Coipel et al v. Carpenter et al

Filing 194

Order on the Defendants Motions for Summary Judgment granting 124 MOTION for Summary Judgment with Incorporated Statement of Facts and Memorandum of Law filed by Roshan Milligan, Angel Mercado, 129 MOTION for Summary Judgment filed by Kenya Crocker, John Carpenter, 126 Defendant's MOTION for Summary Judgment filed by City of Miami Signed by Judge Robert N. Scola, Jr on 8/7/2017. (lan)

United States District Court
for the
Southern District of Florida
Fernando M. Coipel and Ida Coipel,
Plaintiffs
v.
John Carpenter, and others,
Defendants.

)
)
) Civil Action No. 16-20458-Civ-Scola
)
)

Order on the Defendants’ Motions for Summary Judgment
This matter is before the Court on the Defendants’ motions for summary
judgment. The Defendants Roshan Milligan and Angel Mercado filed a motion
for summary judgment (M&M Mot. Summ J., ECF No. 124), the Defendants
John Carpenter and Kenya Crocker filed a motion for summary judgment (C&C
Mot. Summ. J., ECF No. 129), and the Defendant City of Miami filed a motion
for summary judgment (City Mot. Summ. J., ECF No. 126). The Plaintiffs
Fernando and Ida Coipel responded separately to each motion (Resp. to M & M,
ECF No. 139 (“Resp. 1”); Resp. to C & C, ECF No. 142 (“Resp. 2”); Resp. to City,
ECF No. 143 (“Resp. 3”)). Finally, each respective group of Defendants replied
(M&M Reply, ECF No. 151; C&C Reply, ECF No. 153; and City Reply, ECF No.
146).
The Court has reviewed the record, the parties’ briefs, and the relevant
legal authorities. For the reasons more fully explained below, the Court grants
the Defendants’ Motions for Summary Judgment (ECF Nos. 124, 129, and
126).

1. Background
Fernando Coipel brought this action against the Defendants, Carpenter,
James,1 Crocker, Milligan, and Mercado, individually, and the City of Miami, a
municipal corporation. The second amended complaint (“Complaint”) raises
eight counts:2 (1) Counts 1, 6, and 7 for false arrest and imprisonment under
42 U.S.C. § 1983 and under state law, respectively; (2) Counts 2 and 5 for use
of excessive force under 42 U.S.C. § 1983 and under state law, respectively; (3)
Count 3 for assault; (4) Count 4 for battery; and (5) Count 8 for failure to
implement appropriate policies, customs, and practices under 42 U.S.C.
A clerk’s default was entered against the Defendant Harold James (ECF No. 49), and the
Plaintiffs filed a notice of joint liability (ECF No. 62).
2 The Court dismissed Count 9 for loss of consortium. (ECF No. 115). The Court notes that
Count 9 was the only count raised by the co-Plaintiff Ida Coipel.
1

§ 1983. (Second Am. Compl., ECF No. 77.) Counts 1 through 7 raise claims
against Carpenter and Crocker. Counts 1 and 5 through 7 raise claims against
Milligan and Mercado. Finally, Counts 3 through 8 raise claims against the
City of Miami.
Coipel owns a property located at 746 NW 61st Street, in a well-known
high-crime area of Miami, Florida. (Depo. of Fernando Coipel, City Mot. Summ.
J. Ex. B (“FC Depo”) at 2, 45–46, ECF No. 126–2; Depo. Ofc. Crocker, City Mot.
Summ. J. Ex. C (“KC Depo.”) at 31, ECF No. 126–3; City SMF ¶¶ 1–3, ECF No.
126.) The City of Miami Police Department (“MPD”) responded to Coipel’s
property an average of 100 times a year. (City Mot. Summ. J. Ex. G, ECF No.
126–7.) In fact, Coipel previously had signed an affidavit permitting the police
to enter the property and had cooperated with the police to install a notrespassing sign. (Depo. Sgt. Carpenter, City Mot. Summ. J. Ex. A (“JC Depo.”)
at 43, ECF No. 126-1.) The entrance to the property passes through a narrow
outdoor hallway. From the inside looking out, there are doors and windows on
the right side and a wall and stairs on the left side:

(City Mot. Summ. J. Ex. F at 5, ECF No. 126-6.)
On February 14, 2012, around 6:00 in the evening, five officers on MPD’s
Problem Solving Team––Carpenter, James, Crocker, Milligan, and Mercado––
were conducting proactive surveillance of Coipel’s property. (City SMF ¶ 5–6,
ECF No. 126.) The officers wore a blue shirt with a large police badge in the
upper right hand corner and “POLICE” written across the back. (JC Depo. at
10–11.) James, an undercover officer, sat in an unmarked car calling out
descriptions of two suspects involved in a narcotics transaction and gave a
signal to the other officers to move in for an arrest. (KC Depo. at 6–7; Depo of
Ofc. Milligan, M&M Notice of Filing, ECF No. 119-1 (“RM Depo.”) at 2; Depo. of

Ofc. Mercado, ECF No. 138-5 (“AM Depo.”) at 3.) James never entered the
property, but the other officers moved onto the property quickly. (Id. at 5.)
Milligan and Mercado exited their cars to chase the suspects through the
property. (Id. at 9.) Crocker entered the building after Milligan and Mercado
had cleared the entryway. (Id.) Crocker stopped just before the base of the
stairs because she saw Carpenter exiting his vehicle and wanted to provide him
an update. (Depo. Ofc. Crocker, M&M Notice of Filing (“KC Depo. 2”) at 4, ECF
No. 117-1.)
Next, Carpenter—in pursuit of the suspects identified by James––reached
the entrance and immediately encountered Coipel in the narrow hallway. (JC
Depo. at 13, ECF No. 126-1.) Coipel was discussing a potential rental with
Shalisha Christian. (FC Depo. at 37.) Carpenter indicated he was a police
officer and ordered Coipel to put his hands up and to move against the wall.
(Id. at 13, 17; Depo. of Shalisha Christian, Coipel Notice of Filing Ex. B
(“Christian Depo.”) at 3, ECF No. 138-2; Depo. of Fernando Coipel, M&M Notice
of Filing (“FC Depo. 2”) at 7, ECF No. 122-1.) Coipel heard the command two
times. (Id.; see also KC Depo. at 36; JC Depo. at 19.) Coipel later admitted that
the command is one ordinarily given by police officers. (Id. at 8.)
When Carpenter ordered Coipel to move, Coipel was standing in the
middle of the narrow entryway. (JC Depo. at 13–14.) Coipel did not move out of
the way, and instead moved his arms as if blocking the hallway. (FC Depo. 2 at
3, 7; JC Depo. at 15; KC Depo. at 14; Christian Depo. at 3.) Coipel stated that
he was the owner of the building and claimed he could not be arrested. (Id.; JC
Depo. at 3, 22; KC Depo. at 15.) Carpenter pushed Coipel against the wall and
began dragging him out to the street through the entryway. (Id.; Christian
Depo. at 3.) Coipel claimed he was pushed against the wall two times. (FC
Depo. at 17.) During the incident in the hallway, Crocker and Carpenter were
the only officers present. (FC Depo. at 14, 42–43, 48; JC Depo. at 16; RM Depo.
at 3; FC Depo. 2 at 9.) In fact, Milligan had run to the rear perimeter of the
property and had detained one of the suspects, and Mercado met up with
Milligan there, also with a detained suspect. (RM Depo. at 7–8.)
Once on the street by the police vehicle, Carpenter called for Crocker to
bring handcuffs. (KC Depo. at 17.) According to Coipel, Carpenter slammed
him against the hood of the car. (FC Depo. at 18; Christian Depo. at 3.) Crocker
observed what appeared to be a “shoving match” between Carpenter and Coipel
as Carpenter attempted to place handcuffs on Coipel. (KC Depo. at 18.) Coipel’s
pants fell down around his legs. (FC Depo. at 19; Christian Depo. at 3.) At one
point, Coipel pushed Carpenter away and when Carpenter grabbed Coipel, they
both fell to the ground. (FC Depo. at 18; KC Depo. at 18–19.) Carpenter
continued to struggle with Coipel for a little more than one minute, in an

attempt to get Coipel’s hands behind his back. (JC Depo. at 40; KC Depo. at
21.) Coipel locked his arms underneath himself as he lay on the ground. (JC
Depo. at 28.) According to Christian, Carpenter positioned himself on top of
Coipel with a knee on his back. (Christian Depo. at 4.) Crocker then
approached and placed handcuffs on Coipel. (JC Depo. at 30; KC Depo. at 21–
22.) Carpenter and Coipel rose from the ground, and Crocker led Coipel to her
police vehicle. (KC Depo. at 22–23.)
Throughout the incident, Carpenter was the only officer that ever
touched Coipel. (FC Depo. at 28, 31–34, 39.) Coipel even stated, “[Crocker]
didn’t touch me at all, period. . . . She was way over there. She wasn’t even
close to me.” (FC Depo. 2 at 9.) Milligan and Mercado only returned to the front
of the property after Coipel was inside Crocker’s police vehicle. (KC Depo. at 23;
RM Depo. at 8; FC Depo. at 38.)
Neither Crocker nor Carpenter observed injuries on Coipel, and Coipel
complained of none. (JC Depo. at 46–47, KC Depo. at 24–25, 29; FC Depo. at
22; RM Depo. at 9.) Coipel stated his “whole face was all bloody” but then
admitted there was no blood on his face. (FC Depo. at 19, 23.) The photographs
taken of Coipel at the station and at the scene show no injuries to Coipel’s face
and abrasions on the elbow and hand. (City Mot. Summ. J. Exs. H & I, ECF
Nos. 126–8 and 126-9; Coipel Notice of Filing Ex. Q, ECF No. 138-17.) Coipel
admits that he did not request Fire Rescue or any immediate medical attention.
(FC Depo. at 20–21; JC Depo. at 4, 33–34, 36, 47.)
Coipel’s medical screening with Miami-Dade Corrections noted that
Coipel had no cuts or abrasions that required medical attention and that he
had no signs of bleeding, trauma, or head trauma. (Coipel Notice of Filing Ex. U
at 2, 5, ECF No. 138-21.) Medical records show a visit to Hialeah hospital four
days after the incident, where Coipel arrived as a walk-in patient and
complained of dizziness. (Coipel Notice of Filing Ex. O, ECF No. 138-15.)
Hospital staff noted Coipel appeared in “no apparent distress [and]
comfortable” and denied pain thirty minutes after arriving. (Id. at –2.) Three
months later, Coipel received an X ray of his right ribs that showed no evidence
of any rib displacement and no evidence of rib fracture. (Coipel Notice of Filing
Ex. P, ECF No. 138-16.)

2. Legal Standard
Summary judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and admissions on file show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the

applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “An issue
of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of
fact to find for the nonmoving party.” Id. at 1260.
All the evidence and factual inferences reasonably drawn from the
evidence must be viewed in the light most favorable to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004). Once a party properly
makes a summary judgment motion by demonstrating the absence of a
genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits,
depositions, answers to interrogatories and admissions on file, and designate
specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S.
at 323–24. The nonmovant’s evidence must be significantly probative to
support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The Court will not weigh the evidence or make findings of fact. Id. at 249;
Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the
Court’s role is limited to deciding whether there is sufficient evidence upon
which a reasonable juror could find for the nonmoving party. Id.

3. Legal Analysis
A. Counts 1, 6, and 7: False Imprisonment and False Arrest Under 42
U.S.C. § 1983; False Arrest, and False Imprisonment
Coipel brings his § 1983 claim for false arrest against the officers, and
brings his state-law claims for false arrest and false imprisonment against the
officers and the City.3 The officers argue that they are entitled to summary
judgment in their favor: Milligan and Mercado note they did not arrest or
imprison Coipel, and even if they had, probable cause existed for his arrest
(M&M Mot. Summ. J. at 8-10); and Carpenter and Crocker assert that probable
cause existed for the arrest (C&C Mot. Summ. J. at 5–9). Coipel appears to
recognize that Milligan and Mercado were not present for the arrest, but
attempts to hold them responsible for a “fail[ure] to intervene.” (Resp. 1 at 7–
14, 18.) Coipel further argues that neither probable cause nor arguable
probable cause existed to arrest him. (Id.; Resp. 2 at 5.)
The City also asserts that summary judgment should be entered in its
favor because Coipel alleged that the officers acted in bad faith, willfully and
All the same, because “a § 1983 action against a governmental official in his official capacity
is deemed a suit against the entity that he represents,” Ludaway v. City of Jacksonville, Fla.,
245 F. App’x 949, 951 (11th Cir. 2007) (internal citations and quotations omitted), the Court
will analyze the § 1983 claim for false arrest as if it had been asserted against the City.
3

maliciously, which precludes a finding of liability. (City Mot. Summ. J. at 6.),
The City also notes that the officers had probable cause for arresting Coipel.
(Id. at 7–8.) Further, the City argues that Coipel cannot overcome the
limitations on municipal liability, in that Coipel cannot demonstrate that the
City has a custom or policy that allowed officers to violate constitutional rights.
(Id. at 11–12.) Coipel raises the same arguments against the City’s motion as
he did against the officers’ motions. (Resp. 3 at 7.)
First, “[t]o state a claim for false arrest under Florida law, a plaintiff must
allege three elements: (1) an unlawful detention and deprivation of liberty
against the plaintiff’s will; (2) an unreasonable detention which is not
warranted by the circumstances and (3) an intentional detention.” Amato v.
Cardelle, 56 F. Supp. 3d 1332, 1334 (S.D. Fla. 2014) (Gayles, J.) (citing Tracton
v. City of Miami Beach, 616 So. 2d 457 (Fla. Dist. Ct. App. 1992)). To state a
common law false imprisonment claim under Florida law, the plaintiff must
allege: “(1) the unlawful detention and deprivation of liberty of a person (2)
against that person’s will (3) without legal authority or ‘color of authority’ and
(4) which is unreasonable and unwarranted under the circumstances.” Darnell
v. Rivera, No. 615CV999ORL37TBS, 2016 WL 309050, at *5 (M.D. Fla. Jan. 26,
2016) (quoting Montejo v. Martin Mem’l Med. Ctr., Inc., 935 So. 2d 1266, 1268
(Fla. Dist. Ct. App. 2006)). False arrest and false imprisonment constitute
interrelated causes of actions. Mathis v. Coats, 24 So. 3d 1284, 1289 (Fla. Dist.
Ct. App. 2010). However, “false imprisonment is a broader common law tort[,]
[and] false arrest is only one of several methods of committing false
imprisonment.” Id.
Probable cause serves as an affirmative defense to a claim for false
arrest. Amato, 56 F. Supp. 3d at 1334. Likewise, probable cause provides the
legal authority to effectuate an arrest, thereby defeating a claim for false
imprisonment. See Garrison v. Town of Miami Lakes, No. 11-23739-CIV, 2012
WL 1409665, at *2 (S.D. Fla. Apr. 23, 2012) (Cooke, J.) (noting that probable
cause to arrest provides the legal authority to effectuate an arrest); see also
Garnett v. Webster, No. CV 100-016, 2003 WL 27375076, at *7 (S.D. Ga. Jan.
3, 2003) (“Having determined that the officers had probable cause to believe
Plaintiff had committed a penal offense, the officers were well within their legal
authority to arrest Plaintiff.”).
“Probable cause exists ‘where the facts and circumstances within the
collective knowledge of the law enforcement officials, of which they had
reasonably trustworthy information, are sufficient to cause a person of
reasonable caution to believe that an offense has been or is being committed.’”
Gurrera v. Palm Beach Cty. Sheriff’s Office, 657 F. App’x 886, 889 (11th Cir.
2016) (quoting United States v. Pantoja–Soto, 739 F.2d 1520, 1523 (11th Cir.

1984)). “To show probable cause, the arresting officer must have had
reasonable grounds to believe that the arrestee committed a crime.” Lozman v.
City of Riviera Beach, 39 F. Supp. 3d 1392, 1409 (S.D. Fla. 2014) (Hurley, J.).
“The test is an objective one, i.e. a probable cause determination considers
whether the objective facts available to the officer at the time of arrest were
sufficient to justify a reasonable belief that an offense was being committed.”
Id. (citing United States v. Gonzalez, 969 F.2d 999, 1003 (11th Cir.1992).
As an initial matter, Coipel alleged false arrest and false imprisonment as
two separate claims but failed to allege any additional facts beyond the mere
arrest. In other words, while false imprisonment is a broader tort, Coipel
alleged only facts to state a claim for false arrest. (Second Am. Compl. ¶¶ 83–
84, 87.) Next, Coipel provided no rationale for how Milligan and Mercado could
have engaged in false arrest or false imprisonment where neither officer
participated in, facilitated, or even observed, the arrest. Regardless, Coipel’s
state-law claims for false arrest and false imprisonment against all of the
Defendants fail because probable cause existed for Coipel’s arrest.
Carpenter and Coipel, along with all the witnesses, recalled that
Carpenter twice stated his command to Coipel to put his hands up and to move
against the wall. Coipel not only refused to obey the command, he held out his
hands blocking a hallway so narrow that Carpenter could not move around
Coipel to continue in pursuit of the suspects.
Obstructing a law enforcement officer in active pursuit of individuals
suspected of criminal activity is a crime under Florida law. Fla. Stat. § 843.02
(2011) (“Whoever shall resist, obstruct, or oppose any [law enforcement]
officer . . . without offering or doing violence to the person of the officer, shall
be guilty of a misdemeanor of the first degree . . . .”). Further, during
Carpenter’s efforts to place Coipel under arrest, a “shoving match” ensued.
Coipel’s actions during that struggle constitute crimes under Florida law. Fla.
Stat. § 843.02 (2011) (“Whoever knowingly and willfully resists, obstructs, or
opposes any [law enforcement] officer . . . by offering or doing violence to the
person of such officer or legally authorized person, is guilty of a felony of the
third degree . . . .”); Fla. Stat. § 784.07(2)(b) (2011) (“Whenever any person is
charged with knowingly committing an assault or battery upon a law
enforcement officer . . . the offense for which the person is charged shall be
reclassified as follows: . . . In the case of battery, from a misdemeanor of the
first degree to a felony of the third degree.”).
“Similarly, to state a claim under § 1983, a plaintiff must allege a
warrantless arrest without probable cause. Amato, 56 F. Supp. 3d at 1334
(citing Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990)). An arrest
supported by probable cause absolutely bars the arrestee from pursuing a

§ 1983 false arrest claim. Id. at 1505–06. Thus, Coipel’s § 1983 claim likewise
fails because the Court finds that the officers had probable cause to arrest
Coipel.
As a municipal entity, the City can only be held liable under a § 1983
claim “if the alleged constitutional violations resulted from the execution of the
City’s own policies.” Lozman, 39 F. Supp. 3d at 1403 (citing Monell v. Dept. of
Social Services of the City of New York, 436 U.S. 658 (1978)). However, the
Court need not reach the argument regarding the City’s customs or policies to
resolve Coipel’s claims against the City because no underlying constitutional
deprivation exists. Soto v. City of Miami Beach, 26 F. Supp. 3d 1304, 1310 (S.D.
Fla. 2014) (King, J.); see also City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (finding municipality could not be liable under § 1983 where plaintiff
failed to establish underlying constitutional injury).
As a result, the Court grants the Defendants’ motions for summary
judgment as to Counts 1, 6, and 7.
B. Counts 2 and 5: Use of Excessive Force under 42 U.S.C. § 1983 and
State Law
Coipel brings his § 1983 claim for use of excessive force against
Carpenter and Crocker, and brings his state-law claim for use of excessive
force against all the officers and the City. Carpenter argues that the force
exerted to arrest Coipel was objectively reasonable given the circumstances.
(C&C Mot. Summ. J. at 13.) Crocker notes that she did not use any force,
much less excessive force, against Coipel. (Id.) Mercado and Milligan assert
generally that they were not present and did not participate in Coipel’s arrest.
The City raises the same arguments as for Counts 6 and 7. (City Mot. Summ.
J. at 6, 11.) Coipel states that the force used against him was disproportionate
to the incident and caused him injuries. (Resp. 2 at 8–11.)
“A law enforcement officer, or any person whom the officer has
summoned or directed to assist him or her, need not retreat or desist from
efforts to make a lawful arrest because of resistance or threatened resistance to
the arrest.” Fla. Stat. § 776.05. “The officer is justified in the use of any force
[w]hich he or she reasonably believes to be necessary to defend himself or
herself or another from bodily harm while making the arrest . . . .” Fla. Stat.
§ 776.05(1). “[T]he right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). A “typical
arrest involves some force and injury.” Rodriguez v. Farrell, 280 F.3d 1341,
1351 (11th Cir. 2002). “[T]he ‘reasonableness’ inquiry in an excessive force case
is an objective one: the question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them . . . .”
Graham, 490 U.S. at 397.
The record shows that Carpenter pushed Coipel against the wall at least
once and then dragged Coipel to the police vehicle in front of the building. A
struggle ensued, and Carpenter pushed or threw Coipel against the backside of
the car. At this point, both Carpenter and Coipel fell to the ground, possibly
because they tripped over Coipel’s fallen pants. Carpenter struggled to get
handcuffs on Coipel and used his knee to control Coipel’s movements.
Carpenter then requested assistance from Crocker. The pictures taken of
Coipel show abrasions on the hand and elbow, consistent with Coipel pinning
his arms between his body and the street and Carpenter forcibly moving
Coipel’s arms. The pictures show no bruising, scratches, cuts, bleeding, or
abrasions to the face and head.
Nothing in this scenario indicates the use of excessive force by
Carpenter, and the record also shows that no other officer used any force at all
against Coipel. By Coipel’s own admission, he did not move out of Carpenter’s
way or respond to Carpenter’s command. Coipel also admitted to engaging in a
struggle with Carpenter and not moving voluntarily. Carpenter reacted
reasonably by attempting to get Coipel out of the way and under control.
Certainly, without Coipel’s cooperation, some level of force was required. But
given Coipel’s resistance and lack of notable, documented injuries, this Court
cannot find that Carpenter exerted unreasonable force. See, e.g., Rodriguez v.
Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (collecting cases) (“Painful
handcuffing, without more, is not excessive force in cases where the resulting
injuries are minimal.”); Jackson v. Sauls, 206 F.3d 1156, 1170 n.18 (11th Cir.
2000) (noting that in determining whether the officer used excessive force the
court may consider, among other factors, “the need for the application of
force . . ., the extent of the injury inflicted . . ., and whether the suspect was
resisting . . . .”) (internal citations and quotations omitted); Jones v. City of
Dothan, Ala., 121 F.3d 1456, 1460–61 (11th Cir. 1997) (“While use of force
against [the plaintiff] may have been unnecessary, the actual force used and
the injury inflicted were both minor in nature.”).
Further, to state a § 1983 claim for excessive force, Coipel must show
that the officers somehow violated Coipel’s Fourth Amendment right “to be
secure in [his] person . . . against unreasonable . . . seizure[].” Graham, 490
U.S. at 394 (quoting U.S. Const. amend. IV). Again, because Carpenter had
probable cause to arrest Coipel and exercised objectively reasonable force in
order to effectuate the arrest, Coipel cannot show any violation of his Fourth
Amendment rights. Further, as stated above, for these same reasons the Court

does not need to determine whether the City had any policy or custom of
permitting Fourth Amendment violations. See Soto, 26 F. Supp. 3d at 1310.
As a result, the Court grants Carpenter’s and Crocker’s motion for
summary judgment as to Count 2, and grants the Defendants’ motions for
summary judgment as to Count 5.
C. Counts 3 and 4: Assault and Battery under State Law
Coipel brings state-law claims for assault and battery against Carpenter,
Crocker, and the City. Carpenter and Crocker assert that these claims are
duplicative to the excessive force claim, giving rise to the same arguments.
(C&C Mot. Summ. J. at 18.) The City claims sovereign immunity based on
Coipel’s allegations that the officers acted in bad faith, with malice, and with
willful disregard of Coipel’s saftey. (City Mot. Summ. J. at 6.) The City also
argues that Coipel has not stated causes of action based on municipal liability.
(Id. at 11.) Coipel raises no arguments in support of his claims for assault and
battery. (Resp. 1; Resp. 2; Resp. 3.)
Under Florida law, an “assault” is “an intentional, unlawful threat by
word or act to do violence to the person of another, coupled with an apparent
ability to do so, and doing some act which creates a well-founded fear in such
other person that such violence is imminent.” Fla. Stat. § 784.011(1); see also
Tambriz-Ramirez v. State, 213 So. 3d 920, 923 (Fla. Dist. Ct. App. 2017). “A
person commits battery if he: (a) Actually and intentionally touches or strikes
another person against the will of the other; or (b) Intentionally causes bodily
harm to an individual. Fla. Stat. § 784.03(1); see also United States v. Williams,
609 F.3d 1168, 1170 (11th Cir. 2010).
“If excessive force is used in an arrest, the ordinarily protected use of
force by a police officer is transformed into a battery.” Essex Ins. Co. v. Big Top
of Tampa, Inc., 53 So. 3d 1220, 1223 (Fla. Dist. Ct. App. 2011) (internal
citation and quotations omitted). “Under Florida law, a police officer is entitled
to use force reasonably necessary to effectuate an arrest and police contact
incident to an arrest cannot form the basis of a claim for battery.” Soto, 26 F.
Supp. 3d at 1311 (citing Lester v. City of Tavares, 603 So. 2d 18 (Fla. Dist. Ct.
App. 1992) and City of Miami v. Albro, 120 So. 2d 23 (Fla. Dist. Ct. App. 1960)).
Where an officer has probable cause to arrest an individual and uses the force
necessary to effectuate an arrest, as a matter of law that officer’s conduct does
not constitute battery. Soto, 26 F. Supp. 3d at 1311.
The Court already has found probable cause existed to arrest Coipel. The
Court further has found that Carpenter did not use excessive force and Crocker
used no force at all. The record simply cannot support Coipel’s claims for
assault and battery against Carpenter and Crocker. As a result, Coipel’s claims

against the City fail as well. The Court grants Carpenter’s and Crocker’s
motion for summary judgment and grants the City’s motion for summary
judgment as to Counts 3 and 4.
D. Count 8: Failure to Implement Appropriate Policies, Customs, and
Practices
In Count 8, Coipel alleges that the City “developed and maintained
policies and/or customs exhibiting deliberate indifference to the constitutional
rights of persons in the City of Miami” and that Coipel’s rights were violated as
a result. (Second Am. Compl. ¶ 90.) It appears that Coipel was attempting to
allege, through this separate count, the City’s liability for Counts 3 through 7
(state law claims for assault, battery, excessive force, false arrest, and false
imprisonment, respectively) based on a theory of municipal liability. The City
disclaims any custom or policy demonstrating an official choice to disregard
constitutional rights. (City Mot. Summ. J. at 11–17.)
As stated throughout this order, the Court does not reach the issue of
whether the City maintained policies and customs that disregarded
constitutional rights because as a matter of law Coipel did not suffer any
deprivation of a constitutional right. See Lozman, 39 F. Supp. 3d at 1403; Soto,
26 F. Supp. 3d at 1310; see also Heller, 475 U.S. at 799.
Accordingly, the Court grants the City’s motion for summary judgment
as to Count 8.

4. Conclusion
Accordingly, for the reasons set forth above, the Court grants Roshan
Milligan’s and Angel Mercado’s motion for summary judgment (ECF No. 124),
grants John Carpenter’s and Kenya Crocker’s motion for summary judgment
(ECF No. 129), and grants the City of Miami’s motion for summary judgment
(ECF No. 126).
Done and ordered, at Miami, Florida, on August 7, 2017.
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Robert N. Scola, Jr.
United States District Judge