.

Case No. 8:14-CV-3099-T-17-TBM

THE CITY OF ST. PETERSBURG, a Florida municipal
corporation, and CHARLES HARMON, (as then Chief of Police
for the St. Petersburg Police Department), and JOHN DOE OFFICERS,
as officers of the St. Petersburg Police Department,
Defendants.
_____________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This matter comes before the Court pursuant to Defendants’, City of St. Petersburg, Charles
Harmon, and John Doe Officers, Motion to Dismiss, (Doc. 7), filed January 29, 2015, and
Plaintiff’s Response in Opposition, (Doc. 8), filed February 9, 2015. For the reasons that follow
below, Defendant’s Motion is GRANTED in PART.
BACKGROUND
On the evening of September 13, 2010, Andre Blossom and Ronnie Wynn (“Plaintiffs”)
were visiting a family member’s residence in St. Petersburg, Florida. (Doc. 1 at ¶12). Plaintiffs
allege, between the hours of six and seven that evening, several men kicked in the residence’s door
with guns drawn and masks over their faces ordering everyone on the ground. (Doc. 1 at ¶13). The
gunmen allegedly kicked, punched, and struck Plaintiffs in the back of the head. (Doc. 1 at ¶¶16,
26). Furthermore, Plaintiffs allege these same gunmen were later identified as “SPPD officers”1
executing a warrant. (Doc. 1 at ¶16).

1

“SPPD” is used to reference the St. Petersburg Police Department throughout Complaint.

Case No. 8:14-CV-3099-T-17-TBM
Subsequent to seizure, Mr. Blossom was released from detention and alleges an officer stated
Mr. Blossom was “at the wrong place, at the wrong time.” (Doc. 1 at ¶17). Mr. Blossom was
never arrested or formally charged for any crimes in connection with the search. (Doc. 1 at ¶18).
Additionally, Mr. Wynn, a minor at the time of the incident, was subjected to a search and seizure,
and arrested for possession of marijuana. (Doc. 1 at ¶¶25, 27). Plaintiffs allege “SPPD officers”
did not call medical personnel to examine any injuries sustained, and Plaintiffs subsequently
sought medical treatment at BayFront Medical Emergency Room. (Doc. 1 at ¶19, 28).
As it relates to the injuries, Mr. Blossom was allegedly treated for a fractured rib, a 3cm
laceration to his head that required sutures, several abrasions, and other injuries. (Doc. 1 at ¶19).
Mr. Blossom also alleges to suffer from severe insomnia, paranoia, and anxiety due to the actions
of the SPPD officers. (Doc. 1 at ¶21). Additionally, Mr. Wynn received physical therapy as a
result of the injuries. (Doc. 1 at ¶28).
Plaintiffs allege they took no action that could have been perceived as posing a threat to the
SPPD officers. (Doc. 1 at ¶¶21, 29). Moreover, the Plaintiffs allege that the use of excessive force
to execute a warrant was unconstitutional and a violation of the Fourth and Fourteenth
Amendments of the U.S. Constitution. (Doc. 1 at ¶¶22, 30). Plaintiff brings this cause of action
against Defendants for a violation of 42 U.S.C. § 1983. (Doc. 1 at ¶34). Defendants move to
dismiss the Plaintiffs Complaint pursuant to Rule 12(b)(6). (Doc. 7). Plaintiffs respond in
opposition. (Doc. 8).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a Plaintiff’s complaint must provide a
“short and plain statement of the claim showing that the pleader is entitled to relief.” A Defendant
may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) for “failure to

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Case No. 8:14-CV-3099-T-17-TBM
state a claim on which relief can be granted.” To survive a Rule 12(b)(6) motion to dismiss, a
plaintiff’s complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked by a
[Rule] 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation
to provide grounds of his [or her] entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (second
alteration in original) (citation omitted) (internal quotation marks omitted).
On a Rule 12(b)(6) motion to dismiss, a court must “accept the factual allegations in the
complaint as true and construe them in the light most favorable to the plaintiff.” Alvarez v.
Attorney Gen. for Fla., 679 F.3d 1257, 1261 (11th Cir. 2012). Courts follow a two-prong approach
when considering a motion to dismiss: “1) eliminate any allegations in the complaint that are
merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.’” Am.
Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)). If “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged,” then the claim meets
the “plausibility requirement,” but it requires “more than a sheer possibility” that the allegations
are true. Id. “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned […] accusation.” Ashcroft, 556 U.S. at 677
(quoting Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265 (1986)).

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DISCUSSION
This Court must accept the factual allegations as true and construe them in a light most
favorable to the Plaintiff. Alvarez, 679 F.3d at 1261. Construing the facts in this light, and
eliminating the legal conclusions contained in the Amended Complaint, the Plaintiffs have not
sufficiently pled factual allegations upon which relief is plausible to survive Defendant’s Motion
to Dismiss. Am. Dental Ass’n, 605 F.3d at 1290.
I. 42 U.S.C. § 1983 Excessive Force Claim.
A. The Parties
“[O]fficial capacity suits generally represent an action against an entity of which an officer
is an agent. . . .” Brandon v. Holt, 469 U.S. 464, 469 (1985) (quoting Monell v. New York,
Department of Social Services, 436 U.S. 658, 690 (1978)); Cf. Busby v. City of Orlando, 931 F.2d
764, 776 (11th Cir. 1991) (explaining when 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”). “Because suits against a municipal officer in his [or her] official capacity
and direct suits against municipalities are functionally equivalent, there no longer exists a need to
bring official-capacity actions against local government officials because local government units
can be sued directly. . . .” Busby, 931 F.2d at 776.
Here, the Plaintiff’s allegations are against the Defendants: “John Doe Officers,” Police
Chief Charles Harmon, and the City of St. Petersburg. (Doc. 1). Further, the Complaint alleges
the John Doe Officers were acting in their “official capacity” and under the direction of Police
Chief Charles Harmon and the St. Petersburg Police Department.2 (Doc. 1 at ¶35, 37). Bringing a
suit against John Doe Officers and Chief Harmon is the functional equivalent of bringing a suit

2

It is noted that the Complaint is filed against John Doe Officers of SPPD, but also references the John Doe Officers
as being affiliated with the Tampa Police Department (“TPD”) and a detective with TPD. (Doc. 1 at ¶37).

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Case No. 8:14-CV-3099-T-17-TBM
against the City of St. Petersburg because Plaintiffs allege both the John Doe Officers and Chief
Harmon were acting in their respective official capacities. Busby, 931 F.2d at 776. Additionally,
to keep the City of St. Petersburg, Chief Harmon, and the John Doe Officers as Defendants and
sued in their official capacity, would be redundant and could confuse the jury. Id. Therefore,
because Plaintiffs have alleged the “John Doe officers” and Chief Harmon were acting in their
respective official capacities, and Plaintiffs have brought functionally equivalent causes of action
against the municipality, the causes of action as they relate to the “John Doe officers” and Chief
Harmon, in their official capacities, are DISMISSED WITH PREJUDICE.
B. Supervisor Liability
Chief Charles Harmon could not be held liable under § 1983 for unconstitutional
subordinate acts on the basis of respondeat superior or vicarious liability. Keith v. Dekalb Cnty.,
Ga., 749 F.3d 1034, 1047 (11th Cir. 2014). To hold a supervisor liable, a plaintiff must show that
the supervisor either directly participated in the unconstitutional conduct or that a causal
connection exists between the supervisor’s actions and the alleged constitutional violation. Id.
The Eleventh Circuit stated causal connections as:
“The necessary causal connection can be established when a history of widespread
abuse puts the responsible supervisor on notice of the need to correct the alleged
deprivation, and he fails to do so. Alternatively, the causal connection may be
established when a supervisor's custom or policy ... result[s] in deliberate
indifference to constitutional rights or when facts support an inference that the
supervisor directed the subordinates to act unlawfully or knew that the subordinates
would act unlawfully and failed to stop them from doing so.”
Id. at 1048 (citing to Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)).
Plaintiff alleges that, on a continuing basis, Chief Harmon failed to instruct, supervise,
control, and discipline police officers in their duties to refrain from “unlawfully and maliciously
(1) harassing a citizen, (2) imprisoning and prosecuting a citizen, (3) using unreasonable excessive

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force, (4) conspiring to violate the rights, privileges and immunities of a citizen, and (5) the
deprivation of those rights.” (Doc. 1 at ¶38).
The Plaintiffs have an obligation to provide grounds of their entitlement to relief that are
more than merely labels and conclusions, and a formulaic recitation of the elements. Twombly,
550 U.S. at 570. The standard by which a supervisor is held liable in his individual capacity for
the actions of a subordinate is extremely rigorous. Cottone, 236 F.3d at 1360. Therefore, the
aforementioned allegations are not pled in a factual manner that would give plausible rise to
entitlement of relief. Plaintiffs do not meet the rigid standards explained in Cottone, and mere
conclusions or reciting the elements cannot suffice.
II. 42 U.S.C. § 1983 Municipal Liability Claim Against City of St. Petersburg
A. Deliberate Indifference and Failure to Train
Plaintiffs allege that inaction by a public agency or person is sufficient participation in a
subordinate’s misconduct to make the agency or person liable in a suit under § 1983 where the
policymaking level at the agency has deliberately decided to take no action, and thus in effect
condone the misconduct and adopt it as the agency’s unofficial policy. (Doc. 8) (citing to City of
Canton v. Harris, 489 U.S. 378 (1989)). In Canton, the Supreme Court importantly stated
“[w]here…a claim of municipal liability is predicated upon a failure to act, the requisite degree of
fault must be shown by proof of a background of events and circumstances which establish that
the “policy of inaction” is the functional equivalent of a decision by the city itself to violate the
Constitution.” Id. at 395.
In the instant case, Plaintiffs allege the City of St. Petersburg “should have known” and
“exhibited deliberate indifference,” yet failed to demonstrate what facts, background of events,
and circumstances would establish this “policy of inaction.” (Doc.1 at ¶48). Plaintiffs only allege

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one event (the instant case), which does not fall within the Court’s established proper and rigid
guidelines to determine whether the City of St. Petersburg is on notice of the alleged
unconstitutional practices or customs the officers employed. “[T]he need for training may not be
obvious from the outset, but a pattern of constitutional violations could put the municipality on
notice that its officers confront the particular situation on a regular basis, and that they often react
in a manner contrary to constitutional requirements.” Canton, 489 U.S. at 397.
“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality
can the failure be properly thought of as an actionable city policy.” Id. at 379. Plaintiff’s Counts
II and III are repetitive and reiterate the City of St. Petersburg failed to properly train or supervise
its subordinates. Plaintiff’s Counts II and III also fail to properly plead these allegations with
factual sufficiency. Consistent with Canton, Plaintiffs must show the event or circumstance was
not an isolated act a sole employee committed. Id. at 399. Based upon the single alleged incident,
the claim is not sufficient to survive dismissal. See Id.
Furthermore, Plaintiffs did not plead under the narrow and limited circumstances which
create municipal liability. Plaintiff must allege more than bare conclusions to demonstrate the City
of St. Petersburg’s: 1) training program is or was inadequate; 2) training program can justifiably
be said to represent “city policy;” and 3) this city policy resulted in a violation of constitutional
rights. Id. at 390. Therefore, the current Complaint lacks facts necessary to show the City of St.
Petersburg demonstrated deliberate indifference and a failure to properly train its officers.
B. Shotgun Pleading
The typical shotgun complaint contains several counts, each one incorporating by
reference the allegations of its predecessors, leading to a situation where most of the counts (i.e.,
all but the first) contain irrelevant factual allegations and legal conclusions. Strategic Income

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Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). In the
instant case, the Plaintiff’s Complaint incorporates three separate counts, in which (except for
Count I) each count references the previous allegations of the preceding count. (Doc. 1).
Plaintiff’s Complaint is considered a shotgun complaint and fails to meet pleading requirements.
Consequently, in ruling on the sufficiency of a claim, the Court must sift out the
irrelevancies, a task that can be quite onerous. Id. Shotgun pleadings lessen the time and resources
the court has available to reach and dispose of cases and litigants waiting to be heard. Davis v.
Coca-Cola Bottling Co. Consol., 516 F.3d 955, 982 (11th Cir. 2008). The time a court spends
managing litigation framed by shotgun pleadings should be devoted to other cases waiting to be
heard. Therefore, Plaintiff will need to amend Complaint to exclude all shotgun pleas.
Accordingly, it is ORDERED that Defendant’s Motion to Dismiss is GRANTED in
PART. Count I of the Complaint is DISMISSED WITH PREJUDICE insofar as it relates to
the John Doe Officers and Charles Harmon in their official capacities. Counts II and III of the
Complaint are dismissed WITHOUT PREJUDICE, and Plaintiffs are granted leave to file an
amended complaint on or before June 15, 2015.
DONE and ORDERED in Chambers, in Tampa, Florida, this 3d day of June, 2015.

Copies to:

All Counsel and Parties of Record 

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