Taffe v. Wengert et al

Filing 111

ORDER granting in part and denying in part 110 Plaintiff's Motion for Reconsideration. Signed by Magistrate Judge Edwin G. Torres on 8/10/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-61595-Civ-COOKE/TORRES
DONNETT M. TAFFE,
Plaintiff,
v.
SCOTT J. ISRAEL, et al.,
Defendants.
______________________________________/
ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on Donnett M. Taffe’s (“Plaintiff”) motion for
reconsideration (“Motion”) [D.E. 110] of the Court’s Order denying Plaintiff’s
supplementation of the Record. [D.E. 108]. Defendant has not yet responded to
Plaintiff’s Motion. After careful consideration of the supplementation, the response,
reply, relevant authority, and for the reasons discussed below, Plaintiff’s Motion is
GRANTED in part and DENIED in part.
The basis of Plaintiff’s Motion is that in the Court’s prior Order, we stated
that Plaintiff did not file a reply. However, Plaintiff pointed out that Plaintiff’s
reply was filed [D.E. 95] and the Court inadvertently overlooked it.

Plaintiff’s

argument is well taken and to this extent, Plaintiff’s Motion is GRANTED.
Because Plaintiff filed a reply to the supplementation of the record, we will
reconsider all of the evidence and arguments presented.

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On

February

16,

2017

the

Court

granted

Plaintiff’s

motion

for

reconsideration and stated that “[w]hile Plaintiff is entitled to depose Defendant
Israel, this Order will not take effect until Plaintiff can supplement the record later
in the discovery period with evidence supporting his § 1983 claims against Mr.
Israel in his individual capacity.”

[D.E. 51].

The Court required Plaintiff to

supplement the record because “[i]t is well established that § 1983 claims may not
be brought against supervisory officials on the basis of vicarious liability or
respondeat superior,” and that “supervisors are liable under § 1983 ‘either when the
supervisor personally participates in the alleged constitutional violation or when
there is a causal connection between actions of the supervising official and the
alleged constitutional violation.”’ Keating v. City of Miami, 598 F.3d 753, 762 (11th
Cir. 2010) (emphasis added) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th
Cir. 2003)). “A causal connection can be established by, inter alia, ‘facts which
support an inference that the supervisor directed the subordinates to act unlawfully
or knew that the subordinates would act unlawfully and failed to stop them from
doing so.”

Keating, 598 F.3d at 762 (quoting Gonzalez, 325 F.3d at 1235); see also

Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990) (“Using a negligence standard
to determine a supervisory official’s liability would result in de facto respondeat
superior liability for the official”).
After full consideration of the arguments and evidence presented, we find
that Plaintiff has failed to demonstrate that Defendant Israel personally
participated in the alleged constitutional violation or that there is a causal

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connection between his actions and the shooting at issue. Plaintiff states that there
are several pieces of evidence that show that Defendant Israel personally went to
the scene of the shooting of Steven Thompson and spoke with numerous
subordinates. Plaintiff also contends that, when asked about their conversations
with Defendant Israel, his subordinates have been unable to recall those
discussions.

Plaintiff is skeptical of the subordinate’s responses and questions

whether Defendant Israel was at the scene of the crime merely as a figurehead for
the Broward County Sheriff’s Office. Plaintiff further suggests that Colonel John
Dale was the person who made the determination to reinstate Deputy Wengert
(“Wengert”) and that Wengert’s position as a K-9 deputy had been determined by
Wengert’s command unit – not Defendant Israel.

Apparently Colonel Dale’s

testimony supports the inference that Defendant Israel abdicated his policymaking
and oversight responsibilities and allowed the incident involving Steven Thompson
to occur.

Therefore, at the time Defendant Israel personally signed Wengert’s

reinstatement on May 13, 2013, Plaintiff alleges that Defendant Israel knew or
should have known of Wengert’s unfitness to be a deputy sheriff.
As we stated in our prior Order, there is no witness, deposition testimony, or
evidence that allows for Plaintiff to overcome the apex doctrine.

The evidence

continues to show that Defendant Israel was not a witness to the shooting, did not
participate in the investigation of Deputy Wengert, and did not personally direct
any subordinate to take any action in regards to Deputy Wengert or the Plaintiff.
There is nothing that can be inferred from Defendant Israel appearing at the scene

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of the shooting and speaking with his subordinates.

Plaintiff’s argument that

Defendant Israel abdicated his oversight responsibilities of Wengert is also too
attenuated to justify deposing Defendant Israel in his individual or official capacity
in connection with a § 1983 claim. See, e.g., Gonzalez v. Reno, 325 F.3d 1228, 1233
(11th Cir. 2003) (“The defense of qualified immunity completely protects
government officials performing discretionary functions from suit in their individual
capacities

unless

their

conduct

violates

‘clearly

established

statutory

or

constitutional rights of which a reasonable person would have known.’”) (quoting
Hope v. Pelzer, 536 U.S. 730, 739 (2002)); Gilmere v. City of Atlanta, Ga., 737 F.2d
894, 904 (11th Cir. 1984) (“‘Gross negligence’ or ‘deliberate indifference’ is simply
not the proper test for adjudging a due process section 1983 claim against a
municipality.”); Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983) (“[A]
municipality is not liable under section 1983 for the negligence or gross negligence
of its subordinate officials, including its chief of police, in failing to train the
particular officer in question, in the absence of evidence at least of a pattern of
similar incidents in which citizens were injured or endangered by intentional or
negligent police misconduct and/or that serious incompetence or misbehavior was
general or widespread throughout the police force.”).
Because Plaintiff has failed to demonstrate any personal involvement on
behalf of Defendant Israel in a material way, that is in a way that actually has any
bearing on a § 1983 claim, Defendant Israel’s Protective Order remains in effect and
Plaintiff’s Motion to depose Defendant Israel is DENIED. See United States v. Wal-

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Mart Stores, Inc., 2002 WL 562301, at *2 (D. Md. Mar. 29, 2002) (finding that a
“high-ranking official, active or former” must

have “personal involvement in a

material aspect of the claim presented before a deposition will be required. Mere
knowledge or awareness of information that may be helpful if discovered is
insufficient.”).
DONE AND ORDERED in Chambers at Miami, Florida, this 10th day of
August, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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