Stockwell v. Nelson et al

Filing 17

ORDER granting 8 --motion to dismiss Count IV. Signed by Judge Steven D. Merryday on 8/19/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RACHEL E. STOCKWELL,
Plaintiff,
v.

CASE NO. 8:15-cv-951-T-23TBM

ANTWAN NELSON, et al.,
Defendants.
____________________________________/

ORDER
Rachel E. Stockwell sues (Doc. 1) both officer Antwan Nelson in his
individual capacity and the City of Tampa after allegedly sustaining injuries during
an arrest. Specifically, Stockwell sues Nelson under 42 U.S.C. § 1983 for the use of
excessive force (Count I) and under Florida law for battery (Count II). Also,
Stockwell sues the City of Tampa under Florida law for battery (Count III) and for
negligent retention (Count IV). The City of Tampa moves (Doc. 8) to dismiss
Count IV and argues that Stockwell “fails to state a cause of action because the
officer was not acting outside the course and scope of his employment as is required
to maintain this claim against the City of Tampa.”
“Florida law requires that a claim for negligent retention allege acts committed
outside the course and scope of employment.” Belizaire v. City of Miami,
944 F. Supp. 2d 1204, 1215 (S.D. Fla. 2013) (Moreno, J.); see also Watson v. City of

Hialeah, 552 So. 2d 1146, 1148 (Fla. 3d DCA 1989) (Jorgenson, J.) (“By its very
nature, an action for negligent retention involves acts which are not within the course
and scope of employment and allows recovery even when an employer is not
vicariously liable under the doctrine of respondeat superior.”). As the City of Tampa
correctly argues, the complaint “alleges that Officer Nelson was on duty, in uniform,
and was in the process of investigating an incident which involved a friend of
[Stockwell’s] at the time [Nelson] made contact with [Stockwell].” (Doc. 8 at 4)
Thus, the complaint fails to allege any fact demonstrating that Nelson acted outside
the course and scope of his employment. Accordingly, the City of Tampa’s motion
(Doc. 8) to dismiss is GRANTED, and Count IV is DISMISSED.
ORDERED in Tampa, Florida, on August 19, 2015.

-2-