Hope v. Taylor

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ELIZABETH DIANE HOPE,

Plaintiff,

v. Case No. 8:20-cv-196-VMC-AAS

AUSTIN TAYLOR,

and CHARLES RICHARD WELLS,

Defendants.

______________________________/

ORDER

This matter comes before the Court pursuant to Defendant

Austin Taylor’s Motion for Summary Judgment (Doc. # 46), filed

on December 17, 2020, Defendant Charles Richard Wells’s

Motion for Partial Summary Judgment (Doc. # 44), filed on

December 17, 2020, and Plaintiff Elizabeth Diane Hope’s

Motion for Summary Judgment (Doc. # 43), filed on December

16, 2020. For the reasons discussed below, Deputy Taylor’s

Motion is granted in part and denied in part, Sheriff Wells’s

Motion is granted, and Ms. Hope’s Motion is denied.

I. Background

The following facts are undisputed. On the evening of

June 3, 2019, Ms. Hope was sitting at a table outside her

friend’s home playing dominoes. (Doc. # 43-1 at 36:1-21). The

home was situated in a residential area, across the street

from a small field. (Id. at 34:1-35:2).

That same night, around 6:00 PM, Deputy Taylor began his

shift. (Doc. # 43-2 at 12:13-18). Deputy Taylor is an officer

who works with the K-9 unit of the Manatee County Sheriff’s

Office. (Id. at 5:2-12). As Deputy Taylor was driving his

patrol vehicle, he noticed a black Ford with tags matching a

vehicle listed as stolen. (Id. at 12:15-13:9, 14:11-13).

Circling around, Deputy Taylor pulled in behind the

suspected stolen vehicle. (Id. at 14:14-15:13). As he was

reporting this over his radio, the vehicle quickly pulled out

of the parking lot and drove away. (Id.). Deputy Taylor

followed the vehicle at high speeds until it stopped in front

of a residence. At this point, Deputy Taylor witnessed three

young males, around fifteen to eighteen years old, flee the

vehicle. (Id. at 16:4-17:17).

Deputy Taylor stopped his vehicle and released his K-9

partner Niko. (Id. at 16:22-17:12). Niko is trained to bite

and hold suspects, securing the individual until his officer

gives either the “release” command or physically removes him.

(Id. at 26:22-37:14; Doc. # 44-3 at ¶ 7).

Upon exiting the vehicle, Deputy Taylor gave Niko the

“engage” command, which is a command “to apprehend . . . the

people that were running.” (Doc. # 43-2 at 17:11-15). An

“apprehension” command and “bite” command are “loosely” the

same thing, as the dogs are trained to apprehend individuals

by “grab[bing] ahold and just kind of hold[ing] the suspect.”

(Doc. # 43-5 at 32:22-33:10). Once told to engage, Niko began

running, off-lead, towards the suspects. (Doc. # 43-2 at

17:11-12, 19:11-16, 26:13-17).

As Deputy Taylor was releasing Niko, the suspects were

crossing a guardrail next to a set of train tracks. (Id. at

20: 7-16). Niko failed to jump over the guardrail after the

suspects until prompted by Deputy Taylor. (Id. at 13-16).

After Deputy Taylor gave the “up” command, Niko cleared the

guardrail and ran in the direction of the suspects. (Id.).

Deputy Taylor followed, running to keep up. (Id. at 34:1-7).

At this point, the suspects were crossing an open field.

(Id. at 22:20-21). One suspect jumped on the roof of a nearby

van, while another ran to the right towards the residential

area where Ms. Hope was playing dominoes. (Id. at 24:19-

25:11, 25:16-19). Niko continued to run in the direction of

the suspect who went right, towards the residences. (Id. at

25:16-19). The suspect ran between an alleyway behind the

houses. (Id. at 28:9-15).

At this point, Niko encountered Ms. Hope and the parties’

stories diverge. In his deposition, Deputy Taylor testified

that Niko was walking past Ms. Hope, uninterested, until Ms.

Hope screamed, flipped a table, and started swinging her arms.

(Id. at 31:7-10). Deputy Taylor stated that the commotion

attracted Niko’s attention, causing the dog to turn and face

Ms. Hope. (Id. at 32:18-21).

Upon watching Niko lose sight of his target, Deputy

Taylor testified that he began administering the recall

command “here” and the “fuey” command, or “bad command,” to

tell Niko “[he] didn’t want [Niko] to go for those people.”

(Id. at 34:1-14).

According to Deputy Taylor, Niko responded to these

commands and started coming back towards him, but Ms. Hope

grabbed a chair and began using it as a shield between herself

and Niko. (Id. at 33:21-23). Ms. Hope “took the chair and

was, essentially, trying to push [Niko] away with the chair.”

(Id. 34:19-25). Deputy Taylor testified that this whole time,

he was running “straight towards” Niko through the open field

and giving him the recall and fuey command. (Id. at 34:1-11,

35:22-24). Despite these commands, Niko interpreted Ms.

Hope’s actions as aggression and responded by biting Ms.

Hope’s arm. (Id. at 35:1-3).

“[A]s soon as [Niko] bit Ms. Hope,” Deputy Taylor

testified that he “took off running after him just to go get

ahold of him.” (Id. at 35:22-24). When asked whether he was

“still giving commands” while Niko “[was] on [Ms. Hope’s]

arm,” Deputy Taylor admitted that “no commands were given,”

“not after [Niko] got on her.” (Id. at 35:21-26:3). But as

soon as Deputy Taylor reached the dog, physically grabbed its

collar, and “was trying to get the dog off of [her],” he gave

the fuey and release, or “let go,” command. (Id. at 35:20-

36:3, 36:15-18). Deputy Taylor estimated that Niko was “on

[Ms. Hope’s] arm” for “less than five seconds.” (Id. at 36:5).

According to Ms. Hope’s version of events, she was

sitting outside with friends when she watched a large dog run

across a field after some boys. (Doc. # 43-1 at 38:14-39:8).

She thought the dog belonged to the boys, as she was unaware

a police search was being conducted and Deputy Taylor did not

warn the neighborhood he was releasing a dog in the area.

(Id. at 36:21-24; 39:2-12, 47:16-17; 43-11 at 5).

Ms. Hope did not realize Niko was a police dog until it

got closer, at which point she was terrified. (Doc. # 43-1

95:6-7). In her deposition, Ms. Hope explained that she tried

to go inside with her companions, but “[she] was sitting [at]

the table, so [she] couldn’t get up as quick as them.” (Id.

at 41:4-16).

Before Ms. Hope could get to safety, Niko lost sight of

his target and began “looking all around.” (Id. at 43:9-15).

He turned and “clocked his eyes on [Ms. Hope].” (Id. at 43:9-

15, 43:19-24, 95:1-3). According to Ms. Hope, Niko was

“watching” her with his “ears up,” which is a sign that he is

“targeted . . . and will immediately pursue.” (Id. at 43:19-

24, 95:1-3; 43-2 at 31:24-25). Ms. Hope testified that while

Niko was watching her, she did not hear Deputy Taylor attempt

to recall Niko with a “here” or “fuey” command. (Doc. # 43-1

at 43:9-15, 47:11-48:11, 95:22-96:7, 98:4; Doc. # 43-11 at

5). Instead, according to Ms. Hope’s sworn interrogatories,

Deputy Taylor watched, without verbally intervening, as Niko

came “right towards” her and jumped on her. (Doc. # 43-11 at

5; Doc. # 43-1 at 98:4-7).

At that point, Niko latched onto Ms. Hope’s arm and did

not let go. (Doc. # 43-1 at 99:6-17). According to Ms. Hope,

Deputy Taylor still did not issue a verbal command to release.

(Id. at 47:16-48:4, 96:12-22; Doc. # 43-2 at 35:20-36:3).

Only when Deputy Taylor reached the fray and was “trying to

get the dog off of [her]” did Ms. Hope hear Deputy Taylor say

anything, although she did not understand what he was saying.

(Doc. # 43-1 at 47:16-4). Even then, Niko did not respond to

Deputy Taylor’s command, and was only removed when Deputy

Taylor physically pulled the dog off Ms. Hope. (Doc. # 43-2

at 36:15-18).

Ms. Hope estimated during her deposition that the bite

lasted anywhere from three to five minutes. (Doc. # 43-1 at

52:15-17). Her expert witness opines that the severity of the

wound indicates a bite of at least two minutes, and that “Niko

would not have inflicted [a wound that severe] if he bit and

then quickly released.” (Doc. # 49-1 at 6).

As a result of Niko’s bite, Ms. Hope suffered severe

injuries, including infection, to the point where she “had to

have the whole thing cut out and have the whole arm

restructured.” (Doc. # 43-1 at 56:15-24, 58:17-24, 60:12-13).

No Manatee County Sheriff’s Office policy authorizes the

use of a K-9 to bite an innocent bystander, nor is there a

policy that allows an officer to continue a K-9 attack on a

bystander he comes to realize is innocent. (Doc. # 44-3 at ¶¶

8-9; Doc. # 44-5 at 4-5).

In the past, Niko has bitten at least one innocent

bystander. (Doc. # 43-9 at 3-4). Additionally, a list of

Niko’s previous deployments reflects that Niko has bitten

suspects to the bone and frequently needs to be removed from

suspects by physical means. (Doc. # 50-1).

Based on the aforementioned events, Ms. Hope filed the

instant action on January 24, 2020, alleging three counts:

(1) unreasonable seizure in violation of the Fourth and

Fourteenth Amendments against Deputy Taylor in his individual

capacity, pursuant to 42 U.S.C. § 1983 (Count I), (2)

deliberately indifferent policies, practices, customs,

training, and supervision in violation of the Fourth and

Fourteenth Amendments against Sheriff Wells in his official

capacity as Sheriff of Manatee County, in violation of 42

U.S.C. § 1983 (Count II), and (3) a state negligence claim

against Sheriff Wells in his official capacity as Sheriff of

Manatee County pursuant to Florida Statute § 768.28 (Count

III). (Doc. # 1).

Discovery is complete, and the parties have filed their

respective Motions for Summary Judgment. (Doc. ## 43, 44,

46). All parties have responded (Doc. ## 47, 48, 49, 50).

Only Sheriff Wells moved to file a reply, which the Court

granted. (Doc. ## 53, 54, 55). The Motions are now ripe for

review.

II. Legal Standard

Summary Judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,

1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986)). “When a moving party has discharged

its burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).

“Summary judgment may be inappropriate even where the

parties agree on the basic facts, but disagree about the

factual inferences that should be drawn from these facts.”

Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d

1294, 1296 (11th Cir. 1983). If there is a conflict between

the parties’ allegations or evidence, the non-moving party’s

evidence is presumed to be true and all reasonable inferences

must be drawn in the non-moving party’s favor. Shotz v. City

of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). If

a reasonable fact finder evaluating the evidence could draw

more than one inference from the facts, and if that inference

introduces a genuine issue of material fact, the court should

not grant summary judgment. Samples ex rel. Samples v. City

of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988) (citing

Augusta Iron & Steel Works, Inc. v. Emp’rs Ins. of Wausau,

835 F.2d 855, 856 (11th Cir. 1988)).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed . . . .” (quotation omitted)).

III. Analysis

Deputy Taylor moves for summary judgment as to Count I

of the amended complaint (Doc. # 46), Sheriff Wells moves for

summary judgment as to Count II (Doc. # 44), and Ms. Hope

moves for summary judgment as to Count I and II. (Doc. # 43).

No party seeks summary judgment on Count III. The Court will

address each Motion separately.

A. Deputy Taylor’s Motion

Deputy Taylor moves for summary judgment on Count I of

the amended complaint, which is the Section 1983 claim against

him in his individual capacity. (Doc. # 46). Because there

was no clear prohibition against his actions, Deputy Taylor

contends he is entitled to qualified immunity. (Id. at 6).

Qualified immunity offers complete protection for

government officials sued in their individual capacities “as

long as their conduct does not violate clearly established .

. . constitutional rights of which a reasonable person would

have known.” Sharp v. Fisher, 532 F.3d 1180, 1182–83 (11th

Cir. 2008) (internal quotations omitted).

“An official seeking qualified immunity must initially

establish that he was acting within his discretionary

authority. If the official was acting within the scope of his

discretionary authority, the burden shifts to the plaintiff.”

McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007); see

also O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004)

(“To be even potentially eligible for qualified immunity, the

official has the burden of establishing that he was acting

within the scope of his discretionary authority.”).

i. Discretionary Authority

“A government official proves that he acted within the

purview of his discretionary authority by showing ‘objective

circumstances which would compel the conclusion that his

actions were undertaken pursuant to the performance of his

duties and within the scope of his authority.’” Hutton v.

Strickland, 919 F.2d 1531, 1537 (11th Cir. 1990) (quoting

Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)).

The parties do not dispute that Deputy Taylor released

Niko, off lead, to pursue three young men suspected of

stealing a car. (Doc. # 43-2 at 14:11-13, 15:5-11, 16:4-

17:17). Under such circumstances, a police officer’s decision

to use a K-9 to apprehend a fleeing suspect is within the

officer’s discretionary authority. See Garner v. City of

Ozark, No. 1:13-CV-90-WKW, 2015 WL 728680, at *7 (M.D. Ala.

Feb. 19, 2015) (“There is little doubt that a police officer’s

decision to use a canine to apprehend a fleeing suspect is a

discretionary act because there is no hard and fast rule as

to the course of conduct that he must or must not take when

pursuing a suspect, and the officer must use his judgment to

determine what is just and proper under the circumstances.”

(internal quotations and alteration omitted)).

As Deputy Taylor satisfies the discretionary authority

requirement, “the burden shifts to [Ms. Hope] to show that

qualified immunity is not appropriate.” Vinyard v. Wilson,

311 F.3d 1340, 1346 (11th Cir. 2002) (internal citation and

quotation marks omitted). This is a two-part test. First,

“taken in the light most favorable to [Ms. Hope],” the alleged

facts must “show that the officer’s conduct violated a

constitutional right.” Storck v. City of Coral Springs, 354

F.3d 1307, 1314 (11th Cir. 2003) (citation omitted). Second,

“if a constitutional right would have been violated under the

plaintiff’s version of the facts, the court must then consider

‘whether the right was clearly established.’” Id.

Here, Ms. Hope alleges that Deputy Taylor violated her

Fourth and Fourteenth Amendment rights. The Fourth Amendment

guarantees that all individuals will “be secure in their

person . . . against unreasonable seizures.” U.S. Const.

Amend. IV. This freedom encompasses the right to be free from

the use of excessive force in the course of an arrest. Graham

v. Connor, 490 U.S. 386 (1989).

All claims of excessive force “should be analyzed under

the Fourth Amendment and its ‘reasonableness’ standard.” Id.

at 395. Accordingly, to satisfy the first prong of the test,

Ms. Hope must demonstrate that: (1) a seizure occurred and

(2) the force used to effect the seizure was objectively

unreasonable. Troupe v. Sarasota County, 419 F.3d 1160 (11th

Cir. 2005).

ii. Was Ms. Hope Seized?

Deputy Taylor argues that no constitutional violation

occurred because Ms. Hope was not seized. (Doc. # 46 at 7).

The Court previously found that Ms. Hope was seized within

the meaning of the Fourth Amendment. (Doc. # 29).

At that time, the Court noted that “[i]n general, no

seizure occurs when innocent bystanders are harmed by police

actions,” but “[c]ourts take a different tack in cases

involving police dogs.” Hope v. Taylor, No. 8:20-cv-196-VMC-

AAS, 2020 WL 1677315, at *3 (M.D. Fla. Apr. 6, 2020) (internal

citations omitted). This is because “[o]nce deployed, a

police-dog is generally unable to discriminate between

suspects and innocent parties and is generally trained to

bite whomever it encounters, facts suggesting the officer’s

intention to seize whomever the dog ultimately does

encounter.” Id.

The Court comes to the same conclusion now. The Court is

not persuaded by Deputy Taylor’s comparison to Montanez v.

City of Orlando, 678 F. App’x 905, 907 (11th Cir. 2017). In

that case, the Eleventh Circuit held that a dog bite did not

constitute an excessive use of force because “there [was] no

evidence that [the officer] commanded or even willfully

allowed [the dog] to bite [the plaintiff].” Id. at 912. The

court continued, “To hold [the officer] liable, [the

plaintiff] must identify an intentional action that [the

officer] took or something that he should have done but

intentionally did not do to protect [the plaintiff].” Id.

Here, as the Court noted at the motion to dismiss stage,

Ms. Hope establishes an intentional deployment of Niko. Hope,

2020 WL 1677315, at *4. It is undisputed that Deputy Taylor

meant to release Niko from a police vehicle in order to pursue

three fleeing suspects. (Doc. # 43-2 at 17:2-17). Upon

release, Deputy Taylor gave Niko the “engage” command to

“apprehend . . . the people that were running.” (Id.). Even

if Ms. Hope was not the intended target of this command, her

“freedom to leave was terminated by [Deputy Taylor’s]

intentional release of his dog [into the neighborhood].”

Hope, 2020 WL 1677315, at *4. Ms. Hope has thus established

a seizure for the purposes of the Fourth Amendment.

iii. Was Ms. Hope’s Seizure Unreasonable?

Under Graham, courts must determine the “objective

reasonableness” of a seizure by balancing the “nature and

quality of the intrusion” against the “countervailing

governmental interest at stake.” 490 U.S. at 396. Such a test

does not look to an officer’s motivation or intent, but rather

asks if a reasonable officer would have taken the same action

under the same circumstances. Trammell v. Thomason, 559 F.

Supp. 2d 1281, 1290 (M.D. Fla. 2008), aff’d in part, rev’d in

part and remanded, 335 F. App’x 835 (11th Cir. 2009).

The Supreme Court has recognized that the “right to make

an arrest or investigatory stop necessarily carries with it

the right to use some degree of physical coercion or threat

thereof to effect it.” Graham, 490 U.S. at 396. Thus, in

determining whether an officer’s use of force was objectively

reasonable, the court must consider several factors

including: “(1) the need for the application of force, (2)

the relationship between the need and the amount of force

used, (3) the extent of the injury inflicted and (4) whether

the force was applied in good faith or maliciously or

sadistically.” Slicker v. Jackson, 215 F.3d 1225, 1232–33

(11th Cir. 2000).

A court should also consider the Graham factors: (1) the

underlying crime’s severity, (2) whether the suspect poses an

immediate threat to the safety of the officers or others; and

(3) whether the suspect actively resists arrest or attempts

to flee. 490 U.S. at 396.

1. Initial Deployment

Both parties agree that on the day in question, Deputy

Taylor noticed a black Ford with tags matching a vehicle

listed as stolen. (Doc. # 43-2 at 12:20-13:9, 14:11-13). When

Deputy Taylor circled around to report the car, the driver

quickly drove off. (Id. at 14:25-15:14). Deputy Taylor

followed the car until it stopped in front of a residence, at

which point Deputy Taylor witnessed three suspects flee the

vehicle and take off running. (Id. at 16:4-17:17).

Deputy Taylor did not have an opportunity to search the

three suspects for weapons before they fled. (Id. at 16:18-

17:5). Although Deputy Taylor called in the information to

dispatch, other officers did not “really have a chance to get

[to the scene] by the time [anything] happened.” (Id. at

12:10-12). Deputy Taylor thus had to initiate pursuit

quickly, without any sort of perimeter ensuring the suspects

would be caught. (Id. at 12:10-12, 15:1-11). This is precisely

the sort of tense, uncertain, and rapidly evolving situation

the Eleventh Circuit contemplated in Graham. 490 U.S. 386,

397. The Court must make allowances for the fact that Deputy

Taylor was forced to make a split-second judgment while

pursuing three fleeing suspects. Id. at 396–97.

Accordingly, based on Graham and other relevant

authority, the Court finds that Deputy Taylor’s initial

release of Niko to pursue three suspects did not constitute

an excessive use of force under the circumstances. Id.; see

also Crenshaw v. Lister, 556 F.3d 1283, 1292-93 (11th Cir.

2009) (finding it objectively reasonable for a police officer

to use a canine to pursue a fleeing suspect he reasonably

believed was armed); Chatman v. Navarro, No. 14-CV-62793,

2016 WL 9444164, at *6 (S.D. Fla. July 1, 2016) (finding the

initial release of a police dog reasonable where suspect was

fleeing, officers did not have chance to search suspect for

weapon, and suspect was intentionally hiding from police).

The Court makes this finding regardless of whether

Deputy Taylor provided a warning to the suspects or the

neighborhood before releasing Niko. See Trammell v. Thomason,

335 F. App’x 835, 842 (11th Cir. 2009) (noting that there is

Fourth Circuit case law finding a constitutional violation

where a police dog was released without an adequate warning,

but holding that there is no equivalent case in the Eleventh

Circuit); Crenshaw, 556 F.3d at 1292 n.6 (finding that in the

case of a fleeing felon who “had shown anything but an

intention of surrendering,” police “acted reasonably in not

alerting Crenshaw that he had a canine”). Deputy Taylor is

therefore entitled to qualified immunity regarding his

initial decision to let Niko off his lead.

2. Continued Use of Niko

There remains, however, a separate question regarding

the continued use of K–9 force against Ms. Hope (i.e., whether

Niko should have been called off sooner than he was). Ms.

Hope claims that Deputy Taylor intentionally refrained from

recalling Niko until after the dog latched onto her arm and

injured her. (Doc. # 43 at 15; Doc. # 49 at 10, 12; Doc. #

43-11 at 5). According to Ms. Hope, no reasonable officer

would have allowed Niko to bite her and continue to bite her

for two to five minutes; therefore, Taylor violated her Fourth

Amendment by failing to intervene earlier. (Doc. # 49 at 11).

The Eleventh Circuit has noted: “[Priester v. City of

Riviera Beach, Fla., 208 F.3d 919 (11th Cir. 2000)]

establishes that, under certain circumstances, failure to

intervene in a dog attack is an obvious use of excessive

force.” Trammel, 335 F. App’x at 843.

The Court analyzes this issue separately from the

reasonableness of Niko’s initial deployment. See Chatman,

2016 WL 9444164, at *6 (finding an officer’s initial

employment of a police dog to be reasonable, but denying

summary judgment because there was a genuine dispute over how

long the officer allowed the dog to bite the plaintiff).

Whether qualified immunity applies to the continued use of

Niko depends on whether Officer Taylor appropriately

intervened to call the dog off of Ms. Hope. See Chatman, 2016

WL 9444164, at *6 (noting that “[w]hether qualified immunity

applies, therefore, depends on resolving the parties’ dispute

over the amount of time [an officer] allegedly allowed [a

dog] to bite [the plaintiff]”). The parties sharply dispute

this issue and offer conflicting testimony on both sides.

Deputy Taylor testified that he issued multiple recall

commands urging Niko to return, used a fuey command to tell

Niko he did not want him to engage with Ms. Hope, and “took

off running” towards Ms. Hope and Niko as soon as Niko bit

down. (Doc. # 43-2 at 33: 1-4, 34:8-11, 35:22-24). According

to Deputy Taylor, he removed Niko as quickly as possible and

the bite lasted no more than five seconds. (Id. at 36:5).

Ms. Hope presents a very different version of events.

According to Ms. Hope’s testimony, Deputy Taylor watched in

silence as Niko lost track of his intended suspect and fixated

instead on Ms. Hope, a woman in her forties (Doc. # 43-1 at

8:16-19, 47:14-11) whom Deputy Taylor “should have known

immediately was not the [young male suspects] for whom he was

searching.” Trammell, 559 F. Supp. 2d at 1294.

Despite Niko’s clear focus on a bystander (evidenced by

the fact that his ears were “up,” indicating he was “targeted”

and “[would] immediately pursue”), Ms. Hope testified that

Deputy Taylor failed to call the dog off with either a recall

or a fuey command. (Doc. # 43-1 at 43:12-24; 47:11-48:11;

94:8-9, 95:2-96:7; Doc. # 43-2 at 31:24-25; Doc. # 43-11 at

5). Absent an instruction to disengage, Niko did exactly what

he was trained to do: “apprehended” Ms. Hope and refused to

let go. (Doc. # 43-1 at 99:2-8).

Even upon realizing that Niko was biting and holding a

bystander, rather than a suspect, Ms. Hope testified that

Deputy Taylor still did not immediately command Niko to

release her. (Doc. # 43-1 at 47:16-48:4, 96:12-22; Doc. # 43-

2 at 35:20-36:3). Rather, taking Ms. Hope’s version of events

as true, Deputy Taylor waited until he physically approached

and grabbed the dog to command him to release. (Doc. # 43-1

at 47:16-48:4, 96:12-22; Doc. # 43-2 at 35:20-36:3).

According to Ms. Hope, this resulted in the bite lasting

two to five minutes. (Doc. # 43-1 at 52:10-17; Doc. # 49-1 at

6). To support this timing, Ms. Hope cites not only her own

deposition, but expert testimony that the severity of the

wound indicates a bite of at least two minutes. (Doc. # 49-1

at 6) (“Niko would not have inflicted [a wound that severe]

if he bit and then quickly released.”).

The Court cannot resolve these evidentiary disputes by

making credibility assessments or weighing evidence.

Anderson, 477 U.S. at 255; Trammell, 335 F. App’x at 844

(reversing a grant of summary judgment on qualified immunity

“[d]espite the fact that Trammel has been unable to put a

precise time frame on the attack” because his testimony was

“sufficient to raise the factual possibility that the attack

continued for some significant length of time”). Were a jury

to credit Ms. Hope’s testimony that Deputy Taylor remained

silent until after Niko engaged, indeed until after he grabbed

Niko minutes later, it could conclude that Deputy Taylor acted

unreasonably by failing to call off Niko sooner. Priester,

208 F.3d at 927; Trammell, 559 F. Supp. 2d at 1295.

Accordingly, there are genuine issues of material fact

surrounding whether and how long Deputy Taylor allowed Niko’s

bite to occur before he intervened. This dispute precludes

summary judgment on the issue of qualified immunity. See

Chatman, 2016 WL 9444164, at *6 (denying summary judgment on

qualified immunity where there was conflicting testimony on

the length of the dog bite); see also Baker v. Cohen, No. 09-

60103-CIV, 2010 WL 3385266, at *14 (S.D. Fla. Aug. 5, 2010),

report and recommendation adopted in part, No. 09-60103-CIV,

2010 WL 3385264 (S.D. Fla. Aug. 26, 2010) (denying summary

judgment on qualified immunity because “based on the record

it appears there are issues of material fact, the existence

of which precludes summary disposition the issue of whether

the K–9 in this case should have been called off earlier than

it was, and whether plaintiff Baker sustained injuries as a

result of failure to remove the dog sooner”).

iv. Was the Right Clearly Established?

The Court turns to the next step in the qualified

immunity analysis, which is to determine whether the right

was “clearly established.” Trammel, 559 F. Supp. 2d at 1294–

95.

In Priester, the Eleventh Circuit denied qualified

immunity to an officer who let a K–9 bite a suspect for a

period of two minutes, during which it was clear that the

suspect did not pose a threat of bodily injury to the officer

and the suspect was not attempting to flee or resist arrest.

208 F.3d at 927. In Edwards v. Shanley, the Eleventh Circuit

summarized Priester in the following way: “Quite simply, []

we held in Priester that it was unconstitutional to subject

a compliant suspect to the ‘eternity’ of two minutes of dog

attack.” 666 F.3d 1289, 1298 (11th Cir. 2012). The court

continued that it was similarly unconstitutional to subject

a compliant suspect to a longer attack of five to seven

minutes, “especially where that suspect is pleading for

surrender.” Id.

Therefore, at the time of Niko’s bite, “clearly

established federal law prohibit[ed] the police from

subjecting a compliant subject who is attempting to surrender

to a lengthy dog attack.” Id.

v. Conclusion

In sum, Deputy Taylor’s Motion is granted in part and

denied in part. Deputy Taylor is entitled to qualified

immunity for his initial decision to release Niko in pursuit

of the suspects. However, a genuine dispute of material fact

exists regarding whether Deputy Taylor should have intervened

earlier. A reasonable jury could conclude that Deputy Taylor

purposefully permitted the bite to go on longer than

necessary, constituting excessive force. The existence of

this dispute precludes summary judgment on the issue of

whether Niko should have been called off earlier than he was,

and whether Ms. Hope sustained injuries as a result of failure

to remove the dog sooner.

Count I will accordingly proceed to trial, but is limited

to the claim Deputy Taylor used excessive force by failing to

call off Niko once he realized Ms. Hope was not a suspect.

B. Sheriff Wells’s Motion

Sheriff Wells moves for summary judgment on Count II of

the amended complaint, which is the Monell claim against him

in his official capacity as Sheriff of Manatee County. (Doc.

# 44). Sheriff Wells argues that the Monell claim fails

because Ms. Hope cannot demonstrate an underlying

constitutional deprivation, and even if she did, Ms. Hope

cannot demonstrate that the Sheriff’s Office’s policies were

the moving force behind her injuries. (Id. at 9, 13). The

Court agrees with the latter argument.

The Court has already determined that Deputy Taylor’s

initial deployment of Niko was not an excessive use of force

under the circumstances. Therefore, Ms. Hope’s Monell claim

based on Niko’s initial deployment must fail as a matter of

law. See Knight ex rel. Kerr v. Miami-Dade Cty., 856 F.3d

795, 821 (11th Cir. 2017) (noting that “there can be no policy

based liability or supervisory liability when there is no

underlying constitutional violation”). Furthermore, even if

a jury were to find that Deputy Taylor’s continued use of

Niko constituted excessive force, Ms. Hope cannot establish

that an official policy or unofficial custom caused Deputy

Taylor to prolong Niko’s bite.

The Supreme Court has placed strict limitations on

municipal liability under Section 1983. Grech v. Clayton

Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). Liability

may not be based on the doctrine of respondeat superior.

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

Instead, liability may only attach when an official policy

causes a constitutional violation. Id.

“A plaintiff, like [Ms. Hope], has two methods by which

to establish a county’s policy: identify either (1) an

officially promulgated county policy or (2) an unofficial

custom or practice of the county shown through the repeated

acts of a final policymaker for the county.” Grech, 335 F.3d

at 1329 (citations omitted). “Regardless of whether the basis

of the claim is an officially promulgated policy or an

unofficially adopted custom, it must be the ‘moving force

behind the constitutional deprivation before liability may

attach.’” Fundiller v. City of Cooper City, 777 F.2d 1436,

1442 (1985) (internal citation omitted).

i. Officially Promulgated Policy

No Manatee County Sheriff’s Office policy authorizes the

use of a K-9 to bite an innocent bystander. (Doc. # 44-3 at

¶¶ 8-9; Doc. # 44-5 at 4-5). Nor is there a policy allowing

an officer to continue a K-9 attack on a bystander he comes

to realize is innocent. (Doc. # 44-3 at ¶¶ 8-9; Doc. # 44-5

at 4-5). Instead, Ms. Hope argues that the Sheriff’s Office’s

policy of using the “bite and hold” method, rather than the

“find and bark” method, was the “moving force behind K9 Niko’s

prolonged attacks on innocent bystanders.” (Doc. # 43 at 17).

The Eleventh Circuit has recognized the

constitutionality of using police dogs trained in the bite

and hold method. Kerr v. City of W. Palm Beach, 875 F.2d 1546,

1554 (11th Cir. 1989); see also Pace v. City of Palmetto, 489

F. Supp. 2d 1325, 1333 (M.D. Fla. 2007) (“The bite and hold

training method is not unconstitutional. Nor is it

objectionable [or] unreasonable.” (citing Kerr, 875 F.2d at

1550)), aff’d sub nom. Pace v. Ahler, 282 F. App’x 769 (11th

Cir. 2008). Other circuits have reached similar conclusions.

See Jarrett v. Town of Yarmouth, 309 F.3d 54, 63 (1st Cir.

2002) (noting “there is no case that has held [bite and hold]

policies to be unconstitutional”); Kuha v. City of

Minnetonka, 365 F.3d 590, 600 (8th Cir. 2003) (holding that

“the mere use of a police dog trained to bite and hold does

not rise to the level of a constitutional violation”),

abrogated on other grounds.

Nonetheless, Ms. Hope argues that the Eleventh Circuit’s

decision in Trammel compels a different result. (Doc. # 50 at

6). In Trammel, the Eleventh Circuit reversed summary

judgment on the issue of qualified immunity because the

plaintiff “raise[d] the factual possibility that [a police

dog] attack continued for some significant length of time.”

335 F. App’x at 844. The Eleventh Circuit held, “If a jury

[were to conclude] that [an officer] failed to stop [a dog

attack] promptly after they became aware that [the victim]

was not the suspect, Priester compels the conclusion that

[the officer] engaged in an obvious violation of [the

victim’s] rights.” Id.

Ms. Hope argues that it is “clear from [the Trammel

court’s] ruling that a failure to remove a police dog

promptly, will result in a violation of the constitutional

rights of a bite victim.” (Doc. # 50 at 6). Since the bite

and hold method “leads to the inability of an officer to

remove the police dog promptly,” Ms. Hope argues that the

policy is per se unconstitutional. (Id.).

The Court disagrees. Because Trammel is an unpublished

opinion, it is not binding on this Court. United States v.

Rodriquez–Lopez, 363 F.3d 1134, 1138 n. 4 (11th Cir. 2004).

Rather, Kerr remains the controlling precedent on the bite

and hold method in the Eleventh Circuit, and under Kerr the

mere use of the method does not establish an unconstitutional

policy. 875 F.2d at 1554.

Even as a persuasive authority, Trammel does not suggest

that the mere use of the bite and hold method is

unconstitutional. In Trammel, the Eleventh Circuit noted that

“under certain circumstances, failure to intervene in a dog

attack” constitutes excessive force. 335 F. App’x at 843

(emphasis added). But the bite and hold method does not

inherently prevent an officer from intervening to stop a dog

bite. Id. at 844. Nothing in Trammel indicates that an officer

who promptly intervenes, but struggles to remove his dog due

to the bite and hold method, has engaged in unconstitutional

behavior. Id. Therefore, under both the binding authority of

Kerr and the persuasive authority of Trammel, the mere use of

the bite and hold method does not establish an

unconstitutional policy. Id.; 875 F.2d at 1554.

Ms. Hope also makes a brief argument that the Sheriff’s

Office does not require its dogs to wear “e-collars” (devices

worn by dogs used to discourage negative behavior), and the

“lack of a mandatory e-collar on police dogs is the moving

force behind constitutional violations like the one [Ms.

Hope] suffered.” (Doc. # 50 at 6-7). Ms. Hope does not provide

any case law to support the proposition that the Fourth

Amendment requires officers to utilize e-collars, or indeed

any particular equipment. To the extent Ms. Hope is arguing

that the lack of a mandatory e-collar policy contributes to

a widespread custom of using dogs to effect unconstitutional

seizures, the Court addresses that issue below.

ii. Unofficial Custom

Since Ms. Hope does not establish an unconstitutional

policy, to survive summary judgment she must establish a

widespread custom of Manatee County Officers using their dogs

in an unconstitutional way. She fails to do so.

Ms. Hope’s only evidence of a widespread

unconstitutional practice is (1) a list of Niko’s previous

deployments from the Manatee County Sherriff’s Office and (2)

an incident report recounting Niko’s inadvertent bite of a

bystander in 2018. (Doc. # 50-1; Doc. # 43-9).

Although these records reveal that some of Niko’s bites

were severe, and that Niko had to be removed from most

suspects by physical force, Ms. Hope fails to show how these

incidents involved constitutionally excessive force. She does

not provide any evidence indicating the handlers in these

cases intentionally prolonged Niko’s bite or failed to

promptly call Niko off, as she accuses Deputy Taylor of doing.

See Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir.

1998) (holding that a plaintiff could not establish a Monell

claim when he could not point to any other incidents involving

similar facts). Even when Niko bit a bystander in 2018, the

evidence indicates his handler quickly intervened to remove

him. (Doc. # 43-3 at 3-4).

Ms. Hope must point to factually similar scenarios in

order to establish a widespread custom. See Mercado v. City

of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005) (upholding

dismissal of a Monell claim where plaintiff “was given a list

of all cases involving excessive force, but [could not] show

that any of them involved factual situations that [were]

substantially similar to the case at hand”). A list of Niko’s

previous bites, without more, does not show that any of these

bites involved excessive force. See Adams v. Custer, No. 14-

CV-80403-CIV, 2016 WL 155081, at *19 (S.D. Fla. Jan. 12, 2016)

(holding that without any sort of “statistical context or

expert explanation, the plaintiff’s statistical evidence of

prior police-involved shootings and complaints of excessive

force is insufficient as a matter of law to sustain a custom

and practice claim under Monell against the Sheriff”), aff’d

sub nom. Adams v. Sheriff of Palm Beach Cnty., 658 F. App’x

557 (11th Cir. 2016).

Absent any context, testimony, or evidence indicting

these situations were factually similar to Ms. Hope’s bite,

a jury could not reasonably find that the Sheriff’s Office

had a widespread custom of either allowing dogs to bite

bystanders or prolonging dog bites in violation of the Fourth

Amendment. See Samarco v. Neumann, 44 F. Supp. 2d 1276, 1290

(S.D. Fla. 1999) (finding that a list of incidents where other

suspects were seriously injured by police dogs was not enough

“to convince a reasonable jury that the Sheriff’s Office had

a custom of depriving persons of their Fourth Amendment

rights”); cf. Shehada v. Tavss, 965 F. Supp. 2d 1358, 1374

(S.D. Fla. 2013) (finding that a list of complaints against

officers did not establish a practice of deliberate

indifference “the Plaintiff must present at least some

evidence from which a reasonable jury could infer that the

complaints were meritorious”). Sheriff Wells’s Motion is

accordingly granted.

C. Ms. Hope’s Motion

In Ms. Hope’s Motion, she seeks summary judgment on

Counts I and II of the amended complaint. (Doc. # 43).

Regarding Count I, the Court has already held that Deputy

Taylor is entitled to qualified immunity regarding his

initial decision to let Niko off his lead. Therefore, this

portion of Ms. Hope’s Motion is denied.

Furthermore, the Court has also held that there is a

genuine dispute of material fact surrounding the

circumstances of Niko’s bite. If a jury were to credit Deputy

Taylor’s testimony that he recalled Niko and pulled him off

within five seconds, it could reasonably conclude that no

excessive use of force occurred. Ms. Hope’s Motion is

accordingly denied as to the remainder of Count I, as there

are genuine factual disputes that require resolution by a

jury. See Anderson, 477 U.S. at 255 (noting that

“[c]redibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge”).

Regarding Count II, the Court has already found it proper

to grant summary judgment in favor of Sheriff Wells.

Therefore, this portion of Ms. Hope’s Motion is also denied.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Austin Taylor’s Motion for Summary Judgment

(Doc. # 46) is GRANTED IN PART AND DENIED in part. Deputy

Taylor is entitled to qualified immunity for his initial

decision to release Niko. The Motion is denied to the

extent Ms. Hope alleges Deputy Taylor used excessive

force by failing to call off Niko once he realized Ms.

Hope was not a suspect.

(2) Defendant Charles Richard Wells’s Motion for Partial

Summary Judgment (Doc. # 44) is GRANTED. Summary

judgment is granted in favor of Sheriff Wells as to Count

II.

(3) Plaintiff Elizabeth Diane Hope’s Motion for Summary

Judgment (Doc. # 43) is DENIED.

DONE and ORDERED in Chambers, in Tampa, Florida, this

23rd day of February, 2021.

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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