Bickel v. Carter et al

Filing 55

ORDER denying #52 Motion to Dismiss. Signed by Judge Beth Bloom on 8/4/2017. (vmz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60606-BLOOM/Valle
SCOTT T. BICKEL,
Plaintiff,
v.
THE CITY OF CORAL SPRINGS,
And JASON CARTER,
Defendants.
___________________________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Jason Carter’s (“Defendant” or
“Carter”) Motion to Dismiss Count II of Plaintiff’s Second Amended Complaint, ECF No. [52]
(the “Motion”). The Court has reviewed the Motion, all opposing and supporting submissions,
the record and the applicable law, and is otherwise fully advised. For the reasons set forth
below, the Motion is denied.
I. BACKGROUND
Plaintiff Scott T. Bickel (“Plaintiff” or “Bickel”) filed suit against the City of Coral
Springs and Carter, a law enforcement officer with the Coral Springs Police Department
(“CSPD”).

See ECF No. [1].

Bickel has twice amended his claims, making the Second

Amended Complaint, see ECF No. [49], the operative pleading. As alleged in the Second
Amended Complaint, this action stems from an incident that occurred at Bickel’s home on
September 6, 2013. See ECF No. [49] at ¶¶ 1, 9-22. On that date, Bickel alleges that an
argument between his son and son-in-law occurred inside his home—located on the first story of

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

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 exited the front door of his home, he attempted to caution the officers about his
“severely injured arm” that 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 Second 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,
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.

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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 (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. [49]. The Court previously dismissed Count II of Plaintiff’s Amended Complaint without
prejudice, finding that he failed to state a claim for IIED by merely alleging in “conclusory
fashion that Bickel suffered ‘severe emotional distress.’”

See ECF No. [40].

The Court

concluded that the failure to offer “specific allegations as to any mental suffering Bickel has
endured, let alone the degree of such mental suffering” warranted dismissal with leave to amend.
Id. Since then, Plaintiff has filed a Second Amended Complaint adding allegations of emotional
distress. See ECF No. [49] at 10. In his Motion, Defendant again seeks to dismiss Count II for
failure to state a claim. See ECF No. [53]. Both the Response and the Reply to the Motion
timely followed. See ECF Nos. [53] and [54].
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

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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).
III. DISCUSSION
In the Motion, Carter contends that Plaintiff’s IIED claim in Count II should be dismissed
because the Second Amended Complaint fails to allege sufficient facts to support the claim.
Specifically, Carter argues that Count II alleges in a conclusory fashion that Plaintiff suffered
severe emotional distress, that “Plaintiff has pled identical facts to those deemed insufficient as a
matter of law in the First Amended Complaint,” and that Plaintiff offers “no facts demonstrating
the actual emotional distress Plaintiff claims to have suffered . . . .” ECF No. [52] at 3-4. The
Court disagrees.1
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.

1
The Court previously held that the allegations in the First Amended Complaint were sufficient to
establish outrageous conduct. See ECF No. [40]. The Second Amended Complaint equally sets forth
sufficient allegations.

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v. McCarson, 467 So. 2d 277, 278 (Fla. 1985)). Here, the Court has examined the allegations
with respect to the first and last elements—the resulting mental suffering and its severity. To
overcome a motion to dismiss, an IIED claim must make specific allegations concerning any
mental suffering that the plaintiff has sustained and speak to the degree of such mental suffering.
See Frias v. Demings, No. 6:09–cv–2023–Orl–31KRS, 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)).
Applying this standard to the Second Amended Complaint, Plaintiff has pled specific
allegations of emotional distress and has addressed their severity. Specifically, Plaintiff alleges
that, as a result of Carter’s conduct, he has been caused “great embarrassment and extreme
shame;” he “is now and will continue to be grief stricken;” he “developed an acute fright and
paranoia when he sees the police,” and he suffers and “will continue to suffer from nightmares
and daily extreme anxiety.” Id. at ¶¶ 42, 43. Psychological reactions, such as extreme anxiety
and the manifestation of nightmares and paranoia, paired with the litany of other forms of
emotional distress alleged are sufficiently severe for purposes of stating a claim for IIED. “[I]t is
not a normal or common response for an individual to become so nervous around a police officer
that it causes physiological reactions such as shaking or loss of sleep.” Holloway v. City of
Orlando, No. 6:15-cv-129-ORL-40GJK, 2016 WL 4369958, at *8 (M.D. Fla. Aug. 16, 2016)
(concluding that the plaintiffs’ testimony stating that, as a result of the incident, they experienced
trouble sleeping and would shake after any interaction with policers officers was sufficient
evidence of emotional distress to withstand summary judgment). The Court finds that the mental
suffering Plaintiff alleges is sufficient as a matter of law to support a claim of IIED.

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Further, when an officer allegedly beats a non-resisting individual, the Court can infer the
remaining elements of the claim for IIED. See Forrest v. Pustizz, No. 16-cv-62181-GAYLES,
2017 WL 2472537, at *8 (S.D. Fla. June 7, 2017) (“The Court can reasonably infer that Forrest
satisfied the other elements of the claim as well – that he suffered emotional distress and that the
distress was severe” when the allegations were that the officer “continually beat him despite his
lack of resistance”). Here, Plaintiff alleges that with his hands restrained behind his back and
while forced down onto his knees on the first step of the concrete stairway outside of his
apartment, Carter “came up from behind, took hold of his head, and slammed it into the concrete
stair.” See ECF No. [49] at ¶¶ 19-22. Plaintiff further alleges that, while he remained on his
knees, he did not “oppose, resist or fail to obey the command of, any of the officers present,
including Carter.” Id. Plaintiff’s allegations that Carter slammed his head into the concrete stair
despite the lack of resistance would, standing alone, allow the Court to infer that all other
elements of the IIED are satisfied.

When this is coupled with Plaintiff’s allegations of

nightmares, paranoia, and extreme anxiety, the Court finds that Count II states a claim for IIED.
While Defendant contends that Plaintiff has “pled identical facts to those deemed
insufficient as a matter of law in the First Amended Complaint,” it is clear that Plaintiff has
added several factual allegations that were not present in the First Amended Complaint. ECF
No. [52] at 3. In particular, paragraphs 42 and 43 of the Second Amended Complaint include
new allegations addressing the insufficiencies which the Court previously highlighted. ECF No.
[49] at ¶ 42-43. Plaintiff’s allegations speak directly to the mental suffering that he claims to
have endured, and further, to its severe nature. Unlike the cases cited by Defendant in support of
his argument, Plaintiff has gone beyond merely restating the elements of the tort, to allege actual
and specific severe mental suffering resulting from Defendant’s conduct. In support of his

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argument for dismissal, Defendant relies upon a series of cases where the plaintiff alleged only
conclusory allegations.

See  Bostick v. McGuire, No. 6:15-cv-1533-Orl-37GJK, 2017 WL

897308 (M.D. Fla. March 7, 2017) (granting summary judgment when the only allegation of
emotional distress was that the plaintiff was paranoid when he was around police and would not
“go outside much.”); Bailey v. City of Douglasville, No. 1:13-CV-00941-RWS-ECS, 2015 WL
12867012 (N.D. Ga. Feb. 4, 2015) (recommending dismissal after finding that conclusory terms
such as “humiliation, embarrassment, and mental anguish” were, alone, lacking substance to
support an IIED claim); Sneed v. SEI/Aaron’s, Inc., No. 1:13-CV-982-TWT, 2013 WL 6669276
(N.D. Ga. Dec. 18, 2013) (stating that bare allegations of “humiliation, fear, and embarrassment”
without any allegation of physical or mental symptoms or further details are insufficient to state
a claim for IIED); Carter v. Countrywide Home Loans, Inc., No. 3:10cv503-WHA-CSC, 2010
WL 4269149 (M.D. Ala. Oct. 28, 2010) (alterations in original) (dismissing plaintiff’s claim for
outrageous conduct when they simply alleged that they suffered “emotional pain and suffering,
[and] depression.”). In the instant case, Plaintiff’s additional allegations of nightmares, paranoia,
and extreme daily anxiety go beyond mere conclusions and are sufficient to survive a motion to
dismiss. Accordingly, the Motion is denied.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant Jason Carter’s Motion to Dismiss Count II of Second Amended Complaint,
ECF No. [52], is DENIED.
2. Defendant Jason Carter shall file an Answer to Count II of the Second Amended
Complaint by August 11, 2017.

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DONE AND ORDERED in Miami, Florida this 3rd day of August, 2017.

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

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