Cook v. Dunn

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WESLEY LEE COOK,

Plaintiff,

v. Case No. 8:19-cv-3051-TPB-SPF

LAURA H. DUNN, as personal representative

for the estate of Paul Patrick Dunn, OFFICER

DAVID BELL, FORMER CHIEF LARRY

GIDDENS, CITY OF LAKELAND, LAKELAND

CITY COMMISSION, and LAKELAND CITY

MANAGER TONY DELGADO,

Defendants.

/

ORDER GRANTING IN PART AND DENYING IN PART

“DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT”

This matter is before the Court on “Defendants’ Motion for Summary

Judgment,” filed on June 10, 2022. (Doc. 64). On June 30, 2022, Plaintiff Wesley

Cook filed his response in opposition. (Doc. 75). On July 12, 2022, Defendants

filed their reply. (Doc. 97). The Court held a hearing to address this matter on

August 22, 2022. (Doc. 119). Upon review of the motion, response, reply,

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

Background1

On December 28, 2015, Cook and his then-girlfriend, Shannon Wood, got into

a heated argument in their shared home. As the argument escalated, Wood

decided to leave the residence, but before she left, Cook took her cell phone and bag.

1 The Court construes the facts and evidence in light most favorable to Plaintiff for the

purpose of ruling on the motion for summary judgment.

Planning to get a hotel room for the night and return home the next day, Wood

stopped at a convenience store to call the Lakeland Police Department (“LPD”) to

ask for assistance in retrieving her belongings. During her call to law enforcement

Wood indicated that Cook had a gun and was a former law enforcement officer.

Officers Bell and Dunn responded to Cook’s residence to resolve the domestic

property dispute over the cell phone and bag. The officers met Wood and directed

her to wait at another location in her neighborhood while they went to the

residence. At around 9:00 p.m., the officers arrived at the residence where Cook

was asleep. Officer Dunn approached the residence with gun in hand, rang the

doorbell, then knocked on the door, which had glass windows around it. Cook woke

up from the knocking but heard no announcement or warning of any kind that

police were present. After Officer Dunn knocked on the door, the officers moved

into an ambush position behind a corner of the garage.

Cook grabbed his licensed firearm from his nightstand and headed to the

door with his firearm behind his back, pointing toward the ground. Still unsure of

who was at the door, Cook reached to unlock the door. Officer Dunn, without

warning, fired two separate volleys of shots totaling nine rounds through the glass

windows on the left side of the door, hitting Cook in his face, pelvis, chest, and side.

Throughout the entire incident, Cook never exited the residence.

Cook was taken by ambulance to a hospital, where he underwent surgery.

He ultimately spent twelve days in the hospital, part of the time in a coma, but he

survived. He sustained permanent injuries and disabilities, including the loss of

his left eye and bullet fragments still lodged in his body.

After the incident at issue here, Officer Dunn died in an unrelated motorcycle

accident. Prior to his death, he was questioned about this shooting in connection

with LPD’s standard procedures when officers discharge their weapons. Officer

Dunn explained that he observed through the glass windows next to the door that

Cook had a black object in his hand, and that Officer Dunn focused his flashlight on

the object and observed it to be a gun. Officer Dunn further stated that he

instructed Cook to “drop the gun” several times. Officer Dunn recalled during his

statement that Cook observed him and knew Officer Dunn was there, but Cook did

not drop the gun. Instead, Cook proceeded to open the door and step into the

doorway. According to Officer Dunn, he feared he might be shot if he didn’t act

first, so he shot Cook. Due to his position, Officer Bell was not in a position to see

any of these things and has neither corroborated nor contradicted Officer Dunn’s

version of these particular events. In addition, Officer Bell did not remember

Officer Dunn making any demands to drop the gun prior to the shooting.

Unfortunately for Defendants, due to Officer Dunn’s untimely death, it is impossible

for them to admit Dunn’s important testimony under the Federal Rules of Evidence.

As such, Officer Dunn’s recorded interview (and his recollection of the events) has

been excluded from this case and not considered in connection with the instant

motion. (Doc. 124).

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 properly supported motion for summary

judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of

material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no

genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d

1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden,

the nonmoving party must then designate specific facts showing the existence of

genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or

evidence, the nonmoving party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the nonmoving party’s favor. Shotz v. City of

Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003). Because this case concerns the

defense of qualified immunity, however, the Court “considers only the facts that

were knowable to the defendant officers.” With v. Pauly, 137 S.Ct. 548, 550 (2017)

(citing Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015)).

Analysis

Counts I and II –Violation of 42 U.S.C. § 1983 Pursuant to the Fourth

Amendment against Officer Dunn– Unlawful Seizure and Excessive Force

In Count I and II, Cook alleges that Officer Dunn violated his Fourth

Amendment rights by shooting him through the front windows of his home while he

was inside, not dangerous, and nonresistant. Officer Dunn moves for summary

judgment as to the § 1983 claims in Counts I and II based on qualified immunity.

“Section 1983 creates a private cause of action for deprivations of federal

rights by persons acting under color of state law.” Laster v. City of Tampa Police

Dept., 575 F. App’x 869, 872 (11th Cir. 2014). In section 1983 cases, when a

defendant raises the issue of qualified immunity and demonstrates that he was

acting within the scope of his discretionary authority, the plaintiff bears the burden

of overcoming that defense. See, e.g., Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002). A government official is completely protected from suit if his conduct “does

not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346

(11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Importantly, “[t]he determination of whether a police officer’s actions were

constitutional must be undertaken from the perspective of a reasonable officer on

the scene under the same conditions, rather than with the 20/20 vision of hindsight,

as the former allows for proper appreciation of the fact that police officers are often

forced to make decisions about the amount of force that is necessary in situations

that are tense, uncertain, and rapidly evolving.” Smith v. LePage, No. 1:12-CV-

0740-AT, 2015 WL 13260394, at *1 (N.D. Ga. Mar. 31, 2015). A police officer will

be entitled to qualified immunity if an objectively reasonable officer in the same

circumstances could have believed that the police conduct was not excessive.

Vinyard, 311 F.3d at 1346 (citing Anderson v. Creighton, 483 U.S. 635, 638-41

(1987)).

When analyzing whether a defendant is entitled to qualified immunity, the

court considers two questions: (1) whether the facts, taken in the light most

favorable to the plaintiff, show that the defendant’s conduct violated the plaintiff’s

constitutional rights, and (2) whether the plaintiff’s rights were clearly established.

See, e.g., Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Fils v. City of Aventura, 647

F.3d 1272, 1287 (11th Cir. 2011); Hadley v. Gutirrez, 526 F.3d 1324, 1329 (11th Cir.

2008).

Violation of Fourth Amendment Right

“When a plaintiff alleges excessive force during an investigation or arrest, the

federal right at issue is the Fourth Amendment right against unreasonable

seizures.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citing Graham v. Connor, 490

U.S. 386, 394 (1989)). Although “the right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of physical coercion,” the

Fourth Amendment clearly “encompasses the plain right to be free from the use of

excessive force in the course of an arrest.” Lee, 284 F.3d at 1197. “Our cases have

‘established 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.’” Mighty v. Miami-Dade Cnty., 659 F. App’x 969, 973 (11th Cir. 2016)

(quoting Fils, 647 F.3d at 1289).

Determining whether this right was violated “requires a balancing of the

nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the importance of the government interests alleged to justify the intrusion.”

Tolan, 572 U.S. at 656. When balancing these interests, the Eleventh Circuit

instructs courts to “weigh the quantum of force employed against the severity of the

crime at issue; whether the suspect poses an immediate threat to the safety of the

officers or others; and whether the suspect actively resisted arrest or attempted to

evade arrest by flight.” Dukes v. Deaton, 852 F.3d 1035, 1042-43 (11th Cir. 2017)

(internal quotations omitted).

Cook asserts that Officer Dunn used excessive force when Officer Dunn shot

him several times, from outside into Cook’s own home, although Cook did not

present any threat to the officers. Here, viewing all facts in the light most

favorable to Cook, there is a genuine issue of fact as to whether Officer Dunn

violated Cook’s constitutional rights. As an initial matter, it should be noted that

the officers were responding to a domestic property dispute, and “more force is

appropriate for a more serious offense and less force is appropriate for a less serious

one.” Vinyard, 311 F.3d at 1347 (quotations omitted). There is no contention that

Cook committed a felony of a violent nature before they confronted him at his

residence. Under Plaintiff’s version of events, which the Court accepts for the

purpose of summary judgment, Cook was merely answering his door when he was

shot while standing within his own home. Officer Dunn did not announce his

presence, advise Cook to drop his gun, or warn him that Officer Dunn would employ

lethal force before Officer Dunn shot Cook.2 Cook was not a fleeing felon, and he

posed no immediate threat to the officers. Although officers in tense and

dangerous situations are not required to wait until a suspect uses a deadly weapon

to act to stop that suspect, under Cook’s version of events, Cook did not present a

danger sufficient to warrant the use of deadly force against him. See Mighty, 659

2 Had the undisputed evidence shown that Cook refused to comply with repeated demands

to drop the weapon, the outcome here would likely have been different. See Garczynski v.

Bradshaw, 573 F.3d 1158, 1168-69 (11th Cir. 2009). However, viewing the facts in light

most favorable to Cook, no such demands were made.

F. App’x at 973 (“[U]nprovoked force against a non-hostile and non-violent suspect

who has not disobeyed instructions violates that suspects’ rights under the Fourth

Amendment.”); Smith, 2015 WL 13260394, at *16-20 (denying motion for summary

judgment with respect to excessive force claim on basis of qualified immunity where

there was genuine issue of fact as to necessity of force).

Thus, having considered the record, the Court cannot say that Officer Dunn’s

entitlement to qualified immunity is indisputable. Perhaps physical evidence and

witness testimony will support the officers’ claims that the force used was

reasonable and necessary. Perhaps the weight of the evidence and testimony will

support Cook’s claims. But it is not the Court’s place to resolve this dispute.

“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences form the facts are jury functions, not those of a judge.” Greer

v. Ivey, 767 F. App’x 706, 711-12 (11th Cir. 2019). Cook has met his burden of

showing the violation of a constitutional right that would preclude summary

judgment on this issue.

Violation of Clearly Established Right

Cook must also show that the constitutional right was clearly established at

the time of the conduct. See Plumhoff v. Rickard, 572 U.S. 765, 778 (2014). A

defendant cannot be said to have violated a clearly established right unless the

right’s contours were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it. Id. at 779.

Here, Cook’s Fourth Amendment right to be free from the use of deadly force

while nonresistant in his own home was clearly established at the time of the

shooting. The Eleventh Circuit has repeatedly held that the use of deadly force

against a person who has done nothing threatening and never posed an immediate

danger violates the Fourth Amendment. See, e.g., Greer, 767 F. App’x at 712;

Morton v. Kirkwood, 707 F.3d 1276, 1283 (11th Cir. 2013); Mercado v. City of

Orlando, 407 F.3d 1152, 1160 (11th Cir. 2005); see also Swofford v. Eslinger, 671 F.

Supp. 2d 1289, 1309 (M.D. Fla. 2009) (denying qualified immunity where officer

knew a property owner was likely lawfully armed on his own property and failed to

give a warning or identify himself before shooting), aff’d, 395 F. App’x 559 (11th Cir.

2010).

Even if the right were not clearly established, in excessive force cases, the

Eleventh Circuit recognizes “a narrow exception to the rule requiring particularized

case law.” Swofford, 671 F. Supp. 2d at 1309 (citing Hamilton v. City of Jackson,

Alabama, 261 F. App’x 182, 187 (11th Cir. 2008)). To overcome a qualified

immunity defense, a plaintiff may demonstrate, alternatively, “that the official’s

conduct lies so obviously at the very core of what the Fourth Amendment prohibits

that the unlawfulness of the conduct was readily apparent to the official,

notwithstanding the lack of case law.” Priester v. City of Riviera Beach, Fla., 208

F.3d 919, 926 (11th Cir. 2000). An officer shooting, unprovoked, into a man’s home

– when that man posed no danger to the officers or others – would seem to lie at

this core.

Therefore, Defendants’ motion is denied as to Counts I and II. However,

Defendants are not foreclosed from asserting a qualified immunity defense at trial.

See Vaughan, 343 F.3d at 1333.

Count III – Failure to Intervene against Officer Bell – Violation of 42 U.S.C.

§ 1983 Pursuant to the Fourth Amendment

In Count III, Cook alleges that Officer Bell violated his Fourth Amendment

rights by failing to intervene before or during the shooting. Officer Bell moves for

summary judgment on the ground that he had no opportunity to intervene.

Although only Officer Dunn is accused of using any kind of force against

Cook, Officer Bell may still be held liable under § 1983 if he was “present at the

scene and . . . fail[ed] to take reasonable steps to protect the victim of another

officer’s use of excessive force.” See Hadley, 526 F.3d at 1330. To be held liable for

his nonfeasance, the officer must have been in a position to intervene but failed to

do so. Id. at 1330-31 (citing Priester, 208 F.3d at 924).

Officer Bell claims that he could not actually see from his position what was

occurring when Officer Dunn began shooting. Yet, Officer Bell was physically

present at the scene and was arguably capable of observing Officer Dunn’s use of

force visually and auditorily. He was within a very close range during the entirety

of the encounter. Although it is questionable whether a jury would find that Bell

had the opportunity to intervene prior to the first volley of shots, that is a question

for the jury to resolve. Moreover, because there was a distinct lapse in time

between the first and second volleys, there is a clear question of fact as to whether

Bell could have intervened prior to the second volley. See Estate of Breedlove v.

Leone, No. 6:11-cv-2027-Orl-31TBS, 2013 WL 1703551, at *13 (M.D. Fla. Apr. 19,

2013). Although a close factual call, there may have been an opportunity for

Officer Bell to stop the alleged constitutional violation, and it will be for the jury to

make that determination. The motion for summary judgment is denied as to Count

III.

Count IV – Supervisory Liability/Policymaker Liability against Giddens,

Delgado, and Lakeland City Commission – Violation of 42 U.S.C. § 1983

In Count IV, Cook alleges that Giddens, Delgado, and the Lakeland City

Commission are liable under a supervisory liability theory for ignoring a pattern

and history of abuses committed by police officers under their supervision.

Particularly, Cook alleges that the Defendants failed to investigate misconduct,

allowed cover-ups of misconduct, failed to adopt policies designed to protect officers

from suit, concealed information about misconduct, and hired officers without

proper vetting or post-hiring training and monitoring.

“It is well established in this Circuit that supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003) (internal quotations omitted). Rather, to establish supervisory

liability, “a plaintiff must show that the supervisor either directly participated in

the unconstitutional conduct or that a causal connection exists between the

supervisor’s actions and the alleged constitutional violation.” Keith v. DeKalb

Cnty., 749 F.3d 1034, 1047-48 (11th Cir. 2014).

Cook does not allege that the identified supervisors personally participated in

the unconstitutional conduct. As such, he is required to show a causal connection

between the supervisors’ actions and the constitutional violations. As the Eleventh

Circuit has explained

The necessary causal connection can be established when

a history of widespread abuse puts the responsible

supervisor on notice of the need to correct the alleged

deprivation, and he fails to do so. Alternatively, the

causal connection may be established when a supervisor’s

custom or policy. . . result[s] in deliberate indifference to

constitutional rights or when facts support an inference

that the supervisor directed the subordinates to act

unlawfully or knew that the subordinates would act

unlawfully and failed to stop them from doing so.

Id. (quoting Cottone, 326 F.3d at 1360). To constitute widespread abuse, the

deprivations must be “obvious, flagrant, rampant and of continued duration, rather

than isolated occurrences.” Id. (quoting Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999)). The standards required to establish liability are therefore

“extremely rigorous.” Id. (quoting Cottone, 326 F.3d at 1360).

Here, Cook has not met that standard. Cook points to no prior misuses of

force by Bell, Dunn, or any other officers that would show the supervisors had any

notice of the need to correct any alleged constitutional deprivations similar to his.

Moreover, Cook points to no custom or policy of the supervisors that would result in

deliberate indifference to constitutional rights or support an inference that the

supervisors directed the officers to act unlawfully or knew that they would act

unlawfully and failed to stop them. Cook points to an expert report relying on

comparisons to national standards and a single prior allegation of dishonesty

against Dunn (that was dismissed in Dunn’s favor), but there are no concrete facts

connecting the supervisors to the kind of violation alleged.3 Defendants’ motion for

3 For example, Plaintiff complains about a “flawed” complaint policy system, which buried

or did not make known past bad conduct by law enforcement. But Plaintiff does not

explain a sufficient causal connection – how this custom or policy resulted in a deliberate

indifference to constitutional rights.

summary judgment is granted as to Count IV.

Count V – Municipal Liability against The City of Lakeland – Violation of

42 U.S.C. § 1983

In Count V, Cook alleges that the City of Lakeland is liable for his injuries.

Defendants move for summary judgment as to Count V on the grounds that there

are no material facts supporting the allegations that would support municipal

liability. Under Monell, “[l]ocal governing bodies . . . can be sued directly under

§ 1983 for monetary, declaratory, or injunctive relief . . . pursuant to a

governmental ‘custom’ even though such a custom has not received formal approval

through the body’s official decisionmaking channels.” Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690-91 (1978). A municipality can only be held liable, however,

where “action pursuant to official municipal policy of some nature caused a

constitutional tort;” it cannot be liable under § 1983 on a respondeat superior theory

because it employs a tortfeasor. Id. at 691. “Supervisor liability arises only ‘when

the supervisor personally participates in the allege constitutional violation or when

there is a causal connection between the actions of the supervising official and the

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

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

1265, 1270 (11th Cir. 2007)). Consequently, “to impose § 1983 liability on a local

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

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

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

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

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

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

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

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

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

to correct the alleged deprivation, and he fails to do so.” Cottone, 326 F.3d at 1360

(internal quotation omitted). “Alternatively, the causal connection may be

established when a supervisor’s custom or policy results in deliberate indifference to

constitutional rights or when facts support an inference that the supervisor directed

the subordinates to act unlawfully or knew the subordinates would act unlawfully

and failed to stop them from doing so.” Id. (internal quotation and citation

omitted).

Cook does not present sufficient evidence from which a jury could reasonably

conclude that any policy or custom of the City of Lakeland caused the constitutional

violation in this case. For example, Cook claims that the City of Lakeland failed to

train its law enforcement officers in resolving property disputes. Under certain

limited circumstances, a municipality’s failure to “train certain employees about

their legal duty to avoid violating citizens’ rights may rise to the level of an official

government policy for purposes of § 1983.” Connick v. Thompson, 563 U.S. 51, 61

(2011). That being said, “a municipality’s culpability for a deprivation of rights is

at its most tenuous where a claim turns on a failure to train.” Id. (citing Oklahoma

City v. Tuttle, 471 U.S. 808, 822-23 (1985)). With regard to a failure to train claim,

“a supervisor can be held liable for failing to train his or her employees ‘only where

the failure to train amounts to deliberate indifference to the rights of the persons

with whom the [officers] come into contact.’” Keith, 749 F.3d at 1052 (quoting City

of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). As such, a plaintiff asserting

a failure to train claim “must demonstrate that the supervisor had ‘actual or

constructive notice that a particular omission in their training program causes [his

or her] employees to violate citizens’ constitutional rights,’ and that armed with

that knowledge the supervisor chose to retain that training program.” Id. (quoting

Connick, 563 U.S. at 61).

Cook does not allege, much less establish, a pattern of similar constitutional

violations by untrained employees. See Keith, 749 F.3d at 1053. The same is true

for the other policies identified – Cook does not sufficiently establish any custom or

policy that was the moving force behind the constitutional violation, and the single

incident here is not enough for this Court to find municipal liability. See Speight v.

Griggs, 620 F. App’x 806, 810 (11th Cir. 2015) (citing City of Springfield v. Kibbe,

480 U.S. 257, 270-71 (1987)). Defendants’ motion for summary judgment is

granted as to Count V.

Count VI – Assault and Battery against Officer Dunn – Violation of 42

U.S.C. § 1983 Pursuant to the Fourth Amendment

“A battery claim for excessive force is analyzed by focusing upon whether the

amount of force used was reasonable under the circumstances.” Cutino v. Untch,

79 F. Supp. 3d 1305, 1315 (S.D. Fla. 2015). For the reasons stated in the Court’s

analysis of Counts I and II, genuine issues of fact preclude summary judgment

regarding the reasonableness of Dunn’s conduct. The determination of whether the

force employed was reasonable is a question for the jury to resolve. The motion is

denied as to Count VI.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) “Defendants’ Motion for Summary Judgment” (Doc. 64) is GRANTED IN

PART and DENIED IN PART.

(2) The motion is GRANTED to the extent that summary judgment shall be

entered in favor of Defendants, and against Plaintiff, on Counts IV and V

of the amended complaint (Doc. 20). The Court will enter a final

judgment once all claims have been resolved.

(3) The motion is otherwise DENIED.

DONE and ORDERED in Chambers, in Tampa, Florida, this 24th day of

October, 2022.

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-TOMBARBER i (asssti‘“‘—itit~™*”

UNITED STATES DISTRICT JUDGE

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