Rincon et al v. Village of Palmetto Bay et al

Filing 117

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; Granting in Part and Denying in Part 99 Motion to Dismiss for Failure to State a Claim; Adopting 111 Report and Recommendations. Certificate of Appealability: No Ruling Signed by Judge Darrin P. Gayles on 11/5/2020. See attached document for full details. (cds)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:16-cv-22254-GAYLES/MCALILEY

CARMEN RINCON and CARLOS
RINCON, Personally, and as Personal
Representatives of the Estate of
Ethan Rincon, deceased,
Plaintiffs,
v.
MIAMI-DADE COUNTY, a subdivision
of the State of Florida, SERGEANT VICTOR
EVANS, individually and in his official capacity
as a police officer for Miami Dade County,
OFFICER JOHN DALTON, individually and
in his official capacity as a police officer for
Miami Dade County, and OFFICER BRIAN
ZAMORSKI, individually and in his official
capacity as a police officer for Miami Dade
County, and OFFICER MARLENE TABORDA,
individually and in her official capacity as a
police officer for Miami-Dade County,
Defendants.

_______________________________/
ORDER
THIS CAUSE comes before the Court on Magistrate Judge Chris McAliley’s Report and
Recommendation (the “Report”) [ECF No. 111] regarding Defendants’ Motion to Dismiss
Plaintiffs’ Fourth Amended Complaint (the “Motion”) [ECF No. 99]. The matter was referred to
Magistrate Judge McAliley, pursuant to 28 U.S.C. § 636(b)(1)(B), for a ruling on all pre-trial
matters. [ECF No. 88]. Judge McAliley’s Report recommends that the Court grant the Motion in
part. Defendants Sergeant Victor Evans, Officer John Dalton, and Officer Brian Zamorski
(collectively, the “Officers” or “Defendants”) timely filed objections to the Report, disputing

Judge McAliley’s recommendation denying Defendants’ Motion as to Counts II and V of the
Fourth Amended Complaint. [ECF No. 115].
A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection
is made are accorded de novo review, if those objections “pinpoint the specific findings that the
party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed.
R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection
is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters,
L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x
781, 784 (11th Cir. 2006).
DISCUSSION 1
The Officers’ objections to Counts II and V essentially mirror their arguments in the
Motion. “It is improper for an objecting party to . . . submit [] papers to a district court which are
nothing more than a rehashing of the same arguments and positions taken in the original papers
submitted to the Magistrate Judge.” Sanchez v. Jones, No. 17-CIV-21911, 2019 WL 8892627, at
*1 (S.D. Fla. Apr. 29, 2019). Even so, having conducted a de novo review, the Court agrees with
Judge McAliley’s well-reasoned analysis and conclusions and finds that Defendants’ objections
have no merit.
The Court notes, however, the Officers’ contention that the Report misapplies the holding
of Perez v. Suszczynski, 809 F.3d 1213 (11th Cir. 2016)—that “the mere presence of a gun or other
weapon is not enough to warrant the exercise of deadly force and shield an officer from suit.” Id.
at 1220. In particular, the Officers argue that the Report “fails to acknowledge that, in Perez, record

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The Report’s recitation of the factual and procedural background is incorporated into this Order by reference.

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evidence indicated the plaintiff was no longer in possession of his weapon at the time of the
shooting.” [ECF No. 115 at 4]. However, the facts of Perez are irrelevant as the Report merely
quotes Perez to emphasize that the presence of a weapon, alone, does not preclude a claim for
excessive force. “Although the presence or absence of a weapon is a factor in this analysis, it is
merely one element in the calculus; the ultimate determination depends on the risk presented,
evaluating the totality of the circumstances surrounding the weapon.” Perez, 809 F.3d at 1220.
The Eleventh Circuit has considered the use of deadly force to be more reasonable when 1) the
suspect poses an immediate threat of serious physical harm to officers or others; 2) the suspect
committed a crime involving the infliction or threatened infliction of serious harm, such that his
being at large represents an inherent risk to the general public; and 3) the officers either issued a
warning or could not feasibly have done so before using deadly force. Salvato v. Miley, 790 F.3d
1286, 1293 (11th Cir. 2015).
Here, the Officers were responding to a non-violent vandalism complaint and upon
interaction with the victim, gave no verbal commands or warnings, although feasible, before firing
their weapons. When viewed in the light most favorable to the Plaintiffs, the facts demonstrate a
plausible claim for excessive use of force.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
(1)

Magistrate Judge McAliley’s Report and Recommendation on Defendants’ Motion
to Dismiss Plaintiffs’ Fourth Amended Complaint, [ECF No. 111], is AFFIRMED
AND ADOPTED and incorporated into this Order by reference;

(2)

Defendants’ Motion to Dismiss Plaintiffs’ Fourth Amended Complaint, [ECF No.
99], is GRANTED in part and DENIED in part;

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(3)

Count I is DISMISSED with prejudice against the Officers and DISMISSED
without prejudice as against Miami-Dade County;

(4)

Count II is DISMISSED with prejudice against Defendant Officer Marlene
Taborda. Defendants’ Motion is DENIED as to Count II against Defendants
Sergeant Victor Evans, Officer John Dalton, and Officer Brian Zamorski;

(5)

Counts III, IV, and VII are DISMISSED without prejudice;

(6)

Defendants’ Motion is DENIED as to Count V; and

(7)

Count VI is DISMISSED with prejudice.

DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of November 2020.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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