Wade et al v. DeJesus et al
Filing
72
ORDER denying 24 Motion to Dismiss; granting in part and denying in part 23 Motion to Dismiss. Signed by Judge Robert N. Scola, Jr. on 11/21/2014. (rss)
United States District Court
for the
Southern District of Florida
Rosemarie C. Wade and Christine R. )
Estep, Plaintiffs
)
)
v.
)
)
)
Town of Jupiter, Frank Kitzerow,
Aaron Scanlan, Edward M.
)
)
DeJesus, and Edwards Air
Enterprise, LLC, Defendant
)
Civil Action No. 14-80253-Civ-Scola
Order On Governmental Defendants’ Motions To Dismiss
According to Rosemarie Wade and Christine Estep, this civil-rights
lawsuit began with a bad breakup. In 2008, Estep and Edward DeJesus began
dating.
Soon after, Estep began working at DeJesus’s air-conditioner
company, Edwards Air Enterprise. Then Estep’s mother, Rosemarie Wade,
joined the company as a bookkeeper and officer manager for Edwards Air
Enterprise. By 2012, Estep and DeJesus were engaged to be married. But
during the summer of 2012, their relationship came to a bitter end.
Seeking vengeance because of the breakup, DeJesus contacted the
Jupiter Police Department in August 2012 and falsely accused Wade and Estep
of embezzling money from Edwards Air Enterprise.
The Jupiter Police
Department deployed Officer Aaron Scanlan to Edwards Air Enterprise to
investigate the allegations.
According to the Amended Complaint, upon
meeting, DeJesus and Scanlan formed a wicked alliance.
In exchange for falsely charging and prosecuting Wade and Estep for
embezzlement, DeJesus agreed to hire one of Scanlan’s friends to work at
Edwards Air Enterprise and also offered “economic benefit[s]” to Scanlan. (Am.
Compl. ¶30, ECF No. 20.) To become the sole investigator of these false
allegations, Scanlan took advantage of a policy established by the Town of
Jupiter and Frank Kitzerow, the Chief of the Town’s Police Department. That
policy failed to provide any standard to determine if Scanlan was competent to
undertake a financial investigation of this nature. It also failed to properly
train or supervise Scanlan in carrying out the investigation. In short, the
policy “failed to contain any meaningful provision or practice intended to
safeguard the constitutionally protected rights of the public” and allowed
Scanlan to “conceal the baseless foundation of the investigation.” (Am. Compl.
¶39, 41.)
In February 2013, based on Scanlan’s false affidavits and fraudulently
produced evidence, both Wade and Estep were arrested. Scanlan let DeJesus
know when the arrests were going to be made so that DeJesus could be present
outside Estep’s home to watch his nefarious plan unfold. Although Scanlan
presented the case against Wade and Estep to the State Attorney’s Office, the
criminal charges against Wade and Estep were ultimately dismissed in May
2013.
Of course, this is just one side of this story—Wade and Estep’s side. But
when “evaluating the sufficiency of a complaint, a court must accept the well
pleaded facts as true and resolve them in the light most favorable to the
plaintiff.” Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1998). The
Town of Jupiter and Kitzerow have both moved to dismiss the claims against
them. For the reasons explained below, the Town of Jupiter’s motion to
dismiss is granted in part and denied in part. Kitzerow’s motion to dismiss is
denied.
1. Count 2 (False Arrest against Scanlan and the Town of Jupiter)
The Town of Jupiter insists that it is immune from this claim because
Wade and Estep have alleged that Scanlan was acting outside of the scope of
his employment, and that he was acting maliciously and willfully disregarded
the rights of Wade and Estep. (Mot. Dismiss 3, ECF No. 23.) Citing Florida
Statute Section 768.28(9), the Town of Jupiter argues that it cannot be liable
for Scanlan’s actions if he was acting outside of the scope of his employment.
Wade and Estep explain that they are alleging in the alternative Scanlan’s
liability to the extent that he was acting outside of this scope of his
employment, and the Town of Jupiter’s liability to the extent that Scanlan was
acting within the scope of his employment.
“A party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense or in separate
ones. If a party makes alternative statements, the pleading is sufficient if any
one of them is sufficient.” Fed. R. Civ. P. 8(d)(2). “A party may state as many
separate claims or defenses as it has, regardless of consistency.” Fed. R. Civ.
P. 8(d)(3). “Pleadings must be construed so as to do justice.” Fed. R. Civ. P.
8(e).
Under Florida sovereign-immunity law, a municipality can be held liable
for the acts of a police officer (if the officer was acting within the scope of her
employment) with no individual liability on the officer. McGhee v. Volusia
Cnty., 679 So. 2d 729, 733 (Fla. 1996). Or a police officer can be held
individually liable (if she was acting outside of the scope of her employment)
with no liability on the municipality. Id. But a municipality and an individual
police officer cannot both be liable in the same case since the facts giving rise
to the liability of one of them would negate liability as to the other. Id. Usually
the jury settles the issue of whether the municipality or the individual officer is
liable by deciding whether the officer acted in bad faith, with a malicious
purpose, or with a willful disregard of the plaintiff’s rights—in other words, the
jury decides whether the officer acted outside of the scope of her employment.
Id.
In count 2, Wade and Estep have set out a single claim for false arrest.
They have alleged liability against Scanlan individually and, alternatively,
against the Town of Jupiter. In doing so, they are recognizing the legal reality
that they can recover against Scanlan or the Town of Jupiter—but not both. In
other words, they are asserting alternative statements in a single claim. This is
precisely what Rule 8(d)(2) permits.
When a party makes alternative
statements, “the pleading is sufficient if any one of them is sufficient.” Fed. R.
Civ. P. 8(d)(2). Since the complaint alleges that Scanlan was acting within the
scope of his employment, the Town of Jupiter cannot invoke sovereign
immunity at this time. It is usually the role of a jury to determine whether an
officer was within or outside of the scope of his employment; although in
“extreme” cases a court may decide the issue at the summary-judgment stage
of the case. McGhee, 679 So. 2d at 733. The Town of Jupiter has not cited to
any caselaw that suggests an alternative reading of Rule 8. The Court will not
dismiss Wade and Estep’s claim for false arrest (count 2).
2. Count 6 (Negligent Supervision against the Town of Jupiter)
“Negligent supervision of an agent has long been recognized as a basis
for tort liability in Florida.” Dep’t of Envtl. Prot. v. Hardy, 907 So. 2d 655, 660
(Fla. 5th DCA 2005). “Negligent supervision occurs when during the course of
employment, the employer becomes aware or should have become aware of
problems with an employee that indicated his unfitness, and the employer fails
to take further actions such as investigation, discharge, or reassignment.”
The Town of Jupiter first argues that “[i]f the Court were to grant the
motion to dismiss of Scanlan for failure to state a cause of action, then
dismissal of this claim against the Town would be required.” (Mot. Dismiss 5,
ECF No. 23.) The problem with this argument is that Scanlan has not moved
to dismiss the claims against him; he answered the complaint. (See Answer,
ECF No. 32.) This argument obviously fails.
The Town of Jupiter next argues that “[b]y its very nature, an action for
negligent retention involves acts which are not within the course and scope of
employment.” (Mot. Dismiss 5, ECF No. 23 (quoting Watson v. City of Hialeah,
552 So. 2d 1146, 1149 (Fla. 3d DCA 1989).) The problem with this argument
is that Wade and Estep are asserting a claim of negligent supervision, not
negligent retention. The Town of Jupiter’s argument is not directed at the
specific claim plead by Wade and Estep, and the Town has not presented any
argument why the case law cited should apply to negligent supervision claim.
This argument also fails.
Next, the Town of Jupiter asserts that it is immune from tort liability in
this context under the doctrine of sovereign immunity. The Town reasons that
it can only be liable under a negligent-supervision theory if Scanlan is liable for
some other tort. (Mot. Dismiss 4–6, ECF No. 23 (citing Tex. Skaggs, Inc. v.
Joannides, 372 So. 2d 985, 987 (Fla. 2d DCA 1979)).) The Town concludes
that since all the claims against Scanlan would necessarily involve a finding of
bad faith, malicious purpose, or willful disregard of human rights, that it would
be immune from liability by virtue of Florida’s sovereign-immunity-waiver
statute. (Mot. Dismiss 6, ECF No. 23 (citing Fla. Stat. § 768.28(9)(a)).) This
argument fails for two reasons.
First, an employer’s liability for negligent supervision is not linked to the
wrongdoing of an employee in the sense argued by the Town of Jupiter. It is
true, as a matter of logic and common sense, that if an employee has done
nothing wrong, the employer cannot be liable for having negligently supervised
him or her. This is because if the employee did not harm the plaintiff, then the
employer did not breach its duty to supervise the employee. But if an employee
is liable for some tort, then it may be that the employer breached its duty to
supervise that employee. A municipal employer can be liable even if the
employee committed the tort with malice since it is not the employee’s conduct
that the municipal employer is being held liable for, but rather the conduct of
the employee’s supervisor. In other words, Florida’s sovereign-immunitywaiver statue does not provide sovereign immunity to the municipal employer
in this context because it is not the malicious action of the employee that is the
focus; it is the negligent action of that employee’s supervisor. Cf. Dep’t of Envtl.
Prot. v. Hardy, 907 So. 2d 655, 660 (Fla. 5th DCA 2005) (“Florida courts have
also recognized [the tort of negligent supervision] in cases involving the state or
one of its agencies as a defendant.”).
Second, even if the Town of Jupiter could claim sovereign immunity
based on the nature of the wrongdoing alleged against Scanlan, one of the torts
alleged against Scanlan is false arrest. The tort of false arrest is the unlawful,
unreasonable, and unwarranted restraint of a person against his or her will.
Spears v. Albertson's, Inc., 848 So. 2d 1176, 1178 (Fla. 1st DCA 2003). The
Town of Jupiter has not cited to any caselaw for the proposition that the tort of
false arrest requires a showing of malicious purpose or willful disregard of
human rights. To the contrary, Florida law does not appear to require that the
arresting officer have a malicious purpose or willful disregard of human rights.
Cf. Lester v. City of Tavares, 603 So. 2d 18 (Fla. 5th DCA 1992) (“There is no
sovereign immunity for false arrest.”).
The Town of Jupiter’s final argument against the negligent-supervision
claim is that this tort falls under the discretionary-function exception to
Florida’s limited waiver of statutory immunity. Wade and Estep respond that
“[w]hile perhaps inartfully worded, what Plaintiffs are in fact asserting is not a
considered decision and policy governing how to supervise police
investigations, which would be discretionary in nature, but rather a practice by
default of complete abdication of oversight of investigations.” (Resp. 7, ECF No.
40.)
Municipalities within Florida are “generally immune from tort liability” by
virtue of sovereign immunity. Mosby v. Harrell, 909 So. 2d 323, 326 (Fla. 1st
DCA 2005). Although Florida has partially waived this immunity, there are
exceptions to the waiver. Id. at 326–327. One exception to Florida’s waiver of
sovereign immunity—known as the discretionary-function exception—specifies
that “policy-making, planning, or judgmental governmental functions which are
inherent in the act of governing” cannot serve as the basis of governmental tort
liability. Seguine v. City of Miami, 627 So. 2d 14, 16 (Fla. 3d DCA 1993). “This
exception is based on the separation of powers doctrine.” Id. “On the other
hand, governmental acts which attempt to implement policy at the operational
level do not fall within this discretionary act exception.” Id. at 17.
In this case, Wade and Estep challenge the Town of Jupiter’s “policy . . .
that allowed [Scanlan] to become the sole and/or primary investigator for the
criminal investigation of the allegations made by DeJesus and Edwards Air
Enterprise.” (Am. Compl. ¶35, ECF No. 20.) According to Wade and Estep, the
Town’s policy allowed Scanlan to “become the final arbiter of the course and
scope of the investigation.” (Id. ¶36.) When pressed, Wade and Estep attempt
to clarify the specific conduct that they are complaining about: “[W]hat
Plaintiffs are in fact asserting is . . . a practice by default of complete
abdication of oversight of investigations.” (Resp. 7, ECF No. 40.)
Decisions regarding “the assignment of employees” to carry out the
mission of a governmental agency fall under the discretionary-function
exception because “the assignment of employees requires the exercise of
evaluation, judgment, and expertise on the part of the [supervisors of the
governmental agency], who have the duty to assign the employees.” Lee v.
Dep’t of Health & Rehab. Servs., 698 So. 2d 1194, 1199 (Fla. 1997). But an
employee’s failure to file appropriate reports after witnessing a rule violation or
an employee’s failure to take the appropriate remedial steps to prevent future
rule violations are operational in nature, and do not fall within the
discretionary-function exception. Id. Put another way, a challenge to the
“implementation or operation” of a municipality’s police-training program may
be actionable as an operational decision. Lewis v. City of St. Petersburg, 260
F.3d 1260, 1266 (11th Cir. 2001). But a challenge to a municipality’s “decision
regarding how to train its officers and what subject matter to include in the
training” is clearly barred by the discretionary-function exception. Id.
Wade and Estep’s claim against the Town of Jupiter for negligent
supervision is barred under the doctrine of sovereign immunity by virtue of the
discretionary-function exception. Their allegations are plainly directed at the
reasonableness of the Town’s alleged policy of allowing individual officers
significant leeway and independence in investigating cases. This is precisely
the type of basic policy decision that the discretionary-function exception
protects. The Town of Jupiter’s decision about how much supervision to
employ over officer investigations is akin to the decision in Lee about how and
where to assign employees to carry out the agency’s mission. Both decisions
require the exercise of evaluation, judgment, and expertise on the part of the
supervisors and Town officials who have the duty of carrying out the particular
mission.
The Court will dismiss Wade and Estep’s claim for negligent
supervision (count 6). Since the Court is dismissing this count, it need not
address the Town of Jupiter’s request to strike the claim for attorneys’ fees
under this claim.
3. Counts 7 & 8 (Section 1983 claims against the Town of Jupiter)
The Town of Jupiter urges the Court to dismiss Wade and Estep’s civilrights claims because they failed to “allege repeated acts of a final policy maker
to establish liability under 42 U.S.C. § 1983.” (Mot. Dismiss 10, ECF 23.) The
Town argues that the “amended complaint contains mere labels and
conclusions” and that Wade and Estep “do not allege that [the] Town had a
custom or policy of making its police officers arrest individuals without
probable cause” or “that [the] Town showed a deliberate indifference to the
rights of those with whom its officers interacted.” (Id. at 10–11.) Wade and
Estep respond, explaining that the policy they are challenging is the Town’s
practice of “allowing any officer, no matter how unskilled, to investigate any
case he or she might wish” without any consideration of “the competency of the
officer to conduct the investigation properly,” and without providing any
oversight or supervision of the officer’s investigation or actions. (Resp. 7–12,
ECF No. 40.) They argue that their pleading is not conclusory; that they have
clearly identified “the policy with sufficient specificity to allow the Town to
prepare its defense.” (Id. at 11.) They also point out that, under some
circumstances, a municipality may be liable “even for a single incident, where
it maintained a policy, practice, or custom that allowed its police officers to
conduct specific investigations with deliberate indifference to whether those
officers had the minimal skills to perform the task legally.” (Id. at 10.)
If a person working for a state or local government violates another’s
constitutional rights, that person is responsible for any injury caused by the
constitutional violation. 42 U.S.C. § 1983. But a municipality cannot be held
vicariously liable “for the wrongful actions of its police officers.” Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). “Instead, a municipality may be
held liable for the actions of a police officer only when municipal ‘official policy’
causes a constitutional violation.” Id. (quoting Monell v. Dept. of Social Servs.,
436 U.S. 658, 691 (1978)).
A municipality may be liable under Section 1983 for failing to adequately
train its police officers. City of Canton, Ohio v. Harris, 489 U.S. 378, 388
(1989). But “[o]nly where a municipality’s failure to train its employees in a
relevant respect evidences a ‘deliberate indifference’ to the rights of its
inhabitants can such a shortcoming be properly thought of as a city ‘policy or
custom’ that is actionable under [Section] 1983.” Vineyard v. Cnty. of Murray,
Ga., 990 F.2d 1207, 1212 (11th Cir. 1993) (quoting City of Canton, Ohio v.
Harris, 489 U.S. at 389).
“To establish a deliberate or conscious choice or such 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, 151 F.3d at 1350
(quotation marks omitted). Usually, a plaintiff must allege and prove a pattern
of prior incidents involving similar constitutional violations to put the
municipality on notice of a need to train its police officers. Id. at 1351–52. But
even “a single constitutional violation may result in municipal liability when
there is sufficient independent proof that the moving force of the violation was
a municipal policy or custom.” Vineyard, 990 F.2d at 1212; see also Bruce v.
Beary, 498 F.3d 1232, 1249 (11th Cir. 2007). In the Vineyard case, the
plaintiff presented evidence that the County had “inadequate policies of
supervision, discipline and training of [sheriff] deputies . . . and that these
policies demonstrated the deliberate indifference of the County to the rights of
arrestees to be free from [constitutional violations at the hands of] the County’s
deputies.” Vineyard, 990 F.2d at 1212. Although the plaintiff in the Vineyard
case did not present evidence of prior similar incidents, Gold, 151 F.3d at
1353, he did present evidence that because of the County’s decision to not
have even the most basic policies in effect to “measure police behavior and to
address problems when they arise” that police abuses were certain to occur.
Vineyard, 990 F.2d at 1213.
In this case, Wade and Estep have alleged that the Town of Jupiter failed
to have adequate policies in place to ensure the proper assignment, training,
and supervision over its police officers when officers were engaged in criminal
investigations. (Am. Compl. ¶¶106–107, 113–114, ECF No. 20.) Wade and
Estep have also alleged that the Town was deliberately indifferent to the rights
of people who may come into contact with the Town’s police officers by failing
to have adequate supervision policies in place. In other words, Wade and
Estep are complaining that the Town’s deficient policies directly led to Scanlan
wrongly arresting both of them. These allegations are sufficient to state viable
claims against the Town of Jupiter under Section 1983. The allegations here
are similar to the claims in Vineyard, where the plaintiff claimed that the
county had “inadequate policies for training, supervision, and discipline.”
Vineyard, 990 F.2d at 1212. Although it seems unlikely that the Town of
Jupiter has “no policies and procedures manual,” as was the situation in
Vineyard, it is not appropriate to dismiss a case just because “actual proof of [a
plaintiff’s allegations] is improbable . . . [or] that a recovery is very remote and
unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The Court will
not dismiss Wade and Estep’s Section 1983 claims (counts 7 & 8).
4. Frank Kitzerow’s Motion to Dismiss (Count 9)
Kitzerow asserts that the Court must dismiss Wade and Estep’s claim
against him because the claim impermissibly seeks to hold him vicariously
liable for the actions of Scanlan. (Mot. Dismiss 2–3, ECF No. 24.) He also
argues that the claim against him should be dismissed as being duplicative of
the claim against the Town of Jupiter because he is being sued in his official
capacity. (Id. at 5.) Wade and Estep respond that they are not asserting
vicarious liability against Kitzerow. Instead, they claim that Kitzerow’s decision
to establish a policy that allowed the Jupiter Police Department to assign an
officer to an investigation without any consideration of the officer’s training,
experience, or ability caused the harm suffered by Wade and Estep in the form
of the violation of their civil rights. (Resp. 4–5, ECF No. 41; Am. Compl. ¶¶119–
126, ECF No. 20.)
“It is well established that § 1983 claims may not be brought against
supervisory officials on the basis of vicarious liability or respondeat superior.”
Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). “[S]upervisors are
liable under § 1983 either when the supervisor personally participates in the
alleged constitutional violation or when there is a causal connection between
actions of the supervising official and the alleged constitutional violation.” Id.
(quotation marks omitted).
“This requisite causal connection can be
established . . . when a supervisor’s improper custom or policy results in
deliberate indifference to constitutional rights.” Doe v. Sch. Bd. of Broward
Cnty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2010) (quotation marks omitted);
see also Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991) (“[L]iability
may be imposed due to the existence of an improper policy or from the absence
of a policy.”). A policymaker’s decision to have “inadequate policies” can
demonstrate the policymaker’s “deliberate indifference” to the constitutional
rights of people coming into contact with police officers who are affected by the
inadequate policies. See Vineyard v. Cnty. Of Murray, Ga., 990 F.2d 1207,
1212 (11th Cir. 1993). This is because, in some circumstances, it is obvious
that not having a certain policy in place will lead to police officers violating
people’s constitutional rights. See id. at 1213; cf. also Am. Fed’n of Labor &
Cong. of Indus. Orgs. v. City of Miami, FL, 637 F.3d 1178, 1189 (11th Cir. 2011)
(“In some cases, the need for training is so obvious that deliberate indifference
can be established even without an earlier violation or pattern of abuse.”).
Wade and Estep allege that Kitzerow was the “final policymaker” with
respect to the policy that allowed Scanlan to act as the sole investigator and
final arbiter in the investigation that led to their arrests. (Am. Compl. ¶¶120–
124.) They assert that Kitzerow’s policy “contained no meaningful or effective
provision, or guidelines to ensure the competency of Scanlan, or any other
officer, to investigate crimes similar to those presented here, and was thus
deliberately indifferent to the constitutional rights of the citizens suspected or
accused of such crimes.” (Id. ¶124.) Finally, they allege that Kitzerow’s policy
regarding the “assignment of the untrained and incompetent Scanlan” as the
detective to investigate the allegations against them directly caused the alleged
constitutional violations.
The Plaintiffs in this case have sufficiently alleged a claim under Section
1983 against Kitzerow. They are not merely asserting that he is liable because
he was Scanlan’s supervisor. Instead, they have plainly alleged that there is a
causal connection between Kitzerow’s actions (creating the allegedly inadequate
policy) and the alleged constitutional violation (Scanlan violating their civil
rights). At the pleading stage, this is enough. Wade and Estep’s allegations
that Kitzerow is liable for failing to supervise Scanlan are also viable since
Kitzerow may be liable if he knew that Scanlan, as an untrained and
unqualified officer, would act unlawfully and failed to stop him from doing so.
Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1236 (11th Cir. 2010).
Kitzerow’s assertion that the claim should be dismissed because it is
seeking to hold him liable in his official capacity (i.e., that it is really just
another claim against the Town of Jupiter) also fails. Wade and Estep have
made clear in their pleading that count 9 is against Kitzerow in his individual
capacity. This manner of pleading is permissible. See Hafer v. Melo, 502 U.S.
21, 25 (1991).
The final issue Kitzerow raises in his motion to dismiss is the demand for
punitive damages. Specifically, Kitzerow argues that the punitive-damages
demand should be dismissed because Wade and Estep do not allege that
Kitzerow’s conduct was “motivated by evil intent” or involved “callous or
reckless indifference to federally protected rights.” (Mot. Dismiss 5, ECF No. 24
(quoting H.C. ex rel. Hewett v. Jarrard, 786 F.2d 1080, 1089 (11th Cir. 1986)).)
But by alleging that Kitzerow was deliberately indifferent to their constitutional
rights, Wade and Estep have, in essence, alleged that Kitzerow was recklessly
indifferent to their civil rights. The punitive-damages demand will not be
dismissed.
5. Conclusion
For the reasons articulated above, the Court grants in part and denies
in part the Town of Jupiter’s Motion to Dismiss (ECF No. 23). Count 6 of the
Plaintiffs’ Amended Complaint against the Town of Jupiter for negligent
supervision is dismissed with prejudice. The Court denies Frank Kitzerow’s
Motion to Dismiss (ECF No. 24). The Town of Jupiter’s and Kitzerow’s
responses to the Amended Complaint are due by December 5, 2014.
Done and ordered, in chambers at Miami, Florida, on November 21, 2014.
_______________________________
Robert N. Scola, Jr.
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?