Hope v. Taylor

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ELIZABETH D. HOPE,

Plaintiff,

v. Case No. 8:20-cv-196-T-33AAS

AUSTIN TAYLOR, individually,

and CHARLES R. WELLS, in his

official capacity as Sheriff of

Manatee County, Florida,

Defendant.

________________________________/

ORDER

This matter is before the Court on consideration of the

Motions to Dismiss filed on February 25, 2020, by Defendants

Charles R. Wells, in his official capacity as Sheriff of

Manatee County, Florida, and Austin Taylor. (Doc. ## 10, 11).

On March 3, 2020, Plaintiff Elizabeth Hope responded in

opposition. (Doc. ## 17, 18). On March 10, 2020, Sheriff Wells

filed a reply. (Doc. # 21). For the reasons given below, the

Motions are granted in part and denied in part.

I. Background

On January 24, 2020, Hope initiated this lawsuit, which

arises from a dog bite. (Doc. # 1). On June 3, 2019, Hope was

sitting on the patio of a residence in Bradenton, Florida.

(Id. at 3). At the same time, Manatee County Sheriff’s Deputy

Austin Taylor was on patrol with his K9, Niko. (Id.). Deputy

Taylor saw a car that matched the description of a stolen

vehicle, so he chased the car until it stopped at an

intersection, at which point three young men left the car and

began running on foot. (Id.).

Deputy Taylor also left his patrol car and

“intentionally plac[ed] K9 Niko off-lead to chase” the young

men. (Id.). When Deputy Taylor and Niko came to a railroad

guard rail, Niko stopped, but Deputy Taylor ordered the dog

to jump over the guard rail and continue the pursuit. (Id. at

4). One of the suspects jumped onto a van, and Deputy Taylor

ordered Niko to continue chasing another suspect “through the

same location that [Hope] was at.” (Id.). Niko was still off-

lead. (Id.).

Niko passed Hope and another woman and, after passing

Hope, Niko “abruptly stopped, and immediately focused its’

attention on [Hope][.]” (Id.). Hope alleges that Deputy

Taylor failed to recall Niko or give any warnings to Hope and

other nearby bystanders. (Id. at 5). As Hope alleges, “Niko

then viciously attacked [her], unreasonably seizing her and

subjecting her to excessive force in violation of her Fourth

and Fourteenth Amendment rights.” (Id.). Niko bit Hope’s

right arm, causing “severe damage.” (Id.). According to the

complaint, Deputy Taylor reported that he placed himself

between Niko and Hope to prevent further damage and that he

was eventually able to remove Niko. (Id.).

Hope alleges that Deputy Taylor acted intentionally

and/or with reckless disregard with respect to all of the

events described above, and that no reasonable officer would

have acted the way Deputy Taylor did. (Id. at 3-5). What’s

more, during the pursuit, Deputy Taylor intentionally left

his radio in his patrol car. (Id. at 5). This hindered the

deputy’s ability to report his location to dispatch or request

emergency medical services for Hope. (Id. at 6).

Hope alleges that, prior to June 3, 2019, Niko had

“reported issues with recall, which were known to [Sheriff

Wells], and he intentionally and/or with reckless disregard

for the safety of others, continued to use K9 Niko in law

enforcement.” (Id. at 3). Relatedly, Hope alleges that

Sheriff Wells failed to implement adequate policies,

practices, customs, training, and supervision: (1) to prevent

Deputy Taylor from having problems recalling Niko; (2) of K9

Niko after having prior problems with recall; (3) to prevent

Deputy Taylor from having problems attaching his portable

radio to his vest; and (4) of K9 dogs and handlers with the

use of e-collars (an electric shock device) to gain control

of dogs who disobey commands. (Id. at 6-7).

On the basis of these allegations, Hope brings a claim

under 42 U.S.C. § 1983 for unreasonable seizure in violation

of the Fourth and Fourteenth Amendments against Deputy Taylor

(Count One). (Id. at 8-11). She also brings a Section 1983

claim against Sheriff Wells for deliberately indifferent

policies, practices, customs, training, and supervision, in

violation of the Fourth and Fourteenth Amendments (Count

Two). (Id. at 11-14). Finally, Hope brings an alternative

negligence claim against Sheriff Wells (Count Three). (Id. at

14-15).

Sheriff Wells and Deputy Taylor each filed Motions to

Dismiss for failure to state a claim, seeking dismissal of

the claims against them. Hope has responded, and the Motions

are ripe for review.

II. Legal Authority

When considering a motion to dismiss brought under 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, this 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). However, the Supreme

Court explains that:

While 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). Instead, the plaintiff

must plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). The Court must limit its consideration to well-pled

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. Hope’s Fourth Amendment Claim

Deputy Taylor and Sheriff Wells raise the same argument

in their Motions — because Deputy Taylor did not intend to

seize Hope, there was no “seizure,” and thus no Fourth

Amendment claim. (Doc. # 10 at 4; Doc. # 11 at 2, 3).

In response, Hope argues that a seizure may occur even

where the person bitten, or “seized,” was not the intended

person or suspect. (Doc. # 17 at 2-3; Doc. # 18 at 2-3). She

contends that a “reasonable inference” may be drawn from her

allegations that Deputy Taylor intended to harm Hope or other

bystanders by his conduct with regard to Niko. (Doc. # 17 at

3; Doc. # 18 at 3).

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).

The federal right at issue here is a citizen’s Fourth

Amendment right to be free from unreasonable searches and

seizures. U.S. Const., Am. IV. To assert a Fourth Amendment

violation, a plaintiff must allege that (1) a seizure

occurred, and (2) the force used to effect the seizure was

objectively unreasonable. Troupe v. Sarasota Cty., 419 F.3d

1160, 1166 (11th Cir. 2005).

The Supreme Court has written, in the context of a

concealed roadblock used in a high-speed chase, that

“[v]iolation of the Fourth Amendment requires an intentional

acquisition of physical control. A seizure occurs even when

an unintended person or thing is the object of the detention

or taking, but the detention or taking itself must be

willful.” Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989)

(citations omitted). In other words, a Fourth Amendment

seizure occurs “only when there is a governmental termination

of freedom of movement through means intentionally applied.”

Id. at 596-97 (emphasis in original). While the Court declined

to draw “too fine a line,” it said “[w]e think it is enough

for a seizure that a person be stopped by the very

instrumentality set in motion or put in place in order to

achieve that result.” Id. at 598-99.

In general, no seizure occurs when innocent bystanders

are harmed by police actions. See, e.g., Claybrook v.

Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (no seizure

occurred when a plaintiff was accidentally shot by police who

were attempting to apprehend someone else); Bublitz v.

Cottey, 327 F.3d 485, 489 (7th Cir. 2003) (holding that

injuries caused when a police device deployed to deflate a

fleeing suspect’s automobile tires inadvertently caused loss

of control in a car driven by the non-suspect plaintiff were

not redressable under the Fourth Amendment).

Courts take a different tack in cases involving police

dogs, however. This is because “[o]nce deployed, a police-

dog is generally unable to discriminate between suspects and

innocent parties and is generally trained to bite whomever it

encounters, facts suggesting the officer’s intention to seize

whomever the dog ultimately does encounter.” Gangstee v.

County of Sacramento, No. S-10-1004, 2012 WL 112650, at *5

(E.D. Cal. Jan. 12, 2012). Following this logic, numerous

courts across the country have held that innocent bystanders

bitten by police dogs while those dogs were searching for a

suspect have been “seized” for purposes of the Fourth

Amendment. See Rogers v. City of Kennewick, 304 F. App’x 599,

601 (9th Cir. 2008) (“Although [plaintiff] was not the actual

suspect that the police officers sought, the police K-9’s

biting of [plaintiff] constituted a seizure under the Fourth

Amendment.”); Vathekan v. Prince George’s Cty., 154 F.3d 173,

178-79 (4th Cir. 1998) (holding that where a police officer

allowed his dog to pass through an interior door because he

mistakenly believed the person inside to be a burglar, he

intended that the dog find and bite the person inside, and

“[b]ecause [the officer] deployed the dog to find, bite, and

detain the person who turned out to be [plaintiff], she was

seized under the Fourth Amendment”); see also Collins v.

Schmidt, 326 F. Supp. 3d 733, 740 (D. Minn. 2018) (holding

that a bystander bitten by a police dog in the course of a

search had been seized under the Fourth Amendment); Brown v.

Whitman, 651 F. Supp. 2d 1216, 1218-19, 1225 (D. Colo. 2009)

(holding that plaintiff, “who had the misfortune of being in

her backyard at the time of the search,” was seized when she

was bitten by a police dog who was off leash and searching

for two suspected carjackers).

For example, in Mancini v. City of Indianapolis,

“officers released a[] . . . canine while in pursuit of a

suspect fleeing a traffic stop. Hearing a commotion and

hearing her dog barking, Ms. Mancini stepped out of the front

door to her home. When she did so, [the] canine, who was

inside of Ms. Mancini’s fenced yard, attacked and mauled her.”

No. 16-2048, 2017 WL 4250112, at *1 (S.D. Ind. Sept. 26,

2017). The court denied the City’s motion to dismiss because

this seizure could be viewed as unreasonable. Id. at *5.

“[Law enforcement officers] intentionally set the

instrumentality in motion that caused [plaintiff’s] seizure

by ‘directing [the] canine’ onto her property and inside of

her fenced yard. [Plaintiff] alleges intent in that [the]

canine is trained to seize the first person it sees (with the

hope that the person would be the suspect); thus, the dog

intentionally seized [plaintiff].” Id.

By way of another example, in Garcia v. City of

Sacramento, “officers were pursuing a suspect, Manuel Prasad.

. . . Hearing the sirens and police helicopters, Plaintiff

walked over to a neighbor’s backyard to speculate why law

enforcement was in the neighborhood. Suddenly, Plaintiff was

attacked by [K-9] Bandit.” No. 10-826, 2010 WL 3521954, at *1

(E.D. Cal. Sept. 8, 2010). The court denied the City’s motion

to dismiss because the complaint sufficiently alleged a

seizure. It explained that the officers “consciously deployed

Bandit to search for and subdue Mr. Prasad. Even though Bandit

attacked the wrong person, the [c]omplaint adequately alleges

that Defendants had sufficient intent to use Bandit as a force

to terminate freedom of movement.” Id. at *2.

This Court agrees with the reasoning of these decisions

and holds that Hope has sufficiently alleged a seizure for

Fourth Amendment purposes. While her complaint does not

specifically allege that Niko or other K-9s used by the

Manatee County Sheriff’s Office are trained in the bite-and-

hold technique or are trained to bite the first person they

encounter, such an inference in reasonable given the well-

pled allegations in the complaint. See Stephens, 901 F.2d at

1573.

Sheriff Wells attempts to distinguish this case from an

earlier case out of this district involving a police dog

biting the wrong person. (Doc. # 21 at 3-4). In Trammell v.

Thomason, the court held that a Fourth Amendment seizure had

occurred when the plaintiff, an innocent bystander, was

bitten by a police dog searching for a burglary suspect. 559

F. Supp. 2d 1281, 1284-85, 1295 (M.D. Fla. 2008). As the court

explained, “[o]nce Officer Dorough entered Cooper’s backyard

with Yacco, his intent was to apprehend [the suspect] using

Yacco. Yacco is trained in the ‘bite and hold’ method when

apprehending a suspect, thus it is clear that once Officer

Dorough and Yacco entered the backyard, Officer Dorough

expected Yacco to perform as he was trained to do – that is,

to ‘bite and hold’ the suspect in Cooper’s backyard.” Id. at

1293.

Despite the Defendants’ arguments, Trammel does not

compel a different result here – nothing in that decision

mandates that a Fourth Amendment seizure can occur only upon

a case of mistaken identity. Indeed, the case law from outside

this Circuit shows that not to be the case. Sheriff Wells

argues that, “[u]nlike the situation here, the K-9 in Trammell

performed exactly as was intended by his handler.” (Doc. # 21

at 4). But even if Niko did not perform as expected or as

intended, Hope’s complaint nevertheless alleges that Deputy

Taylor intentionally deployed Niko to apprehend fleeing

suspects, let Niko off leash in order to do so, and gave Niko

multiple commands to continue the search, including through

an area populated by bystanders. Thus, there was a

“governmental termination of freedom of movement through

means intentionally applied” because Hope was stopped “by the

very instrumentality set in motion or put in place to achieve

that result.” Brower, 489 U.S. at 597; see also Mancini, 2017

WL 4250112, at *5; Brown, 651 F. Supp. 2d at 1225 (“[E]ven

though [plaintiff] was not the intended suspect, her freedom

to leave was terminated by [the officer’s] intentional

release of his police dog into her yard.”).

As Defendants do not contest whether force was

unreasonably applied or any other facet of a Fourth Amendment

claim, the Court likewise limits itself to a determination of

whether Hope was seized within the meaning of the Fourth

Amendment. Taking the allegations of the complaint as true,

she was, and Defendants’ Motions to Dismiss are denied as to

this claim.

B. Hope’s Fourteenth Amendment Claim

Defendants argue that Deputy Taylor’s actions do not

rise to the requisite level of “conscious shocking behavior

needed to assert a Fourteenth Amendment substantive due

process claim.” (Doc. # 10 at 5-8; Doc. # 11 at 2, 3-4).

Deputy Taylor contends that mere recklessness is insufficient

to impose constitutional liability because officers must

often make quick decisions under pressure.1 (Doc. # 11 at 4).

The Supreme Court has explained that “[w]here a

particular Amendment provides an explicit textual source of

constitutional protection against a particular sort of

government behavior, that Amendment, not the more generalized

notion of substantive due process, must be the guide for

analyzing these claims.” Albright v. Oliver, 510 U.S. 266,

273 (1994) (plurality opinion of Rehnquist, C.J.) (quoting

Graham v. Connor, 490 U.S. 386, 395 (1989)). Put another way,

“Graham simply requires that if a constitutional claim is

covered by a specific constitutional provision, such as the

Fourth or Eighth Amendment, the claim must be analyzed under

the standard appropriate to that specific provision, not

1 Deputy Taylor also argues that Hope’s claim for injunctive

relief must be denied, but Hope asserted in her response that

she is not seeking injunctive relief against Deputy Taylor.

(Doc. # 11 at 4-5l Doc. # 17 at 1).

under the rubric of substantive due process.” United States

v. Lanier, 520 U.S. 259, 272 n.7 (1997).

In a later case involving a fatal high-speed police

chase, the Supreme Court relied on these precedents to

determine that a substantive due process claim under the

Fourteenth Amendment is “inappropriate . . . only if

respondents’ claim is ‘covered by’ the Fourth Amendment.”

Cty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). The

Court went on to hold that the claim there was not “covered

by” the Fourth Amendment because there had been no seizure.

Id. at 843-44. Accordingly, because there was no specific

constitutional provision that applied, the Lewis Court went

on to analyze the claim under the Fourteenth Amendment’s

substantive-due-process rubric. Id. at 844.

Here, Hope attempts to bring a Fourteenth Amendment due

process claim based on her right to bodily integrity, along

with a Fourth Amendment unreasonable-seizure claim. (Doc. #

1 at 9, 12). To the extent that these claims are one and the

same because they arise out of the same event – the police

dog bite – Hope may not bring a claim under the Fourteenth

Amendment because she may bring this claim under a more

specific constitutional provision. See Graham, 490 U.S. at

395; Lewis, 523 U.S. at 843-44; see also McCall v. Williams,

No. 2:10-cv-417-WHA, 2010 WL 3324407, at *2-3 (M.D. Ala. Aug.

20, 2010) (“Because [plaintiff] claims that [defendant] used

excessive force in the course of a ‘seizure’ of [plaintiff’s]

person, [plaintiff’s] claim must be governed by the Fourth

Amendment and its ‘reasonableness’ standard, and

[plaintiff’s] Fourteenth Amendment claim is due to be

dismissed.”).

To the extent Hope seeks to allege this bodily-integrity

claim separately, however, it still fails. “The touchstone of

due process is protection of the individual against arbitrary

action of government.” Lewis, 523 U.S. at 845 (quoting Wolff

v. McDonnell, 418 U.S. 539, 558 (1974)). The types of

governmental abuses of power that rise to the level of a

substantive due process violation are those actions that

“shock[] the conscience.” Id. at 846-47. “[C]onduct intended

to injure in some way unjustifiable by any government interest

is the sort of official action most likely to rise to the

conscience-shocking level.” Id. at 849 (citing Daniels v.

Williams, 474 U.S. 327, 331 (1986) (“Historically, this

guarantee of due process has been applied to deliberate

decisions of government officials to deprive a person of life,

liberty, or property” (emphasis in original))).

Whether conduct that is reckless or grossly negligent

suffices as the basis of a Fourteenth Amendment claim is a

“closer call[]” and “demands an exact analysis of

circumstances before any abuse of power is condemned as

conscious shocking.” Id. at 849-50. In Lewis, the Court drew

a parallel between the actions at issue there (a high-speed

car chase) and those actions taken during a prison riot due

to the officers’ inability in both situations to make measured

decisions with due deliberation. Id. at 852-53; cf. Graham,

490 U.S. at 397 (“[P]olice officers are often forced to make

split-second judgments — in circumstances that are tense,

uncertain, and rapidly evolving.”).

The Court agrees with Defendants that Deputy Taylor’s

conduct here was not the sort of official government conduct

that “shocks the conscience” as must be shown to state a claim

under the Fourteenth Amendment. The Court agrees with the

well-reasoned analysis offered in Mancini on this point:

The “conscience-shocking” standard with its intent

requirement is the correct standard for police

chases – on foot or otherwise – under the Fourteenth

Amendment. Both parties agree that [plaintiff] was

an innocent bystander and [the police] did not

intentionally set out to harm her with deliberate

action. The allegation that general knowledge that

the police canine is trained to violently attack

and could potentially harm someone is not

sufficient to prove [the officers’] intent to harm

[plaintiff ] under a shocks-the-conscience

standard.

Mancini, 2017 WL 4250112, at *3. For these reasons, Hope’s

Fourteenth Amendment claim is dismissed.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) The Motions to Dismiss filed by Defendants Charles R.

Wells, in his official capacity as Sheriff of Manatee

County, Florida, and Austin Taylor (Doc. ## 10, 11) are

GRANTED IN PART and DENIED IN PART as set forth herein.

(2) Defendants are directed to file their answers to the

complaint within 14 days of the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this 3rd

day of April, 2020.

tami 9. Hanenbyy Cree.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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