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 Counts II, IV, VI,

IX, and X of the Second Amended Complaint (Doc. # 38) and the

City of Lakeland’s Motion to Dismiss Count VIII (Doc. # 37),

both filed on November 12, 2020. Plaintiff John Allen

responded on November 25, 2020. (Doc. # 39). For the reasons

that follow, Officer Suttle’s Motion is granted in part and

denied in part and the City’s Motion is 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. #

35 at 3). “Officer Suttle, a Drug Recognition Expert,

initiated the stop to investigate the driver of the vehicle,”

and other officers arrived during the investigation. (Id.).

“Officer Sirera told [] Allen not to scream out or interfere

with the DUI investigation of the driver of the vehicle, which

was being conducted by Officer Suttle.” (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.).

“Once the driver of the vehicle was placed in handcuffs

and in the back of the police cruiser, Officer Suttle started

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

at 4). “Allen responded calmly and was continuously

respectful to his fellow law enforcement officers, even when

shown great disrespect.” (Id.).

The second amended complaint alleges that, “[o]nce the

driver was arrested, the basis for the stop was complete and

therefore [] Allen should have been free to leave the scene.”

(Id.). But, allegedly, “the berating continued” and “Allen

asked the officers multiple times about the basis of his

detainment,” without receiving an answer. (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.). According to the second

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.). Officer Suttle then allegedly yelled “You know what,

get him, get him.” (Id.). “Immediately thereafter, Officer

Pacheco states ‘I’ll take him, I’ll take him,’ and placed []

Allen under arrest for resisting arrest.” (Id.). “There was

no other act that occurred between [] Allen’s single question

and his arrest.” (Id.). According to the second amended

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

arrested and was standing right next to Officer Pacheco when

Officer Pacheco placed [] Allen in handcuffs.” (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. at 5).

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 (Doc. # 8), and

Officers Suttle and the City moved to dismiss certain claims.

(Doc. ## 21, 22). The Court granted those motions on October

19, 2020, dismissing the claims at issue with leave to amend.

(Doc. # 32).

Allen filed his second amended complaint on October 29,

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); state

law false arrest against the City premised on Officer Suttle’s

actions (Count VIII); Section 1983 failure to protect claim

against Officer Suttle (Count IX); and Section 1983 unlawful

seizure claim against Officer Suttle (Count X). (Doc. # 35).

Now, Officer Suttle and the City seek dismissal of all

claims against Officer Suttle and the false arrest claim

against the City based on Officer Suttle’s conduct. (Doc. ##

37, 38). Allen has responded (Doc. # 39), 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. # 35 at 5-6).

“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 second amended complaint does not allege that

Officer Suttle actually arrested Allen. Instead, it alleges

that Officer Suttle had “berate[d] and demean[ed]” Allen and

encouraged Officer Pacheco to arrest Allen by stating “You

know what, get him, get him,” at which point Officer Pacheco

“placed [] Allen under arrest.” (Doc. # 35 at 4). Thus, the

second amended complaint alleges merely that Officer Suttle

was present at the scene and encouraged Officer Pacheco to

arrest Allen. There is no allegation that Officer Suttle was

part of Officer Pacheco’s chain of command.

These allegations are insufficient to state a claim for

false arrest against Officer Suttle that is not based on the

failure to intervene theory. 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).

Officer Suttle’s comment, suggesting that he wanted a fellow

officer to arrest Allen, does not alter the Court’s analysis.

See Brown, 608 F.3d at 737 (holding that false arrest claim

against non-arresting officer failed even though that officer

said “arrest [plaintiff], too”).

Additionally, because Allen has not plausibly alleged a

constitutional violation in Count II, Officer Suttle is

entitled to qualified immunity on Count II. See Id. (“Because

Norris did not arrest Sonia and had no supervisory control

over the officer who did, qualified immunity is

appropriate.”); see also Corbitt v. Vickers, 929 F.3d 1304,

1311 (11th Cir. 2019)(“[I]t is proper to grant a motion to

dismiss on qualified immunity grounds when the ‘complaint

fails to allege the violation of a clearly established

constitutional right.’” (citation omitted)), cert. denied,

207 L. Ed. 2d 1051 (June 15, 2020).

Count II is dismissed with prejudice.

B. Section 1983 Failure to Protect Claim

In Count IX, Allen argues that Officer Suttle violated

his rights by “failing to prevent the unlawful arrest of

[Allen] when he was in a time and place when he could have

done so.” (Doc. # 35 at 12).

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). 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 Cnty., 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).

The allegations of the second amended complaint on the

failure to intervene theory plausibly state a claim. Allen

alleges that Officer Suttle encouraged fellow officers to

arrest Allen and “was standing right next to Officer Pacheco”

when Officer Pacheco arrested Allen. (Doc. # 35 at 4). This

allegation raises the inference that Officer Suttle could

have intervened in the arrest but chose instead to encourage

it. Furthermore, the second amended complaint illustrates

that Officer Suttle was well aware that the sole event

preceding Allen’s arrest was Allen’s calmly asking Officer

Pacheco how long he had been a police officer. (Id.). Given

these allegations, Allen plausibly alleges that Officer

Suttle “was aware there was not even arguable probable cause

to arrest [Allen].” (Id. at 12).

Accordingly, the Motion is denied as to Count IX. Officer

Suttle may raise his arguments again at the summary judgment

stage.

C. 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. # 35 at 8-9).

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 arrested Allen.

On the contrary, the second amended complaint is clear that

Officer Pacheco arrested Allen allegedly because of Allen’s

speech.

While Count IX’s allegations of a failure to intervene

in a false arrest are sufficient under the case law, the

parties have not presented case law — nor is the Court aware

of any — supporting that a bystander officer may be liable

for failure to intervene in the violation of a suspect’s First

Amendment rights.

Thus, Count II is dismissed with prejudice.1

D. Section 1983 Unlawful Seizure Claim

In Count X, Allen alleges that Officer Suttle unlawfully

seized him by detaining him after the driver of the vehicle

was arrested. (Doc. # 35 at 13).

“The Fourth Amendment protects individuals from

unreasonable search and seizure. A traffic stop is a seizure

within the meaning of the Fourth Amendment.” United States v.

Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). “Because a

routine traffic stop is only a limited form of seizure, it is

1 Officer Suttle did not argue that he is entitled to qualified

immunity for the Section 1983 First Amendment claim, nor for

the Section 1983 failure to intervene or unlawful seizure

claims. Indeed, Officer Suttle only argued for qualified

immunity in a single sentence in the Motion’s section on the

Section 1983 false arrest claim. See (Doc. # 38 at

5)(“Qualified immunity should also be granted to Suttle, as

[Allen] has not alleged that Suttle personally participated

in the arrest or was part of the chain of command authorizing

the arrest action.”). As Officer Suttle did not raise the

qualified immunity issue for any other claims, Allen did not

have a sufficient opportunity to respond regarding qualified

immunity for those claims. Therefore, the Court makes no

finding on whether Officer Suttle is entitled to qualified

immunity for the remaining Section 1983 claims. The Court

confines itself to the failure to state a claim arguments

Officer Suttle raised for these counts.

more analogous to an investigative detention than a custodial

arrest.” Id. “Under [Terry v. Ohio, 392 U.S. 1 (1968)], an

officer’s actions during a traffic stop must be ‘reasonably

related in scope to the circumstances which justified the

interference in the first place.’” Id. (quoting Terry, 392

U.S. at 20). “Furthermore, the duration of the traffic stop

must be limited to the time necessary to effectuate the

purpose of the stop.” Id. “The traffic stop may not last ‘any

longer than necessary to process the traffic violation’

unless there is articulable suspicion of other illegal

activity.” Id. (quoting United States v. Holloman, 113 F.3d

192, 196 (11th Cir. 1997)). “Authority for the seizure thus

ends when tasks tied to the traffic infraction are — or

reasonably should have been — completed.” Rodriguez v. United

States, 575 U.S. 348, 354 (2015).

Because this claim relates to Allen’s alleged detainment

after the driver of the vehicle was arrested but before his

own arrest, this claim is not duplicative of Count II for

false arrest.

Also, the second amended complaint plausibly pleads a

claim for an unreasonable seizure. The second amended

complaint alleges that Officer Suttle stopped the vehicle in

which Allen was a passenger for a DUI investigation, during

which time Allen was also detained. (Doc. # 35 at 3). It also

alleges that Allen was not “free to leave the scene” even

after the driver was arrested and placed in a police cruiser;

instead, Officer Suttle “started berating and demeaning []

Allen for no reason at all.” (Id. at 4). Although the second

amended complaint does not explicitly allege the duration of

the detainment, the detainment was long enough for Allen to

ask “multiple times about the basis of his detainment” — a

question Officer Suttle and the others failed to answer.

(Id.). Furthermore, Allen has plausibly alleged that Officer

Suttle was detaining him, as it is alleged that Officer Suttle

initiated the investigation and was close and speaking to

Allen much of the time. (Id. at 3-4).

At the motion to dismiss stage and given the fact-

specific nature of analyzing the reasonableness of a seizure,

the Court finds that Count X should survive. Accordingly, the

Motion is denied as to Count X.

E. Florida False Arrest Claims

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

arrest against Officer Suttle. (Doc. # 35 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 11-12).

“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).

Allen fails to allege that Officer Suttle directly

participated in Allen’s arrest. (Doc. # 35 at 3-4). There is

no allegation that Officer Suttle arrested Allen or

physically restrained Allen during the arrest by Officer

Pacheco. 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.”). While Officer Suttle is alleged

to have encouraged Officer Pacheco’s arrest of Allen, Allen

has not presented any case law in which an officer was held

liable for false arrest under Florida law for being a

supportive bystander.

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

prejudice.

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 prejudice.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Corey Suttle’s Motion to Dismiss Counts II,

IV, VI, IX, and X of the Second Amended Complaint (Doc.

# 38) is GRANTED in part and DENIED in part. Counts IX

and X survive. Counts II, IV, and VI are dismissed with

prejudice.

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

VIII (Doc. # 37) is GRANTED. Count VIII is dismissed

with prejudice.

(3) Defendants’ answers to the surviving counts are due

within 14 days of the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

lith day of December, 2020.

tins Yr. Hnendey Cree

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

17