Rios v. Israel et al
Filing
46
ORDER granting in part 41 Motion to Dismiss. Counts II,III,IV,IX,X Dismissd Without Prejudice. Amended Pleadings due by 1/17/2017. Signed by Judge Beth Bloom on 1/6/2017. (cqs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-61978-BLOOM/Valle
DASYL J. RIOS,
Plaintiff,
v.
SHERIFF SCOTT ISRAEL, et al.,
Defendants.
_____________________________________/
ORDER
THIS CAUSE is before the Court upon Defendants Scott Israel, Christopher Johnson,
and Latoshia Howard’s (collectively, “Defendants”) Motion to Dismiss Plaintiff’s Amended
Complaint and Motion to Strike Certain Portions, ECF No. [41] (“Motion”), which seeks the
dismissal of Plaintiff Dasyl J. Rios’s (“Plaintiff” or “Rios”) Amended Complaint, ECF No. [33]
(“Amended Complaint” or “Am. Compl.”), pursuant to Fed. R. Civ. P. 12(b)(6). The Court has
carefully reviewed the Motion, all supporting and opposing submissions, the record, and
applicable law. For the reasons set forth below, the Motion is granted in part.
I. Background
Defendants are the Sheriff of Broward County (Israel), and two deputy detention officers
(Howard and Johnson). This controversy arises from events that occurred on February 23, 2015.
Rios alleges that she was arrested on December 30, 2014, charged with misdemeanor offenses,
and placed in the pretrial custody and control of the Broward Sheriff’s Office. Am. Compl. ¶ 10.
Rios has been diagnosed with mental illness, including extreme bipolar and emotional disorder.
Id. ¶ 11. According to the Amended Complaint, Rios’s mental condition causes her to act
Case No. 16-cv-61978-BLOOM/Valle
inappropriately, including exhibiting emotional distress and outbursts, and the inability to follow
directions. Id.
When Rios made her initial appearance for arraignment on January 28, 2015 at the
Broward County Courthouse, her hands and feet were shackled.
Id. ¶ 13.
During the
proceeding, Rios “acted out,” screaming and yelling, and Defendant Howard was summoned to
assist in escorting her back to the jail. Id. Howard used a wheelchair to transport Rios without
incident. Id. Rios appeared in court again on February 10, 2015. Id. ¶ 14. Rios was again
shackled on the hands and legs, and as she did at her previous court appearance, began to yell
and scream. Id. However, Defendant Howard was again able to escort Rios back to the jail
without incident.
On February 23, 2015, Defendants Howard and Johnson escorted Rios to her preliminary
hearing.
Id. ¶ 15. According to the Amended Complaint, Defendant Howard informed
Defendant Johnson of Rios’s behavior during her previous court appearances so that he was
aware of what had occurred. Id. Rios was again shackled on this occasion and again became
upset during the hearing. Id. ¶¶15, 17. After speaking to the presiding judge about a potential
transfer to a mental health facility, at the conclusion of the hearing, Rios was hoping to speak to
her mother who was seated at the back of the courtroom. Id. ¶¶18-19. However, Defendant
Johnson did not permit her to do so and forced Rios out of the courtroom. Rios, still shackled
and handcuffed, sat down on a public bench and began to cry. Id. ¶¶ 19-20. Thereafter,
Defendant Johnson told Rios to stand up and walk. When she refused, he pulled her off the
bench by the shackles binding her legs and began to drag her on the floor along the hallway,
telling her, “Now we’ll do it my way,” or “Now you’re mine.” Id. ¶ 21. Defendant Howard
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walked next to Rios as Defendant Johnson dragged Rios down the courthouse hallways to the
jail, and she did nothing to stop Defendant Johnson. Id. ¶ 22.
Rios further alleges that her actions following the hearing were not a threat to safety and
that Defendant Johnson’s statements otherwise contradict statements by other witnesses,
including Defendant Howard.
Id. ¶¶ 23-24.
According to Rios, security resources at the
courthouse were inadequate as a result of Defendant Israel’s failure to assign and train sufficient
employees to provide security at the Broward County Courthouse. Id. ¶¶ 26, 33.
As a result, Rios asserts the following ten counts for relief against Defendants: excessive
use of force in violation of 42 U.S.C. § 1983 against Defendant Johnson (Count I); violation of §
1983 against Defendant Israel in his official and personal capacities (Counts II, III, IV, V);
violation of § 19831 against Defendant Howard (Count VI); battery and infliction of emotional
distress against Defendant Johnson (Counts VII and VIII); respondeat superior liability against
Defendant Israel in his official capacity (Count IX); and negligent training or supervision against
Defendant Israel in his official and personal capacities (Count X). See generally Am. Compl.
Defendants seek dismissal of the Amended Complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim.
II. Legal Standard
A pleading in a civil action must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint
“does not need detailed factual allegations,” it must provide “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); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
1
In the Amended Complaint, Count VI asserts a “Failure to Intervene 42 U.S.C. § 1982” claim, which the
Court assumes to be a typographical error.
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Case No. 16-cv-61978-BLOOM/Valle
that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557
(alteration in original)). “To survive a motion to dismiss a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Twombly, 550 U.S. at 570).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee
Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir.
2002). Although the Court is required to accept all of the allegations contained in the complaint
and exhibits attached to the pleadings as true, this tenet is inapplicable to legal conclusions.
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352 (11th
Cir. 2006) (“When considering a motion to dismiss . . . the court limits its consideration to the
pleadings and all exhibits attached thereto.”) (internal quotation marks omitted). In the Rule
12(b)(6) context, a plaintiff’s pleadings should be read as a whole. See Speaker v. U.S. Dep’t of
Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1383 (11th Cir.
2010) (interpreting specific language in complaint within the context of the entire complaint);
Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11 (11th Cir. 2005)
(stating that, in a Rule 12(b)(6) context, “[w]e read the complaint as a whole”). But pleadings
that “are no more than conclusions, are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252,
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Case No. 16-cv-61978-BLOOM/Valle
1260 (11th Cir. 2009) (“‘[U]nwarranted deductions of fact’ in a complaint are not admitted as
true for the purpose of testing the sufficiency of plaintiff’s allegations.”). Through this lens, the
Court addresses the instant Motion.
III. Discussion
Each Defendant seeks dismissal of the claims asserted against him or her; therefore, the
Court will consider each Defendant’s arguments in turn.
A. Defendant Johnson
Defendant Johnson seeks dismissal of the § 1983 claim for excessive use of force (Count
I) against him in his individual capacity based on qualified immunity. “Qualified immunity is an
immunity from suit rather than a mere defense from liability.” McClish v. Nugent, 483 F.3d
1231, 1237 (11th Cir. 2007). “Qualified immunity offers complete protection for government
officials sued in their individual capacities if their conduct ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’” Kingsland
v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (quoting Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“This
formulation of the qualified immunity inquiry is intended to protect government officials ‘from
undue interference with their duties and from potentially disabling threats of liability.’” Jordan
v. Doe, 38 F.3d 1559, 1565 (11th Cir. 1994) (quoting Harlow, 457 U.S. at 806); see also Jackson
v. Humphrey, 776 F.3d 1232, 1241-42 (11th Cir. 2015) (“The purpose for qualified immunity is
to permit officials to act without fear of harassing litigation as long as they can reasonably
anticipate before they act whether their conduct will expose them to liability.”). The doctrine
“‘gives ample room for mistaken judgments’ but does not protect ‘the plainly incompetent or
those who knowingly violate the law.’” Kingsland, 382 F.3d at 1231-32 (quoting Malley v.
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Case No. 16-cv-61978-BLOOM/Valle
Briggs, 475 U.S. 335, 343, 341 (1986)). “To receive qualified immunity, ‘the public official
must first prove that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.’” Kingsland, 382 F.3d at 1232 (quoting Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002)); see O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004)
(“To be even potentially eligible for qualified immunity, the official has the burden of
establishing that he was acting within the scope of his discretionary authority.”) (citation
omitted).
Defendant Johnson argues that he was acting in his discretionary authority in attempting
to gain compliance from Rios, who was refusing to move. Rios does not appear to dispute that
Defendant Johnson was acting within his discretionary authority, but focuses instead upon the
next part of the Court’s inquiry.2 Ordinarily, once a defendant raises the issue of qualified
immunity and demonstrates that the acts complained of were committed within the scope of his
discretionary authority, “the burden then shift[s] to the [plaintiff] to show that qualified
immunity should not apply because: (1) the officers violated a constitutional right; and (2) that
right was clearly established at the time of the incident.” Garczynski v. Bradshaw, 573 F.3d
1158, 1166 (11th Cir. 2009); see also Barbee v. Naphcare, Inc., 216 F. App’x 851, 852-53 (11th
Cir. 2007) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001) and Vinyard, 311 F.3d at 1346).
However, under the Eighth or Fourteenth Amendment, a plaintiff can overcome the qualified
immunity defense by showing only a violation of her Eighth or Fourteenth Amendment rights.
2
Rios argues that Defendant Johnson’s conduct violated her right to be free from the use of excessive
force under the Fourth and Fourteenth Amendments. While Rios is correct that the Fourth Amendment
protects citizens from the use of excessive force during the course of an arrest, the due process clause of
the Fourteenth Amendment protects a pretrial detainee such as her. Gutierrez v. City of San Antonio, 139
F.3d 441, 452 (5th Cir. 1998); see also Fennell v. Gilstrap, 559 F.3d 1212, 1215-16 (11th Cir. 2009)
(classifying excessive force claim by pretrial detainee under Fourteenth Amendment). “A claim of
excessive force under the Fourteenth Amendment is analyzed as if it were an excessive-force claim under
the Eighth Amendment.” Fennell, 559 F.3d at 1216 n.5 (citing Bozeman v. Orum, 422 F.3d 1265, 1271
(11th Cir. 2005).
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Fennell, 559 F.3d at 1216-17 (citing Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir.
2002)).
Under the Fourteenth Amendment, the use of force against a pretrial detainee is
excessive if it “shocks the conscience.” Id. at 1217 (citing Danley v. Allen, 540 F.3d 1298, 1307
(11th Cir. 2008)) (internal quotations omitted). Assuming that the force is used “in a good-faith
effort to maintain or restore discipline,” it does not shock the conscience. Id. (citing Hudson v.
McMillian, 503 U.S. 1, 7 (1992)) (internal quotations omitted). However, the force is excessive
if it is “applied maliciously and sadistically to cause harm.” Id. (internal quotations and citations
omitted).
Rios has alleged that she refused to follow Defendant Johnson’s demand that she stand up
and walk after being forcefully directed outside the courtroom before she had the opportunity to
speak to her mother. Am. Compl. ¶¶ 19-20. While shackled and handcuffed, and in response to
her refusal to get off the bench where she sat down, Defendant Johnson grabbed the shackles
binding Rios’s legs, pulled her off the bench onto the floor, and dragged her down the hallway of
the courthouse. Id. ¶ 21. Rios has also alleged that she did not pose a threat to anyone’s safety,
and that Defendant Johnson acted maliciously, stating “now you’re mine,” or “now we’ll do it
my way.” Id. ¶¶ 23, 28, 28a. Taken in the light most favorable to Rios, these allegations are
sufficient to overcome Defendant Johnson’s claim of qualified immunity at this stage in
proceedings with respect to Rios’s claim for excessive use of force in Count I.
Defendant Johnson argues further that he cannot be liable individually for any allegedly
negligent actions because he is protected by Florida Statutes section 768.28(9). While the Court
agrees generally that section 768.28(9) protects the state subdivisions and their employees from
individual liability in tort for negligent actions in the course of their employment, it is unclear
precisely how this statement relates to the remaining counts for battery and infliction of
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Case No. 16-cv-61978-BLOOM/Valle
emotional distress asserted against Defendant Johnson. Defendants vaguely acknowledge that
“[t]hough no Count[s] exist where individual liability is asserted against Defendant JOHNSON
without the presence of malice, to the extent that this Court construes the allegations within the
body of the Complaint to make such a claim, these claims should also be dismissed.” Motion at
9-10.
“On a Rule 12(b)(6) motion to dismiss, ‘[t]he moving party bears the burden to show that
the complaint should be dismissed.’” Sprint Sols., Inc. v. Fils-Amie, 44 F. Supp. 3d 1224, 1228
(S.D. Fla. 2014) (quoting Mendez-Arriola v. White Wilson Med. Ctr. PA, No. 09-495, 2010 WL
“The movant must support its arguments for
3385356, at *3 (N.D. Fla. Aug. 25, 2010)).
dismissal with citations to legal authority.” Id. (citing S.D. Fla. L.R. 7.1(a)(1)). “Where a
defendant seeking dismissal of a complaint under Rule 12(b)(6) does not provide legal authority
in support of its arguments, it has failed to satisfy its burden of establishing its entitlement to
dismissal.” Id. (citing Super. Energy Servs., LLC v. Boconco, Inc., No. 09-0321, 2010 WL
1267173, at *5-6 (S.D. Ala. Mar. 26, 2010) and United States v. Vernon, 108 F.R.D. 741, 742
(S.D. Fla. 1986)). Defendants have not cited to any subject-related case law or otherwise
provided the Court with the elements of the remaining claims against Defendant Johnson that
Plaintiff has allegedly failed to plead.
Therefore, with respect to Counts VII and VIII,
Defendants’ Motion is denied.
B. Defendant Howard
Defendants make a similar blanket section 768.28(9)(a) immunity argument with respect
to any claim asserted against Defendant Howard to the extent that this action proceeds upon the
alternative basis that Defendant Johnson’s actions were malicious. By Defendants’ reasoning, if
Defendant Johnson’s actions were indeed malicious, Defendant Howard would be shielded by
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section 768.28(9)(a). Defendants again cite to no subject-related case law, nor do they direct
their argument to a specific count of the Amended Complaint. Therefore, their argument is not
well-taken.
Defendants’ argument with respect to Count VI is similarly conclusory and flawed.
Defendants address Count VI, the § 1983 claim against Defendant Howard premised upon her
alleged failure to intervene, arguing that she is entitled to qualified immunity because dragging
Rios was not a constitutional violation, and even if it was, it is not well established that
Defendant Howard had an obligation to stop Defendant Johnson. However, Defendants appear
to misapprehend the applicable law as requiring that the duty to intervene be well-established,
when the correct inquiry is whether Rios’s right to be free from the use of excessive force is
well-established. See Vinyard, 311 F.3d at 1346. Moreover, the Court already determined that
the applicable standard with respect to Defendant Johnson’s claim of qualified immunity is the
Eighth and Fourteenth Amendment, and that such a claim may be overcome by simply showing a
violation of those rights. See supra at 7. As a result, and for the reasons already stated,
Defendants’ Motion is denied with respect to Count VI against Defendant Howard.
C. Defendant Israel
Defendants argue that Counts II, III, IV, V, and X against Defendant Israel should be
dismissed because as the Sheriff of Broward County, he is entitled to sovereign immunity for
discretionary acts of governmental planning or policy-making. Furthermore, Defendants argue
that Count IX asserting respondeat superior liability against Defendant Israel in his official
capacity for Defendant Johnson’s acts of battery and negligence is not cognizable under § 1983.
Counts II and IV assert § 1983 claims against Defendant Israel in his official capacity, Counts III
and V assert § 1983 claims against Defendant Israel in his personal capacity, and Count X asserts
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claims for negligent supervision and training against Defendant Israel in his personal and official
capacities. The Court considers each argument in turn.
“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 Cty.,
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
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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:
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 v. City of St. Marys, Ga., 787 F.2d 1496,
1499 (11th Cir. 1986); 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 . . . .”).
Rios alleges that Defendant Israel failed to assign a sufficient number of employees to
provide necessary security at the Broward County Courthouse, and failed to implement proper
training and supervision to deputies.
Am. Compl. ¶ 33.
Furthermore, Rios alleges that
Defendant Israel knew that there was insufficient staffing of the courthouse that would likely
result in breaches of security, as he had announced such deficiencies on prior occasions to the
media. Id. ¶ 40. Nevertheless, Defendant Israel continued the practice of understaffing and
providing insufficient training to courthouse deputies to prevent security breaches. Id. ¶ 41.
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Rios alleges that Defendant Israel provided only general training about mentally ill or
emotionally disturbed individuals. Id. ¶¶ 44-49. However, there are no allegations regarding a
consistent or widespread practice with respect to the treatment of mentally ill or emotionally
disturbed individuals, beyond Rios’s conclusory assertion that Defendant Israel’s decision to
understaff the courthouse and not to provide specific training regarding individuals like Rios was
a de facto policy. In fact, as pled, the Amended Complaint would lead to the conclusion that
until the incident involving Defendant Johnson, deputies like Defendant Howard were able to
handle individuals like Rios without incident. Therefore, Plaintiff fails to sufficiently plead
section 1983 claims against Defendant Israel in his official capacity, and Counts II and IV are
dismissed.
Furthermore, Defendant Israel is protected from suit in an individual capacity in the
section 1983 context under a theory of qualified immunity. The Court notes that although
Defendants argue that Defendant Israel is entitled to “sovereign” immunity for discretionary
functions, the cases cited by Defendant for support refer only to qualified immunity. Therefore,
the Court considers Defendants’ arguments to the extent that Defendant Israel is claiming
qualified immunity. “[T]o state a claim against a supervisory defendant, the plaintiff must allege
(1) the supervisor’s personal involvement in the violation of his constitutional rights, (2) the
existence of a custom or policy that resulted in deliberate indifference to the plaintiff’s
constitutional rights, (3) facts supporting an inference that the supervisor directed the unlawful
action or knowingly failed to prevent it, or (4) a history of widespread abuse that put the
supervisor on notice of an alleged deprivation that he then failed to correct.” Barr v. Gee, 437 F.
App’x 865, 875-76 (11th Cir. 2011).
Plaintiff does not allege that Defendant Israel was
personally involved in dragging Rios down the hallway. Therefore, in order to state a viable
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claim against Defendant Israel in his individual capacity, Plaintiff would have to sufficiently
allege a “causal connection between the action of a supervising official and the alleged
constitutional deprivation.”
Cottone, 326 F.3d at 1360.
Though Plaintiff attempts to link
Defendant Israel’s allegedly deliberate understaffing of the Broward County Courthouse and the
lack of proper training to the incident involving Defendant Johnson, the allegations are not
sufficient to state a plausible claim. Counts III and V are therefore dismissed.
Defendants argue that Count IX should be dismissed because a respondeat superior claim
is not cognizable under § 1983. Plaintiff counters that Count IX is a state claim permitted by
Florida Statutes section 768.28 against Defendant Israel in his official capacity based upon
Defendant Johnson’s negligence.
Defendant is correct that a governmental body may not be held liable under § 1983
simply for employing a tortfeasor. Monell, 436 U.S. at 691-92. However, under Florida law, the
state has waived sovereign immunity in tort for the actions of an employee acting within the
scope of his or her employment. See Fla. Stat. § 768.28(9)(a) (stating in pertinent part, “[t]he
exclusive remedy for injury or damage suffered as a result of act . . .of an . . . employee . . . shall
be by action against the governmental entity . . ., unless such act or omission was committed in
bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.”). Nevertheless, “[a] duty of care is a minimal threshold legal
requirement for opening the courthouse doors.” Wallace v. Dean, 3 So. 2d 1035, 1047 (Fla.
2009) (citing McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)) (internal quotations
omitted). To the extent that Plaintiff premises her claim against Defendant Israel in his official
capacity upon negligence, Plaintiff has failed to adequately allege an applicable duty. Count IX
must therefore be dismissed.
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Finally, with respect to Count X for negligent supervision and training against Defendant
Israel in his individual and official capacities, Defendants argue that sovereign immunity applies
to bar suit.
Plaintiff appears to concede that the claim is only properly asserted against
Defendant Israel in his official capacity. See Resp. at 4 (“As to Count X Israel is liable in his
official capacity (akin to BSO) for his negligence in supervising and training Johnson to
encounter pretrial detainees such as Rios.”). Nevertheless, an individual claim for negligence
against Defendant Israel would be barred by sovereign immunity. To the extent that Count X
attempts to assert such a claim, it is dismissed with prejudice.
“[A] governmental agency is immune from tort liability based upon actions that involve
its discretionary functions.” Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir.
2001) (citing Dep’t of Health & Rehabilitative Servs. v. Yamuni, 529 So. 2d 258, 260 (Fla. 1988)
(internal quotations omitted). A discretionary function is one in which “the governmental act in
question involved an exercise of executive or legislative power such that, for the court to
intervene by way of tort law, it inappropriately would entangle itself in fundamental question of
policy and planning.” Cook, 402 F.3d at 1117-18 (citing Henderson v. Bowden, 737 So. 2d 532,
538 (Fla. 1999).
Plaintiff agrees that the establishment of training policies constitutes a
discretionary function, but argues that the Amended Complaint challenges the implementation of
those policies, not the content of the training, as Defendant argues.
The Amended Complaint alleges that the deputies lacked specific training with respect to
interacting with persons who are mentally ill or experiencing emotional disturbance, and
specifically notes that the only training provided is through the posting of notices containing
general information about encountering such people. Am. Compl ¶¶ 44-48. Even construed in
the light most favorable to the Plaintiff, Count X alleges only a challenge to the content of the
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training—specifically, the alleged lack of training with respect to mentally ill or emotionally
disturbed individuals. Therefore, Plaintiff’s negligent supervision claim must be dismissed. See
Lewis, 260 F.3d at 1266 (affirming dismissal of negligent training claim because “[a] city’s
decision regarding how to train its officers and what subject matter to include in the training is
clearly an exercise of governmental discretion regarding fundamental questions of policy and
planning.”).
Count X also alleges a claim for negligent supervision based upon Defendant Johnson’s
actions.
Under Florida law “[n]egligent supervision occurs when during the course of
employment, the employer becomes aware or should have become aware of problems with an
employee that indicated his unfitness, and the employer fails to take further actions such as
investigation, discharge or reassignment.” Dept. of Envtl. Protection v. Hardy, 907 So. 2d 655,
660 (Fla. 5th DCA 2005) (citing Garcia v. Duffy, 492 So. 2d 435, 438-39 (Fla. 2d DCA 1986)).
In addition, “[t]here must be a connection and foreseeability between the employee’s
employment history and the current tort committed by the employee.”
Id. at 661 (citing
Dickinson v. Gonzalez, 839 So. 2d 709, 713-14 (Fla. 3d DCA 2003)). The Amended Complaint
is entirely devoid of any allegations with respect to Defendant Johnson’s employment history or
any past incidents involving Defendant Johnson that could fairly be considered to have put
Defendant Israel on notice of an issue with him. Therefore, Plaintiff has failed to adequately
state a claim for negligent supervision.
D. Motion to Strike
Because the Court dismisses the counts containing requests for punitive damages against
Defendant Israel in his official capacity, the Court need not address the propriety of such
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requests. Nevertheless, the Court notes that Plaintiff agrees with Defendants that such requests
should be properly stricken.
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Motion to Dismiss, ECF No. [41], is GRANTED IN PART.
2. Counts II, III, IV, V, IX, and X are DISMISSED WITHOUT PREJUDICE,
and Plaintiff shall have the opportunity to amend the claims against Defendant
Israel, to the extent that they would not be barred by qualified immunity or
sovereign immunity.
3. Plaintiff shall file a Second Amended Complaint no later than January 17,
2017.
DONE AND ORDERED in Miami, Florida, this 6th day of January, 2017.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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