Stepp v. Brown

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROBERT LEE STEPP,

Plaintiff,

v. Case No. 8:22-cv-590-KKM-AAS

C. BROWN,

A. HAGENBERGER

M. GONZALEZ,

J. ENNIS,

C. LAVIGNE, and

CHAD CHRONISTER,

Defendants.

________________________________

ORDER

Plaintiff Robert Lee Stepp brings an Amended Complaint under 42 U.S.C.

§ 1983. (Doc. 6.) As required by law, the Court must screen Stepp’s Amended

Complaint. See 28 U.S.C. § 1915A (requiring a district court to screen a complaint

in “a civil action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity” and dismiss the complaint if it “is

frivolous, malicious, or fails to state a claim upon which relief may be granted” or

“seeks monetary relief from a defendant who is immune from such relief”); see also

28 U.S.C. § 1915(e)(2) (requiring dismissal of a complaint in an in forma pauperis

proceeding under the same circumstances). Because Stepp’s Amended Complaint

fails to state a claim upon which relief may be granted, the Court dismisses it

without prejudice to the filing of a second amended complaint.

I. The Amended Complaint

Stepp alleges that the following occurred on August 24, 2019, (Doc. 6 at 6):

I was attacked by a K9 while I was already on the ground

bitten several times. K9 Deputy J. Ennis refused to remove the

K9 [and] allowed the K9 to continue to bite me. Deputy C.

Brown, Deputy A. Hagenberger, Deputy Corporal M.

Gonzalez, and Deputy C. Lavigne stood by and watched me

being attacked and did not attempt to help[,] cheering the K9

on.

After the attack, Stepp received medical treatment at Tampa General Hospital. (Id.)

He alleges that “a large chunk of [his] left calf” is missing. (Id.) He has a limp and

“massive scarring.” (Id.) Stepp seeks to recover $5 million in compensatory and

punitive damages. (Id.) He wants the K9 to be retired and the deputies to be

retrained or terminated. (Id.)

II. The Claims

Stepp asserts claims of excessive force and failure to intervene against the

deputies and Sheriff Chronister in their individual capacities. “A genuine

‘excessive force’ claim relates to the manner in which an arrest was carried out,

independent of whether law enforcement had the power to arrest.” Hadley v.

Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (quoting Bashir v. Rockdale County,

Ga., 445 F.3d 1323, 1332 (11th Cir. 2006)). “’[S]ome degree of physical coercion or

threat’” during an arrest is permitted. Vineyard v. Wilson, 311 F.3d 1340, 1347 (11th

Cir. 2002) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

“The merits of excessive force claims are fact sensitive.” Anderson on behalf

of MA v. Vazquez, 813 F. App’x 358, 360 (11th Cir. 2020) (discussing precedent

governing the constitutionality of using a K-9 to apprehend a suspect). Courts

consider several factors to determine whether an officer’s use of force was

objectively reasonable, 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

and sadistically.’” Hadley, 526 F.3d at 1329 (quoting Slicker v. Jackson, 215 F.3d 1225,

1233 (11th Cir. 2000)). “[G]ratuitous use of force when a criminal suspect is not

resisting arrest constitutes excessive force.” Hadley, 526 F.3d at 1330. Furthermore,

an officer may be liable for failing to intervene if the officer is present at the scene

and “fails to take reasonable steps to protect the victim of another officer’s use of

excessive force.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007)

(citations omitted).

Although Stepp identifies his injuries, he fails to provide any factual context

by which a court could evaluate the plausibility of the excessive force and failure-

to-intervene claims. Stepp does not describe his actions preceding his

apprehension (and thus whether there was a need for the application of force as

alleged) or how the canine attack occurred. Without such factual detail, Stepp has

not stated an excessive force claim because he has not alleged that the use of force

was “gratuitous.” See e.g., Lancaster v. Adams, No. 3:21-cv-559-BJD-JBT, 2021 WL

4502796, at *2 (M.D. Fla. Oct. 1, 2021) (“If Plaintiff wishes to proceed on a Fourth

Amendment excessive force claim against the arresting officers, he must explain

the circumstances under which force was used, including what he did and said,

what each officer did and said, and the nature and extent of any injuries he

sustained.”) (emphasis in original). Furthermore, Stepp’s allegations are too vague

to determine which deputies allegedly used excessive force and which deputies

allegedly failed to intervene. Finally, although Stepp names Sheriff Chronister as

a defendant, he asserts no facts to describe Sheriff Chronister’s involvement in the

attack or a policy causing the canine attack that could render Chronister liable

under a supervisory theory. Therefore, the individual capacity claims as alleged

against the deputies and Sheriff Chronister are dismissed.

III. Conclusion

Accordingly, it is ORDERED that:

1. Stepp’s Amended Complaint is DISMISSED WITHOUT

PREJUDICE.

a. If Stepp wishes to amend his Amended Complaint to remedy

the noted deficiencies, he shall file a second amended

complaint no later than July 27, 2022.

b. To amend his Amended Complaint, Stepp should complete a

new civil rights complaint form, titling it “Second Amended

Complaint.” The Second Amended Complaint must include all

of Stepp’s claims that he wishes to pursue and may not refer

back to, or incorporate, the original Complaint or the Amended

Complaint. The Second Amended Complaint shall supersede

the Amended Complaint. Malowney v. Fed. Collection Deposit

Group, 193 F.3d 1342, 1345 n.1 (11th Cir. 1999).

c. The Second Amended Complaint shall be subject to initial

screening under 28 U.S.C. § 1915A.

2. If Stepp fails to file a Second Amended Complaint by the above

deadline, this order dismissing the Amended Complaint without

prejudice will become a final judgment. “[A]n order dismissing a

complaint with leave to amend within a specified time becomes a final

judgment if the time allowed for amendment expires without the

plaintiff [amending his complaint or] seeking an extension. And when

the order becomes a final judgment, the district court loses ‘all its

prejudgment powers to grant any more extensions’ of time to amend

the complaint.” Auto. Alignment & Body Serv., Inc. v. State Farm Mut.

Auto. Ins. Co., 953 F.3d 707, 720-71 (11th Cir. 2020) (quoting Hertz Corp.

v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th Cir. 1994)).

3. Stepp must advise the Court of any change of address. He must entitle

the paper “Notice to the Court of Change of Address” and must

exclude any motions from the notice. Failure to inform the Court of

an address change may result in the dismissal of this case without

further notice.

4. The Clerk is DIRECTED to mail to Stepp a copy of both the standard

prisoner civil rights complaint form and this order.

ORDERED in Tampa, Florida on July 13, 2022.

athryn’ Kimball Mizelle

United States District Judge