# Harris v. Wingo

> District Court, M.D. Florida · November 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10104003

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

ROBERT DALE HARRIS,

Plaintiff,

v. Case No: 2:18-cv-17-FtM-29MRM

KEVIN RAMBOSK, in his
official capacity as Sheriff
of Collier County, Florida,
KASEY P. WINGO,
individually, MICHAEL D.
CHAPMAN, individually, SCOTT
PEPIN, individually, and
ROSS ANTHONY, individually,

Defendants.

OPINION AND ORDER
This matter comes before the Court on the defendant Wingo’s
Motion for Summary Judgment (Doc. #112) filed on June 10, 2019.
Plaintiff filed a Response (Doc. #129) on June 24, 2019. For the
reasons set forth below, the motion is granted in part and denied
in part.
I.
Summary judgment is appropriate only when the Court is
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A
court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004)(citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999)(quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir.
1983)(finding summary judgment “may be inappropriate even where
the parties agree on the basic facts, but disagree about the
factual inferences that should be drawn from these facts”)). “If
a reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces
a genuine issue of material fact, then the court should not grant
summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,
1315 (11th Cir. 2007).
Qualified immunity provides “complete protection for
individual public officials performing discretionary functions
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person

would have known.” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th
Cir. 2012) (quotation omitted). A defendant claiming qualified
immunity must show that he acted “within the scope of his
discretionary authority when the allegedly wrongful acts
occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.
1991)). If that showing is made, then plaintiff must establish
“(1) that the facts, when construed in the plaintiff's favor, show
that the official committed a constitutional violation and, if so,
(2) that the law, at the time of the official's act, clearly
established the unconstitutionality of that conduct.” Singletary

v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015)(citation omitted).
It is undisputed that Deputy Wingo was acting within his
discretionary authority as a law enforcement officer at all
relevant times.
II.
Plaintiff Robert Dale Harris’s (Plaintiff) Amended Complaint
(Doc. #51) is the operative pleading. The Amended Complaint
asserts claims against Deputy Kasey P. Wingo, a Collier County
Sheriff’s Office deputy, for false arrest and excessive force under
42 U.S.C. § 1983 (Counts II, XVI); malicious prosecution under §
1983 (Counts III, VI, XVII); assault and battery under Florida law
(Counts XI, XIX); conspiracy to violate Plaintiff’s civil rights
under § 1983 (Counts XII, XX); and First Amendment retaliation

under § 1983 (Count XIII). Plaintiff’s claims against other
defendants are discussed in separate orders.
This case centers on two arrests, occurring on April 4, 2014
and December 16, 2016, respectively. The undisputed facts are as
follows:
A. The April 4, 2014 Arrest
On April 4, 2014, Plaintiff was repairing his friend Randy
Leon Sulwilcowski’s (Mr. Sulwilcowski) motorcycle which was
warehoused at a storage facility in Naples, Florida. (Doc. #112-
1, pp. 36-37.) Plaintiff finished working with Mr. Sulwilcowski
on the motorcycle at approximately 9:25 P.M.; the storage facility

had closed at 9:00 P.M. (Id. p. 43; Doc. #51, ¶ 28.) Plaintiff
then exited the storage facility through the front gate riding a
bicycle while wearing a backpack. (Doc. #112-1, p. 135.) As
Plaintiff exited the storage facility, Deputy Michael D. Chapman
(Deputy Chapman) arrived at the scene in his police cruiser and
approached Plaintiff. (Doc. #112-3, pp. 68-69.) Deputy Wingo
arrived at the scene in a separate vehicle while Deputy Chapman
was approaching Plaintiff. (Doc. #112, p. 4.)
The audio of most of1 Plaintiff’s interactions with Deputies
Chapman and Wingo was recorded on Deputy Chapman’s dashcam.2

During the entire interaction, Plaintiff straddled his bicycle
with his feet on the ground. (Doc. #112-3, p. 99.) As Deputy
Chapman approached Plaintiff, the following exchange ensued:
Deputy Chapman: “Robert, here’s the thing, do you
work in here?”

Plaintiff: “I am working for Randy, thank you.”

Deputy Chapman: “Okay, do you work inside this
place?”

Plaintiff: “Yeah, for today.”

Deputy Chapman: “Is there anybody than can confirm
that? Because you’re coming out of
a closed place. That’s what the
problem is.”

Plaintiff: “Listen, he just let me out.”

Deputy Chapman: “Okay, is he back there?”

Plaintiff: “Yeah, he’s still back there with
the generator running.”

1 Deputy Chapman did not activate his microphone until some
point after initiating contact with Plaintiff, so the audio of
Deputy Chapman’s initial interactions with Plaintiff was not
recorded. (Doc. #112, p. 3.)
2 Because Deputy Chapman’s police cruiser was parked facing
away from Plaintiff, the dashcam was unable to record video of the
interaction.
Deputy Chapman: “Relax, okay? I have a job I have to
do. You understand that? Okay,
there’s burglaries in these things
all the time. I see you come out
with a bicycle with a backpack,
okay, at 9:30 at night.”

(Chapman Dashcam Video, at 1:03-1:41.) Deputy Chapman then stated
to Plaintiff, “you’re being very abrasive right now, which makes
me think you were back there doing something wrong. Do you
understand that?” (Id. at 1:48-1:52.) Plaintiff then requested
the presence of Deputy Chapman’s supervisor, and Deputy Chapman
stated, “well, too bad, because that’s not going to happen.” (Id.
at 1:54-1:58.) Deputy Wingo asked Deputy Chapman if he “g[ot] his
ID yet,” and Deputy Chapman responded, “it’s Robert Price, I
think’s his last name. It’s Robert something.” (Id. at 2:17-
2:21.) In response to Deputy Chapman stating that his last name
is “Price,” Plaintiff stated, “no, it’s not.” (Id.) Deputy Wingo
then asked Plaintiff for his ID:
Deputy Wingo: “Let me see your ID, man.”

Plaintiff: “Just talk to 2008.”

Deputy Wingo: “I don’t give a shit about 2008. Let
me see your ID.”

Deputy Chapman: “He was coming out of here.
Everything’s closed.”

Plaintiff: “You know, you guys are harassing
me, you know.”

Deputy Wingo: “Let me see your ID, man.”

Plaintiff: “I have no ID.”
(Id. at 2:22-2:40.)
After Plaintiff stated that he “ha[d] no ID,” Deputy Chapman
asked Plaintiff which storage unit he was working in:
Plaintiff: “You know Rock ‘n’ Roll Randy?”3

Deputy Wingo: “What about him?”

Plaintiff: “That’s who I’m working for, thank
you.”

Deputy Chapman: “He owns a place back there? Because
last time I checked he was homeless.”

Deputy Wingo: “What’s your name, man?”

Plaintiff: “Robert.”

Deputy Wingo: “Robert what? Robert what?”

Plaintiff: “Hold on, I’m on the phone getting my
boss out. Thank you.”

(Id. at 2:41-3:22.) Plaintiff called Mr. Sulwilcowski on speaker
and stated, “Hey, Randy, come out to the gate and talk to these
officers, please.” Mr. Sulwilcowski said “okay” and that he was
“on [his] way.” (Id. at 3:35-3:47.)
After finishing the phone call, Plaintiff continued to
interact with Deputies Chapman and Wingo:
Deputy Wingo: “What’s your last name, Robert?”

Plaintiff: “Of the family of Harris, and I do
not consent to-”

3 “Rock ‘n’ Roll Randy” is Mr. Sulwilcowski’s nickname. (Doc.
#51, ¶ 27.)
Deputy Wingo: “Harris. H-A-R-R-I-S?”

Plaintiff: “If, if you want-”4

Deputy Chapman: “Sir, you do realize I have a valid
reason to get your ID? You failing
to produce your ID will land you in
jail. Do you understand that? Or if
you fail to identify yourself.”

Plaintiff: “I just don’t like being harassed,
that’s all.”

Deputy Wingo: “You’re not being harassed. I’m
trying to get your name and date of
birth, man.”

Plaintiff: “No, over there you had harassed
me.”

Deputy Wingo: “Look, what is your name?”

Plaintiff: “Have I committed a crime, sir?”

Deputy Chapman: “I am investigating a loitering and
prowling complaint, yes.”

Plaintiff: “From who? I have the right to face
my accusers, sir.”

Deputy Chapman: “Well, you’re facing them.”

Plaintiff: “Are you taking your wages under
false pretenses?”

(Id. at 3:38-4:38.)
Deputies Chapman and Wingo then forced Plaintiff off his
bicycle and onto the ground. During the arrest process, Deputies

4 The remainder of this statement is inaudible, as Deputy
Chapman spoke over Plaintiff at this point.
Wingo and Chapman used physical force, a Taser, and pepper spray
on Plaintiff. (Doc. #112, pp. 5-6; Doc. #129, pp. 4-5.)
Plaintiff was ultimately charged with three (3) counts of
battery on a police officer; one (1) count of assault on a police
officer; one (1) count of resisting an officer without violence;
and one (1) count of loitering and prowling. (Doc. #51, ¶¶ 59-

62; Doc. #112, p. 7.) On April 17, 2014, the State Attorney’s
Office filed a “Not Filing Charge” on all six counts. (Id.)
B. The December 16, 2016 Arrest
On December 16, 2016, Deputy Wingo stopped Plaintiff’s
vehicle after observing it being driven with an invalid license
plate.5 (Doc. #112, p. 7; Doc. #129, pp. 6-7.) Deputy Wingo had
received information that Plaintiff’s vehicle was involved in
transporting narcotics.6 (Doc. #112, p. 7; Doc. #129, p. 7.) After
initiating the traffic stop, Deputy Wingo approached Plaintiff and

the following interaction occurred and was captured on Plaintiff’s
in-car camera:
Deputy Wingo: “Hello, sir.”

Plaintiff: “One second, I’m calling my
attorney.”

5 Specifically, Plaintiff was driving a Ford vehicle on which
a license plate registered to a GMC vehicle was affixed.
6 Deputy Wingo believed that Plaintiff’s brother was using
Plaintiff’s vehicle to transport narcotics. (Doc. #112, p. 7;
Doc. #129, p. 7.)
Deputy Wingo: “I need your license, registration,
[and] insurance.”

Plaintiff: “Let me call my attorney.”

Deputy Wingo: “No, you need it now.”

(Plaintiff Video, at 3:17-3:24.) Deputy Wingo then attempted to
open the vehicle door, but Plaintiff pulled the door closed.
Deputy Wingo next opened the vehicle door and attempted to remove
Plaintiff from the vehicle. (Id. at 3:24-3:26.) As Deputy Wingo
entered the vehicle, Plaintiff lifted his knees, which prevented
Deputy Wingo from removing Plaintiff from the vehicle. (Id.)
Deputy Wingo then attempted to deploy his Taser on Plaintiff, but
Plaintiff grabbed the Taser and pushed it away. (Id. at 3:35-
3:38.) Deputy Wingo continued his attempts to subdue Plaintiff
with his Taser, but Plaintiff continued to resist Deputy Wingo’s
efforts. (Id. at 3:40-6:51.) Shortly thereafter, other deputies
arrived at the scene and assisted Deputy Wingo in removing
Plaintiff from the vehicle and placing him under arrest. (Id. at
6:52-9:47.)
Plaintiff was ultimately charged with one (1) count of assault
on a law enforcement officer; one (1) count of battery on a law
enforcement officer; one (1) count of resisting an officer with
violence; and one (1) count of resisting an officer without
violence. (Doc. #129-8, p. 8.) Plaintiff was held in jail for
several days, and the charges were later dismissed on January 17,
2014 when the State Attorney’s Office filed a “Not Filing Charge”
on all four counts. (Doc. #129, p. 8; Doc. #129-8, p. 8.)
III.
Deputy Wingo moves for summary judgment on all Counts asserted
against him. As to Plaintiff’s claims for false arrest, malicious
prosecution, and First Amendment retaliation, Deputy Wingo argues

he is entitled to summary judgment because he had probable cause
to arrest Plaintiff on both April 4, 2014 and December 16, 2016.
Deputy Wingo alternatively argues that even if he lacked probable
cause to arrest Plaintiff, he had arguable probable cause to arrest
Plaintiff and is thus entitled to qualified immunity as to those
claims.
As to Plaintiff’s claims for excessive force and assault and
battery, Deputy Wingo argues he is entitled to summary judgment
because his use of force was objectively reasonable. Deputy Wingo
alternatively argues that even if his use of force was “objectively
unlawful,” he is nonetheless entitled to qualified immunity. (Doc.

#112, p. 32.) As to Plaintiff’s civil conspiracy claims, Deputy
Wingo argues Plaintiff’s claims are barred by the intra-corporate
immunity doctrine. The Court will address each claim in turn
below.
A. The Claims Relating to the April 4, 2014 Arrest
(1) The False Arrest (Count II), Malicious Prosecution (Counts
III, VI), and First Amendment Retaliation (Count XIII)
Claims

Deputy Wingo argues he is entitled to summary judgment on
Plaintiff’s claims for false arrest, malicious prosecution, and
First Amendment retaliation because he had probable cause to arrest
Plaintiff for resisting an officer without violence on April 4,
2014. The existence of probable cause, Deputy Wingo correctly
asserts, defeats these causes of action.7 Deputy Wingo
alternatively argues that even if he lacked probable cause to
arrest Plaintiff, he had arguable probable cause to arrest
Plaintiff and is thus entitled to qualified immunity.
The threshold questions are whether Deputy Wingo lawfully
stopped and detained Plaintiff. The Court concludes that both the
stop and the detention were proper.

7 See Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th
Cir. 2004)(“The existence of probable cause at the time of arrest
. . . constitutes an absolute bar to a section 1983 action for
false arrest.”); Kjellsen v. Mills, 517 F.3d 1232, 1237 (11th Cir.
2008)(“Because lack of probable cause is a required element to
prove a § 1983 claim for malicious prosecution in violation of the
Constitution, the existence of probable cause defeats the
claim.”); Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019)(A
“plaintiff pressing a retaliatory arrest claim must plead and prove
the absence of probable cause for the arrest.”)
(a) Initial Stop Supported by Reasonable Suspicion
“Under the Fourth Amendment, a police officer generally may
lawfully detain an individual without a warrant if (1) there is
probable cause to believe that a traffic violation has occurred (a
traffic stop), or (2) there is reasonable suspicion to believe the
individual has engaged or is about to engage in criminal activity

(an investigative or Terry stop).” United States v. Gibbs, 917
F.3d 1289, 1294 (11th Cir. 2019). The Court examines “(1) whether
the officer’s action was justified at its inception -- that is,
whether the officer had probable cause or reasonable suspicion to
initiate the stop, and (2) whether the stop was reasonably related
in scope to the circumstances that justified it in the first
place.” Id. Here, only an investigative stop is at issue, since
there is no claim of any traffic infraction. “In resisting
[without violence] cases involving an investigatory detention, the
state must prove that the officer had a reasonable suspicion of
criminal activity.” A.R. v. State, 127 So. 3d 650, 654 (Fla. 4th

DCA 2013). Thus, the Court begins its analysis with whether the
initial stop was supported by reasonable suspicion.
“In appropriate circumstances, ‘police can stop and briefly
detain a person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable
cause.’” United States v. Bishop, F.3d , 2019 WL 5090019,
at *3 (citations omitted). Reasonable suspicion exists if a police
officer has “a reasonable, articulable suspicion based on
objective facts that the person has engaged in, or is about to
engage in, criminal activity.” United States v. Powell, 222 F.3d
913, 917 (11th Cir. 2000). The officer “must be able to articulate
more than an inchoate and unparticularized [] hunch of criminal

activity.” Illinois v. Wardlow, 528 U.S. 119, 123–24
(2000)(citation and quotation omitted). In determining whether
reasonable suspicion exists, a court considers “the totality of
the circumstances from the perspective of a reasonable officer.”
United States v. McCoy, 259 F. App'x 264, 268 (11th Cir. 2007);
see also Bishop, F.3d , 2019 WL 5090019, at *11, *12.
Here, the totality of the circumstances established
reasonable suspicion for the deputy to stop Plaintiff on his
bicycle as he attempted to exit the closed storage facility at
night after hours. Deputy Chapman witnessed Plaintiff exiting the
storage facility at approximately 9:30 p.m. after the facility had

already closed. Plaintiff was riding a bicycle and wearing a
backpack. Deputy Chapman was aware that thefts occur at such
storage facilities. A reasonable officer could reasonably believe
Plaintiff was “engaged in, or [was] about to engage in, criminal
activity” inside the closed business. Powell, 222 F.3d at 917.
Therefore, neither Deputy Chapman nor Wingo violated Plaintiff’s
Fourth Amendment rights by stopping Plaintiff as he left the
storage facility.
(b) Scope and Duration of Stop
While the stop of Plaintiff on his bicycle was lawful, the
scope and duration of the resulting detention must also be
reasonable to comply with the Fourth Amendment. “Even if the

police have reasonable suspicion to make a traffic stop, they do
not have unfettered authority to detain a person indefinitely. The
detention is ‘limited in scope and duration.’” United States v.
Campbell, 912 F.3d 1340, 1350 (11th Cir. 2019)(citation omitted.)
“[I]t is well established that an officer may ask a suspect to
identify himself in the course of a Terry stop . . . .” Hiibel v.
Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S.
117, 186-87 (2004). The record clearly establishes that the scope
of the stop was reasonably related to the legitimate concerns which
prompted it, and that the resulting detention was reasonably short
in duration before escalating to an arrest. Thus, the Court finds

the scope and duration of Plaintiff’s stop was reasonable, and
therefore lawful.
(c) Existence of Probable Cause
While both the initial stop and the resulting detention were
lawful, probable cause must nonetheless have existed for the arrest
to have been lawful. “Probable cause to arrest exists . . . when
an arrest is objectively reasonable based on the totality of the
circumstances.” Coffin v. Brandau, 642 F.3d 999, 1006 (11th Cir.
2011)(citation and quotation omitted). This standard is satisfied
where “the facts within the collective knowledge of law enforcement
officials, derived from reasonably trustworthy information, are
sufficient to cause a person of reasonable caution to believe that
a criminal offense has been or is being committed.” Brown v. City

of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). The
Eleventh Circuit has recently stated:
“Because probable cause deals with
probabilities and depends on the totality of
the circumstances, it is a fluid concept that
is not readily, or even usefully, reduced to
a neat set of legal rules.” District of
Columbia v. Wesby, ––– U.S. –––, 138 S. Ct.
577, 586, 199 L.Ed.2d 453 (2018) (quotation
marks omitted). It “requires more than mere
suspicion, but does not require convincing
proof.” Bailey v. Bd. of Cty. Comm’rs, 956
F.2d 1112, 1120 (11th Cir. 1992); see Wesby,
138 S. Ct. at 586 (“It requires only a
probability or substantial chance of criminal
activity, not an actual showing of such
activity.”) (quotation marks omitted). All in
all, it’s “not a high bar.” Wesby, 138 S. Ct.
at 586.
Gill, as Next Friend of K.C.R. v. Judd, No. 17-14525, 2019 WL
5304078, at *6 (11th Cir. Oct. 21, 2019).
Plaintiff argues Deputy Wingo lacked probable cause to arrest
him for loitering and prowling, the offenses Deputies Wingo and
Chapman were initially investigating. But Deputy Wingo does not
assert probable cause for such offenses. Rather, Deputy Wingo
asserts probable cause for the offense of resisting an officer
without violence, a first-degree misdemeanor under Florida law.
See Fla. Stat. § 843.02. An arrest comports with the Fourth
Amendment if it is supported by probable cause for any offense.
See Elmore v. Fulton Cty. Sch. Dist., 605 F. App'x 906, 914 (11th
Cir. 2015)(“So long as the circumstances known to the officers,
viewed objectively, give probable cause to arrest for any crime,

the arrest is constitutionally valid even if probable cause was
lacking as to some offenses, or even all announced charges.”).
The arrest was therefore lawful if there was probable cause that
Plaintiff was resisting arrest without violence within the meaning
of Fla. Stat. § 843.02.8
The Florida statute provides that an individual commits the
offense of resisting an officer without violence when he
“resist[s], obstruct[s], or oppose[s] any [law enforcement]
officer . . . in the lawful execution of any legal duty, without
offering or doing violence to the person of the officer.” Fla.

Stat. § 843.02. “[T]o support a conviction for obstruction without
violence, the State must prove: (1) the officer was engaged in the

8 Deputy Wingo also asserts there was probable cause to arrest
Plaintiff for the Florida crime of refusing to provide
identification, citing Fla. Stat. § 901.151. (Doc. #112, p. 13.)
But this statute does not create a state criminal offense for
refusing to identify oneself to an officer when requested.
Additionally, the Florida loitering and prowling statute does not
criminalize such a refusal. Fla. Stat. § 856.021(2). In the
absence of another crime, the probable cause determination is
limited to the resisting without violence offense.
lawful execution of a legal duty; and (2) the defendant's action,
by his words, conduct, or a combination thereof, constituted
obstruction or resistance of that lawful duty.” C.E.L. v. State,
24 So. 3d 1181, 1185–86 (Fla. 2009). Deputy Wingo asserts that
both elements were satisfied in this case.
The first element of the resisting statute is clearly

satisfied. Deputies Wingo and Chapman were investigating
Plaintiff’s presence at a closed storage facility. Fla. Stat. §
901.151 provides that, when an officer has reasonable suspicion to
believe an individual is engaged in criminal activity, the officer
“may temporarily detain such person for the purpose of ascertaining
the identity of the person [] and the circumstances surrounding
the person's presence abroad which led” to the officer’s reasonable
suspicion. As the Court has found, the officers had sufficient
reasonable suspicion to justify the stop, and its scope and
duration were reasonable. “Knowing defiance of a lawful Terry
stop constitutes unlawful resistance without violence.” C.E.L. v.

State, 995 So.2d 558, 561 (Fla. 2d DCA 2008) (en banc), approved,
24 So.3d 1181 (Fla. 2009); B.M. v. State, 212 So. 3d 526, 528 (Fla.
2d DCA 2017).
Deputy Wingo contends that the second element is also
satisfied. Deputy Wingo asserts Plaintiff was resisting an officer
without violence because Plaintiff “questioned Deputy Chapman’s
authority, accused him of harassment, [] requested a supervisor,”
and “most important[ly] . . . refused to provide identification.”
(Doc. #112, p. 13.) Deputy Wingo asserts that the audio recording
of his interaction with Plaintiff confirms that Deputy Wingo asked
Plaintiff “for identification no less than five times without
success,” and that Plaintiff “never provided” his date of birth or
his last name’s spelling. (Id. p. 14.)

Some of the facts relied upon by Deputy Wingo are legally
insufficient to support a resisting without violence charge.
Plaintiff’s questioning of Deputy Chapman’s authority, accusation
of harassment, and request for the presence of a supervisor do not
constitute a violation of the Florida statute. See Davis v.
Williams, 451 F.3d 759, 767 (11th Cir. 2006)(“[A]sking to speak to
an officer's superior or [] asking for an officer's badge number
. . . do[es] not constitute obstruction of justice” under Florida
law.); DeRosa v. Sheriff of Collier Cty., Fla., 416 F. App'x 839,
840 (11th Cir. 2011)(“Florida courts have long held that criticism
cannot support a conviction for obstruction, even if the criticism

is insulting or defiant.”).
Deputy Wingo’s primary basis for probable cause – that
Plaintiff refused his request for identification - is unsupported
in the record. The audio recording from Deputy Chapman’s dashcam
does not support Deputy Wingo’s assertion that Plaintiff
repeatedly refused to identify himself. The audio recording begins
with Deputy Chapman stating, “Robert, here’s the thing, do you
work in here?” (Chapman Dashcam Video, at 1:03-1:07.) Later,
Deputy Chapman incorrectly recalled the last name given by
Plaintiff. Thus, in the non-recorded portion Plaintiff must have
identified himself when Deputy Chapman first encountered
Plaintiff. When Deputy Wingo arrived at the scene and asked
Plaintiff for his ID, Plaintiff informed Deputy Wingo that he

“ha[d] no ID.” (Id. at 2:22-2:40.)
Moreover, when Deputy Wingo asked Plaintiff for his last
name, Plaintiff provided that information. And when Deputy Wingo
spelled Plaintiff’s last name aloud, Deputy Chapman did not allow
Plaintiff to complete a response, but spoke over Plaintiff,
stating:
Sir, you do realize I have a valid reason to get your
ID? You failing to produce your ID will land you in jail.
Do you understand that? Or if you fail to identify
yourself.9

(Id. at 4:00-4:12.)

9 Deputy Wingo asserts that Plaintiff “d[id] not confirm the
spelling [of his last name], telling Deputy Wingo ‘he does not
consent.’” (Doc. #112, p. 4.) Deputy Wingo mis-reads the record.
Plaintiff clearly did not state he “does not consent” to confirming
the spelling of his last name. Rather, in response to Deputy Wingo
asking Plaintiff for his last name, Plaintiff stated, “Of the
family of Harris, and I do not consent to-”. (Chapman Dashcam
Video, 3:47-3:57.) Before Plaintiff completed that statement,
Deputy Wingo spoke over Plaintiff and stated, “Harris. H-A-R-R-I-
S?” (Id.) Thus, Plaintiff made the statement that he “do[es] not
consent” before Deputy Wingo made any reference to the spelling of
Plaintiff’s last name.
Plaintiff then stated he felt he was being harassed by
Deputies Wingo and Chapman, and Deputy Wingo stated, “You’re not
being harassed. I’m trying to get your name and date of birth,
man.” (Id. at 4:12-4:16.) The audio recording confirms that
Deputy Wingo had never asked Plaintiff for his date of birth, and
Plaintiff had already provided his first and last name to Deputy

Wingo. The audio recording further reflects that, although
Plaintiff already provided his first and last name to Deputies
Wingo and Chapman, Deputy Wingo again stated to Plaintiff, “Look,
what is your name?” (Id. at 4:19-4:21.) After Plaintiff responded
by asking if he had committed a crime and whether the Deputies
were “taking [their] wages under false pretenses,” Deputies Wingo
and Chapman forcibly removed Plaintiff from his bicycle. (Id. at
4:23-4:38.)
While Deputy Wingo was authorized to temporarily detain
Plaintiff and ascertain his identity and “the circumstances
surrounding [his] presence” at the storage facility under Fla.

Stat. § 901.151, Plaintiff has established facts showing an absence
of probable cause. Contrary to Deputy Wingo’s characterization,
the audio recording does not reflect that Plaintiff refused to
identify himself. Rather, the audio recording confirms that
Plaintiff identified himself to Deputy Chapman, corrected Deputy
Chapman when he stated Plaintiff’s last name was “Price,” informed
Deputy Wingo he “had no ID,” and provided his first and last name
to Deputy Wingo. Moreover, the record does not show Plaintiff was
requested to provide his date of birth and refused. The audio
recording confirms that neither Deputy Chapman nor Deputy Wingo
asked Plaintiff for his date of birth. After Plaintiff stated he
felt he was being harassed, the following interaction ensued:
Deputy Wingo: “You’re not being harassed. I’m
trying to get your name and date of
birth, man.”10

Plaintiff: “No, over there you had harassed me.”
(Chapman Dashcam Video, at 4:12-4:16.) As discussed above, Deputy
Wingo had never asked Plaintiff for his date of birth, and Deputy
Wingo’s assertion that he “g[ave Plaintiff] numerous chances to
provide his . . . date of birth without success” is refuted by the
recording. (Doc. #112, p. 5.) Further, consistent with § 901.151,
Plaintiff informed Deputy Wingo he was working at the facility for
Mr. Sulwilcowski, and called Mr. Sulwilcowski so Mr. Sulwilcowski
could speak to Deputies Wingo and Chapman and confirm that
Plaintiff was indeed working at the storage facility.
Viewing the facts in the light most favorable to Plaintiff,
the Court finds Plaintiff has shown a lack of probable cause to
arrest Plaintiff for resisting an officer without violence.

10 At this point, Plaintiff had already provided Deputy Wingo
with his first and last name.
Therefore, Deputy Wingo’s request for summary judgment on the basis
of the existence of probable cause is denied.
(d) Whether Deputy Wingo is Entitled to Qualified Immunity
Deputy Wingo alternatively argues that, even if he lacked
probable cause to arrest Plaintiff for resisting an officer without
violence, he had arguable probable cause to arrest Plaintiff and

is thus entitled to qualified immunity. The Court disagrees.
Although an arrest without probable cause “violates the
Fourth Amendment, this does not inevitably remove the shield of
qualified immunity.” Skop v. City of Atlanta, GA, 485 F.3d 1130,
1137 (11th Cir. 2007). Indeed, an officer who “make[s] an arrest
without probable cause [is] entitled to qualified immunity if there
was arguable probable cause for the arrest.” Kingsland v. City of
Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)(citation omitted).
Arguable probable cause exists “where reasonable officers in the
same circumstances and possessing the same knowledge as the
Defendant[] could have believed that probable cause existed to

arrest.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.
2002)(citation and quotation omitted).
The arguable probable cause standard “is an objective one and
does not include an inquiry [into] the officer's subjective intent
or beliefs.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 735
(11th Cir. 2010)(citation omitted). Whether an officer possessed
arguable probable cause “depends on the elements of the alleged
crime and the operative fact pattern.” Id. (citation omitted).
Deputy Wingo asserts he had arguable probable cause to arrest
Plaintiff for resisting an officer without violence because
Plaintiff refused to “confirm the spelling [of his last name]” and
“give his date of birth.” (Doc. #112, pp. 8-9.) This is so,

Deputy Wingo argues, because it “is inherently unclear” what
identifying information a legally detained individual must provide
to a police officer under Fla. Stat. § 901.151. (Id. p. 19.)
Thus, Deputy Wingo asserts, “[i]t is [] unclear whether a first
and last name is alone sufficient under § 901.151.” (Id.)
The Court is unpersuaded by Deputy Wingo’s assertion that he
had arguable probable cause to arrest Plaintiff. The audio
recording does not support Deputy Wingo’s claim that Plaintiff
refused to spell his last name or to provide his date of birth
after being asked. As discussed supra, when Deputy Wingo spelled
Plaintiff’s last name aloud, Deputy Chapman spoke over Plaintiff

and did not allow him to respond. Additionally, the audio
recording confirms that Deputy Wingo never asked Plaintiff for his
date of birth; instead, after Plaintiff already provided his first
and last name and claimed harassment, Deputy Wingo declared,
“You’re not being harassed. I’m trying to get your name and date
of birth, man.” (Chapman Dashcam Video, at 4:12-4:16.) But Deputy
Wingo never asked for Plaintiff’s date of birth, but rather again
asked Plaintiff for his name, even though Plaintiff had already
provided that information to Deputy Wingo.
The Court concludes no reasonable officer “in the same
circumstances and possessing the same knowledge as [Deputy Wingo]
could have believed that probable cause existed to arrest”
Plaintiff for resisting an officer without violence. Ferraro, 284

F.3d at 1195. Indeed, the record establishes that Plaintiff
identified himself at least twice, explained his presence at the
storage facility, corrected Deputy Chapman when he stated his last
name was “Price,” and called Mr. Sulwilcowski to come to the
storage facility’s front gate to speak with Deputies Chapman and
Wingo. These facts do not support even arguable probable cause.
Deputy Wingo nonetheless argues that, “even without arguable
probable cause, there has been no showing that Deputy Wingo
violated clearly established law.” (Doc. #112, p. 20.) Deputy
Wingo reasons that “[w]hat constitutes sufficient ‘identification’
during an investigatory stop is unclear in Florida” and Deputy

Wingo is “thus entitled to qualified immunity for his decision to
arrest [Plaintiff] for failing to provide the information
requested.” (Id. p. 21.)
The law was clearly established that a police officer needs
probable cause for a warrantless arrest. The record simply does
not support Deputy Wingo’s assertion that Plaintiff “fail[ed] to
provide the information requested” or that Plaintiff refused
“numerous chances to provide his name and date of birth . . . .”
(Id. pp. 5, 21.) A court must “define the ‘clearly established’
right at issue on the basis of the specific context of the case.”
Tolan v. Cotton, 572 U.S. 650, 657 (2014)(citations and quotations
omitted). And at the time of Plaintiff’s arrest on April 4, 2014,
it was clearly established that an individual must actually

“disobey[] a command by members of law enforcement” in order to be
arrested for resisting an officer without violence. Zivojinovich
v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008). The Court thus
concludes Deputy Wingo is not entitled to qualified immunity “for
his decision to arrest [Plaintiff] for failing to provide the
information requested,” given that the record, viewed in the light
most favorable to Plaintiff, does not support this
characterization of events. (Doc. #112, p. 21.)
On this record, the Court finds sufficient evidence that
Deputy Wingo lacked probable cause or arguable probable cause to
arrest Plaintiff on April 4, 2014. Deputy Wingo’s motion is

therefore denied as to Plaintiff’s claims for false arrest (Count
II), malicious prosecution (Counts III, VI), and First Amendment
retaliation (Count XIII) relating to the April 4, 2014 arrest.
(2) The Excessive Force (Count II) and Assault and Battery
(Count XI) Claims
Deputy Wingo also moves for summary judgment on Plaintiff’s
claims for excessive force and assault and battery, arguing the
force he used to arrest Plaintiff was objectively reasonable in
light of Plaintiff’s resistance. Deputy Wingo alternatively
argues that, “even if the force [he] applied was objectively
unlawful,” he is nonetheless entitled to qualified immunity. (Doc.
#112, p. 32.)
A claim that a law enforcement officer used excessive force

in the course of an arrest is analyzed under the Fourth Amendment
and its objective reasonableness standard. Graham v. Connor, 490
U.S. 386, 395 (1989); Wilson v. Northcutt, 987 F.2d 719, 722 (11th
Cir. 1993).11 “The Fourth Amendment's freedom from unreasonable
searches and seizures encompasses the plain right to be free from
the use of excessive force in the course of an arrest.” Lee v.
Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)(citation omitted).
In determining whether an officer used excessive force in
effectuating an arrest, the Court considers such factors as “[1]
the severity of the crime at issue, [2] whether the suspect poses

an immediate threat to the safety of the officers or others, and
[3] whether he is actively resisting arrest or attempting to evade

11 Plaintiff’s claim for excessive force and his state-law
claim for assault and battery are analyzed under the same standard.
See Christie ex rel. estate of Christie v. Scott, 923 F. Supp. 2d
1308, 1328 (M.D. Fla. 2013)(“[T]he crux of a state-law assault and
battery claim against [] officers is whether a reasonable officer
would believe that this level of force is necessary in the
situation at hand.” (citation and quotation omitted)).
arrest by flight.” Graham v. Connor, 490 U.S. 386, 396
(1989)(citation omitted).
(a) Deputy Wingo’s Use of Force
The manner in which Plaintiff was subdued and arrested by
Deputies Wingo and Chapman is disputed, and Deputy Chapman’s
dashcam did not record the approximately five minute physical

altercation that ensued during Plaintiff’s arrest.12 Deputy Wingo
asserts his use of force was objectively reasonable because his
actions “were limited to physical strikes with his fists and knees”
in order to “overcome [Plaintiff’s] resistance and secure his
hands” and place him under arrest. (Doc. #112, p. 25.) Plaintiff,
however, testified at deposition that Deputy Chapman “pummeled
[him] to the ground” and Deputy Wingo straddled Plaintiff, held
him down, and punched and kneed Plaintiff in the head, while Deputy
Chapman tasered him and sprayed him with pepper spray. (Doc. #112-
1, pp. 148, 155.)

Viewing the facts in the light most favorable to Plaintiff,
a jury may reasonably determine that Deputy Wingo used excessive
force in arresting Plaintiff. Plaintiff testified he had his hands
around his head to protect himself after Deputy Wingo was “on top

12 Sergeant Amengual of the Collier County Sheriff’s Office
arrived at the scene after Plaintiff had already been subdued, and
his dashcam only captured video of the latter part of Plaintiff’s
arrest. Sergeant Amengual’s dashcam, however, did not capture
video of the portion of Plaintiff’s arrest that is in dispute.
of [him] beating [him]” – which Deputy Wingo asserts is an
indication that Plaintiff resisted his efforts to place Plaintiff
in handcuffs. (Id.) Under Plaintiff’s version of events, Deputy
Wingo mounted Plaintiff, held him down, and punched and kneed him
even though Plaintiff had not resisted arrest and posed no threat
to Deputies Wingo and Chapman. If true, such “gratuitous use of

force when a criminal suspect is not resisting arrest constitutes
excessive force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th
Cir. 2008)(citation omitted). Given the lack of a video recording
of this altercation (Deputy Chapman’s dashcam only recorded the
audio of Plaintiff’s arrest) and the inconclusive audio, these
conflicting accounts create an issue of material fact as to whether
Deputy Wingo’s use of force was objectively reasonable under the
circumstances.
(b) Clearly Established Law
Deputy Wingo argues that, “even if the force applied was
objectively unlawful,” it was not clearly established at the time

of Plaintiff’s April 4, 2014 arrest that the use of such force was
excessive. (Doc. #112, p. 32.) As set forth above, Plaintiff
alleges that although he had not resisted arrest, Deputy Wingo
mounted Plaintiff, held him down, and punched and kneed Plaintiff
in the head. At the time of Plaintiff’s arrest, it was clearly
established that such “gratuitous use of force when a criminal
suspect is not resisting arrest constitutes excessive force.”
Hadley, 526 F.3d at 1330 (citation omitted). It was similarly
clearly established at the time of Plaintiff’s arrest that an
officer uses excessive force by “kicking and beating” an arrestee
laying on the ground who “[a]t no point was [] fighting back or
attempting to escape.” Reese v. Herbert, 527 F.3d 1253, 1273 (11th
Cir. 2008). Accordingly, on this record, the Court cannot conclude

that Deputy Wingo is entitled to qualified immunity on Plaintiff’s
claims for excessive force (Count II) and assault and battery
(Count XI) relating to the April 4, 2014 arrest.
(3) The Civil Conspiracy Claim (Count XII)
Count XII is a civil conspiracy claim under Section 1983 which
alleges that Deputy Wingo conspired with other deputies to violate
Plaintiff’s constitutional rights on April 4, 2014. Deputy Wingo
argues he is entitled to summary judgment on Count XII because
Plaintiff’s claim is barred by the intra-corporate immunity
doctrine. The Court agrees.
As the Eleventh Circuit recently stated:

“A plaintiff may state a § 1983 claim for
conspiracy to violate constitutional rights by
showing a conspiracy existed that resulted in
the actual denial of some underlying
constitutional right.” Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir.
2010). A plaintiff attempting to state such a
claim must allege that “the defendants
‘reached an understanding’ to violate the
plaintiff’s constitutional rights,” id.
(quoting Bailey v. Bd. of Cty. Comm’rs of
Alachua Cty., 956 F.2d 1112, 1122 (11th Cir.
1992)), and that “an actionable wrong”
occurred, id. (quoting Bendiburg v. Dempsey,
909 F.2d 463, 468 (11th Cir. 1990)).
Worthy v. City of Phenix City , Alabama, 930 F.3d 1206, 1224 (11th
Cir. 2019). At the summary judgment stage, plaintiff must
establish the understanding and the actionable wrong.
Under the intra-corporate immunity doctrine, “a corporation
cannot conspire with its employees, and its employees, when acting
in the scope of their employment, cannot conspire among
themselves.” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,
1036 (11th Cir. 2000). The intra-corporate immunity doctrine
specifically provides “that acts of corporate agents are
attributed to the corporation itself, thereby negating the
multiplicity of actors necessary for the formation of a

conspiracy.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1261
(11th Cir. 2010)(citation and quotation omitted). The doctrine is
not limited to corporations, but also “applies to public entities
such as [a] [c]ity and its personnel.” Denney v. City of Albany,
247 F.3d 1172, 1190 (11th Cir. 2001)(citations omitted). The
Eleventh Circuit has recognized an exception to the doctrine when
the alleged conduct of the conspirators violates the federal
criminal code. Id. at 1263.
Here, all the conspirators alleged by Plaintiff are deputies
employed by the Collier County Sheriff’s Office.13 Further, the
subject of the alleged conspiracy involves functions within the
scope of the deputies’ employment as law enforcement officers.
See Grider, 618 F.3d at 1261 (“The scope-of-employment inquiry is

whether the employee police officer was performing a function that,
but for the alleged constitutional infirmity, was within the ambit
of the officer's scope of authority (i.e., job-related duties).”).
Thus, absent an exception, the intra-corporate immunity doctrine
applies in this case and bars Plaintiff’s conspiracy claim.
The Court disagrees with Plaintiff that the criminal
conspiracy exception applies in this case. Plaintiff has not
alleged or otherwise established that the deputies engaged in
conduct that violated the federal criminal code. Grider, 618 F.3d
at 1263; Swanson v. Scott, No. 2:17-CV-67-FTM-99MRM, 2017 WL
1134998, at *2 (M.D. Fla. Mar. 27, 2017)(finding the criminal

conspiracy exception inapplicable because there were no
“allegations of federal criminal code violations”); Prof'l LED

13 Plaintiff argues the deputies involved in the alleged
conspiracy “brought in a third-party who is not employed by the
Sheriffs Office, Ms. Wolin.” (Doc. #129, p. 20.) Plaintiff,
however, fails to establish any facts substantiating this
assertion and otherwise fails to describe Ms. Wolin’s role in the
alleged conspiracy or that she entered into an unlawful agreement
with the deputies. It is undisputed that Ms. Wolin had no
involvement in the events at the storage facility.
Lighting, Ltd. v. AAdyn Tech., LLC, 88 F. Supp. 3d 1356, 1372 (S.D.
Fla. 2015)(finding the criminal conspiracy exception inapplicable
where the conduct in the alleged conspiracy “d[id] not amount to
criminal activity in violation of a federal criminal statute.”).
Accordingly, the Court finds Plaintiff’s civil conspiracy claim in
Count XII is barred by the intra-corporate immunity doctrine.

B. The Claims Relating to the December 16, 2016 Arrest
(1) The False Arrest (Count XVI) and Malicious Prosecution
(Count XVII) Claims

Plaintiff also asserts claims against Deputy Wingo for false
arrest and malicious prosecution based on Deputy Wingo’s December
16, 2016 arrest of Plaintiff. Deputy Wingo argues he is entitled
to summary judgment on these counts because his arrest was
supported by probable cause of a violation of Fla. Stat. §
316.605(1), or at least arguable probable cause.
As discussed above, on December 16, 2016, Deputy Wingo
observed Plaintiff driving a vehicle with an invalid license plate
attached. While Plaintiff does not dispute that Deputy Wingo
observed Plaintiff driving his vehicle with an invalid license
plate, Plaintiff contends that Deputy Wingo lacked probable cause
to arrest Plaintiff for violating Fla. Stat. § 320.161 because
Deputy Wingo did not witness Plaintiff attach the invalid license
plate to the vehicle. Plaintiff is correct.
Fla. Stat. § 320.261 provides that an individual commits the
offense of driving with an invalid license plate when that person
“knowingly attaches to any motor vehicle or mobile home any
registration license plate, or who knowingly attaches any
validation sticker or mobile home sticker to a registration license
plate, which plate or sticker was not issued and assigned or

lawfully transferred to such vehicle . . . .” Deputy Wingo’s
observation of Plaintiff driving a vehicle with the wrong license
plate did not establish probable cause or arguable probable cause
to arrest Plaintiff for this second-degree misdemeanor. See Weaver
v. State, 233 So. 3d 501, 503 (Fla. 2d DCA 2017)(citing cases).
This observation, however, provided Deputy Wingo with
probable cause to initiate a lawful traffic stop of Plaintiff’s
vehicle for violation of Florida law. Florida law requires that
“[e]very vehicle, at all times while driven, stopped, or parked
upon any highways, roads, or streets of this state, shall be
licensed in the name of the owner thereof in accordance with the

laws of this state . . . and shall . . . display the license plate
or both of the license plates assigned to it by the state . . . .”
Fla. Stat. § 316.605(1)(emphasis added). “A violation of this
subsection is a noncriminal traffic infraction, punishable as a
nonmoving violation as provided in chapter 318.” Id. A non-
criminal traffic infraction can provide a basis to perform a lawful
traffic stop. State v. Arevalo, 112 So. 3d 529, 531 (Fla. 4th DCA
2013); State v. Y.Q.R., 50 So. 3d 751, 753 (Fla. 2d DCA 2010);
Baker v. State, 164 So. 3d 151 (Fla. 1st DCA 2015). Therefore,
Deputy Wingo properly stopped the vehicle driven by Plaintiff.
Given the proper traffic stop, Deputy Wingo was permitted to
compel Plaintiff to exit the vehicle. The Supreme Court has held
that an officer making a traffic stop may order both a driver and

passengers to get out of the car pending completion of the traffic
stop. Maryland v. Wilson, 519 U.S. 408, 415 (1997); Pennsylvania
v. Mimms, 434 U.S. 106 (1977).
Following Wilson, this Court has consistently
held that “[d]uring a lawful traffic stop,
officers also may take steps that are
reasonably necessary to protect their personal
safety ... including requiring the driver and
passengers to exit the vehicle ‘as a matter of
course.’” United States v. Spoerke, 568 F.3d
1236, 1248 (11th Cir. 2009) (emphasis added)
(citation omitted) (quoting Wilson, 519 U.S.
at 410, 117 S.Ct. at 884); see also, e.g.,
Terrell v. Smith, 668 F.3d 1244, 1252 (11th
Cir. 2012).
Gibbs, 917 F.3d at 1294–95. It is undisputed that Plaintiff
refused to comply with this lawful direction, and physically
resisted the officer. Deputy Wingo had ample probable cause to
arrest Plaintiff for the refusal and resistance. Accordingly,
because Deputy Wingo’s December 16, 2016 arrest was supported by
probable cause, Deputy Wingo’s motion is granted as to the claims
for false arrest (Count XVI) and malicious prosecution (Count
XVII). Kingsland, 382 F.3d at 1226; Kjellsen, 517 F.3d at 1237.
(2) The Excessive Force (Count XVI) and Assault and Battery
(Count XIX) Claims14

Plaintiff also asserts claims for excessive force and assault
and battery for Deputy Wingo’s use of force in effectuating the
December 16, 2016 arrest. Plaintiff contends that Deputy Wingo
used excessive force on December 16, 2016 because it was not
objectively reasonable for Deputy Wingo to enter Plaintiff’s
vehicle and ultimately forcibly remove him from the vehicle.
Deputy Wingo, however, argues his use of force was reasonable
because (1) Plaintiff’s vehicle was “thought to be involved with
smuggling narcotics”; and (2) Plaintiff ignored Deputy Wingo’s
request for his identification and “then attempted to make a call
on his cellphone.” (Doc. #128, p. 28.)
The Court agrees that Deputy Wingo’s use of force was
objectively reasonable under the circumstances of the proper
vehicle stop and Plaintiff’s resistance to following a lawful
direction from the officer. First, as discussed supra, Deputy
Wingo had probable cause to stop Plaintiff for driving with an
invalid license plate and probable cause to arrest for resisting,
and “the law permits some use of force in any arrest for even minor
offenses.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 739–
40 (11th Cir. 2010).

14 As noted supra, Plaintiff’s claims for excessive force and
assault and battery are analyzed under the same standard.
Second, Plaintiff’s actions would lead a reasonable officer
to believe Plaintiff “pose[d] an immediate threat.” Graham, 490
U.S. at 396. As noted earlier, Deputy Wingo had received
information that Plaintiff’s vehicle was involved in transporting
narcotics, and when Deputy Wingo approached Plaintiff’s vehicle,
Plaintiff ignored Deputy Wingo’s request for his license and

vehicle registration information but instead attempted to make a
phone call. Under these circumstances, the Court finds it was
objectively reasonable for Deputy Wingo to attempt to enter
Plaintiff’s vehicle by opening the vehicle’s door.
After Deputy Wingo attempted to enter the vehicle to remove
Plaintiff from the vehicle, Plaintiff resisted Deputy Wingo by
pulling the door closed and lifting his knees, which prevented
Deputy Wingo from entering the vehicle. Deputy Wingo then
attempted to subdue Plaintiff with his Taser, but Plaintiff
continued to resist Deputy Wingo’s efforts by trying to grab the
Taser and pushing it away. The Court finds this continued use of

force was also objectively reasonable under the circumstances
because a reasonable officer under such circumstances would
believe Plaintiff posed an immediate threat to their safety, given
the facts surrounding the initial traffic stop and Plaintiff’s
escalating physical resistance. See e.g. Draper v. Reynolds, 369
F.3d 1270, 1278 (11th Cir. 2004)(The “use of [a] taser gun to
effectuate [an] arrest . . . was reasonably proportionate to the
difficult, tense and uncertain situation [the officer] faced in
[a] traffic stop” where the suspect “repeatedly refused to comply
with [the officer’s] verbal commands.”).
Accordingly, under the totality of the circumstances, the
Court finds Deputy Wingo’s use of force was objectively reasonable.
Deputy Wingo is thus entitled to summary judgment on Counts XVI

and XIX.
(3) The Civil Conspiracy Claim (Count XX)
Plaintiff also alleges a civil conspiracy claim as to the
December 16, 2016 arrest, asserting that Deputy Wingo conspired
with other deputies to violate Plaintiff’s constitutional rights
on December 16, 2016. For the same reasons discussed supra, the
Court finds Plaintiff’s civil conspiracy claim is barred by the
intra-corporate immunity doctrine.
Accordingly, it is now
ORDERED:
1. Defendant’s Motion for Summary Judgment (Doc. #112) is

GRANTED IN PART AND DENIED IN PART.
2. The motion is GRANTED as to Counts XII, XVI, XVII,
XIX, and XX.
3. The motion is DENIED as to Counts II, III, VI, XI, and
XIII.
4. The Clerk shall withhold the entry of judgment until the
conclusion of the case.
DONE AND ORDERED at Fort Myers, Florida, this 5th day of
November, 2019.

Z tkicok
JGHH E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104003. Public record. Not legal advice.