Johnson v. Nocco et al

Filing 39

ORDER: The "Motion to Dismiss First Amended Complaint by Defendants Sheriff Nocco and Dunn" (Doc. 26) is hereby granted in part and denied in part. The motion is granted as to Counts III, IV, VI, VII, and VIII. Counts III, IV, VI, VII , and VIII of Plaintiff's amended complaint are dismissed with prejudice. The motion is otherwise denied. Defendants are directed to file an answer on or before March 4, 2021. See Order for details. Signed by Judge Thomas P. Barber on 2/18/2021. (ANL)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARQUES A. JOHNSON,
Plaintiff,
v.

Case No. 8:20-cv-1370-TPB-JSS

CHRIS NOCCO, in his official capacity
as Sheriff, Pasco County, Florida, and
JAMES DUNN, in his individual capacity,
Defendants.

/

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT
This matter is before the Court on the “Motion to Dismiss First Amended
Complaint by Defendants Sheriff Nocco and Dunn,” filed on December 14, 2020.
(Doc. 26). On January 18, 2021, Plaintiff Marques A. Johnson filed his response in
opposition. (Doc. 29). The parties filed notices of supplemental authority. (Docs.
34; 35). Upon review of the motion, response, supplemental authority, court file,
and record, the Court finds as follows:
Background 1
Plaintiff Marques A. Johnson is suing Deputy James Dunn, in his individual
capacity, and Sheriff Chris Nocco, in his official capacity (collectively, “Defendants”)
for alleged constitutional violations and related state law negligence and tort claims
following his arrest on August 2, 2018. At the time of the incident, Plaintiff was a
The Court construes the facts in light most favorable to Plaintiff for the purpose of ruling
on the motion to dismiss.
1

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passenger in a vehicle driven by his father. Deputy Dunn initiated a traffic stop,
claiming that he could not see the license plate because it was obstructed by a
trailer. Deputy Dunn was accompanied by two other deputies and a film crew from
the A&E television show “Live PD.”
After initiating the traffic stop, Deputy Dunn approached the passenger side
of the vehicle and requested the driver’s license and vehicle registration. Deputy
Dunn also asked Plaintiff if he had his identification. Plaintiff advised Deputy
Dunn that he was only a passenger and was not required to identify himself.
Deputy Dunn told Plaintiff that under Florida law, Plaintiff was required to identify
himself, and that if he did not do so, Deputy Dunn would remove him from the
vehicle and arrest him for resisting. Another officer repeated these claims and told
Plaintiff that he needed to identify himself. At the request of law enforcement,
Plaintiff’s father identified Plaintiff as his son and provided Plaintiff’s name to the
officers.
The officers then decided to do “a sniff with the dog,” and asked Plaintiff and
his father to exit the vehicle. As Plaintiff began to exit the vehicle, Deputy Dunn
said to another officer that he was “going to take him no matter what because he’s
resisting. . . .” Deputy Dunn directed Plaintiff to put his hands behind his back
and handcuffed him. When Plaintiff asked why he was being arrested, Deputy
Dunn stated that it was for resisting without violence by not giving his name when
it was demanded. Deputy Dunn then conducted a pat-down search and placed
Plaintiff in the back of a police car.
While Plaintiff was in the police car, law enforcement officers brought a dog
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to sniff the outside and claim that the dog “alerted” on the passenger side door.
However, officers did not find any drugs in the vehicle. Deputy Dunn also searched
Plaintiff’s wallet, took his identification, and entered his name into a computer.
Deputy Dunn again stated that Plaintiff was being arrested because of his refusal to
provide his identification, claiming that Florida law requires all occupants of
vehicles to give their names. Plaintiff was taken to Pasco County Jail and charged
with the misdemeanor crime of resisting without violence, a violation of § 843.02,
F.S. The criminal case was ultimately dismissed.
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
short and plain statement of the claim showing the [plaintiff] is entitled to
relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual
allegations,” it does require “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual
allegations must be sufficient “to state a claim to relief that is plausible on its
face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the
four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233
(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a
court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the
[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the
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complaint’s legal sufficiency, and is not a procedure for resolving factual questions
or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic
Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9,
2009) (Lazzara, J.).
A district court should generally permit a plaintiff at least one opportunity to
amend a complaint’s deficiencies before dismissing the complaint with prejudice.
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). If the plaintiff
fails to comply by curing the identified defects, the court may dismiss those claims
and consider the imposition of sanctions. See id.; Jackson v. Bank of America,
N.A., 898 F.3d 1348, 1358 (11th Cir. 2018).
Analysis
Count I – Fourth Amendment § 1983 Claim Against Deputy Dunn
Plaintiff alleges a § 1983 violation against Deputy Dunn based on his
allegedly false arrest. In the motion, Deputy Dunn argues that he is entitled to
qualified immunity because there was actual probable cause to arrest Plaintiff for
resisting without violence. This argument has already been thoroughly addressed
by the Court in its prior Order. (Doc. 24).
As the Court explained, Deputy Dunn had a valid basis to require the driver
of the vehicle to provide identification and vehicle registration. But he did not
have a valid basis to require Plaintiff, as the passenger, to provide identification
absent a reasonable suspicion he had committed, was committing, or was about to
commit a criminal offense. Pursuant to existing law on this point, Plaintiff had no
obligation to talk to or identify himself to Deputy Dunn. Because Deputy Dunn did
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not have a valid basis to require Plaintiff to provide identification, he could not
arrest Plaintiff based on a failure or refusal to provide such identification. The
motion to dismiss is denied as to this ground.
Count II – Fourth Amendment § 1983 Claim Against Sheriff Nocco
Sheriff Nocco argues that Count II should be dismissed because there was
probable cause to arrest Plaintiff. As discussed in its prior Order and its analysis
of Count I, the Court has concluded that – under the facts alleged by Plaintiff –
there was no probable cause or arguable probable cause to support the arrest. The
motion is denied as to this ground.
Count III – Negligent Training Against Sheriff Nocco
Sheriff Nocco contends that he is entitled to dismissal of Count III because (1)
a law enforcement officer can require a passenger to identify himself, and (2)
training decisions are subject to sovereign immunity. For the reasons discussed
above and in its prior Order, the Court finds that the Sheriff is not entitled to
dismissal based on his first argument. As to the Sheriff’s sovereign immunity
argument, the Court finds relief is warranted. In Florida, the decision of what
subject matter to include in training concerns a discretionary function and is
precluded by sovereign immunity. Cook ex rel Tessier v. Sheriff of Monroe Cty,
Fla., 402 F.3d 1092, 1117-19 (11th Cir. 2005). On the other hand, a plaintiff may
sustain a negligent training claim despite any claims of sovereign immunity if the
claim is based on the implementation or operation of a training program or policy.
Id. (citing Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001).
In Count III, Plaintiff alleges that the Sheriff failed to “train [his] employees
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and agents in the requirements to make lawful arrests of individuals who refuse to
provide their identification upon demand.” (Doc. 25 at ¶ 101). Plaintiff does not
identify any relevant training program or policy. His issue does not seem to
concern the manner in which Deputy Dunn was trained; instead, Plaintiff only
appears to challenge the Sheriff’s decision with respect to whether a training
program should exist. Because Count III concerns a discretionary act rather than
the operation of a training program, the claim is barred by sovereign immunity.
The motion to dismiss is due to be granted as to this ground. Count III is
dismissed. 2
Count IV - Negligent Supervision Against Sheriff Nocco
Sheriff Nocco also argues that he is entitled to dismissal of Plaintiff’s
negligent supervision claim in Count IV. The Court previously dismissed this
claim because Plaintiff failed to sufficiently allege that Deputy Dunn was acting
outside the scope of his employment during the encounter. In his amended
complaint, Plaintiff now alleges, in conclusory fashion, that Deputy Dunn acted
outside the scope of his employment. But he does not plausibly allege facts to show
that Deputy Dunn was acting outside the scope of his employment during the
encounter. See, e.g., Santillana v. Florida State Court System, No. 6:09-cv-2095Orl-19KRS, 2010 WL 271433, at *11 (M.D. Fla. Jan. 15, 2010) (dismissing negligent
supervision claim because plaintiff did not allege facts from which the court could

If Plaintiff is able to allege – in good faith – a negligent supervision training claim based
on the operation of an existing training program, he may seek leave to amend his
complaint. But any such request must include the necessary facts to support the claim;
bare or conclusory allegations will not suffice.

2

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conclude defendants acted outside scope of employment). Furthermore, all of the
factual allegations appear to show that Deputy Dunn was acting in the scope of his
employment with the Sheriff’s Office during the traffic stop and arrest. As such,
the Court finds that the supervision claim remains facially insufficient. The
motion to dismiss is due to be granted as to this ground. Count IV is dismissed.
Count V – Malicious Prosecution Against Deputy Dunn
Deputy Dunn argues that Count V should be dismissed because actual
probable cause existed to support Plaintiff’s arrest. For the reasons discussed
above, Plaintiff has sufficiently alleged that there was no probable cause or
arguable probable cause to support the arrest.
Deputy Dunn additionally argues that he is entitled to immunity under §
768.28(9)(a), F.S., unless he acted outside the scope of his employment or acted in
bad faith or with malice. Because Plaintiff has alleged the requisite malice,
Deputy Dunn is not entitled to dismissal of this claim at this time. See Blackshear
v. City of Miami Beach, 799 F. Supp. 2d 1338, 1348 (S.D. Fla. 2011) (explaining the
immunity statute offers no protection to law enforcement officer defendant in
context of malicious prosecution claim because an officer acting within the scope of
his employment can be held liable if the officer acted in bad faith or with malicious
purpose). The motion to dismiss is denied as to these grounds.
Count VI – Intentional Infliction of Emotional Distress Against Deputy
Dunn
Deputy Dunn contends that he is entitled to dismissal of Count VI because
the alleged facts do not establish that his actions were so extreme in degree as to go
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beyond all possible bounds of decency to support a claim for intentional infliction of
emotional distress. The Court previously dismissed this count because Plaintiff
failed to meet the high standard required to show that Deputy Dunn’s conduct was
“beyond all bounds of decency” or that Plaintiff suffered “severe distress.” In his
amended complaint, Plaintiff has again failed to meet this standard. Because
Plaintiff has failed to cure this deficiency, the motion to dismiss is due to be
granted. Count VI is dismissed with prejudice.
Counts VII and VIII – Battery Against Deputy Dunn and Sheriff Nocco
Defendants contend that Counts VII and VIII should be dismissed because
Deputy Dunn was privileged to use the force used in effecting the arrest. The
Court previously dismissed these claims after concluding that Plaintiff failed to
sufficiently allege facts to demonstrate that the level of force used was unreasonable
under the circumstances. He has failed to cure this deficiency. As a result, the
motion to dismiss is due to be granted as to this ground. Counts VII and VIII are
dismissed with prejudice.
Counts IX and X – False Imprisonment and Arrest Against Deputy Dunn
and Sheriff Nocco
Defendants argue that Counts IX and X should be dismissed because actual
probable cause existed to support Plaintiff’s arrest. The Court has already
addressed this argument in its prior Order, finding these claims facially sufficient.
As the Court explained, Plaintiff has alleged facts showing that Deputy Dunn
lacked probable cause to arrest him for obstruction without violence. As such,
Plaintiff’s claims for false imprisonment and false arrest against Defendants may
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proceed at this time. The motion to dismiss is denied as to this ground.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The “Motion to Dismiss First Amended Complaint by Defendants Sheriff
Nocco and Dunn” (Doc. 26) is hereby GRANTED IN PART and DENIED
IN PART.

(2)

The motion is GRANTED as to Counts III, IV, VI, VII, and VIII.

(3)

Counts III, IV, VI, VII, and VIII of Plaintiff’s amended complaint are
DISMISSED WITH PREJUDICE.

(4)

The motion is otherwise DENIED.

(5)

Defendants are directed to file an answer on or before March 4, 2021.
DONE and ORDERED in Chambers, in Tampa, Florida, this 18th day of

February, 2021.

TOM BARBER
UNITED STATES DISTRICT JUDGE

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