Burke v. Miami Dade County et al

Filing 33

ORDER Granting 10 Partial Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Donald L. Graham on 9/18/2017. (jtn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 16-25190-CIV-GRAHAM/McALILEY
TANNIE BURKE,
Plaintiff
vs.
MIAMI-DADE COUNTY, a political
subdivision of the State of
Florida, and CLIFTON BALDWIN and
JULIO MARTOS, residents of the
State of Florida,
Defendants.
_________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendants MiamiDade

County,

Clifton

Baldwin,

and

Julio

Martos’

Motion

to

Dismiss Counts II and V of the Complaint (“Motion to Dismiss”)
[D.E.

10].

Plaintiff

Tannie

Burke

subsequently

filed

his

Response to Motion to Dismiss Counts II and V of the Complaint
(“Response”)

[D.E.

17],

to

which

the

Defendants

filed

their

Reply in Support of Motion to Dismiss Counts II and V of the
Complaint (“Reply”) [D.E. 18].
THE COURT has reviewed the record and is otherwise fully
advised in the premises. As set forth herein, the Defendants’
Motion to Dismiss is granted as to Counts II and V.

I.

BACKGROUND 1
Burke contends that on August 27, 2014, Officers Baldwin

and Martos, while engaged in their duties as police officers,
found a single marijuana cigarette on the floor of a secondfloor landing and arrested him and two other Black men. Burke
did not have any marijuana in his possession, and he was not
smoking

marijuana.

released

after

Burke

the

submits

officers

gave

that

two

of

them

notices

the
to

men

were

appear

in

court, however, he was placed in handcuffs and forced to walk
down

the

stairs

without

police

assistance.

Notably,

Burke

suffers from Coats’ disease 2, is legally blind in his left eye,
and is only able to see shapes and greater detail within inches
of what he is trying to see with his left eye. With his right
eye, he can only see light and make out shapes and his right
eyebrow and side of his forehead are swollen and protrude over
his right eye. Burke states that there is no way of looking at

1

This account of the facts is taken from Burke’s Complaint [D.E.
1], the allegations the Court must accept as true when
considering Defendants’ Motion to Dismiss. See SEC v. ESM Grp.,
Inc., 835 F.2d 270, 272 (11th Cir. 1988).
2
Coats’ disease is a disease of the retinal blood vessels, which
can be quite variable in its effect on vision. It may present in
early childhood but typically occurs later in life. It usually
only affects one eye. Many patients with Coats’ disease have
minimal visual problems but, in some individuals, it can cause
severe retinal damage leading to blindness. AMERICAN ACADEMY OF
OPHTHALMOLOGY,
https://www.aao.org/eye-health/ask-ophthalmologistq/what-is-coats-disease (last visited Sept. 6, 2017).
2

his

face

without

being

alerted

to

the

fact

that

he

has

a

physical disability.
Burke alleges his stepfather, Marvin Armstrong, has often
criticized the police for profiling Black and African-American
males in his neighborhood based upon race. Burke further alleges
that Mr. Armstrong has frequently videotaped police activity,
enraging local police. Indeed, Officers Baldwin and Martos knew
that Burke and Mr. Armstrong were related and, in fact, Mr.
Armstrong was videotaping the police at the time this incident
occurred.
After arrest, instead of taking Burke to jail or to the
police station, Officers Baldwin and Martos placed him in the
front passenger seat of an unmarked vehicle. While trying to sit
down, Burke’s body collided with the top frame of the vehicle.
Mr. Amrstrong, irate that Burke was being falsely arrested and
unassisted because he is blind, said the following to the police
as they were loading him into the car: “He blind dumbass. Y’all
don’t tell him y’all walk him to the car, how the fuck he gonna
know?

Stupid.”

Officers

Baldwin

and

Martos

then

entered

the

police vehicle with Burke and drove away.
Officers

Baldwin

and

Martos

claim

that

they

received

a

radio transmission over an official frequency that a suspect was
fleeing
Burke,

in

the

however,

area
never

and

decided

heard

the
3

to

assist

alleged

with

audio

the

search.

transmission.

Coincidentally,

all

relevant

radio-transmission

records

were

destroyed before the Miami-Dade Police Department Professional
Compliance Bureau investigators began their investigation. With
Burke

in

the

car,

Officers

Baldwin

and

Martos

allegedly

complained repeatedly about Mr. Armstrong’s actions, as opposed
to making comments about a fleeing suspect or any other search.
Burke specifically recalls the officers saying, “Your stepfather
got a lot of mouth. You know we don’t like that.”
After

driving

around

for

a

while,

Officers

Baldwin

and

Martos decided to release Burke with a promise to appear. They
directed him to exit the car and walk to its rear. As he is
blind, Burke was only able to do so by moving his hands across
the car to guide himself. The officers then presented Burke with
a document to sign. When Burke told them that he could not see
the document, they placed a large light on it. Burke repeatedly
told Officers Baldwin and Martos that he was unable to see and
described his sight limitations to them.
When it became clear that the officers intended to leave
Burke out in the dark, rural, lightless area, Burke asked them
to drive him back to his neighborhood. He also told the officers
that he could not be dropped off at a bus stop or busy street
because of his condition. Officers Baldwin and Martos refused.
Instead, they drove onto a dark, secluded, rural street without
any lighting and dropped Burke off on the edge of some darkened
4

farmland tract miles from his home. For the better part of an
hour,

Burke

trudged

along

the

roadside.

He

followed

the

asphalt’s edge or the white stripe to maintain his direction as
he sought to find his way home. Burke claims he was in constant
danger of being hit by vehicles or attacked by criminals. While
walking, Burke eventually came upon a Good Samaritan who helped
him navigate his way home. Burke states that Officers Baldwin
and Martos did this to him as an act of retaliation against Mr.
Armstrong because his stepfather had the audacity to question
their activities. Burke attests that he has been traumatized,
stigmatized, and left in fear as to when something like this
will occur again. He contends that he has suffered mental and
psychological damage, damage to his reputation, and is in fear
for his life by being placed in a circumstance where his safety
and life were in peril.

II.

LEGAL STANDARD
Under Rule 8, allegations within a complaint must contain a

“short and plain statement of the claim showing that the pleader
is

entitled

complaint

is

to

relief.”

challenged

Fed.

R.

under

Rule

Civ.

P.

8(a)(2).

12(b)(6),

a

When

court

a

will

presume that all well-pleaded allegations are true, and view the
pleadings

in

the

light

most

favorable

to

the

plaintiff.

Am.

United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir.
5

2007). The Supreme Court of the United States has held that
although

a

complaint

dismiss

does

not

attacked
need

by

a

Rule

detailed

12(b)(6)

to

allegations,

factual

motion

a

plaintiff’s obligation to provide the grounds of his entitlement
to

relief

requires

more

than

labels

and

conclusions,

and

a

formulaic recitation of the elements of a cause of action will
not

suffice.

Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

555

(2007).
The

complaint

“must

contain

sufficient

factual

matter,

accepted as true, to ‘state a claim to relief that is plausible
on

its

face.’”

Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

(quoting Bell Atl. Corp., 550 U.S. at 570). For a claim to have
facial plausibility and survive a motion to dismiss, a plaintiff
must plead “factual content that allows the court to draw the
reasonable

inference

misconduct

alleged.”

Id.

more

a

possibility

than

sheer

that

the
The

defendant

plausibility
that

a

is

liable

standard
defendant

for

the

“asks

for

has

acted

unlawfully.” Id. Therefore, “threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice.” Id. In ruling on a motion to dismiss pursuant
to Rule 12(b)(6), the court is generally limited to the four
corners

of

the

complaint

and

pertinent

attached

documents.

Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.
2000).
6

III. DISCUSSION
Counts II and V of Burke’s Complaint are dismissed for the
following

reasons:

(1)

Burke

fails

to

allege

a

deliberate

indifference to serious medical needs claim while in custody;
(2)

Burke

fails

to

allege

a

deliberate

indifference

to

an

extremely great risk of serious injury claim after his release
from

custody;

constitutional

(3)

assuming

violation,

Burke

Officers

successfully
Baldwin

and

alleged
Martos

a
are

entitled to qualified immunity; and (4) Burke fails to allege a
claim under Title II of the ADA. Before the Court analyzes the
issues at bar, it briefly discusses whether Officers Baldwin and
Martos were sued in their individual or official capacity.
Burke

brings

this

suit

against

Miami-Dade

County

and

Officers Baldwin and Martos, but he does not specify whether he
is suing the officers in their individual or official capacity.
For the sake of clarity, the Court briefly discusses the context
in which Burke sues the officers.
When a plaintiff’s identification of a defendant’s capacity
is unclearly stated in the complaint, “the course of proceedings
typically indicates the nature of the liability sought to be
imposed.” Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1575
(11th Cir. 1994). The standard for an official-capacity suit is
that the entity’s “policy or custom” must have played a role in
the alleged constitutional violation. Kentucky v. Graham, 473
7

U.S. 159, 166 (1985). For an individual-capacity suit, however,
the plaintiff must seek to impose liability against the official
for actions taken under color of state law. Id. at 166 (“On the
merits, to establish personal liability in a § 1983 action, it
is enough to show that the official, acting under color of state
law, caused the deprivation of a federal right.”).
Although

Burke

states

in

his

Complaint

that

Officers

Baldwin and Martos were both “acting in their official capacity
as

employees

located

in

Indeed,

none

capacity

of

the

Miami-Dade
qualified

of

Burke’s

standard;

individual-capacity

County,”

immunity
arguments

rather,
standard.

his
Burke

this

section

assertion
of

reference
arguments
does

not

is

not

the

briefing.

the

official-

reference
allege

that

the
the

officers were following a Miami-Dade Police Department policy or
custom when they dropped him off on the side of the road away
from his home. Burke also argues that the officers’ actions were
taken

under

color

of

state

law.

Additionally,

the

case’s

stylization does not state that Officers Baldwin and Martos are
being sued in their official capacity. Instead, it states that
Burke is suing them as “residents of the State of Florida.” As
such, the Court reads the Complaint to sue Officers Baldwin and
Martos in their individual capacity. See generally Kentucky, 473
U.S. at 166; Miccosukee Tribe of Indians of Fla. v. Jewel, 996
F. Supp. 2d 1268, 1272-73 (S.D. Fla. 2013); Louisius v. Fla.
8

Dep’t of Corr., No. 6:14-cv-931-Orl-40GJK, 2015 WL 667973, at *4
(S.D. Fla. Feb. 17, 2015). 3
A.

Count II – Deliberate Indifference Claim

In their Motion to Dismiss, Officers Baldwin and Martos
argue that the Court should dismiss Count II because the “facts
alleged

in

‘failure
submit

to

that

the

Complaint

render
Burke

fail

to

aid’

claim.” 4

cannot

allege

support

the

Specifically,
that

he

elements
the

suffered

of

a

officers
a

serious

medical need as defined by the Eleventh Circuit. Additionally,
they argue that they are entitled to qualified immunity because
Burke did not suffer a constitutional violation and, even if he
did, that right was not clearly established at the time the
alleged violation occurred.
In his Response, Burke states for the first time that the
acts of Officers Baldwin and Martos constituted an unjustified
intrusion of bodily integrity. Specifically, Burke alleges that
“[s]uch conduct can be nothing less than actionable negligence,”
3

Notwithstanding, this is a moot issue because, as previously
stated, Burke fails to allege adequate facts to state claims for
which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
4
A failure to render aid claim appears synonymous with a
deliberate indifference to serious medical needs claim. Thus,
this Court will address Count II as a deliberate indifference to
serious medical needs claim. Compare Olson v. Barrett, No. 6:13cv-1886-Orl-40KRS, 2015 WL 1277933 (M.D. Fla. Mar. 20, 2015),
with Adams v. Custer, No. 14-CV-80403-CIV-HURLEY, 2016 WL 155081
(S.D. Fla. Jan. 12, 2016); see also Melton v. Abston, 841 F.3d
1207 (11th Cir. 2016).

9

which shocks the conscience. Burke also argues that Officers
Baldwin

and

because

they

authority

Martos

are

were

not

and

their

not

entitled

acting

conduct

to

within
violated

qualified
their

immunity

discretionary

clearly

established

constitutional law. Peculiarly, Burke cites White v. Rochford,
592 F.2d 381 (7th Cir. 1979), and Matheny v. Boatright, 970 F.
Supp.

1039

(S.D.

Ga.

1997),

for

the

proposition

that

the

officers conduct, leaving Burke on a dark, rural road, violated
clearly

established

constitutional

law

at

the

time

of

the

incident. The United States Court of Appeals for the Eleventh
Circuit, however, has traditionally held that only cases from
three courts, the Supreme Court, the Eleventh Circuit, and the
Florida

Supreme

Court,

can

clearly

establish

law

in

this

jurisdiction. See Loftus v. Clark-Moore, 690 F.3d 1200, 1204
(11th Cir. 2012).
In their Reply, Officers Baldwin and Martos state that they
acted within their discretionary authority when they took Burke
into custody, transported, and released him. Additionally, they
assert

that

officers’

Burke

fails

entitlement

to

to

identify
qualified

facts

that

immunity.

abrogate

the

Specifically,

Officers Baldwin and Martos aver that Burke fails to cite any
pertinent Supreme Court, Eleventh Circuit, or Florida Supreme
Court case for the proposition that the right they allegedly
violated was clearly established.
10

Before proceeding further, the Court notes that the Parties
failed to specifically identify and fully brief key issues in
this matter, such as the elements required to plead a deliberate
indifference

claim

and

whether

Burke

adequately

alleged

this

claim, which are more fully discussed below. Such briefing is
integral to assist the Court in achieving just resolutions. This
is especially true when a case presents facts as unique as the
facts currently before the Court. The Court now delves into the
issues surrounding Count II.
To prevail on a civil rights action under Section 1983, a
plaintiff must show that he or she was deprived of a federal
right by a person acting under color of state law. Griffin v.
City

of

Opa-Locka,

261

F.3d

1295,

1303

(11th

Cir.

2001).

A

person acts under color of state law when he or she acts with
the authority possessed by virtue of his employment with the
state.

Id.

It

is

firmly

established

that

a

defendant

in

a

Section 1983 suit acts under the color of law when he abuses the
position given to him or her by the state. Id.
The first inquiry in reviewing a plaintiff’s Section 1983
claim is to determine whether the plaintiff sufficiently alleged
a constitutional or statutory violation. Mann v. Taser Int’l,
Inc., 588 F.3d 1291, 1305 (11th Cir. 2009). Only if a plaintiff
adequately alleges such a violation must the court examine the
alleged basis for liability on the part of the person acting
11

under color of state law. Id. Without a violation, there can be
no

violation

of

a

clearly

established

right.

Id.

In

his

Complaint, Burke pleads a Fourteenth Amendment substantive due
process violation under a failure to render aid theory.
“Claims involving the mistreatment of arrestees or pretrial
detainees in custody are governed by the Fourteenth Amendment’s
Due Process Clause instead of the Eighth Amendment’s Cruel and
Unusual

Punishment

Clause,

which

applies

to

such

claims

by

convicted prisoners.” Cottrell v. Caldwell, 85 F.3d 1480, 1490
(11th Cir. 1996). The applicable standard, however, is the same,
so decisional law involving prison inmates applies equally to
cases involving arrestees or pretrial detainees. Id.
Considering the unique facts of this case, this Court deems
an in-depth discussion of County of Sacramento v. Lewis, 523
U.S.

833

(1998)

necessary

to

fully

explain

the

analytical

framework required to resolve Count II. Lewis is a seminal case
in Section 1983 jurisprudence and reaffirmed the “shocks the
conscience” standard applicable in this case.
The Supreme Court has emphasized time and again that the
touchstone

of

due

process

is

protection

of

the

individual

against arbitrary action of government. County of Sacramento v.
Lewis, 523 U.S. 833, 845 (1998). This is true if the fault lies
in

a

denial

of

fundamental

procedural

fairness

or

in

the

exercise of power without any reasonable justification in the
12

service of a legitimate government objective. Id. at 845-46.
Cases dealing with abusive executive action repeatedly emphasize
that only the most egregious official conduct is arbitrary in
the constitutional sense. Id. at 846. The Due Process Clause was
intended

to

prevent

government

officials

from

abusing

their

power or employing it as an instrument of oppression. Id.
To this end, for more than a half century now, the Supreme
Court has spoken of the cognizable level of executive abuse of
power as that which shocks the conscience. Id. “The substantive
component of the Due Process Clause is violated by executive
action only when it can properly be characterized as arbitrary,
or conscience shocking, in a constitutional sense.” Id. at 847.
(internal quotation marks omitted). While the measure of what is
conscience shocking is no calibrated yard stick, it does point
the way. Id.
It

is

conscience

unsurprising
shocking

that

the

duplicates

no

constitutional
traditional

concept

of

category

of

common-law fault, but rather points clearly away from liability,
or clearly toward it, only at the ends of tort law’s culpability
spectrum. Id. at 848. The Supreme Court has made it clear that
the

due

process

guarantee

does

not

entail

a

body

of

constitutional law imposing liability whenever someone cloaked
with state authority causes harm. Id. The Fourteenth Amendment
is not a font of tort law to be superimposed upon whatever
13

systems

may

already

be

administered

by

the

States.

Id.

The

Constitution does not guarantee due care on the part of state
officials; instead, liability for negligently inflicted harm is
categorically

beneath

the

threshold

of

constitutional

due

process. See id. at 849. “It is, on the contrary, behavior at
the

other

probably

end

of

support

the
a

culpability

substantive

spectrum

due

that

process

would

claim;

most

conduct

intended to injure in some way unjustifiable by any government
interest is the sort of official action most likely to rise to
the conscience-shocking level.” Id.
“Whether the point of the conscience shocking is reached
when injuries are produced with culpability falling within the
middle range, following from something more than negligence but
less than intentional conduct, such as recklessness or gross
negligence, is a matter for closer calls.” Id. To be sure, the
Supreme Court has expressly recognized the possibility that some
official

acts

Fourteenth

in

this

Amendment

and,

range

may

further,

be
some

actionable
cases

have

under

the

compelled

recognition that such conduct is egregious enough to state a
substantive due process claim. Id. Because it may suffice for
Eighth

Amendment

deliberately

liability

indifferent

to

that
the

prison
medical

officials
needs

of

were
their

prisoners, it follows that such deliberately indifferent conduct
must also be enough to satisfy the fault requirement for due
14

process claims based on the medical needs of someone in custody.
See id. at 850.
“Rules

of

due

process

are

not,

however,

subject

to

mechanical application in unfamiliar territory.” Id. Deliberate
indifference

that

shocks

in

one

environment

may

not

be

so

patently egregious in another, and our concern with preserving
the

constitutional

proportions

of

substantive

due

process

demands an exact analysis of circumstances before any abuse of
power
term,

is

condemned

‘deliberate

as

conscience

shocking.

Id.

implies,

the

indifference’

“As

the

very

standard

is

sensibly employed only when actual deliberation is practical.”
Id. at 851. In the custodial situation, forethought about an incustody individual’s welfare is not only feasible but obligatory
under

a

regime

that

incapacitates

that

person’s

ability

to

exercise ordinary responsibility for his own welfare. See id. at
851

(stating

that

in

the

custodial

situation

of

a

prison,

forethought about an inmate’s welfare is not only feasible but
obligatory

under

a

regime

that

incapacitates

a

prisoner

to

exercise ordinary responsibility for his own welfare).
“When the State takes a person into custody and holds him
there

against

his

will,

the

Constitution

imposes

upon

it

a

corresponding duty to assume some responsibility for his safety
and general well-being.” Id. The rationale for this principle is
simple. Id. When the State, by the affirmative exercise of its
15

power, restrains an individual’s liberty to the extent that it
renders him or her unable to care for him or herself, and at the
same time fails to provide for his basic human needs, including
reasonable

safety,

it

transgresses

the

substantive

limits

on

state action set by the Fourteenth Amendment Due Process Clause.
Id. Nor does any substantial countervailing interest excuse the
State from making provisions for the decent care and protection
of those it locks up. Id. Rather, the State’s responsibility to
attend

to

ordinarily

the

medical

clash

needs

with

of

other

people
equally

in

custody

important

does

not

government

responsibilities. Id. at 852.
The police, on occasion, encounter situations calling for
fast action and have obligations that tend to tug against each
other. Id. at 853. Their duty is to restore and maintain lawful
order, while not exacerbating disorder more than necessary to
properly do their jobs. Id. They are supposed to act decisively
and to show restraint at the same moment, and their decisions
have to be made in haste, under pressure, and frequently without
the luxury of a second chance. Id. (quotation marks omitted).
Indeed, when extended opportunities to do better are teamed with
protracted failure even to care, indifference is truly shocking.
Id.

But

when

unforeseen

circumstances

demand

an

officer’s

instant judgment, even precipitate recklessness fails to inch
close

enough

to

harmful

purpose
16

to

spark

the

shock

that

implicates the large concerns of the governors and the governed.
Id.
Here, the alleged violation apparently occurred at the time
Officers

Baldwin

Therefore,

the

and

Martos

Court

released

briefly

reviews

Burke
the

from

Eleventh

custody.
Circuit’s

deliberate indifference case law in the custodial versus noncustodial

context

because

the

applicable

law

depends

upon

whether a custodial relationship existed between the Defendants
and Burke.
State

and

local

government

officials

violate

the

substantive due process rights of individuals not in custody
only when those officials cause harm by engaging in conduct that
is arbitrary, or conscience shocking, in a constitutional sense.
White

v.

Lemacks,

(quotation

marks

interpreted

and

183

F.3d

omitted).
applied.

1253,

That

Id.

1259

standard

In

2002,

(11th
is

the

Cir.

to

be

1999)

narrowly

Eleventh

Circuit

explicitly stated that deliberate indifference is insufficient
to

constitute

a

due-process

violation

in

a

non-custodial

setting. Nix v. Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1377
(11th Cir. 2002). Said differently, “generally, individuals not
in

state

custody

conditions.

.

.”

will
Id.

have
at

no

1378.

due-process
A

year

claim

later,

in

for

unsafe

2003,

the

Eleventh Circuit then stated that a “substantive due process
violation

would,

at

the

very
17

least,

require

a

showing

of

deliberate indifference to an extremely great risk of serious
injury to someone in [p]laintiff’s position.” Waddell v. Hendry
Cnty. Sheriff’s Office, 329 F.3d 1300, 1306 (11th Cir. 2003). 5
Given the Eleventh Circuit’s seemingly differing case law
regarding

custody

versus

non-custody,

paired

with

the

unique

facts of this case, the Court analyzes both scenarios. Against
this

backdrop,

the

Court

will

now

determine

whether

Burke

sufficiently alleged a Section 1983 violation.
1.
To

Deliberate Indifference – Custodial

state

a

custodial

deliberate

indifference

to

serious

medical needs claim under the Fourteenth Amendment, a plaintiff
must allege the following: (1) a serious medical need; (2) the
defendant’s

deliberate

indifference

to

that

need;

and

(3)

causation between that indifference and the plaintiff’s injury.
Mann, 588 F.3d at 1306-07. A serious medical need is one that
has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize
the necessity for the doctor’s attention. Id. at 1307. In the
alternative, a serious medical need is determined by whether a
delay in treating the need worsens the condition. Id. In either

5

The Eleventh Circuit went on to state that “[w]e stress the
phrase ‘at the very least.’ We do not rule out today that the
correct legal threshold for substantive due process liability in
a cause like this one is actually far higher.” Waddell, 329 F.3d
at 1306 n.5.
18

case, the medical need must be one that, if left unattended,
poses a substantial risk of serious harm. Id.
Burke fails to allege a deliberate indifference to serious
medical needs claim when in custody. Specifically, he cannot
even satisfy the first prong, a serious medical need. In his
Complaint, Burke claims that he “suffers from Coats’ disease, is
legally blind in the left eye, and only able to see shapes and
greater detail if inches from what he is trying to see.” He
submits that “[h]e can only see light and make out shapes with
his right eye and the eyebrow and forehead area above the right
eye is swollen and protrudes over his right eye.” Burke avers
that “the disease has affected him physically to the point where
one of his eyes is basically shut,” and that “[t]here is no way
of looking at [his] face and his affect without being alerted to
the fact that he has a physical disability.” Absent from Burke’s
Complaint, however, are any allegations that he had a serious
medical need as defined above that, if left unattended, posed a
substantial risk of serious harm. Thus, Burke fails to allege a
deliberate indifference to serious medical needs claim when in
custody.
2.
To
custody,

state
a

Deliberate Indifference – Non-custodial
a

deliberate

plaintiff

must

indifference
at

19

least

claim

when

allege

not

in

deliberate

indifference to an extremely great risk of serious injury to
someone in the plaintiff’s position. Waddell, 329 F.3d at 1306.
“To act with deliberate indifference, a state actor must know of
and disregard an excessive – that is, an extremely great – risk
to the victim’s health or safety.” Id.
Similarly, Burke fails to allege a deliberate indifference
to an extremely great risk of serious injury claim when he was
released from custody. Specifically, he has alleged that the
officers had time to deliberate before they left him in a rural,
secluded area, but he has not alleged any facts that demonstrate
he was subjected to an “extremely great risk of serious injury.”
See Waddell, 329 F.3d at 1306. Burke claims in his Complaint
that “[a]fter riding him around for a period of time, during
which he was handcuffed, the officers decided to release [him]
with a [promise to appear].” Then “[t]hey directed him to get
out of the car and to walk to the rear of the car.” “[W]hen it
became clear that the officers intended to leave [Burke] out in
the dark, rural, light-less area, [he] asked the officers to
drive him back to his neighborhood.” He also informed Officers
Baldwin and Martos that he could not be dropped off at a bus
stop

or

“[t]he

busy

street

officers

because

refused.”

of

his

“Instead,

condition.

they

drove

Nonetheless,
onto

a

dark,

secluded, rural street without any lighting and dropped [Burke]

20

off on the edge of some darkened farmland tract miles from his
house.” “It was pitch black dark.”
“For the better part of an hour[,] [he] threaded his way
along the side of the road, following the edge of asphalt or the
white stripe to maintain direction, as he sought to find his way
home, a blind man, unfamiliar with his location.” “As he walked,
he was in constant danger of being hit by vehicles or attacked
by

criminals.”

“Eventually,

[however],

he

came

upon

a

good

Samaritan who assisted him in returning to his home.”
Burke fails to allege that Officers Baldwin and Martos knew
of and disregarded an excessive, that is, an extremely great,
risk to his health or safety. In his Complaint, Burke states
that “he was in constant danger of being hit by vehicles or
attacked by criminals;” however, there are no allegations that
Officers Baldwin and Martos knew of and disregarded this danger.
Also lacking from Burke’s allegations are facts that demonstrate
he was subjected to an extremely great risk of physical injury.
He specifically states that he was dropped off on a dark, rural,
lightless, and secluded street without any lighting on the edge
of some darkened farmland tract miles from his house. Indeed,
the fact that the street was in a rural and secluded area is
important. While dropping Burke off in a rural and secluded area
undoubtedly created some level of risk to his health or safety
considering his Coats’ disease and blindness, it did not create
21

an

extremely

great

conduct

did

injury,

then

conscience.

of

serious

create

an

extremely

not

risk

the
Thus,

Court
Burke

cannot
fails

injury.

If

great

the

risk

find

that

to

allege

it

officers’

of

serious

shocks

a

the

deliberate

indifference to an extremely great risk of serious injury claim
when the officers released him from custody.
The Court concludes that, based on the specific facts of
this

case,

Burke

cannot

allege

a

constitutional

violation

actionable under Section 1983. See id.; Nix, 311 F.3d at 1377
(stating that deliberate indifference to a plaintiff’s safety
may constitute a tort under state law, even though it does not
rise to the level of a substantive due process violation under
the federal Constitution); Lewis, 523 U.S. at 848-49. The Court
is limited to reviewing the claims alleged in the four corners
of the Complaint; that is, deliberate indifference to serious
medical needs. To the extent that Burke alleges an “unjustified
intrusion of bodily integrity” claim as titled in his Response,
this fleeting claim was not alleged in his Complaint and also
fails

because

the

officers’

conduct

did

not

shock

the

conscience.
3.
Assuming,

Qualified Immunity
arguendo,

that

Burke

properly

stated

a

non-

custodial deliberate indifference to an extremely great risk of

22

serious

injury

claim,

Burke’s

claim

still

fails

as

Officers

Baldwin and Martos are entitled to qualified immunity because
they did not violate a clearly established right of Burke’s.
In

cases

where

defendants

are

entitled

to

qualified

immunity, it is imperative that they receive the benefits of
that

defense

prior

to

trial

through

Federal

Rules

of

Civil

Procedure 12(b)(6), 12(c), or 56(c). Cottrell, 85 F.3d at 1487.
That imperative results from the nature of the entitlement to
qualified immunity. Id. “The entitlement is an immunity from
suit

rather

absolute

than

a

immunity,

erroneously

mere
it

permitted

defense

is
to

to

liability;

effectively

go

to

trial.”

lost

and

like

an

a

case

is

if

Id.

(quotation

marks

omitted). The defense is meant to give government officials a
right, not merely to avoid standing trial, but also to avoid the
burdens of such pretrial matters as discovery. Id.
Qualified immunity protects government officials performing
discretionary
their

functions

individual

from

liability

capacities

unless

for

civil

their

damages

conduct

in

violates

clearly established statutory or constitutional rights of which
a reasonable person would have known. Melton, 841 F.3d at 1220.
This immunity balances the need for official accountability with
the need to permit officials to engage in their discretionary
duties

without

litigation.

Id.

fear
But

of

personal

qualified

liability

immunity

23

does

or
not

harassing
protect

an

official if he knew or reasonably should have known that the
action

he

took

within

his

sphere

of

official

responsibility

would violate the constitutional rights of the plaintiff. Id. at
1220-21.
For government officials to enjoy qualified immunity, they
must first establish that they were acting within the scope of
their

discretionary

occurred.

Id.

at

authority

1221.

A

when

the

government

alleged

official

wrongful
proves

acts

that

he

acted within his discretionary authority by showing objective
circumstances which could compel the conclusion that his action
were undertaken pursuant to the performance of his duties and
within the scope of his authority. Courson, 939 F.2d at 1487.
Discretionary

authority

includes

the

job-related

powers

and

responsibilities that the public official has in the general
fulfillment of his official duties. See O’Rourke v. Hayes, 378
F.3d 1201, 1205 (11th Cir. 2004) (“[I]n determining whether a
police offer may assert qualified immunity . . . we do not ask
whether he has the right to engage in unconstitutional searches
and seizures, but whether engaging in searches and seizures in
general

is

a

part

responsibilities.”);

see

of

his

job-related

also

Holloman

v.

powers

Harland,

370

and
F.3d

1252, 1266 (11th Cir. 2004) (“One might reasonably believe that
violating someone’s constitutional rights is never a legitimate
job-related

function

or

within
24

the

scope

of

a

government

official’s

authority

or

power.

As

we

explained

in

[a

prior

Eleventh Circuit opinion], however, ‘the inquiry is not whether
it was within the defendant’s authority to commit the allegedly
illegal act. Framed that way, the inquiry is no more than an
untenable tautology.’ [Instead], we look to the general nature
of the defendant’s action, temporarily putting aside the fact
that it may have been committed for an unconstitutional purpose,
in an unconstitutional manner, to an unconstitutional extent, or
under constitutionally inappropriate circumstances.”).
Here, Officers Baldwin and Martos were acting within their
discretionary
taking

him

authority.
into

Indeed,

custody,

the

officers

transporting

him

seizing
as

a

Burke,

suspected

criminal, and then releasing him with a promise to appear are
part

of

their

job-related

powers

and

responsibilities.

Temporarily putting aside the fact that the officers’ actions
may have been unconstitutionally committed, their actions were
within
Kaisner

their
v.

discretionary

Kolb,

543

So.

authority.
2d

732

Burke’s

(Fla.

1989)

reliance
is

on

misplaced

because, in Kaisner, the immunity at issue was not the qualified
immunity defense available to government actors sued in their
individual

capacities.

Rather,

Kaisner

addressed

whether

the

employee’s acts were of a discretionary nature so as to provide
the municipal police department with sovereign immunity for the
employee’s actions.
25

Once it has been determined that an official acted within
their

discretionary

authority,

the

burden

shifts

to

the

plaintiff to establish that qualified immunity is inappropriate.
Melton, 841 F.3d at 1221. First, the plaintiff must show that
the

official’s

alleged

conduct

violated

a

constitutionally

protected right. Id. Second, the plaintiff must demonstrate that
the right was clearly established at the time of the misconduct.
Id. A plaintiff must satisfy both of the analysis’ prongs to
overcome

a

defense

of

qualified

immunity.

Id.

Indeed,

the

determination of these elements may be conducted in any order.
Id.
Regarding

this

qualified

immunity

analysis,

the

Court

assumes, arguendo, that Burke adequately alleges a non-custodial
deliberate indifference to an extremely great risk of serious
injury claim under the Fourteenth Amendment. This would satisfy
the

first

prong.

Now

the

inquiry

turns

to

whether

that

constitutionally protected right was clearly established at the
time of the misconduct.
A right is clearly established if a reasonable official
would understand that his conduct violates that right. Melton,
841 F.3d at 1221. The touchstone of the “‘clearly established’”
inquiry is whether the official had “‘fair warning’” and notice
that his conduct violated the constitutional right in question.
Id.

For

the

law

to

be

clearly
26

established,

case

law

must

ordinarily have been earlier developed in such a concrete and
factually defined context to make it obvious to all reasonable
government actors, in the defendant’s place, that what he is
doing violates a federal law. Id. The Court looks to the binding
precedent set forth in the decisions of the Supreme Court, the
Eleventh Circuit, or the highest court of the state, the Florida
Supreme

Court

established.

here,
Id.

to

decide

Typically,

whether

exact

a

factual

right

is

identity

clearly
with

a

previously decided case is not required, but the unlawfulness of
the conduct must be apparent from pre-existing law. Id.
A

narrow

exception

to

the

rule

requiring

particularized

case law exists. Id. This exception applies in situations where
the official’s conduct so obviously violates the constitution
that prior case law is unnecessary. Id. A broad statement of
legal principle announced in case law may be sufficient if it
established
objectively

with

obvious

reasonable

clarity

to

government

the

point

official

that

every

facing

the

circumstances would know that the official’s conduct violated
federal law when the official acted. Id. We likewise recognize
the obvious-clarity exception where conduct is so bad that case
law

is

unnecessary

to

establish

that

the

conduct

cannot

be

lawful. Id.
A review of Supreme Court, Eleventh Circuit, and Florida
Supreme Court case law reveals that there is no case similar to
27

this case to abrogate the officers’ entitlement to qualified
immunity.

Indeed,

Burke

fails

to

cite

to

any

Supreme

Court,

Eleventh Circuit, or Florida Supreme Court cases to support his
assertion that Officers Baldwin and Martos are not entitled to
qualified immunity. Rather, he cites to a Seventh Circuit case
and a Southern District of Georgia case. The Seventh Circuit and
our

sister

district,

however,

cannot

clearly

establish

a

constitutionally protected right under binding Eleventh Circuit
precedent. See Melton, 841 F.3d at 1221. Nonetheless, deliberate
indifference to a plaintiff’s safety may constitute a tort under
state

law,

even

substantive

though

due

it

does

process

not

rise

violation

to

the

under

level

the

of

a

federal

Constitution. See Nix, 311 F.3d at 1376-77. The obvious-clarity
exception is also inapplicable here. Thus, Officers Baldwin and
Martos are entitled to qualified immunity because no pertinent
Supreme Court, Eleventh Circuit, or Florida Supreme Court case
law clearly establishes the right Officers Baldwin and Martos
allegedly violated.
B.
In

Count V – ADA Claim
their

Motion

to

Dismiss,

the

County

argues

that

the

Complaint must be dismissed “because Plaintiff alleges no facts
to

suggest

that

he

was

denied

any

services,

programs,

or

activities, or otherwise discriminated against because of his

28

disability.”

Specifically,

the

County

makes

two

arguments.

First, it submits that there are “no cases equating a ‘competent
police force’ with a public service, program, or activity under
the ADA.” Second, the County avers that Burke’s “claim fails . .
. [because] there is nothing alleged to suggest that the County
deprived [Burke] of a benefit it would have bestowed on someone
else because of his blindness.” The County asserts that “the
lack

of

any

facts

supporting

a

causal

connection

between

a

deprivation of [Burke’s] right to a service or program offered
by the County and his disability dooms his ADA claim from the
start.” 6
In his Response, Burke asserts that he adequately alleged
facts to support his ADA claim. Burke specifically states that
he is entitled to a competent police force and there is a causal
6

Due to Burke’s erroneous conflation of the elements for a Title
II Americans with Disabilities Act (“ADA”) claim and the
elements for a Section 1983 municipal liability claim under
theories of “failure to train” and “failure to adopt policies
and practices,” the County also briefed municipal liability in
its Motion to Dismiss. In his Response, Burke clarified that
“[t]he only claim against the County is . . . Count IV . . . and
the ADA claim, Count V, which is not a ‘constitutional claim.’”
In footnote five of its Reply, the County stated that, “[i]n
writing the Motion to Dismiss, the County struggled to
understand the kind of claim [Burke] was alleging, and
admittedly guessed that the claim was a” municipal liability
claim. The Court understands the County’s confusion. Untangling
Burke’s jumbled ADA claim was unnecessarily onerous. As
previously stated, the Parties shall take care to clearly state
their positions going forward. Upon reviewing Burke’s Complaint,
the Court declines to consider any municipal liability claim
regarding Count V pursuant to Burke’s Response. Accordingly, the
Court will limit its Count V discussion to Burke’s ADA claim.
29

connection between the officers’ conduct and his blindness. In
its Reply, the County claims “that there is nothing within or
about

Title

II

or

cases

interpreting

its

scope

that

would

suggest it governs the treatment of disabled arrestees after
they

are

submits

released

that

from

Burke’s

[police]

allegations

custody.”
are

The

conclusory

County
and

also

provide

facts to support that he was discriminated against “because of
his disability.”
To state a claim under Title II of the ADA, a plaintiff
must allege the following: (1) that he or she is a qualified
individual with a disability; (2) that he or she was excluded
from participation in or denied the benefits of the services,
programs,

or

activities

of

a

public

entity

or

otherwise

discriminated against by such entity; and (3) said disability
was

the

reason

for

the

exclusion,

denial

of

a

benefit,

or

discrimination. See 42 U.S.C. § 12131; Shotz v. Cates, 256 F.3d
1077, 1079 (11th Cir. 2001); Bircoll v. Miami-Dade County, 480
F.3d 1072, 1083 (11th Cir. 2007).
Here, neither party appears to dispute that Burke satisfies
the first prong of a Title II ADA claim. Under Bircoll, MiamiDade County is clearly a public entity under the second prong of
a Title II claim and the Miami-Dade Police Department is an
extension of Miami-Dade County. Bircoll, 480 F.3d at 1083. The
crux of this issue, however, is whether Burke was excluded from
30

participation

in

programs,

activities

or

or

denied

the

of

benefits

Miami-Dade

of

County

the

services,

or

otherwise

discriminated against by it because of his blindness. See id.
Burke fails to allege facts in his Complaint stating that
Officers Baldwin and Martos dropped him off away from his home
because of his disability. Specifically, Burke fails to allege
that he was denied the enjoyment of a service or benefit that an
otherwise non-blind person would have enjoyed. That is, Burke
does not assert facts that imply that a non-blind person would
have

been

driven

back

to

his

or

her

home.

This

case

is

fundamentally different from cases where a disabled plaintiff,
for

example,

cannot

access

a

county

building

where

someone

without that disability can. See generally Shotz, 256 F.3d 107881 (stating that plaintiffs properly alleged an ADA Title II
claim

because

a

courthouses’

wheelchair

ramps

and

bathrooms

impeded their ability to attend trials at the courthouse unlike
people

without

their

disabilities).

Indeed,

the

only

non-

conclusory reason Burke alleges is that Officers Baldwin and
Martos dropped him off away from his home as retaliation against
his stepfather. Such a fact, however, is insufficient to allege
a claim under Title II of the ADA.

31

IV.

CONCLUSION
In conclusion, Burke fails to allege a custodial deliberate

indifference to serious medical needs claim and a non-custodial
deliberate

indifference

claim.

Assuming,

arguendo,

that

Burke

properly stated a non-custodial deliberate indifference to an
extremely

great

risk

of

serious

injury

claim,

Burke’s

claim

still fails because Officers Baldwin and Martos are entitled to
qualified immunity. Lastly, Burke fails to allege a claim under
Title II of the ADA. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendants’ Motion to Dismiss
[D.E. 10] is GRANTED. Counts II and V of the Complaint [D.E. 1]
are DISMISSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 18th
day of September, 2017.
s/ Donald L. Graham
DONALD L. GRAHAM
UNITED STATES DISTRICT JUDGE
cc:

United States Magistrate Judge McAliley
All Counsel of Record

32