Cushman v. City of Largo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

NATALIA CUSHMAN,

Plaintiff,

v. Case No. 8:19-cv-496-T-60SPF

CITY OF LARGO, et al.,

Defendants.

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ORDER GRANTING IN PART AND DENYING IN PART “DEFENDANT,

BRIAN LIVERNOIS’ MOTION FOR SUMMARY JUDGMENT AND

INCORPORATED MEMORANDUM OF LAW”

This matter is before the Court on “Defendant, Brian Livernois’ Motion for

Summary Judgment and Incorporated Memorandum of Law” and supporting

exhibits, filed on June 30, 2020. (Docs. 121; 122). On July 14, 2020, Plaintiff

Natalia Cushman filed her response in opposition and supporting exhibits. (Docs.

124; 125; 126). Upon review of the motion, response, court file, and record, the

Court finds as follows:

Background1

Plaintiff Natalia Cushman is suing Officer Brian Livernois, in his individual

capacity, for alleged constitutional violations and related state law tort claims

following her arrest at an L.A. Fitness gym.2 At the time of the incident, Cushman

1 The Court construes the facts in light most favorable to the Plaintiff for the purpose of

ruling on the motion for summary judgment.

2 The Court notes that Cushman’s claims against L.A. Fitness have been stayed pending

arbitration. (Doc. 82).

was approximately sixty years old. On January 2, 2016, she was at the L.A.

Fitness gym located in Largo, Florida. Cushman was in the sauna with another

woman, who was later identified as Liudmila Buell. Another woman, later

identified as Cristal Valdez, entered the sauna dressed in workout clothing and

wearing tennis shoes, which is in violation of the sauna rules. Cushman, feeling

that this was unsanitary, left the sauna and went to the front desk to address her

concerns. The front desk employee told Cushman to wait in the women’s locker

room while a manager was notified.

In the meantime – unbeknownst to Cushman – an altercation had ensued

between Buell and Valdez in the sauna. Valdez alleged that Buell had punched

her in the face. Valdez reported the incident to the front desk, but after she was

ignored, she called the Largo Police Department to report the alleged battery.

Officer Livernois was conducting an investigation into this alleged battery.

He entered the women’s locker room where Cushman was sitting unclothed but

wrapped in a sheet. According to Cushman, she complied with Officer Livernois’s

order to stand. When he asked her for her name, Cushman first asked who he was

and what he was doing there. But when Officer Livernois asked for her name a

second time, she gave it to him.

Despite her compliance, Officer Livernois decided to arrest her – he grabbed

her right hand, twisting it behind her back and handcuffing it. Then, he pushed

her face forcefully into a nearby locker door as he handcuffed her left hand. He

pushed her on the bench and requested that the front desk staff help Cushman put

on her leggings. Cushman asked to wear her underwear first, and Officer

Livernois responded that if she wanted her underwear, she would be going to jail

naked in her sheet. He dragged her out of the gym and put her in a police car

while Cushman was wearing only the sheet and no shoes. Cushman maintains

that Officer Livernois never told her why she was being arrested.

Cushman began to experience difficulty breathing. After her arrest, she was

taken to Largo Medical Center, where she was diagnosed with a sprained wrist and

contusions related to the force Officer Livernois used during the arrest.

Cushman was charged with resisting arrest with violence. She spent the

night in jail and had to obtain criminal defense counsel. The next day, she was

released on bond. The Pinellas County State Attorney’s Office investigated the

case and determined that it did not warrant prosecution.

Legal Standard

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary

judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of

material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no

genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1260 (11th Cir. 2004). When the moving party has discharged its burden, the

nonmoving party must then designate specific facts showing the existence of

genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or

evidence, the nonmoving party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the nonmoving party’s favor. Shotz v. City of

Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).

Analysis

Count VII – § 1983 Claims

Cushman alleges § 1983 violations against Officer Livernois, including claims

based on false arrest and excessive force. In his motion, Officer Livernois argues

that he is entitled to qualified immunity. Because Officer Livernois was working

under the authority of the Pinellas County Sheriff’s Office at the time of the

incident, Plaintiff must overcome his right to claim qualified immunity. See

Cornett v. City of Lakeland, No. 8:06-cv-2386-T-17TBM, 2008 WL 2740328, at *7

(M.D. Fla. July 10, 2008).

“Qualified immunity is an immunity from suit rather than a mere defense to

liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (internal quotation

omitted). Consequently, it is important to resolve questions of immunity at the

“earliest possible stage in litigation.” Id. at 231. As the United States Supreme

Court has explained,

The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known. Qualified immunity balances

two important interests – the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their

duties reasonably. The protection of qualified immunity applies

regardless of whether the government official’s error is a mistake of

law, a mistake of fact, or a mistake based on mixed questions of law

and fact.

Id. (internal quotations and citations omitted).

To overcome a qualified immunity defense, a plaintiff must establish (1) the

allegations make out a violation of a constitutional right; and (2) if so, the

constitutional right was clearly established at the time of the defendant’s alleged

misconduct. Id. at 232 (citing Saucier v. Katz, 533 U.S. 194 (2001)); Corbitt, 929

F.3d at 1311. However, courts may exercise their discretion when deciding which

of the two prongs should be addressed first, depending upon the unique

circumstances in each particular case. Pearson, 555 U.S. at 236; Corbitt, 929 F.3d

at 1311. In fact, a court “may grant qualified immunity on the ground that a

purported right was not ‘clearly established’ by prior case law without resolving the

often more difficult question whether the purported right exists at all.” See Reichle

v. Howards, 566 U.S. 658, 665 (2012).

“For a right to be clearly established, ‘the contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.’” Corbitt, 929 F.3d at 1311 (quoting Anderson, 483 U.S. at 640).

After all, officials are not obligated “to be creative or imaginative in drawing

analogies from previously decided cases,” and a general “awareness of an abstract

right . . . does not equate to knowledge that [an official’s] conduct infringes the

right.” Id. at 1311-12 (quoting Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir.

2011)). “In this circuit, the law can be ‘clearly established’ for qualified immunity

purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of

Appeals, or the highest court of the state where the case arose.” Shuford v.

Conway, 666 F. App’x 811, 816-17 (11th Cir. 2016) (quoting Jenkins by Hall v.

Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997)).

§ 1983 False Arrest – Fourth Amendment Violation

Because the Court is considering the qualified immunity issue at this stage of

the proceedings, it relies on the well-pleaded facts alleged by Cushman in her fourth

amended complaint, and it views all evidence in light most favorable to Cushman.

It is important to note that there is no real dispute that Officer Livernois was acting

within the scope of his discretionary authority when he arrived at the gym and

arrested Cushman. However, viewing the facts in light most favorable to Cushman

– as the Court is required to do at the summary judgment stage – her arrest was

unprovoked and unlawful.

An officer who makes an arrest without actual probable cause is still entitled

to qualified immunity in a § 1983 action if there was “arguable probable cause” for

the arrest. Brown v. City of Huntville, Ala., 608 F.3d 724, 734 (11th Cir. 2010).

“Arguable probable cause exists if, under all of the facts and circumstances, an

officer reasonably could – not necessarily would – have believed that probable cause

was present.” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004).

It appears to the Court that Officer Livernois had either probable cause or

arguable probable cause to enter the locker room and briefly detain Cushman

during his investigation of the battery. It also appears that he had a valid basis to

question Cushman, including asking her to identify herself, during the course of his

investigation. However, under Cushman’s version of events detailed in her

affidavit and deposition, she complied with Officer Livernois’s orders – standing up

when directed to do so and giving her name the second time that he asked for it.

According to Cushman, she did not obstruct Officer Livernois’s investigation or

resist his orders. As such, under these facts, there was no probable cause or

arguable probable cause to arrest Cushman for resisting arrest without violence.3

See § 843.02, F.S. (a person who resists, obstructs, or opposes an officer without

offering or doing violence is guilty of a first degree misdemeanor). The motion for

summary judgment is denied as to this ground.

§ 1983 Excessive Force – Fourth Amendment Violation

To the extent that Cushman alleges that Officer Livernois used excessive

force against her, the Court finds that Officer Livernois is not entitled to qualified

immunity. The Eleventh Circuit has repeatedly held that “a police officer violates

the Fourth Amendment, and is denied qualified immunity, if he or she uses

gratuitous and excessive force against a suspect who is under control, not resisting,

and obeying commands.” See Sebastian v. Ortiz, 918 F.3d 1301, 1308 (11th Cir.

3 The Court notes that if Cushman had declined to cooperate or provide any information to

Officer Livernois, or even if she responded with profanity, Officer Livernois would still not

have probable cause or arguable probable cause to arrest her for such conduct. See Alston

v. Swarbrick, 954 F.3d 1312, 1219 (11th Cir. 2020) (concluding that officer lacked arguable

probable cause to arrest individual because it was clearly established at the time of the

arrest that mere words could not support probable cause for resisting without violence).

2019) (citing Stephens v. DeGiovanni, 852 F.3d 1298, 1328 (11th Cir. 2017)).

Furthermore, in circumstances similar to those alleged here, the Eleventh Circuit

has held that an officer using force against an individual he has no probable cause

or arguable probable cause to arrest is not entitled to qualified immunity as to

excessive force claims when the individual does not pose a danger to the officer or

others. See Sheth v. Webster, 145 F.3d 1231, 1238 (11th Cir. 1998) (affirming

district court’s denial of qualified immunity where, under the plaintiff’s allegations,

the officer pushed her against a soda machine, handcuffed her, and dragged her to

the police car although there was no evidence in the record to suggest the plaintiff

posed a danger to the officer or others); Thornton v. City of Macon, 132 F.3d 1395,

1400 (11th Cir. 1998) (concluding that officers without a warrant or probable cause

“were not justified in using any force, and a reasonable officer thus would have

recognized that the force used was excessive”); Alexandre v. Ortiz, 789 F. App’x 169,

176 (11th Cir. 2019) (“Our caselaw is clearly established that the use of gratuitous

force on a non-resisting arrestee would violate the Fourth Amendment.”).

In her affidavit and deposition, Cushman contends that Officer Livernois had

no probable cause or arguable probable cause to arrest her and that he used

excessive force by pushing her against a row of lockers to forcibly handcuff her

although she offered no resistance. At this stage of the proceedings, the Court is

required to draw all inferences in light most favorable to Cushman. As such, the

Court cannot conclude that Officer Livernois is entitled to qualified immunity as to

Cushman’s excessive force claim, and the motion for summary judgment is denied

as to this ground. See id. (denying summary judgment because, under plaintiff’s

version of events, he was not resisting arrest).

Fourteenth Amendment Claims

Officer Livernois argues that Cushman cannot state a cause of action under

the Fourteenth Amendment. The Court agrees. Pretrial detainees enjoy the

protection afforded by the Due Process Clause of the Fourteenth Amendment, which

ensures that no state shall “deprive any person of life, liberty or property, without

due process of law.” U.S. Const. amend. XIV. To the extent that Cushman alleges

her Fourteenth Amendment rights were violated during her arrest, the Court finds

that she cannot state a claim for relief because she was not a pretrial detainee at

the time the arrest occurred. See, e.g., C.P. by and through Perez v. Collier Cty.,

145 F. Supp. 3d 1085, 1091-92 (M.D. Fla. 2015) (dismissing Fourteenth Amendment

claim where allegations of excessive force solely related to excessive force used

during arrest of the plaintiff). Consequently, the motion for summary judgment is

due to be granted as to this ground.

Count VI – Battery Against Officer Livernois

To prevail on a battery claim under Florida law, a plaintiff must establish

that the defendant intended to cause harmful or offensive contact with the plaintiff

or a third person and that offensive contact directly or indirectly resulted from that

conduct. See Geidel v. City of Bradenton Beach, 56 F. Supp. 2d 1359, 1367 (M.D.

Fla. 1999). It is undisputed that Officer Livernois’s conduct resulted in harmful

contact to Cushman. Officer Livernois instead relies on statutory immunity to

argue that the Court should grant summary judgment in his favor.

Florida’s sovereign immunity statute provides that an officer cannot be held

personally liable in tort unless the officer acted in bad faith. § 768.28(9)(a), F.S.;

Ortega v. Schramm, 922 F.2d 684, 693 (11th Cir. 1991). “Generally, courts are

reluctant to strip officers of their immunity under section 768.28(9)(a) of the Florida

Statutes.” See Eiras v. Florida, 239 F. Supp. 3d 1331, 1344 (M.D. Fla. 2017). It is

not enough to merely allege that a defendant acted maliciously and in bad faith.

Id. (citing Brivik v. Law, 545 F. App’x 804, 807 (11th Cir. 2013)). In the context of

torts such as battery, the term “bad faith” has been equated with actual malice.

See id (“Courts construing the bad faith prong of section 768.28 use the actual

malice standard. . .”).

Moreover, “the mere fact that an officer may have acted without probable

cause is not enough to pierce the officer’s immunity.” Id. (citing Caldwell v. Nocco,

No. 8:14-cv-2167-T-30AEP, 2015 WL 9302835, at *5 (M.D. Fla. Dec. 22, 2015)). In

actuality, “not every arrest lacking probable cause is made in bad faith and

Florida’s waiver of sovereign immunity clearly contemplates that an agent can

commit a wrongful, and even intentional, act and still lack bad faith.” Id. (internal

quotations omitted).

Cushman does not directly address Officer Livernois’s claimed statutory

immunity in her response in opposition to the summary judgment motion.

Construing her response liberally, it appears that she may believe the lack of

probable cause or arguable probable cause establishes malice or bad faith.

However, the absence of probable cause or arguable probable cause is insufficient to

deprive an officer of statutory immunity under Florida law. See, e.g., id. (“[U]nder

Florida law, the absence of probable cause standing alone will not deprive an officer

of immunity under section 768.28.”); Dunn v. City of Boynton Beach, Fla., 192 F.

Supp. 3d 1310, 1325 (S.D. Fla. June 14, 2016) (allegation that officer acted in

absence of lawful authority was insufficient to pierce statutory immunity).

Furthermore, Cushman has failed to present any evidence to raise a question of fact

as to whether Officer Livernois acted with actual malice – she appears to only rely

on a theory of legal malice to support her claims. See Alexandre v. Ortiz, 789 F.

App’x 169, 177 (11th Cir. 2019) (concluding that there was not sufficient evidence to

raise an issue of fact as to whether the officer acted with malice in effectuating

arrest). Consequently, based on the record, the Court finds that Officer Livernois

is entitled to statutory immunity as to Cushman’s battery claim under state law.

The motion for summary judgment is granted as to Count VI.

Count V – Malicious Prosecution

Under Florida law, the elements of the tort of malicious prosecution are: “(1)

an original judicial proceeding against the present plaintiff was commenced or

continued; (2) the present defendant was the legal cause of the original proceeding;

(3) the termination of the original proceeding constituted a bona fide termination of

that proceeding in favor of the present plaintiff; (4) there was an absence of

probable cause for the original proceeding; (5) there was malice on the part of the

present defendant; and (6) the plaintiff suffered damages as a result of the original

proceeding.” Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). A

plaintiff’s failure to establish any one of these elements is fatal to a malicious

prosecution claim. Eiras v. Baker, No. 3:16-cv-231-J-34PDB, 2019 WL 423319, at

*17 (M.D. Fla. Feb. 4, 2019).

In his motion, Officer Livernois argues that Cushman cannot establish that

there was an absence of probable cause or that he possessed the requisite malice.

He also argues that he is entitled to statutory immunity under § 768.28(9)(a). The

Court agrees that Officer Livernois is entitled to statutory immunity as to the state

law malicious prosecution claim.

Cushman generally alleges that Officer Livernois acted with a malicious

purpose, and she argues that malice can be legally inferred from his actions in

arresting her. When considering whether a plaintiff asserting a malicious

prosecution claim has pierced § 768.28(9)(a)’s statutory immunity, “courts are

divided as to whether the actual or legal malice standard applies.” Eiras v.

Florida, 239 F. Supp. 3d 1331, 1346 (M.D. Fla. 2017). It appears to the Court that

the more appropriate standard here requires a plaintiff to establish actual malice to

defeat a claim of statutory immunity. See Gurrera v. Palm Beach County Sheriff’s

Office, 657 F. App’x 886, 892 (11th Cir. 2016) (finding that officers were entitled to

immunity in state law malicious prosecution claim where the plaintiff did not

plausibly allege actual malice); Moore v. Seminole County, Fla., No. 6:13-cv-224-Orl-

31GJK, 2014 WL 4278774, at *6 (M.D. Fla. Aug. 29, 2014) (explaining that although

legal malice may be sufficient to prevail on a malicious prosecution claim under

Florida law, it is not sufficient to overcome the statutory immunity conferred by §

768.28(9), F.S.). As such, because Cushman has failed to provide any evidence of

actual malice, the Court finds that Officer Livernois is entitled to statutory

immunity on the malicious prosecution claim. The motion for summary judgment

is granted as to Count V.

It is therefore

ORDERED, ADJUDGED, and DECREED:

(1) “Defendant, Brian Livernois’ Motion for Summary Judgment and

Incorporated Memorandum of Law” (Doc. 121) is hereby GRANTED IN

PART and DENIED IN PART.

(2) The motionis GRANTED to the extent that the Court finds that Officer

Livernois is entitled to summary judgment on Counts VII (Fourteenth

Amendment claims only), Count VI, and Count V. The Court will enter a

final judgment once all claims have been resolved.

(3) The motion DENIED to the extent that the Court finds there are

genuine issues of material fact as to Count VII (Fourth Amendment false

arrest and excessive force claims).

DONE and ORDERED in Chambers, in Tampa, Florida, this 4th day of

September, 2020.

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UNITED STATES DISTRICT JUDGE

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