Jones v. Barlow

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

HOLLEY JONES,

Plaintiff,

v. Case No.: 2:19-cv-00114-JLB-NPM

ANDREW BARLOW and CHRISTIAN

ROBLES,

Defendants.

/

ORDER

Defendants Andrew Barlow and Christian Robles, both officers in the Fort

Myers Police Department, move for clarification (Doc. 115) regarding this Court’s

order on September 22, 2020, denying their motion for summary judgment as

moot, (Doc. 114). The Court grants Defendants’ motion, vacates its prior order from

September 22, 2020 (Doc. 114), reinstates Defendants’ motion for summary

judgment (Doc. 109), and clarifies the nature of this lawsuit as it presently stands.

More specifically, the Court clarifies that Defendants are being sued in both their

individual and official capacities based on the course of proceedings—although this

fact is not at all clear from the operative pleadings, and the question of capacity

should have been addressed much earlier in the case.

According to Plaintiff Holley Jones’s amended complaint, he was unlawfully

tasered, arrested, and detained by Defendants while shopping at a 7-Eleven. (Doc.

15.) He also claims that Defendants are responsible for a malicious prosecution

against him. ( ) Based on these allegations, Mr. Jones brings five counts against

Defendants under 42 U.S.C. § 1983. Although Mr. Jones’ complaint names

Defendants, it does not specify in which capacity they are being sued. Determining

whether a defendant is being sued in their individual or official capacities is

particularly important in section 1983 cases See Kentucky v. Graham, 473 U.S.

159, 165 (1985) (explaining that personal-capacity suits impose personal liability on

officials, whereas official-capacity suits are another way of pleading an action

against the government entity associated with the official).

For their part, Defendants did not seek any clarification of what capacity

they were being sued under—even though they were clearly confused. For instance,

their answer to the amended complaint was filed only in their official capacity and

not in their individual capacity, (Doc. 33 at 1), which is contradictory to their

subsequent assertion of qualified immunity as an affirmative defense. See Hill v.

Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1185 n.16 (11th Cir. 1994) (explaining

that qualified immunity is only available to defendants sued in their individual

capacity), overruled in part on other grounds, Hope v. Pelzer, 536 U.S. 730, 739 n.9

(2002). Defendants’ answer was signed by a City Attorney with the City of Fort

Myers (“the City”). (Doc. 33 at 12.) Moreover, the attorneys who purport to

represent the City (one of whom signed the City’s eventual motion for summary

judgment) initially filed notices of appearance on behalf of Defendants. Shortly

thereafter, they filed corrected notices indicating that they were only appearing for

Defendants in their official capacity. (Docs. 84–87.)

In any event, the City has clearly assumed that Defendants are being sued in

both their personal and official capacities; that much is clear from how this case has

proceeded. At this late stage, Mr. Jones has been deposed, and he testified that he

intended to sue Defendants in both capacities. (Doc. 111-7 at 101:16–102:4.)

Expert witnesses have apparently been retained and deposed on the question of

whether the events in this case resulted from an unlawful policy or custom by the

City—this would only be relevant if Defendants were being sued in their official

capacities. (Doc. 111-9.) Mr. Jones was permitted to notice a deposition of the City

on topics such as training, protocol, policies, and procedures. (Doc. 71.) Again, this

would only be relevant if Defendants were being sued in their official capacities.

On September 20, 2020, Defendants moved for summary judgment based on,

among other things, the defense of qualified immunity (which, once again, is only

available to them in their individual capacities). (Doc. 109); see also Hill, 40 F.3d at

1185 n.16. The day after Defendants filed their motion for summary judgment, the

City—which is not a named party—filed its own summary judgment motion in an

“abundance of caution.” (Doc. 111 at 2.)1 Because the City was not a named party,

its motion was docketed as a second motion for summary judgment on behalf of

Defendants, with no reference whatsoever as to capacity.

1 Apparently, the City was unsure if the amended complaint’s boilerplate

reference to Defendants as employees of the City who were acting under color of

state law may have implicated the City in the lawsuit. (Doc. 15 at ¶¶6–7; Doc. 111

at 2). A review of settled law might have cleared up this confusion at an earlier

phase. See Graham, 473 U.S. at 165 (“Personal-capacity suits seek to impose

personal liability upon a government official for actions he takes under color of state

law.” (emphasis added)). This is basic section 1983 law.

To compound the confusion, Defendants’ motion for summary judgment had

to be corrected because their counsel initially filed it on behalf of terminated

parties; the correction was made on the same day that the City’s motion for

summary judgment had been filed. As such, on September 22, 2020, the Court

entered an endorsed order denying Defendants’ motion for summary judgment as

moot (Doc. 109) because it believed that they had merely filed a corrected motion.

In fact, the second summary judgment motion was an entirely separate motion for

summary judgment by the City filed “in abundance of caution”—apparently because

the City is still not sure if it is being sued. (Doc. 111.) Defendants now move for

clarification (Doc 115) and the Court obliges.

“When it is not clear in which capacity the defendants are sued, the course of

proceedings typically indicates the nature of the liability sought to be

imposed.” Young Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027, 1047

(11th Cir. 2008) (quoting Jackson v. Ga. Dep't of Trans., 16 F.3d 1573, 1575 (11th

Cir.1994)). The Eleventh Circuit has explained that

[i]n looking at the course of proceedings, courts consider such factors as

the nature of plaintiff's claims, requests for compensatory or punitive

damages, and the nature of any defenses raised in response to the

complaint, particularly claims of qualified immunity which serve as an

indicator that the defendant had actual knowledge of the potential for

individual liability.

Id. at 1047 (citing Moore v. City of Harriman, 272 F.3d 769, 772 n.1 (6th Cir. 2001)).

The Court further notes that

[a]lthough “the course of proceedings” may ultimately reveal in what

capacity the Defendants are being sued, the Defendants should be on

notice of the capacities in which they are sued prior to the summary

judgment stage of the case so that applicable defenses can be

addressed and unnecessary filings and appearances can be avoided.

Woynar v. Chitwood, No. 6:10-CV-1458-28GJK, 2011 WL 5025276, at *5 (M.D. Fla.

Oct. 21, 2011) (emphasis added). Applying the course-of-proceedings test to Mr.

Jones’ amended complaint, the Court determines that the Defendants are being

sued in both their individual and official capacities.

A review of the amended complaint alone might have made the Court unsure

of this result. For instance, Mr. Jones’s amended complaint seeks punitive

damages, which “are only available from government officials when they are sued in

their individual capacities.” (Doc. 15 at 14); Young Apartments, Inc., 529 F.3d at

1047. Moreover, Defendants’ answer and motion for summary judgment raise the

defense of qualified immunity, which is only available to parties being sued in their

individual capacity. (Doc. 33 at ¶27; Doc. 109 at 20–25); Young Apartments, Inc.,

529 F.3d at 1047. Next, the amended complaint contains a malicious prosecution

claim by way of section 1983; this type of claim cannot be brought against parties in

their official capacity under Florida law. See generally C.P. by & through Perez v.

Collier Cty., 145 F. Supp. 3d 1085, 1094 (M.D. Fla. 2015). And finally, the amended

complaint contains no mention whatsoever of an unlawful policy or custom by the

City, which is necessary to support an official-capacity claim. Graham, 473 U.S. at

166 (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).

However, upon review of the entire course of proceedings, Defendants’

individual and official capacities have both been implicated. In his deposition, Mr.

Jones testified that he intended to sue Defendants in both capacities. (Doc. 111-7 at

101:16—-102:4.) Expert witnesses (and the City itself) have been deposed regarding

the City’s policies and customs. (Docs. 71, 111-9.) Attorneys have appeared on

behalf of Defendants in their official capacities. (Docs. 84-87.) In short, both Mr.

Jones and the City have assumed that official-capacity claims exist in this case, and

the course of proceedings has been shaped by this continuing assumption.

Therefore, the Court vacates its prior order from September 22, 2020 (Doc.

114) and reinstates Defendants’ motion for summary judgment (Doc. 109). But the

Court stresses that this exercise could have been avoided if the parties had

addressed the issue of capacity at the inception of this case. The Court is mindful of

the rising costs of litigation; a dispositive motion could be an expensive endeavor for

an interested party (like the City). But a summary judgment motion should very

rarely, if ever, be filed “in [an] abundance of caution.” Whether Defendants were

sued in their individual or official capacities is an important issue that the City

should have clarified at an earlier stage of the litigation.

Accordingly, it is ORDERED:

This Court’s Endorsed Order (Doc. 114) dated September 22, 2020, is

VACATED, and Defendants’ motion for summary judgment in their individual

capacities (Doc. 109) is REINSTATED.

ORDERED in Fort Myers, Florida, on September 29, 2020.

HOA Oabtlenk

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE