# Allen v. Pacheco

> District Court, M.D. Florida · October 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10106145

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** October 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106145. Public record. Not legal advice.