Nigro v. Officer E. Carrasquillo

Filing 48

ORDER denying 27 Motion to Certify Class; denying 30 Motion to Amend Complaint. Signed by Judge James I. Cohn on 12/17/2015. (dvh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-60919-CIV-COHN/SELTZER
NANCY CAROL NIGRO,
Plaintiff,
vs.
OFFICER E. CARRASQUILLO,
individually and in his official capacity,
Defendant.
__________________________________/
ORDER DENYING PLAINTIFF’S MOTIONS
TO AMEND AND FOR CLASS CERTIFICATION
THIS CAUSE is before the Court upon two motions that remain pending following
this Court’s Order Granting Defendant’s Motion for Summary Judgment. Specifically,
this Order addresses Plaintiff’s Motion to Amend Complaint [DE 30] and Motion to
Certify Class [DE 27]. The Court has reviewed the motions and related filings, and is
otherwise advised in the premises. Both Motions will be DENIED.
I.

Motion to Amend Complaint
Plaintiff moved to amend her complaint on October 12, 2015. The proposed

Amended Complaint adds allegations supporting Plaintiff’s claim against the City of
Sunrise. Specifically, Plaintiff now alleges that the City should be held liable for its
failure to properly train Officer Carrasquillo. This failure to train purportedly caused
Officer Carrasquillo to use excessive force in violation of Plaintiff’s Fourth Amendment
rights.

Amendment is not appropriate in this case. Per Federal Rule of Civil Procedure
15, the Court should freely give leave to amend when justice so requires. See Foman v.
Davis, 371 U.S. 178, 182 (1962). That said, the Court may deny leave to amend “where
there is substantial ground for doing so, such as undue delay, bad faith, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party, and futility of the amendment.” Reese v. Herbert, 527 F.3d 1253, 1263
(11th Cir. 2008).
Here, Plaintiff’s proposed Amendment would be futile. For the reasons stated in
the Court’s Order granting summary judgment against Plaintiff, there is no Fourth
Amendment violation in this case. The City’s alleged failure to train Officer Carrasquillo
cannot render it liable for a nonexistent violation.
Accordingly, Plaintiff’s Motion to Amend will be denied.
II.

Motion to Certify Class

Even though the Court has granted summary judgment against Plaintiff, it must
still address Plaintiff’s pending Motion for Class Certification. See Martinez-Mendoza v.
Champion Int’l Corp., 340 F.3d 1200, 1215–16 (11th Cir. 2003) (reversing a district
court that mistakenly “thought that its decision granting [a defendant] summary
judgment automatically disposed of the class certification issue”). This Motion, too,
shall be denied.
Federal Rule of Civil Procedure 23 guides the Court in deciding whether class
certification is appropriate. Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181,
1187 (11th Cir. 2003). “Before a district court may grant a motion for class certification,
a plaintiff seeking to represent a proposed class must establish that the proposed class
is ‘adequately defined and clearly ascertainable.’” Little v. T-Mobile USA, Inc., 691 F.3d
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1302, 1304 (11th Cir. 2012) (quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th
Cir. 1970)). “After a court determines that a class is ascertainable, it then considers
whether the Rule 23 factors are met.” Bush v. Calloway Consolidated Group River City,
Inc., No. 3:10-cv-841-J-37MCR, 2012 WL 1016871, at *3 (M.D. Fla. Mar. 26, 2012).
Rule 23 provides in pertinent part the following:
(a)
Prerequisites. One or more members of a class may
sue or be sued as representative parties on behalf of all
members only if:
(1)
the class is so numerous that joinder of all
members in impracticable;
(2)
the class;

there are questions of law or fact common to

(3)
the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and
(4)
the representative parties will
adequately protect the interests of the class.

fairly

and

(b)
Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if : . . .
(2) the party opposing the class has acted or refused
to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.
A plaintiff may maintain a suit as a class action only if all prerequisites of Rule 23(a) are
satisfied and, in addition, the requirements of one of the three subsections of Rule 23(b)
are met. Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997); see also
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
A Court has broad discretion in deciding whether to certify a class. Washington
v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). Although
a district court is not to determine the merits of a case at the certification stage,
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sometimes “it may be necessary for the court to probe behind the pleadings before
coming to rest on the certification question.” Id. at 1570 n.11. The burden of
establishing these requirements is on the plaintiff who seeks to certify the suit as a class
action. Heaven, 118 F.3d at 737.
Here, Plaintiff seeks to certify a class of “all people handcuffed or restrained by
Defendant [Carrasquillo]” who have been and run the risk of being pepper sprayed in
the future. [DE 27 at 6.] Per the Motion, Plaintiff believes “that anyone taken into
custody under [Florida’s] Baker Act by Defendant [Carrasquillo] faces a real and
immediate threat of being pepper-sprayed while being handcuffed and in the back of a
police car.” [Id.] Plaintiff therefore “seeks declaratory and injunctive relief for a class of
people handcuffed or restrained by Defendant [Carrasquillo] in order to prevent it from
happening again.” [Id.]
Certification of this proposed class is inappropriate for many reasons. 1 But, for
the sake of judicial economy, the Court will focus on just one: Plaintiff has failed to
produce sufficient evidence that the proposed class satisfies Rule 23(a)’s numerosity
requirement. Parties seeking class certification do not need to know the “precise
number of class members,” but they “must make reasonable estimates with support as
to the size of the proposed class.” Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697,
699 (M.D. Fla. 2000). The Eleventh Circuit has held that “generally less than twenty1

For example, to the extent that Plaintiff bases her motion on a belief that pepper
spraying a handcuffed suspect in the back of a police car is per se excessive force, she
is incorrect. The Eleventh Circuit has observed in dicta that in certain circumstances
such a use of force would be “clearly not excessive.” Vinyard v. Wilson, 311 F.3d 1340,
1348 n.9 (11th Cir. 2002). Excessive force claims under Section 1983 require a great
deal of individualized inquiry inappropriate for resolution on a class-wide basis. See
Graham v. Connor, 490 U.S. 386, 396 (1989) (holding that determining such a claim
“requires careful attention to the facts and circumstances of each particular case”).
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one is inadequate [for class certification], more than forty adequate.” Cox v. Am. Cast
Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (internal quotation marks omitted).
Here, Plaintiff offers only once sentence in support of her contention that this
case satisfies Rule 23’s numerosity requirement. She states, “Numerosity is
established here since Defendant is taking the position that he will pepper-spray
handcuffed or restrained arrestees, including Baker Act arrestees, who are in the back
of police cars.” [DE 27 at 6–7.] This mischaracterizes Defendant’s position. Defendant
argues only that his decision to pepper spray Plaintiff in this litigation did not violate
Plaintiff’s Fourth Amendment rights. [DE 27-1 at 7–10.]
Moreover, the evidence does not support his contention. Plaintiff has advanced
no evidence suggesting that Officer Carrasquillo has ever pepper sprayed another
detainee who has been handcuffed in the back of a patrol car, or that he intends to do
so in the future. Instead, the evidence shows that in Officer Carrasquillo’s 23 years of
police service, he has “only utilized force against a suspect/arrestee on one occasion”
other than that at issue in this dispute. [DE 39-1 at 1.] Thus, there appears to be only
one member of the proposed class. Consequently, Plaintiff has failed to meet her
burden to show that there are sufficient members of the proposed class to satisfy Rule
23(a)’s numerosity requirement.
III.

Conclusion

Based on the foregoing, it is ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Motion to Amend Complaint [DE 30] is DENIED.

2.

Plaintiff’s Motion for Class Certification [DE 27] is DENIED.

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DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 17th day of December, 2015.

Copies provided to counsel of record via CM/ECF.

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