Johnson v. Nocco

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARQUES A. JOHNSON,

Plaintiff,

v. Case No. 8:20-cv-1370-T-60JSS

CHRIS NOCCO, in his official capacity

as Sheriff, Pasco County, Florida, and

JAMES DUNN, in his individual capacity,

Defendants.

/

ORDER GRANTING IN PART AND DENYING

IN PART DEFENDANTS’ MOTIONS TO DISMISS

This matter is before the Court on the “Motion to Dismiss the Complaint by

Defendants Deputy Dunn and Sheriff with Supporting Memorandum of Law,” filed

on July 23, 2020. (Doc. 14). On August 20, 2020, Plaintiff Marques A. Johnson

filed his response in opposition. (Doc. 20). Upon review of the motion, response,

court file, and record, the Court finds as follows:

Background1

Plaintiff Marques A. Johnson is suing Deputy James Dunn, in his individual

capacity, and Sheriff Chris Nocco, in his official capacity (collectively, “Defendants”)

for alleged constitutional violations and related state law negligence and tort claims

following his arrest on August 2, 2018. At the time of the incident, Plaintiff was a

passenger in a vehicle driven by his father. Deputy Dunn initiated a traffic stop,

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

ruling on the motion to dismiss.

claiming that he could not see the license plate because it was obstructed by a

trailer. Deputy Dunn was accompanied by two other deputies and a film crew from

the A&E television show “Live PD.”

After initiating the traffic stop, Deputy Dunn approached the passenger side

of the vehicle and requested the driver’s license and vehicle registration. Deputy

Dunn also asked Plaintiff if he had his identification. Plaintiff advised Deputy

Dunn that he was only a passenger and was not required to identify himself.

Deputy Dunn told Plaintiff that under Florida law, Plaintiff was required to identify

himself, and that if he did not do so, Deputy Dunn would remove him from the

vehicle and arrest him for resisting. Another officer repeated these claims and told

Plaintiff that he needed to identify himself. At the request of law enforcement,

Plaintiff’s father identified Plaintiff as his son and provided Plaintiff’s name to the

officers.

The officers then decided to do “a sniff with the dog,” and asked Plaintiff and

his father to exit the vehicle. As Plaintiff began to exit the vehicle, Deputy Dunn

said to another officer that he was “going to take him no matter what because he’s

resisting. . . .” Deputy Dunn directed Plaintiff to put his hands behind his back

and handcuffed him. When Plaintiff asked why he was being arrested, Deputy

Dunn stated that it was for resisting without violence by not giving his name when

it was demanded. Deputy Dunn then conducted a pat-down search and placed

Plaintiff in the back of a police car.

While Plaintiff was in the police car, law enforcement officers brought a dog

to sniff the outside and claim that the dog “alerted” on the passenger side door.

However, officers did not find any drugs in the vehicle. Deputy Dunn also searched

Plaintiff’s wallet, took his identification, and entered his name into a computer.

Deputy Dunn again stated that Plaintiff was being arrested because of his refusal to

provide his identification, claiming that Florida law requires all occupants of

vehicles to give their names. Plaintiff was taken to Pasco County Jail and charged

with the misdemeanor crime of resisting without violence, a violation of § 843.02,

F.S. The criminal case was ultimately dismissed.

Legal Standard

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a

short and plain statement of the claim showing the [plaintiff] is entitled to

relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual

allegations,” it does require “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual

allegations must be sufficient “to state a claim to relief that is plausible on its

face.” Id. at 570.

When deciding a Rule 12(b)(6) motion, review is generally limited to the

four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233

(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a

court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the

[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the

complaint’s legal sufficiency, and is not a procedure for resolving factual questions

or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic

Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9,

2009) (Lazzara, J.).

Analysis

Counts I and III - § 1983 Claims Against Deputy Dunn

Plaintiff alleges § 1983 violations against Deputy Dunn, including claims

based on false arrest and due process. In his motion, Deputy Dunn argues that he

is entitled to qualified immunity because there was actual probable cause to arrest

Plaintiff for resisting without violence. Because Deputy Dunn was working under

the authority of the Pasco 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 v. Vickers,

929 F.3d 1304, 1311 (11th Cir. 2019). 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 v. Creighton, 483

U.S. 635, 640 (1987)). 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)).

Count I: § 1983 False Arrest – Fourth Amendment Claim

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

the proceedings, it relies on the well-pleaded facts alleged by Plaintiff in his

complaint. It is important to note that there is no dispute that Deputy Dunn was

acting within the scope of his discretionary authority when he arrested Plaintiff.

However, viewing the facts in light most favorable to Plaintiff – as the Court is

required to do at the motion to dismiss stage – the arrest of Plaintiff was 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).

Based on the facts alleged in the complaint, Deputy Dunn had probable cause

to initiate a traffic stop based on the obstruction of the license plate. See §

316.605(1), F.S.; English v. State, 191 So. 3d 448, 451 (Fla. 2016). He also had a

valid basis to briefly detain both Plaintiff and his father who was driving the

vehicle. See, e.g., Arizona v. Johnson, 555 U.S. 323, 333 (2009) (temporary

detention of driver and passengers during traffic stop remains reasonable for

duration of the stop); Presley v. State, 227 So. 3d 95, 106 (Fla. 2017) (holding that

officers may temporarily detain passengers during reasonable duration of traffic

stop).

Deputy Dunn had a valid basis to require the driver to provide identification

and vehicle registration. See, e.g., id. (explaining that during a routine traffic stop,

a reasonable duration of time is the length of time necessary for law enforcement to

check the driver license, vehicle registration, and proof of insurance; determine

whether there are outstanding warrants; and write and issue any citations or

warnings). Deputy Dunn did not, however, have a valid basis to also require a

passenger, such as Plaintiff, to provide identification, absent a reasonable suspicion

that the passenger had committed, was committing, or was about to commit a

criminal offense. See § 901.151(2), F.S. (officer may detain person for purpose of

ascertaining identity when officer reasonably believes person has committed, is

committing, or is about to commit a crime); Hiibel v. Sixth Jud. Dist. Ct., 542 U.S.

177, 188 (2004) (holding that an officer may not arrest an individual for failing to

identify himself if the request for identification is not reasonably related to the

circumstances justifying the stop); Berkemer v. McCarty, 468 U.S. 420, 439-40

(1984) (holding that an individual is not required to provide information, including

his identification, to law enforcement officer who lacks probable cause to arrest);

Brown v. Texas, 443 U.S. 47, 52-3 (1979) (holding that law enforcement cannot stop

and demand identification from individual without a specific basis for believing he

is involved in criminal activity); Young v. Brady, 793 F. App’x 905, 909 (11th Cir.

2019) (explaining that although an officer may question a person at any time, the

individual can ignore the questions and go his way without providing the necessary

objective grounds for reasonable suspicion).

It appears that Florida courts have not specifically held that law enforcement

officers may require passengers to provide identification during traffic stops absent

a reasonable suspicion that the passenger had committed, was committing, or was

about to commit a criminal offense. The facts, viewed in the light most favorable to

the Plaintiff, do not involve a claim that Plaintiff had committed, was committing,

or was about to commit a crime. Courts in other jurisdictions have specifically held

that law enforcement officers may not require passengers to provide identification

during traffic stops, absent reasonable suspicion of criminal activity. U.S. v.

Landeros, 913 F.3d 862 (9th Cir. 2019); Stufflebeam v. Harris, 521 F.3d 884 (8th

Cir. 2008).2

Pursuant to existing law on this point, Plaintiff had no obligation to talk to or

identify himself to Deputy Dunn.3 Because Officer Dunn did not have a valid basis

2 Although Landeros and Stufflebeam arose under the laws of Arizona and Arkansas

respectively, Florida would not follow a different approach because the ultimate source of

authority on this issue is the Fourth Amendment as interpreted by the U.S. Supreme

Court, not a specific provision of Florida law. “In 1982, the Florida Constitution was

amended to provide that Florida courts would follow the United States Supreme Court's

decisions in addressing search and seizure issues. See Perez v. State, 620 So.2d 1256, 1258

(Fla.1993).” State v. Jacoby, 907 So. 2d 676, 680 (Fla. 2d DCA 2005).

3 That being said, the Court notes that under Plaintiff’s version of events, although he did

to require Plaintiff to provide identification, he could not arrest Plaintiff based on a

failure or refusal to provide such identification. Moreover, “no Florida court has

found probable cause to arrest a person for obstruction solely on the basis of a

refusal to answer questions related to an ongoing investigation.” Frias v. Demings,

823 F. Supp. 2d 1279, 1286 (M.D. Fla. 2011).

Therefore, the Court finds that, under the well-pled facts of the complaint,

Plaintiff had a legal right to refuse to provide his identification to Deputy Dunn.

As such, Deputy Dunn had neither actual probable cause nor arguable probable

cause to arrest Plaintiff. The Court further finds that based on the Fourth

Amendment itself and the case law discussed, the law was clearly established at the

time of the arrest. Deputy Dunn is not entitled to qualified immunity, and the

motion to dismiss is denied as to this ground.

Count III: § 1983 False Arrest - Fourteenth Amendment Claim

Deputy Dunn argues that Plaintiff 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 Plaintiff alleges

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

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

not personally identify himself, his father actually provided his information prior to his

arrest. So even assuming that there was a lawful basis to require such identification, this

information was provided to law enforcement officers.

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 to dismiss is due to be granted as

to this ground. Count III is dismissed with prejudice, with no leave to amend.

Counts II and IV - § 1983 Claims Against Sheriff Nocco

Count II: § 1983 False Arrest – Fourth Amendment Claim

In his motion, Sheriff Nocco argues that Counts II and IV should be

dismissed because Plaintiff has failed to sufficiently allege Monell claims by failing

to allege a pattern of similar constitutional violations. Under Monell, “[l]ocal

governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or

injunctive relief . . . pursuant to a governmental ‘custom’ even though such a custom

has not received formal approval through the body’s official decisionmaking

channels.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).

Municipalities can only be held liable, however, where “action pursuant to official

municipal policy of some nature caused a constitutional tort;” it cannot be liable

under § 1983 on a respondeat superior theory because it employs a tortfeasor. Id.

at 691. “Supervisor liability arises only ‘when the supervisor personally

participates in the allege constitutional violation or when there is a causal

connection between the actions of the supervising official and the alleged

constitutional deprivation.’” Gross v. Jones, No. 3:18-cv-594-J-39PDB, 2018 WL

2416236, at *4 (M.D. Fla. May 29, 2018) (quoting Mathews v. Crosby, 480 F.3d 1265,

1270 (11th Cir. 2007)). Consequently, “to impose § 1983 liability on a local

government body, a plaintiff must show: (1) that his constitutional rights were

violated; (2) that the entity had a custom or policy that constituted deliberate

indifference to that constitutional right; and (3) that the policy or custom caused the

violation.” Scott v. Miami-Dade Cty., No. 13-CIV-23013-GAYLES, 2016 WL

9446132, at *3 (S.D. Fla. Dec. 13, 2016).

To demonstrate a policy or custom, “it is generally necessary to show a

persistent and wide-spread practice; random acts or isolated incidents are

insufficient.” Id. at *4. The requisite causal connection can be established “when

a history of widespread abuse puts the responsible supervisor on notice of the need

to correct the alleged deprivation, and he fails to do so.” Cottone v. Jenne, 326 F.3d

1352, 1360 (11th Cir. 2003) (internal quotation omitted). “Alternatively, the causal

connection may be established when a supervisor’s custom or policy results in

deliberate indifference to constitutional rights or when facts support an inference

that the supervisor directed the subordinates to act unlawfully or knew the

subordinates would act unlawfully and failed to stop them from doing so.” Id.

(internal quotation and citation omitted).

Plaintiff alleges that his constitutional rights were violated through a custom

or policy of the Sheriff – namely, a failure to adequately train and supervise

deputies who are arresting people without sufficient probable cause. Plaintiff

alleges that each of the officers at the scene incorrectly believed that Plaintiff could

be arrested for failing to provide identification even though there was no legal basis

to demand such identification since he was only a passenger in the vehicle and was

not suspected of criminal activity. Plaintiff also alleges that Sheriff Nocco created

the position of Constitutional Policing Advisor to guide the Sheriff through, and

make recommendations on, the best practices, policies, and procedures. The

Advisor also conducts investigations and responds as necessary to critical incidents.

Plaintiff alleges that the Advisor opined that Plaintiff was lawfully detained during

the traffic stop, lawfully required to provide his identification, and lawfully arrested

for resisting without violence for refusing to do so.

Although Plaintiff does not allege a pattern of similar constitutional

violations by untrained employees, such allegation is not necessarily required to

support a § 1983 claim in this case. Plaintiff alleges that the supervisor – here,

Sheriff Nocco – directed his subordinates to act unlawfully or knew the

subordinates would act unlawfully and failed to prevent them from doing so. See

id. Plaintiff, in fact, contends that the Sheriff ratified this conduct through his

Constitutional Policing Advisor. These allegations are sufficient to state a Monell

claim. The motion to dismiss is denied as to this ground.

Count IV: § 1983 False Arrest - Fourteenth Amendment Claim

As the Court previously discussed, Plaintiff cannot state a claim for relief

under the Fourteenth Amendment because he was not a pretrial detainee at the

time the arrest occurred. The motion to dismiss is due to be granted as to this

ground. Count IV is dismissed with prejudice, with no leave to amend.

Count V – Negligent Hiring, Retention, Training and Supervision Against

Sheriff Nocco

In the motion, Sheriff Nocco argues that he is entitled to dismissal of Count V

because Deputy Dunn’s allegedly wrongful conduct was not committed outside the

scope of his employment with the Sheriff’s Office.4 “Under Florida law, a claim for

negligent hiring, retention, or supervision requires that an employee’s wrongful

conduct be committed outside the scope of employment.” Buckler v. Israel, 680 F.

App’x 831, 834 (11th Cir. 2017). In Count V, Plaintiff does not allege or explain

how Deputy Dunn was acting outside the scope of his employment. As such, the

Court finds that the negligent hiring, retention, and supervision claims of this count

are facially insufficient. Count V is dismissed without prejudice, with leave to

amend.

In addition, the Court finds, sua sponte, that this count constitutes a shotgun

pleading. A shotgun pleading is one where “it is virtually impossible to know

which allegations of fact are intended to support which claim(s) for relief” and the

defendant therefore cannot be “expected to frame a responsive pleading.” See

Anderson v. Dist. Bd. Of Trustees of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th

Cir. 1996). The Eleventh Circuit has identified four primary types of shotgun

4 In the motion itself, Sheriff Nocco briefly asserts that he is entitled to dismissal of the

negligent hiring and retention claims of Count V “because of a lack of factual allegations

that would plausibly suggest that Sheriff was on notice of, or reasonably could have

foreseen, any harmful propensities or unfitness for employment of Deputy Dunn […].” He

also broadly asserts that he is entitled to dismissal of the negligent training claim because

the claim “necessarily involves discretionary government policy making choices, and is thus

protected by sovereign immunity.” Those arguments were not further discussed or

elaborated upon in the memorandum, and the Court does not address them. However,

Sheriff Nocco is not precluded from raising these arguments in future filings if appropriate.

pleadings. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322–23

(11th Cir. 2015). A district court must generally permit a plaintiff at least one

opportunity to amend a shotgun complaint’s deficiencies before dismissing the

complaint with prejudice. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th

Cir. 2018).

In this count, Plaintiff alleges negligent hiring, negligent training, negligent

retention, and negligent supervision. Those are four different concepts. This

improper mixing of claims makes it difficult for Defendants to respond accordingly

and present defenses, and for the Court to appropriately adjudicate this case. In

any amended complaint, Plaintiff should separate his causes of action into separate

counts.

Count VI – Malicious Prosecution Against Deputy Dunn

In the motion, Deputy Dunn argues that Count VI should be dismissed

because actual probable cause existed to support Plaintiff’s arrest. 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 complaint, Plaintiff has alleged facts showing that Deputy Dunn

lacked probable cause to arrest him for obstruction without violence. However, “[a]

police officer who arrests a suspect but does not make the decision of whether or not

to prosecute cannot be liable for malicious prosecution under § 1983.” DeRosa v.

Rambosk, 732 F. Supp. 2d 1285, 1301 (M.D. Fla. Aug. 11, 2010) (citing Eubanks v.

Gerwen, 40 F.3d 1157, 1160-61 (11th Cir. 1994)). In Florida, the decision to

criminally prosecute people who are arrested by law enforcement is vested in

elected State Attorneys, not the arresting law enforcement agencies themselves. In

this case, there are no allegations that Deputy Dunn was in any way involved in the

decision to prosecute Plaintiff. As such, Count VI is dismissed without prejudice,

with leave to amend.

Count VII – Intentional Infliction of Emotional Distress Against Deputy

Dunn

In the motion, Deputy Dunn argues that he is entitled to dismissal of Count

VII because the alleged facts do not establish that his actions were so extreme in

degree as to go beyond all possible bounds of decency to support a claim for

intentional infliction of emotional distress. The Court agrees.

Under Florida law, to establish a claim for intentional infliction of emotional

distress, a plaintiff must allege and prove the following elements: (1) the conduct

was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused

emotional distress; and (4) the emotional distress was severe. Frias, 823 F. Supp.

at 1288. Whether the conduct is sufficiently outrageous – that is to say, goes

beyond all “bounds of decency” and is to be regarded as “odious and utterly

intolerable in a civilized community” – is not a question of fact but rather a matter

of law to be determined by the court. See id. A plaintiff attempting to state a

claim for intentional infliction of emotional distress bears a heavy burden,

particularly when alleging facts that rise to the requisite level of outrageousness.

In this case, Plaintiff has not met the high standard required to show that

Deputy Dunn’s conduct was “beyond all bounds of decency” or that Plaintiff suffered

“severe distress.” See, e.g., Casado v. Miami-Dade Cty., 340 F. Supp. 3d 1320,

1332-33 (S.D. Fla. 2018) (dismissing emotional distress claim after concluding that

officers’ alleged conduct in repeatedly punching arrestee the face, slamming him

into the hood of a car, arresting him without probable cause, and fabricating

evidence against him was not sufficiently outrageous); Frias, 823 F. Supp. 2d at

1289 (“While being subject to false arrest is embarrassing, it is not sufficiently

extreme and outrageous absent some other grievous conduct.”). Consequently, the

motion to dismiss is due to be granted as to this ground. Count VII is dismissed

without prejudice, with leave to amend.

Counts VIII and X – Battery Against Deputy Dunn and Sheriff Nocco

In the motion, Defendants contend that Counts VIII and X should be

dismissed because Deputy Dunn was privileged to use the force used in effecting the

arrest. “If during an arrest excessive force is used, ‘the ordinarily protected use of

force by a police officer is transformed into a battery.’” Prescott v. Greiner, No.

8:16-cv-060-T-27TBM, 2016 WL 8919457, at *4 (M.D. Fla. June 29, 2016) (quoting

Essex Ins. Co. v. Big Top of Tampa, Inc., 53 So. 3d 1220, 1223 (Fla. 2d DCA 2011)).

When analyzing a battery claim based on excessive force, a court considers “whether

the amount of force used was reasonable under the circumstances.” Id. (quoting

City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996)); see also Prescott v.

Oakley, No. 8:16-cv-060-T-27TBM, 2016 WL 8919458, at *4 (M.D. Fla. Dec. 6, 2016)

(dismissing battery claims against deputies because factual allegations regarding

events were insufficient to show use of force was unreasonable).

In this case, Plaintiff has failed to sufficiently allege facts to demonstrate

that the level of force used was unreasonable under the circumstances. As a result,

the motion to dismiss is granted as to this ground. Count VIII is dismissed without

prejudice, with leave to amend. Because the battery claim against Deputy Dunn is

dismissed, Count X against the Sheriff – based on a theory of vicarious liability –

will also be dismissed, with leave to amend. See id.

Count IX – Negligence Against Sheriff Nocco

In the motion, Sheriff Nocco argues that he is entitled to dismissal of Count

IX because Plaintiff has failed to sufficiently allege a duty of care and damages.

Although Plaintiff generally alleges that the Sheriff owed him a “duty of care,” the

nature of the duty is vague and unclear. It is also unclear what and how Sheriff

Nocco breached any alleged duty to Plaintiff, and the damages that were sustained

as a result of the alleged negligence. As a result, the motion is granted as to this

ground. Count IX is dismissed without prejudice, with leave to amend. Plaintiff

should take care to not plead duplicative counts against the Sheriff, and if he

decides to refile this count, he should ensure that this claim is distinguishable from

Count V (negligent hiring, retention, training, and supervision).

Counts XI and XII – False Imprisonment and Arrest Against Deputy Dunn

and Sheriff Nocco

In the motion, Defendants argue that Count XI should be dismissed because

actual probable cause existed to support Plaintiff’s arrest. “Under Florida law,

false arrest and false imprisonment are different labels for the same cause of

action.” Artubel v. Colonial Bank Group, Inc., No. 8:08-cv-179-T-23MAP, 2008 WL

3411785, at *9 (M.D. Fla. Aug. 8, 2008) (internal quotation omitted); see also

Anderson v. City of Groveland, No. 5:15-cv-26-Oc-30PRL, 2015 WL 6704516, at *6

(M.D. Fla. Nov. 2, 2015). “[T]he existence of probable cause is an absolute bar to a

claim for false arrest or false imprisonment.” Id.

In his complaint, Plaintiff has alleged facts showing that Deputy Dunn

lacked probable cause to arrest him for obstruction without violence. As such,

Plaintiff’s claims for false imprisonment and false arrest against Defendants may

proceed at this time. The motion to dismiss is denied as to these grounds.

It is therefore

ORDERED, ADJUDGED, and DECREED:

(1) The “Motion to Dismiss the Complaint by Defendants Deputy Dunn and

Sheriff with Supporting Memorandum of Law” (Doc. 14) is hereby

GRANTED IN PART and DENIED IN PART.

(2) The motion is GRANTED as to Counts III, IV, V, VI, VII, VIII, IX, and X.

(3) Counts III and IV of Plaintiff's complaint are DISMISSED WITH

PREJUDICE.

(A) Counts V, VI, VII, VIII, IX, and X of Plaintiffs complaint are

DISMISSED WITHOUT PREJUDICE, with leave to amend.

(5) The motion is DENIED as to Counts IJ, IJ, XI, and XII.

(6) Plaintiff is directed to file an amended complaint to correct the pleading

deficiencies identified in this Order on or before November 30, 2020.

Failure to file an amended complaint by the deadline will result in this

Order becoming a final judgment as to Counts V, VI, VII, VIII, IX, and X.

See Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co.,

953 F.3d 707, 719-20 (11th Cir. 2020).

DONE and ORDERED in Chambers, in Tampa, Florida, this 13th day of

November, 2020.

ae | if? J

UNITED STATES DISTRICT JUDGE

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