Archer v. City of Winter Haven et al

Filing 254

ORDER: 1. Defendants' Motions to Dismiss 241; 242 are GRANTED IN PART AND DENIED IN PART. 2. Counts V and VI of Plaintiff's Fourth Amended Complaint are DISMISSED WITH PREJUDICE. 3. This action will proceed on Counts I through IV and Count VII (negligent training only) of the Fourth Amended Complaint. Signed by Judge Charlene Edwards Honeywell on 7/19/2019. (SG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DARRELL ARCHER,
Plaintiff,
v.

Case No: 8:16-cv-3067-T-36AAS

WAL-MART STORES EAST, LP, et al.,
Defendants.
___________________________________/
ORDER
This matter comes before the Court upon Defendants’ Motions to Dismiss Plaintiff’s
Fourth Amended Complaint (Doc. 241; Doc. 242) and Plaintiff’s responses thereto (Doc. 245;
Doc. 248). The Court, having considered the parties’ submissions and being fully advised in the
premises, will grant in part and deny in part the Motions to Dismiss.
I.

Background 1

Plaintiff Darrell Archer (“Plaintiff”), a California citizen, visited Defendant Wal-Mart
Stores East, LP (“Walmart”) in Polk County, Florida on November 26, 2015 to purchase a
television set. Doc. 237 at ¶¶ 5, 14-15. Plaintiff paid for the television by credit card at an
automated checkout line with the assistance of a Walmart employee, Diamond Hernandez
(“Hernandez”). Id. at ¶¶ 14-15, 50. Following the purchase, Plaintiff placed the television in a
Walmart shopping cart and proceeded to the Walmart exit immediately adjacent to the automated
checkout line. Id. at ¶ 16.

1
The facts are derived from the Fourth Amended Complaint (Doc. 237), the allegations of which the Court must
accept as true in ruling on the instant motions to dismiss. See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.
1992). The Fourth Amended Complaint—Plaintiff’s sixth pleading in this case—was drafted by counsel. Doc. 237.
Plaintiff’s first four complaints, including his Corrected Second Amended Complaint which the Court dismissed in
part with prejudice and in part without prejudice, were filed pro se. See Doc. 181.

When Plaintiff approached the exit, a different Walmart employee, Defendant Kanara
Harris (“Harris”), stopped Plaintiff and asked to see his receipt. Id. at ¶ 17. Harris positioned
himself in front of Plaintiff’s shopping cart, preventing Plaintiff from leaving. Id.
Plaintiff declined to provide his receipt and explained that he had just purchased the
television a few feet away. Id. at ¶ 19. Harris continued to block Plaintiff’s path to the exit. Id. at
¶ 24. Harris summoned fellow Walmart employee, Defendant Charles Caraway (“Caraway”), and
a police officer, Defendant Brad Webster (“Webster”), and advised them that Plaintiff had refused
to produce his receipt. Id. at ¶¶ 26-27.
Webster, who was dressed in police uniform, accused Plaintiff of shoplifting. Id. at ¶ 29.
Webster advised Plaintiff that he was not free to leave the store, and Plaintiff believed that he was
in fact not free to leave the store, either with or without his television. Id. at ¶ 30. Caraway
continued to detain Plaintiff with the assistance of Webster. Id. at ¶ 31. Caraway accused Plaintiff
of failing to pay for the television and attempting to shoplift. Id.
Caraway summoned his assistant manager, Defendant Kristine Wood (“Wood”), who
arrived at the scene. Id. at ¶ 32. Another police officer also dressed in police uniform, Defendant
Ken Nichols (“Nichols”), arrived at about the same time as Wood. Id. at ¶ 33. Wood and Nichols
were advised that Plaintiff had been asked to produce a receipt but refused. Id. at ¶ 34. They were
also advised of Plaintiff’s statement that he had just purchased the television at the checkout area
immediately adjacent. Id. at ¶ 35. Wood, Caraway, Webster, and Nichols all continued to detain
Plaintiff. Id. at ¶ 36.
A third police officer, Defendant Dan Gaskin (“Gaskin”), also dressed in police uniform,
arrived at the scene and was advised of the situation. Id. at ¶ 37. Gaskin assisted with detaining
Plaintiff. Id. at ¶ 38. In addition, Gaskin took and removed Plaintiff’s television from his

2

possession and control. Id. Plaintiff’s television was not returned to him despite his repeated
demands during his detention. Id. at ¶ 39. Plaintiff attempted to leave the store with his property
on several occasions, but was prevented from doing so by Wood, Caraway, Webster, Nichols, and
Gaskin. Id. at ¶ 41.
At the time of Plaintiff’s detention, Walmart had a store policy which provided that a
person who “refuses to show his receipt of purchase . . . to nevertheless be permitted to leave the
store with their merchandise.” Id. at ¶ 22. Wood, Caraway, Harris, Webster, Nichols, and Gaskin
were all fully aware of the policy and “each knew that refusal to produce a receipt was neither a
justification for the detention of the customer nor seizure of his property.” Id. at ¶¶ 31, 36, 68. The
Walmart employees, Harris, Wood, and Caraway, never attempted to prevent the police officers
from seizing Plaintiff’s property by “pointing out or reminding them [that] the store policy was to
allow customers to leave with their property even if they refused to produce a receipt.” Id. at ¶ 71.
During Plaintiff’s detention, Caraway, Nichols, and Gaskin repeatedly called Plaintiff a
“thief,” accused him of shoplifting, and threated to arrest him if he didn’t show his receipt for the
television. Id. at ¶ 42. Neither Wood, Caraway, Webster, Nichols, or Gaskin made any effort to
conduct an independent investigation to determine if Plaintiff had paid for the television, even
though Plaintiff told them that he had made the purchase at the checkout area nearby. Id. at ¶ 43.
Hernandez, the employee who helped Plaintiff with his purchase, saw Plaintiff being
detained at the exit. Id. at ¶ 51. Hernandez contacted her supervisor to advise that Plaintiff had in
fact purchased the television. Id. at ¶ 52. Hernandez’s supervisor, however, failed to take any
action or advise Wood, Caraway, Nichols, Gaskin, or Webster of this information. Id. at ¶ 53.
Instead, the supervisor advised Hernandez to wait until after her shift to advise asset protection
that Plaintiff had purchased the television. Id.

3

Plaintiff’s detention continued. Id. at ¶ 54. During Plaintiff’s detention, Wood and Caraway
did not actually believe that Plaintiff stole the television “but nevertheless continued to unlawfully
detain him and prevent him from leaving the store with his property.” Id. at ¶ 66. Eventually,
Plaintiff was “trespassed” from the premises without the television. Id. at ¶ 55. Nichols advised
Plaintiff that he had to leave the premises and that he was forbidden from taking the television
with him. Id. at ¶ 56. Plaintiff insisted that he be allowed to take the television, but was repeatedly
advised that he would be arrested if he did not leave the premises immediately without the
television. Id. at ¶ 57.
To avoid arrest, Plaintiff reluctantly agreed to leave the premises without his television. Id.
at ¶ 58. Plaintiff was escorted off the premises by the police officers. Id. Plaintiff’s detention and
escort off the property occurred in public in the presence of dozens of customers. Id. at ¶ 61. The
Walmart customers entering and exiting the store heard the accusations against Plaintiff and
observed his detention. Id. at ¶ 61. This subjected Plaintiff to humiliation, embarrassment, and
emotional distress. Id. Throughout the incident, Plaintiff was never threatening, belligerent,
obstructive, or disturbing of the public peace and quiet. Id. at ¶ 63.
Subsequent investigation, after Plaintiff was forced to leave, revealed that Plaintiff had
purchased the television at the checkout aisle near the exit. Id. at ¶ 60. During Plaintiff’s detention,
Harris, Caraway, Wood, and Edward Camp (“Camp”) were acting within the scope of their
employment with Walmart. Id. at ¶¶ 11, 62. Walmart was responsible for the actions of its
employees and of the police officers working at Walmart providing extra-duty police services for
the store. Id. at ¶¶ 69-70.

4

II.

Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic
recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere naked assertions are not sufficient. Id.
A complaint must contain sufficient factual matter, which, if accepted as true, would “state a claim
to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quotation marks omitted).
The court, however, is “not bound to accept as true a legal conclusion couched as a factual
allegation” in the complaint. Id. (quoting Twombly, 550 U.S. at 555).
III.

Discussion

A. Plaintiff’s Claims for Civil Theft in Violation of Florida Statute Section 812.014,
Counts V and VI, are Dismissed With Prejudice
Plaintiff asserts two claims for civil theft in violation of Florida Statute section 812.014, a
criminal statute. The first such claim, Count V, is asserted against Walmart, Wood, and Caraway.
The second such claim, Count VI, is asserted against the Defendant Officers. 2 Both claims are due
to be dismissed because they fail to state causes of action for civil theft.
To state a claim for civil theft under Florida law, Plaintiff must allege that Defendants: “(1)
knowingly (2) obtained or used, or endeavored to obtain or use, [Plaintiff]’s property with (3)

2

Nichols, Gaskin, and Webster are referred to collectively throughout this Order as the “Defendant Officers.” The
Defendant Officers together with the remaining defendants are referred to collectively throughout this Order as
“Defendants.”

5

‘felonious intent’ (4) either temporarily or permanently to (a) deprive [Plaintiff] of [hi]s right to or
a benefit from the property or (b) appropriate the property to [Defendants’] own use or to the use
of any person not entitled to the property.” United Techs. Corp. v Mazer, 556 F.3d 1260, 1270
(11th Cir. 2009)). Additionally, Florida Statute section 772.11, the section providing a civil remedy
for theft in violation of criminal section 812.014, see United Techs. Corp., 556 F.3d at 1270,
requires Plaintiff, prior to filing an action for damages, to “make a written demand for $200 or the
treble damage amount of the person liable for damages.” Fla. Stat. § 772.11(1). As Defendants
point out, Plaintiff has not alleged that he made a pre-suit demand for damages. Doc. 241 at p. 16;
Doc. 242 at p. 11.
Plaintiff responds that he was not required to send a written demand pursuant to section
772.11 because he is not seeking treble damages as provided by the statute. Rather, Plaintiff argues,
Counts V and VI are “cause[s] of action for common law theft alleging a violation of [section]
812.014(1) by [D]efendants.” Doc. 245 at p. 19; Doc. 248 at p. 15. Plaintiff cites no legal authority
in support of his argument.
Section 812.014(1) is a criminal statute. As the Defendant Officers argue, Plaintiff’s
opportunity to obtain a civil remedy is through section 772.11—the section authorizing a civil
claim for theft made criminal under section 812.014. To state such a claim, Plaintiff must follow
the requirements as provided by section 772.11. This, Plaintiff apparently did not do. See Doc. 245
at p. 19; Doc. 248 at p. 15 (contending Plaintiff was not required to send written demands while
not disputing Defendants’ assertions that he did not do so). Therefore, Counts V and VI will be
dismissed with prejudice.

6

B. Plaintiff’s Remaining Tort Claims
1. Count VII: Plaintiff’s Negligent Training Claim is Sufficiently Pleaded, but
Plaintiff’s Negligent Supervision Claim is Dismissed
Count VII of Plaintiff’s Fourth Amended Complaint alleges that Walmart and Camp are
liable for negligent training and negligent supervision because they failed to properly train and
supervise employees “in the proper implementation of the Walmart policy.” Doc. 237 at ¶ 152.
According to Plaintiff, Walmart had a “receipt checking procedure and policy” that provided that
any customer who refused to show his or her receipt when asked by an employee should
nevertheless be allowed to leave the store with his or her merchandise. Id. at ¶ 155. Plaintiff alleges
that Walmart and Camp failed to properly train employees as to the implementation of this policy
and “knew or should have known that such failure would result in injury or damage to some of its
customers.” Id. at ¶ 158.
“Though plaintiffs often bring claims for negligent training and negligent supervision
together, the two causes of action are distinct.” Adler v. WestJet Airlines, Ltd., 31 F. Supp. 3d
1381, 1387 (S.D. Fla. 2014). To state a claim for negligent supervision under Florida law, a
plaintiff must allege that during the course of employment, the defendant-employer knew or should
have become aware of problems with an employee indicating his unfitness, and that the employer
failed to take remedial action such as conducting an investigation, reassigning the unfit employee,
or discharging the unfit employee. Matthews v. City of Gulfport, 72 F. Supp. 2d 1328, 1340 (M.D.
Fla. 1999) (citing Watson v. City of Hialeah, 552 So. 2d 1146, 1148 (Fla. 3d DCA 1989). The
plaintiff must allege facts sufficient to show that, once the employer received actual or constructive
notice of the employee’s lack of fitness, it was unreasonable for the employer to fail to investigate

7

or take other corrective action. Dep’t of Envtl. Prot. v. Hardy, 907 So. 2d 655, 660 (Fla. 5th DCA
2005).
To state a claim for negligent training under Florida law, a plaintiff “must allege that [he]
was harmed as a result of an employer’s failure to adequately train an employee, and that the nature
of the employment put the plaintiff in a ‘zone of risk’ such that the employer had a duty running
to the plaintiff.” Adler, 31 F. Supp. 3d at 1388. See also Lewis v. City of St. Petersburg, 260 F.3d
1260, 1265 (11th Cir. 2001) (“Under Florida law, an employer is liable in tort for reasonably
foreseeable damages resulting from the negligent training of its employees and agents.”).
Walmart and Camp primarily argue that Plaintiff fails to state a cause of action in Count
VII because Plaintiff has not alleged that Walmart or Camp had a legal duty to Plaintiff and
because Plaintiff’s allegations lack factual support. To the contrary, however, Plaintiff alleges that
Walmart and Camp had a duty to properly train employees involved in the monitoring of potential
shoplifting. Doc. 237 at ¶¶ 152-154. Plaintiff alleges he was harmed when the Walmart employees
detained him and took his property following the wrongful implementation of Walmart’s receipt
checking policy. Id. at ¶¶ 159-162. Accepting Plaintiff’s allegations as true, as the Court must do
upon a motion to dismiss, Plaintiff adequately pleads that he was in the “reasonably foreseeable
zone of risk from the actions” of the Walmart employees, “such that a legal duty of care in training”
ran from Walmart and Camp to Plaintiff. Adler, 31 F. Supp. 3d at 1388. Plaintiff’s allegations,
accepted as true, are sufficient to withstand a motion to dismiss with respect to his negligent
training claim. 3

3

Walmart and Camp also allege that Plaintiff’s claim for negligent training is contradictory because he alleges
elsewhere in the Fourth Amended Complaint that the Defendants were all aware of Walmart’s receipt checking policy.
However, the fact that Walmart’s employees may have been aware of a policy does not necessarily mean that they
were properly trained in its implementation. Thus, Plaintiff’s claim for negligent training survives.

8

To the extent Plaintiff’s claim in Count VII pleads negligent supervision, however, the
claim is dismissed, with prejudice. Plaintiff provides no facts suggesting that Walmart or Camp
knew or should have known that any of its employees were unfit or that it was unreasonable for
them to fail to investigate or take other corrective action. Therefore, Count VII will proceed only
as to Plaintiff’s claim for negligent training.
2. Counts I through IV are Sufficiently Pleaded
In its prior Order of dismissal, the Court determined that the Defendant Officers were
entitled to qualified immunity and dismissed with prejudice Plaintiff’s federal claims against the
Defendant Officers in their individual capacities based on the allegations in Plaintiff’s Corrected
Second Amended Complaint. Doc. 181 at pp. 7-12, 24. Specifically, the Court found that Plaintiff
could not plausibly allege a violation of his constitutional rights because the Defendant Officers
had, at a minimum, arguable reasonable suspicion to detain Plaintiff and arguable probable cause
to seize the television. Doc. 181 at p. 12.
The Court also dismissed Plaintiff’s tort claims without prejudice. Dismissal of Plaintiff’s
tort claims was proper not in light of any immunity analysis, but because the tort claims
impermissibly combined legal causes of action, resulting in vague and confusing counts. Doc. 181
at pp. 6, 20-21. Because Plaintiff’s tort claims were incomprehensible, the Court was unable to
address the plausibility of the claims against any of the Defendants.
Plaintiff’s tort claims in Counts I through IV no longer impermissibly combine legal causes
of action. Plaintiff asserts the following four claims: false imprisonment as to Walmart, Wood,
Caraway, and Harris (Count I), false imprisonment as to the Defendant Officers (Count II),
conversion as to Walmart, Wood, and Caraway (Count III), and conversion as to the Defendant
Officers (Count IV). Doc. 237.

9

To state a claim for false imprisonment under Florida law, a plaintiff must plead that
imprisonment was contrary to his will and was unlawful. Garcia v. Carnival Corp., 838 F. Supp.
2d 1334, 1338 (S.D. Fla. 2012). “Unlawful” means that the confinement was “unreasonable and
unwarranted under the circumstances.” Harris v. Lewis State Bank, 436 So. 2d 338, 341 (1st DCA
1983). Under Florida law, conversion is an “unauthorized act which deprives another of his
property permanently or for an indefinite period of time.” Fogade v. ENB Revocable Trust, 263
F.3d 1274, 1291 (11th Cir. 2001). Thus, in order to state a claim of conversion, “one must allege
facts sufficient to show ownership of the subject property and facts that the other party wrongfully
asserted dominion over that property.” Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA
2011).
The Defendant Officers argue that Plaintiff’s claims for false imprisonment and conversion
fail because reasonable suspicion and/or probable cause exists on the face of the Fourth Amended
Complaint. That is, the Defendant Officers argue, Plaintiff cannot plausibly allege that his
confinement was “unlawful” or that taking his television was “unauthorized’ because the
Defendant Officers had reasonable suspicion and/or probable cause, based on the allegations in
the Fourth Amended Complaint, to detain Plaintiff and seize the television. Similarly, Walmart,
Wood, Caraway, and Harris argue that Plaintiff fails to state a claim for false imprisonment
because the Court previously “concluded . . . that Plaintiff’s conduct, specifically leaving Walmart
carrying a television and refusing to provide a receipt, provided at least reasonable suspicion that
the Plaintiff was shoplifting.” Doc. 242 at p. 7.
Defendants’ arguments are unavailing. The Court previously determined that the
Defendant Officers had arguable reasonable suspicion and/or arguable probable cause to detain
and seize under a qualified immunity analysis. The Court did not, however, make a determination

10

as to whether reasonable suspicion and/or probable cause in fact existed. Moreover, to make such
a determination now on motions to dismiss would be premature.
Defendants also argue that Plaintiff’s allegations are conclusory. As discussed above,
however, the Court finds that Plaintiff’s remaining claims are improved over his last pleadings.
Plaintiff pleads sufficient facts to survive dismissal.
3. Sovereign Immunity
The Defendant Officers further argue that they are entitled to sovereign immunity and that
Plaintiff’s claims against them in Counts II and IV should be dismissed on that basis.
“Florida’s sovereign immunity statute shields police officers from personal liability in tort
for injuries or damages they cause while acting within the scope of their employment.” Johnson v.
City of Daytona Beach, No. 6:16-cv-941-Orl-40TBS, 2017 WL 119744, at *6 (M.D. Fla. Jan. 12,
2017) (citing Fla. Stat. § 768.28(9)(a)). Under Florida’s sovereign immunity law, there are only
three categories of conduct which will overcome a police officer’s individual
immunity: (1) bad faith, (2) malicious purpose, and (3) wanton and willful disregard
of human rights, safety, or property. Both bad faith and malicious purpose require
a plaintiff to allege facts demonstrating that the officer acted with actual malice,
which requires a showing of ill will, hatred, spite, or an evil intent. Alternatively,
for conduct to be willful and wanton, it must be shown that the defendant knew, or
reasonably should have known, that his or her conduct would naturally or probably
result in injury and, with such knowledge, disregarded the foreseeable injurious
consequences.
Id. (citations and quotations omitted, alterations deleted); see also Pena v. Marcus, 715 Fed. Appx.
981, 988 (11th Cir. 2017) (describing “bad faith” as “actual malice and willful and wanton conduct
[that] is worse than gross negligence and more reprehensible and unacceptable than mere
intentional conduct.” (internal quotation marks and citations omitted)).
Plaintiff’s Fourth Amended Complaint provides just enough factual material to allow his
claims again the Defendant Officers to proceed. Specifically, Plaintiff alleges that the Defendant

11

Officers’ failure to investigate Plaintiff’s claim that he had just checked out a few feet away was
“reprehensible and in bad faith, with malicious purpose and in a manner exhibiting a wanton and
willful disregard for the personal and property rights of [P]laintiff.” Doc. 237 at ¶¶ 97-98. These
allegations, accepted as true as required at the motion to dismiss stage, are sufficient. Further
analysis and inference as to whether the Defendant Officers are entitled to sovereign immunity is
more appropriately addressed upon motions for summary judgment. See Bussey-Morice v.
Kennedy, No. 6:11-cv-970-Orl-36GJK, 2012 WL 12899017, at *2 (M.D. Fla. Dec. 12, 2012).
4. Punitive Damages
Defendants all argue that Plaintiff’s demands for punitive damages should be dismissed
from this action.
As discussed in the Court’s prior Order of dismissal, Plaintiff need not make a “reasonable
showing by evidence in the record or proffered by the claimant” in federal court to maintain a
demand for punitive damages. Doc. 181 at pp. 22-23. At the motion to dismiss stage, Plaintiff need
only provide something more than entirely conclusory allegations. In the Fourth Amended
Complaint, Plaintiff alleges that Defendants acted in bad faith and with malicious purpose when
they failed to attempt to conduct any investigation into Plaintiff’s claim that he had just paid for
the television, despite having the resources to do so. E.g., Doc. 237 at ¶¶ 77-78, 98-100. This is
sufficient to withstand the motions to dismiss.
IV.

CONCLUSION

Plaintiff, who is now represented by counsel, has been given more than sufficient
opportunity to amend his complaint. Therefore, Counts V and VI are dismissed with prejudice.
Count VII is also partially dismissed with prejudice, to the extent it alleges a claim for negligent

12

supervision. Plaintiff’s Fourth Amended Complaint will proceed on Counts I, II, III, IV, and VII
(with respect to negligent training only).
Accordingly, it is ORDERED:
1. Defendants’ Motions to Dismiss (Doc. 241; Doc. 242) are GRANTED IN PART AND
DENIED IN PART.
2. Counts V and VI of Plaintiff’s Fourth Amended Complaint are DISMISSED WITH
PREJUDICE.
3. This action will proceed on Counts I through IV and Count VII (negligent training only)
of the Fourth Amended Complaint.
DONE AND ORDERED in Tampa, Florida on July 19, 2019.

Copies to:
Counsel of Record and Unrepresented Parties, if any

13