# Haegele v. Judd

> District Court, M.D. Florida · April 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10104897

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 2, 2020
- **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
TAMPA DIVISION

CHRISTINA HAEGELE,

Plaintiff,

v. Case No. 8:19-cv-2750-T-33CPT
GRADY JUDD, et al.,

Defendants.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant Sheriff Grady Judd’s Motion to Dismiss Amended
Complaint (Doc. # 30) and Defendants Reginald Green and Joseph
Hicks’ Motion to Dismiss Amended Complaint (Doc. # 31), both
filed on January 27, 2020. Plaintiff Christina Haegele,
individually and as personal representative of the estate of
Chance Haegele, responded on February 10, 2020. (Doc. ## 35-
36). Defendants replied on February 25, 2020. (Doc. ## 39,
41). For the reasons that follow, the Motions are granted in
part and denied in part.
I. Background
This is a Section 1983 and wrongful death case filed by
Christina Haegele, as personal representative of the estate
of her deceased son, Chance Haegele, who was shot and killed
by two Polk County Sheriff deputies near his home on March
20, 2018. (Doc. # 22). Chance, who was twenty years old and
lived with his mother at the time of the shooting, suffered
from serious health issues caused by type I diabetes. (Id. at
3). He also suffered from “bipolar disorder, psychosis,
schizophrenia, ADHD, anxiety, paranoia, alcohol abuse and
adjustment disorder, cannabis abuse, and severe depression.”
(Id.).
Haegele alleges that Chance’s physical and mental health

issues were well-known to Sheriff Judd, who interacted with
Chance pursuant to the Baker Act or Marchman Act on at least
11 occasions before the March 20, 2018 incident. (Id. at 4).
Haegele further alleges that, although Chance experienced
suicidal ideations and thus potentially posed a threat of
harm to himself, he was never found to be a threat to others.
(Id.). According to Haegele, Defendants had ample notice that
Chance (i) was suffering from mental health issues, (ii) had
no history of violent or aggressive behavior toward law
enforcement, and (iii) had no criminal history. (Id.).
On March 20, 2018, Deputies Green and Hicks responded to
a call from Chance’s mother requesting assistance and seeking

to possibly Baker Act Chance. (Id. at 3, 8). The deputies
allegedly knew that Chance had an unloaded shotgun, and that
he did not have access to ammunition. (Id. at 8-9). Haegele
alleges that Green and Hicks found Chance in an area near his
home. (Id. at 9). Although Green and Hicks claim that Chance
was facing them with the shotgun in his hands, the autopsy
report indicates that most shots entered Chance through his
back. (Id. at 10). This means he would have been facing away
from the deputies when they shot him. (Id.). According to the
autopsy report, of the seventeen shots fired at Chance, nine
hit him, and only one of those nine entered through the front

of his body. (Id. at 10-11).
Haegele alleges that, in statements to the media,
Sheriff Judd spun the wrongful acts of the deputies in a
manner that was inconsistent with the physical evidence and
riddled with inaccuracies. (Id. at 13).
Haegele cites Sheriff Judd’s past statements in an
effort to demonstrate a culture of excessive force. (Id.).
For example, Sheriff Judd has stated that his office does not
choose to shoot people, but “if you choose for us to shoot at
you, we’re gonna shoot at you . . . a lot,” and “shoot them
. . . shoot them a lot until the threat’s neutralized.” (Id.).
Haegele alleges that Sheriff Judd’s comments “have created a

culture” within the Sheriff’s Office where “excessive use of
force is not only tolerated, it is celebrated.” (Id. at 14).
She further alleges that the Sheriff’s Office failed to
conduct a sufficient investigation of the shooting in order
to protect Hicks and Green. (Id. at 12-13).
In her amended complaint, Haegele sues Sheriff Judd in
his official capacity as the Sheriff of Polk County and the
individual deputies, Green and Hicks, for thirteen causes of
action: wrongful death against Sheriff Judd (Count I);
wrongful death against the deputies (Count II); wrongful
death (manslaughter [Florida Statute] Section 782.07) against

Sheriff Judd (Count III); wrongful death (manslaughter
Section 782.07) against the deputies (Count IV); Fourth
Amendment excessive force in violation of Section 1983
against Sheriff Judd (Count V); Fourth Amendment excessive
force in violation of Section 1983 against the deputies (Count
VI); Fourteenth Amendment substantive due process claim
against Sheriff Judd (Count VII); Fourteenth Amendment
substantive due process claim against the deputies (Count
VIII); negligent hiring against Sheriff Judd (Count IX);
negligent retention against Sheriff Judd (Count X); negligent
training against Sheriff Judd (Count XI); negligent
supervision against Sheriff Judd (Count XII); and negligence

against Sheriff Judd (Count XIII). (Id. at 14-30).
Sheriff Judd, Green, and Hicks now seek dismissal of the
amended complaint. (Doc. ## 30, 31). Haegele has responded
(Doc. ## 35, 36), and Sheriff Judd and the deputies have
replied. (Doc. ## 39, 41). The Motions are ripe for review.
II. Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this
Court accepts as true all the allegations in the complaint
and construes them in the light most favorable to the
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its
consideration to well-pleaded factual allegations, documents
central to or referenced in the complaint, and matters
judicially noticed. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
III. Analysis
A. Agreed Dismissal of Certain Counts
In her responses, Haegele “withdraws” seven counts:
Counts VII-XIII. (Doc. # 35 at 18; Doc. # 36 at 5).
Accordingly, the Court dismisses Counts VII, VIII, IX, X, XI,

XII, and XIII.
B. Shotgun Complaint
Green and Hicks argue that the amended complaint is a
shotgun pleading because the remaining claims against them —
Counts II, IV, and VI — lump them together. (Doc. # 31 at 4).
The Eleventh Circuit has identified four categories of
shotgun complaints, including those that “assert multiple
claims against multiple defendants without specifying which
of the defendants are responsible for which acts or omissions,
or which of the defendants the claim is brought against.”
Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313,
1322-23 (11th Cir. 2015). The amended complaint falls

squarely into this category.
Because the remaining counts against Hicks and Green
impermissibly lump them together and fail to allege
separately what each deputy supposedly did, these counts must
be dismissed. Rather than dismiss the entire amended
complaint, the Court dismisses Counts II, IV, and VI with
leave to amend the pleading defect.
C. Wrongful Death Claims Against Sheriff Judd
Because Haegele concedes that she may only pursue
wrongful death claims in her capacity as personal

representative of her son’s estate, (Doc. # 35 at 10; Doc. #
36 at 4), the remaining wrongful death claims, Counts I and
III against Sheriff Judd, are dismissed to the extent Haegele
asserts them in her personal capacity.
Additionally, the Court agrees with Sheriff Judd that
Count III — a claim premised on violation of the criminal
manslaughter statute — must be dismissed. Haegele has not
cited any authority establishing that the criminal
manslaughter statute — Florida Statute § 782.07 — creates a
private right of action separate from a traditional wrongful
death claim. Where, as here, “a criminal remedy is available,
and no civil remedy is assigned, it is not assumed that a

civil remedy exists.” Morrison v. Morgan Stanley Props., No.
06-80751CIV, 2007 WL 2316495, at *10 (S.D. Fla. Aug. 9, 2007);
see also Featherstone v. AT&T, No. 3:17CV837-MCR-HTC, 2019 WL
5460198, at *3 (N.D. Fla. Sept. 24, 2019)(“[T]he criminal
statutes referenced in Count 2 do not provide Plaintiff with
a private cause of action. Chapter 784 of the Florida Statutes
encompasses criminal statutes related to assault, battery and
culpable negligence, Chapter 817 identifies crimes related to
fraudulent practices and Chapter 836 identifies crimes
related to defamation, libel, threatening letters and similar
offenses. Criminal statutes, however, do not generally create

an independent cause of action for damages. Because these
criminal statutes do not provide a private right of action
under Florida law, Count 2 should be dismissed.” (citations
omitted)), adopted by, No. 3:17CV837-MCR-HTC, 2019 WL 5457997
(N.D. Fla. Oct. 24, 2019).
Haegele mistakenly contends that Section 95.11(10), Fla.
Stat., creates an independent civil cause of action for
violation of criminal manslaughter or murder statutes. That
provision says nothing about private rights of action.
Instead, it “extend[s] the statute of limitations for
wrongful death claims based on the criminal acts of murder or
manslaughter.” Pinares v. United Techs. Corp., No. 10-80883-

CIV, 2018 WL 10502426, at *6 (S.D. Fla. Nov. 14, 2018); see
Fla. Stat. § 95.11(10)(“Notwithstanding paragraph (4)(d), an
action for wrongful death seeking damages authorized under s.
768.21 brought against a natural person for an intentional
tort resulting in death from acts described in s. 782.04 or
s. 782.07 may be commenced at any time. This subsection shall
not be construed to require an arrest, the filing of formal
criminal charges, or a conviction for a violation of s. 782.04
or s. 782.07 as a condition for filing a civil action.”).
Because Section 95.11(10) does not create a private
right of action derived from the manslaughter statute that is

separate from a traditional wrongful death claim, Haegele may
assert only one wrongful death claim against each Defendant
and Count III must be dismissed. As the Court has dismissed
Count III, Sheriff Judd’s alternate motion to strike this
count as duplicative of the other wrongful death claim, Count
I, is denied as moot. (Doc. # 30 at 14; Doc. # 31 at 15).
Haegele has, however, adequately alleged her traditional
wrongful death claim against Sheriff Judd (Count I). Sheriff
Judd argues that this count is “inconsistent” because (i) it
alleges he acted “intentionally, recklessly, or negligently,”
and (ii) it alleges that the deputies “were acting within the
scope of their employment,” while Count II against the

deputies alleges that the deputies “were acting outside the
scope of their employment.” (Doc. # 30 at 4-6; Doc. # 31 at
5-6). But “Rule 8(d) of the Federal Rules of Civil Procedure
expressly permits the pleading of both alternative and
inconsistent claims.” United Techs. Corp. v. Mazer, 556 F.3d
1260, 1273 (11th Cir. 2009). Count I is explicitly pled in
the alternative and permissibly alleges that Defendants
caused Chance’s death “intentionally, recklessly, or
negligently.” (Doc. # 22 at 14-15).
Thus, Haegele has at least stated a claim that Sheriff
Judd is liable for wrongful death based on the deputies’

negligent or reckless conduct. Accordingly, the Court will
not dismiss Count I against Sheriff Judd as inconsistent. Nor
will the Court find that Sheriff Judd is immune from suit
based on the deputies’ acting outside the course and scope of
their employment.
D. Section 1983 against Sheriff Judd
In Count V, Haegele alleges that Sheriff Judd “is an
official with final policymaking authority and is responsible
for hiring, training, and supervising [his] law enforcement
officers and, when necessary, for investigating alleged
wrongdoing by employees and imposing discipline and/or taking
other corrective action.” (Doc. # 22 at 17-18). Sheriff Judd

allegedly “not only failed to investigate the wrongdoing of
its employees/agents but covered up their unconstitutional
actions.” (Id. at 18). He “failed to implement adequate
procedures to investigate constitutional violations by its
officers and to impose discipline on its officers when they
engage in constitutional violations.” (Id. at 17).
Additionally, the amended complaint alleges Sheriff Judd “had
a custom and practice of unconstitutional practices by its
employees/agents using excessive force against persons like”
Chance. (Id. at 18). Finally, Sheriff Judd allegedly “after
notice of the constitutional violations alleged herein,

officially sanctioned and/or ratified these actions and
refused to discipline its officers, employees and agents,
which sanction and/or ratification established a policy, by
a final policymaker, that directly or indirectly resulted in
the violation of [Chance’s] constitutional rights.” (Id.).
Only two allegations are required to state a cause of
action under 42 U.S.C. § 1983. “First, the Plaintiff must
allege that some person has deprived him of a federal right.
Second, he must allege that the person who has deprived him
of that right acted under color of state or territorial law.”
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
According to the Supreme Court’s holding in Monell v.

Department of Social Services, 436 U.S. 658, 690 (1978),
municipalities are “persons” subject to Section 1983
liability. However, municipalities may be held liable only
where “action pursuant to official municipal policy of some
nature caused a constitutional tort.” Id. at 691.
Municipalities cannot be held liable for employees’ conduct
under a theory of respondeat superior. Samples v. City of
Atlanta, 846 F.2d 1328, 1333 (11th Cir. 1988); see also
Monell, 436 U.S. at 691.
To state a Monell claim, a plaintiff must allege facts
showing: “(1) that his constitutional rights were violated;

(2) that the municipality had a custom or policy that
constituted deliberate indifference to that constitutional
right; and (3) that the policy or custom caused the
violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004).
“A policy is a decision that is officially adopted by
the municipality, or created by an official of such rank that
he or she could be said to be acting on behalf of the
municipality.” Sewell v. Town of Lake Hamilton, 117 F.3d 488,
489 (11th Cir. 1997). Locating a “policy” ensures that the
governmental entity is only held liable for those
constitutional deprivations resulting from its decision-

makers or of those officials whose acts may fairly be said to
be those of the entity. Bd. of Cty. Comm’rs of Bryan Cty. v.
Brown, 520 U.S. 397, 403–04 (1997)(citing Monell, 436 U.S. at
694).
However, “[b]ecause a county rarely will have an
officially-adopted policy of permitting a particular
constitutional violation, most plaintiffs . . . must show
that the county has a custom or practice of permitting it and
that the county’s custom or practice is the moving force
behind the constitutional violation.” Grech v. Clayton
County, 335 F.3d 1326, 1330 (11th Cir. 2003)(alterations and

internal quotation marks omitted). “A custom is a practice
that is so settled and permanent that it takes on the force
of law.” Sewell, 117 F.3d at 489. To establish the existence
of a custom, the plaintiff must show a “longstanding and
widespread practice.” Craig v. Floyd County, 643 F.3d 1306,
1310 (11th Cir. 2011)(quotation marks omitted). Thus, “[a]
single incident of a constitutional violation is insufficient
to prove a policy or custom even when the incident involves
several employees of the municipality.” Id. at 1311.
In addition, because municipalities cannot be held
liable under respondeat superior, there must be a direct
causal link between a municipal policy or custom and the

alleged constitutional deprivation. Snow ex rel. Snow v. City
of Citronelle, 420 F.3d 1262, 1271 (11th Cir. 2005) (citing
City of Canton v. Harris, 489 U.S. 378, 385 (1989)). The
Supreme Court has explained that the custom or policy must be
the “moving force” behind the constitutional deprivation for
there to be sufficient causation. Monell, 436 U.S. at 694.
Here, the amended complaint plausibly pleads a
constitutional violation: that Hicks and Green used excessive
force on Chance Haegele in violation of his Fourth Amendment
rights by shooting him in the back multiple times. Therefore,
the issue is whether Haegele has sufficiently alleged a custom

or policy perpetuated by Sheriff Judd.
First, Haegele attempts to proceed under the theory that
Sheriff Judd maintained a custom or policy of excessive force,
which caused the shooting death of Chance. (Doc. # 22 at 18).
In support, Haegele relies on Sheriff Judd’s frequent
comments to the media made after various shootings, which
fostered a culture of celebrating excessive force within the
Sheriff’s Office. In reply, Sheriff Judd highlights that
Haegele has not presented evidence about other prior
incidents of excessive force by other deputies and suggests
that such failure precludes a finding of a policy or custom.
(Doc. # 41 at 5-6).

While Sheriff Judd’s point is well taken, his argument
is more appropriate at the summary judgment stage after
Haegele has had the opportunity for discovery. See Holder v.
Gualtieri, No. 8:14-cv-3052-T-33JSS, 2015 WL 4079844, at *4
(M.D. Fla. July 6, 2015)(“As the existence of such a custom
is largely a fact-based issue, the Sheriff’s arguments would
be better suited at the summary judgment stage when Holder
has been afforded additional discovery.”).
Viewing the allegations in the light most favorable to
Haegele, Haegele has sufficiently pled the existence of a
policy or custom of excessive force within the Sheriff’s

Office. Cf. Buckley v. Barbour Cty., Ala., 624 F. Supp. 2d
1335, 1343–44 (M.D. Ala. 2008)(“But even if a policy or custom
which is not unconstitutional on its face requires
‘considerably more proof than the single incident’ to infer
a policy or custom, the County’s argument is more appropriate
at the summary judgment stage. The allegations blaming the
County’s wider practice or custom to forego training, thus,
amount to more than speculation, and the [Section] 1983 claim
against the County will survive a motion to dismiss.”). Thus,
Sheriff Judd’s Motion is denied as to Count V.
E. Motions to Strike
Embedded at the end of each motion to dismiss, Defendants

additionally seek to strike the wrongful death claims brought
under the manslaughter statute, as well as Haegele’s claims
for equitable and injunctive relief, special damages, and
punitive damages. (Doc. # 30 at 14-16; Doc. # 31 at 15-17).
Again, the Court has already dismissed the wrongful
death claims allegedly brought under the criminal
manslaughter statute. So, the motions to strike are denied as
moot on that point.
Regarding the requested damages and other relief, the
Court is not persuaded by Defendants’ argument, which is
devoid of citation to case law. Without the support of

relevant authority, the Court will not strike Haegele’s
requests for equitable or injunctive relief or various types
of damages.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Sheriff Grady Judd’s Motion to Dismiss Amended
Complaint (Doc. # 30) is GRANTED IN PART AND DENIED IN
PART.
(2) Defendants Reginald Green and Joseph Hicks’ Motion to
Dismiss Amended Complaint (Doc. # 31) is GRANTED IN PART
AND DENIED IN PART.
(3) Counts II, III, IV, VI, VII, VIII, IX, X, XI, XII, and

XIII are DISMISSED. Count I is DISMISSED to the extent
it was brought by Haegele individually.
(4) Haegele may file a second amended complaint that is
consistent with this Order within 14 days.
DONE and ORDERED in Chambers in Tampa, Florida, this
2nd day of April, 2020.

figio 9r. Hesnenby (nih
VIR TA M. HERNANDEZ'COVINGTON
UNITED STATES DISTRICT JUDGE

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104897. Public record. Not legal advice.