Tompkins-Holmes v. Gualtieri et al
Filing
22
ORDER: Defendant Sheriff Robert Gualtieri's Motion to Dismiss (Doc. # 10 ) is denied. Defendant Deputy Timothy Virden's Motion to Dismiss or for More Definite Statement (Doc. # 11 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 2/8/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DYLAN TOMPKINS-HOLMES,
Plaintiff,
v.
Case No. 8:17-cv-52-T-33AEP
ROBERT GUALTIERI, in his
Capacity as Sheriff of Pinellas
County, Florida, and TIMOTHY
VIRDEN, individually,
Defendants.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendants
Sheriff Robert Gualtieri’s Motion to Dismiss (Doc. # 10), and
Deputy Timothy Virden’s Motion to Dismiss or for More Definite
Statement
(Doc. # 11), both filed on January 13, 2017.
Tompkins-Holmes filed responses on January 26 and 30, 2017.
(Doc. ## 14, 16). For the reasons that follow, the Motions
are denied.
I.
Background
On December 30, 2015, Plaintiff Dylan Tompkins-Holmes
was a passenger in a car driven by his girlfriend after the
couple had spent the evening in John’s Pass Village in Madeira
Beach. (Doc. # 2 at ¶¶ 42-43). Deputy Randall of the Pinellas
1
County Sheriff’s Office and his trainee, Deputy James Blount
— who are not parties in this action — pulled the car over
because they suspected the driver was under the influence.
(Id. at ¶ 45). While Deputies Randall and Blount were speaking
with Tompkins-Holmes’s girlfriend, Deputy Virden arrived on
the scene and approached the passenger side of the car where
Tompkins-Holmes was seated. (Id. at ¶ 48). Tompkins-Holmes
advised his girlfriend she could refuse to take the field
sobriety tests that the other deputies asked her to perform,
which “angered Deputy Virden who demanded that TompkinsHolmes stop instructing [her].” (Id.). When Tompkins-Holmes
did not stop, “Deputy Virden aimed his Taser at TompkinsHolmes, forcefully pulled him from the car, manhandled him
against the vehicle, and handcuffed [Tompkins-Holmes’s] hands
behind his back.” (Id. at ¶ 49).
As Deputy Virden was transferring Tompkins-Holmes into
the backseat of Deputy Virden’s vehicle, Tompkins-Holmes
verbally
protested
and
“question[ed]
[Deputy
Virden’s]
manhood,” but “at no time did Tompkins-Holmes pose any threat,
attempt to flee, or physically resist arrest.” (Id. at ¶¶ 5052). At this point, Deputy Virden threateningly told TompkinsHolmes to “keep going,” and then fired two shots from his
pistol into Tompkins-Holmes’s abdomen and hip. (Id. at ¶ 52).
2
Although Tompkins-Holmes was handcuffed and wedged in the
backseat of Deputy Virden’s vehicle at the time, Deputy Virden
initially claimed that Tompkins-Holmes had reached for his
gun. (Id. at ¶¶ 28-29, 53-54). Later, Deputy Virden justified
his use of force by stating that he perceived that TompkinsHolmes could have kicked him, and thus force was necessary.
(Id. at ¶ 54). Deputy Randall told investigators that he
believed that “Deputy Virden had mistaken his previously drawn
Taser for his pistol” and intended to Taser Tompkins-Holmes,
rather than shoot him. (Doc. # 2 at ¶¶ 58-59).
Although
there
was
no
video
of
the
incident,
an
inadvertently-made audio recording revealed that TompkinsHolmes had not physically resisted Deputy Virden, as the
deputy initially claimed. (Id. at ¶¶ 28-29, 53). Immediately
after the shooting, Deputy Virden can be heard asking Deputy
Randall if he had seen Tompkins-Holmes reaching for his gun,
to which Deputy Randall responded “No.” (Id. at ¶ 53). After
reviewing the audiotape, the state attorney charged Deputy
Virden with attempted manslaughter on January 28, 2016. (Id.
at ¶ 30).
Tompkins-Holmes, who survived the shooting, alleges that
Deputy Virden’s use of force was excessive and caused by
Sheriff Gualtieri’s customs and policies, including:
3
(1) aggressive community policing resulting in
excessive uses of force by deputies, (2) a
deliberate policy to not have deputies utilize
body-worn cameras to video record interactions with
citizens despite the knowledge that body-worn
cameras deter incidents of excessive force, and (3)
a lack of training or inadequate training of
deputies.
(Id. at ¶ 4).
On December 8, 2016, Tompkins-Holmes filed his Complaint
in state court, bringing five counts: (1) a 42 U.S.C. § 1983
claim against Sheriff Gualtieri in his official capacity for
maintaining a policy and practice of excessive force; (2) a
§
1983
claim
against
Sheriff
Gualtieri
in
his
official
capacity for the failure to properly train and supervise
deputies; (3) a § 1983 excessive force claim against Deputy
Virden in his individual capacity; (4) a state law battery
claim against Sheriff Gualtieri in his official capacity; and
(5) a state law negligence claim against Sheriff Gualtieri in
his official capacity. (Doc. # 2). On January 6, 2017, Sheriff
Gualtieri and Deputy Virden removed the case to this Court.
(Doc. # 1).
Subsequently, Sheriff Gualtieri and Deputy Virden filed
the instant Motions to Dismiss on January 13, 2017, (Doc. ##
10-11), to which Tompkins-Holmes has responded (Doc. ## 14,
16). The Motions are ripe for review.
4
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint. Stephens v. Dep’t of
Health
&
Human
Servs.,
901
F.2d
1571,
1573
(11th
Cir.
1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
5
III. Analysis
A.
Shotgun Pleading
Both Deputy Virden and Sheriff Gualtieri contend that
the
Complaint
is
an
impermissible
shotgun
pleading.
The
Eleventh Circuit has described four varieties of shotgun
complaints: (1) “a complaint containing multiple counts where
each count adopts the allegations of all preceding counts”;
(2) a complaint that is “replete with conclusory, vague, and
immaterial facts not obviously connected to any particular
cause of action”; (3) a complaint that does “not separat[e]
into a different count each cause of action or claim for
relief”; and (4) a complaint that “assert[s] multiple claims
against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against.” Weiland
v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23
(11th Cir. 2015). “The unifying characteristic of all types
of shotgun pleadings is that they fail to . . . give the
defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. at 1323.
Deputy
Virden
and
Sheriff
Gualtieri
argue
that
the
Complaint is the first type of shotgun pleading because the
first sixty paragraphs are incorporated into each of the five
6
counts. But, the first sixty paragraphs of the Complaint are
general factual and jurisdictional allegations. (Doc. # 2 at
¶¶ 1-60). Each separate count is not rolled into the next,
and, thus, the Complaint is not the first type of shotgun
pleading.
See
Weiland,
792
F.3d
at
1324
(holding
that
complaint re-alleging its first forty-nine paragraphs in each
count was not a shotgun pleading because “[t]he allegations
of each count are not rolled into every successive count on
down the line”).
Still, Deputy Virden and Sheriff Gualtieri complain that
only factual allegations relevant to each specific claim
should be incorporated into each count. While the general
allegations are long and it may be a better practice to
incorporate
only
specific
factual
allegations
into
each
count, it is clear from reading the allegations which acts
each Defendant is alleged to have committed. See Id. (“[T]his
is not a situation where a failure to more precisely parcel
out and identify the facts relevant to each claim materially
increased the burden of understanding the factual allegations
underlying each count”). Tompkins-Holmes alleges that Deputy
Virden fired two shots into his abdomen and hip at close range
even
though
physically
Tompkins-Holmes
resist.
He
was
likewise
7
handcuffed
and
complains
that
did
not
Sheriff
Gualtieri maintained a custom or policy of excessive force
and inadequate training that allowed this incident to occur.
Therefore, the Complaint gives Deputy Virden and Sheriff
Gualtieri adequate notice of the claims against them and is
not an impermissible shotgun pleading.
For the same reason, Deputy Virden’s request that the
Court grant his alternative Motion for More Definite Statement
is denied. Under Federal Rule of Civil Procedure 12(e),
A party may move for a more definite statement of
a pleading to which a responsive pleading is allowed
but which is so vague or ambiguous that the party
cannot reasonably prepare a response.
Fed. R. Civ. P. 12(e). “The federal system employs notice
pleading and therefore, motions for more definite statement
are disfavored.”
Dobruck v. Borders, No. 8:16-cv-1869-T-
33JSS,
5391395,
2016
WL
at
*4
(M.D.
Fla.
Sept.
27,
2016)(quoting Lucibello v. Gulf Coast Energy, L.L.C., No.
2:05-cv-274-FTM-33DNF, 2005 WL 5954963, at *3 (M.D. Fla. Sept.
19, 2005)). “The basis for granting a motion for more definite
statement is unintelligibility, not lack of detail; as long
as the defendant is able to respond, even if only with simple
denial, in good faith, without prejudice, the complaint is
deemed sufficient.” SEC v. Dig. Lightwave, Inc., 196 F.R.D.
698,
700
(M.D.
Fla.
2000).
8
The
Court
finds
that
the
Complaint’s detailed allegations regarding Deputy Virden’s
shooting of Tompkins-Holmes are not “so vague or ambiguous”
that Deputy Virden could not reasonably frame a responsive
pleading to the excessive force claim.
B.
Deputy Virden
Deputy
Virden
argues
that
Count
III,
a
claim
for
excessive force brought under § 1983, should be dismissed
because he is entitled to qualified immunity. (Doc. # 11 at
3). Tompkins-Holmes retorts that Deputy Virden is not entitled
to qualified immunity because “no reasonable officer could
have believed that shooting a handcuffed, unarmed suspect who
poses no risk was permissible.” (Doc. # 14 at 6).
“Qualified immunity offers protection for government
officials, acting within their discretionary authority, who
are sued in their individual capacities as long as ‘their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Collier v. Dickinson, 477 F.3d 1306, 1308 (11th Cir.
2007)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The parties do not appear to dispute that Deputy Virden was
acting within his discretionary authority at the time of the
incident. See (Doc. # 11 at 4-5; Doc. # 14 at 3).
9
Concerning the existence of a constitutional violation,
“[t]he Fourth Amendment’s freedom from unreasonable searches
and seizures encompasses the plain right to be free from the
use of excessive force in the course of an arrest.” Lee v.
Ferraro,
284
F.3d
1188,
1197
(11th
Cir.
2002)(citation
omitted). Determining whether the force used is reasonable
under the Fourth Amendment requires a careful balancing of
the “nature of the intrusion on the individual’s Fourth
Amendment interest against the countervailing governmental
interest at stake.” Jackson v. Sauls, 206 F.3d 1156, 1170–71
(11th Cir. 2000)(citations omitted). The application of this
test requires:
[C]areful attention to the facts and circumstances
of each particular case, including [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.
Graham v. Connor, 490 U.S. 386, 396 (1989). In turn, “[u]se
of force, must be judged on a case-by-case basis ‘from the
perspective of a reasonable officer on the scene, rather than
the
20/20
vision
of
hindsight.’”
Post
v.
City
of
Fort
Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)(quoting Graham,
490 U.S. at 396). Further, evaluating the reasonableness of
the force used requires allowing for “the fact that police
10
officers are often forced to make split-second judgments — in
circumstances that are tense, uncertain, and rapidly evolving
— about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396–97. But, taking the
allegation
that
Deputy
Virden
twice
shot
an
unarmed,
handcuffed man, who was not physically resisting, in the
backseat
of
a
patrol
vehicle
as
true,
the
Complaint
sufficiently alleges a violation of Tompkins-Holmes’s Fourth
Amendment rights. Cf. Vinyard v. Wilson, 311 F.3d 1340, 1349
(11th Cir. 2002)(finding a Fourth Amendment violation where
an officer pepper sprayed an arrestee who was “under arrest
for offenses of minor severity, handcuffed, secured in the
back of a patrol car, and posing no threat to [the officer],
herself or the public”).
The next question is whether that right was “clearly
established” – that is, whether “in light of preexisting law,
the unlawfulness of the official’s conduct is ‘apparent.’”
Cooper
v.
Dillon,
403
F.3d
1208,
1220
(11th
Cir.
2005)(citations omitted). Thus, an official is entitled to
qualified immunity unless the official has fair warning that
his
conduct
is
unlawful.
Id.
The
Eleventh
identified three categories of fair warning:
11
Circuit
has
First, . . . whether the federal statute or
constitutional provision is so clear, and the
conduct is so bad, that it precludes qualified
immunity even in the total absence of case law.
Second, if the conduct is not bad enough that it
violates a constitutional provision on its face, [a
court] look[s] to case law that can be applied
broadly to a number of factual situations. Third,
and finally, if no broad case law is applicable,
[the court] turns to case law precedent that is
tied to the facts.
Kesinger v. Herrington, 381 F.3d 1243, 1250 n.6 (11th Cir.
2004).
As
stated
by
the
Eleventh
Circuit,
“For
qualified
immunity to be surrendered, pre-existing law must dictate,
that is, truly compel (not just suggest or allow or raise a
question about), the conclusion for every like-situated,
reasonable government agent that what the defendant is doing
violates federal law in the circumstances.” Lassiter v. Ala.
A & M Univ., 28 F.3d 1146, 1150 (11th Cir. 1994). The Eleventh
Circuit has warned that “courts must not permit plaintiffs to
discharge their burden by referring to general rules and to
the violation of ‘abstract rights.’” Id.; Hunter v. City of
Warner
Robins,
Ga.,
842
F.
Supp.
1460,
1469
(M.D.
Ga.
1994)(“Unless it can be said that the state of the law was of
such clarity that a reasonable official should have been on
notice that his or her challenged conduct was unlawful, that
official is entitled to qualified immunity.”).
12
At this stage, where the Court is required to take the
Complaint’s allegations as true, Tompkins-Holmes has alleged
a violation of clearly established law. As the Eleventh
Circuit has previously held that pepper spraying a handcuffed,
unarmed arrestee who was not resisting in the back of a patrol
vehicle
qualifies
as
excessive
force,
it
was
clearly
established at the time of Tompkins-Holmes’s shooting that
twice shooting a similarly handcuffed, unarmed arrestee who
was not physically resisting while in the backseat of a patrol
vehicle is an excessive use of force. See Vinyard, 311 F.3d
at 1348-49 (“Courts have consistently concluded that using
pepper spray is excessive force in cases where the crime is
a minor infraction, the arrestee surrenders, is secured, and
is not acting violently, and there is no threat to the
officers or anyone else.”); see also Hadley v. Gutierrez, 526
F.3d 1324, 1330 (11th Cir. 2008)(“The court found that Officer
Ortivero punched Hadley in the stomach while he was handcuffed
and
not
struggling
or
resisting.
Our
cases
hold
that
gratuitous use of force when a criminal suspect is not
resisting arrest constitutes excessive force.”).
Therefore, for the purposes of the pending Motion to
Dismiss, Tompkins-Holmes has sufficiently alleged facts to
carry his burden of showing that Deputy Virden is not entitled
13
to qualified immunity. Holloman ex rel. Holloman v. Harland,
370 F.3d 1252, 1264 (11th Cir. 2004)(noting that it is the
plaintiff’s burden “to show that the defendant is not entitled
to
qualified
immunity”
(emphasis
original)).
Count
III
survives dismissal and Deputy Virden’s Motion to Dismiss is
denied.
C.
Sheriff Gualtieri
1.
Monnell Claims
Counts I and II of the Complaint bring § 1983 claims
against Sheriff Gualtieri in his official capacity. In Count
I, Tompkins-Holmes contends that Sheriff Gualtieri maintained
a
custom
or
policy
“of
condoning
[]
deputies’
use
of
aggressive and excessive force without lawful justification
and the deliberate policy to not have deputies utilize bodyworn cameras which would video record deputies’ interactions
with citizens.” (Doc. # 2 at ¶ 63). In Count II, he alleges
that Sheriff Gualtieri failed “to properly train, supervise,
oversee, and control his deputies,” which “amount[s] to a
deliberate indifference to the rights of the persons with
whom the [] deputies come in contact.” (Id. at ¶ 74).
It is well-established that “a municipality may not be
held
liable
under
§
1983
solely
because
it
employs
a
tortfeasor.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
14
U.S. 397, 403 (1997). Rather, to recover damages from the
Sheriff under § 1983, Tompkins-Holmes must show: “(1) that
[his]
constitutional
municipality
had
a
rights
were
custom
or
violated;
policy
(2)
that
that
the
constituted
deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.” McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir.2004)(citing City of
Canton v. Harris, 489 U.S. 378, 388 (1989)).
The Court has determined that the Complaint sufficiently
pleads a constitutional violation: that Deputy Virden used
excessive force on Tompkins-Holmes in violation of TompkinsHolmes’s Fourth Amendment rights. Therefore, the issue is
whether Tompkins-Holmes has sufficiently alleged a custom or
policy perpetuated by Sheriff Gualtieri.
A plaintiff seeking to impose liability on a municipality
under § 1983 must identify a particular municipal “policy” or
“custom” that caused the constitutional injury. Bd. of Cty.
Comm’rs of Bryan Cty., 520 U.S. at 403.
A policy is a decision that is officially adopted
by the municipality, or created by an official of
such rank that he or she could be said to be acting
on behalf of the municipality. . . . A custom is a
practice that is so settled and permanent that it
takes on the force of law.
15
Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999)(quoting
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997)); see also Griffin v. City of Opa–Locka, 261 F.3d 1295,
1307 (11th Cir. 2001). Tompkins-Holmes must show that Sheriff
Gualtieri’s policy or custom was the “moving force” that
caused the constitutional violation in order to establish
Sheriff Gualtieri’s § 1983 liability. McElligott v. Foley,
182 F.3d 1248, 1259 (11th Cir. 1999); Young v. City of
Augusta, GA., 59 F.3d 1160, 1171 (11th Cir. 1995).
Regarding Count I, Sheriff Gualtieri argues that the
other incidents of excessive force identified by TompkinsHolmes in his Complaint are not sufficiently similar to the
shooting of Tompkins-Holmes to establish a policy or custom
of excessive force. (Doc. # 10 at 11). Sheriff Gualtieri
claims that the other incidents occurred in Pinellas County
jails rather than during traffic stops like the one during
which Tompkins-Holmes was shot. (Id.). Even if a pervasive
use of excessive force by deputies in county jails could not
support that Sheriff Gualtieri encouraged his deputies to use
excessive force generally, it is not clear from the wording
of the Complaint that all the incidents enumerated occurred
in
jail.
location
Tompkins-Holmes
of
the
states,
incidents,
16
that
without
indicating
“[d]eputies
the
recently
responded to a call for medical help for a Navy veteran with
post-traumatic stress disorder and while taking him into
custody Tasered him so excessively that he died” and a “deputy
was
found
to
have
used
excessive
force
by
dragging
a
defenseless wheelchair-bound man to the ground by the neck
and striking him with his fist and knees.” (Doc. # 2 at ¶
17(A), (E)). Furthermore, Tompkins-Holmes alleges:
Plaintiff has received multiple reports (anonymous
or requested to be kept anonymous) regarding Deputy
Virden and other deputies using excessive force
under similar circumstances which suggests a
pattern of misconduct. One report included the
allegation
that
a
citizen
was
excessively
manhandled for telling another person not to submit
to DUI testing.
(Id. at ¶ 81 n.7). Taking these allegations as true, TompkinsHolmes has plausibly alleged a pattern of similar conduct
that may be explored further during discovery.
To be sure, most of the cases emphasizing the importance
of similar incidents cited by Sheriff Gualtieri were decided
at the summary judgment stage, after the plaintiffs had the
benefit
of
discovery
to
establish
a
pattern
of
similar
incidents. See, e.g., Mercado v. City of Orlando, 407 F.3d
1152, 1162 (11th Cir. 2005)(affirming summary judgment for
City because “[d]uring discovery, [plaintiff] was given a
list of all cases involving excessive force, but he cannot
17
show that any of them involved factual situations that are
substantially similar to the case at hand”); McDowell v.
Brown, 392 F.3d 1283, 1290–91 (11th Cir. 2004)(“Simply put,
this
isolated
demonstrate
incident,
evidence
of
however
the
unfortunate,
County’s
does
‘persistent’
not
or
‘widespread’ policy of understaffing the Jail so as to delay
the transfer of inmates to Grady.”); MacMillan v. Roddenberry,
No. 5:08-cv-351-Oc-10GRJ, 2010 WL 668281, at *3 (M.D. Fla.
Feb.
19,
2010),
aff’d,
432
F.
App’x
890
(11th
Cir.
2011)(granting summary judgment for sheriff where “none of
the complaints [of other excessive force incidents] presented
here
involved
factual
situations
that
are
substantially
similar to the case at hand”).
Tompkins-Holmes also asserts that Sheriff Gualtieri’s
attitude towards body-worn cameras, including the Sheriff’s
refusal to use them because they are “insulting,” is evidence
that
the
Sheriff
customarily
avoided
monitoring
of
his
deputies’ use of force. (Id. at ¶¶ 18-19). Indeed, according
to Tompkins-Holmes, the audio-recording that belied Deputy
Virden’s version of the shooting
was inadvertently-made,
because another deputy on the scene had intentionally turned
off the video camera in the patrol vehicle but unintentionally
left on the audio recording aspect of the device before the
18
incident. (Id. at ¶¶ 13, 28). While additional evidence and
a
higher
required
degree
to
allegations
of
similarity
ultimately
in
the
prove
Complaint
between
a
incidents
custom
that
or
may
policy,
Sheriff
be
the
Gualtieri
maintained a policy of employing excessive force, and of
avoiding recordings of deputies to facilitate that use of
force, go sufficiently beyond legal conclusions.
At the motion to dismiss stage, the Court finds that
Tompkins-Holmes has sufficiently pled a purported custom or
policy of excessive force by Sheriff Gualtieri. See Holder v.
Gualtieri, No. 8:14-cv-3052-T-33JSS, 2015 WL 4079844, at *4
(M.D. Fla. July 6, 2015)(“While the Sheriff contends that no
facts have been asserted to sustain a claim under section
1983 municipal liability, the Court finds that Holder has
satisfied his burden, at this stage, of alleging a custom or
usage
with
force
of
law.”).
If
these
allegations
are
established, Tompkins-Holmes will have shown that Sheriff
Gualtieri maintained a custom sufficient to create municipal
liability. See Fundiller v. City of Cooper City, 777 F.2d
1436, 1443 (11th Cir. 1985)(“The complaint states that the
City of Cooper City has a custom of allowing the use of
excessive force. If established, this allegation provides the
19
requisite fault on the part of the City . . . thereby
establishing a ‘custom’ within the meaning of Monell.”).
Regarding the failure to train claim, Count II, TompkinsHolmes has also sufficiently pled that Sheriff Gualtieri
failed to train his deputies, leading to the use of excessive
force against Tompkins-Holmes. An inadequate training program
can be the basis for § 1983 liability in limited circumstances
where the municipality adhered to an approach that failed to
prevent tortious conduct by employees. Bd. of Cty. Comm’rs of
Bryan Cty., 520 U.S. at 407 (citing City of Canton, 489 U.S.
at 387–390). “A pattern of tortious conduct by employees can
show that the lack of proper training constituted the ‘moving
force’ behind the plaintiff’s alleged injury.” Miller v. City
of Tampa, No. 8:10-cv-487-T-33EAJ, 2011 WL 2631974, at *2
(M.D. Fla. July 5, 2011)(citing Bd. of Cty. Comm’rs of Bryan
Cty., 520 U.S. at 407–408; Lewis v. City of W. Palm Beach,
Fla., 561 F.3d 1288 (11th Cir. 2009)).
Here, Tompkins-Holmes has alleged numerous incidents of
excessive force, supposedly caused by inadequate training on
the use of force. (Doc. # 2 at ¶ 17, 78, 80). Tompkins-Holmes
also contends that Deputy Virden was emotionally unstable and
known to use his Taser unnecessarily, but was not corrected
by
Sheriff
Gualtieri.
(Id.
at
20
¶¶
55,
57).
Furthermore,
Tompkins-Holmes asserts that Sheriff Gualtieri’s refusal to
record deputies with body-worn cameras supports that Sheriff
Gualtieri
was
deliberately
indifferent
to
citizens’
constitutional rights. (Id. at ¶ 81). At this juncture,
Tompkins-Holmes’s allegations regarding Sheriff Gualtieri’s
failure to train sufficiently state a claim.
2.
State Tort Claims
Counts VI and V bring state tort claims for battery and
negligence
against
Sheriff
Gualtieri
in
his
official
capacity. Sheriff Gualtieri argues that these claims should
be dismissed because he has sovereign immunity over the
battery claim and the negligence claim fails (1) to state a
cognizable claim and (2) to identify either a duty he owed to
Tompkins-Holmes or a breach of that duty. (Doc. # 10 at 1314).
Regarding
the
battery
claim,
Count
IV,
section
768.28(9), Fla. Stat., states in part:
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.
Fla. Stat. § 768.28(9)(a). Sheriff Gualtieri argues that
“[s]hooting a handcuffed subject who is not resisting in any
21
way in anger because he challenged the officer’s manhood is
the very definition of the kind of conduct ‘exhibiting wanton
and willful disregard of human rights, safety, or property,’”
so that the Court can determine that Sheriff Gualtieri is
immune to the negligence claim as a matter of law. (Doc. # 10
at 15).
But, as Tompkins-Holmes notes, the Complaint states:
“Deputy Virden’s conduct was intentional, but was not willful,
wanton, or malicious.” (Doc. # 2 at ¶ 97). Although the Court
is not required to accept legal conclusions as true, it is
plausible that Deputy Virden did not act with malice when he
removed
Tompkins-Holmes
from
the
car,
manhandled
and
handcuffed him, and subsequently shot him. “Florida courts
have recognized a distinction between ‘intentional’ torts and
those torts that are done with bad faith, malicious purpose,
or willful or wanton disregard of human rights, safety, or
property.” Smith-Grimes v. City of W. Palm Beach, No. 1181201-CIV, 2013 WL 594018, at *4 n.2 (S.D. Fla. Feb. 14,
2013)(citing Richardson v. City of Pompano Beach, 511 So.2d
1121, 1122 (4th DCA 1987)).
It is best left for the fact-finder to determine whether
Deputy Virden acted in bad faith, with malicious purpose, or
willful or wanton disregard for human rights, safety, and
22
property after the benefit of discovery. See Johnson v.
Cannon, 947 F. Supp. 1567, 1574 (M.D. Fla. 1996)(“The fact
that a deputy ‘may have intentionally abused his office does
not in itself shield the sheriff from liability.’ It is up to
the fact-finder to determine whether bad faith, malicious
purpose, or willful or wanton disregard of human rights,
safety, or property was present.” (citing McGhee v. Volusia
Cty., 679 So. 2d 729, 733 (Fla. 1996))). While Tompkins-Holmes
alleges that Deputy Virden intentionally shot him, it is not
clear from the Complaint that Deputy Virden shot TompkinsHolmes with malicious purpose such that Sheriff Gualtieri is
entitled to sovereign immunity at this stage. Therefore, the
battery claim will not be dismissed.
For the negligence claim, Count V, Sheriff Gualtieri
argues that Tompkins-Holmes has not pled a cognizable claim
because none of the duties listed by Tompkins-Holmes run to
the Sheriff. (Doc. # 10 at 14). These duties include:
(a) To refrain from using excessive and/or
unreasonable force against Tompkins-Holmes;
(b) To refrain from unreasonably
situation where force is used;
(c) To refrain from
granted them by law;
abusing
creating
their
the
authority
(d) To use tactics and force appropriate for a
given situation where an individual, such as
23
Tompkins-Holmes, does not possess a weapon and
poses no threat of harm or ability to flee;
(e) To refrain from violating Tompkins-Holmes’s
rights
guaranteed
by
the
United
States
Constitution, and as otherwise protected by law;
[and]
(f) To refrain from threatening and/or brandishing
a weapon in a manner that permits it to be
negligently discharged.
(Doc. # 2 at ¶ 105).
Tompkins-Holmes
Gualtieri
did
owe
persuasively
a
cognizable
responds
duty
to
that
Sheriff
Tompkins-Holmes,
because Tompkins-Holmes was in Deputy Virden’s custody and
foreseeably at risk of harm at the time of the shooting. See
Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989)(“Under these
circumstances, petitioner clearly was sufficiently restrained
of liberty to be in the ‘custody’ or control of the police.
Thus, the officers owed him and his family a duty of care
arising under the common law of Florida.”); see also Lewis v.
City of St. Petersburg, 260 F.3d 1260, 1263 (11th Cir.
2001)(“[R]eiterating Florida law, when a defendant, including
a police officer, by his or her conduct creates a foreseeable
zone of risk, the law imposes a duty owed by the defendant to
all
individuals
within
the
zone
care.”).
24
to
act
with
reasonable
Next, Sheriff Gualtieri argues that this Count should be
dismissed because it is indistinguishable from a “negligent
use of excessive force” claim. Florida law does not recognize
the negligent use of excessive force as a cause of action.
See Secondo v. Campbell, 327 F. App’x 126, 131 (11th Cir.
2009)(“Because
the
Florida
courts
have
conclusively
established that a cause of action for the negligent use of
excessive force is an oxymoron, Secondo’s state law negligence
argument must fail.”); City of Miami v. Sanders, 672 So. 2d
46, 48 (Fla. 3d DCA 1996). A negligence claim “must pertain
to something other than the actual application of force during
the course of the arrest.” City of Miami, 672 So. 2d at 48.
Many of the duties enumerated by Tompkins-Holmes relate to
the
manner
in
which
Deputy
Virden
forcibly
manhandled,
handcuffed, and shot him. Thus, those duties involve the same
conduct as a battery claim. Id. at 47 (“The problem with
Sanders’ [negligence] legal theory is that a suit for a police
officer’s use of excessive force necessarily involves the
intentional tort of battery.”).
Still, “a separate negligence claim based upon a distinct
act of negligence may be brought against a police officer in
conjunction with a claim for excessive use of force.” Id. at
48. And, “Florida law [] clearly recognizes a cause of action
25
for the negligent handling of a firearm and the negligent
decision to use a firearm separate and distinct from an
excessive force claim.” Lewis, 260 F.3d at 1263. At least one
duty enumerated by Tompkins-Holmes — the duty “[t]o refrain
from threatening and/or brandishing a weapon in a manner that
permits
it
to
be
negligently
discharged”
—
supports
a
cognizable claim based on the negligent handling of a firearm.
Indeed, Tompkins-Holmes described Deputy Randall’s theory
that “Deputy Virden had mistaken his previously drawn Taser
for his pistol” and had intended to Taser Tompkins-Holmes,
rather than shoot him. (Doc. # 2 at ¶¶ 58-59). As such, a
negligence claim could be brought against Deputy Virden, and
that
claim
can
be
brought
against
Sheriff
Gualtieri
vicariously. Therefore, Count V survives dismissal.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant Sheriff Robert Gualtieri’s Motion to Dismiss
(Doc. # 10) is DENIED.
(2)
Defendant Deputy Timothy Virden’s Motion to Dismiss or
for More Definite Statement (Doc. # 11) is DENIED.
26
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of February, 2017.
27
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