Howard v. St. John's County Sheriff

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KASIM HOWARD,

Plaintiff,

v. Case No. 3:20-cv-939-MMH-PDB

ST. JOHNS COUNTY SHERIFF,

A governmental entity established

by and through the Constitution of

the State of Florida, et al.,

Defendants.

ORDER

THIS CAUSE is before the Court on Defendants St. Johns County Sheriff

and Deputy Sheriff Jason W. Briggs’ Motion to Dismiss Plaintiff’s Amended

Complaint with Memorandum of Law (Doc. 39; Motion), filed on November 2,

2020. In the Motion, St. Johns County Sheriff (the Sheriff) and Deputy Briggs

seek dismissal of Counts I, III, and VI of Plaintiff Kasim Howard’s Amended

Complaint and Demand for Jury Trial (Doc. 38; Complaint). On November 30,

2020, Howard filed a response to the Motion. See Plaintiff’s Response to Motions

to Dismiss Filed by Defendants St. Johns County Sheriff and Deputy Sheriff

Jason W. Briggs (Doc. 44; Response). Accordingly, this matter is ripe for the

Court’s consideration.

I. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1 (2002);

see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th

Cir. 2002). In addition, all reasonable inferences should be drawn in favor of

the plaintiff. See Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th

Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some

minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d

1250, 1262–63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific

facts are not necessary,” the complaint should “‘give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough

facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556). The “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.” Twombly,

550 U.S. at 555 (citations omitted); see also BellSouth Telecomm., 372 F.3d at

1262 (explaining that “conclusory allegations, unwarranted deductions of facts

or legal conclusions masquerading as facts will not prevent dismissal”)

(citations and quotations omitted). Indeed, “the tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal

conclusions,” which simply “are not entitled to [an] assumption of truth.” See

Iqbal, 556 U.S. at 679. Thus, in ruling on a motion to dismiss, the Court must

determine whether the complaint contains “sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678

(quoting Twombly, 550 U.S. at 570).

II. Background1

In Count I of his Complaint, Howard alleges that Deputy Briggs violated

his constitutional right to be free from unreasonable seizure under the Fourth

and Fourteenth Amendments when Briggs employed excessive force against

him. Complaint at 2-8. In Count III, Howard brings the same claim against

the Sheriff, as the governmental entity of which Deputy Briggs was an

1 In considering the Motion to Dismiss, the Court must accept all factual allegations in

Howard’s Complaint as true, consider the allegations in the light most favorable to Howard,

and accept all reasonable inferences that can be drawn from such allegations. Hill v. White,

321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th

Cir. 1994). As such, the facts recited here are drawn from the Complaint, and may well differ

from those that ultimately can be proved. Because this matter is before the Court on the

Motion filed by Deputy Briggs and the Sheriff, the Court focuses its discussion on the claims

and facts relative to those Defendants.

employee.2 Id. at 13-18. And in Count VI,3 Howard alleges that the Sheriff is

liable under Florida state law for the tort of battery. Id. at 22-26.

As the underlying facts of his claims, Howard asserts that on April 9,

2016, Deputy Briggs was following Howard as he was on his way to the gym.

Complaint ¶¶ 8-9. Howard alleges that he exited his vehicle once he stopped

at the gym and Deputy Briggs approached him with a firearm. Id. ¶¶ 10-11.

Deputy Briggs pointed the firearm at Howard and demanded that Howard go

to the back of the vehicle. Id. Howard questioned Deputy Briggs’ demand and

told him that he would raise his hands in the air if Deputy Briggs lowered the

firearm. Id. ¶¶ 12, 15-16. Once Deputy Briggs lowered the firearm, Howard

put his hands in the air and Deputy Briggs “proceeded to place his hand around

Plaintiff’s throat and butted Plaintiff’s chest with Defendant Briggs’ hat and

then tossed his hat.”4 Id. ¶¶ 15-16. With his “hand and/or hands” still on

2 As noted by Defendants, Howard titles Count III as a claim for “Violation of the Fourth

and Fourteenth Amendmendts [sic] to the United States Constitution: Wrongful

Detention?Arrest and Excessive Force as to St. Johns County Sheriff 42 U.S.C. Section 1983.”

Complaint at 13. However, Howard’s allegations in Count III only pertain to an excessive force

claim, Defendant treats Count III as an excessive force claim in the Motion, and Plaintiff does

not argue otherwise in his Response. As such, notwithstanding its title, the Court construes

Count III as asserting a claim for excessive force against the Sheriff. The Court further notes

that the documents submitted by Howard contain numerous spelling and grammatical errors

such as those apparent in the title of Count III. The Court will provide verbatim quotations

in the Order without regard to such errors.

3 The Complaint omits any count numbered “V.”

4 Howard repeats the allegation that Deputy Briggs butted Howard’s chest with his hat

and tossed his hat three different times in the Complaint. Without acknowledging whether

this was in error, Howard claims in the Response that Deputy Briggs head butted and choked

Howard. See Response at 6, 9. However, those are not the factual allegations included in the

Howard’s throat, Deputy Briggs demanded that Howard get to the ground. Id.

¶ 17. Howard “continued with his hands in the air.” Id. ¶ 18. Around this

time, Officer Gillespie, a police officer employed by the City of St. Augustine,

arrived on the scene. Id. ¶¶ 7, 19. Howard asserts that he requested that

Officer Gillespie arrest Deputy Briggs for assault and report his conduct to a

supervisor. Id. ¶¶ 20-21. Deputy Briggs and Officer Gillespie attempted to

restrain Howard while he continued to question what he had done wrong. Id.

¶ 26. Then, with Howard’s hands in the air, Deputy Briggs and Officer

Gillespie aimed their tasers at him. Id. ¶ 28. According to Howard, Deputy

Briggs instructed Officer Gillespie to “light him up” and Officer Gillespie shot

“two tasers” at Howard hitting his abdomen and the inside of his thigh. Id. ¶¶

29-30. Howard subsequently fell to the ground where he was physically

restrained and handcuffed. Id. ¶ 31. Howard also contends that Deputy Briggs

and Officer Gillespie declined to transfer him to the hospital and instead took

him to the St. Johns County Jail where he received no medical treatment. Id.

¶ 36. According to Howard, the Sheriff issued him a ticket for driving an

unregistered vehicle as well as driving without a seatbelt. Id. ¶ 38. In addition,

the Sheriff charged Howard with “assault on a law enforcement officer and

resisting an officer without violence.” Id. Howard was acquitted of the

Complaint and Howard cannot amend his complaint in a response to a motion to dismiss. See

Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 1356 n. 6 (S.D. Fla. 2012).

criminal charges by a jury, “the ticket for driving an unregistered motor vehicle

was dropped,” and Howard paid the ticket for driving without a seatbelt5 “at

the direction and/or request of the trial court.” Id. ¶ 41. As a result of the

incident on April 9, 2016, Howard alleges that he “suffered physical injury,

physical pain and suffered mental anguish accrued medical bills, and accrued

legal fees” and additionally suffered from “ . . . mental injury, embarrassment,

humiliation, mental anguish anguish [sic], causing the need for medical and

mental health treatment.” Id. ¶ 42.

III. Summary of the Arguments

In Count I, Howard asserts a federal excessive force claim against Deputy

Briggs based on the force he used to effectuate Howard’s arrest. See Complaint

at 2-8. Deputy Briggs seeks to dismiss this claim based on qualified immunity.

See Motion at 3-7. In Count III, Howard brings the same claim against the

Sheriff. Complaint at 13-18. In the Motion, the Sheriff contends that Howard

has failed to allege sufficient facts to establish Monell6 liability. See Motion at

7-9. Last, in Count VI, Howard brings a state law tort claim for battery against

the Sheriff, Complaint at 22-26, and the Sheriff seeks to dismiss it arguing that

5 Howard maintains that he “during all times alleged hereto was driving with a seatbelt.”

6 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 693-94 (1978) (holding that a government

entity is liable under § 1983 for an official's constitutional violation only if the violation was

based on the government entity's policy, the actions of the official can be fairly deemed to

represent government policy, or if the violation was the result of a custom or practice

permitting such violation).

Howard has failed to allege whether Deputy Briggs was acting within or

outside the scope of his employment so as to establish vicarious liability. See

Motion at 9-10. Defendants also generally argue that the Complaint should be

dismissed as a shotgun pleading.

In response to the Motion, Howard maintains that he has sufficiently

pleaded facts to show that Deputy Briggs is not entitled to qualified immunity

and also to establish Monell liability as to the Sheriff. See generally Response.

In addition, Howard argues that while he does not explicitly allege whether

Deputy Briggs was acting within the scope of his employment, it is nonetheless

“clear that the Plaintiff is alleging that Deputy Briggs was acting within the

scope of his employment.” See id. at 12. Finally, Howard asserts that the

Complaint does not constitute a shotgun pleading because Defendants have

adequate notice of the alleged actions against them. See id. at 13.

IV. Discussion

a. Pleading

Defendants argue that Counts I, III, and VI of the Complaint should be

dismissed for failure to state a claim because the Complaint constitutes a

“shotgun pleading” that impermissibly incorporates and repeats the same

factual allegations in each count. Motion at 11. Typically, a shotgun complaint

contains “multiple counts where each count adopts the allegations of all

preceding counts, causing each successive count to carry all that came before

and the last count to be a combination of the entire complaint.” See Weiland v.

Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 & n.11 (11th Cir. 2015)

(collecting cases). As a result, “most of the counts . . . contain irrelevant factual

allegations and legal conclusions.” Strategic Income Fund, L.L.C. v. Spear,

Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). In ruling on the

sufficiency of a claim in a shotgun pleading, the Court is faced with the onerous

task of sifting out irrelevancies in order to decide for itself which facts are

relevant to a particular cause of action. See id.

Upon review of the Complaint, the Court does not find that it constitutes

an impermissible “shotgun pleading.” Rather than first setting forth the general

factual allegations and then incorporating them by reference into each

applicable count, counsel for Howard has repeated verbatim the underlying

factual allegations each time they are relevant to a particular claim in the

Complaint. See generally Complaint. Notably, Howard does exclude irrelevant

factual allegations from each count. For example, in Counts II and IV, which

are brought against Officer Gillespie and the City of St. Augustine, Howard

omits the factual allegations related to the events that occurred prior to Officer

Gillespie’s arrival on the scene. See Complaint at 8. Moreover, after repeating

the relevant factual allegations, Howard includes additional particularized

allegations related to the specific cause of action asserted in each count. See

generally Complaint. While the Complaint overall is unnecessarily repetitive,

and by no means a model of clarity, the Complaint is not subject to dismissal for

being impermissibly pled or vague under Eleventh Circuit shotgun precedent.

b. Count I: Excessive Force Claim Against Deputy Briggs

Howard asserts that Deputy Briggs is liable under 42 U.S.C. § 1983 for

using an unreasonable amount of force in violation of Howard’s Fourth and

Fourteenth Amendment rights. “In order to prevail on a civil rights action

under § 1983, a plaintiff must show that he or she was deprived of a federal

right by a person acting under the color of state law.” See Griffin v. City of Opa-

Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Deputy Briggs argues that the

claim in Count I is due to be dismissed because he is immune from suit under

the doctrine of qualified immunity. See generally Motion. Preliminarily, the

Court notes that the defense of qualified immunity is available to an official

sued in his individual capacity but not to one sued in his official capacity. See

Fitzgerald v. McDaniel, 833 F.2d 1516, 1520 (11th Cir. 1987). Although Howard

identifies Deputy Briggs in the caption of the Complaint as being sued "in his

official and individual capacities," see Complaint at 1, he later specifically states

that Deputy Briggs “is sued in his individual capacity,” id. ¶ 6, and in the title

of Count I, he includes the language, “as to Defendant Briggs individually,” id.

at 2 (emphasis added). Additionally, while Howard argues that Deputy Briggs

is not entitled to qualified immunity based on the allegations in the Complaint,

he does not suggest that Deputy Briggs is sued in his official capacity such that

qualified immunity would be unavailable as a matter of law. See generally

Response. Further, a claim for excessive force against Deputy Briggs in his

official capacity would be due to be dismissed as redundant because Howard

brings the same excessive force claim against the Sheriff in Count II. See Busby

v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (suits against municipal

officers in their official capacity where municipality is also a defendant are

unnecessary and redundant). Thus, the Court concludes that in Count I,

Howard sues Deputy Briggs only in his individual capacity. As such, the Court

will turn to its consideration of the parties’ respective positions regarding

whether Deputy Briggs is entitled to the benefit of qualified immunity based on

the allegations in Howard’s Complaint.

The doctrine of “[q]ualified immunity protects from civil liability

government officials who perform discretionary functions if the conduct of the

officials does not violate ‘clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Nolin v. Isbell, 207 F.3d 1253,

1255 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

As a result, this defense protects from suit “‘all but the plainly incompetent or

those who knowingly violate the law.’”7 Mullenix v. Luna, 577 U.S. 7, 12 (2015)

7 In determining whether a defendant is entitled to qualified immunity, courts view the facts

and all reasonable inferences in the light most favorable to the plaintiff to the extent supported

by the record, and then consider “the legal issue of whether the plaintiff’s ‘facts,’ if proven,

show that the defendant violated clearly established law.” Priester v. City of Riviera Beach,

208 F.3d 919, 925 n.3 (11th Cir. 2000); Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); Carr v. Tatangelo, 338 F.3d

1259, 1266 (11th Cir. 2003). Indeed, as “‘government officials are not required

to err on the side of caution,’ qualified immunity is appropriate in close cases

where a reasonable officer could have believed that his actions were lawful.” Lee

v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) (quoting Marsh v. Butler Cnty.,

268 F.3d 1014, 1031 n.8 (11th Cir. 2001)).

To be entitled to qualified immunity, the defendant bears the initial

burden of showing that his conduct was within the scope of his discretionary

authority. See Webster v. Beary, 228 F. App’x 844, 848 (11th Cir. 2007); Lee,

284 F.3d at 1194. Here, it is undisputed that, at all times material to this case,

Deputy Briggs was acting in his official capacity and within the scope of his

discretionary authority.8 Accordingly, the burden shifts to Howard to

demonstrate that qualified immunity is not appropriate using the two-prong

test established by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201

(2001). In accordance with Saucier, the Court must ask whether the facts

viewed in the light most favorable to the plaintiff “show the officer’s conduct

8 “‘A government official acts within [his] discretionary authority if the actions were (1)

undertaken pursuant to the performance of [his] duties and (2) within the scope of [his]

authority.’” Jones v. City of Atlanta, 192 F. App’x 894, 897 (11th Cir. 2006) (per curiam)

(quoting Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995)). Making an arrest is thus a

discretionary function for a police officer. See Crosby v. Monroe Cnty., 394 F.3d 1328, 1332

(11th Cir. 2004); see also Lee, 284 F.3d at 1194 (finding that “there can be no doubt that [the

officer] was acting in his discretionary capacity when he arrested [the plaintiff],” even though

the plaintiff asserted that the officer used excessive force in the manner in which she was

arrested).

violated a constitutional right?” Id.; see also Hope v. Pelzer, 536 U.S. 730, 736

(2002); Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007) (quoting Scott

v. Harris, 550 U.S. 372, 377 (2007)). The court must also ask whether the right

allegedly violated was clearly established at the time of the violation. Hope, 536

U.S. at 739; Saucier, 533 U.S. at 201; Scott, 550 U.S. at 377; Underwood v. City

of Bessemer, ---F.4th---, 2021 WL 3923153, at *7 (11th Cir. Sept. 2, 2021) (“we

ask two questions: (1) whether the facts that a plaintiff has alleged or shown

make out a violation of a constitutional right, and (2) if so, whether the right at

issue was clearly established at the time of the defendant’s alleged misconduct”)

(internal quotations omitted). The Court may consider these questions in

whichever order it chooses, and qualified immunity will protect the defendant if

the answer to either question is “no.” Pearson v. Callahan, 555 U.S. 223, 232,

236 (2009)9; Underwood, 2021 WL 3923153, at *7.

As such, “[t]o deny qualified immunity at the motion to dismiss stage, [the

Court] must conclude both that the allegations in the complaint, accepted as

true, establish a constitutional violation and that the constitutional violation

was ‘clearly established.’” Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir.

2019) (citing Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010)).

“When qualified immunity is asserted at the pleading stage, the precise factual

9 In Pearson, the Supreme Court modified the procedure mandated in Saucier permitting trial

judges the discretion to determine which prong of the qualified immunity analysis should be

resolved first. See Pearson, 555 U.S. at 236.

basis for the plaintiff's claim or claims may be hard to identify.” Id. at 238–39,

819. Accordingly, courts risk “prematurely and incorrectly” answering the

question of whether there was a constitutional violation when the facts are not

fully developed. See id. In light of the scarce factual record at this stage of the

proceedings, the Court will first look to whether the alleged constitutional

violation10 was clearly established. The Court concludes that it was not.

The Supreme Court has instructed that in order

[f]or a constitutional right to be clearly established, its contours

“must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. This is not to

say that an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful, but

it is to say that in the light of pre-existing law the unlawfulness

must be apparent.”

Hope, 536 U.S. at 739 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

For purposes of this analysis the critical question is whether the state of the law

gave the government actor “fair warning” that his alleged treatment of the

10 The Court notes that Howard’s claim must be analyzed under the Fourth Amendment

rather than the Fourteenth. According to the Supreme Court:

all claims that law enforcement officers have used excessive force—deadly or

not—in the course of arrest, investigatory stop, or other “seizure” of a free citizen

should be analyzed under the Fourth Amendment and its “reasonableness”

standard, rather than under a “substantive due process” approach. Because the

Fourth Amendment provides an explicit textual source of constitutional

protection against this sort of physically intrusive governmental conduct, that

Amendment, not the more generalized notion of “substantive due process,” must

be the guide for analyzing these claims.

Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed.2d 443 (1989).

plaintiff was unconstitutional. Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th

Cir. 2002) (quoting Hope, 536 U.S. at 741); see also Marsh, 268 F.3d at 1031

(“[F]air and clear notice to government officials is the cornerstone of qualified

immunity.”). The Eleventh Circuit recently addressed a plaintiff’s burden in

establishing the existence of clearly established law.

Under this Court's precedent, a right can be clearly established in

one of three ways. [A plaintiff] must point to either (1) “case law

with indistinguishable facts,” (2) “a broad statement of principle

within the Constitution, statute, or case law,” or (3) “conduct so

egregious that a constitutional right was clearly violated, even in

the total absence of case law.” Lewis [v. City of W. Palm Beach, 561

F.3d 1288, 1291–92 (11th Cir. 2009)]. Although we have recognized

that options two and three can suffice, the Supreme Court has

warned us not to “define clearly established law at a high level of

generality.” Plumhoff v. Rickard, 572 U.S. 765, 779, 134 S.Ct. 2012,

188 L.Ed.2d 1056 (2014) (quotation marks omitted). For that

reason, the second and third paths are rarely-trod ones. See Gaines

v. Wardynski, 871 F.3d 1203, 1209 (11th Cir. 2017) (collecting

cases). And when a plaintiff relies on a “general rule[ ]” to show that

the law is clearly established, it must “appl[y] with obvious clarity

to the circumstances.” Long v. Slaton, 508 F.3d 576, 584 (11th Cir.

2007) (quotation marks omitted; emphasis added); see also

Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010) (“[I]f a

plaintiff relies on a general rule, it must be obvious that the general

rule applies to the specific situation in question.”).

Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021). Thus, where the words

of the federal statute or federal constitutional provision are specific enough “to

establish clearly the law applicable to particular conduct and circumstances,”

then the plaintiff can overcome the qualified immunity privilege, even in the

absence of case law. Vinyard, 311 F.3d at 1350. In this type of “obvious clarity”

case “the words of the federal statute or federal constitutional provision may be

so clear and the conduct so bad that case law is not needed to establish that the

conduct cannot be lawful.” Id.

Alternatively, where the conduct alleged is not so egregious as to violate

a statutory or constitutional right on its face, courts look to case law to

determine whether the law is “clearly established.” Id. at 1351. If the case law

contains “some broad statements of principle” which are “not tied to

particularized facts,” then it may be sufficient to clearly establish the law

applicable in the future to different facts. Id. However, to provide officials with

sufficient warning, the case law must establish a principle such that “every

objectively reasonable government official facing the circumstances would know

that the official's conduct did violate federal law when the official acted.” Id.

Last, in the absence of broad statements of principle, precedent can clearly

establish the applicable law where “the circumstances facing a government

official are not fairly distinguishable, that is, are materially similar,” to the

particularized facts of prior case law. Id. at 1352. Such precedent must be found

in decisions from the Supreme Court, the controlling circuit court of appeals, or

the pertinent state supreme court. Id. at 1351; Crocker, 995 F.3d at 1240

(same). However, a case “on all fours” with materially identical facts is not

required to establish “fair warning” to government officials. Holloman v.

Harland, 370 F.3d 1252, 1277 (11th Cir. 2004) (discussing the impact of Hope

on Eleventh Circuit precedent).

In support of his argument that the alleged violation of his constitutional

right was clearly established, Howard makes the conclusory and confusing

assertion that “while there is no fact pattern directly on point, the facts are novel

in a law enforcement officer knew or should have known that the use of force

would be excessive.” Response at 7-8. Howard also asserts that “Plaintiff has

raised issues as to whether the Plaintiff’s had a known constitutional right to

be from excessive force of which Defendant Briggs knew or should have been

aware,” see id. ¶ 21, and “Plaintiff contends that Plaintiff’s constitutional right

was clearly established at the time,” see id. ¶ 22. In addition, Howard argues,

“Defendant Briggs would have been on notice of this clearly established

constitutional right at the time that these allegations took place.” Id. ¶ 24.

Howard cites to three cases in support of his argument without any attempt to

identify the applicable statement of principle to be distilled from any of them or

the factual circumstances that make them materially similar to the facts of his

claim.

The decision in the first case, Brand v. Casal, 877 F.3d 1253 (11th Cir.

2017), was decided on December 19, 2017, and vacated on May 1, 2018. The

events at issue here occurred on April 9, 2016. Complaint ¶ 8. Thus, whatever

import the court’s holding in Brand might have given its vacatur, it is of no use

to Howard in demonstrating the contours of clearly established law as of April

9, 2016, as necessary to bar a defense of qualified immunity to Deputy Briggs.

McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007) (“The law clearly

establishing the violation also must be ‘pre-existing’—that is, in effect at the

time of the alleged violation.”). Howard also cites to an opinion issued by the

Ninth Circuit Court of Appeals. However, courts in this circuit “look[] only to

binding precedent—cases from the United States Supreme Court, the Eleventh

Circuit, and the highest court of the state under which the claim arose—to

determine whether the right in question was clearly established at the time of

the violation.” Crocker, 995 F.3d at 1240; Coffin v. Brandau, 642 F.3d 999, 1013

(11th Cir. 2011) (citing Amnesty Int'l, USA v. Battle, 559 F.3d 1170, 1184

(11th Cir. 2009)). Finally, Howard cites to Fils v. City of Aventura, in which the

Eleventh Circuit addressed an excessive force claim based on officers use of a

taser for a minor offense.11 647 F.3d 1272, 1289 (11th Cir. 2011). In Fils, the

Eleventh Circuit held that “unprovoked force against a non-hostile and non-

violent suspect who has not disobeyed instructions violates that suspect's rights

under the Fourth Amendment.” Id. (emphasis added). In the instant case,

however, based upon his own allegations, prior to being tased, Howard remained

with his hands in the air continuously disobeying Deputy Briggs’ instruction to

11 The Court notes that Howard makes no attempt to show that the other alleged constitutional

violations - pointing a gun at him, “butting him with his hat,” or placing his hands on his throat

- are clearly established.

get to the ground. See Complaint ¶¶ 17-18. In addition, Deputy Briggs and

Officer Gillespie unsuccessfully attempted to physically restrain Howard. Id. ¶

25. Without any attempt from Howard to explain how the Fils holding is

instructive notwithstanding these distinctions, the Court does not find Fils

demonstrates that any alleged constitutional violations here were “clearly

established.”

Further, to determine whether a use of force is excessive courts consider

whether the suspect was compliant and whether the officer detained the person

prior to using force. See Gomez v. United States, 601 F. App’x 841, 850 (11th

Cir. 2015) (“[T]he application of gratuitous force on an already-handcuffed and

compliant detainee or arrestee constitutes excessive force in violation of the

Fourth Amendment, even if there is no visible or compensable injury.”). The

Eleventh Circuit has noted that “a variety of physical force techniques used by

police on unhandcuffed individuals constitute[ ] de minimis force that do[ ] not

rise to excessive force that could violate the Fourth Amendment.” Id. For

example, in Croom v. Balkwill, 645 F.3d 1240, 1245, 1252 (11th Cir. 2011), the

Eleventh Circuit held that force used against an elderly, arthritic, but not

detained, woman was de minimis. There, the officer ran up to her, “scream[ed]

for her to ‘hit the ground,’” and “[w]hen [she] was unable to comply,” pushed her

to the ground and placed a foot on her back. Id. at 1245. According to the court

the force was de minimis and appropriate to gain control over the situation. Id.

at 1252-53; see also Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013)

(finding that force was de minimis where an officer “grabbed [the plaintiff] by

the arm, forced him to the ground, placed him in handcuffs, and searched him.”);

Nolin, 207 F.3d at 1255 (finding that an officer used de minimis force when he

“grabbed [the plaintiff] from behind by the shoulder and wrist, threw him

against a van three or four feet away, kneed him in the back and pushed his

head into the side of the van, searched his groin area in an uncomfortable

manner, and handcuffed him.”); Post v. City of Fort Lauderdale, 7 F.3d 1552,

1559 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994) (finding that even

though it was unnecessary for an officer to push the plaintiff against the wall

after he had been handcuffed, “the amount of force [the officer] used, even if

unnecessary,” did not plainly violate the law). Howard does not allege that the

investigatory stop or his arrest were unlawful and “‘Fourth Amendment

jurisprudence has long 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.’” Vinyard, 311 F.3d at 1347

(citation omitted). Indeed, the Eleventh Circuit has recognized that “the typical

arrest involves some force and injury,” see Rodriguez v. Farrell, 280 F.3d 1341,

1350 (11th Cir. 2002), and has held that “an officer’s drawing a weapon and

ordering a person stopped to lie on the ground does not necessarily constitute

excessive force during an investigatory stop,” Jackson v. Sauls, 206 F.3d 1156,

1172 (11th Cir. 2000) (citing Courson v. McMillian, 939 F.2d 1479 (11th Cir.

1991)).

Here, Howard alleges Deputy Briggs used excessive force when he pointed

a firearm at Howard as he exited his vehicle after being followed by police.

Complaint ¶¶ 9-11. In addition, he asserts Deputy Briggs employed excessive

force when he subsequently “butted Plaintiff’s chest with Defendant Briggs’ hat

and then tossed his hat” and “placed his hand around Howard’s throat” all while

Howard was unhandcuffed and unrestrained. Id. ¶ 16. Last, Howard alleges a

violation when Deputy Briggs ordered Officer Gillespie to tase Howard, when

Howard did not obey Deputy Briggs’ command to get to the ground, he was

unhandcuffed, and both Deputy Briggs and Officer Gillespie had previously

attempted to restrain him. See id. ¶¶ 25-31. In light of Eleventh Circuit

precedent permitting a variety of force techniques in circumstances similar to

those presented in the instant case, it cannot be said that Deputy Briggs had

fair warning that any of his actions would constitute a violation of Howard’s

Fourth Amendment rights at the time the events occurred. The Court finds that

Howard has failed to carry his burden of showing that any of the alleged

violations of his constitutional rights were “clearly established.” Indeed, as

alleged, the facts of the present case more closely resemble Eleventh Circuit

precedent expressly finding no constitutional violation occurred. Accordingly,

Deputy Briggs is entitled to qualified immunity and Howard’s excessive force

claim against him in Count I is due to be dismissed.

c. Count III: Excessive Force Claim Against Defendant St.

Johns County Sheriff

In Count III, Howard asserts that the Sheriff established policies that

ultimately caused Deputy Briggs to employ excessive force against Howard.

Subsumed within this claim are three separate arguments. First, Howard

asserts that the Sheriff instituted a “practice, policy, and custom of using

excessive force and intimidation.” Complaint ¶ 136. Second, Howard proffers

that the Sheriff failed to institute adequate training of his deputies in the need

to use a firearm, physical force, or a taser, “when detaining and/or arresting a

citizen.” Id. ¶ 137. And third, Howard suggests that the Sheriff effectively

ratified Deputy Briggs’ allegedly unlawful and unconstitutional actions. Id. ¶

136.

At the outset, the Court notes that “‘[f]or liability purposes, a suit against

a public official in his official capacity is considered a suit against the local

governmental entity he represents.’” Vineyard v. Cnty. of Murray, Ga., 990 F.2d

1207, 1210 n.3 (11th Cir. 1993) (citation omitted), cert. denied, 510 U.S. 1024

(1993). Therefore, Howard’s claims against the Sheriff in his official capacity

are municipal liability claims. Indeed, by naming the Sheriff, in his official

capacity, in Count III, Howard is simply pleading claims of municipal liability

for the actions of Deputy Briggs. Cook ex rel. Estate of Tessier v. Sheriff of

Monroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir. 2005). Accordingly, Howard’s

claim against the Sheriff is actually a claim against St. Johns County. Thus,

the Court considers the Sheriff’s liability in the context of those cases discussing

county and municipal liability under § 1983.

The Supreme Court of the United States has soundly rejected the theory

of respondeat superior as a basis for liability in § 1983 actions. See Monell, 436

U.S. 658. Instead, a municipality may be liable in a § 1983 action "only where

the municipality itself causes the constitutional violation at issue." Cook, 402

F.3d at 1115 (citations omitted). Thus, a plaintiff must establish that an official

policy or custom of the municipality was the "moving force" behind the alleged

constitutional deprivation. See Monell, 436 U.S. at 693-94. “A policy is a

decision that is officially adopted by the municipality, or created by an official

of such rank that he or she could be said to be acting on behalf of the

municipality.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.

1997) (citation omitted). The policy requirement is designed to “‘distinguish acts

of the municipality from acts of employees of the municipality, and thereby

make clear that municipal liability is limited to action for which the

municipality is actually responsible.’” Grech v. Clayton County, 335 F.3d 1326,

1329 n.5 (11th Cir. 2003) (en banc) (quotation omitted). Indeed, municipal

liability arises under § 1983 only where “‘a deliberate choice to follow a course

of action is made from among various alternatives’ by city policymakers.” City

of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v. Cincinnati,

475 U.S. 469, 483-84 (1986)). A municipality will rarely have an officially-

adopted policy that permits a particular constitutional violation, therefore, in

order to state a cause of action for damages under § 1983, most plaintiffs must

demonstrate that the municipality has a custom or practice of permitting the

violation. See Grech, 335 F.3d at 1330; McDowell v. Brown, 392 F.3d 1283, 1289

(11th Cir. 2004). The Eleventh Circuit has defined “custom” as “a practice that

is so settled and permanent that it takes on the force of law” or a “persistent

and wide-spread practice.” Sewell, 117 F.3d at 489.

Similarly, in some circumstances, “the failure to provide proper training

may fairly be said to represent a policy for which [the municipality] may be held

liable if it actually causes injury.” City of Canton, 489 U.S. at 390. Failure to

train can lead to municipal liability “only where a municipality’s failure to train

its employees in a relevant respect evidences a ‘deliberate indifference’ to the

rights of its inhabitants [such that the failure to train] can be properly thought

of as a city ‘policy or custom’ that is actionable under § 1983.” Id. at 388-89

(alteration added). Thus, in order to assert such a claim, a plaintiff must

“present some evidence that the municipality knew of a need to train and/or

supervise in a particular area and the municipality made a deliberate choice not

to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998);

see also Underwood, 2021 WL 3923153, at *11. The Eleventh Circuit has

repeatedly held that "without notice of a need to train or supervise in a

particular area, a municipality is not liable as a matter of law for any failure to

train or supervise." Id. at 1351. Indeed, “the need for such training must be

plainly obvious to [a municipality’s] decisionmakers,” such as where there is

“evidence of a history of widespread prior abuse.” Wright v. Sheppard, 919 F.2d

665, 674 (11th Cir. 1990) (alteration added); see also Rocker v. City of Ocala,

Fla., 355 F. App’x 312, 314 (11th Cir. 2009) (per curiam). Notably, the Supreme

Court, in dictum, has left open the possibility that in some instances “a need to

train could be ‘so obvious,’” that a municipality could be held liable even without

a pattern of prior constitutional violations. See Gold, 151 F.3d at 1352 (citing

City of Canton, 489 U.S. at 390). As an example, the Supreme Court pointed to

need to train officers in the use of deadly force where the officers are provided

firearms. City of Canton, 489 U.S. at 390 n.10.

Finally, a municipality may be liable “on the basis of ratification when a

subordinate public official makes an unconstitutional decision and when that

decision is then adopted by someone who does have final policymaking

authority.” Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016)

(citing Matthews v. Columbia County, 294 F.3d 1294, 1297 (11th Cir. 2002)). In

this context, the “final policymaker, however, must ratify not only the decision

itself, but also the unconstitutional basis for it.” Matthews, 294 F.3d at 1297-

98 (internal quotations and citations omitted). The Eleventh Circuit also has

suggested that a municipality’s “persistent failure to take disciplinary action

against officers can give rise to the inference that a municipality ratified

conduct, thereby establishing a ‘custom’ within the meaning of Monell.”

Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985); see also

Rivas v. Figueroa, No. 11–23195–Civ., 2012 WL 1378161, *3 (S.D. Fla. Apr. 20,

2012) (“A municipality may be liable for violating Section 1983 even where the

municipality provides rules and regulations for the operation of its police

department, if those rules were repeatedly violated and the municipality failed

to rectify the situation”) (citing Depew v. City of St. Marys, 787 F.2d 1496, 1499

(11th Cir. 1986)). But, a single failure to investigate a constitutional violation

is insufficient to establish ratification. Salvato v. Miley, 790 F.3d 1286, 1297-

98 (11th Cir. 2015).

The Court concludes that Howard has failed to sufficiently allege that the

Sheriff’s policies, practices, and customs, or its failure to train its deputies,

caused Howard’s alleged injuries. As referenced above, in the absence of an

official policy, to sufficiently allege a municipal policy or custom, a plaintiff must

assert facts that show a persistent and widespread practice of permitting a

constitutional violation. See Grech, 335 F.3d at 1330; McDowell, 392 F.3d at

1289; Sewell, 117 F.3d at 489. Similarly, in the context of raising a failure to

train claim, the plaintiff must show that official decision makers were

deliberately indifferent to the need for training and discipline. See City of

Canton, 489 U.S. at 390; Wright, 919 F.2d at 674; Rocker, 2009 WL 4365226 at

*2.

Despite accepting Howard’s allegations and drawing all reasonable

inferences in his favor, Howard has not presented factual allegations supporting

even an inference that the Sheriff had a policy or custom of permitting officers

to employ excessive force. In his Complaint, Howard asserts that evidence of

such a policy includes but is not limited to a lawsuit filed in 2015, as well as one

filed in 2018, both of which included allegations of the use of excessive force by

the Sheriff. Complaint ¶ 136. Howard alleges that these lawsuits “evidence”

that the Sheriff maintained a “policy and custom of the use of excessive force

and intimidation.” Id. With regard to the 2015 lawsuit, Howard simply alleges

that it was filed without providing any information relating the facts and

circumstances surrounding the excessive force claim or how they compare to the

facts alleged here. Id. While Howard describes the facts and circumstances

underlying the excessive force claim in the 2018 lawsuit, they do not appear to

bear any resemblance to facts presented before the Court here. The plaintiff in

the 2018 lawsuit alleged that the defendant deputies unexpectedly entered his

hotel room, cornered and tackled him to the ground, causing him to suffer

physical injuries. See id. Howard does not explain how such circumstances

establish the existence of an unconstitutional custom or policy. Moreover,

Howard does not provide any information regarding the outcome of either

lawsuit such that either could reasonably be expected to affirmatively

demonstrate a policy or custom of unconstitutional conduct. As such, Howard’s

inclusion of two incidents in which citizens apparently alleged that the Sheriff

used excessive force, one of which occurred after the incident at issue here, do

not support an inference that the Sheriff had a widespread practice and policy

of permitting officers to use excessive force when encountering citizens at the

time the alleged violation occurred. See e.g., Pineda v. City of Houston, 291 F.3d

325, 329 (5th Cir. 2002) (eleven reports of warrantless entries into homes did

not create an issue of fact as to the existence of a policy and practice of

unconstitutional searches); Brooks v. D.R. Scheib, 813 F.2d 1191, 1193-94 (11th

Cir. 1987) (mere citizen reports of police misconduct, without verification that

the reports had merit, were insufficient to establish a municipal policy and

practice of widespread police misconduct); Tucker v. Bradshaw, No. 11-80058-

CIV-RYSKAMP/VITUNAC, 2012 WL 13018687 at *3 (S.D. Fla. Jan. 19, 2012)

(municipal liability claim undermined where complaint failed to allege that

prior complaints of police misconduct were similar to behavior alleged in current

case, or were substantiated to be valid complaints); Btesh v. City of Maitland,

No. 6:10-cv-71-Orl-19DAB, 2011 WL 3269647 at *30-31 (M.D. Fla. July 29,

2011) (court unwilling to find city had pattern and practice of police use of

deadly force where 48 prior reports of deadly force were eventually deemed

justified).

Similarly, Howard has failed to allege sufficient facts to support the

failure to train prong of his § 1983 claim. Notably, the allegations in the

Complaint are conclusory at best. Howard simply asserts that the Sheriff

failed to institute adequate training of Defendant’s deputies in the

need to use a firearm when detaining and/or arresting a citizen, in

the use of physical force when detaining or arresting a citizen, and

in the use of a taser when detaining and/or arresting a citizen,

and/or acted deliberately indifferent to the rights of individuals

restrained and/or detained.

Complaint ¶ 137. While the incidents identified by Howard reflect that there

may have been allegations of the use of excessive force by St. Johns County

Sheriff’s Officers, nothing in the Complaint suggests that those incidents were

the result of insufficient training or the absence of training on the use of force.

See e.g., Brooks, 813 F.2d at 1193-94; Tucker, 2012 WL 13018687 at *3; Btesh,

2011 WL 3269647 at *32-33. Compare Danley v. Allen, 540 F.3d 1298, 1315

(11th Cir. 2008) (numerous known incidents of unconstitutional conduct of

defendant jailors that bore sufficient similarity to charges in instant case

warranted court finding that supervisor had knowledge of widespread abuse),

abrogated on other grounds as recognized by Randall v. Scott, 610 F.3d 701, 709

(11th Cir. 2010); J.W. v. Birmingham Bd. of Educ., 143 F. Supp. 3d 1118, 1168-

73 (N.D. Ala. 2015) (deliberate indifference established where supervising

officer knew of, and permitted, officers to engage in behavior that deviated from

stated policies). Here, Howard has presented the Court only with conclusory and

speculative allegations that fail to support his underlying premise. As the

Supreme Court has stated, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’ Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Howard’s failure to train claim, lacking in factual support, cannot proceed.

Last, Howard fails to allege sufficient facts to support his argument that

the Sheriff implicitly ratified “the use of excessive force by its police

department.” Complaint ¶ 136. Howard does not provide the Court with any

allegations supporting the assertion that someone at the Sheriff’s Office with

final policymaking authority adopted the unconstitutional basis for Deputy

Briggs’ allegedly unconstitutional conduct, see Matthews, 294 F.3d at 1297-98,

or persistently failed to take disciplinary action against officers such that it

could be said to ratify the conduct thereby establishing a custom or policy of

using excessive force against citizens. See Fundiller, 777 F.2d at 1443.12

Applying the pleading standards required by Iqbal, 556 U.S. at 678, and

Twombly, 550 U.S. at 555, the Court concludes that Howard has failed to allege

facts to support the ratification component of his § 1983 claim against the

12 Notably, the Eleventh Circuit recently reiterated the established principle that a theory of

ratification based upon a failure “to investigate a single incident” is foreclosed by Circuit

precedent. Underwood, 2021 WL 3923153 at *12 (quoting Salvato, 790 F.3d at 1298).

Sheriff. For the foregoing reasons, the Court concludes that each of Howard’s

theories asserted in support of his § 1983 claim against the Sheriff fails.

Therefore, Count III is due to be dismissed.

d. Count VI: State Law Battery Tort Claim

Howard also asserts a claim against the Sheriff for battery under Florida

law. Complaint at 22-26. The Sheriff argues that this claim should be dismissed

because Howard fails to allege whether Deputy Briggs was acting within the

scope of his employment. Motion at 9-10. Unlike claims under § 1983, under

Florida law a municipality or Sheriff can be vicariously liable for the tortious

acts of its employees. See Young v. Borders, No. 5:13-cv-113-Oc-22PRL, 2014

WL 11444072, *21 (M.D. Fla. Sept. 18, 2014); Saballos v. Bonilla, No. 05-21928-

CIV, 2006 WL 3940552, *8 (S.D. Fla. Dec. 5, 2006). Indeed, Florida’s statutory

waiver of sovereign immunity, codified in Florida Statute section 768.28 states

[t]he exclusive remedy for injury or damage suffered as a result of

an act, event, or omission of an officer, employee, or agent of the

state or any of its subdivisions . . . shall be by action against the

governmental entity, or the head of such entity in her or his official

capacity, or the constitutional officer of which the officer, employee,

or agent is an employee . . . .

Fla. Stat. § 768.28(9)(a); see also Searer v. Wells, 837 F. Supp. 1198, 1201 (M.D.

Fla. 1993).13 As such, “an employer may be held liable for the intentional torts

13 A city, as well as its associated units, such as a sheriff’s office, falls under the ambit of section

768.28(9)(a). See e.g., Shehada v. Tavss, 965 F. Supp. 2d 1358, 1375 (S.D. Fla. 2013) (noting

municipalities are governed by FLA. STAT. § 768.28); Battiste v. Lamberti, 571 F. Supp. 2d

1286, 1305-06 (S.D. Fla. 2008) (FLA. STAT. § 768.28 applies to Sheriff).

of an employee if the employee committed the tort while acting within the course

and scope of his employment, with the purpose of benefiting the interests of the

employer.” Nazer v. City of St. Petersburg, No. 8:16-cv-2259-CEH-JSS, 2017

WL 3877631, at *5 (M.D. Fla. Sept. 5, 2017) (citations and internal quotations

omitted). Accepting the allegations in the Complaint as true and drawing all

inferences in favor of Howard as the Court must, the Court finds that Howard

has plausibly alleged that Deputy Briggs was acting within the scope of his

employment. Deputy Briggs’ conduct in stopping and arresting Howard and

subsequently transporting him to the St. Johns County Jail is reasonably

understood to be the kind of task for which he was employed as a police officer.

For these reasons, Howard plausibly states a basis on which the Sheriff could

be held liable for a battery if committed by Deputy Briggs as alleged in Count

VI.

V. Conclusion

For the foregoing reasons, to the extent Defendants seek dismissal of

Howard’s Fourth and Fourteenth Amendments excessive force claim against

Deputy Briggs in Count I on the grounds of qualified immunity, the Motion to

Dismiss is due to be granted. With regards to Howard’s excessive force claim

against the Sheriff, the Motion is due to be granted for a failure to adequately

allege Monell liability. As to Howard’s state law battery claim, because he has

adequately alleged a basis for vicarious liability, the Motion to Dismiss will be

denied as to Count VI.

Accordingly, it is ORDERED:

1. Defendants St. Johns County Sheriff And Deputy Sheriff Jason W.

Briggs’ Motion to Dismiss the Plaintiffs Amended Complaint with

Memorandum Of Law (Doc. 39) is GRANTED, in part, and DENIED,

in part.

a. The Motion is GRANTED to the extent that Counts I and III of

Plaintiffs Amended Complaint and Demand for Jury Trial (Doc.

38) are DISMISSED.

b. Otherwise, the Motion is DENIED.

2. The Clerk of the Court is directed to terminate Defendant Deputy

Sheriff Jason W. Briggs from the Court docket. This case will proceed

on the remaining claim against St. Johns County Sheriff in Count VI,

as well as the claims against the City of St. Augustine Beach, and

Officer Natalie L. Gillespie.

DONE AND ORDERED in Jacksonville, Florida this 17th day of

September, 2021.

United States District Judge

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