Bickel v. Carter et al

Filing 40

ORDER ON MOTIONS TO DISMISS. Carter's Motion to Dismiss Count II of Plaintiff's Amended Complaint, ECF No. #35 , is GRANTED. The City's Motion to Dismiss Count IV of the Amended Complaint, ECF No. #20 , is GRANTED in part and DENIED in part. Count IV is DISMISSED with prejudice only insofar as it is based on the purported negligent infliction of emotional distress committed by Carter. Plaintiff is granted leave to amend and is direct to file a Second Amended Complaint on or before June 16, 2017. (Amended Complaint due by 6/16/2017). Signed by Judge Beth Bloom on 6/6/2017. (mc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60606-BLOOM/Valle
SCOTT T. BICKEL,
Plaintiff,
v.
CITY OF CORAL SPRINGS,
and JASON CARTER,
Defendants.
__________________________________/
ORDER ON MOTIONS TO DISMISS
THIS CAUSE is before the Court upon Defendant Jason Carter’s (“Carter”) Motion to
Dismiss Count II of Plaintiff’s Amended Complaint, ECF No. [35] (“Carter’s Motion”), and
Defendant City of Coral Springs’ (the “City”) Motion to Dismiss Count IV of the Amended
Complaint, ECF No. [20] (the “City’s Motion”). The Court has reviewed the Motions, all
opposing and supporting submissions, the record and the applicable law, and is otherwise fully
advised. For the reasons set forth below, Carter’s Motion is granted and the City’s Motion is
granted in part and denied in part.
I.

BACKGROUND
Plaintiff Scott T. Bickel (“Plaintiff” or “Bickel”) filed suit against the City and Carter, a

law enforcement officer with the Coral Springs Police Department (“CSPD”), on March 27,
2017, see ECF No. [1], and, in an Amended Complaint filed on May 1, 2017, see ECF No. [15],
alleged various claims against them. As alleged in the Amended Complaint, this action stems
from an incident that occurred at Bickel’s home on September 6, 2013. See ECF No. [15] at ¶¶
1, 9-22.

Case No. 17-cv-60606-BLOOM/Valle
According to the Amended Complaint, on September 6, 2013, an argument between
Bickel’s son and son-in-law occurred inside Bickel’s home—located on the first story of an
apartment complex—while Bickel and other family members were present. Id. at ¶¶ 9, 13.
Neighbors called the police, and Carter and other CSPD officers were dispatched to Bickel’s
home. Id. at ¶¶ 9-10. “The argument inside the home had concluded” before any of the officers
arrived. Id. at ¶ 13. Upon the officers’ arrival, everyone inside the home was ordered to exit. Id.
at ¶ 12. Bickel, his son, and his son-in-law all exited the home peacefully and without resistance.
Id. at ¶ 13.
As Bickel was exiting the front door of his home, he attempted to caution the officers
about his “severely injured arm” that he had recently undergone a major surgical operation, from
which a scar held closed by surgical staples was “readily identifiable.” Id. at ¶¶ 14-15. At that
point, one or more of the officers present, possibly including Carter, “forced Plaintiff’s arm
behind his back [and] plac[ed] him in handcuffs” without attempting to protect his arm from
further injury. Id. at ¶ 16. This caused further and permanent injury to Bickel’s arm. Id. at ¶ 17.
One or more of the officers, possibly including Carter, then moved Bickel a short
distance from the home’s front door and forced him down to his knees near the first step of the
apartment complex’s concrete stairway. Id. at ¶ 19. At no point did Bickel “oppose, resist, or
fail to obey” any of the officers. Id. at ¶ 21. As Bickel remained handcuffed and on his knees
facing the stairway, Carter “came up from behind, took hold of [Bickel’s] head, and slammed it
into the concrete stair.” Id. at ¶ 22. As a result of this encounter, Bickel sustained significant
and permanent injury. Id. at ¶ 24.
Thereafter, according to the Amended Complaint, Carter fabricated the police report he
prepared as well as a “Use of Force Form” he was required to complete. Id. at ¶ 26. Apparently,

2

Case No. 17-cv-60606-BLOOM/Valle
Carter’s use of force during Bickel’s arrest was summarily deemed justified by the City, CSPD,
and/or CSPD’s Response to Resistance Board. See id. at ¶¶ 27-28.
Based in part on these factual allegations, Bickel brings five claims for relief, including:
excessive force under the Fourth Amendment and 42 U.S.C. § 1983 against Carter (Count I);
intentional infliction of emotional distress (“IIED”) against Carter (Count II); “assault and/or
battery” against Carter (Count III); a claim “pursuant to 768.28 Fla. Stat.” against the City based
on Carter and the other officers’ purported “wrongful acts of battery and/or negligent infliction
of emotional distress” (Count IV); and a claim under Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978) and 42 U.S.C. § 1983 against the City (Count V). ECF No. [15]. Through their
respective Motions, Carter moves to dismiss Count II for failure to state a claim, ECF No. [35],
and the City moves to dismiss Count IV, arguing that in seeking to assert a negligence claim
against the City based upon its vicarious liability for the actions of Carter, Count IV fails as a
matter of state law because “there are no allegations of negligent (as opposed to intentional)
conduct” by Carter in the Amended Complaint, ECF No. [20] at 3.
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). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
(2002). While a complaint “does not need detailed factual allegations,” it must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Supreme Court has emphasized that “[t]o survive a motion to dismiss a complaint

3

Case No. 17-cv-60606-BLOOM/Valle
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Am. Dental
Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010). With respect to Rule 12(b)(6),
“[d]ismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”
Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S.
41, 45-46 (1957)). A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009); see also Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th
Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it
is central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).
III.

DISCUSSION
A. Intentional Infliction of Emotional Distress Against Carter (Count II)
A claim for IIED under Florida law requires a showing of: “1) deliberate or reckless

infliction of mental suffering by defendant; 2) by outrageous conduct; 3) which conduct of the
defendant must have caused the suffering; and 4) the suffering must have been severe.” Golden
v. Complete Holdings, Inc., 818 F. Supp. 1495, 1499 (M.D. Fla.1993) (citing Metro. Life Ins. Co.
v. McCarson, 467 So. 2d 277, 278 (Fla. 1985)). Further, the conduct must be
so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which the recitation of the facts
to an average member of the community would arouse his resentment against the
actor, and lead him to exclaim, “Outrageous!”

4

Case No. 17-cv-60606-BLOOM/Valle
McCarson, 467 So. 2d at 278-79 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
Whether conduct meets that standard is a question of law to be answered by the Court. Ayers v.
Wal-Mart Stores, Inc., 941 F. Supp. 1163, 1167-68 (M.D. Fla.1996) (citing Dependable Life Ins.
Co. v. Harris, 510 So. 2d 985, 988 (Fla. 5th DCA 1987), and Ponton v. Scarfone, 468 So. 2d
1009, 1011 (Fla. 4th DCA 1985)).
Carter contends that Bickel’s IIED claim against him under Count II should be dismissed
because the Amended Complaint fails to allege sufficient facts to support the claim.
Specifically, Carter argues that Count II: (1) fails to adequately allege outrageous conduct on the
part of Carter; and (2) offers “no facts demonstrating the actual emotional distress Plaintiff
claims to have suffered . . . .” ECF No. [35] at 4-5. The Court agrees with Carter’s second
argument.
The Amended Complaint alleges the following: Bickel, before being placed in handcuffs,
warned the officers of his injured arm (ECF No. [15] at ¶¶ 13-14); Carter “knew, or should have
known, at the mere sight of BICKEL, that any manipulation of the surgically repaired arm, in its
obvious and exposed condition, would cause further injury if not done with care and concern”
(id. at ¶ 17); Bickel “was passive and completely compliant” throughout the encounter (id. at ¶
18); in placing Bickel under arrest and in handcuffs, Carter and the other officers made no
attempt “to protect the arm from further injury” (id. at ¶ 16); as Bickel remained handcuffed and
on his knees facing the stairway, Carter “came up from behind, took hold of [Bickel’s] head, and
slammed it into the concrete stair” (id. at ¶ 22); and Carter fabricated his written reports (id. at ¶
26). With respect to conduct, Carter’s Motion focuses only on the alleged encounter between
Carter and Bickel near the stairway, characterizing it as merely a “gratuitous shove” that it is
insufficiently egregious to support an IIED claim. ECF No. [35] at 4. As alleged, however, that

5

Case No. 17-cv-60606-BLOOM/Valle
encounter is far more serious in degree than a “gratuitous shove.” See McCarson, 467 So. 2d at
278-79. Moreover, in totality, while the acts of coming up from behind a compliant individual in
handcuffs and slamming his head into a concrete stairway and later lying about the events may
not exceed all possible bounds of decency given the high standard Florida courts employ in this
context, the Court nevertheless finds that the outrageous conduct element has been sufficiently
pled here.
However, the Court has examined the allegations with respect to the first and last
elements—the resulting mental suffering and its severity. Although the Amended Complaint
offers detailed allegations as to the physical injuries sustained by Bickel, it offers no specific
allegations as to any mental suffering Bickel has endured, let alone the degree of such mental
suffering. See generally Frias v. Demings, 2011 WL 4903086, at *12 (M.D. Fla. Oct. 14, 2011)
(“The law intervenes only where the distress inflicted is so severe that no reasonable man could
be expected to endure it.”) (citing Restatement (Second) of Torts § 46, cmt. J (1965)). Instead,
the Amended Complaint merely alleges in conclusory fashion that Bickel suffered “severe
emotional distress.”

ECF No. [15] at ¶ 53.

This is not enough. See, e.g., Woodhull v.

Mascarella, 2009 WL 1790383, at *3 (N.D. Fla. 2009) (“Plaintiff has continued to offer no facts
to support her conclusory allegations of ‘severe’ emotional distress.”). Accordingly, Count II is
dismissed without prejudice with leave to amend.
B. Vicarious Liability for “Battery and/or Negligent Infliction of Emotional
Distress” Against the City (Count IV)
Count IV of the Amended Complaint, which generally references Section 768.28, Florida
Statutes, states in part as follows:
[I]n the alternative to any contrary allegations set forth in this Complaint, Plaintiff
BICKEL alleges that the Defendant CARTER did not commit the abovementioned torts of battery and/or negligent infliction of emotional distress, in bad
6

Case No. 17-cv-60606-BLOOM/Valle
faith or with malicious purpose, or in a manner exhibiting willful and wanton
disregard of human rights, safety, or property, but as a result of lack of training or
supervision.
ECF No. [15] at ¶ 65 (emphasis added). Characterizing the force used by Carter as “wrongful
force,” Count IV alleges that the City is liable for Carter and the other officers’ “wrongful acts of
battery and/or negligent infliction of emotional distress.” Id. at ¶¶ 66-67.
Florida has, “for itself and for its agencies or subdivisions,” waived its “sovereign
immunity for liability for torts, but only to the extent specified” in Fla. Stat. § 768.28. Fla. Stat.
§ 768.28(1). In turn, Fla. Stat. § 768.28 provides a conditional waiver of sovereign immunity for
certain vicarious liability claims as follows:
Actions at law against the state or any of its agencies or subdivisions to recover
damages in tort for money damages against the state or its agencies or
subdivisions for injury or loss of property, personal injury, or death caused by the
negligent or wrongful act or omission of any employee of the agency or
subdivision while acting within the scope of the employee's office or employment
under circumstances in which the state or such agency or subdivision, if a private
person, would be liable to the claimant, in accordance with the general laws of
this state, may be prosecuted subject to the limitations specified in this act.
Fla. Stat. § 768.28(1) (emphasis added). One of the “limitations specified” in Fla. Stat. §
768.28—and referenced in Count IV—is that “[t]he state or its subdivisions shall not be liable in
tort for the acts or omissions of an officer, employee, or agent committed while acting outside
the scope of his or her employment or committed with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or property.” Fla. Stat. §
768.28(9)(a).
The City’s Motion appears to construe Count IV as a claim for negligent infliction of
emotional distress. See ECF No. [20] at 2 (addressing “the negligent infliction of emotional
distress claim” and stating that “Plaintiff in Count IV seeks to assert a negligence claim against
the CITY based upon its vicarious liability for the actions of Carter”). More specifically, the
7

Case No. 17-cv-60606-BLOOM/Valle
City’s Motion argues that, as a matter of law, the City cannot be vicariously liable for the actions
of Carter because the Amended Complaint fails to allege any “underlying negligent acts.” Id. at
2-3. In the City’s words: “Here [], the Amended Complaint does not allege any negligence by
Carter, but instead that he committed the tort of battery or excessive force. Under Florida law
(and as a matter of basic common sense), one cannot bring a simple negligence claim arising out
of the intentional use of excessive force.” Id. at 3 (emphasis in original) (citing City of Miami v.
Sanders, 672 So. 2d 46, 48 (Fla. 3d DCA 1996), and Lewis v. City of St. Petersburg, 98 F. Supp.
2d 1344 (M.D. Fla. 2000)). The Court agrees on this point.
In essence, Count IV seeks to place liability on the City by way of the alleged tortious
conduct of Carter. In attempting to do so, Count IV pleads in the alternative that Carter’s
tortious conduct (“wrongful force” as the Amended Complaint characterizes it generally) was the
“result of lack of training or supervision” rather than bad faith, malicious purpose, or willful and
wanton disregard of human rights. The purpose of this alternative pleading, of course, is to
avoid the limitation provided under Fla. Stat. § 768.28(9)(a) that would preclude the applicability
of the waiver of sovereign immunity provided under Fla. Stat. § 768.28(1).

Importantly,

however, the Amended Complaint classifies the underlying tortious conduct of Carter’s, which
necessarily forms the basis of the vicarious liability claim under Count IV, as “battery and/or
negligent infliction of emotional distress.” ECF No. [15] at ¶¶ 63, 65, 67 (emphasis added).
Insofar as the underlying tort upon which Count IV is based on is negligent infliction of
emotional distress—particularly as that emotional distress is alleged to have been brought about
by the purportedly “wrongful force” used by Carter during Bickel’s arrest—Count IV must fail.
As the Eleventh Circuit has explained, “Florida courts have conclusively established that a cause
of action for the negligent use of excessive force is an oxymoron.” Secondo v. Campbell, 327 F.

8

Case No. 17-cv-60606-BLOOM/Valle
App’x 126, 131 (11th Cir. 2009) (citing City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. 1st
DCA 1996)); see also Sanders, 672 So. 2d at 47-48 (explaining that “a suit for a police officer’s
use of excessive force necessarily involves the intentional tort of battery[,]” and further, that “it
is not possible to have a cause of action for ‘negligent’ use of excessive force because there is no
such thing as the ‘negligent’ commission of an ‘intentional’ tort”). And as another court in this
District has explained, “[t]he commission of a battery against an individual cannot be negligently
done.” Lewis, 98 F. Supp. 2d at 1350 (citing Sanders, 672 So. 2d at 47). Instead, “a separate
negligence claim based upon a distinct act of negligence may be brought against a police officer
in conjunction with a claim for excessive use of force. . . . [only where] the negligence
component [] pertain[s] to something other than the actual application of force during the course
of the arrest.” Sanders, 672 So. 2d at 48 (emphasis added) (internal citations omitted); see also
Lewis, 98 F. Supp. 2d at 1350 (“While negligence claims may be brought against a governmental
entity, such claims must be based on something besides the use of force in making or attempting
to make a lawful arrest.”). Here, the specific negligent infliction of emotional distress alleged as
the tortious conduct underlying Count IV’s vicarious liability claim is not legally cognizable, as
it unequivocally pertains to Carter’s “wrongful” use of force during Bickel’s arrest. See ECF
No. [15] at ¶¶ 65-66. Naturally, then, such allegedly tortious conduct, insufficient to establish
liability on the part of Carter in the first place, cannot serve as a basis on which to attach
vicarious liability on the part of the City. See generally Laster v. City of Tampa Police Dep't,
575 F. App’x. 869, 873 (11th Cir. 2014) (“To prevail on a theory of vicarious liability against the
City under Fla. Stat. § 768.28, [the plaintiff] had to show liability on the part of . . . the City's
employee.”).

9

Case No. 17-cv-60606-BLOOM/Valle
That said, in construing Count IV as a claim for negligent infliction of emotional distress,
the City’s Motion fails to address the other aspect of Count IV—that is, the extent to which it
identifies as the underlying tortious conduct the purported battery committed by Carter during
Bickel’s arrest, an intentional tort. “Florida courts have explicitly held that section 768.28 does
not immunize ‘a governmental entity from liability for the intentional torts of its employees
committed in the course and scope of their employment where the act or conduct does not
involve bad faith or malicious purpose, nor was it committed in a manner exhibiting a wanton
and willful disregard of human rights, safety, or property.” Jones v. City of Orlando, 2012 WL
12904725, at *9 (M.D. Fla. Nov. 16, 2012) (quoting Richardson v. City of Pompano Beach, 511
So. 2d 1121 (Fla. 4th DCA 1987) (emphasis in original)). The City itself appears to recognize
this principle. See ECF No. [34] at 1 (agreeing with the assertion that “intentional tort claims
may be brought against governmental entities so long as the count does not allege the employee
committed the tort with malice or bad faith”). As such, to the extent that Count IV pleads in the
alternative that the underlying tortious conduct of Carter giving rise to the City’s vicarious
liability is a battery that was not committed in bad faith, with malicious purpose, or in a manner
exhibiting willful and wanton disregard of human rights, the Court will deny the City’s request
for dismissal of Count IV.1

1

In its Reply, ECF No. [34] at 2-3, the City argues for the first time that Count IV should be dismissed
because it improperly “commingles” an intentional tort and a negligence claim within the same count.
The Court, however, will not consider an argument raised for the first time in a reply brief. See In re
Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009); Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1251
(11th Cir. 2015) (“It is well settled that a party cannot argue an issue in its reply brief that was not
preserved in its initial brief.”) (quoting Tallahassee Mem. Regional Med. Ctr. v. Bowen, 815 F.2d 1435,
1446 n. 16 (11th Cir. 1987)).

10

Case No. 17-cv-60606-BLOOM/Valle
IV.

CONCLUSION
For all of the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Carter’s Motion to Dismiss Count II of Plaintiff’s Amended Complaint, ECF No.
[35], is GRANTED.
2. The City’s Motion to Dismiss Count IV of the Amended Complaint, ECF No. [20], is
GRANTED in part and DENIED in part.

Count IV is DISMISSED with

prejudice only insofar as it is based on the purported negligent infliction of
emotional distress committed by Carter.
3. Plaintiff is granted leave to amend and is direct to file a Second Amended Complaint
on or before June 16, 2017.
DONE AND ORDERED in Miami, Florida this 6th day of June, 2017.

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

11