Harris v. Wingo

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 defendant Kevin

Rambosk’s Motion for Summary Judgment (Doc. #126) filed on June

24, 2019. Plaintiff filed a Response (Doc. #135) on July 8, 2019,

defendant Kevin Rambosk filed a Reply (Doc. #139) on July 24, 2019,

and plaintiff filed a Sur-Reply (Doc. #140) on July 29, 2019. For

the reasons set forth below, the motion is granted.

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).

II.

On May 2, 2018, plaintiff Robert Dale Harris (Plaintiff) filed

an Amended Complaint (Doc. #51) against defendant Kevin Rambosk

(Sheriff Rambosk) in his official capacity as Sheriff of Collier

County. The Amended Complaint asserts two claims against Sheriff

Rambosk under 42 U.S.C. § 1983 (Counts I and XV), alleging that he

was deprived of his constitutional rights as a result of Sheriff

Rambosk’s failure to properly train his deputies. The undisputed

facts1 are as follows:

A. The March 9, 2014 Trespass Warning to the CCSO

On March 9, 2014, Plaintiff called the Collier County

Sheriff’s Office (CCSO) to complain about Deputy Michael D. Chapman

(Deputy Chapman). (Doc. #113, p. 3; Doc. #135, p. 2.) Plaintiff

complained that while he was sitting outside of a McDonald’s in

Naples, Florida, Deputy Chapman threatened to trespass Plaintiff

from “all local businesses.” (Id.) Sergeant Bartolome Amengual

1 Sheriff Rambosk adopts the statements of undisputed facts

set forth in the motions for summary judgment filed by Deputies

Wingo, Chapman, and Pepin. (Doc. #126, p. 2.) Thus, where

appropriate, the Court cites to those motions below.

(Sergeant Amengual) and Deputy Kasey P. Wingo (Deputy Wingo)

arrived at the scene and took Plaintiff’s complaint. (Id.)

B. The April 4, 2014 Arrest

On April 4, 2014, Plaintiff was repairing his friend Randy

Leon Sulwilcowski’s motorcycle that was warehoused at a storage

facility in Naples, Florida. (Doc. #113, pp. 3-4; Doc. #135, p.

3.) Deputies Chapman and Wingo encountered Plaintiff as he was

exiting the storage facility. (Id.) Deputies Wingo and Chapman

ultimately arrested Plaintiff and engaged in a physical with

Plaintiff while placing him under arrest. (Doc. #113, pp. 5-7;

Doc. #135, p. 3.) Deputy Pepin arrived at the scene to assist

Deputies Wingo and Chapman with Plaintiff’s arrest. (Doc. #113,

p. 6; Doc. #135, p. 3.) Deputy Pepin struck Plaintiff’s back

several times with a baton and deployed his Taser into Plaintiff’s

back. (Doc. #113, p. 6; Doc. #135, p. 3.)

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. #135, p. 3.) On April 17, 2014, the State Attorney’s

Office filed a “Not Filing Charge” on all six counts. (Doc. #113,

p. 8; Doc. #135, p. 3.)

C. The May 29, 2014 Trespass Warning

On May 29, 2014, CCSO Deputy Ross Anthony (Deputy Anthony)

issued Plaintiff two trespass warnings: one for a Waffle House

restaurant located at 3824 Tollhouse Drive in Naples, Florida, and

one for a Shell gas station located at 3825 Tollgate Boulevard in

Naples, Florida.2 (Doc. #126, p. 3; Doc. #135, p. 4.) Plaintiff

purchased cigarettes from the Shell gas station, sat outside for

approximately five minutes, observed Deputy Anthony approaching,

and entered the Waffle House. (Id.) Deputy Anthony testified

that he approached Plaintiff because he had issued Plaintiff a

trespass warning for the Shell gas station “a couple of weeks

prior.” (Doc. #135-16, p. 14.)

Deputy Anthony then entered the Waffle House, requested that

Plaintiff leave the Waffle House to speak with him outside, and

placed Plaintiff in handcuffs and took him outside the Waffle

House. (Doc. #126, pp. 3-4; Doc. #135, pp. 4-5.) Deputy Anthony

issued Plaintiff a trespass warning for the Waffle House restaurant

2 Under “Reason for Contact,” the Shell trespass warning

states “bothering customers at Circle K.” (Doc. #126-1.) Deputy

Anthony testified at deposition that he referenced Circle K on the

Shell trespass warning because the store attached to the Shell gas

station is a Circle K and displays Circle K logos. (Doc. #135-

16, p. 13.) Plaintiff asserts that there were no Circle K logos

at the Shell gas station store. That dispute is ultimately

irrelevant, however, because it is undisputed that on May 29, 2014,

Plaintiff was issued a trespass warning for the Shell gas station

located at 3825 Tollgate Boulevard in Naples, Florida – the same

address listed on the trespass warning.

at the request of a Waffle House employee. (Doc. #126, p. 4; Doc.

#135, p. 17.) The Shell gas station employees asked Plaintiff to

leave the premises, and the trespass warning lists Ben Bagheri,

the Shell gas station owner, as the “Name of Complainant.” (Doc.

#126-1, p. 1; Doc. #126, p. 4; Doc. #135, p. 17.)

D. The June 10, 2014 Trespass Warning

On June 10, 2014, Plaintiff purchased donuts from Dunkin’

Donuts in Naples, Florida; Plaintiff then took the donuts to the

neighboring McDonald’s, purchased a coffee from the McDonald’s,

and used his computer at an outside table. (Doc. #113, p. 9; Doc.

#135, p. 5.) Deputy Pepin and Deputy Sean Ellis (Deputy Ellis)

arrived at the scene, and Deputy Ellis ultimately issued Plaintiff

a trespass warning for the Dunkin’ Donuts. (Doc. #113, p. 9; Doc.

#135, p. 6.) Under “Reason for Contact/Other Comments” the

trespass warning states, “Trespass. Robert Harris stated that he

does not consent to this.” (Doc. #116-1, p. 23.)

Deputy Pepin testified at deposition that he and Deputy Ellis

were dispatched to the McDonald’s because the McDonald’s

management wanted Plaintiff to leave the premises. (Doc. #116,

pp. 75-76.) Deputy Pepin further testified that when he arrived

at the McDonald’s, Sara Wolin, a Dunkin’ Donuts employee,

approached him and asked that Deputy Pepin and Deputy Ellis3

trespass Plaintiff from the Dunkin’ Donuts because he was

“‘harassing customers and stealing stuff.’” (Doc. #116, p. 76.)

Sarah Wolin testified at deposition that she “had seen the cop

next to [Dunkin’ Donuts] at the McDonald's and [] called him over

and [] asked him to have [Plaintiff] trespassed.” (Doc. #117, p.

18.) Sarah Wolin testified that, earlier on June 10, 2014,

Plaintiff “got upset because [she] told him that [she] couldn't

give him [free food]” and that Plaintiff “got very mad and stormed

out and then came back in and then stormed back out again.” (Id.

pp. 17-18.) Sarah Wolin further testified that she requested that

Plaintiff be trespassed from Dunkin’ Donuts because he had “been

coming to [her] place of employment for several months, getting

free food, making [her] uncomfortable, and [she] did not want

[Plaintiff] at [her] place of employment anymore.” (Id. p. 21.)

E. The March 26, 2015 Trespass Warning

On March 26, 2015, CCSO Corporal Robert Bremer (Corporal

Bremer) issued Plaintiff a trespass warning for Sew Shore, a retail

business located in Naples, Florida. (Doc. #126, p. 4; Doc. #135,

p. 10.) Sew Shore sells police uniforms and equipment, and

Plaintiff was at Sew Shore on March 26, 2015 to purchase handcuffs.

3 It is unclear to the Court which other deputies were present

at the scene.

(Doc. #126, p. 4; Doc. #135, p. 11.) A Sew Shore employee

ultimately became concerned with Plaintiff’s presence at the store

and called the police.4 (Doc. #126, p. 4; Doc. #135, pp. 10-12.)

Corporal Bremer responded to the scene, and John Marshall, a Sew

Shore employee5, requested that Corporal Bremmer issue Plaintiff

the trespass warning because Plaintiff was acting “belligerent”

and “difficult.” (Doc. #126-4, p. 83.)

F. 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.6 (Doc. #112, p. 7; Doc. #129, pp. 6-7; Doc. #135, p. 8.)

Deputy Wingo had received information that Plaintiff’s vehicle was

involved in transporting narcotics.7 (Doc. #112, p. 7; Doc. #135,

p. 8.) After initiating the traffic stop, Deputy Wingo approached

Plaintiff and the following interaction occurred and was captured

on Plaintiff’s in-car camera:

4 The parties dispute what led to this employee’s concern.

5 The parties refer to John Marshall as the Sew Shore owner.

However, John Marshall testified that at the time of the trespass

warning he was a Sew Shore employee and had not yet purchased the

business. (Doc. #126-4, pp. 9-10.)

6 Specifically, Plaintiff was driving a Ford vehicle on which

a license plate registered to a GMC vehicle was affixed.

7 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: “Hello, sir.”

Plaintiff: “One second, I’m calling my

attorney.”

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,

2017 when the State Attorney’s Office filed a “Not Filing Charge”

on all four counts. (Doc. #129-8, p. 8.)

III.

Counts I and XV assert claims against Sheriff Rambosk under

§ 1983 for failing to properly and adequately train his deputies.

Specifically, Counts I and XV allege that the CCSO deputies’ false

arrests, use of excessive force, and issuance of illegal trespass

warnings were the result of Sheriff Rambosk’s failure to properly

train his deputies “in the law regarding probable cause”; the law

regarding “unlawful seizure during an investigatory stop [and]

excessive force in making such unlawful seizure”; “how his deputies

respond to individuals of lower socio-economic standing and

cognitive deficiencies”; and the law regarding unlawful trespass

warnings. (Doc. #51, ¶¶ 192, 193, 202, 373-92.)

Under § 1983, a municipality may not 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)(citation omitted). Thus, “a municipality may be held liable

for the actions of a police officer only when municipal ‘official

policy’ causes a constitutional violation.” Id.

“In limited circumstances, a local government's decision not

to train certain employees about their legal duty to avoid

violating citizens' rights may rise to the level of an official

government policy for purposes of § 1983.” Connick v. Thompson,

563 U.S. 51, 61 (2011)(citation omitted). A plaintiff asserting

such a claim “must prove that official municipal policy was

responsible for the action that caused his injury.” Johnson v.

Dixon, 666 F. App'x 828, 830 (11th Cir. 2016)(citation omitted).

A municipality’s failure to train its “employees about their legal

duty to avoid violating citizens’ rights may rise to the level of

an official government policy for purposes of § 1983” where the

failure to train “amount[s] to deliberate indifference to the

rights of persons with whom the untrained employees come into

contact.” Id. at 830. Municipal “culpability for a deprivation

of rights is at its most tenuous where a claim turns on a failure

to train.” Connick, 563 U.S. at 61.

Deliberate indifference “is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” Bd. of Cty. Comm'rs of Bryan

Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997). “A pattern of

similar constitutional violations by untrained employees is

ordinarily necessary to demonstrate deliberate indifference for

purposes of failure to train.” Connick, 563 U.S. at 62 (citation

and quotation omitted). “A single incident would not be so

pervasive as to be a custom . . . because a custom must be such a

longstanding and widespread practice [that it] is deemed

authorized by the policymaking officials because they must have

known about it but failed to stop it.” Craig v. Floyd Cty., Ga.,

643 F.3d 1306, 1310 (11th Cir. 2011)(citation and quotation

omitted).8

Sheriff Rambosk argues he is entitled to summary judgment on

Counts I and XV because Plaintiff has failed to establish a pattern

of similar constitutional violations. The Court agrees. While

the Court has found that Plaintiff’s April 4, 2014 arrest was not

supported by probable cause or arguable probable cause, Plaintiff

has set forth no evidence establishing a prior pattern of unlawful

seizures or arrests by CCSO deputies. Similarly, Plaintiff has

not identified a pattern of arrests with excessive force by CCSO

deputies.9 Plaintiff has similarly failed to set forth any

8 As Plaintiff recognizes (Doc. #135, p. 19), “a pattern of

similar violations might not be necessary to show deliberate

indifference” in a “narrow range of circumstances,” such as

“training [] officers in the constitutional limitation on the use

of deadly force.” Connick, 563 U.S. at 63 (quotations omitted).

The Court finds this exception inapplicable in this case.

9 To the extent Plaintiff relies on his December 16, 2016

arrest to demonstrate a pattern of false arrests and use of

excessive force by CCSO deputies, that incident is inapplicable to

this analysis. As set forth in the Court’s Opinion and Order (Doc.

#173, pp. 33-38), Deputy Wingo’s December 16, 2016 arrest was

supported by probable cause and his use of force was objectively

reasonable under the circumstances.

evidence establishing a pattern of deputies’ inability to respond

to individuals of lower socioeconomic standing or with cognitive

deficiencies. See Mercado v. City of Orlando, 407 F.3d 1152, 1162

(11th Cir. 2005)(“[A] plaintiff [cannot] establish a [municipal

liability] claim when he [cannot] point to any other incidents

involving similar facts.”).

Plaintiff has also failed to establish a pattern of CCSO

deputies issuing unlawful trespass warnings. It is undisputed

that Plaintiff was asked to leave the Shell gas station by Shell

employees and that the Shell trespass warning lists the gas station

owner, Ben Bagheri, as the person requesting the trespass warning.10

It is further undisputed that (1) the Waffle House trespass warning

was requested by a Waffle House employee; (2) the Sew Shore

trespass warning was requested by a Sew Shore employee; and (3)

10 Plaintiff disputes that Mr. Bagheri authorized the Shell

gas station trespass warning, relying on an affidavit by

Plaintiff’s private investigator. In the affidavit, Plaintiff’s

private investigator avers that he spoke with two Shell gas station

employees who told him that Mr. Bagheri “would not have authorized

a trespass warning against” Plaintiff. (Doc. #135-15, p. 6.)

Plaintiff also relies on this affidavit to establish that the Shell

employees only asked Plaintiff to leave the Shell gas station “to

‘keep the peace’ with the Sheriffs [sic] Department in case they

needed to call a deputy for assistance in the future.” (Id. pp.

6-7.) Such hearsay, however, is insufficient to create an issue

of fact as to whether Mr. Bagheri authorized the trespass warning

or whether the Shell employees asked Plaintiff to leave. See

Hughes v. Amerada Hess Corp., 187 F.R.D. 682, 688 (M.D. Fla.

1999)(A party “may not rely on rank hearsay . . . to oppose proper

motions for summary judgment.”).

the Dunkin’ Donuts trespass warning was requested by a Dunkin’

Donuts employee.11 As discussed in the Court’s previous Opinion

and Order (Doc. #175, pp. 24-27), although Plaintiff asserts the

CCSO deputies had unlawful motives for issuing the trespass

warnings, such trespass warnings are nonetheless lawful. See

Gestewitz v. State, 34 So. 3d 832, 834-35 (Fla. 4th DCA 2010)(“[A]

police officer . . . may issue a trespass warning for unauthorized

entrance into a structure” at the request of “a ‘person authorized’

to issue a trespass warning.”); Fla. Stat. § 810.08(3)(defining

“the term ‘person authorized’” to include “any owner or lessee, or

his or her agent.”). The Court thus finds that these incidents

are insufficient to establish that Sheriff Rambosk “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.

For the foregoing reasons, Plaintiff has failed to set forth

evidence establishing a pattern of similar constitutional

violations. Sheriff Rambosk is therefore entitled to summary

11 Even assuming the Shell and Waffle House incident was

unlawful, such evidence is insufficient to establish a pattern of

deputies issuing unlawful trespass warnings. See Church v. City

of Huntsville, 30 F.3d 1332, 1344 (11th Cir. 1994)(“[S]ingle

instance of ‘harassment’ . . . certainly does not establish a

pattern or evidence a policy.”).

judgment on Plaintiff’s failure to train claims because there can

be no municipal liability without “evidence of a history of

widespread prior abuse by [d]epartment personnel that would have

put the sheriff on notice of the need for improved training or

supervision.” Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir.

1990); Rosa v. City of Fort Myers, No. 205-CV-481-FTM-29SPC, 2007

WL 3012650, at *17 (M.D. Fla. Oct. 12, 2007) (“[T]he City cannot be

found to have acted with deliberate indifference in training”

regarding excessive force where “there is no evidence of any prior

Similar incidents . .. [involving] excessive force.”).

Accordingly, it is now

ORDERED :

Defendant Kevin Rambosk’s Motion for Summary Judgment (Doc.

#126) is GRANTED.

DONE AND ORDERED at Fort Myers, Florida, this 6th day of

November, 2019.

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JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record