Stockwell v. Nelson et al

Filing 28

ORDER denying 23 --motion to dismiss. Signed by Judge Steven D. Merryday on 2/8/2016. (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) Officer Antwan Nelson under 42 U.S.C.
§ 1983 for the use of excessive force (Count I) and under Florida law for battery
(Count II).* Nelson moves (Doc. 23) to dismiss both counts.
1. Excessive Use of Force
Count I alleges that Nelson, “acting in his capacity as a police officer and
under the color of law, gratuitously applied excessive force on [Stockwell]” “in
violation of the Fourth Amendment.” (Doc. 1 ¶¶ 28, 29) “Determining whether the
force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment
requires a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental

*

Also, Stockwell sues the City of Tampa under a theory of vicarious liability for battery
(Count III). An order (Doc. 17) dismisses Stockwell’s negligent retention claim (Count IV).

interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citations and internal
quotation marks omitted). As Stockwell correctly states, the “factors to be
considered in assessing the lawfulness of the amount of force used by police officers”
include “‘[1] the severity of the crime at issue, [2] whether the suspect poses an
immediate threat to the safety of the officers or others, and [3] whether [the suspect]
is actively resisting arrest or attempting to evade arrest by flight.’” (Doc. 24 at 3
(quoting Graham, 490 U.S. at 396))
For the purpose of resolving the motion (Doc. 23) to dismiss, the allegations of
the complaint are accepted as true (even if a disinterested observer might entertain a
reasonable doubt as to the allegations’ plausibility). According to the complaint, on
February 14, 2014, “[a]fter being escorted from an establishment,” “one of
[Stockwell’s] friends became involved in an incident with several police officers.”
(Doc. 1 ¶¶ 13, 14) “While the officers were investigating [Stockwell’s] friend,”
Nelson “unexpectedly picked [Stockwell] up and subsequently slammed her onto the
hood of a moving vehicle in the middle of the street.” (Doc. 1 ¶¶ 14, 16) “Within
seconds,” Nelson “violently slammed [Stockwell] to the ground head first” leaving
“[a] pool of blood,” which “can clearly be seen in the video of this incident.”
(Doc. 1 ¶ 17)
At the time of the incident, Stockwell “had not committed a serious felony.”
(Doc. 1 ¶ 19) Stockwell was “charged with Obstructing or Opposing an Officer
without Violence,” but “the charges were dismissed.” (Doc. 1 ¶ 20) Also, the

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complaint alleges that Stockwell “posed no threat to any of the Officers who were
present or any individual in the vicinity” and that Stockwell “was not in possession
of any type of weapon or illegal contraband.” (Doc. 1 ¶ 19) Finally, the complaint
alleges that Stockwell “was not resisting at any time, and was subdued, if not
concussed.” (Doc. 1 ¶ 18) Accordingly, consistent with Graham, the complaint
states a claim for the use of excessive force. See Hadley v. Gutierrez, 526 F.3d 1324,
1330 (11th Cir. 2008) (“Our cases hold that gratuitous use of force when a criminal
suspect is not resisting arrest constitutes excessive force.”).
2. Battery
Count II alleges that “the actions of [Nelson],” who “acted outside the scope
and course of his employment,” “constitute a non-consensual touch or strike battery
causing personal injury to [Stockwell] in violation of Florida Law.” (Doc. 1 ¶¶ 31,
34) Under Section 784.03(1)(a), Florida Statutes, “the offense of a battery occurs
when a person: (1) [a]ctually and intentionally touches or strikes another person
against the will of the other[] or (2) [i]ntentionally causes bodily harm to another
person.” According to the complaint, Nelson “slammed [Stockwell] onto the hood
of a moving vehicle” and then “violently slammed her to the ground head first”
causing “severe and permanent injuries.” (Doc. 1 ¶¶ 16, 17, 36) Thus, the complaint
states a claim for battery.
However, Nelson denies liability by citing Section 768.28(9)(a), Florida
Statutes, which states:

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No officer, employee, or agent of the state or of any of its subdivisions
shall 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 her or his employment or
function, unless 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. . . . The exclusive
remedy for injury or damage suffered as a result of an act, event, or
omission of an officer, employee, or agent of the state or any of its
subdivisions or constitutional officers shall be by action against the
governmental entity, or the head of such entity in her or his official
capacity, or the constitutional officer of which the officer, employee,
or agent is an employee, unless such act or omission was committed in
bad faith or with malicious purpose or in a manner exhibiting wanton
and willful disregard of human rights, safety, or property. The state or
its subdivisions shall not be liable in tort for the acts or omissions of an
officer, employee, or agent committed while acting outside the course
and scope of her or his employment or committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.

Nelson argues that Count II’s allegations both that Nelson “acted outside the
course and scope of his employment” and that Nelson acted “in bad faith, with
malicious purpose, or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property” are “mere conclusion[s], unsupported by any allegation of
ultimate fact.” (Doc. 23 at 5) A review of the complaint confirms that Nelson
“acted under the color of the law and by virtue of [his] authority as [a] law
enforcement officer[] for the City of Tampa.” (Doc. 1 ¶ 12) The complaint fails to
allege any fact demonstrating that Nelson acted outside the course and scope of his
employment. However, as Stockwell correctly argues, the complaint states
“sufficient facts in which a reasonable jury could find that [Nelson’s] actions were
committed with bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.” (Doc. 24 at 5)
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CONCLUSION
Nelson’s motion (Doc. 23) to dismiss is DENIED.
ORDERED in Tampa, Florida, on February 8, 2016.

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