Casado v. MIAMI DADE COUNTY et al
Filing
64
ORDER granting 33 Motion to Dismiss for Failure to State a Claim; granting 34 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge John J. O'Sullivan on 10/23/2018. See attached document for full details. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-22491-CIV-O’SULLIVAN
[CONSENT]
EPHRAIM CASADO,
Plaintiff,
vs.
MIAMI-DADE COUNTY, et al.,
Defendants.
/
ORDER
THIS MATTER is before the Court on the Defendant Miami-Dade County’s
Motion to Dismiss (DE# 33, 8/9/18) and the Defendants Oliver Mayorga and William
Baskins’ Motion to Dismiss (DE# 34, 8/9/18). Having carefully considered the motions,
responses and replies, it is
ORDERED AND ADJUDGED that the Defendant Miami-Dade County’s Motion to
Dismiss (DE# 33, 8/9/18) is GRANTED. It is further
ORDERED AND ADJUDGED that the Defendants Oliver Mayorga and William
Baskins’ Motion to Dismiss (DE# 34, 8/9/18) is GRANTED.
BACKGROUND
The plaintiff filed an Amended Complaint that contains a total of eleven counts:
Count I - false arrest and false imprisonment against the officers under Florida law;
Count II - malicious prosecution under 28 U.S.C. §1983 against the County; Count III negligent hiring or retention under 28 U.S.C. §1983 against the County; Count IV -
negligent failure to train and supervise under 42 U.S.C. §1983 against the County;
Count V - false arrest/false imprisonment claim deprivation of civil rights under 42
U.S.C. Sections1983 and 1988 against the officers; Count VI - deprivation of civil rights
by excessive use of force in violation of 42 U.S.C. §1983 against the County; Count VII
- excessive force claim cognizable under 42 U.S.C. §1983 against the County; Count
VIII - battery against the County; Count IX - intentional infliction of emotional distress
against the officers and the County; Count X - civil conspiracy against the officers and
the County; and Count XI - gross negligence against the County.
The plaintiff’s claims in the Amended Complaint arise out of a traffic stop by two
Miami-Dade County police detectives (hereinafter “Officers”) that was purportedly due
to the plaintiff allegedly throwing bottles out of his car window. The body camera videos
show that the plaintiff exited his car with his hands up as ordered by the detectives.
Detective Mayorga’s body camera video shows that Detective Baskins approached the
plaintiff and attempted to slam the plaintiff into the hood of his car. Video also shows
Detective Baskins punching the plaintiff in the face repeatedly before Detective Baskins
turned off his body camera. Sometime later Detective Baskins body camera video
reveals that the camera was placed on the hood of the plaintiff’s car. The verbal
exchange between Detective Baskins and the plaintiff is also recorded on the video and
includes Detective Baskins responding, “What the f**k are you going to do about it?,”
after the plaintiff asked for his badge number and questioned being punched in the
face. The detectives arrested and charged the plaintiff with multiple offenses which
were nolle prossed.
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DISCUSSION
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
Miami-Dade County (hereinafter “the County”) seeks to dismiss the following eight
counts of the Amended Complaint: Count I (state law false arrest and imprisonment),
Count III (negligent hiring or retention under 42 U.S.C. § 1983), Count IV (negligent
failure to train and supervise under 42 U.S.C. § 1983), Count VI (excessive force under
42 U.S.C. § 1983), Count VIII (state law battery), Count IX (state law intentional
infliction of emotional distress), Count X (state law civil conspiracy), and Count XI (
state law gross negligence).
The County moves to dismiss the Section 1983 claims (Counts III, IV and VI) on
the grounds that the allegations are conclusory and fail to satisfy the requirements to
allege municipal liability under Monell v. Dept. of Social Services, 98 S. Ct. 2018 (1978)
or Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The County further contends
that the plaintiff failed to identify a responsible County policymaker and plead sufficient
facts supporting a ratification theory of liability; and that the plaintiff failed to plead
sufficient facts to establish that a custom or policy was the moving force behind the
plaintiff’s alleged constitutional violation. The County moves to dismiss the remaining
state law claims as barred by Section 768.28(9)(a) of the Florida Statutes and/or
sovereign immunity because the alleged actions were malicious, in bad faith, or with
wanton and willful disregard of the plaintiff’s rights. Additionally, the state law false
arrest claim includes the state law battery claim, which cannot exist as a separate
claim. Finally, the County argues that the Amended Complaint is a shotgun pleading
that incorporates each prior allegation into the subsequent counts.
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The Officers seek dismissal of the plaintiff’s claims for excessive force
cognizable under 42 U.S.C. §1983 (Count VII); intentional infliction of emotional
distress (Count IX); and civil conspiracy (Count X). The Officers argue that the wellpled factual allegations of the Amended Complaint fail to state claims upon which relief
may be granted for intentional infliction of emotional distress (Count IX) and civil
conspiracy (Count X). Additionally, the Section 1983 excessive force claim (Count VII)
is subsumed in the Section 1983 false arrest claim (Count I) and cannot exist as an
independent cause of action.
The plaintiff filed responses to the County’s and the Officers’ respective motions
to dismiss, and the defendants filed their respective replies. Both motions to dismiss
are ripe.
I.
Legal Standards
A.
Motion to Dismiss
Under Rule 12(b)(c) of the Federal Rules of Civil Procedure, a court shall grant a
motion to dismiss where, based upon a dispositive issue of law, the factual allegations
of the complaint cannot support the asserted cause of action. Glover v. Liggett Group,
Inc., 459 F.3d 1304, 1308 (11th Cir. 2008); Fed. R. Civ. P. 12(b)(c). Indeed, “[f]actual
allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. The complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 570). In deciding a motion to
dismiss, the Court’s analysis is limited to the four corners of the plaintiff's complaint and
the attached exhibits. Grossman v. Nationsbank, 225 F.3d 1228, 1231 (11th Cir. 2000);
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Milburn v. U.S., 734 F.2d 762, 765 (11th Cir. 1984) (“Consideration of matters beyond
the complaint is improper in the context of a motion to dismiss ....”).
On a motion to dismiss, the Court must also accept the plaintiff's well pled facts
as true and construe the complaint in the light most favorable to the plaintiff. Twombly,
550 U.S. at 555. “[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A motion to dismiss a complaint should not be granted if the
factual allegations are “enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. A complaint will survive a motion to dismiss “even if it
appears that a recovery is very remote and unlikely.” Id. at 556.
The issue to be decided by the Court is not whether the plaintiff will ultimately
prevail, but “whether the claimant is entitled to offer evidence to support the claims.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v.
Scheuer, 468 U.S. 183 (1984); Taylor v. Ledbetter, 818 F.2d 791, 794 n.4 (11th Cir.
1987), cert. denied, 489 U.S. 1065 (1989). It is only “when on the basis of a dispositive
issue of law no construction of the factual allegations will support the cause of action
[that] dismissal of the complaint is appropriate.” Excess Risk Underwriters, Inc. v.
LaFayette Life Ins. Co., 208 F. Supp. 2d 1310, 1313 (S.D. Fla. 2002)(citing Marshall
County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.
1993)).
B.
Monell Claims
In Monell, the Supreme Court held that “a municipality cannot be held liable
under [48 U.S.C.] § 1983 on a respondeat superior theory.” Monell v. Dept. of Social
5
Services, 436 U.S. 658, 691 (1978). “[I]t is when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the government as an entity is
responsible under [section] 1983.” Id. at 694. “Local governing bodies ... can be sued
directly under [section] 1983 for monetary, declaratory, or injunctive 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.” Id. at 690. “[A]though the touchstone of the [section] 1983 action against a
government body is an allegation that official policy is responsible for a deprivation of
rights protected by the Constitution, local governments ... may be sued for constitutional
deprivations visited pursuant to governmental ‘custom’ even though such a custom has
not received formal approval....” Id. 690-91.
“[T]o impose [section] 1983 liability on a municipality, a plaintiff must show: (1)
that his constitutional rights were violated; (2) that the municipality had a custom or
policy that constituted deliberate indifference to that constitutional right; and (3) that the
policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004) (citing City of Canton, 489 U.S. 378, 388 (1989)).
A plaintiff may show a policy by identifying either 1) “an officially promulgated
[city] policy or 2) an unofficial custom or practice of the county shown through repeated
acts of a final policymaker of the county.” Grech v. Clayton County, Ga., 335 F.3d 1326,
1329-30 (11th Cir. 2003) (citing Monell, 436 U.S. at 690-91). “Most plaintiffs ... must
show that the county has a custom or practice of permitting [a particular constitutional
violation] and that the county’s custom or practice is the ‘moving force [behind] the
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constitutional violation.’” Id. at 1330 (footnote omitted) (quoting City of Canton v. Harris,
489 U.S. 378, 389 (1989) (alteration in original) (citing Monell, 436 U.S. at 694 and
Polk County v. Dodson, 454 U.S. 312, 326 (1981)).
II.
Plaintiff’s Claims of Section 1983 Violations (Counts III, IV and VI) against the
County Do Not Satisfy Monell or Twombly and Must Be Dismissed
Municipal liability under section 1983 is limited. Gold v. City of Miami, 151 F.3d
1346, 1350 (11th Cir. 1998). In Pembaur v. City of Cincinnati, the Supreme Court held
that “municipal liability under [section] 1983 attaches where–and only where–a
deliberate choice to follow a course of action is made from among various alternatives
by the official or officials responsible for establishing final policy with respect to the
subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
In Grech, the Eleventh Circuit held that “a plaintiff (1) must show that the local
government entity ... has authority and responsibility over the governmental function in
issue and (2) must identify those officials who speak with final policymaking authority for
that local governmental entity concerning the act alleged to have caused the particular
constitutional violation....” Grech, 335 F.3d at 1330.
In the present case, the Amended Complaint fails to identify an official policy, not
simply allege that one exists; fails to allege an unofficial policy or custom of violating
constitutional rights; fails to allege any other incidents of unconstitutional conduct and
thus, fails to plead sufficient facts to state a claim for violation of civil rights pursuant to
42 U.S.C. § 1983. See Grech, 335 F.3d at 1330 (11th Cir. 2003); see also Reyes v. City
of Miami Beach, No. 07-22680-CIV, 2008 WL 686958, *13 (S.D. Fla. March 13, 2008)
(Notwithstanding that the plaintiff identified a responsible city policymaker, the city
manager, the plaintiff “still fails to allege sufficient facts to suggest that she was injured
as a result of the City’s official policy or widespread custom.”). Although the plaintiff in
the present case identifies the mayor among a litany of other individuals and governing
bodies that are not the final policymaking authority of the County,1 the plaintiff’s
allegations are insufficient to state a Monell claim against the County. “[C]onclusory
allegations and unwarranted deductions of fact are not admitted as true in a motion to
dismiss.” South Florida Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 409 n.10 (11th Cir.
1996) (citation omitted).
The Amended Complaint does not identify an official policy as required by
Monell. In his response, the plaintiff implicitly concedes that he does not allege any
official policy under Monell. See Response at 7 (“For these reasons, Plaintiff has
sufficiently alleged an unofficial policy, custom, or practice.”). Instead, the plaintiff
argues that “[c]ity policy also may be implicated by the acts or individual policymaking
officials or by pervasive city custom.” Brown v. City of Ft. Lauderdale, 923 F.2d 1474,
1480 (11th Cir. 1991). The plaintiff alleges that the County “knew or should have
known” that the defendant officers “had a propensity” for unreasonable and excessive
force and violence as the plaintiff experienced and did “nothing to deter this behavior.”
Response at 6 (quoting Amended Complaint ¶ 68). The Amended Complaint is devoid
of any factual allegations of any prior incidents or the County’s alleged knowledge and
alleged failure to deter the conduct at issue. Neither the Supreme Court nor the
1
Before the County adopted the “Strong Mayor” system of government in 2007,
cases refer to the Board and the “County Manager” as the County’s final policymakers.
See Rosario v. Miami-Dade County, 490 F. Supp. 2d 1213, 1222 (S.D. Fla. 2007)
(explaining that “this Court has repeatedly recognized that ‘final policymaking authority
for Miami-Dade County rests with the Board of County Commissioners or the City
Manager”) (citations omitted).
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Eleventh Circuit has ever imposed municipal liability based on a single incident under
Monell. See Depew v. City of St. Marys, Georgia, 787 F.2d 1496, 1499 (11th Cir. 1986)
(“Normally random acts or isolated incidents are insufficient to establish a custom or
policy.”) (citation omitted); see also Whitaker v. Miami-Dade County, 126 F. Supp. 3d
1313, 1325 (S.D. Fla. 2015). In Whitaker, the court rejected the plaintiffs’ legal
conclusion that four isolated shootings were enough to constitute a custom or usage
with the force of law in the absence of a written law or express municipal policy. Id. at
1321.
In paragraph 72 of Count VI (Deprivation of Civil Rights by Use of Excessive
Force in Violation of 42 U.S.C. Section 1983), without identifying a single policy or other
incidents of excessive force by officers the plaintiff alleges “these patterns, and implied
or explicit policies have been ratified by the highest decision maker of the COUNTY’S
government leadership including the police, the chief, the mayor, city commissioners
and/or high officials within the police department itself or other departments.” Amended
Complaint ¶ 72 (DE# 24, 7/26/18). The plaintiff’s conclusory allegation does not supply
any facts to support the legal conclusions and thus, does not satisfy Monell or Twombly.
To impose liability against a municipality for an unconstitutional practice, the
plaintiff must allege a “pattern” of excessive force including specific facts of numerous
incidents demonstrating “‘a widespread practice that, although not authorized by written
law or express municipal policy, is ‘so permanent and well settled as to constitute a
“custom or usage”’ with the force of law.’” Whitaker v. Miami-Dade County, 126 F.
Supp. 3d 1313 (S.D. Fla. 2015) (quoting Brown, 923 F.2d at 1481) (quoting Praprotnik,
485 U.S. at 127)(quoting Adickes v. S.H Kress & Co., 398 U.S. 144, 167-68 (1970)).
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In his response to the County’s motion to dismiss, the plaintiff cites a number of
court actions filed against the County to show that a pattern exists. This is not sufficient.
In Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987), the Eleventh Circuit found
that the City of Atlanta lacked notice of misconduct notwithstanding that ten complaints
filed against the city involved a single police officer because the plaintiff “never
demonstrated that past complaints of police misconduct had any merit. Indeed, the
number of complaints bears no relation to their validity.” Brooks, 813 F.2d at 1193.
Similarly, in the present case, the Amended Complaint is devoid of factual allegations of
incidents other than the one that involved the plaintiff in this case as required by Monell
and Twomby.
Negligent hiring or retention is not actionable under Section 1983. Board of
County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 415 (1997)
(holding that the “County is not liable for [the sheriff’s] isolated decision to hire Burns
without adequate screening, because respondent has not demonstrated that his
decision reflected a conscious disregard for a high risk that Burns would use excessive
force in violation of respondent’s federally protected right.”); Shehada v. Tavss, 965 F.
Supp. 2d 1358, 1379 (S.D. Fla. 2013) (finding the plaintiffs’ “negligent-hiring-andretention claim barred by sovereign immunity and/or factually unsustainable”). However,
the Supreme Court has held that a municipality is subject to liability for failure to train
“only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S.
378, 388 (1989). As the plaintiff concedes in his response, municipal liability under
Section 1983 requires “ that the municipality had a custom or policy that constituted
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deliberate indifference to [the violation of a] constitutional right.” Response at 5 (DE#
38, 8/23/18) (citing McDowell, 392 F.3d at 1289). To establish “deliberate indifference,”
a plaintiff must allege facts that show “that the municipality knew of a need to train or
supervise and the municipality made a deliberate choice not to take any action.” See
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998); Whitaker, 126 F. Supp. 3d
at 1323. The Amended Complaint is devoid of factual allegations to support the
plaintiff’s conclusory allegations that the municipality “knew or should have known” of its
officers’ propensity to use excessive force in encounters with the public and “as a
matter of policy and practice with deliberate indifference failed to adequately discipline,
train or otherwise direct policy officers concerning the rights of citizens....” Amended
Complaint ¶¶ 68-70.
Because the plaintiff fails to allege facts to state a Monell claim against the
County, Counts III (negligent hiring or retention under 42 U.S.C. § 1983), IV (negligent
failure to train and supervise under 42 U.S.C. § 1983) and VI (deprivation of civil rights
by excessive use of force in violation of 42 U.S.C. § 1983) are dismissed without
prejudice.
III.
Sovereign Immunity Bars the State Law Claims against the County
The County seeks dismissal of Counts I (state law false arrest/false
imprisonment), VIII (state law battery), IX (state law intentional infliction of emotional
distress), X (civil conspiracy), and XI (gross negligence) on the ground that the state law
claims allege actions taken maliciously, in bad faith, or with wanton and willful disregard
for the plaintiff’s rights and are barred by Section 768.28(9)(a) and/or the doctrine of
sovereign immunity. Additionally, the state law battery claim falls within the claim for
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false arrest and cannot exist as an independent claim.
The County relies on Sub-section 768.28(9)(a) of the Florida Statutes, which
provides “governmental entities ... with sovereign immunity from suit when certain tort
causes of action are brought against them.” Rance v. Jenn, 2008 WL 5156675, * 5
(S.D. Fla. Dec. 9, 2008). Sub-section 768.28(9)(a) provides in pertinent part:
... 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).
“[B]ecause ‘[t]he entitlement is an immunity from suit rather than a mere defense
to liability, [the Supreme Court has] repeatedly ... stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502
U.S. 224, 227 (1991) (emphasis in original; other alterations omitted) (addressing
qualified immunity).
The plaintiff alleges that while defendant officers were acting “in the course and
scope of their duties as police officers” (Am. Complaint ¶¶ 30, 37), he was punched in
the face, that he was on the ground bleeding from his mouth, arrested without probable
cause, booked, fingerprinted, his body was searched, and he was charged with
resisting an officer with violence, criminal mischief and unlawful possession of
cannabis. More than four months later the State of Florida announced a nolle prose on
the case brought by the defendant officers because the defendant officers were “less
than truthful” about the events that occurred. Am. Complaint ¶ 32.
The Amended Complaint alleges that notwithstanding that the plaintiff exited his
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parked vehicle as ordered by the Officers without any resistance, he was slammed onto
the hood of his car, punched in the face repeatedly, and was on the ground bleeding
from his mouth. Amended Complaint ¶¶ 14-23. The Amended Complaint also alleges
that the arrest affidavit includes false statements, that an Officer turned off his body
camera, that in response to the plaintiff stating that “you just punched me all in my face”
Officer Baskins replied, “you’re f**king right I did” and later, in response to a request for
his badge number, stated “what the f**k are you going to do about it?” Id. at 18-24.
Florida courts have ruled that a governmental entity may not be held liable where
its employee’s actions were malicious, in bad faith, or showed reckless and wanton
disregard for human rights, safety, or property. See City of Fort Lauderdale v. Todaro,
632 So. 2d 655, 656-58 (Fla. 4th DCA 1994). Section 768.28(9)(a) will bar claims when
the allegations “connote [ ] conduct much more reprehensible and unacceptable than
mere intentional conduct” that involve conduct done in bad faith or in a willful and
wanton manner. Gregory v. Miami-Dade County, 86 F. Supp. 3d 1340, 1343 (S.D. Fla.
2015) (quoting Richardson v. City of Pompano Beach, 511 So. 2d 1121, 1123 (Fla. 4th
DCA 1987)).
1.
Count I: False Arrest/False Imprisonment and Count VIII: Battery
False arrest and battery claims are torts that are not inherently barred by Section
768.28(9)(a) as are claims for malicious prosecution, intentional infliction of emotional
distress and conspiracy. Many courts in this district have dismissed false arrest and
battery claims when factual allegations implicate the bar of Section 768.28(9)(a). See
Alicea v. Miami-Dade County, No. 13-21549-Bloom, DE# 95 (S.D. Fla. Oct. 25, 2014)
(Although the court acknowledged that the plaintiff’s “complaint skillfully avoids the
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words ‘malicious, bad faith or in reckless and wanton disregard for human rights, safety,
or property,” the court held that sovereign immunity barred the claim against the county
because the complaint alleged that the officer “made false statements and material
omissions” regarding the plaintiff’s arrest and “‘violently pummeled’ [the plaintiff] in the
head, face and torso [which was done] without reasonable suspicion or probable
cause.”); Mena v. Miami-Dade County, No. 14-20030-CIV, 2014 WL 3667806 (S.D. Fla.
July 22, 2014) (finding Section 768.28(9)(a) barred the claim against the county where
the factual allegations “that [the officers’] actions–pulling Mr. Mena out of the car,
throwing Mr. And Mrs. Mena, beating them, handcuffing them, and arresting them–can
only be characterized as actions ‘committed in bad faith or with malicious purpose’”)
Mena, 2014 WL 3667806, at *2.
Likewise, the factual allegations of repeatedly punching the plaintiff in the face,
slamming him on the hood of his car, arresting him without probable cause, and
fabricating evidence that are incorporated in the false arrest and battery claims (Counts
I and VIII) of the plaintiff’s Amended Complaint constitute conduct that can only be
described as ‘committed in bad faith or with malicious purpose.” Based on the factual
allegations in the present case, the claims for false arrest/false imprisonment and
battery against the County are barred under Section 768.28(9)(a). Counts I (false
arrest/false imprisonment) and VIII (battery) are dismissed with prejudice.
2.
Count IX: Intentional Infliction of Emotional Distress
The Eleventh Circuit has held that claims for intentional infliction of emotional
distress are barred by Section 768.28(9)(a). Weiland v. Palm Beach County Sheriff’s
Office, 792 F.3d 1313, 1330 (11th Cir. 2015) (“Fla. Stat. § 768.28(9)(a) ... bars claims for
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both intentional infliction of emotional distress and malicious prosecution.”) (citation
omitted). Count IX intentional infliction of emotional distress is dismissed with prejudice.
3.
Count X: Civil Conspiracy
Count X asserts a conspiracy claim based on the Officers’ agreement to
“fabricate evidence” and “maliciously prosecute” the plaintiff. Amended Complaint ¶¶
87-88. The plaintiff’s allegations of malice and bad faith implicate the bar of Section
768.28(9)(a) regarding the civil conspiracy claim. Additionally, Count X fails to allege
that the County agreed to conspire with the Officers to violate the plaintiff’s rights. As a
matter of Florida law, the County cannot conspire with its employees. See Lipsig v.
Ramlawi, 760 So. 2d 170, 180 (Fla. 3d DCA 2000). The County cannot be held liable
for its employees’ agreement to commit unlawful acts such as “fabricat[ing] evidence”
and “maliciously prosecuting” the plaintiff. See, Weiland 792 F.3d at 1330. Count X for
civil conspiracy is dismissed with prejudice.
4.
Count XI: Gross Negligence
The plaintiff’s gross negligence claim (Count XI) against the County also fails to
state a cause of action since negligent use of excessive force does not exist under
Florida law. The gist of the plaintiff’s gross negligence claim is that the County’s
“wanton disregard for proper training and supervision of [its] officers [to avoid the use of
excessive force] was the proximate cause of [the plaintiff’s] injuries and damages.”
Amended Complaint ¶ 91-93. “Florida courts have consistently and unambiguously
held that ‘it is not possible to have a cause of action for negligent use of excessive force
because there is no such thing as the negligent commission of an intentional tort.”
Secondo v. Campbell, 327 Fed. App’x 126, 131 (11th Cir. 2009) (unpublished) (citing
15
City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. 3d DCA 1996)). The battery and false
arrest constitute intentional torts.
The County enjoys sovereign immunity for its decisions regarding
implementation of training and supervisory policies. Cook ex rel. Estate of Tessier v.
Sheriff of Monroe County, 402 F.3d 1092, 1118-19 (11th Cir. 2005) (holding failure to
train and failure to supervise claims were barred by the doctrine of sovereign
immunity)(citing Kaisner and Henderson v. Bowden, 737 So. 2d 532, 537 (Fla. 1999))
“To find otherwise would amount to judicial intervention, by way of tort law, into the
fundamental decision making of the legislative and executive branches–a practice
against which the Florida courts have repeatedly cautioned.” Cook, 402 F.3d at 111819.
The gross negligence count alleges that the County acted with “wanton disregard
for proper training and supervision” and acted with “deliberate indifference ...and
without regard to [the plaintiff’s] rights and welfare.” Amended Complaint ¶¶ 91, 93.
Section 768.28(9)(a) bars municipal liability for 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. Stat. § 768.28(9)(a). The gross negligence claim (Count
XI) against the County is barred and dismissed with prejudice.
Counts I (state law false arrest/false imprisonment), VIII (state law battery), IX
(state law intentional infliction of emotional distress), X (civil conspiracy), and XI (gross
negligence) against the County are dismissed with prejudice.
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IV.
Excessive Force, Emotional Distress, and Civil Conspiracy Claims (Counts VII,
IX, and X) against Defendant Officers Fail to State a Cause of Action.
The Officers seek dismissal of Counts VII, IX and X. The Officers argue that the
well-pled factual allegations of the Amended Complaint fail to state claims upon which
relief may be granted for intentional infliction of emotional distress (Count IX) and civil
conspiracy (Count X). Additionally, the Section 1983 excessive force claim is
subsumed in the Section 1983 false arrest claim and cannot exist as an independent
cause of action.
A.
Count IX Fails to State a Cause of Action for Intentional Infliction of
Emotional Distress
To state a claim for intentional infliction of emotional distress under Florida law,
the plaintiff must allege that: “(1) the wrongdoer’s conduct was intentional or reckless;
that is, he intended his behavior when he knew or should have known that emotional
distress would likely result; (2) the conduct was outrageous; that is, as to go beyond all
bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized
community; (3) the conduct caused emotional distress; and (4) the emotional distress
was severe.” Williams v. City of Minneola, 619 So. 2d 983, 986 (Fla. 5th DCA 1993)
(citation omitted). “Whether conduct is sufficiently ‘outrageous’ to state a claim for
[intentional infliction of emotional distress] is a question of law for the Court to decide.”
Garcia v. Carnival Corp. 838 F. Supp. 2d 1334, 1339 (S.D. Fla. 2012) (citation
omitted).2 “While there is no exhaustive or concrete list of what constitutes ‘outrageous
2
In Garcia, this Court found that allegations that “crew members kicked and
punched [the plaintiff], threw her to the ground multiple times, handcuffed her in a
‘harmful manner,’ dragged her across the floor while she was handcuffed, and then
confined her to her cabin ... and preventing her from otherwise leaving her cabin until
17
conduct,’ Florida common law has evolved an extremely high standard.” Merrick v.
Radisson Hotels Int’l, Inc., No. 06DV01591 T24TGW, 2007 WL 1576361, at *4 (M.D.
Fla. May 30, 2007) (citing Golden v. Complete Holdings, Inc., 818 F. Supp. 1495, 1499
(M.D. Fla. 1993); Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985).
“[C]ourts uphold claims of intentional infliction of emotional distress only in ‘extremely
rare circumstances.’” Triana v. Diaz, 12-21309-CIV, 2014 WL 5319800, at *7 (S.D. Fla.
Oct. 16, 2014).
Count IX alleges that the Officers’ conduct “was outrageous and beyond all
bounds of decency as to be regarded as odious and utterly intolerable in a civilized
community.” Amended Complaint ¶ 84. However, the factual allegations of the
Amended Complaint do not support this legal conclusion and do not state a claim for
intentional infliction of emotional distress. Additionally, the allegations of the Amended
Complaint do not meet the fourth requirement of alleging that the damage from the
conduct is “severe.” “In regards to the severity of the emotional distress, ‘[t]he law
intervenes only where the distress inflicted is so severe that no reasonable man could
be expected to endure it.’” Baker v. Lightsey, 2:11-CV-14290-KMM, 2012 WL 1574649,
at *5 (S.D. Fla. May 3, 2012) (quoting Frias v. Demings, 823 F. Supp. 2d 1279, 1289
(M.D. Fla. 2011) (citing Restatement (Second) of Torts § 46, cmt. j. (1965)).
In the present case, the plaintiff has not stated a claim for intentional infliction of
emotional distress because the plaintiff has not met the high standard that required him
the following day” did not meet the extremely high standard for intentional infliction of
emotional distress. Garcia v. Carnival Corp. 838 F. Supp. 2d at 1336, 1339 (“hold[ing]
the conduct Garcia alleges does not constitute the ‘outrageous’ conduct necessary to
sustain a claim for [intentional infliction of emotional distress]”).
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to show that the Officers’ conduct was “beyond all bounds of decency” or that he
suffered “severe distress” as required under Florida law. The allegations in the
Amended Complaint fail to qualify as extreme and outrageous conduct to maintain a
claim for intentional infliction of emotional distress. Accordingly, Count IX is dismissed
without prejudice.
B.
Count X Fails to State a Cause of Action for Civil Conspiracy
Count X alleges that the Officers conspired to “fabricate evidence” and
“maliciously prosecute” the plaintiff. Amended Complaint ¶ 87. The Amended
Complaint fails to allege facts to support the conclusory allegation.
“To plead civil conspiracy, a plaintiff must allege ‘(a) an agreement between two
or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c)
the doing of some overt act in pursuance of the conspiracy, and (d) damages to the
plaintiff as a result of the acts done under the conspiracy.’” Alhassid v. Bank of Am.,
N.A., 60 F. Supp. 3d 1302, 1316 (S.D. Fla. 2014) (quoting Cordell Consultant, Inc.
Money Purchase Plan & Trust v. Abbott, 561 Fed. App’x 882, 886 (11th Cir.
2014)(unpublished) (quoting Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA
1997)). The heightened pleading requirements of Rule 9(b) of the Federal Rules of
Civil Procedure apply to civil conspiracy claims and require specific factual allegations
regarding the time, place and manner of the conspiracy. Fed. R. Civ. P. 9(b); See Am.
United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1067 (11th Cir. 2007).
“In civil rights and conspiracy actions, conclusory, vague, and general allegations
of conspiracy may justify dismissal of a complaint.” Kearson v. S. Bell Tel. & Tel. Co.,
763 F.2d 405, 407 (11th Cir. 1985) (citation omitted). The Amended Complaint alleges
19
that the Officers “agreed to fabricate evidence in order to batter, falsely arrest, and
maliciously prosecute [the plaintiff].” Amended Complaint ¶ 87. This conclusory
allegation fails to state a cause of action for civil conspiracy. Count X for civil
conspiracy against the Officers is dismissed without prejudice.
C.
Plaintiff’s Claim for Excessive Force under Section 1983 (Count VII)
Cannot Exist Independently Because It Is Subsumed in the False Arrest
Claim
In the Eleventh Circuit, “a claim that any force in an illegal stop or arrest is
excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive
force claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000)(citing Williamson
v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995) (finding damages for false arrest included
damages for use of force to effect that arrest); Bashir v. Rockdale County, Georgia, 445
F.3d 1322, 1332 (11th Cir. 2006) (explaining that “[a]n excessive force claim evokes the
Fourth Amendment’s protection against the use of an unreasonable quantum of force
(i.e., non-de minimus force unreasonably disproportionate to the need) in effecting an
otherwise lawful arrest”) (emphasis supplied). Like the plaintiff in Bashir, the plaintiff’s
excessive force claim “is entirely derivative of, and is subsumed within, the [false] arrest
claim.” Id. The plaintiff’s excessive force claim (Count VII) is dismissed with prejudice.
CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED that the Defendant
Miami-Dade County’s Motion to Dismiss (DE# 33, 8/9/18) is GRANTED. Counts I (state
law false arrest/false imprisonment), VIII (state law battery), IX (state law intentional
infliction of emotional distress), X (civil conspiracy), and XI (gross negligence) against
the County are dismissed with prejudice. Counts III (negligent hiring or retention under
20
42 U.S.C. § 1983), IV (negligent failure to train and supervise under 42 U.S.C. § 1983)
and VI (deprivation of civil rights by excessive use of force in violation of 42 U.S.C. §
1983) are dismissed without prejudice. It is further
ORDERED AND ADJUDGED that the Defendants Oliver Mayorga and William
Baskins’ Motion to Dismiss (DE# 34, 8/9/18) is GRANTED. Count VII (excessive force
under Section 1983) is DISMISSED with prejudice; Counts IX (conspiracy) and X
(intentional infliction of emotional distress) are dismissed without prejudice. It is further
ORDERED AND ADJUDGED that the plaintiff has leave to file a second
amended complaint with fourteen (14) days from the date of this Order.
DONE AND ORDERED in Chambers at Miami, Florida this 23rd day of October,
2018.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
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