Soto v. City of North Miami, Florida et al

Filing 36

ORDER granting 27 Motion to Dismiss for Failure to State a Claim; granting 14 Motion to Dismiss; granting in part and denying in part 15 Motion to Dismiss. Amended Complaint due October 26, 2017. Signed by Judge Robert N. Scola, Jr. on 10/16/2017. (jle)

United States District Court
for the
Southern District of Florida
Gladys Soto, individually and as
guardian and mother of Arnaldo
Rios-Soto, Plaintiff,
v.
City of North Miami, and others,
Defendants.

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Civil Action No. 17-22090-Civ-Scola
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Omnibus Order on the Defendants’ Motions to Dismiss
Plaintiff Gladys Soto brings this action on behalf of herself and her son,
Arnaldo Rios-Soto, against the City of North Miami (the “City”), Detective
Michael Gaudio, and Officers Jonathan Aledda, Kevin Warren, Angel
Requejado, and Kevin Crespo for violations of Rios-Soto’s civil rights and the
commission of various intentional torts. All of the Defendants have moved to
dismiss the Complaint (ECF Nos. 14, 15, 27.) For the reasons set forth below,
the Court grants the City’s motion to dismiss (ECF No. 14); grants Defendant
Aledda’s motion to dismiss (ECF No. 27); and grants in part and denies in
part Defendants Warren, Requejado, Crespo, and Gaudio’s motion to dismiss
(ECF No. 15).
1.

Background
This case concerns an interaction between North Miami police officers
and Gladys Soto’s son, Arnaldo Rios-Soto, that had tragic consequences. RiosSoto is twenty-seven years old and has Autism Spectrum Disorder, an
intellectual disability, and limited speech ability. (Compl. ¶¶ 4, 21, ECF No. 1.)
He can only say select words and tends to repeat phrases used by those
around him, as well as in movies and television shows. (Id. ¶ 21.) Rios-Soto
undergoes “continuous residential behavioral therapy to control aggressive
behaviors and to assist with everyday life experiences.” (Id. ¶ 21.) After residing
in several behavioral-focused group homes from 2014 to 2016, Rios-Soto
moved to the Miami Achievement Center for the Developmentally Disabled
Panther group home (“MACtown”) in North Miami in June of 2016. (Id. ¶¶ 4,
22-24.) The Complaint alleges that MACtown is the only group home in South
Florida that offers treatment for intensive behavioral challenges, and was
geographically desirable because it allowed Rios-Soto to live close to his mother

and sister. (Id. ¶ 23.) At MACtown, Rios-Soto developed a good relationship
with his behavioral analyst, Charles Kinsey. (Id. ¶ 25.)
On July 18, 2016, Kinsey was providing one-on-one care for Rios-Soto.
(Id. ¶ 26.) After Kinsey gave Rios-Soto his medication around 4:00 p.m., RiosSoto began to yell and move about the group home. (Id.) Rios-Soto then fled
MACtown carrying a toy truck. (Id.) Kinsey followed Rios-Soto, but was not
alarmed because Rios-Soto had left the group home before.1 (Id. ¶ 27.) RiosSoto eventually sat on the ground in the middle of the street at the intersection
of NE 127th Street and NE 14th Avenue in North Miami. (Id. ¶ 29.) Kinsey
unsuccessfully tried to convince Rios-Soto to stand up and return to the group
home. (Id. ¶ 29.)
Around 5:00 p.m., a bystander called 9-1-1 and allegedly told the
operator that she “thought that there was a Spanish man who possessed what
appeared to be a gun and he appeared suicidal.” (Id. ¶ 30.) She then told the
operator that “she thought ‘the Spanish guy is a mentally ill person,’” and
stated that she was not sure if he was holding a gun. (Id.) The Miami-Dade
Police Dispatcher sent out a call that there was a suicidal person holding a gun
to his head in the middle of the street. (Id. ¶ 31.) Several police vehicles
responded with their lights and sirens activated. (Id.)
At 5:02 p.m., Officers Crespo and Bernadeau arrived at the scene armed
with assault rifles. (Id. ¶ 32.) They directed Kinsey to get on the ground, and
Kinsey complied. (Id. ¶ 33.) Kinsey began pleading with Rios-Soto to cooperate,
but Rios-Soto did not understand what was happening and was smiling. (Id. ¶
34.) Throughout the incident, Kinsey intermittently attempted to shout
information to Officers Bernadeau and Crespo, as well as Rios-Soto. (Id. ¶ 35.)
Kinsey told the officers repeatedly that Rios-Soto was holding a toy truck, not a
gun. (Id. ¶¶ 35, 37.)
The Complaint alleges that Commander Emile Hollant was positioned too
far away to determine whether the object in Rios-Soto’s hands was a gun, but
nevertheless, at 5:05 p.m. he announced over the radio that it looked like RiosSoto was holding a gun. (Id. ¶ 36.) Officers Warren and Aledda were also
allegedly too far away to see what Rios-Soto was holding, but Officer Warren
noted that Rios-Soto was playing with something. (Id. ¶¶ 38-39, 45.) At some
point, Officer Aledda asked Officer Warren whether he thought the object was a
gun, and Officer Warren stated that he was not sure. (Id. ¶ 46.)
At 5:06 p.m., Officer Bernadeau announced over the radio that Kinsey
was saying that the object was a toy car, and told the officers that they should
use caution. (Id. ¶¶ 36, 40.) Officer Bernadeau was then able to visually
confirm that the object was not a gun, and announced over the radio that the
1

MACtown is not permitted to lock down its residents. (Id. ¶ 27.)

object did not appear to be a firearm. (Id. ¶ 41.) The Complaint alleges that
Officer Crespo heard Officer Bernadeau’s transmission. (Id.) Officer Crespo also
observed that Rios-Soto was playing with the object and that “‘[h]is behavior
seemed a little unusual . . . as if he had some sort of mental disability.’” (Id. ¶
43.)
Eighty-five seconds after Officer Bernadeau told the officers to use
caution, and thirty seconds after he announced his visual confirmation that
the object was not a gun, Officer Aledda shot three rounds at Rios-Soto. (Id. ¶
47.) Officer Aledda missed Rios-Soto, but one of the bullets hit Kinsey, whose
blood splattered onto Rios-Soto. (Id. ¶ 49.) Kinsey screamed, and Rios-Soto
began making “animalistic” noises. (Id.) Officer Aledda then allegedly
announced over the radio that Rios-Soto was holding a toy gun, that no one
was injured, and that Rios-Soto required psychiatric institutionalization under
the Florida Mental Health Act (the “Baker Act”). (Id. ¶ 50.)
After the shooting, Rios-Soto and Kinsey were placed in handcuffs, and
Officers Crespo and Bernadeau kept them at gunpoint. (Id. ¶¶ 51-52, 56.) An
Emergency Medical Technician eventually requested that Kinsey’s handcuffs be
removed, and Rios-Soto was placed in Officer Warren’s patrol car, still
handcuffed. (Id. ¶¶ 56-57.) Rios-Soto could not perform self-soothing behaviors
with his hands restrained, and a bystander could hear Rios-Soto making
“animalistic” and screeching sounds while in the car. (Id. ¶¶ 55, 57.) At some
point, Detective Gaudio arrived on the scene and was advised that Rios-Soto
may have “mental issues.” (Id. ¶ 58.)
Around 5:30 p.m., Clint Bower, the President and Chief Executive Officer
of MACtown, arrived at the scene, but was not permitted to see anyone for at
least thirty minutes. (Id. ¶ 61.) Around 6:00 p.m., Rios-Soto was transferred to
Officer Requejado’s car at the direction of Detective Gaudio. (Id. ¶ 60.) Officer
Requejado attempted to question Rios-Soto, which led him to believe that RiosSoto had a low mental capacity. (Id.) Detective Gaudio eventually met with
Bower and advised him that Rios-Soto was in protective custody because “he
was acting ‘kinda loopy.’” (Id. ¶ 62.) Bower advised Detective Gaudio that RiosSoto was autistic, had an IQ of 40, and might be aggressive. (Id. ¶ 63.) Bower
also advised Gaudio that Rios-Soto was a resident of MACtown and that he had
a guardian. (Id. ¶¶ 63, 66.)
Detective Gaudio then took Rios-Soto to the North Miami Police Station
to try to obtain a statement. (Id. ¶ 67.) Detective Gaudio advised Bower that he
could pick up Rios-Soto at 8:30 p.m. (Id. ¶ 68.) He did not obtain consent from
either Bower or Rios-Soto’s mother, Gladys Soto. (Id. ¶ 67.) Detective Gaudio
and Officer Requejado interrogated Rios-Soto at the police station, during
which time Rios-Soto remained handcuffed. (Id. ¶¶ 72-73.) When Bower arrived

at the station, he was told to wait and was not informed that Rios-Soto was
being interrogated. (Id.) During the interrogation, it was clear that Rios-Soto
could not respond to questions other than by answering in the affirmative or
echoing the question that had been asked of him. (Id. ¶ 75.)
Sometime after 8:30 p.m., Rios-Soto was returned to MACtown. (Id. ¶
80.) That night, Rios-Soto began to attack the MACtown staff and residents. (Id.
¶ 81.) He later escaped from the group home and returned to the scene of the
shooting, beating the ground and shouting “police shoot” repeatedly. (Id.) RiosSoto’s behavior could not be controlled, and he was subsequently
institutionalized in Aventura Hospital Psychiatric Ward. (Id. ¶ 82.) As a result
of the trauma he experienced, Rios-Soto’s condition regressed and his behavior
became more uncontrolled. (Id. ¶ 83.) Therefore, he needed to be placed in a
group home with a more intensive behavioral program. (Id.) Since there were no
appropriate group homes available in South Florida, Rios-Soto remained in the
Aventura Hospital for thirty-four days. (Id. ¶ 84.) During that time, Rios-Soto
repeatedly made gun sounds, appeared terrified of any person wearing a
uniform, and exhibited violent behavior, injuring several members of the staff.
(Id. ¶ 85.)
The only facility that could meet Rios-Soto’s needs was an
institutionalized placement in Central Florida. (Id. ¶ 86.) Gladys Soto moved to
Ocala, Florida in order to be near her son. (Id. ¶ 88.) Soto alleges that as a
result of the trauma of the shooting and arrest, Rios-Soto will continue to
suffer extreme emotional distress and will need the highest degree of intensive
behavioral services in order to become integrated into the community again.
(Id. ¶ 87.)
Soto filed this suit on June 7, 2017, asserting the following causes of
action against the individual officers: (1) battery; (2) assault; (3) false arrest and
imprisonment; (4) civil conspiracy to engage in false arrest and false
imprisonment; (5) intentional infliction of emotional distress; (6) negligent
infliction of emotional distress; and (7) two counts of 42 U.S.C. § 1983
violations. With respect to the City of North Miami, Soto has asserted a 42
U.S.C. § 1983 violation for the City’s failure to adequately train its officers, a
violation of the Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”), and
a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794
(“Rehabilitation Act”). Finally, Soto asserts claims under the Fair Housing Act,
42 U.S.C. § 3604 (“FHA”) and the Civil Rights Act of 1866, 42 U.S.C. § 1982,
against all Defendants, alleging that as a result of their discriminatory
treatment of Rios-Soto and Kinsey, the Defendants have made housing
unavailable to Rios-Soto and he was forced to relocate to Central Florida.

2.

Legal Standard
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement
of the claims” that “will give the defendant fair notice of what the plaintiff's
claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, 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 do. Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
“To survive a motion to dismiss, a 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 (2009) (quotations and citations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 1950. When considering a
motion to dismiss, the Court must accept all of the plaintiff's allegations as
true in determining whether a plaintiff has stated a claim for which relief could
be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of
Rule 12(b)(6), a court generally may not look beyond the pleadings, which
includes any information attached to a complaint. U.S. ex. Rel. Osheroff v.
Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).
3.

Analysis
Collectively, the Defendants have moved to dismiss each count of the
Complaint. The Court will first address the claims against the individual
Defendants, then the claims asserted against the City, and, finally, will address
the claims asserted against all Defendants.
A. Common Law Claims Against the Individual Defendants
Counts One through Six of the Complaint assert common law claims of
battery, assault, false arrest and imprisonment, civil conspiracy to engage in
false arrest and imprisonment, intentional infliction of emotional distress, and
negligent infliction of emotional distress against the individual Defendants.
Soto has conceded that the claim for civil conspiracy should be dismissed, but
argues that the other common law claims should not be dismissed. (Resp. at 915, ECF No. 20).

Pursuant to Florida Statute § 768.28(9)(a), an officer may not be held
personally liable “or named as a party defendant in any action for any injury or
damage suffered as a result of any act, event, or omission of action in the scope
of his or her employment or function, unless such officer . . . acted in bad faith
or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.” Absent a showing of bad faith,
the exclusive remedy for injuries or damages caused by an officer is a suit
against the governmental entity itself. Fla. Stat. § 768.28(9)(a).
For purposes of § 768.28(9)(a), “Florida courts equate bad faith with the
actual malice standard.” Guerrera v. Palm Beach Cty. Sheriff’s Office, 657 Fed.
Appx. 886, 892 (11th Cir. 2016) (citing Parker v. State of Fla. Bd. of Regents ex
rel. Fla. State Univ., 724 So.2d 163, 167 (Fla. 1st Dist. Ct. App. 1998)). In order
to establish actual malice, “there must be conduct much more reprehensible
and unacceptable than a mere intentional tort.” Duyser by Duyser v. School Bd.
of Broward Cty., 573 So.2d 130, 131 (Fla. 4th Dist. Ct. App. 1991) (per
curiam); see also Btesh v. City of Maitland, Fla., No. 6:10-cv-71-Orl-19DAB,
2011 WL 3269647, at *27 (M.D. Fla. July 29, 2011) (quoting Richardson v. City
of Pompano Beach, 511 So.2d 1121, 1123 (Fla. 4th Dist. Ct. App. 1987)). Thus,
an officer “can commit a wrongful, and even intentional, act and still lack bad
faith.” Dunn v. City of Boynton Beach, 192 F.Supp.3d 1310, 1325-26 (S.D. Fla.
2016) (Marra, J.) (citations omitted). Actual malice depends on subjective
intent. Id.
Soto has generally alleged that “the individual defendants acted in bad
faith, with malicious purpose, and in a manner exhibiting wanton and willful
disregard of Mr. Rios-Soto’s rights or safety.” (See, e.g., Compl. ¶ 95.) However,
this conclusory allegation is not sufficient, on its own, to establish that the
officers are not entitled to immunity. See P.C.B. P’ship v. City of Largo, 549
So.2d 738, 741 (Fla. 2d Dist. Ct. App. 1989) (affirming dismissal of counts
directed toward city commissioners because the allegations that the
commissioners acted maliciously were conclusory). Moreover, the factual
allegations concerning the actions of the individual officers do not support an
inference that any of them had a subjective intent to act with a malicious
purpose. See Richardson, 511 So.2d at 1124 (holding that allegations that a
police officer committed intentional torts during an arrest, including using
excessive force and false arrest, are insufficient on their own to establish bad
faith). Therefore, the individual Defendants are entitled to immunity with
respect to Counts One through Six.

B. 42 U.S.C. § 1983 Claims Against the Individual Defendants
Count Seven of the Complaint asserts a claim against the individual
Defendants under 42 U.S.C. § 1983 for unlawful arrest and imprisonment in
violation of the Fourth and Fourteenth Amendments, and Count Eight asserts
a § 1983 claim for violation of Rios-Soto’s right to be free from unreasonable
searches and seizures under the Fourth and Fourteenth Amendments. Any
person who deprives another “of any rights, privileges, or immunities secured
by the Constitution and laws,” while acting under color of state law, is liable to
the person whose rights were violated. 42 U.S.C. § 1983. This law “creates no
substantive rights; it merely provides remedies for deprivations of rights
established elsewhere.” City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985). To
state a claim under § 1983, a plaintiff must allege that: (1) the defendant
deprived him of a right secured by the United States Constitution or federal
law; and (2) such deprivation occurred under color of state law. U.S. Steel, LLC
v. Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001). In addition, a plaintiff
must allege and establish an affirmative causal connection between the
defendant’s conduct and the constitutional deprivation. See, e.g., Troupe v.
Sarasota Cty., 419 F.3d 1160, 1165 (11th Cir. 2005).
As an initial matter, the Court notes that although Defendant Aledda is
mentioned in the “Wherefore” clauses of Counts Seven and Eight, the
allegations included in those counts only allege that Defendants Warren,
Requejado, Crespo, and Gaudio violated Rios-Soto’s Constitutional rights.
(Compl. ¶¶ 133-134, 141-144.) Furthermore, the general factual allegations do
not allege that Defendant Aledda unlawfully imprisoned or arrested Rios-Soto
or unreasonably searched or seized him. Soto argues in response to Defendant
Aledda’s motion to dismiss that Eleventh Circuit precedent holds that “shooting
an unarmed person who is not acting in a manner posing a risk of great bodily
harm to an officer violates the suspect’s fourth amendment right to be free of
excessive force.” (Pl.’s Resp. at 14-15, ECF No. 30.) However, Soto has not
actually alleged that Defendant Aledda violated Rios-Soto’s right to be free from
excessive force, and neither Counts Seven nor Eight allege that any of the
Defendants violated Rios-Soto’s right to be free of excessive force. Therefore,
the Court dismisses Counts Seven and Eight as to Defendant Aledda.
Defendants Warren, Requejado, Crespo, and Gaudio argue that they are
entitled to qualified immunity. (See, e.g., Mot. to Dismiss at 9-13, ECF No. 15.)
“Qualified immunity offers complete protection for government officials sued in
their individual capacities if their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004)
(quotation marks omitted). The Supreme Court has “‘stressed the importance of

resolving immunity questions at the earliest possible stage in litigation.’” Pace
v. Capobianco, 283 F.3d 1275, 1284 (11th Cir. 2002) (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)). To claim qualified immunity, a public official must
first establish that he was engaged in a “discretionary duty.” Mercado v. City of
Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). The Eleventh Circuit has noted
that officers trying to apprehend a potentially suicidal subject are “clearly
engaged in a discretionary capacity.” Mercado, 407 F.3d at 1156; see also, Lee
v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (holding that a police officer is
engaged in a discretionary duty when making an arrest).
Once it is established that a public official was acting in a discretionary
capacity, the burden shifts to the plaintiff to establish “both that the defendant
committed a constitutional violation and that the law governing the
circumstances was already clearly established at the time of the violation.”
Youmans v. Gagnon, 626 F.3d 557, 526 (11th Cir. 2010). “This objectivereasonableness test provides qualified immunity protection to ‘all but the
plainly incompetent or those who knowingly violate the law.’” Kirkland v.
Mosaic Fertilizer, LLC, No. 8:14-CV-1715, 2015 WL 4042100, at *2 (M.D. Fla.
July 1, 2015) (quoting Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)). At
the motion to dismiss stage, “unless the plaintiff’s allegations state a claim of
violation of clearly established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery.” Cottone v. Jenne,
326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotations and citations
omitted).
1. Whether the Officers Violated Rios-Soto’s Constitutional Rights
Count Seven alleges that Defendants Warren, Requejado, Crespo, and
Gaudio unlawfully arrested Rios-Soto and imprisoned him in a patrol car and
later at the police station without probable cause, in violation of his Fourth and
Fourteenth Amendment rights. Count Eight alleges that these same
Defendants violated Rios-Soto’s rights under the Fourth and Fourteenth
Amendments to be free from unreasonable searches and seizure, and his rights
under the Fourteenth Amendment to equal protection and due process. The
factual allegations supporting both counts are essentially the same, and the
Defendants and the Plaintiff have not distinguished between the two counts in
analyzing whether the Defendants are entitled to qualified immunity. Both
counts essentially allege that both the arrest and subsequent detention and
restraint of Rios-Soto were unlawful. Therefore, the Court will analyze whether
the Plaintiff has stated a claim for unlawful arrest and/or false imprisonment.
“A warrantless arrest without probable cause violates the Constitution
and provides a basis for a section 1983 claim.” Kingsland, 382 F.3d at 1226,

1232 (citations omitted) (“Plainly, an arrest without probable cause violates the
right to be free from an unreasonable search under the Fourth Amendment.”).
However, the existence of probable cause constitutes an absolute bar to a
§ 1983 claim of false arrest. Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.
1998). For probable cause to exist, “an arrest must be objectively reasonable
based on the totality of the circumstances.” Lee v. Ferraro, 284 F.3d 1188,
1195 (11th Cir. 2002). This standard is met when reasonably trustworthy facts
and circumstances lead a prudent person to believe that an individual has
violated the law, is violating the law, or will violate the law. Kingsland, 382 F.3d
at 1226.
Nevertheless, even if the facts demonstrate that an arrest was made
without probable cause, officers are still entitled to qualified immunity if there
was arguable probable cause for the arrest. Id. at 1232. “Whether an officer has
probable cause or arguable probable cause depends on the elements of the
alleged crime and the operative fact pattern.” Brown v. City of Huntsville, Ala.,
608 F.3d 724, 735 (11th Cir. 2010) (internal citations omitted). Thus, an officer
is entitled to qualified immunity if “‘reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants could
have believed that probable cause existed to arrest’ the plaintiffs.” Scarbrough
v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (quoting Redd v. City of
Enterprise, 410 F.3d 1378, 1384 (11th Cir. 1998)); see also Jones v.
Cannon, 174 F.3d 1271, 1283 n.3 (11th Cir. 1999) (“Arguable probable cause,
not the higher standard of actual probable cause, governs the qualified
immunity inquiry.”). Arguable probable cause may exist where a public official
makes a “good faith,” “reasonable mistake” in the legitimate performance of his
or her duties. Kingsland, 382 F.3d at 1233. But a public official who “recklessly
or deliberately” violates the law is not entitled to immunity under the arguableprobable-cause doctrine. Id. at 1233–34 (“The principles behind qualified
immunity would be rendered meaningless if such immunity could be invoked
to shelter officers who, because of their own interests, allegedly flout the law,
abuse their authority, and deliberately imperil those they are employed to serve
and protect.”).
Defendants Warren, Requejado, Crespo, and Gaudio argue that the
allegations in the Complaint establish that there was probable cause to
restrain Rios-Soto and place him in protective custody under the Hal S.
Marchman Alcohol and Other Drug Services Act, Florida Statute § 397,672 (the
“Marchman Act”). (Mot. to Dismiss at 11, ECF No. 15.) Pursuant to the
Marchman Act, a person meets the criteria for involuntary admission,
including protective custody,

[I]f there is good faith reason to believe that the person is
substance abuse impaired or has a co-occurring mental health
disorder and, because of such impairment or disorder:
(1) Has lost the power of self-control with respect to substance
abuse; and
(2)(a) Is in need of substance abuse services and, by reason of
substance abuse impairment, his or her judgment has been so
impaired that he or she is incapable of appreciating his or her need
for such services and of making a rational decision in that regard .
. .; or
(b) Without care or treatment, is likely to suffer from neglect or
refuse to care for himself or herself; that such neglect or refusal
poses a real and present threat of substantial harm to his or her
well-being; and that it is not apparent that such harm may be
avoided through the help of willing family members or friends or
the provision of other services, or there is substantial likelihood
that the person has inflicted, or threatened to or attempted to
inflict, or, unless admitted, is likely to inflict, physical harm on
himself, herself, or another.
Fla. Stat. § 397.675. When a minor or an adult “appears to meet the
involuntary admission criteria” set forth above, a law enforcement officer may
implement protective custody measures if the person is brought to the
attention of law enforcement or is in a public place. Fla. Stat. § 397.677.
In addition, the Complaint alleges that Defendant Aledda made a radio
transmission stating that Rios-Soto required institutionalization under the
Baker Act. (Compl. ¶ 50.) The Baker Act allows a law enforcement officer to
take a person who appears to meet the criteria for involuntary examination into
custody and deliver them to an appropriate facility. Fla. Stat. § 394.463(2)(a)(2).
A person meets the criteria for involuntary examination if “there is reason to
believe that the person has a mental illness and because of his or her mental
illness . . . [t]he person is unable to determine for himself or herself whether
examination is necessary;” and “[t]here is a substantial likelihood that without
care or treatment the person will cause serious bodily harm to himself or
herself or others in the near future, as evidenced by recent behavior.” Id. at §
394.463(1).
The Eleventh Circuit has held that in the context of a mental-health
seizure, the officer must have probable cause to believe the person is
dangerous either to himself or others. May v. City of Nahunta, Georgia, 846
F.3d 1320, 1327-28 (11th Cir. 2017) (citing Roberts v. Spielman, 643 F.3d 899,

904 (11th Cir. 2011)). The allegations in the Complaint establish that a
reasonable officer objectively could have believed that probable cause existed to
seize Rios-Soto and place him in protective custody. The call sent out by the
Miami-Dade Police Dispatcher stated that there was a suicidal person with a
gun to his head in the middle of the roadway. (Compl. ¶ 31.) Although the
Complaint alleges that Kinsey shouted to the officers when they arrived that
Rios-Soto was only holding a toy car, the Complaint also alleges that the
officers were initially positioned too far away to determine whether Rios-Soto
was holding a gun. (Id. ¶¶ 35-36.) Despite the presence of the officers and their
instructions to get on the ground, Rios-Soto remained sitting in the middle of
the street “rocking front to back with the truck by his head.” (Id. ¶¶ 41-42.) The
Complaint alleges that Officer Crespo noticed that Rios-Soto’s “‘behavior
seemed a little unusual . . . as if he had some sort of mental disability.’” (Id. ¶
43.) Another officer stated that Rios-Soto “‘looked like he was just in his own
world, doing his own thing,’” and that “‘he didn’t look normal.’” (Id. ¶ 44.)
After Kinsey was shot, Rios-Soto “stood up and began to yell and making
noises, which were described as either ‘animalistic’ or ‘weird.’” (Id. ¶ 49.) The
Complaint also alleges that at the time of the shooting, “it was clear that
Arnaldo Rios-Soto had a significant developmental and intellectual disability . .
. .” (Id. ¶ 54.) After Rios-Soto had been placed in the back of Warren’s patrol
car, Rios-Soto continued making “loud ‘animalistic sounds and screeching
noises.’” (Id. ¶ 57.) After Detective Gaudio arrived on the scene, the Complaint
alleges that “[i]t was ‘immediately clear’ to Detective Gaudio that Rios-Soto
‘suffered from some type of mental issue or on some time [sic] of narcotic as he
was incapable of communicating.’” (Id. ¶¶ 58-59.) Around 6:00 p.m., Detective
Gaudio advised Clint Bower that Rios-Soto was in protective custody. (Id. ¶ 62.)
Bower then advised Gaudio that Rios-Soto was autistic and “might be
aggressive.” (Id. ¶ 63.)
These allegations establish that the officers had probable cause to believe
that Rios-Soto was dangerous to himself and/or others, and that the
requirements to take him into protective custody under either the Marchman
or Baker Acts had been met. Therefore, the officers are entitled to qualified
immunity with respect to the initial seizure of Rios-Soto.
However, under the Marchman Act, in order to implement protective
custody measures, “after giving due consideration to the expressed wishes of
the person,” the officer may take the person to a hospital or detoxification
center without using unreasonable force, or, in the case of an adult, may
“detain the person for his or her own protection in any municipal or county jail
or other appropriate detention facility.” Fla. Stat. § 397.6772(1). Under the
Baker Act, an officer must deliver the person to an appropriate facility for

examination. Fla. Stat. § 394.463(2)(a)2. Although Detective Gaudio initially
informed Bower that Rios-Soto was in protective custody, he later told Bower
that “Rios-Soto was going to be transported to the North Miami Police Station
so he could try to obtain a statement.” (Id. ¶ 67.) Rios-Soto was not taken to a
hospital, jail, or other mental health facility. Moreover, despite the fact that
Bower informed Gaudio that had a guardian, the Complaint alleges that
Gaudio made no attempt to notify Soto that Rios-Soto was being taken into
protective custody pursuant to § 397.6772(2) of the Marchman Act. Thus, the
allegations in the Complaint establish that at some point after Rios-Soto had
been handcuffed and placed in Gaudio’s car, the intention was no longer to
transport Rios-Soto to a hospital or other appropriate facility.
Accordingly, the Court must analyze whether Soto has stated a claim for
false imprisonment based on Rios-Soto’s continued detention after the decision
was made not to take him into protective custody under the Marchman or
Baker Acts. The Eleventh Circuit has recognized “[t]he constitutional right to be
free from continued detention after it was or should have been known that the
detainee was entitled to release.” In order to state a § 1983 claim based on false
imprisonment, a plaintiff must meet the elements of common law false
imprisonment and establish that the imprisonment resulted in a violation of
due process rights under the Fourteenth Amendment. Campbell v. Johnson,
586 F.3d 835, 840 (11th Cir. 2009) (citing Cannon, 1 F.3d at 1562-63). A
plaintiff sufficiently states a common law claim of false imprisonment if the
plaintiff alleges “an intent to confine, an act resulting in confinement, and the
victim’s awareness of confinement.” Id. (citations omitted). The factual
allegations in the Complaint sufficiently allege these elements.
In order to establish a due process violation, a plaintiff must establish
that the defendant(s) acted with “deliberate indifference in violating the
plaintiff’s right to be free from continued detention after the defendant knew or
should have known that the detainee was entitled to release.” May, 846 F.3d at
1329 (citing Campbell, 586 F.3d at 840)). The Complaint alleges that Detective
Gaudio initially told Bower that Rios-Soto was in protective custody. (Compl. ¶
62.) However, Gaudio then told Bower that he was taking Rios-Soto to the
police station to obtain a statement, and Gaudio and Requejado questioned
Rios-Soto at the station. (Id. ¶¶ 67, 72.) The Complaint alleges that Rios-Soto
remained handcuffed throughout the questioning at the police station, and also
alleges that there was no “valid purpose” to question Rios-Soto. (Id. ¶¶ 73-74.)
Since Gaudio and Requejado failed to follow the procedures for placing
Rios-Soto in protective custody, which was Gaudio’s stated reason for detaining
Rios-Soto, and because it is not clear from the face of the Complaint that there
was arguable probable cause to detain Rios-Soto for any other reason, the

allegations in the Complaint are sufficient to support an inference that Gaudio
and Requejado acted with deliberate indifference to Rios-Soto’s right to be free
from continued detention after they knew or should have known that he was
entitled to release. Thus, the Complaint states a § 1983 claim against Gaudio
and Requejado based on false imprisonment.
2. Whether Defendants Gaudio and Officer Requejado Violated Clearly
Established Law
Clearly established law can come from a materially similar case that has
already been decided; a broader, clearly established principle; or conduct that
so obviously violates the constitution that prior case law is unnecessary.
Mercado, 407 F.3d at 1158-59 (citations omitted). “More than a general legal
proposition – for example, to act reasonably – is usually required; if a plaintiff
relies on a general rule, it must be obvious that the general rule applies to the
specific situation in question.” Youmans, 626 F.3d at 563 (citing Brousseau v.
Haugen, 125 S.Ct. 596, 599 (2004)).
The Eleventh Circuit has noted that the right against false imprisonment
without due process “is clearly established.” Cannon, 1 F.3d at 1564. Moreover,
the Eleventh Circuit opinion recognizing the right to be free from continued
detention after it should have been known that the detainee was entitled to
release was issued over a decade before the incident in question. See Cannon, 1
F.3d 1558, 1563 (11th Cir. 1993). Although these are fairly general legal
propositions, it should have been obvious that Detective Gaudio and Officer
Requejado needed probable cause to continue detaining Rios-Soto and take
him to the police station for questioning after the decision was made not to
follow the procedures of the Baker or Marchman Acts.
Therefore, at this juncture in the case, the Court declines to grant
Defendants Gaudio and Requejado qualified immunity for their continued
detention of Rios-Soto after the decision was made not to transfer Rios-Soto to
a hospital or other appropriate detention facility in accordance with the
Marchman and Baker Acts.
C. 42 U.S.C. § 1983 Claim Against the City
Count Nine asserts a § 1983 claim against the City for failure to train its
officers “with regard to the handling of incidents involving persons with
disabilities.” (Compl. ¶ 146.) Municipalities and other local government entities
are subject to liability under § 1983 and may be sued directly for relief where
“the action that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.” Monell v. N.Y.C. Dep’t of Soc. Servs., 436

U.S. 658, 690 (1978). A municipality or other local government entity “cannot
be held liable solely because it employs a tortfeasor—or, in other words, a
municipality cannot be held liable under § 1983 on a respondeat superior
theory.” Id. at 691 (emphasis in original). Only if the alleged constitutional
violations resulted from a custom, policy, or practice of a local government
entity may that entity be held liable. Id. at 694; Wideman v. Shallowford Cmty.
Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987); see also Farred v. Hicks, 915
F.2d 1530, 1532–33 (11th Cir. 1990) (“Governmental entities may be held liable
under section 1983 when a governmental ‘policy or custom’ is the ‘moving
force’ behind the constitutional deprivation.”) (citing Kentucky v. Graham, 473
U.S. 159, 166 (1985)).
A policy or custom “is established by showing a persistent and
widespread practice and an entity’s actual or constructive knowledge of such
customs, though the custom need not receive formal approval.” German v.
Broward Cty. Sheriff's Office, 315 F. App’x 773, 776 (11th Cir. 2009) (citing
Depew v. City of St, Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986)). The
practice or custom must be “so pervasive, as to be the functional equivalent of
a policy adopted by the final policymaker.” Church v. City of Huntsville, 30 F.3d
1332, 1343 (11th Cir. 1994). For example, if a municipality’s rules and
regulations for the operation of its police department are repeatedly violated
and the municipality has knowledge of the conduct but fails to rectify the
situation, it may be liable. Depew, 787 F.2d at 1499 (“The continued failure of
the [municipality] to prevent known constitutional violations by its police force
is precisely the type of informal policy or custom that is actionable under
section 1983.”). However, “[n]ormally random acts or isolated incidents are
insufficient to establish a custom or policy.” Id.
The inadequacy of police training may serve as the basis for local
government liability under § 1983 only “where the failure to train in a relevant
respect amounts to deliberate indifference to the constitutional rights of
persons with whom the police come into contact.” City of Canton, Ohio v.
Harris, 489 U.S. 378, 379 (1989). To establish “deliberate indifference,” “a
plaintiff must present some evidence that the municipality knew of a need to
train and/or supervise in a particular area and the municipality made a
deliberate choice not to take any action.” Gold v. City Of Miami, 151 F.3d 1346,
1350 (11th Cir. 1998).
Soto alleges that the police department “had actual knowledge that
persons with intensive behavioral needs lived at MACtown and in their
community.” (Compl. ¶ 18.) The Complaint includes a list of ten alleged
interactions between the police department and MACtown residents. (Id.) Based
on these incidents, Soto claims that the City “had notice of the need to train

regarding the needs of its own citizens with developmental disabilities . . . .” (Id.
¶ 147.) Soto also claims that the City “was deliberately indifferent to the
constitutional rights of persons with Autism Spectrum Disorder or other
intellectual or developmental disabilities, including Mr. Rios-Soto.” (Id.¶ 149.)
The Eleventh Circuit has held that when a plaintiff relies on prior
incidents to establish a pattern and practice, the incidents must involve similar
facts to the case at hand. Mercado, 407 at 1162. Eight of the ten incidents
described in the Complaint consist of police responding to reports of missing
residents from MACtown or reports of burglaries at MACtown. (Id.) The
descriptions of these incidents do not allege that the constitutional rights of the
residents were violated; the Complaint simply states that the police were called
to respond to the reported incidents. (Id.) Thus, these incidents do not
demonstrate a widespread pattern or practice of police officers violating the
constitutional rights of citizens with mental disabilities. See Weiland v. Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1329 n. 21 (11th Cir. 2015) (stating
that “[m]ere ‘contacts’ between deputies and mentally ill citizens are
insufficient to put the Sheriff’s Office on notice of the need for training . . . .”).
Two of the incidents described in the Complaint do include allegations of
more confrontational interactions between the police and residents of
MACtown. On one occasion, the police arrested a resident of MACtown who
had bitten his roommate on the lip. (Compl. ¶ 18.) The resident was
transported to the jail and held overnight. (Id.) On a second occasion, Soto
alleges that “North Miami Police responded to an incident at MACtown and
tased a person with an intellectual disability.” (Id.) This is the entire description
of the incident. The descriptions of these two incidents do not include facts
indicating that the police responses were unlawful or that violations of the
residents’ constitutional rights occurred. Thus, these incidents are also
insufficient to establish a pattern or practice.
Finally, the Complaint alleges that “[u]pon information and belief, the
staff and management at MACtown complained to North Miami officials,
including its police chief, about the treatment of their residents when
interacting with the police, but were ignored.” (Id. ¶ 19.) However, the
Complaint does not allege that these complaints concerned violations of the
residents’ constitutional rights similar to the alleged violation of Rios-Soto’s
rights. Therefore, this allegation is also insufficient to establish a pattern or
practice. See Weiland, 792 F.3d at 1329 (conclusory allegations that city
officials are “on notice of the need to promulgate, implement, and/or oversee
policies pertaining to the use of force appropriate for the seizure of mentally ill
persons” is insufficient to state a § 1983 claim (internal quotations marks
omitted)); Church, 30 F.3d at 1344-46 (reversing district court’s award of

preliminary injunction because the plaintiffs failed to establish that city
employees had a pervasive practice of violating the plaintiffs’ constitutional
rights and there was no evidence that any final policymaker was aware of the
incidents described at the preliminary injunction hearing).
In response to the City’s motion to dismiss, Soto argues that a plaintiff
may successfully bring a failure-to-train claim without showing a pattern of
constitutional violations. (Pl.’s Resp. at 13, ECF No. 19.) The Eleventh Circuit
has recognized that “[i]n City of Canton v. Harris, 489 U.S. 378 (1989), the
Supreme Court in dictum left open the possibility that a need to train could be
‘so obvious,’ resulting in a City’s being liable without a pattern of prior
constitutional violations.” Gold, 151 F.3d at 1352. The only example that the
Supreme Court gave in City of Canton of such a circumstance was the need to
train officers in the use of deadly force when they are provided with firearms.
Id. (citing City of Canton, 489 U.S. at 390 n. 10)). The Supreme Court
subsequently characterized this language as “simply hypothesizing in a narrow
range of circumstances that a plaintiff might succeed without showing a
pattern of constitutional violations . . . .” Id. (citing Board of Cty. Comm’rs v.
Brown, 520 U.S. 397 (1997)).
Soto argues that “[t]his matter is one of the rare issues where the risk of
constitutional violations is obvious in the abstract.” (Pl.’s Resp. at 13, ECF No.
19.) In support of this argument, Soto asserts that given the small geographical
size of the City and the past incidents of MACtown residents “eloping” from the
facility, “[i]t was solely a matter of time that a person with a mental disability
with intensive behavioral needs was a victim of police arresting, assaulting, or
shooting a resident of the group home.” (Id. at 13-14) However, the Eleventh
Circuit has held that “‘[it] is not enough to show that a situation will arise and
that taking the wrong course in that situation will result in injuries to
citizens.’” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 490 (11th Cir. 1997)
(quoting Walker v. City of New York, 974 F.2d 293, 299-300 (2nd Cir. 1992)).
In City of Canton, Justice O’Connor stated that “[t]he claim in this case –
that police officers were inadequately trained in diagnosing the symptoms of
emotional illness – falls far short of the kind of ‘obvious’ need for training that
would support a finding of deliberate indifference to constitutional rights on the
part of the city.” 489 U.S. at 396-97 (O’Connor, J., concurring in part and
dissenting in part). Similarly, the Eleventh Circuit has held that a claim that a
city inadequately trained jail employees “to recognize the need to remove a
mentally ill inmate to a hospital or to dispense medication as prescribed” does
not constitute such an obvious need to train that it can support a finding of
deliberate indifference to constitutional rights. Young v. City of Augusta, Ga.

Through DeVaney, 59 F.3d 1160, 1172 (11th Cir. 1995) (citing City of Canton,
489 U.S. at 396-397 (O’Connor, J., concurring in part and dissenting in part)).
Soto has not provided any case law holding that the need to train in a
factually similar case was so obvious that the plaintiff did not need to establish
a pattern or practice of similar constitutional violations. Therefore, similar to
City of Canton and Young, the Court finds that the need to train in this case
does not qualify as one of the “narrow range of circumstances that a plaintiff
might succeed without showing a pattern of constitutional violations . . . .”
Gold, 151 F.3d at 1352 (citing Board of Cty. Comm’rs v. Brown, 520 U.S. 397
(1997)). Accordingly, Soto has failed to state a § 1983 claim against the City.
D. ADA and Rehabilitation Act Claims
Count Ten of the Complaint asserts a violation of Title II of the ADA
against the City. Specifically, Soto alleges that the City treated Rios-Soto in a
discriminatory fashion by assuming that Rios-Soto was a danger to himself and
others solely because of his disability; arresting and imprisoning Rios-Soto
solely because of his disability; failing to offer any assistance to Rios-Soto
during the interrogation as required by Florida law and failing to provide
training concerning interviews of individuals with autism as required by Florida
law; and failing to provide police officers and employees training on interacting
with people with autism, developmental disabilities, or intellectual disabilities.
(Compl. ¶ 156.) Count Eleven of the Complaint asserts a violation of the
Rehabilitation Act, based on similar allegations of discrimination as those set
forth in the ADA claim. (Id. ¶ 165.)
Pursuant to Title II of the ADA, “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or denied
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The
Rehabilitation Act similarly provides that no “qualified individual with a
disability . . . shall, solely by reason of his or her disability . . . be subjected to
discrimination under any program or activity receiving Federal financial
assistance . . . .” 29 U.S.C. § 794. Due to the similarities between the two
statutes, courts generally apply the same standard to claims arising under the
ADA and the Rehabilitation Act. See, e.g., Silva v. Baptist Health South Florida,
Inc., 856 F.3d 824, 830 (11th Cir. 2017) (“ADA and RA claims are governed by
the same substantive standard of liability”) (citing Cash v. Smith, 231 F.3d
1301, 1305 (11th Cir. 2000)).
“Under the ADA and RA, a discrimination claim based on an arrest
situation usually arises in two different situations: (1) when police wrongfully
arrest someone by mistaking his disability for criminal conduct, and (2) when

police properly investigate and arrest someone with a disability . . . and then
fail to reasonably accommodate the disability . . . .” Bircoll v. Miami-Dade Cty.,
410 F.Supp.2d 1280, 1285 (S.D. Fla. 2006) (Moreno, J.), aff’d, 480 F.3d 1072
(11th Cir. 2007), (citing Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir.
1999)). In order to state a claim under the Rehabilitation Act or Title II of the
ADA, a plaintiff must allege that: (1) the subject of the discrimination was a
qualified individual with a disability, (2) that he or she was discriminated
against by a public entity, and (3) that the discrimination was due to the
disability. Suarez v. City of Hollywood, No. 16-62215, 2016 WL 8738228, at *3
(S.D. Fla. Dec. 5, 2016) (Dimitrouleas, J.). In addition, “[t]o prevail on a claim
for compensatory damages under either the RA or the ADA, a plaintiff must
show that a defendant violated his rights under the statutes and did so with
discriminatory intent.” McCullum v. Orlando Reg’l Healthcare Sys., 768 F.3d
1135, 1146-47 (11th Cir. 2014) (citations omitted). Since Soto seeks
compensatory damages, she must meet this standard.
Proof of discriminatory intent is an “exacting standard, which requires
showing more than gross negligence. To establish deliberate indifference, a
plaintiff must show that the defendant knew that harm to a federally protected
right was substantially likely and failed to act on that likelihood.” Id. at 1147
(internal quotations and citations omitted) (emphasis in original). Soto
generally alleges that the Defendants actions “were intentional and with
reckless disregard and deliberate indifference for Rios-Soto’s rights as a person
with a disability.” (Compl. ¶¶ 159, 168.) However, if a complaint does not
include specific factual allegations showing that a police officer “knew that the
plaintiff was disabled or knew that his actions were substantially likely to
violate the plaintiff’s rights under the ADA or RA,” it is subject to dismissal. See
Boynton v. City of Tallahassee, 650 Fed. Appx. 654, 658-59 (11th Cir. 2016).
With respect to Soto’s claim that the City arrested and imprisoned RiosSoto solely because he had a disability, “there must be a causal link between a
plaintiff’s disability and the wrongful arrest; i.e., no other probable cause for
the arrest exists.” Bircoll, 410 F.Supp.2d at 1285. However, as discussed in
Section 3B, supra, the allegations in the Complaint establish that, at least
initially, the officers had probable cause to restrain Rios-Soto in order to take
him into protective custody. With respect to the continued detention and
questioning of Rios-Soto, it is unclear to the Court how attempting to obtain a
statement from Rios-Soto could constitute a discriminatory action. Moreover,
the factual allegations are insufficient to support an inference that Gaudio and
Requejado continued detaining Rios-Soto and took him to the station for
questioning solely on the basis of his disability.

Soto also claims that the City failed to provide the assistance mandated
by Florida Statute 943.0439 to Rios-Soto during the interrogation. Florida
Statute 943.0439 requires that, “upon request of an individual diagnosed with
autism or an autism spectrum disorder or his or her parent or guardian,” a law
enforcement officer is required to “make a good faith effort to ensure that a
psychiatrist, psychologist, mental health counselor, special education
instructor, clinical social worker, or related professional is present at all
interviews of the individual.” This claim fails for three reasons. First, the
statute specifically says that failure to have a professional present at the time
of the interview is not a basis for a cause of action against the law enforcement
officer or agency. Fla. Stat. § 943.0439(1). Second, the Complaint does not
allege that Rios-Soto, Bower, or anyone else made a request for such
assistance. Finally, although this claim would logically be categorized as a
failure to accommodate claim, Soto’s response to the City’s motion to dismiss
states that “as this is a disparate treatment case, and not a reasonable
accommodation case, whether there was a request for an accommodation is
irrelevant.” (Pl.’s Resp. at 16-17, ECF No. 19.)
The only allegation of disparate treatment included in Counts Ten and
Eleven is that Rios-Soto was arrested and imprisoned “solely because he had a
disability, when any other non-disabled witness to a shooting would have been
allowed to choose whether to provide a statement and leave.” (Compl. ¶¶ 156,
165.) This allegation is conclusory and there are no other factual allegations in
the Complaint to support a claim that Rios-Soto was treated differently than
other individuals in similar situations.
Since the allegations are insufficient to establish that Rios-Soto was
arrested and detained solely because he had a disability, or that he was treated
differently on the basis of his disability, Counts Ten and Eleven are dismissed.
E. FHA Claim
Count Twelve asserts a claim under the Fair Housing Act (“FHA”) against
the City and the individual Defendants, alleging that “[b]y failing to implement
policies and train its officers relating to the needs of persons with disabilities,
the City of North Miami has discriminated in the provision of municipal utility
services that are essential to the use and enjoyment of housing – such as police
services – based upon disability . . . .” (Compl. ¶ 172.) Soto also alleges that
Rios-Soto was “targeted as he was Hispanic Man with a mental disability who
was accompanied by a Black Man who was wearing street clothes,” and that
the Defendants’ actions in falsely arresting, imprisoning, and interrogating
Rios-Soto “makes it impossible for Rios-Soto to continue to live in North Miami,
and creates a dangerous environment for any resident of North Miami that lives

with a developmental or intellectual disability.” (Id. ¶¶ 173, 176.) Finally, Soto
alleges that the discriminatory services made housing unavailable to Rios-Soto,
as he was forced to move out of the only group home in South Florida that
could meet his needs. (Id. ¶ 180.)
Soto alleges that the Defendants have violated Sections 3604(b) and (f) of
the FHA. Section 3604(b) makes it unlawful to “discriminate against any
person in the terms, conditions, or privileges of sale or rental of a dwelling, or
in the provision of services or facilities in connection therewith, because of
race, color, religion, sex, familial status, or national origin.” Section 3604(f)
makes it unlawful, in relevant part:
(1) To discriminate in the sale or rental, or to otherwise make unavailable
or deny, a dwelling to any buyer or renter because of a handicap of
(A) that buyer or renter;
(B) a person residing in or intending to reside in that dwelling after
it is so sold, rented, or made available;
(C) any person associated with that buyer or renter
(2) To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services
or facilities in connection with such dwelling, because of a handicap
of –
(A) That person; or
(B) A person residing in or intending to reside in that dwelling after
it is so sold, rented, or made available; or
(C) Any person associated with that person.
However, the FHA does not require “that a dwelling be made available to an
individual whose tenancy would constitute a direct threat to the health or
safety of other individuals or whose tenancy would result in substantial
physical damage to the property of others.” Id. § 3604(f)(9).
As an initial matter, the Court doubts that the actions of the police
officers in this case are sufficiently related to the sale or rental of a dwelling, or
“the provision of services or facilities in connection therewith,” to support a
cause of action under the FHA. See Lawrence v. Courtyards at Deerwood Ass’n,
Inc., 318 F.Supp.2d 1133, 1142-43 (S.D. Fla. 2004) (Huck, J.) (holding that 42
U.S.C. § 3604(b) is limited to conduct that directly impacts the accessibility to
housing). Although the parties did not address this threshold issue, none of the
cases cited by the parties involve a factual situation even remotely analogous to
this case, and the Court has not been able to find any.
Even assuming that the officers’ actions are related to housing or the
provision of services in connection with housing, the Plaintiff’s claim fails. The

Eleventh Circuit has held that “[i]n a discrimination case, before discovery has
unearthed relevant facts and evidence, it may be difficult to define the precise
formulation of the required prima facie case. Thus, the allegations in the
complaint should be judged by the statutory elements of an FHA claim . . . .”
Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221-22 (internal quotations,
alterations, and citations omitted). With respect to Soto’s claim that the
officers’ actions violated 42 U.S.C. § 3604(f), the Court has already concluded
that the factual allegations are insufficient to establish that the officers
discriminated against Soto on the basis of his disability.
With respect to Soto’s claim that Rios-Soto was targeted because he was
Hispanic and accompanied by a black man, the only allegation in the
Complaint that could conceivably support this claim is the allegation that “Had
Mr. Rios-Soto have been [sic] accompanied by a therapist who was a White
Woman, wearing a traditional nurse’s uniform of a dress, apron, and cap, Mr.
Rios-Soto would not have been stereotypically identified as a threat . . . and his
therapist would not have been shot.” (Compl. ¶ 174). However, this is entirely
speculative and is not supported by the other factual allegations in the
Complaint, especially in light of the Court conclusion that the officers had
probable cause to take Rios-Soto into protective custody. Accordingly, Count
Twelve is dismissed because the allegations are insufficient for the Court to
infer that the officers discriminated against Rios-Soto on the basis of race or
disability.
F. 42 U.S.C. § 1982 Claim
Count Thirteen asserts a claim against the City and the individual
Defendants under 42 U.S.C. § 1982. 42 U.S.C. § 1982 provides that “[a]ll
citizens of the United States shall have the same right, in every State and
Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.” Based on similar allegations
as those asserted in support of the Plaintiff’s FHA claim, the Plaintiff argues
that the Defendants’ actions “are violations of his right to have the same rights
as enjoyed by other citizens to lease and hold and [sic] real and personal
property because of race . . . .” (Compl. ¶ 190.) However, there are no
allegations in the Complaint that Rios-Soto sought to inherit, purchase, lease,
sell, hold, or convey real property, or that the Defendants interfered with such
rights. See City of Memphis v. Greene, 451 U.S. 100, 123 (1981) (holding that
“the threshold inquiry under § 1982 must focus on the relationship between”
the conduct at issue and “the property interests of the respondents”);
Lawrence, 318 F.Supp.2d at 1150 (“Section 1982 was never intended to, and
does not reach, every alleged racially discriminatory act that is somehow

related to housing”); Hill v. Impro Synergies LLC, No. 1:15cv101, 2015 WL
9942045, at *3 n. 1 (N.D. Fla. Nov. 25, 2015) (noting that “it seems that a §
1982 plaintiff . . . must identify some property interest of their own that has
been impaired.”); New Christian Valley M.B. Church v. Board of Educ. Of School
Dist. No. 149, 704 F.Supp. 868, 870 (N.D. Ill. 1989) (holding that “[t]he
individual plaintiffs cannot allege that the defendants denied them the right to
lease and hold real property unless they show that they attempted to do so);
but see U.S. v. Brown, 49 F.3d 1162, 1166-67 (6th Cir. 1995) (holding that the
legislative history of § 1982 “supports the proposition that a Jewish person’s
‘use’ of property is protected under Section 1982”).
Moreover, as discussed above, Soto has failed to allege facts sufficient to
support an inference that the officers intentionally discriminated against RiosSoto on the basis of his race. See Henderson v. JP Morgan Chase Bank, N.A.,
436 Fed. Appx. 935, 937 (11th Cir. 2011) (holding that a complaint alleging
discrimination must contain sufficient factual matter to support a reasonable
inference that the defendant engaged in racial discrimination); Lawrence, 318
F.Supp.2d at 1149-50 (a plaintiff must allege facts to show that the defendant
intended to discriminate on the basis of race to sustain a § 1982 claim).
Therefore, Soto has failed to state a claim under § 1982.
3.

Conclusion
For the foregoing reasons, the City’s motion to dismiss is granted (ECF
No. 14); Defendant Aledda’s motion to dismiss is granted (ECF No. 27); and
Defendants Warren, Requejado, Crespo, and Gaudio’s motion to dismiss is
granted in part and denied in part (ECF No. 15). Accordingly, Counts One
through Six are dismissed without prejudice as to each of the individual
Defendants. Counts Seven and Eight are dismissed without prejudice as to
Defendant Aledda, and dismissed with prejudice as to Defendants Warren
and Crespo. Counts Seven and Eight are dismissed with prejudice as to
Defendants Requejado and Gaudio solely with respect to the Plaintiff’s unlawful
arrest claim, but may proceed against Defendants Requejado and Gaudio with
respect to the Plaintiff’s false imprisonment claim. Counts Nine, Ten, and
Eleven are dismissed without prejudice as to the City. Counts Twelve and
Thirteen are dismissed without prejudice as to all Defendants.
Since the Plaintiff’s briefing on the Defendants’ motions to dismiss makes
clear that she intended to assert a § 1983 claim for excessive force, the Plaintiff
may amend the Complaint to include such a claim. In addition, if the Plaintiff
has a good faith basis to correct the deficiencies in Counts One through Six
and Counts Nine through Thirteen, she may amend those claims as well. If the

Plaintiff wishes to amend the complaint, she must file the amended complaint
on or before October 26, 2017.
Done and ordered, at Miami, Florida, on October 16, 2017.

________________________________
Robert N. Scola, Jr.
United States District Judge