Gaviria v. Guerra et al

Filing 35

ORDER granting in part and denying in part 26 Motion to Dismiss for Failure to State a Claim. Counts II and VIII of the Amended Complaint (ECF No. 25 ) are DISMISSED. The remaining causes of action proceed. Signed by Judge Cecilia M. Altonaga on 4/19/2018. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-23490-CIV-ALTONAGA/Goodman
BRIAN GAVIRIA,
Plaintiff,
v.
FRANCISCO GUERRA, et al.,
Defendants.
_____________________________/
ORDER
THIS CAUSE came before the Court on Defendants, Francisco Guerra, Jennifer
Alvarez, Mayor Carlos A. Gimenez, and Miami-Dade County’s Motion to Dismiss Counts II, IV,
and VIII of Plaintiff’s Amended Complaint [ECF No. 26], filed February 9, 2018. Plaintiff,
Brian Gaviria, filed a Response [ECF No. 29], to which Defendants filed a Reply [ECF No. 31].
The Court has carefully considered the parties’ written submissions, the record, and applicable
law.
I.

BACKGROUND

This action arises out of an encounter between Gaviria and police officers Guerra and
Alvarez at Gaviria’s home. (See generally Amended Complaint [ECF No. 25]). In the early
morning hours of April 21, 2016, Guerra and Alvarez arrived at Gaviria’s home to investigate a
noise complaint. (See id. ¶ 15). Gaviria and his brother met the two officers at the front door of
the home, and Gaviria questioned the officers as to their purpose for stopping by. (See id. ¶¶ 16–
17). Gaviria and the officers had a heated exchange of words. (See id. ¶ 17).
At some point, Guerra and Alvarez entered the home, even though neither officer had a
search or arrest warrant authorizing entry, and Gaviria never granted them consent to enter his

CASE NO. 17-23490-CIV-ALTONAGA/Goodman
home. (See id. ¶¶ 18–20). Gaviria began to video record the encounter and continued to
question them as to their purpose and authority for entry. (See id. ¶¶ 18, 21). Guerra stated he
did not need a “judicial order” to enter the home and instructed Gaviria to produce identification.
(Id. ¶ 22 (internal quotation marks omitted)).
Shortly thereafter, without provocation or threat of harm by Gaviria or his brother,
Guerra shot Gaviria with a Taser or other electronic-control device. (See id. ¶ 23). Gaviria’s
body was given three different discharges of an electric current. (See id.). Guerra and Alvarez
then used “unnecessary physical force” to restrain and handcuff Gaviria. (Id. ¶ 24). Guerra
punched Gaviria as he was on the ground; while Alvarez kicked Gaviria’s midsection, placed her
boot on his chest and neck, and forcibly placed Gaviria in handcuffs with Guerra’s assistance.
(See id. ¶¶ 25–26). Gaviria did not resist the officers with violence or otherwise. (See id. ¶ 27).
Once questioned by other Miami-Dade police officers about the incident, Guerra and
Alvarez misrepresented numerous factual details, and falsely stated: when they arrived at
Gaviria’s home they overheard loud noise emanating from inside; Gaviria instantly became irate
when he came into contact with the officers; Gaviria appeared to be under the influence of
alcohol; Gaviria had bloodshot eyes, slurred speech, and an odor of alcohol; Gaviria was
belligerent and pushed Guerra onto his back; and Gaviria mounted Guerra necessitating Alvarez
to strike Gaviria’s head. (See id. ¶ 28). Alvarez and Guerra “colluded and/or conspired together
to fabricate their own version of events” prior to their respective depositions on August 29, 2016
and October 10, 2016 as part of the state court criminal case brought against Gaviria. (Id. ¶ 29

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(citing Deposition of Jennifer Alvarez [ECF No. 30-1]; Deposition of Francisco Guerra [ECF
No. 30-2]1)).
In contrast to Guerra and Alvarez’s testimony, police officer Manuel Machado, while
transporting Gaviria to jail, observed: Gaviria was calm; he was cooperative; he did not resist in
any way; he did not seem unbalanced; and he did not have any odor of alcohol. (See id. ¶ 30).
Additionally, Alvarez and Guerra presented conflicting accounts in their sworn testimony:
Guerra claims Gaviria pushed him into Alvarez, but Alvarez denies that happening; Guerra
claims Gaviria had a criminal violation at the time he attempted to take him into custody, but
Alvarez denies that; Guerra claims Gaviria used violence toward him prior to attempting to take
him into custody, but Alvarez denies that; and Guerra claims Gaviria invited him into the home,
but Alvarez said there was no invitation. (See id. ¶ 31).
Guerra and Alvarez “colluded and/or conspired to unlawfully gain access to Gaviria[] and
his brother’s cellular phones to locate the video recordings to destroy them.” (Id. ¶ 32 (alteration
added)). “Other officers were involved in the attempt to unlawfully acquire access to Gaviria’s
cell phone.” (Id.).
Detective Alain Rodriguez brought the phone to Joel Tavio, a digital forensics examiner
with the Miami-Dade Police Department, to download the videos from the phone. (See id. ¶ 33).
Gaviria gave Guerra, Alvarez, and other MDPD officers the passcode to his phone after the
officers falsely told him he was “legally required to provide the passcode” and stated they
needed to obtain the videos on the phone “quickly.” (Id. (internal quotation marks omitted)).
Rodriguez claimed there was consent for the search of the phone, but Gaviria asserts it was
“obtained under fraudulent pretenses.” (Id.). Once Guerra and Alvarez accessed the phone
The deposition transcripts were intended to be attached to the Amended Complaint, but “were
mistakenly not included on eFiling.” (Notice of Filing [ECF No. 30]). The Court treats the transcripts as
incorporated into the Amended Complaint for purpose of ruling on this Motion.
1

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using Gaviria’s fraudulently obtained passcode, they deleted the video footage taken by Gaviria.
(See id. ¶ 45). Gaviria did not discover the officers’ destruction of evidence until he was
released from custody, but he was able to retrieve the videos because they were uploaded to
iCloud prior to their deletion by Guerra and Alvarez. (See id.).
The MDPD had a “pattern, policy and custom” to “fraudulently attempt to obtain
consent, and to quickly act upon the consent before it is uncovered.” (Id. ¶ 34). Tavio indicated
consent cases were a “priority” in the MDPD office because the consent may later be revoked.
(Id.).
Guerra and Alvarez also attempted to alter the crime scene to create the appearance of a
struggle with Gaviria. (See id. ¶ 35). As part of an effort to cover up their violations of
Gaviria’s civil rights, they took alcoholic beverage containers and threw them around Gaviria’s
living room, damaged a piece of electronic equipment on the wall, and broke Gaviria’s coffee
table. (See id.).
According to Gaviria, the County “routinely fails to punish officers who commit clear
civil rights violations as part of its longstanding widespread deliberately indifferent custom,
habit, practice and/or policy of granting officers a ‘free-pass’ for improper conduct.” (Id. ¶ 36).
Guerra and Alvarez’s actions violating Gaviria’s civil rights occurred “pursuant to the
preexisting and ongoing deliberately indifferent official custom, practice, decision, policy,
training, and supervision of the . . . County acting under the color of state law.” (Id. ¶ 37
(alteration added)).

The County has encouraged, tolerated, ratified, and acquiesced in a

dangerous environment of police brutality by: failing to conduct sufficient training or supervision
with respect to the constitutional limitations on the use of force; failing to adequately punish
unconstitutional uses of force; tolerating the use of unconstitutional force; failing to properly or

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neutrally investigate citizen complaints of excessive force; and tolerating, encouraging, and
permitting collusive statements by involved officers in such situations. (See id. ¶ 38).
The County and the MDPD have a longstanding and widespread custom, habit, practice,
or policy to find no fault with police conduct “as long as any story is given by police, regardless
of how incredible.” (Id. ¶ 40). The Division of Internal Affairs routinely ignores complaints of
excessive force and collusion between acting officers (see id. ¶ 41), and fails to pursue
inconsistencies in officer or witness accounts (see id. ¶ 42). The MDPD’s failure to thoroughly
investigate claims leads to a heightened risk MDPD officers will use force excessively, as there
is no danger of retribution or punishment. (See id. ¶ 43). Plaintiff alleges “[u]pon information
and belief . . . other members of the public have been hurt by at least some of the same officers
who have been the subject of citizen complaints both prior to April 21, 2016 and thereafter.” (Id.
¶ 44 (alterations added)).
The County was a “policymaker[]” for the MDPD (id. ¶ 75 (alteration added)); and “was
charged with the responsibility of adopting and implementing rules, policies, practices, customs
and procedures for the proper and efficient maintenance, supervision, and control of MDPD
Officers” (id. ¶ 76). The County had a duty to “exercise reasonable care in hiring, training, and
retaining safe and competent employees.” (Id. ¶ 77). The County “failed to adequately train or
otherwise supervise and direct” the MDPD and its officers concerning the use of excessive force
in police encounters (id. ¶ 78); even though it was “on notice” of a history of widespread abuse
and of a well-settled policy, practice, and custom of MDPD officers committing “extreme and
reckless actions” (id. ¶ 79). Although both Guerra and Alvarez had “reports of excessive use of
force incidents,” the County ratified and condoned their unlawful behavior, resulting in Gaviria’s
subsequent injuries. (Id. ¶¶ 83–84).

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The Amended Complaint contains eight counts: a claim under 42 U.S.C. section 1983 for
excessive force in violation of the Fourth and Fourteenth Amendments against Guerra and
Alvarez (“Count I”); a claim under 42 U.S.C. sections 1981 and 1983 for deliberately indifferent
policies, practices, customs, training and supervision in violation of the Fourth and Fourteenth
Amendments against the County (“Count II”); a claim under section 1983 for unlawful entry and
search of a home in violation of the Fourth Amendment against Guerra and Alvarez (“Count
III”); a claim under section 1983 for unlawful entry and search of a cellular phone in violation of
the Fourth Amendment against Guerra and Alvarez (“Count IV”); a claim under section 1983 for
false arrest and false imprisonment in violation of the Fourth and Fourteenth Amendments
against Guerra and Alvarez (“Count V”); a malicious prosecution claim against Guerra and
Alvarez (“Count VI”); a battery claim against Guerra and Alvarez (“Count VII”); and a battery
claim against the County (“Count VIII”). (See generally id.).
Defendants move to dismiss Counts II, IV, and VIII under Federal Rule of Civil
Procedure 12(b)(6) for failure to state claims for relief. (See generally Mot.). Defendants argue
Count II should be dismissed because Plaintiff fails to identify an official or unofficial County
policy linked to his injuries, and fails to allege a final policymaker for the County. (See id. 3–6).
Defendants argue Count IV fails to state a claim for illegal search of Plaintiff’s cell phone
against Alvarez and Guerra because Plaintiff admits he consented to the search and fails to
properly allege the consent was obtained fraudulently, and because Plaintiff does not allege
Alvarez and Guerra actually possessed his cell phone. (See id. 6–7). Finally, Defendants
contend Count VIII should be dismissed because Plaintiff fails to state a battery claim against the
County, as the County is not liable for malicious tortious acts by its police officers under Florida
law. (See id. 7–8).

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II.

LEGAL STANDARDS

Rule 8(a) requires a pleading contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although this pleading standard
“does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(alteration added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings
must contain “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (alteration added) (quoting Twombly, 550 U.S. at 570).

Indeed, “only a

complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679 (citing
Twombly, 550 U.S. at 556). To meet this plausibility standard, a plaintiff must “plead[] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556).
When a plaintiff alleges fraud or mistake, he must “state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). A plaintiff must allege: “(1)
precisely what statements were made in what documents or oral representations or what
omissions were made, and (2) the time and place of each such statement and the person
responsible for making (or, in the case of omissions, not making) same, and (3) the content of
such statements and the manner in which they misled the plaintiff, and (4) what the defendants
obtained as a consequence of the fraud.” Holguin v. Celebrity Cruises, Inc., No. 10-20215-CIV,
2010 WL 1837808, at *2 (S.D. Fla. May 4, 2010) (internal quotation marks omitted) (quoting

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Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)). The purpose of Rule
9(b)’s particularity requirement is to “alert[] defendants to the precise misconduct with which
they are charged and protect[] defendants against spurious charges of immoral and fraudulent
behavior.” Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988) (citations and
internal quotation marks omitted; alterations added). “Rule 9(b) applies by its plain language to
all averments of fraud, whether they are part of a claim of fraud or not.” Lone Star Ladies Inv.
Club v. Schlotzsky’s Inc., 238 F.3d 363, 368 (5th Cir. 2001) (footnote call number omitted); see
also Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1278 (11th Cir. 2006) (holding
plaintiffs must plead non-fraud claims with particularity when those claims are based on
defendants’ fraudulent conduct).
In addressing a Rule 12(b)(6) motion, the Court considers the allegations of the
complaint, exhibits attached or incorporated by reference, and exhibits attached to the motion to
dismiss if they are central to Plaintiff’s claim and undisputed. See Day v. Taylor, 400 F.3d 1272,
1276 (11th Cir. 2005); Space Coast Credit Union v. Merrill Lynch, Pierce, Fenner & Smith Inc.,
295 F.R.D. 540, 546 n.4 (S.D. Fla. 2013).
III.
A.

ANALYSIS

Count II

Defendants argue Plaintiff fails to state a claim against the County in Count II because he
fails to allege his constitutional violations were caused by an officially promulgated County
policy or an unofficial custom or practice of the County shown through the repeated acts of a
final policymaker. (See Mot. 3–6).

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1.

Policy or Custom

Ordinarily, a county may only be sued under section 1983 when a plaintiff’s injuries are
caused by an official policy of the county. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978).

Thus, a plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused the

plaintiff’s injury.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997) (citation omitted).
A plaintiff “has two methods by which to establish a county’s policy: either (1) an officially
promulgated county policy or (2) an unofficial custom or practice of the county shown through
the repeated acts of a final policymaker for the county.” Grech v. Clayton Cty., 335 F.3d 1326,
1329 (11th Cir. 2003) (citations omitted). “Under either avenue, a plaintiff . . . must identify
those officials who speak with final policymaking authority for [the county] concerning the act
alleged to have caused the particular constitutional violation in issue.” Id. at 1330 (alterations
added).
Plaintiff does not rest his claim on an officially promulgated policy that led to his
injuries; instead he alleges the County has an unofficial custom or practice of failing to
investigate – and thereby condoning – excessive force on civilians committed by MDPD officers.
(See Am. Compl. ¶¶ 38–44, 80–81; see also Resp. 3–4). However, Plaintiff does not sufficiently
identify an official with final policymaking authority whose “repeated acts” demonstrate the
existence of the alleged unofficial custom. Grech, 335 F.3d at 1329.
Confusingly, Plaintiff alleges the County “was . . . [a] policymaker[] for [the] MDPD”
(Am. Compl. ¶ 75 (alterations added)), but also states the County “both exercised and delegated
its municipal final decision making power to the Director of [the] MDPD and others” (id. ¶ 7
(alteration added)). According to Plaintiff, these allegations are sufficient because he identifies
the Director of the MDPD as the responsible policymaker. (See Resp. 3). The Court disagrees.

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Numerous cases in this District have held the director of the MDPD is not a final
policymaker for Miami-Dade County for purposes of supporting a Monell claim because
“[p]olicymaking authority is not conferred by the mere delegation of authority to a subordinate to
exercise discretion.” Buzzi v. Gomez, 62 F. Supp. 2d 1344, 1359 (S.D. Fla. 1999) (alteration
added) (citing Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 1989)); see also Wilson ex rel. Estate
of Wilson v. Miami-Dade Cty., No. 04-23250-CIV, 2005 WL 3597737, at *8–9 (S.D. Fla. Sept.
19, 2005) (the plaintiff did not sufficiently allege a policymaker for Miami-Dade County where
the plaintiff identified the head of the MDPD as the County’s policymaker because “final
policymaking authority for Miami-Dade County rests with the Board of County Commissioners
or the County Manager”); Diaz-Martinez v. Miami-Dade Cty., No. 07-20914-CIV, 2009 WL
2970468, at *12 (S.D. Fla. Sept. 10, 2009) (“Plaintiff alleges in his Third Amended Complaint
that at all times relevant to this action, ‘the final policymakers for the MDPD included, without
limitation, the Police Chief and the Mayor of the County.’ . . . [T]hese allegations are incorrect
and fail to correctly identify the final policy makers for the County.” (alterations added; citations
and footnote call number omitted)).

As Plaintiff has failed to plausibly allege a final

policymaker for the County, he cannot bring a Monell claim premised on an unofficial custom.
Moreover, Plaintiff’s allegation of an unofficial custom has a further deficiency. “To
establish the existence of a custom, the plaintiff must show a longstanding and widespread
practice.” Marantes v. Miami-Dade Cty., 649 F. App’x 665, 672 (11th Cir. 2016) (internal
quotation marks omitted) (quoting Craig v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011)).
Thus, “[a] single incident of a constitutional violation is insufficient to prove a policy or custom
even when the incident involves several employees of the municipality.” Craig, 643 F.3d at
1311 (alteration added).

Rather, “considerably more proof than [a] single incident [is]

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CASE NO. 17-23490-CIV-ALTONAGA/Goodman
necessary.” Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) (alterations added); see also
Marantes, 649 F. App’x at 672.
Plaintiff fails to allege a widespread practice of excessive force by MDPD officers as
evidenced by multiple prior incidents. Plaintiff’s only references to incidents of excessive force
separate from the incident at issue are vague allegations Guerra and Alvarez “ha[ve] a history of
reports of excessive use of force incidents causing injuries and violations of citizens’ rights, of
which Miami-Dade County was aware,” and “ha[ve] a propensity for misconduct, including
excessive use of force against members of the public.” (Am. Compl. ¶¶ 83–84 (alterations
added)).
These allegations fall well short of demonstrating the use of excessive force by MDPD
officers “constitute[s] the sort of occurrence that is obvious, flagrant, rampant and of continued
duration that would establish a causal connection between actions of the supervising official and
the alleged constitutional violation.” Whitaker v. Miami-Dade Cty., 126 F. Supp. 3d 1313, 1321
(S.D. Fla. 2015) (alteration added; internal quotation marks omitted) (quoting Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1990)) (dismissing Monell claim where the plaintiffs alleged
MDPD officers had been involved in four shootings during a nine-month span two years prior to
the plaintiff having been shot by police, but had not “offered any description of a prior incident
involving a relevant constitutional violation”); see also Marantes, 649 F. App’x at 673 (“[E]ven
broadly construing the amended complaint, [the plaintiff] has cited only two incidents of alleged
excessive force — his arrest and a homicide involving the same set of officers who arrested him.
These allegations do not show that the County had a longstanding and widespread practice of
encouraging excessive force.” (alterations added; internal quotation marks and citations

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CASE NO. 17-23490-CIV-ALTONAGA/Goodman
omitted)). Thus, even had Plaintiff plausibly alleged a final policymaker for the County, his
Monell claim premised on an unofficial custom of excessive force would still be insufficient.
2.

Failure to Train

In lieu of alleging a policy or custom, a plaintiff may invoke the narrower “failure to
train” theory of liability, although the circumstances giving rise to such liability are quite limited:
a plaintiff must allege facts demonstrating “deliberate indifference to the rights of persons with
whom the [municipal employees] come into contact.” City of Canton v. Harris, 489 U.S. 378,
388 (1989) (alteration added; footnote call number omitted). To show “deliberate indifference,”
a plaintiff must allege facts showing “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) (citations omitted).
The Eleventh Circuit “repeatedly has held that without notice of a need to train or
supervise in a particular area, a municipality is not liable as a matter of law for any failure to
train and supervise.” Id. at 1351 (footnote call number omitted). Indeed, “[w]ithout notice that a
course of training is deficient in a particular respect, decisionmakers can hardly be said to have
deliberately chosen a training program that will cause violations of constitutional rights.”
Connick v. Thompson, 563 U.S. 51, 62 (2011) (alteration added). Additionally, the deficient
training of one officer is not sufficient to meet this standard; rather the deficiency must be
widespread and closely related to the plaintiff’s injury. See City of Canton, 489 U.S. at 390–91.
A claim of deliberate indifference premised on a failure to train or supervise usually
requires a showing of “a widespread pattern of similar constitutional violations by untrained
employees.” Mingo v. City of Mobile, 592 F. App’x 793, 799 (11th Cir. 2014). “Prior incidents .
. . must involve facts substantially similar to those at hand in order to be relevant to a deliberate-

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indifference claim.” Shehada v. Tavss, 965 F. Supp. 2d 1358, 1374 (S.D. Fla. 2013) (alteration
added) (citing Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005); Gold, 151
F.3d at 1351).
Here — although Plaintiff fails to address the issue in his Response (see generally Resp.)
— the Amended Complaint appears to assert the County is liable for failure to train or supervise
MDPD officers (see, e.g., Am. Compl. ¶ 78 (“Miami-Dade County, with deliberate indifference
as to the possibility of Gaviria’s injuries, failed to adequately train or otherwise supervise and
direct MDPD and its Officers concerning the rights of the citizens they encounter in their
duties.”)). Still, as mentioned, Plaintiff fails to adequately allege prior widespread abuses similar
to the actions taken by Guerra and Alvarez during the incident in question. For the same reason
the Amended Complaint fails to adequately allege a pattern of abuse sufficient to show an
unofficial custom, Plaintiff fails to allege facts sufficient to demonstrate a pattern of violations
that establish deliberate indifference to a need to train or supervise. See Whitaker, 126 F. Supp.
3d at 1324.
While “[a] pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train,”
Connick, 563 U.S. at 62 (alteration added) (quoting Bd. of Cty. Comm’rs, 520 U.S. at 409), “the
Supreme Court has ‘hypothesized’ that ‘in a narrow range of circumstances,’ a municipality may
be liable under [s]ection 1983 when a single incident is the ‘obvious’ consequence of a failure to
provide specific training,” Whitaker, 126 F. Supp. 3d at 1324 (alteration added) (quoting
Connick, 563 U.S. at 62).
Neither the Supreme Court nor the Eleventh Circuit has ever applied the single-incident
liability exception. The Fifth Circuit has upheld a jury verdict based on this theory of liability,

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see Brown v. Bryan Cty., 219 F.3d 450, 465 (5th Cir. 2000), but only where the evidence at trial
“showed the County to have a policy of providing no training itself for its regular officers and
reserve deputies,” id. at 455 (emphasis added), and “the jury reasonably could have found that
[the police officer who harmed the plaintiff] remained, essentially, unsupervised,” id. at 463
(alteration added). Later Fifth Circuit cases have limited Bryan County to its unique facts. See
Whitaker, 126 F. Supp. 3d at 1326 (citing cases).
Plaintiff does not come close to alleging facts similar to those shown at trial in Bryan
County and accordingly is not entitled to proceed under a theory of single-incident liability.
While Plaintiff alleges the County “failed to adequately train or otherwise supervise and direct
MDPD and its Officers” (Am. Compl. ¶ 78), and “[f]ail[ed] to conduct sufficient training or
supervision with respect to the constitutional limitations on the use of force” (id. ¶ 38(a)
(alterations added); see also id. ¶ 39), as well as that Guerra and Alvarez were “not counseled on
correction” of their prior uses of excessive force on citizens (id. ¶¶ 83–84), the Amended
Complaint does not state the County provided no training to its police officers or that Guerra and
Alvarez were essentially unsupervised (see generally id.). Single-incident liability does not
apply to Plaintiff’s claims as stated. See Chappell v. City of Clanton, No. 2:17-CV-370, 2017
WL 4079721, at *7 (M.D. Ala. Sept. 14, 2017) (dismissing claim for municipal liability
premised on failure to train where the plaintiff pled only the “legal conclusion[]” the county “did
not adequately train its police officers to employ safe, reasonable and necessary techniques;”
alleged “no actual facts suggesting that there was an obvious but unmet need for training;” and
did “little, if anything, to tie the constitutional deprivation alleged . . . to a specific lack of
training” (alterations added; footnote call number, internal quotation marks, and citation
omitted)).

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As Plaintiff has failed to sufficiently allege an official or unofficial policy of excessive
force or a failure to train, the Monell claim against the County is dismissed.
B.

Count IV

Defendants contend Plaintiff’s claim against Guerra and Alvarez for the illegal search of
his cell phone must be dismissed because he fails to allege the officers actually possessed the cell
phone, and because he fails to sufficiently plead with particularity he was fraudulently induced
into turning the phone over for inspection. (See Mot. 6–7).
To Defendants’ first point, Plaintiff correctly argues he does, in fact, allege Guerra and
Alvarez possessed his cell phone. (See Resp. 5). Specifically, in Paragraph 45 of the Amended
Complaint, Plaintiff states “Alvarez and Guerra fraudulently obtained access to Gaviria’s phone
by instructing him that he had to turn over the passcode for the phone” and “[o]nce they had
access, they deleted the video footage taken by Gaviria.” (Am. Compl. ¶ 45 (alteration added)).
In Paragraph 32, Plaintiff elaborates Guerra and Alvarez, as well as “[o]ther officers” were
involved in the attempt to access Plaintiff’s cell phone and delete his video footage. (Id. ¶ 32
(alteration added)).
In the Reply, Defendants state this allegation in the Amended Complaint is contradicted
by Plaintiff’s testimony, given at his criminal trial. (See Reply 2–4).2 At his criminal trial, when
Defendants attach an excerpt of the transcript of Plaintiff’s testimony to their Reply. (See Reply, Ex. A,
Gaviria Trial Transcript [ECF No. 31]). While the Court is ordinarily bound by the four corners of the
complaint and its attachments in ruling on a Rule 12(b)(6) motion to dismiss, it may consider extraneous
exhibits if they are central to Plaintiff’s claim and their authenticity is undisputed. See Day v. Taylor, 400
F.3d 1272, 1276 (11th Cir. 2005). Plaintiff’s criminal case is central to his Amended Complaint, as he
summarizes Alvarez and Guerra’s deposition testimony given in that case (see Am. Compl. ¶¶ 29–31),
incorporates those transcripts as exhibits to the Amended Complaint (see Alvarez Dep. Tr.; Guerra Dep.
Tr.), and the authenticity of the Trial Transcript is not reasonably in dispute. The Court thus finds it
appropriate to take the fact Gaviria made these statements at his criminal trial into consideration in ruling
on the Motion to Dismiss. See U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811–12 & n.4 (11th
Cir. 2015) (the district court properly considered “the transcript of a hearing in another case involving a
defendant clinic in state court” on a Rule 12(b)(6) motion because “[c]ourts may take judicial notice of
publicly filed documents, such as those in state court litigation” (alteration added; citations omitted));
2

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asked whether Alvarez or Guerra saw him on his phone in the police cruiser, Gaviria testified
“[e]verything . . . was so calm when they took me to the car that they never searched me. They
never searched anything[] that I had . . . with me.” (Gaviria Trial Tr. 60:16–18 (alterations
added)). Gaviria stated he handed his cell phone over voluntarily (see id. 60:19–21, 61:1–3), to
Detective Rodriguez (see id. 61:4–6).
The Court disagrees with Defendants’ characterization of this testimony as squarely
contrary to the Amended Complaint’s allegations. It is indeed possible for Gaviria to have
handed his phone to Detective Rodriguez, as he testified, and also for Alvarez and Guerra to
have defrauded Gaviria into giving them his password, accessed the phone, and deleted its
footage — as presently alleged. Similarly, Guerra and Alvarez’s failure to search Gaviria in the
police cruiser does not mean the two officers did not at some other point handle or search the cell
phone. As the Amended Complaint has not been directly contradicted, the Court credits its
allegations as true in deciding the Motion, and will not dismiss Count IV on the basis Plaintiff
fails to allege Guerra and Alvarez actually possessed the cell phone. See Dusek v. JPMorgan
Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (“In deciding a Rule 12(b)(6) motion to
dismiss, the court must accept all factual allegations in a complaint as true and take them in the
light most favorable to plaintiff.” (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

Rossy v. Lupkin, No. 3:13-CV-396-J-34PDB, 2017 WL 2172062, at *2–3 (M.D. Fla. May 17, 2017)
(considering documents from the plaintiff’s state court criminal proceedings attached to a motion dismiss
because “they are public records not capable of reasonable dispute” and “the prior state court proceedings
are central to [the plaintiff’s] claims” (alteration added; citations omitted)); but see Garcia v. Kashi Co.,
43 F. Supp. 3d 1359, 1370 (S.D. Fla. 2014) (declining to take judicial notice of “copies of statements
purportedly given before Congress” because they “are not adjudicative facts” (internal quotation marks
omitted) (quoting Randolph v. J.M. Smucker Co., No. 13-80581-CIV, 2014 WL 1018007, at *2 (S.D. Fla.
Mar. 14, 2014))); F.D.I.C. v. Aultman, No. 2:13-CV-58-FTM-38UAM, 2013 WL 3357854, at *5 (M.D.
Fla. July 3, 2013) (declining to take judicial notice of statements made in criminal cases “for the truth of
the matters asserted therein”).

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Defendants next briefly argue the Count fails because Plaintiff’s allegation he was
defrauded into voluntarily turning over his phone does not satisfy Rule 9(b)’s heightened
pleading requirement. (See Mot. 7). Defendants do not explain in their Motion or Reply how
Plaintiff’s allegations are deficient; instead they merely state in conclusory fashion Plaintiff
“must satisfy Rule 9’s heightened pleading requirement” and “[t]his, Plaintiff fails to do.” (Id.
(alteration added)).
Nevertheless, Plaintiff states his allegations comply with Rule 9(b) and directs the Court
to the relevant paragraphs of the Amended Complaint describing how Guerra and Alvarez, in
conjunction with other officers, fraudulently induced Gaviria into giving them access to his cell
phone. (See Resp. 5–6 (citing Am. Compl. ¶¶ 32–34, 45)). Taken together, the allegations in the
Amended Complaint set forth: on April 21, 2016 (see Am. Compl. 1), while Gaviria was in
custody (see id. ¶ 45), Guerra and Alvarez falsely stated to Gaviria “he was legally required to
provide the passcode to the phone” in order “to obtain the videos on Gaviria’s phone” (id. ¶ 33);
and “[o]nce they had access, they deleted the video footage taken by Gaviria” (id. ¶ 45 (alteration
added)). These allegations — presenting the who, what, when ,where, and why — meet Rule
9(b)’s pleading standard, see Holguin, 2010 WL 1837808, at *2, and with their scant briefing of
this issue, Defendants fail to meet their burden of persuading the Court otherwise. Count IV
accordingly survives.
C.

Count VIII

Defendants seek dismissal of Plaintiff’s cause of action for battery against the County
because the Amended Complaint describes malicious conduct by Guerra and Alvarez, and thus
the County is immune from suit under Florida law. (See Mot. 7–8). Pursuant to Florida’s
limited sovereign immunity waiver, found in Section 768.28, Florida Statutes:

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The state or its subdivisions shall not be liable in tort for the acts or omissions of
an officer, employee, or agent committed while acting outside the course and
scope of her or his employment or committed in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard of human rights,
safety, or property.
Fla. Stat. § 768.28(9)(a).

Defendants point out “Plaintiff’s allegations that the Officers

‘viciously attacked Gaviria, who was not resisting the officers’ efforts with . . . resistance’ . . .
and that Plaintiff was tased, punched, and kicked with absolutely no ‘provocation or threat of
harm’ by Plaintiff . . . can only be read to be alleging malicious conduct.” (Mot. 7 (alterations
added) (quoting Am. Compl. ¶ 27; then quoting id. ¶ 23)). According to Defendants, these
allegations bely Plaintiff’s assertion in his pleading Guerra and Alvarez acted without a
“malicious purpose” (Am. Compl. ¶ 131), because “[a]s a matter of common sense, a vicious
attack by a police officer on someone who has not provoked or threatened the officer in any way
is, ipso facto, ‘malicious’ (Reply 4 (alteration added); see also Mot. 7). Defendants contend
since the officers acted maliciously, the County — a subdivision of the state — is immune from
suit. (See Mot. 7–8).
According to Plaintiff, Count VIII is “a negligence count” pled in the alternative. (Resp.
6). Plaintiff states the allegations may support a finding Guerra and Alvarez acted negligently —
not maliciously — and the Court should allow alternative theories of section 1983 claims and
negligence claims to proceed at the motion to dismiss stage. (See id. 6–7). Plaintiff cites two
cases — Reyes v. City of Miami Beach, No. 07-22680-CIV, 2007 WL 4199606 (S.D. Fla. Nov.
26, 2007), and Simmons v. RIC Bradshaw, No. 14-80425-CIV, 2014 WL 11456548 (S.D. Fla.
Dec. 31, 2014) — for the proposition he can proceed under alternate theories of liability (see
Resp. 6–7).

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First, the Court notes Plaintiff does not allege Guerra and Alvarez’s use of force on him
was negligent; rather Plaintiff describes Guerra and Alvarez’s actions as “intentional[], but not in
bad faith or with malicious purpose.” (Am. Compl. ¶ 131 (alteration added)). Second, both
Simmons and Reyes are distinguishable.
In Simmons, the court denied summary judgment and allowed a state law battery claim to
proceed against both a deputy sheriff who shot an individual and the county sheriff in his official
capacity, even though the deputy, but not the sheriff, would be liable if the deputy’s actions were
willful and wanton, while the sheriff, but not the deputy, would be liable if the deputy’s actions
were not willful and wanton. 2014 WL 11456548, at *20. Finding “genuine issues of material
fact” existed, the court noted:
If the jury were to credit [the plaintiff’s] version of events, it could very well find
that [the deputy] acted in bad faith and . . . [the sheriff] would be immune. . . .
But if the jury were to instead credit [the deputy’s] version of events, it could find
that his actions were not undertaken in bad faith.
Id. (alterations added).
Unlike Simmons, which addressed a motion for summary judgment, the Court accepts
Plaintiff’s allegations as true. See Dusek, 832 F.3d at 1246. Plaintiff specifically alleges Guerra
and Alvarez “misrepresent[ed]” the factual details of the incident to other MDPD officers (see
Am. Compl. ¶ 28 (alteration added)), and their respective versions of events as stated in their
depositions in Gaviria’s criminal case were “fabricate[d]” (id. ¶ 29 (alteration added)) and
“contradictory” (id. ¶ 31; see also id. ¶ 30).
The Court cannot discount Guerra and Alvarez’s testimony as false — as the Amended
Complaint alleges the testimony is — and at the same time rely on the testimony to support an
alternative theory Guerra and Alvarez did not act with malice. In contrast to Simmons, there is

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only one account — Plaintiff’s — the Court may credit as true to determine whether the alternate
theories of liability can proceed, not two. Simmons is accordingly inapposite.
Reyes is also distinguishable. In that case, the court declined to dismiss claims for assault
and battery against the City of Miami Beach pursuant to Section 768.28, Florida Statutes, where
the plaintiffs’ “factual allegations could support a cause of action against the City for assault and
battery based on the excessive, but not malicious, actions of its employees, such that the question
should not be taken away from the jury” at the motion to dismiss stage. 2007 WL 4199606, at
*3. The plaintiffs in that case alleged:
the Officers approached them in a park to address whether their dog was on a
leash, used excessive force in the course of stopping them and handcuffing and
arresting Reyes, and ultimately issued both Plaintiffs a citation (which they knew
to be false) for “dog running at large, no leash.”
Id. The court reasoned:
Accepting Plaintiffs’ account as true and drawing all reasonable inferences in
their favor . . . the Court cannot say that such allegations could only describe acts
outside the scope of the Officers’ employment or acts “committed in bad faith or
with malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.”
Id. (alteration added; emphasis in original).
Finally, the court stated the alleged conduct of the officers did not “rise to the same level
of severity” as that of the officers in Dukes v. Miami-Dade Cty., No. 05-22665-CIV (S.D. Fla.
July 5, 2006) — where the court held allegations of officers shooting a citizen in the chest,
slamming him on the ground, and stomping on him could only suggest malice or bad faith. Id. at
*4.

Nor was it similar to the officers’ actions in Sanchez v. Miami-Dade Cty., No. 06-21717-

CIV, 2007 WL 1746190 (S.D. Fla. Mar. 28, 2007), where the court held the County was immune
from suit where the plaintiff alleged the officers handcuffed the plaintiff, instigated a fight
between him and another citizen, and abandoned the plaintiff far from home. See id. at *4.

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In contrast to Reyes, the allegations concerning Guerra and Alvarez’s conduct “can only
equate with the kind of intentional, malicious misconduct by a state employee that does not give
rise to municipal liability under Florida’s waiver of sovereign immunity statute.” Max Junior
Printemps v. Miami Dade Cty., No. 1:17-CV-20268, 2017 WL 2555631, at *3 (S.D. Fla. June 9,
2017) (internal quotation marks and citations omitted). Gaviria alleges “without provocation or
threat of harm by Gaviria or his brother, Guerra shot Gaviria with a Taser” or other electroniccontrol device, giving him three different discharges of an electric current (Am. Compl. ¶ 23);
“Guerra struck Gaviria repeatedly with a closed fist when he was on the ground” (id. ¶ 26); and
“Guerra and Alvarez viciously attacked Gaviria, who was not resisting the officers’ efforts with .
. . violence” (id. ¶ 27 (alteration added)). Drawing all reasonable inferences in Plaintiff’s favor,
the Court cannot construe these allegations as describing anything less than acts “committed in
bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property.” Fla. Sta. § 768.28(9)(a); see also Gregory v. Miami-Dade
Cty., No. 16-17093, 2017 WL 5483158, at *13 (11th Cir. Nov. 15, 2017) (“Accepting as true the
facts alleged in the complaint . . . . no version of the facts pled in this particular case support a
claim that Officer Perez acted without wanton and willful disregard of Gregory’s rights.
Sovereign immunity therefore attaches to the claims against Miami-Dade.” (alteration added)).
The County is therefore immune from suit for the battery claim, and so the claim is dismissed.
IV.

CONCLUSION

For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 26] is GRANTED in part
and DENIED in part. Counts II and VIII of the Amended Complaint [ECF No. 25] are
DISMISSED. The remaining causes of action proceed.

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CASE NO. 17-23490-CIV-ALTONAGA/Goodman
DONE AND ORDERED in Miami, Florida, this 19th day of April, 2018.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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