Real v. Perry

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MAMBERTO REAL,

Plaintiff,

v. Case No: 2:18-cv-331-FtM-29NPM

MICHAEL PERRY, individual

capacity and CITY OF FORT

MYERS, official capacity,

Defendants.

OPINION AND ORDER

On April 28, 2020, the Court reopened the case after a remand

from the Eleventh Circuit affirming in part, reversing in part,

and remanding for consideration of the claims against Perry

pursuant to a Fourth Amendment analysis. (Doc. #73.) The parties

were directed to file supplemental memoranda addressing the Fourth

Amendment analysis and qualified immunity. On June 4, 2020,

plaintiff filed his Supplemental Memorandum (Doc. #76) and on June

12, 2020, defendant filed his Supplemental Response (Doc. #80).

The matter is now ripe for review.

A. Procedural Background

On September 19, 2019, the Court issued an Opinion and Order

(Doc. #64) finding no excessive force under a Fourteenth Amendment

analysis, and no claim against the City because there is no

vicarious liability. The Court granted defendants’ motion to

dismiss, and dismissed the Second Amended Complaint with

prejudice. Judgment (Doc. #65) was entered, the case was closed,

and plaintiff appealed.

On Appeal, the Eleventh Circuit vacated the dismissal of

Officer Michael Perry on the basis of a Fourteenth Amendment

excessive force claim, but affirmed the dismissal of the City of

Fort Myers. The case was remanded to consider that plaintiff was

“seized” pursuant to the Fourth Amendment because Officer Perry

drew his weapon and pointed it at plaintiff, and plaintiff believed

he was not free to leave. The issue of qualified immunity was not

reached.

B. Discretionary Function

A government official acting in the course and

scope of his employment is shielded from suit

against him in his individual capacity if,

while performing a discretionary function, his

conduct did not violate a clearly established

constitutional right of which a reasonable

person would have known. Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed.

2d 396 (1982).[] To survive a motion to dismiss

based upon qualified immunity, the plaintiff

must have alleged sufficient facts to support

a finding of a constitutional violation of a

clearly established law. See Oliver v.

Fiorino, 586 F.3d 898, 905 (11th Cir. 2009).

Although we take the allegations of the

complaint to be true on motion to dismiss, the

complaint must plead “enough facts to state a

claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d

929 (2007). Furthermore, “the tenet that a

court must accept as true all of the

allegations contained in a complaint is

inapplicable to legal conclusions.” Ashcroft

v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173

L. Ed. 2d 868 (2009).

We find no merit to plaintiffs' contention that the

defendants were not exercising their discretionary

authority in implementing this policy. The defendants

established that the acts they undertook are “of a type

that fell within the employer's job responsibilities.”

Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir.

2004).

Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1198–

99, 1198 n.3 (11th Cir. 2012). The fact that the Officer was

performing a discretionary function within his official duties by

responding to a trespassing call is not disputed. (Doc. #80, p.

8.)

C. Clearly Established Constitutional Right

The following facts were summarized by the Court in the

Opinion and Order: On February 15, 2017, around 12:40 am, Officer

Michael Perry approached plaintiff’s car with a flashlight

illuminating the interior of the car without an introduction.

Officer Perry stated “Hey you they do not want you here, I already

know you have driver license, you have five (5) seconds to leave

or I am going to shoot you NIGGER.” (Doc. #59, p. 5.) Officer

Perry started counting to 5, and when he reached 5, Officer Perry

removed his firearm from its holster and pointed it at plaintiff’s

face. At that moment, another officer, Officer Adam J. Miller,

intervened by placing his body between the gun and plaintiff.

Plaintiff alleges that Officer Miller saved his life. Plaintiff

showed that his hands were empty, he had no weapons in the car,

and plaintiff states that he presented no physical threat to the

Officers. (Doc. #64, p. 3.)

As noted by the Eleventh Circuit,

A seizure occurs if, ‘in view of all of the

circumstances surrounding the incident, a

reasonable person would have believed that he

was not free to leave.’ Brendlin v.

California, 551 U.S. 249, 255, 127 S. Ct.

2400, 2405, 168 L. Ed. 2d 132 (2007) (quoting

United States v. Mendenhall, 446 U.S. 544,

554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497

(1980) (citing as an example of a seizure as

when an officer displays a weapon)). Taking

Real’s allegations in his complaint as true,

as we must at a motion to dismiss stage, we

conclude that Real was “seized” when Officer

Perry drew his weapon and pointed it at Real.

We see no justification for the conduct

exhibited by Officer Perry here. In fact, the

Constitution forbids such egregious official

misconduct. Moreover, viewing all the

circumstances surrounding the incident, a

reasonable person would have believed that he

was not free to leave. See Mendenhall, 446

U.S. at 554, 100 S. Ct. at 1877. See also

Florida v. Bostick, 501 U.S. 429, 435–36, 111

S. Ct. 2382, 2386–87, 115 L. Ed. 2d 389 (1991)

(measuring “coercive effect of the encounter”

by asking whether “a reasonable person would

feel free to decline the officer[’s] requests

or otherwise terminate the encounter”).

Although Real’s complaint does not allege that

Officer Perry applied any physical force

against him, there was without question an

initial “show of authority” when Officer Perry

pointed his gun at Real. Cf. California v.

Hodari D., 499 U.S. 621, 626–29, 111 S. Ct.

1547, 1550–52, 113 L. Ed. 2d 690 (1991)

(seizure can occur when a person submits to

the assertion of authority). In making this

decision, we are mindful “that the Fourth

Amendment governs ‘seizures’ of the person

which do not eventuate in a trip to the station

house and prosecution for crime—‘arrests’ in

traditional terminology,” and that “[i]t must

be recognized that whenever a police officer

accosts an individual and restrains his

freedom to walk away, he has ‘seized’ that

person.” Corbitt, 929 F.3d at 1313 (quoting

Michigan v. Summers, 452 U.S. 692, 696 n.5,

101 S. Ct. 2587, 2591 n.5, 69 L. Ed. 2d 340

(1981)).

Real v. Perry, No. 19-13808, 2020 WL 1922914, at *2 (11th Cir.

Apr. 21, 2020). The Court finds that Officer Perry did violate a

clearly established constitutional right by pulling his weapon on

Real so that Real felt he was trapped or seized without the freedom

to go anywhere. The Court finds that a reasonable person would

have would have felt seized.

Based upon the law of the case, the Court finds that the

motion to dismiss will be denied as to the arguments relating to

plaintiff’s ability to present a cause of action, and plaintiff

may proceed on a Fourth Amendment claim of an illegal seizure.

Accordingly, it is hereby

ORDERED:

Defendant’s Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc.#61), upon consideration under the Fourth Amendment

is DENIED. The motion is also denied as to the request for

qualified immunity. Defendant shall file an answer within

FOURTEEN (14) DAYS of this Order.

DONE and ORDERED at Fort Myers, Florida, this 22nd day

of June, 2020.

—_— □ 2, _ f

AA) = Pe

JGHH E. STEELE

5 IGOR UNITED STATES DISTRICT JUDGE

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