Allen v. Pacheco

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHN ALLEN,

Plaintiff,

v. Case No. 8:20-cv-1846-T-33JSS

RICHARD PACHECO,

COREY SUTTLE, and

THE CITY OF LAKELAND,

Defendants.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Corey Suttle’s Motion to Dismiss (Doc. # 22) and

the City of Lakeland’s Motion to Dismiss (Doc. # 21), both

filed on September 29, 2020. Plaintiff John Allen responded

on October 13, 2020. (Doc. # 31). For the reasons that follow,

the Motions are granted.

I. Background

In December 2018, “Allen, a police officer for the

University of South Florida Police Department, was a

passenger in a vehicle which was stopped by members of the

Lakeland Police Department for a DUI investigation.” (Doc. #

8 at 3). “Officer Sirera told [] Allen not to scream out or

interfere with the DUI investigation of the driver of the

vehicle.” (Id.). In response, “Allen was respectful and calm

and assured Officer Sirera that he would not interfere with

the investigation.” (Id.). He “behaved as promised.” (Id.).

“For an unknown reason, Officer Suttle started berating

and demeaning [] Allen for no reason at all.” (Id.). “Allen

responded calmly and was continuously respectful to his

fellow law enforcement officers, even when shown great

disrespect.” (Id.).

Officer Suttle allegedly yelled the following at Allen:

“[y]ou’re lucky. You just barely missed the threshold for me

taking your ass to jail.” (Id. at 4). According to the amended

complaint, this statement shows that “Officer Suttle would

agree that [] Allen had not committed any crime at this

point.” (Id.). “Officer Suttle and the other officers present

continued to berate and demean [] Allen, asking him how long

he has been an officer. [] Allen continued to remain calm and

politely answered the officers’ questions.” (Id.).

“The berating of [] Allen by Officer Suttle and the other

officers continued and as a result, [] Allen calmly asked

Officer Pacheco, ‘how long have you been a police officer.’”

(Id.). “Immediately thereafter, Officer Pacheco placed []

Allen under arrest for resisting arrest. There was no other

act that occurred between [] Allen’s single question and his

arrest.” (Id.).

“As a result of the arrest, [] Allen spent 1 day in jail

and was placed on Administrative Leave at the University of

South Florida Police Department from December 4, 2018 -

January 21, 2018.” (Id.). “On January 8, 2019, the State

Attorney’s Office made the decision to no file the charges

against [] Allen.” (Id.).

Allen initiated this action on August 7, 2020, against

Officer Suttle, Officer Pacheco, and the City. (Doc. # 1). He

filed an amended complaint on August 28, 2020, asserting the

following claims: Section 1983 false arrest against Officer

Pacheco (Count I); Section 1983 false arrest against Officer

Suttle (Count II); Section 1983 violation of freedom of speech

against Officer Pacheco (Count III); Section 1983 violation

of freedom of speech against Officer Suttle (Count IV); state

law false arrest against Officer Pacheco (Count V); state law

false arrest against Officer Suttle (Count VI); state law

false arrest against the City premised on Officer Pacheco’s

actions (Count VII); and state law false arrest against the

City premised on Officer Suttle’s actions (Count VIII). (Doc.

# 8).

Now, Officer Suttle and the City seek dismissal of

certain claims in the amended complaint. (Doc. ## 21, 22).

Allen has responded (Doc. # 31), and 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

Officer Suttle seeks dismissal of all claims against

him. The City seeks dismissal of the state false arrest claim

against it premised on Officer Suttle’s actions. The Court

will address each claim in turn.

A. Section 1983 False Arrest Claim

In Count II, Allen asserts a claim under Section 1983

for false arrest against Officer Suttle. (Doc. # 8 at 5).

“In order to state a claim under 42 U.S.C. § 1983, a

plaintiff must allege that: (1) a person acting under color

of state law; (2) deprived him or her of a right secured by

the Constitution.” Jones v. Brown, 649 F. App’x 889, 890 (11th

Cir. 2016). False arrest is “a violation of the Fourth

Amendment and a viable claim under [Section] 1983.” Id. “A

claim for false arrest arises when an arrest occurs without

a warrant and without probable cause.” Id.

“[T]o establish [Section] 1983 liability, a plaintiff

must show ‘proof of an affirmative causal connection’ between

a government actor’s acts or omissions and the alleged

constitutional violation, which ‘may be established by

proving that the official was personally involved in the acts

that resulted in the constitutional deprivation.’” Simmons v.

Eddins, No. 3:15CV163/MCR/EMT, 2015 WL 10433461, at *3 (N.D.

Fla. Dec. 14, 2015)(quoting Zatler v. Wainwright, 802 F.2d

397, 401 (11th Cir. 1986)), report and recommendation

adopted, No. 3:15CV163/MCR/EMT, 2016 WL 868235 (N.D. Fla.

Mar. 4, 2016). “The plaintiff must thus show that the

defendant actually made the arrest (or, where the arrest was

pursuant to a warrant, that the defendant swore out the

affidavit supporting the arrest warrant), or that the

defendant was part of the arresting officer’s chain of command

authorizing the arrest.” Id. “Merely being present with the

arresting officers at the scene is not enough, unless the

plaintiff can show that the defendant officer was part of the

chain of command authorizing the arrest action.” Brown v.

City of Huntsville, 608 F.3d 724, 737 (11th Cir. 2010).

Here, the amended complaint does not allege that Officer

Suttle actively participated in Allen’s arrest. Instead, the

amended complaint alleges that Officer Suttle had “berate[d]

and demean[ed]” Allen, at which point Allen asked Officer

Pacheco how long he had been an officer and Officer Pacheco

“placed [] Allen under arrest.” (Doc. # 8 at 4). Thus, the

amended complaint alleges at most that Officer Suttle was

present at the scene when Officer Pacheco decided — by himself

— to arrest Allen. As Officer Suttle persuasively puts it,

Allen “does not allege factual allegations that [Officer]

Suttle made the decision to arrest [Allen] or that [Officer]

Pacheco’s decision to arrest [Allen] was based on anything

other than [Officer] Pacheco’s own observations.” (Doc. # 22

at 3); see Dawson v. Jackson, No. 2:16-CV-01738-RDP, 2017 WL

3620254, at *6 (N.D. Ala. Aug. 23, 2017)(“Plaintiff’s claim

of false arrest against Defendant Watson falters because

Watson was not the person that performed the arrest. The video

clearly shows that it was Defendant Jackson who arrested

Plaintiff. . . . While Watson called Jackson over and informed

him that Plaintiff was obstructing government operations,

Watson himself did not perform the arrest or in any way

command Jackson to arrest Plaintiff.”), aff’d, 748 F. App’x

298 (11th Cir. 2018). And there is no allegation that Officer

Suttle was part of the chain of command authorizing the arrest

by Officer Pacheco.

Allen also argues in his response that Officer Suttle

should be held liable for false arrest because he “had the

opportunity to intervene in the arrest” and “prevent the

arrest,” but failed to do so. (Doc. # 31 at 4). True, the

Eleventh Circuit has “not preclude[d] all failure to

intervene claims against a present, but non-arresting,

officer in false arrest cases” and has said that “a

participant in an arrest, even if not the arresting officer,

may be liable if he knew the arrest lacked any constitutional

basis and yet participated in some way.” Wilkerson v. Seymour,

736 F.3d 974, 980 (11th Cir. 2013); Quick v. Geddie, 763 F.

App’x 909, 915 (11th Cir. 2019)(“An officer who is present

and in a position to intervene to prevent another officer

from violating the constitutional rights of an arrestee can

be held liable for his inaction.”). Regarding the failure to

intervene theory, one district court has explained:

In contrast to excessive force cases, where the

Eleventh Circuit has recognized a duty to intervene

by non-participant officers, the liability of

present, non-arresting officers in the context of

false arrest cases depends on “both the degree of

participation in the arrest and the amount of

information available to the non-arresting officer,

because a non-arresting officer does not have a

duty to investigate the basis of another officer’s

arrest.”

Johnson v. DeKalb Cty., Georgia, 391 F. Supp. 3d 1224, 1246

(N.D. Ga. 2019)(quoting Wilkerson, 736 F.3d at 980), appeal

dismissed sub nom. Johnson v. Fulton, No. 19-12552-GG, 2020

WL 3865138 (11th Cir. Jan. 8, 2020).

Nevertheless, although a claim against a present, non-

arresting officer for failing to intervene may be viable in

certain circumstances, the amended complaint here fails to

allege that Officer Suttle had the opportunity to intervene

in Allen’s arrest. And other assertions in the response —

that “Officer Suttle was aware that [] Allen was being

arrested and was standing right next to Officer Pacheco when

Officer Pacheco placed [] Allen in handcuffs” — are missing

from the amended complaint. (Doc. # 31 at 4); see also Gibbons

v. McBride, 124 F. Supp. 3d 1342, 1381 (S.D. Ga. 2015)(“A

complaint may not be amended by briefs in opposition to a

motion to dismiss.”).

For these reasons, Allen has not pled a plausible claim

of false arrest against Officer Suttle. See Brown, 608 F.3d

at 736 (“Plaintiff Brown’s false arrest claim against

Defendant Anderson also fails. Norris, not Anderson, made the

decision to arrest Brown. Brown does not identify any conduct

of Defendant Anderson that would support a false arrest claim

against him.”). Thus, Count II is dismissed with leave to

amend.

B. Section 1983 Freedom of Speech Claim

In Count IV, Allen asserts a claim under Section 1983

against Office Suttle for violating his First Amendment

rights. (Doc. # 8 at 7-9).

It is true that “law enforcement officers may not arrest

an individual as a way ‘to thwart or intrude upon First

Amendment rights otherwise being validly asserted.’” Toole v.

City of Atlanta, 798 F. App’x 381, 387 (11th Cir.

2019)(citation omitted). Nevertheless, this claim fails for

the same reason as the Section 1983 false arrest claim: there

is no allegation that Officer Suttle actually participated in

Allen’s arrest. Thus, Count II is dismissed with leave to

amend.

C. Florida False Arrest Claims

In Count VI, Allen asserts a claim for state law false

arrest against Officer Suttle. (Doc. # 8 at 10). Likewise, in

Count VIII, Allen asserts a claim for false arrest against

the City for Officer Suttle’s action under the theory of

vicarious liability. (Id. at 11).

“Under Florida law, a claim for false arrest has three

elements: (1) an unlawful detention and de[p]rivation of

liberty against the plaintiff’s will; (2) an unreasonable

detention which is not warranted by the circumstances and (3)

an intentional detention.” Deegan v. City of Homestead, No.

16-22820-CIV, 2017 WL 11497366, at *7 (S.D. Fla. Feb. 10,

2017). “The gravamen of the tort of false arrest is the

unlawful restraint of a person against that person’s will.”

Id. (quoting City of St. Petersburg v. Austrino, 898 So. 2d

955, 957 (Fla. 2d DCA 2005)). “[T]o be liable for false

arrest, a person must actively and personally participate,

either directly or indirectly by procurement, in the unlawful

restraint of another person against his or her will[.]” Id.

(quoting Jibory v. City of Jacksonville, 920 So. 2d 666, 667

n.1 (Fla. 1st DCA 2005)). “Florida law permits a plaintiff to

recover against a municipality on a theory of vicarious

liability.” Mbano v. City of St. Petersburg, No. 8:14-cv-

1923-T-30TBM, 2016 WL 777815, at *3 (M.D. Fla. Feb. 29, 2016).

Just as with the Section 1983 false arrest claim, Allen

has failed to allege that Officer Suttle directly

participated in Allen’s arrest. (Doc. # 8 at 3-4). There is

no allegation that Officer Suttle participated in Officer

Pacheco’s decision to arrest Allen or physically restrained

Allen during the arrest. See Deegan, 2017 WL 11497366, at *8

(“[T]he Court finds that the Complaint does not allege that

Kent directly participated in Plaintiff’s arrest. For

example, it does not allege that Kent had any role in

preparing the arrest warrant, physically restraining

Plaintiff, or otherwise depriving Plaintiff of her

liberty.”). Nor did Officer Suttle indirectly participate in

the arrest, because he is not a private citizen who instigated

Allen’s arrest. See Id. (“[T]he Court finds that the Complaint

does not allege that Kent indirectly participated in the

arrest by procurement because the ‘indirect procurement’

theory of liability applies only to a private citizen

instigating the arrest of another.”). Thus, Count VI against

Officer Suttle is dismissed with leave to amend.

Because Allen has not pled a plausible false arrest claim

against Officer Suttle, he has not pled a plausible false

arrest claim against the City based on Officer Suttle’s

actions. “Under Florida law, ‘where an agent or employee is

found to have no liability, then a judgment cannot stand

against the principal or employer on the basis of vicarious

liability or respondeat superior.’” Hernandez v. Sosa, No.

11-21479-CIV, 2012 WL 4148890, at *7 (S.D. Fla. July 9,

2012)(quoting Molinda v. Watkins, 824 So.2d 959, 963 (Fla. 3d

DCA 2002)). Therefore, Count VIII against the City is also

dismissed with leave to amend.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Corey Suttle’s Motion to Dismiss (Doc. # 22)

is GRANTED. Counts II, IV, and VI are dismissed.

(2) Defendant City of Lakeland’s Motion to Dismiss (Doc.

# 21) is GRANTED. Count VIII is dismissed.

(3) If he wishes, Plaintiff John Allen may file a second

amended complaint by October 30, 2020, only to correct

the deficiencies in these counts.

DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of October, 2020.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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