Pellegrino et al v. Wengert et al

Filing 143

ORDER ON MOTION FOR SUMMARY JUDGMENT. Defendant BSO's Motion for Summary Judgment, ECF No. 119 , is GRANTED as to Counts XIII and XVI of the Second Amended Complaint. Signed by Judge Beth Bloom on 7/11/2016. (mc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-60535-BLOOM/Valle
HUMBERTO PELLEGRINO and
PEDRO CLAVERIA,
Plaintiffs,
v.
GERALD WENGERT, et al.,
Defendants.
_____________________________________/

ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon the Motion for Summary Judgment, ECF No.
[119] (the “Motion”), filed by Defendant Scott Israel, in his capacity as Sheriff of Broward
County, Florida (“BSO”), with respect to Plaintiffs Humberto Pellegrino and Pedro Claveria’s
(“Plaintiffs”) Second Amended Complaint, ECF No. [75] (“SAC”). The Court has carefully
reviewed the Motion, all supporting and opposing submissions, the record in this case and
applicable law. For the reasons set forth below, the Court grants the Motion.
I. BACKGROUND
This action centers on Plaintiffs’ allegations that BSO police officers used excessive
force against them in investigating a potential burglary. Familiarity with the procedural and
factual background in this matter is assumed. See Pellegrino v. Wengert, No. 15-CIV-60535,
2015 WL 4065376, at *1 (S.D. Fla. July 2, 2015). Plaintiffs allege that BSO Deputies released
and instructed a police dog to attack Plaintiffs for no apparent reason and without provocation.
Plaintiffs Pellegrino and Claveria each assert an identical claim against BSO, under 42 U.S.C. §

Case No. 15-cv-60535-BLOOM/Valle

1983 (Counts XIII and XIV of the SAC). The Motion targets only those two claims. Deputies
Gerald Wengert, Davis Acevedo, and Leonard Smith are Defendants in this action but have made
no submission in connection with the instant Motion.
Plaintiffs allege that the deputies’ conduct constitutes excessive force, and that their
conduct was implemented or ratified by BSO or effected pursuant to BSO custom or practice.
SAC ¶¶ 183, 199. Further, Plaintiffs allege that BSO has “implemented a policy of inadequate
investigation that allows an environment for the use of unreasonable force because officers may
believe they will not be held accountable for the consequences of using excessive force.” Id.
¶¶ 185, 189. In support of their theory of causation and liability, Plaintiffs detail a long series of
alleged misconduct by Deputy Wengert, followed by effective inaction by BSO, including
several separate incidents involving Wengert’s alleged inappropriate conduct and use of
excessive force between 2006 and 2012:


In February 2006, Wengert threw to the ground a suspect who had surrendered and lay
prone and subdued, commanded his dog to engage in a “deadly force” bite, and kicked
the man in his face and mouth. Id. ¶ 186.a.



In May 2006, Wengert twice slammed onto a police vehicle a man who had not
committed any crime or infraction, and threatened to kill the man while holding him in a
headlock. Id. ¶ 186.c.



In May 2008, Wengert discharged multiple rounds from his weapon at a vehicle
containing several suspects while investigating a potential burglary. Id. ¶ 186.d.



In March 2010, Wengert taunted a man at a gas station, pulled the man over without any
cause a short distance away after the man left the station, yanked the man from his

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vehicle, and smashed the man’s face into the car’s door frame. Id. ¶ 186.k. BSO
conducted no investigation into Wengert’s use of excessive force. Id.


In December 2012, Wengert engaged in an improper and retaliatory traffic stop of a
teenager who had driven imprudently but inadvertently in close proximity to Wengert’s
girlfriend. Id. ¶ 186.e. The teenager had reversed his car on a relatively major street and
nearly hit the girlfriend’s car. Id. She followed the teen to a restaurant and phoned
Wengert. Id. Wengert pulled over the teen’s car as it left the restaurant. Id. In abrogation
of BSO protocol, Wengert did not call in a traffic violation or traffic stop, did not look up
the vehicle’s tag, did not request the driver’s license or his vehicle registration, did not
notify the teen of the reason for the traffic stop, and did not ask the teen to step out of his
vehicle. Id. Rather, Wengert forced the car door open and pulled the driver from the car.
He punched the teen, forced him toward his police vehicle, opened that vehicle’s door,
and set his police dog on the teen. Id. The victim’s father lodged a formal complaint with
BSO; Wengert was suspended from June 14, 2012 to August 16, 2013; and a grand jury
indicted Wengert on criminal charges for his conduct. Id. Wengert was acquitted.
Despite the higher burden of proof required for criminal conviction, BSO did no
investigation of its own, did not levy on Wengert any punishment, and paid Wengert over
$63,000 in back-pay after his acquittal. Id.
Plaintiffs also cite to an incident involving BSO Detective Jeffrey Kogan, who witnessed

and reported excessive force by a Fort Lauderdale Police Department K-9 unit and was
purportedly demoted as a result. SAC ¶¶ 189-92, 205-08; see also Resp. at 7 (citing Kogan
Depo., ECF No. [130-3]). According to Detective Kogan, he witnessed a K-9 officer deploy his
dog on a murder suspect while the suspect was sitting on the ground, apprehended, with his

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hands secured behind his back. Kogan Depo. at 8-11. Detective Kogan reported the incident to
his supervisors, the prosecutor, and ultimately the Florida Department of Law Enforcement. Id.
at 11-14. Detective Kogan alleges that, as a result of reporting the alleged excessive force, he
was demoted. Id. at 29-33. Detective Kogan filed a whistleblower action against BSO and
received a jury verdict in his favor. Id. at 26. Detective Kogan, however, has not yet been placed
back as detective. Id. at 36.
In support of its Motion, BSO provides evidence of its various accreditations, including
by the Commission on Accreditation for Law Enforcement Agencies, Inc. (“CALEA”), which is
an outside group of trained assessors who have signed off on BSO’s Use of Force Policy as
“compliant” with CALEA and constitutional standards. See Defendant BSO’s Statement of
Facts, ECF No. [119] at 3-9 (“Def. Stat. Fact.”) ¶ 3, 6, 9, 12 (“BSO has over 16 accreditations . .
. .”). BSO also outlines its policy procedures surrounding use of force and the employee
disciplinary process. Plaintiffs’ expert, Dr. George Kirkham, testified in his deposition that
BSO’s written policies and procedures are standard and “good policies.” Kirkham Depo., ECF
No. [121-16] at 149-50. BSO policy mandates that every time a deputy uses force, that deputy
must fill out the appropriate use of force form and the matter is sent to a supervisor to complete a
review and then to Internal Affairs for review. Def. Stat. Fact ¶ 14. The BSO Internal Affairs
Division has in place an early warning system to flag potential problems, which is triggered if a
deputy has three incidents or complaints within three months or five within a calendar year. Id. ¶
15. Once an Internal Affairs investigation is completed, it is then submitted to the Professional
Standards Committee (“PSC”), which consists of eleven members, including two administrative
members from the Department of Law Enforcement, two administrative members from the
Department of Detention and Community Control, two administrative members from

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unrepresented departments selected by the Sheriff or designee, one employee union
representative, and four non-employee members (residents) selected by the Sheriff. Id. ¶ 17;
Sheriff’s Policy Manual, ECF No. [121-14] at 20. The PSC meets once a month in a formal
setting to review, vote, and make recommendations concerning investigations presented by the
BSO Internal Affairs Division. Def. Stat. Fact ¶ 17. Ultimately, the PSC votes to find the alleged
policy violation sustained, not sustained, exonerated, or unfounded, and, if sustained, to consider
and recommend discipline.1 Id. ¶ 18. Plaintiffs’ expert, Dr. Kirkham, testified that he does not
believe the PSC is corrupt. See Kirkham Depo. at 219: 18-220:4.
BSO asserts that “[a]t no time has the [PSC] ever determined Deputy Wengert to have
used excessive force, violated policy, nor has any court of competent jurisdiction ever found that
Deputy Wengert’s actions as a law enforcement officer violated the law.” Def. Stat. Fact ¶ 22
(citing Wengert Internal Affairs case history, ECF No. [122-5]). Plaintiffs dispute this assertion,
but have provided no evidence, argument, or other support in contravention of BSO’s assertion
and the case history report. See Resp., ECF No. [130] at 2 (“Plaintiff controverts the following
paragraphs alleged in Defendant’s statement of material facts . . . 22. Disputed.”).
Major Angelo Cedeno, head of BSO Internal Affairs Department, testified as BSO’s Rule
30(b)(6) corporate representative in this matter and provided testimony as to BSO’s actions
regarding the incidences involving Wengert. Def. Stat. Fact. ¶ 19-21 (citing Cedeno Depo., ECF
No. [121-17]). Major Cedeno testified as to the investigator assignments, each investigatory step

1
“Upon review of the investigation, PSC renders one of the following recommendations by majority vote:
1. Sustained: Evidence sufficient to prove allegations.
2. Not Sustained: Insufficient evidence available to prove or disprove allegations.
3. Exonerated: Alleged actions occurred, but were lawful and proper.
4. Unfounded: Allegations are false or not supported by facts.
5. Defer Case for More Information: Used if PSC determines there is insufficient factual evidence
to render a decision.”
Sheriff’s Policy Manual, Section 9.1.5, ECF No. [121-14] at 21.

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taken, and the ultimate determinations by the PSC with regard to the complaints made against
Wengert, including those set forth in the Second Amended Complaint:


The February 2006 dog bite complaint was investigated by Internal Affairs and
exonerated by the PSC. See Cedeno Depo. 7-11, 108-09.



The May 2006 complaint alleging that Wengert slammed an individual onto a car was
investigated and determined unfounded by the PSC. See Cedeno Depo. at 22-26, 110-11.



The May 2008 incident in which Wengert discharged his firearm while investigating a
potential burglary was investigated by the Shooting Review Board and the firearm use
was deemed proper. See Cedeno Depo. at 33-35, 40.



No citizen complaint was made with regard to the March 2010 incident in which
Wengert is alleged to have smashed a man’s face into a car’s door frame. See Cedeno
Depo. at 52-57. A suit was filed in this District and summary judgment was granted in
favor of BSO with regard to the plaintiffs’ § 1983 claim against the Sheriff for deliberate
indifference. See Buckler v. Israel, 13-62074-CIV, slip op. (S.D. Fla. Jan. 28, 2016).



The December 2012 canine use of force complaint and State Attorney investigation in
which Wengert was arrested and criminally charged resulted in an acquittal on all
criminal charges. Wengert was suspended without pay from June 14, 2012 to August 16,
2013 while the investigation and trial were in progress. Internal Affairs investigated the
case and the PSC found the falsifying records claim not sustained, the battery charge
exonerated, and the official reports/truthfulness and conduct unbecoming not sustained.
See Cedeno Depo. at 59-67, 82.

See Def. Stat. Fact. ¶ 21; see also Resp. at 2 (not disputing Def. Stat. Fact. ¶ 21).

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Plaintiffs allege that BSO’s failure to terminate Wengert for his misconduct exhibits their
ratification of the use of excessive and unreasonable force by BSO officers and signals to all
BSO officers that such conduct is accepted and will not result in reprimand or punishment. Id. ¶¶
193-95. Plaintiffs allege that violations of their constitutional rights and injuries resulted from
BSO’s policies or customs. Id. ¶¶ 196-97.
II. LEGAL STANDARD
A party may obtain summary judgment “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). The parties may support their positions by citation to the record, including inter
alia, depositions, documents, affidavits, or declarations. Fed. R. Civ. P. 56(c). An issue is
genuine if “a reasonable trier of fact could return judgment for the non-moving party.”
Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it
“might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S.
at 247-48). The Court views the facts in the light most favorable to the non-moving party and
draws all reasonable inferences in its favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir.
2006); Howard v. Steris Corp., 550 F. App’x 748, 750 (11th Cir. 2013) (“The court must view
all evidence most favorably toward the nonmoving party, and all justifiable inferences are to be
drawn in the nonmoving party’s favor.”). However, material facts set forth in the movant’s
statement of facts and supported by record evidence are deemed admitted if not controverted by
the opposing party. S.D. Fla. L. R. 56.1(b).
“[T]he court may not weigh conflicting evidence to resolve disputed factual issues; if a
genuine dispute is found, summary judgment must be denied.” Carlin Commc’n, Inc. v. Southern

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Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez, 2011 WL
5838233, at *1 (S.D. Fla. Nov. 21, 2011) (“If a reasonable fact finder could draw more than one
inference from the facts, and that inference creates an issue of material fact, then the court must
not grant summary judgment.” (citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913
(11th Cir. 1993)). The moving party shoulders the initial burden of showing the absence of a
genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once
this burden is satisfied, “the nonmoving party ‘must make a sufficient showing on each essential
element of the case for which he has the burden of proof.’” Ray v. Equifax Info. Servs., L.L.C.,
327 F. App’x 819, 825 (11th Cir. 2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). Accordingly, the non-moving party must produce evidence, going beyond the pleadings,
and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file,
designating specific facts to suggest that a reasonable jury could find in his favor. Shiver, 549
F.3d at 1343. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006). Even
where an opposing party neglects to submit any alleged material facts in controversy, the court
must still be satisfied that all the evidence in the record supports the uncontroverted material
facts that the movant has proposed before granting summary judgment. Reese v. Herbert, 527
F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at
5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).
III. DISCUSSION
A. Municipal Liability Under Section 1983 (Monell Claim)

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“When, as here, the defendant in a § 1983 civil rights action is the county sheriff, the suit
is effectively an action against the governmental entity he represents . . . .” Adcock v. Baca, 157
F. App’x 118, 119 (11th Cir. 2005) (citing Cook ex rel. Estate of Tessier v. Sheriff of Monroe
County, Fla., 402 F.3d 1092, 1115 (11th Cir. 2005)). According to the Supreme Court, section
1983 “cannot be easily read to impose liability vicariously on governing bodies solely on the
basis of the existence of an employer-employee relationship with a tortfeasor.” Monell v. Dep’t
of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978). Indeed, “[i]t is well established in
this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of
their subordinates on the basis of respondeat superior or vicarious liability.” Cottone v. Jenne,
326 F.3d 1352, 1360 (11th Cir. 2003) (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th
Cir. 1999)). “[I]n order to be held liable for a § 1983 violation, a municipality must be found to
have itself caused the constitutional violation at issue . . . .” Skop v. City of Atlanta, GA, 485 F.3d
1130, 1145 (11th Cir. 2007) (citation omitted); see also Canton v. Harris, 489 U.S. 378, 385
(1989) (“[A] municipality can be found liable under § 1983 only where the municipality itself
causes the constitutional violation at issue. Respondeat superior or vicarious liability will not
attach under § 1983.” (emphasis in original)). Thus, the constitutional deprivation must come at
the hands of an official policy or “custom.” See Monell, 426 U.S. at 690 (stating that local
governing bodies may be subject to liability under § 1983 where “the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers”). “[T]he touchstone of the § 1983
action against a government body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution . . . .” Id.
“A plaintiff . . . has two methods by which to establish a [municipal actor’s] policy:

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identify either (1) an officially promulgated [] policy or (2) an unofficial custom or practice of
the county shown through the repeated acts of a final policymaker for the [municipal actor].”
Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). “To establish a policy or
custom, it is generally necessary to show a persistent and wide-spread practice[; h]owever, the
custom need not receive formal approval.” Depew, 787 F.2d at 1499; see also Smith v. Mercer,
572 F. App’x 676, 679 (11th Cir. 2014) (“A plaintiff must identify a ‘consistent and widespread
practice’ of constitutional deprivations to prove local government liability for an unofficial
custom.”); Carter v. Columbus Consol. Gov’t, 559 F. App’x 880, 881 (11th Cir. 2014) (“the
challenged practice or custom must be ‘so pervasive as to be the functional equivalent of a
formal policy’”) (quoting Grech, 335 F.3d at 1330 n. 6); Griffin v. City of Opa-Locka, 261 F.3d
1295, 1308 (11th Cir. 2001) (“[T]o prove § 1983 liability against a municipality based on
custom, a plaintiff must establish a widespread practice. . . .”).
“[A] persistent failure to take disciplinary action against officers can give rise to the
inference that a municipality has ratified conduct, thereby establishing a ‘custom’ within the
meaning of Monell.” Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985); see
also Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994) (“A municipality’s failure
to correct the constitutionally offensive actions of its police department may rise to the level of a
‘custom or policy’ if the municipality tacitly authorizes these actions or displays deliberate
indifference toward the police misconduct.”) (citation omitted). A plaintiff advancing a
ratification theory in support of his Monell claim must still establish a “widespread practice” of
the relevant constitutional violations. See, e.g., Davis v. City of Leesburg, 2014 WL 4926143, at
*27 (M.D. Fla. Sept. 30, 2014); Windham v. City of Fairhope, Ala., 20 F. Supp. 3d 1323, 1343
(S.D. Ala. 2014), aff’d, 597 F. App’x 1068 (11th Cir. 2015). The prior conduct must also be

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sufficiently similar. See Threats v. City of Bessemer, 2013 WL 2338701, at *5 (N.D. Ala. Apr.
29, 2013) (regarding ratification, “the prior of violations must have been sufficiently similar in
nature to the violation in the plaintiff’s case”) (citing Connick v. Thompson, 131 S.Ct. 1350,
1360 (2011)); Gainor v. Douglas Cty., Georgia, 59 F. Supp. 2d 1259, 1292 (N.D. Ga. 1998)
(past action must be similar to illustrate ratification); see also Shehada v. Tavss, 965 F. Supp. 2d
1358, 1374 (S.D. Fla. 2013) (“Prior incidents also must involve facts substantially similar to
those at hand in order to be relevant to a deliberate-indifference claim.”) (citing Mercado v. City
of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005); Gold v. City of Miami, 151 F.3d 1346, 1351
(11th Cir. 1998)). Further, “[f]or plaintiffs to state a successful § 1983 claim against a
municipality based on a ratification theory . . . they must demonstrate that local government
policymakers had an opportunity to review the subordinate’s decision and agreed with both the
decision and the decision’s basis . . . .” Garvie v. City of Fort Walton Beach, 366 F.3d 1186,
1189 (11th Cir. 2004) (quoting Thomas v. Roberts, 261 F.3d 1160, 1175 n. 12 (11th Cir.2001)).
Finally, “[a] § 1983 claim requires proof of an affirmative causal connection between the
defendant’s acts or omissions and the alleged constitutional deprivation.” Troupe v. Sarasota
Cty., 419 F.3d 1160, 1165 (11th Cir. 2005); see also, e.g., Lewis v. Wilcox, 2007 WL 3102189, at
*10 (M.D. Ga. Oct. 23, 2007) (“To prevail under [a ratification] theory, a plaintiff must
demonstrate that a policy or custom of the governmental entity caused the plaintiff to suffer a
constitutional deprivation.”); McElroy v. City of Birmingham, Ala., 903 F. Supp. 2d 1228, 1251
(N.D. Ala. 2012) (“Although a municipality may be liable under this ‘policy or custom’ theory,
there must be a causal link between the constitutional violations and the municipality’s actual
policies or customs.”) (citing Monell, 436 U.S. at 694).

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B. Adverse Inferences
Defendants Wengert and Acevedo are under investigation by the State Attorney’s Office
and have invoked their Fifth Amendment right to silence in this case.2 Plaintiffs maintain that
Defendant Wengert repeatedly asserted this right throughout his deposition testimony, including
when asked about prior allegations of excessive force against him. Plaintiffs, therefore, request
the Court to draw two adverse inferences, adding to the weight of Plaintiffs’ evidence. See Resp.,
ECF No. [130] at 5 (citing In re Neves, AP 10-02122-LMI, 2014 WL 7070938, at *4-5 (Bankr.
S.D. Fla. Dec. 11, 2014)). Plaintiffs request adverse inferences with regard to: (1) “BSO’s failure
to terminate or even discipline Deputy Wengert”; and (2) “BSO’s practice of punishing
whistleblowers of excessive force signaled to Defendant[] Wengert that such conduct is
accepted—indeed encouraged—and will not result in reprimand or punishment.” Id. at 5-6.
“[T]he trier of fact may take an adverse inference against the parties to a civil action
refusing to testify on Fifth Amendment grounds.” United States v. Two Parcels of Real Property
Located in Russell County, Alabama, 92 F.3d 1123, 1129 (11th Cir. 1996). However, “[t]here is
an exception to this rule when a claimant in the civil case is also a defendant in the criminal case
and is forced to choose between waiving the privilege and losing the case on summary
judgment.” Id. As the Court previously noted, Defendants are not defendants in a criminal case,
but under investigation by the State Attorney’s Office. See ECF No. [87]. “The courts
consistently have held that the Fifth Amendment privilege may be used only as a shield and not

2
On September 24, 2015, both Wengert and Acevedo received a letter from the Assistant State Attorney
in Charge of Special Prosecutions and Public Corruption Unit informing each deputy that he is “the
subject of an investigation involving felony battery/excessive use of force.” This Court denied Wengert
and Acevedo’s Motion to Stay Case and their request for a protective order as to Wengert and Acevedo’s
depositions and further discovery. See Pellegrino v. Wengert, No. 15-CIV-60535, 2015 WL 7760991
(S.D. Fla. Dec. 1, 2015).

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as a sword that frees a claimant from adducing proof in support of his burden.” S.E.C. v.
Monterosso, 746 F. Supp. 2d 1253, 1261 (S.D. Fla. 2010) (citing United States v. One Parcel of
Real Property commonly known as 901 N.E. Lakewood Drive, Newport, Oregon, 780 F. Supp.
715, 721 (D. Or. 1991)). “Use of the privilege in a civil case may, therefore, carry some
disadvantages for the party who seeks its protection.” Id. (citing S.E.C. v. Graystone Nash, Inc.,
25 F.3d 187, 190 (3d Cir. 1994)).
1. Failure to Discipline or Terminate
Plaintiffs have not pointed to specific discovery that they were unable to obtain as a result
of Defendant Wengert’s invocation of the Fifth Amendment throughout his deposition or how
his assertion of these rights has created prejudice to Plaintiffs. Defendant Wengert asserted his
Fifth Amendment rights when asked about past incidences involving Wengert alleged by
Plaintiffs in the SAC. See Wengert Depo., ECF No. [130-1] at 61:7-17; see also id. at 65:10-20
(Q. “Didn’t these incidents that are in these paragraphs . . . of this complaint, make it clear to you
that you could commit excessive force with impunity from your department?” A. “Same
[invoking Fifth Amendment]”). However, Plaintiffs deposed Major Cedeno, BSO’s
representative from the Internal Affairs Division, to obtain BSO’s position on this matter. See
Cedeno Depos., ECF Nos. [130-5] and [130-6]. Indeed, Wengert himself stated during his
deposition that he did not believe he should be fired for anything, see Wengert Depo. at 78:1-4,
and that he does not know the standards under which BSO may punish an employee or how
internal affairs operates. See id. at 85-88. To the extent Plaintiffs required further information
regarding the incidences, Plaintiffs were free to, but did not, seek discovery from the individuals
who filed complaints or BSO employees involved in the investigations and disciplinary
processes.

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“[A] motion for summary judgment cannot be granted on an adverse inference alone;
rather, the inference must be weighed with other evidence in the matter in determining whether
genuine issues of fact exist.” Monterosso, 746 F. Supp. 2d at 1261. Even if the Court were to
apply an adverse inference as a result of Defendant Wengert’s refusal to testify on Fifth
Amendment grounds with regard to the past incidents alleged, that inference would not
overcome the deficiencies in Plaintiffs’ Monell claims identified herein.
2. Punishing Whistleblowers
Plaintiffs similarly fail to demonstrate they were unable to obtain discovery with regard
to the whistleblower case involving BSO Detective Jeffrey Kogan. Indeed, Plaintiffs deposed
Mr. Kogan himself. See Kogan Depo., ECF No. [130-3]. It appears that Plaintiffs take issue with
the fact that Wengert refused to answer a question regarding his knowledge or awareness of the
whistleblower incident. See Wengert Depo. at 68:10-19 (Q. “Even if you didn’t, Deputy
Wengert, even if you knew nothing about [the Kogan whistleblower case], I’m asking you, let’s
say that’s true, entirely true, I tell you that it is but you don’t have to believe me, let’s say it’s a
hypothetical, can you think of a single hypothetical example that sends a worse message to
deputies handling K-9?” Mr. Schwartzreich: “Based upon mens rea that is required in any
criminal prosecution, I am advising my client to take the Fifth.”). Plaintiffs themselves, however,
concede that proof of the Defendants’ knowledge is not itself dispositive. See Resp. at 8, n. 2.
The Court finds that Plaintiffs have not sufficiently demonstrated that the circumstances of the
case warrant the imposition of an adverse inference with regard to any purported incidences of
BSO’s punishment of whistleblowers.

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C. Monell Claim – Ratification of Misconduct
BSO argues that summary judgment should be granted in its favor because BSO
maintains and has put in place mechanisms to review, revise, adopt, and implement
constitutional policies that conform to accreditation standards, early warning systems, and use of
force documentation and review, and maintains multiple separate departments all designed to
evaluate, review, audit, and enforce policy, including the use of force. BSO also maintains that
(1) the investigations surrounding Wengert were adequate; (2) there has never been any
sustained policy violations determined through the PSC against Wengert to trigger discipline; (3)
there is no evidence of wide-spread unconstitutional practices; and (4) there is no evidence of
unconstitutional practice directly attributable to the sheriff as policymaker to form the necessary
causal link through the alleged failure to discipline one singular employee.
Plaintiffs counter that they take no issue with BSO’s written policies or its investigations
into the alleged incidences involving Wengert, but it is BSO’s unwritten policies that serve to
ratify Wengert’s alleged bad conduct. Plaintiffs argue that the investigations into Wengert were
indeed adequate but that they mandated the violations be sustained and Wengert be fired—BSO,
however, was “too apathetic” to do so.
In support of their ratification argument, Plaintiffs cite to a number of complaints and
incidences involving Wengert between 2006 and 2012. In order to use prior conduct to
demonstrate ratification, “the prior violations must have been sufficiently similar in nature to the
violation in the plaintiff’s case.” See Threats v. City of Bessemer, 2013 WL 2338701, at *5 (N.D.
Ala. Apr. 29, 2013) (citing Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011)); see also
Shehada v. Tavss, 965 F. Supp. 2d 1358, 1374 (S.D. Fla. 2013) (citing Mercado v. City of
Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005) (“Prior incidents also must involve facts

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substantially similar to those at hand in order to be relevant to a deliberate-indifference claim.”);
Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998)). The Court, therefore, will only
consider those complaints and incidences in which excessive force was alleged, as listed supra.
Plaintiffs use a large portion of their response brief to describe these complaints of
incidences involving Wengert. See Resp. at 11-16. Courts, however, have held that “[a] list of
complaints against police officers, without more, is insufficient to create an issue of fact
regarding [a municipality's] policy of inadequately investigating or disciplining its police
officers. Rather, the Plaintiff must present at least some evidence from which a reasonable jury
could infer that the complaints were meritorious.” Ayton v. Orange Cty. Sheriff Dep't, No. 6:10CV-1930-ORL-28, 2012 WL 4711911, at *3 (M.D. Fla. Oct. 3, 2012) (quoting Simms v. City &
Cty. of Honolulu, Civ. No. 06–00669 HG–LEK, 2008 WL 3349069, at *8 (D. Haw. Aug. 12,
2008); accord Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir.1985) (noting that “the
number of complaints filed, without more, indicates nothing” and that “[p]eople may file a
complaint for many reasons, or for no reason at all”)). Indeed, “[s]imply dumping several
thousand pages of investigative files on the Court . . . cannot establish a genuine issue of material
fact as to whether excessive force was used in any case, [where] the plaintiffs have offered no
testimony from any complainant or other witness . . . .” Shehada, 965 F. Supp. 2d at 1374
(quoting Ott v. City of Mobile, 169 F.Supp.2d 1301, 1313 (S.D. Ala. 2001)).
Plaintiffs argue that the fact that Defendant Wengert was “exonerated” from many of the
excessive force complaints alleged against him serves as further evidence of BSO’s ratification
of Wengert’s alleged misconduct, because the term “exonerated” indicates that the “alleged
actions occurred but were lawful and proper.” See Section 9.1.5(C) of the Sheriff’s Policy
Manual, ECF No. [121-14] at 21. Plaintiffs maintain that “each time Wengert was ‘exonerated,’

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that necessarily meant that the . . . BSO concurred with the complainant that Deputy Wengert did
in fact act in the manner the complainant professed, but that BSO ratified Wengert’s conduct as
proper.” Resp. at 10. In arguing that discipline should have been imposed upon Wengert despite
the PSC’s findings of “exonerated” or “unsustained,” Plaintiffs essentially ask the trier of fact in
this case to examine these incidences and reach a conclusion regarding Wengert’s culpability
that is different from the Internal Affairs investigator and the PSC.
The record evidence submitted by Plaintiffs regarding these incidences, however, consists
primarily of BSO Internal Affairs investigative reports. See ECF Nos. [130-7] to [130-15]. The
Court notes that “[w]hile ‘factual findings’ in internal affairs reports are generally admissible
under an exception to the hearsay rule, Fed. R. Evid. 803(8), summaries of interviews that are
contained in those reports are [ ] double hearsay that cannot be admitted at trial or considered on
summary judgment.” Shehada, 965 F. Supp. 2d at 1374 (quoting Jessup v. Miami–Dade Cty.,
697 F.Supp.2d 1312, 1322 (S.D. Fla. 2010)). The Court is, therefore, wary to consider the
summaries of interviews and witness statements contained within these investigative reports. See
ECF Nos. [130-7], [130-8], [130-11], [130-12], [130-13], and [130-15]. Plaintiffs have not
deposed any complainants, witnesses, or other individuals involved in these incidences or
presented any other independent evidence upon which a trier of fact may rely to re-examine the
merits of any of these complaints. See Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987)
(plaintiffs did not demonstrate that past complaints of police misconduct had any merit and that
the number of complaints bear no relation to their validity, particularly for officers who patrol a
high crime area). As the Eleventh Circuit has held, “[i]t would be perverse to require that courts
exclude allegations of past wrongdoing in order to protect the rights of defendants, while at the

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same time demanding that police officials give credence to unsubstantiated complaints against
individual police officers.” Brooks, 813 F.2d at 1194.
Further, Plaintiffs have not set forth any allegation, let alone evidence, that the PSC—or
any of BSO’s investigative or review mechanisms—is flawed or guilty of any impropriety.
Plaintiffs have conceded that the investigations into these complaints and incidences were
adequate, see Resp. at 2, and Plaintiffs’ own expert, Dr. George Kirkham, has stated that BSO’s
written policies and procedures were standard, even “good policies.” Kirkham Depo. at
149:6-25. Plaintiffs have not demonstrated, or even alleged, that BSO was unwilling to
investigate the incidences or has declined to follow a recommendation of discipline. Nor have
Plaintiffs set forth any allegation of impropriety or bias amongst the PSC. Dr. Kirkham stated
that he does not believe the PSC is corrupt. See Kirkham Depo. at 219:18-220:4. Rather,
Plaintiffs, armed only with hearsay accounts, argue that the PSC should have reached a different
conclusion regarding these complaints or that BSO should have disciplined Wengert,
disregarding the findings of the Internal Affairs Division and the PSC’s recommendation, which
were reached under a procedure with which Plaintiffs take no issue. The Court agrees with BSO
that Plaintiffs’ arguments “completely ignore the fact that deputy Sheriffs, like Wengert, have
rights that prevent arbitrary and unsubstantiated termination.” Mot. at 2.
Plaintiffs also argue that the incident involving Detective Kogan’s purported
whistleblowing demotion after reporting alleged excessive canine use of force amounts to “the
most egregious display of ratification of police misconduct imaginable.” Resp. at 6. BSO
counters that the Kogan case is not similar and did not involve BSO use of force and that there is
no record evidence that anyone actually feared reporting excessive force. BSO maintains that
Detective Kogan is indeed on the short list and number “four” to become a sergeant, see Kogan

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Depo. at 59, and that the Kogan case, ironically, is an example of what happens to an agency if a
deputy believes he was unfairly treated in light of perceived arbitrary or unsubstantiated agency
discipline.
“[T]o prove § 1983 liability against a municipality based on custom, a plaintiff must
establish a widespread practice. . . .” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th
Cir. 2001). Plaintiffs have failed to do so here. Even if the whistleblowing case is substantially
similar to consider as a prior incident and a genuine issue of material fact remains as to whether
the case impacted the decisions of any deputy to use excessive force, this alone does not
demonstrate that there is a “widespread practice” of ratifying the use of excessive force within
BSO. The only record evidence before this Court consists of unsubstantiated complaints against
one deputy within a 5,300 person agency and one detective’s successful whistleblower case.
Plaintiffs have not met their burden of demonstrating that there is a widespread custom or
ratification of excessive force among—as purported by BSO, see Def. Stat. Fact ¶ 4 (citing 2008
CALEA Report, ECF No. [129-3] at 4)—the largest fully accredited sheriff’s office in the
country. See Thompson v. Sheriff, Pinellas Cty. FL, 542 F. App'x 826, 829 (11th Cir. 2013)
(holding that a plaintiff alleging deliberate indifference and ratification failed to present the
requisite proof given that the sheriff’s office had 900 deputies but plaintiff adduced evidence
only with respect to one deputy and plaintiff did not challenge the existence and efficacy of the
sheriff’s written policies, procedures, and training).
Plaintiffs also cite to the report and deposition testimony of their expert, Dr. Kirkham,
stating that BSO’s actions and inactions have ratified and ensured the perpetuation of a culture of
police misconduct within the agency—although the written policies were adequate, BSO created
a de facto, unwritten custom and practice that essentially nullifies BSO’s written policies. See

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Kirkham Report, ECF No. [118-1] at 9 (“BSO effectively ratified and ensured the perpetuation
of a culture of police misconduct within the agency.”); Kirkham Depo., ECF No. [118-2] at 224.
Courts have held, however, that an expert’s report offering an opinion as to the ultimate issue is
not sufficient to create a genuine issue of fact. See Buckler v. Israel, Case No. 13-cv-62074, slip
op., at *8, n.3 (S.D. Fla. Jan. 28, 2016) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 432
(6th Cir. 2005) (holding expert’s conclusion that “the Police Department must have an unwritten
policy of condoning excessive force because of the mere number of complaints previously filed
against it, is insufficient to create a genuine issue of material fact on which a jury could
reasonably find that such a policy exists”)). Dr. Kirkham’s review of the evidence and opinion as
to the ultimate issue—whether or not BSO ratified alleged excessive force and misconduct—is
not sufficient to survive summary judgment.
IV. CONCLUSION
Plaintiffs have failed to present sufficient evidence of a widespread custom or unwritten
policy or practice of ratification or deliberate indifference to excessive force and misconduct to
support their Monell claims. See Thompson, 542 F. App'x at 829. Accordingly, Defendant BSO’s
Motion for Summary Judgment, ECF No. [119], is GRANTED as to Counts XIII and XVI of the
SAC.
DONE AND ORDERED in Miami, Florida, this 11th day of July, 2016.

BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to: Counsel of Record

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