Sanchez v. Chronister et al
ORDER denying 28 motion to dismiss. Defendants shall file their answer and defenses within fourteen (14) days. Signed by Judge William F. Jung on 10/11/2019. (JWW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RACQUEL MARIE SANCHEZ,
Case No. 8:19-cv-01696-T-02SPF
CHAD CHRONISTER, as Sheriff of
Hillsborough County, Florida, in his official
capacity; and DEAN GREENE, II, in his
This matter comes to the Court on a Second Motion to Dismiss filed by the
Defendants, Chad Chronister and Dean Greene. Dkt. 28. Plaintiff, Racquel
Sanchez, filed a response to this motion, Dkt. 30, to which Defendants replied,
Dkt. 32. The Court denies the Defendants’ Motion to Dismiss. Dkt. 28.
As relevant for the purposes of this Order, Ms. Sanchez alleges the
following facts. Ms. Sanchez was the driver of a vehicle that was detained by a
group of Hillsborough County Sheriff’s deputies—including Defendant Greene—
during a stolen firearm “buy-bust” operation. Dkt. 26 ¶¶ 9 & 13. Ms. Sanchez
alleges that, despite her complete compliance with the deputies, at some point
during the detention Defendant Greene’s firearm discharged and struck her in the
left thigh. Id. ¶¶ 21–27. Ms. Sanchez alleges that Defendant Greene indicated to
Sheriff’s Sergeant Christopher Rule that the discharge of the firearm was
intentional. Id. ¶ 30.
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). In considering the motion, the court
accepts all factual allegations of the complaint as true and construes them in the
light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284
(11th Cir. 2008) (citation omitted). Courts should limit their “consideration to the
well-pleaded factual allegations, documents central to or referenced in the
complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004) (citations omitted).
Defendants argue that Count II of Ms. Sanchez’s Amended Complaint, Dkt.
26, a claim for negligence, must be dismissed. Dkt. 28 at 3. Defendants argue that
Count II alleges a claim of negligence based on an intentional tort, which is not
recognized as a cause of action under Florida law. Id. Ms. Sanchez argues that
Count II of her Amended Complaint is merely an alternative pleading to her first
count, alleging an intentional tort related to excessive force by Defendant Greene.
Dkt. 30 at 2.
As Defendants note, Florida does not recognize “negligent use of excessive
force.” See City of Miami v. Sanders, 672 So. 2d 46, 47–48 (Fla. 3d DCA
1996) (“[I]t is not possible to have a cause of action for ‘negligent’ use of
excessive force because there is no such thing as the ‘negligent’ commission of an
‘intentional’ tort.”). “Florida law, however, clearly recognizes a cause of action for
the negligent handling of a firearm and the negligent decision to use a firearm
separate and distinct from an excessive force claim.” Lewis v. City of St.
Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001); see also Trianon Park Condo.
Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 920 (Fla. 1985) (recognizing that
existing common law duties of care apply to government employees in “the
handling of firearms during the course of their employment to enforce compliance
with the law”). Further, these separate negligence claims can be brought in
conjunction with claims of intentional torts so long as the negligence relates to
something other than the actual use of force. See Mazzilli v. Doud, 485 So. 2d 477,
479–80 (Fla. 3d DCA) (upholding negligence claims—brought in conjunction with
intentional torts—arising from law enforcement failure to exercise reasonable care
when utilizing firearms), rev. dismissed, 492 So. 2d 1333 (Fla. 1986).
Count II of the Complaint alleges an alternate possibility that rather than
intentionally discharging his firearm Detective Greene accidently discharged his
firearm—clearly a recognized cause of action under Florida law. In fact, in their
Answer Defendants state, as an affirmative defense, that “Detective Greene’s
discharge of his firearm was purely accidental.” Dkt. 29 at 4. The allegations
related to negligence are separate and distinct from the allegations regarding the
intentional tort claim because they are alternative claims—meaning, at most, only
one of the claims could be true.
And, as both parties acknowledge, pleading in the alternative is acceptable.
Dkts. 30 at 2 & 32 at 2; see Fed. R. Civ. P. 8(d)(2). At this stage of the proceedings
the facts surrounding Detective Greene shooting Ms. Sanchez are unclear. It may
very well turn out that Detective Greene intentional discharged his weapon or that
it was entirely an accidental slip of his finger. Ms. Sanchez can plead both of these
claims and adjust accordingly should either scenario turn out to be accurate. As
such, Count II states a viable claim for relief from negligence on the part of the
For the reasons stated above, this Court denies Defendants’ Motion to
Dismiss. Dkt. 28. Defendants shall file their answer and defenses within fourteen
DONE AND ORDERED at Tampa, Florida, on October 11, 2019.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
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