Butler v. Gualtieri et al

Filing 126

ORDER: "Defendant's, Bob Gualtieri, as Sheriff of Pinellas County, in his Official Capacity, Motion for Final Summary Judgment" (Doc. 97) is hereby granted in part and denied in part. The motion is granted to the extent that sum mary judgment shall be entered in favor of Defendant, and against Plaintiff, on Count V of the second amended complaint. The Court will enter a final judgment once all claims have been resolved. The motion is otherwise denied. "Plaintiff's Motion for Summary Judgment on Count One of Her Second Amended Complaint" (Doc. 101) is hereby denied. See Order for details. Signed by Judge Thomas P. Barber on 6/3/2021. (ANL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARIE BUTLER,
Plaintiff,
v.

Case No. 8:19-cv-2771-TPB-TGW

BOB GUALTIERI, in his official
capacity as Sheriff of Pinellas
County, and AMY GEE,
in her individual capacity,
Defendants.
________________________________/
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on “Defendant’s, Bob Gualtieri, as Sheriff of
Pinellas County, in his Official Capacity, Motion for Final Summary Judgment”
(Doc. 97), filed on January 29, 2021, and on “Plaintiff’s Motion for Summary
Judgment on Count One of Her Second Amended Complaint,” filed on February 1,
2021 (Doc. 101). The parties responded in opposition (Docs. 108; 111) and filed
replies (Docs. 118; 119). On April 7, 2021, and April 14, 2021, the Court held a
bifurcated hearing to address the summary judgment motions. Following the
hearing, the parties were permitted to submit written closing arguments. (Docs.
124; 125). After reviewing the motions, responses, replies, evidence, legal
arguments, court file, and the record, the Court finds as follows:

Page 1 of 10

Background
On January 8, 2019, Plaintiff Marie Butler was arrested for disorderly
intoxication, a second-degree misdemeanor, and was taken to the Pinellas County
Jail. While at booking, Plaintiff was injured when Amy Gee, a deputy at the
Pinellas County Sheriff’s Office (“PCSO”) at that time, performed a takedown on
her. During the takedown, Plaintiff, who was handcuffed behind her back, broke
her left arm. Gee then pulled Plaintiff to her feet by grabbing Plaintiff’s broken
arm. Plaintiff’s husband filed a complaint against Gee with the PCSO
Administrative Investigation Division. The PCSO ultimately determined that Gee’s
use of force was not reasonable, and Gee’s employment was terminated on April 5,
2019.
Plaintiff now sues Bob Gualtieri, in his official capacity as Sheriff of Pinellas
County, for battery and negligence based on vicarious liability, and for Monell
liability under 42 U.S.C. § 1983. She has moved for summary judgment on Count
One, a supplemental state law battery claim, arguing that no reasonable jury could
find (1) that a battery did not occur, and (2) that Deputy Amy Gee acted in bad
faith, with malicious purpose, or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property. The Sheriff has moved for summary
judgment on Count One, arguing that no reasonable jury could find (1) that a
battery did not occur, and (2) that Deputy Amy Gee did not act in bad faith, with
malicious purpose, or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property. The Sheriff also has moved for summary

Page 2 of 10

judgment on Count Five, Plaintiff’s Monell claim, arguing that Plaintiff has failed to
and cannot establish that the Sheriff had notice of any pattern of similar
constitutional violations.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary
judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of
material fact will preclude summary judgment. Id.
The moving party bears the initial burden of showing that there are no
genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1260 (11th Cir. 2004). When the moving party has discharged its burden, the
nonmoving party must then designate specific facts showing the existence of
genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or
evidence, the nonmoving party’s evidence is presumed to be true and all reasonable
inferences must be drawn in the nonmoving party’s favor. Shotz v. City of
Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).
The standard for cross-motions for summary judgment is not different from
the standard applied when only one party moves for summary judgment. Am.
Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court

Page 3 of 10

must consider each motion separately, resolving all reasonable inferences against
the party whose motion is under consideration. Id. “Cross-motions for summary
judgment will not, in themselves, warrant the court in granting summary judgment
unless one of the parties is entitled to judgment as a matter of law on facts that are
not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.
1984) (quoting Bricklayers Int’l Union, Local 15 v. Stuart Plastering Co., 512 F.2d
1017 (5th Cir. 1975)).
Analysis
Count I – State Law Battery Claim Against Sheriff
Plaintiff and the Sheriff both seek summary judgment on Plaintiff’s state law
battery claim in Count I. To plead and prove a battery claim, a plaintiff must
establish that the defendant engaged in “the intentional infliction of a harmful or
offensive contact upon the person of another.” Gomez v. Lozano, 839 F. Supp. 2d
1309, 1322 (S.D. Fla. 2012). In the context of a battery claim against a law
enforcement officer, because officers possess a presumption of good faith in Florida,
an officer is only liable for battery if he or she uses excessive force. Id. When
analyzing this type of claim, the court focuses on “whether the amount of force used
was reasonable under the circumstances.” Id. at 1323.
In this case, the facts are largely undisputed. Indeed, both parties agree that
Gee’s use of force was “unnecessary, unreasonable, excessive, without just cause,
intentional, and without provocation.” Plaintiff has presented sufficient record
evidence to prove that a battery occurred, and the Sheriff concedes that the amount

Page 4 of 10

of force used against Plaintiff was unreasonable. However, the parties contest
whether sovereign immunity precludes Plaintiff’s battery claim.
“Both federal and Florida law demonstrate that a Florida municipality
retains immunity for acts or omissions of its employees that are committed in ‘bad
faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.’” Bussey-Morice v. Kennedy, No.
6:11-cv-970-Orl-36GJK, 2013 WL 71803, at *2 (M.D. Fla. Jan. 7, 2013) (quoting §
768.28(9)(a), F.S.). When considering the application of sovereign immunity here,
the Court examines whether a reasonable jury could find that Gee was acting in bad
faith, with malicious purpose, or in a manner exhibiting wanton or willful disregard
of human rights, safety or property at the time she used force against Plaintiff. 1
After careful review of the record and case law, the Court concludes that
there is a genuine issue of material fact as to whether Gee’s conduct crossed this
threshold when Gee performed a takedown on Plaintiff, broke her arm, and then
pulled her to her feet using her broken arm. See, e.g., Haberski v. Bufano, 728 F.
App’x 903, 909-10 (11th Cir. 2018) (affirming denial of defense summary judgment
motion after concluding that the facts – when viewed in light most favorable to the
plaintiff as the nonmoving party – demonstrated that the degree of force used by

Plaintiff argues that no reasonable jury could find that Gee was acting in bad faith, with
malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights,
safety or property. The Sheriff, on the other hand, contends that no reasonable jury could
find that Gee was not acting in bad faith, with malicious purpose, or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property. Ultimately, if a jury
found that Gee was acting in bad faith, with malicious purpose, or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property, the Sheriff would be
entitled to sovereign immunity and would prevail on his fifth affirmative defense.

1

Page 5 of 10

officer was unreasonable and sufficiently evidenced that officer acted with wanton
and willful disregard of human rights); Smith-Grimes v. City of West Palm Beach,
No. 11-81201-CIV, 2013 WL 594018, at *4 n.2 (S.D. Fla. Feb. 14, 2013) (explaining
that issue of whether officers’ conduct constituted wanton and willful disregard of
human rights that would allow the city immunity is a question of fact for the jury);
Kastritis v. City of Daytona Beach Shores, 835 F. Supp. 2d 1200, 1226 (M.D. Fla.
2011) (unreasonableness of search could support a jury finding of willful and
wanton conduct on the part of the officer); McGhee v. Volusia County, 679 So. 2d
729, 733 (Fla. 1996) (explaining that sheriff is only immune in very limited
circumstances, and concluding that issue of whether deputy acted in bad faith, with
malicious purpose, or in manner exhibiting wanton or willful disregard of human
rights, safety, or property when he kicked handcuffed plaintiff presented question of
fact for the jury). Consequently, the cross motions for summary judgment on this
claim are denied.
Count V – Monell Claim Against Sheriff
In Count V, Plaintiff asserts a § 1983 claim against the Sheriff, in his official
capacity, alleging that the Sheriff failed to train deputies on the use of force that
may be constitutionally inflicted on handcuffed detainees or arrestees. The Sheriff
moves for summary judgment on the Monell claim, arguing that Plaintiff has failed
to and cannot establish that the Sheriff had notice of any pattern of similar
constitutional violations.

Page 6 of 10

Under Monell, “[l]ocal governing bodies . . . can be sued directly under
§ 1983 for monetary, declaratory, or injunctive relief . . . pursuant to a
governmental ‘custom’ even though such a custom has not received formal approval
through the body’s official decisionmaking channels.” Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690-91 (1978). Municipalities can only be held liable, however, where
“action pursuant to official municipal policy of some nature caused a constitutional
tort;” it cannot be liable under § 1983 on a respondeat superior theory because it
employs a tortfeasor. Id. at 691. “Supervisor liability arises only ‘when the
supervisor personally participates in the allege constitutional violation or when
there is a causal connection between the actions of the supervising official and the
alleged constitutional deprivation.’” Gross v. Jones, No. 3:18-cv-594-J-39PDB, 2018
WL 2416236, at *4 (M.D. Fla. May 29, 2018) (quoting Mathews v. Crosby, 480 F.3d
1265, 1270 (11th Cir. 2007)). Consequently, “to impose § 1983 liability on a local
government body, a plaintiff must show: (1) that his constitutional rights were
violated; (2) that the entity had a custom or policy that constituted deliberate
indifference to that constitutional right; and (3) that the policy or custom caused the
violation.” Scott v. Miami-Dade Cty., No. 13-CIV-23013-GAYLES, 2016 WL
9446132, at *3 (S.D. Fla. Dec. 13, 2016).
To demonstrate a policy or custom, “it is generally necessary to show a
persistent and wide-spread practice; random acts or isolated incidents are
insufficient.” Id. at *4. The requisite causal connection can be established “when a
history of widespread abuse puts the responsible supervisor on notice of the need to

Page 7 of 10

correct the alleged deprivation, and he fails to do so.” Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003) (internal quotation omitted). “Alternatively, the causal
connection may be established when a supervisor’s custom or policy results in
deliberate indifference to constitutional rights or when facts support an inference
that the supervisor directed the subordinates to act unlawfully or knew the
subordinates would act unlawfully and failed to stop them from doing so.” Id.
(internal quotation and citation omitted).
Under certain limited circumstances, a municipality’s failure to “train certain
employees about their legal duty to avoid violating citizens’ rights may rise to the
level of an official government policy for purposes of § 1983.” Connick v. Thompson,
563 U.S. 51, 61 (2011). That being said, “a municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on a failure to
train.” Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985)). With
regard to a failure to train claim, “a supervisor can be held liable for failing to train
his or her employees ‘only where the failure to train amounts to deliberate
indifference to the rights of the persons with whom the [officers] come into contact.’”
Keith v. DeKalb County, 749 F.3d 1034, 1052 (11th Cir. 2014) (quoting City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). As such, a plaintiff asserting a
failure to train claim “must demonstrate that the supervisor had ‘actual or
constructive notice that a particular omission in their training program causes [his
or her] employees to violate citizens’ constitutional rights,’ and that armed with

Page 8 of 10

that knowledge the supervisor chose to retain that training program.” Id. (quoting
Connick v. Thompson, 563 U.S. at 61).
Plaintiff claims that her constitutional rights were violated through a custom
or policy of the Sheriff – namely, his failure to adequately train deputies on how to
perform physical takedowns of handcuffed detainees. To support her claim, she
points to six incidents that she believes demonstrate a pattern of incidents in which
handcuffed detainees were injured during takedowns, and she argues that the
Sheriff had knowledge or should have had knowledge of these incidents based on
certain reports he received.
The Court has very carefully reviewed the details of these incidents and the
reports. A significant amount of time was devoted to exploration of this issue
during the hearing on this motion. There is no evidence that the Sheriff reviewed
these reports and had actual notice of the incidents. Moreover, based on the nature
of these reports, the Sheriff could not have constructive notice of similar
constitutional violations. The reports identify incidents where force was used, but
they do not sufficiently describe the nature of the incident underlying the use of
force – it is not clear from looking at these reports that the incidents of force were
related to handcuffed detainees. Moreover, having heard details about these
incidents, the Court concludes that these six incidents are not sufficiently similar to
the violation at issue here and cannot have put the Sheriff on notice that specific
training was necessary to avoid the alleged constitutional violation. The Sheriff’s
motion for summary judgment is granted as to this ground.

Page 9 of 10

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) “Defendant’s, Bob Gualtieri, as Sheriff of Pinellas County, in his Official
Capacity, Motion for Final Summary Judgment” (Doc. 97) is hereby
GRANTED IN PART and DENIED IN PART. The motion is granted to
the extent that summary judgment shall be entered in favor of Defendant,
and against Plaintiff, on Count V of the second amended complaint. The
Court will enter a final judgment once all claims have been resolved. The
motion is otherwise denied.
(2) “Plaintiff’s Motion for Summary Judgment on Count One of Her Second
Amended Complaint” (Doc. 101) is hereby DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 3rd day of
June, 2021.

TOM BARBER
UNITED STATES DISTRICT JUDGE

Page 10 of 10