Corbin v. Prummell, Jr.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SANDRA CORBIN and JOHN

CORBIN,

Plaintiffs,

v. Case No: 2:22-cv-394-JES-KCD

BILL PRUMMELL, JR., in his

official capacity as Sheriff

of the Charlotte County,

Florida’s Sheriff’s Office,

DAVID GENSIMORE,

individually and in his

official capacity as a

Deputy for the Charlotte

County Sheriff’s Office,

AARON WILLIAMS, individually

and in his official capacity

as a Deputy for the

Charlotte County Sheriff’s

Office, KENRICK ROGUSKA,

individually and in his

official capacity as a

Deputy for the Charlotte

County Sheriff’s Office, and

MICHAEL DAVIDSON,

individually and in his

official capacity as a

Deputy for the Charlotte

County Sheriff’s Office,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of the following

four motions to dismiss and responses: (1) Defendant Gensimore’s

Motion to Dismiss (Doc. #30), and Plaintiffs’ Response in

Opposition to Motion (Doc. #44); (2) Defendant Roguska’s Motion to

Dismiss (Doc. #36) and Plaintiffs’ Response in Opposition (Doc.

#50); (3) Defendant Davidson’s Motion to Dismiss (Doc. #54) and

Plaintiffs’ Response in Opposition (Doc. #60); and (4) Defendant

Williams’ Partial Motion to Dismiss (Doc. #58) and Plaintiffs’

Response in Opposition (Doc. # 61). The motions seek to dismiss

most, but not all, of the counts in the Complaint (Doc. #1). The

motions are resolved as set forth below.

I.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

1

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

1

Plaintiffs’ reliance on the “beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief” from Conley v. Gibson, 355 U.S. 41, 45

(1957) (Doc. #44, p. 7; Doc. #50, p. 6; Doc. #60, pp. 6, 10) is

misplaced since Twombly held this was a phrase “best forgotten,”

Twombly, 550 U.S. at 563.

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth.” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted).

Thus, the Court engages in a two-step approach: “When there

are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Iqbal, 556 U.S. at 679. Stated a

different way, after ignoring conclusory allegations, the court

assumes any remaining factual allegations are true and determines

whether those factual allegations plausibly give rise to an

entitlement to relief. Ingram v. Kubik, 30 F.4th 1241, 1255 (11th

Cir. 2022).

II.

Plaintiffs Sandra Corbin (Mrs. Corbin) and John Corbin (Mr.

Corbin) sued Bill Prummell, Jr., the Sheriff of Charlotte County,

Florida in his official capacity, and four Charlotte County Deputy

Sheriffs (Deputies Gensimore, Roguska, Williams, and Davidson) in

2

their individual capacities , based on events which occurred during

and after a November 29, 2019, traffic stop. The underlying facts

are summarized from the Complaint (Doc. #1) viewed in the light

most favorable to plaintiffs.

On or about November 29, 2019, Mr. Corbin was driving a motor

vehicle in which Mrs. Corbin was a passenger. Mr. Corbin drove

the vehicle into a McDonald’s parking lot pursuant to a traffic

stop conducted by Deputies Williams and Davidson. Deputy Davidson

informed Mr. Corbin that he had swerved while driving on a two-

lane road where no other cars were present. Mr. Corbin explained

that he had dropped his cigarette. Deputy Davidson asserted that

Mr. Corbin was intoxicated, and instructed Mr. Corbin to exit the

vehicle for a field sobriety test. Deputy Davidson further

2

A “suit against [Sheriff] Prummell is, in essence, a suit

against Charlotte County.” Ireland v. Prummell, 53 F.4th 1274

(11th Cir. 2022) (citations omitted). The case caption and the

introductory paragraph of the Complaint (Doc. #1) refer to the

deputies being sued in both their individual and official

capacities, but all counts relating to the deputies state the

deputies are only being sued in their individual capacities. (Doc.

#1, ¶¶ 10-13, 134, 145, 158, 171, 189, 204, 230, 245, 254, 261,

278, 320, 333, 363.) Therefore, the only official capacity claims

in the Complaint are those against the Sheriff. See Counts VIII

and XIII.

instructed Mr. Corbin to walk to the adjacent parking lot to

perform the test. Mrs. Corbin remained in the vehicle, unable to

see the deputy and her husband after they went to the adjacent

parking lot.

Mrs. Corbin became concerned about her husband and stepped

out of the vehicle. Mrs. Corbin remained in the McDonald’s parking

lot, about 25 feet away from the field sobriety test site. Deputy

Williams came over and told Mrs. Corbin to get back into the

vehicle, which she did. After more time passed, Mrs. Corbin again

stepped out of the vehicle and went to a position in the McDonald’s

parking lot where she could see her husband. Deputy Williams

walked over “aggressively” and was yelling at Mrs. Corbin. Deputy

Williams raised his booted leg, and intentionally and without

provocation kicked Mrs. Corbin in her leg, sweeping her to the

ground on her stomach, breaking her leg and causing her to urinate

on herself. Mrs. Corbin began to scream from pain. While Mr.

Corbin could hear her screams, Deputy Davidson did not allow him

to move from the adjacent parking lot.

Deputy Williams did not summon medical aid, but called a

supervisor, Deputy Gensimore. After Deputy Gensimore’s arrival

both deputies tried to get Mrs. Corbin to her feet in order to

walk her to a police cruiser, even though she had told them her

leg was broken. Deputies Williams and Gensimore eventually called

for medical assistance. During this time, Deputy Davidson kept

Mr. Corbin at bay and refused to inform him of Mrs. Corbin’s

condition. Mrs. Corbin was eventually placed in an ambulance, and

accompanied by Deputy Williams, was taken to a hospital. Mrs.

Corbin was diagnosed with a broken leg and admitted to the

hospital.

Deputy Williams contacted Watch Commander Lieutenant Roguska

and advised him of the situation, including Mrs. Corbin’s broken

leg. Lieutenant Roguska instructed Deputy Williams to issue a

Notice to Appear charging Mrs. Corbin with Disorderly Intoxication

and Resisting Arrest/Obstruction/Without Violence, which Deputy

Williams did. Plaintiffs assert that Mrs. Corbin’s arrest and

issuance of the Notice to Appear was to conceal the unlawful

actions and excessive force by Deputy Williams.

Mr. Corbin was arrested by Deputy Davidson for driving under

the influence and was issued a warning for failure to drive in a

single lane. No breathalyzer test was administered at the scene

of the arrest, and Mr. Corbin was transported to jail while

handcuffed in the back of a police car. At the jail, another

officer administered a breathalyzer to Mr. Corbin.

Mrs. Corbin underwent surgery on December 1, 2019, after the

swelling in her leg subsided, and her hospitalization continued

after the operation. The criminal charges were eventually nolle

prossed and dismissed as to Mrs. Corbin, and Mr. Corbin pled no

contest to a reduced charge.

III.

The Complaint sets forth fifteen counts which allege various

federal or state law claims against specified defendants. Not all

counts have been challenged in the motions to dismiss. The Court

addresses the challenged counts in the order presented in the

Complaint. (Doc. #1.)

A. Federal False Arrest/False Imprisonment Counts

In Counts I, II, and III, Mrs. Corbin asserts false

arrest/imprisonment claims against Deputies Williams, Gensimore,

and Roguska in their individual capacities pursuant to 42 U.S.C.

§ 1983. Specifically, Count I alleges that Deputy Williams

detained, seized, and arrested Mrs. Corbin without probable cause.

Count II alleges that Sergeant Gensimore failed to intervene when

required to do so and detained, seized, and arrested Mrs. Corbin

without probable cause. Count III alleges that Lieutenant Roguska

failed to intervene when required to do so and detained, seized,

and arrested Mrs. Corbin without probable. While a traffic stop

constitutes a seizure within the meaning of the Fourth Amendment,

Delaware v. Prouse, 440 U.S. 648, 653 (1979), Mrs. Corbin’s false

arrest/imprisonment claims do not challenge the validity of the

traffic stop. Rather, her claims begin with the officers’ conduct

towards her after the traffic stop had been effectuated.

(1) General Legal Principles

Section 1983 provides a private cause of action against any

person who, under color of state law, deprives a person of “any

rights, privileges, or immunities secured by the Constitution and

laws” of the United States. 42 U.S.C. § 1983. “To state a claim

for relief in an action brought under § 1983, [plaintiffs] must

establish that they were deprived of a right secured by the

Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.” Focus on the

Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276–77

(11th Cir. 2003) (citation omitted). “A constitutional claim

brought pursuant to § 1983 must begin with the identification of

a specific constitutional right that has allegedly been

infringed.” DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1288

(11th Cir. 2019) (quoting Paez v. Mulvey, 915 F.3d 1276, 1285 (11th

Cir. 2019)). Here, Mrs. Corbin identifies the Fourth Amendment as

the constitutional right at issue.

False arrest and false imprisonment are overlapping torts

which both concern detention without legal process. Wallace v.

Kato, 549 U.S. 384, 388-89 (2007); Williams v. Aguirre, 965 F.3d

1147, 1157 (11th Cir. 2020). Both the arrest and the detention of

a person (even beyond the start of legal process) constitute a

“seizure” under the Fourth Amendment. Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011) (arrest); Manuel v. City of Joliet, 580 U.S.

357 (2017) (detention beyond start of legal process). Under the

Fourth Amendment, the reasonableness of such a seizure is

determined by the presence or absence of probable cause. Baxter

v. Roberts, 54 F.4th 1241, 1265 (11th Cir. 2022) (citing Skop v.

City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007)). “[T]he

correct legal standard to evaluate whether an officer had probable

cause to seize a suspect is to ‘ask whether a reasonable officer

could conclude ... that there was a substantial chance of criminal

activity.’” Washington v. Howard, 25 F.4th 891, 902 (11th Cir.

2022) (quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 588

(2018)). See also Ingram v. Kubik, 30 F.4th 1241, 1250 (11th Cir.

2022); Richmond v. Badia, 47 F.4th 1172, 1180 (11th Cir. 2022).

“To succeed on a false arrest claim, a plaintiff must

establish (1) a lack of probable cause and (2) an arrest.”

Richmond, 47 F.4th at 1180. “A warrantless arrest without probable

cause violates the Fourth Amendment and forms a basis for a section

1983 claim.” Baxter, 54 F.4th at 1265 (citation omitted). On the

other hand, the existence of probable cause constitutes an absolute

bar to a section 1983 action for false arrest, even if a minor

offense is involved. Baxter, 54 F.4th at 1265.

“A false imprisonment claim under § 1983 requires meeting the

common law elements of false imprisonment and establishing that

the imprisonment was a due process violation under the Fourteenth

Amendment.” Helm v. Rainbow City, Ala., 989 F.3d 1265, 1278 (11th

Cir. 2021) (citing Campbell v. Johnson, 586 F.3d 835, 840 (11th

Cir. 2009)). “The elements of common law false imprisonment are

an intent to confine, an act resulting in confinement, and the

victim's awareness of confinement.” Campbell, 586 F.3d at 840.

“[I]n order to establish a due process violation, a plaintiff must

show that the officer acted with deliberate indifference, i.e.,

demonstrating that the officer ‘had subjective knowledge of a risk

of serious harm and disregarded that risk by actions beyond mere

negligence.’” Helm, 989 F.3d at 1278-79 (citing Campbell). “Where

a police officer lacks probable cause to make an arrest, the

arrestee has a claim under section 1983 for false imprisonment

based on a detention pursuant to that arrest.” Ortega v. Christian,

85 F.3d 1521, 1526 (11th Cir. 1996) (citation omitted). A claim

of false imprisonment under § 1983, however, is defeated if the

officer has probable cause to arrest. Case v. Eslinger, 555 F.3d

1317, 1330 (11th Cir. 2009).

(2) Qualified Immunity

Qualified immunity principles also come into play in these

counts. Officers who act within their discretionary authority are

"entitled to qualified immunity under [section] 1983 unless (1)

they violated a federal statutory or constitutional right, and (2)

the unlawfulness of their conduct was clearly established at the

time." Wesby, 138 S. Ct. at 589 (internal quotation marks and

citation omitted). As the Eleventh Circuit has recently

summarized:

Qualified immunity shields public officials

from liability for civil damages when their

conduct does not violate a constitutional

right that was clearly established at the time

of the challenged action. [] To receive

qualified immunity, the defendant must first

show he was performing a discretionary

function. [] The plaintiff then bears the

burden of proving both that the defendant

violated his constitutional right and that the

right was clearly established at the time of

the violation. []

Washington, 25 F.4th at 897–98 (internal quotations marks and

citations omitted).

The defense of qualified immunity may be raised and considered

on a motion to dismiss. St. George v. Pinellas Cnty., 285 F.3d

1334, 1337 (11th Cir. 2002).

The motion to dismiss will be granted if the

complaint fails to allege the violation of a

clearly established constitutional right. []

Whether the complaint alleges such a violation

is a question of law that we review de novo,

accepting the facts alleged in the complaint

as true and drawing all reasonable inferences

in the plaintiff's favor. The scope of the

review must be limited to the four corners of

the complaint. [] While there may be a dispute

as to whether the alleged facts are the actual

facts, in reviewing the grant of a motion to

dismiss, we are required to accept the

allegations in the complaint as true. [] Once

an officer has raised the defense of qualified

immunity, the burden of persuasion on that

issue is on the plaintiff. []

Id. (internal quotation marks and citations omitted). To satisfy

this burden, plaintiffs “must allege facts establishing both (1)

that [the deputy] violated a constitutional right and (2) that the

relevant right was ‘clearly established’ at the time of the alleged

misconduct.” Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir.

2021) (citation omitted).

A right is clearly established only if its

contours are sufficiently clear that a

reasonable official would understand that what

he is doing violates that right. [] In other

words, existing precedent must have placed the

statutory or constitutional question beyond

debate. [] This doctrine gives government

officials breathing room to make reasonable

but mistaken judgments, and protects all but

the plainly incompetent or those who knowingly

violate the law. []

Carroll v. Carman, 574 U.S. 13, 16 (2014) (per curiam) (internal

citations and quotation marks omitted). Facts which will show

that a particular constitutional right is clearly established

include: (1) showing that a materially similar case has already

been decided by an appropriate court; (2) showing that a broader,

clearly established principle should control the novel facts of a

particular case; or (3) establishing that the conduct so obviously

violates the Constitution that prior case law is unnecessary.

Davis v. Waller, 44 F.4th 1305, 1312–13 (11th Cir. 2022). “[E]ach

defendant is entitled to an independent qualified-immunity

analysis as it relates to his or her actions and omissions.”

Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018).

Where the issue is probable cause, an officer is entitled to

qualified immunity where the officer had “arguable probable

cause,” that is, where “‘reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants

could have believed that probable cause existed to arrest’ the

plaintiffs.” Wilkerson v. Seymour, 736 F.3d 974, 977–78 (11th

Cir. 2013) (citation omitted).

(3) Sergeant Gensimore

3

In Count II , Mrs. Corbin alleges that Deputy Gensimore is a

Sergeant and the supervisor who responded to the scene after a

call from Deputy Williams. It is alleged that upon arrival

Sergeant Gensimore observed the unarmed sixty-year-old Mrs. Corbin

lying on her stomach in a large pool of urine while in double-

locked handcuffs screaming in pain that Deputy Williams had broken

her leg. This location was over twenty-five feet from her

husband’s field sobriety test site. Based on these observations,

Sergeant Gensimore is alleged to have had the authority and duty

to: (1) inquire into the nature and lawfulness of Deputy Williams’

actions, (2) instruct Deputy Williams to cease his actions and end

his interaction with Mrs. Corbin; and (3) release Mrs. Corbin.

Count II further alleges that Sergeant Gensimore not only failed

to intervene, but affirmatively and intentionally effectuated an

unlawful arrest, seizure and detention of Mrs. Corbin by lifting

3

The sufficiency of Count I is not challenged.

her up, ordering her to walk to a police car, and refusing to call

for or render immediate medical attention.

Sergeant Gensimore argues that “[t]here are no plausible

allegations that Sergeant Gensimore personally played any role in

Mrs. Corbin’s traffic stop, seizure or in Deputy Williams’ decision

to issue a notice to appear.” (Doc. #30, p. 17.) Additionally,

Sergeant Gensimore asserts he is entitled to qualified immunity as

to Count II. (Id. at 17-18.)

Contrary to his argument, the claim against Sergeant

Gensimore does not involve the lawfulness of the traffic stop,

which is not challenged by either plaintiff. Rather, Count II

alleges that Sergeant Genismore had a duty to intervene based on

his observations after arrival at the scene during the detention

resulting from the traffic stop. Additionally, Count II alleges

that Sergeant Genismore is liable for his personal affirmative

participation in the continued unlawful detention and arrest of

Mrs. Corbin. The Court discusses these two separate components of

Count II separately.

(a) Duty to Intervene

“If a police officer, whether supervisory or not, fails or

refuses to intervene when a constitutional violation ... takes

place in his presence, the officer is directly liable under Section

1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986)

(citations omitted). “This liability, however, only arises when

the officer is in a position to intervene and fails to do so.”

Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir.

2000). The typical situation involves a claim of excessive force

by one officer committed in the presence of another officer, who

fails to intervene. The principle that an officer must intervene

when he or she witnesses unconstitutional force has been clearly

established in the Eleventh Circuit for decades. Helm v. Rainbow

City, Ala., 989 F.3d 1265, 1272 (11th Cir. 2021) (citations

omitted).

In contexts other than excessive force, the duty to intervene

is less well-developed. Jones v. Cannon, 174 F.3d 1271 (11th Cir.

1999), involved the duty to intervene in a false arrest context.

The Eleventh Circuit has described its decision as follows:

In Jones v. Cannon, we held that where an

officer was present during an arrest and knew

that the arresting officer had no reasonable

basis for arguable probable cause, the non-

arresting officer could be liable under § 1983

if he was sufficiently involved in the arrest.

174 F.3d 1271, 1283–84 (11th Cir. 1999). We

then found that the non-arresting officer

could have been sufficiently involved as a

participant where he participated in an

interview resulting in an allegedly fabricated

confession, took notes from which the police

report was prepared, and transported the

detainee to the jail. Id. at 1284. We then

held with respect to a different aspect of the

claim of a constitutional violation that the

same non-arresting officer could not be liable

under § 1983 for the arresting officer's

allegedly fabricated affidavit used at a later

probable cause proceeding. Id. at 1284–86.

Jones acknowledged a long line of precedent in

excessive force cases in which we have

recognized a duty to intervene. See, e.g.,

Ensley v. Soper, 142 F.3d 1402, 1407 (11th

Cir.1998) (“[I]t is clear that if a police

officer, whether supervisory or not, fails or

refuses to intervene when a constitutional

violation such as an unprovoked beating takes

place in his presence, the officer is directly

liable under Section 1983.” (internal

quotation marks omitted)). Thus, we observed

in Jones as to the second charge that “[w]hile

officers have been subject to liability for

failing to intervene when another officer uses

excessive force, there is no previous decision

from the Supreme Court or this Circuit holding

that an officer has a duty to intervene and is

therefore liable under the circumstances

presented here.” 174 F.3d at 1286 (citation

omitted).

Jones did not preclude all failure to

intervene claims against a present, but non-

arresting, officer in false arrest cases.

Although not made explicit in Jones, we based

our different holdings as to the non-arresting

officer on both the degree of participation in

the arrest and the amount of information

available to the non-arresting officer,

because a non-arresting officer does not have

a duty to investigate the basis of another

officer's arrest. See id., 174 F.3d at 1284–

86. Additionally, with respect to the second

aspect of the claim, we rejected the argument

that one officer “is somehow charged with

presuming that [the arresting officer] must

have put the alleged false confession in the

arrest affidavit” or that he “was required to

undertake an investigation of the arrest

affidavit to determine what [the arresting

officer] was doing and what [he] put in the

arrest affidavit to continue Jones's

detention.” Id. at 1286. What is made explicit

in Jones is that a participant in an arrest,

even if not the arresting officer, may be

liable if he knew the arrest lacked any

constitutional basis and yet participated in

some way.

Wilkerson v. Seymour, 736 F.3d 974, 979–80 (11th Cir. 2013).

Applying Jones, the Wilkerson court stated:

We need not fully delineate the scope of such

a duty here, however, because assuming that

Sergeant Parker sufficiently participated in

Wilkerson's arrest, Sergeant Parker still

lacked the requisite information to put him on

notice that an unlawful arrest was occurring

or had occurred. Here, Sergeant Parker arrived

at the scene after Wilkerson was already under

arrest and placed in a transport car. He spoke

to Officer Seymour for only a few minutes,

during which time he was told that Wilkerson

had been loud in a public place and was using

profanity. Sergeant Parker then spoke with

Wilkerson for less than one minute. Wilkerson

does not claim that she told Sergeant Parker

her account of the arrest or that she

challenged the basis of her false arrest.

Rather, she told him of her clean record and

implored him to run a criminal history check,

which he declined to do. Putting to the side

the question of whether anything Wilkerson

might have said after the fact could have

placed Sergeant Parker on sufficient notice of

the unconstitutionality of her arrest, she

alleges no such statement here. Sergeant

Parker was entitled to rely on the account of

the arrest provided by Officer Seymour and

fill in any gaps in the account with

reasonable inferences premised on Officer

Seymour acting in a constitutional manner and

in good faith.

Wilkerson, 736 F.3d at 980 (footnote omitted). In a subsequent

unreported decision, the Eleventh Circuit later stated:

In Jones v. Cannon, we held that where an

officer was present during an arrest and knew

the arresting officer lacked reasonable basis

for arguing probable cause, the non-arresting

officer could be liable under § 1983 if he was

sufficiently involved in the arrest. 174 F.3d

1271, 1283-84 (11th Cir. 1999). We later

clarified that “a participant in an arrest,

even if not the arresting officer, may be

liable if he knew the arrest lacked any

constitutional basis and yet participated in

some way.” Wilkerson v. Seymour, 736 F.3d 974,

980 (11th Cir. 2013). Thus, if an officer

knows that an arrest is unconstitutional, but

yet participates in the arrest, that officer

may be liable. See id.

Buress v. City of Miami, 21-12131, 2022 WL 2161438, at *3 (11th

Cir. June 15, 2022).

In sum, an officer who is present and knows no arguable

probable cause exists can be liable if sufficiently involved in

the arrest. Liability depends on the degree of participation in

the arrest and the amount of information available to the non-

arresting officer. A non-arresting officer does not have the duty

to investigate the basis for another officer’s arrest. The non-

arresting officer is entitled to rely on the arresting officer’s

account of the arrest and make reasonable inferences from it. The

non-arresting officer may be liable, however, if he knew the arrest

lacked any constitutional basis and participated in some way.

The Court finds that the factual allegations in Count II do

not state a plausible claim for liability based on a duty to

intervene by Sgt. Gensimore. Sergeant Gensimore was not present

for either the traffic stop, or Deputy Williams’ interactions with

Mrs. Corbin. By the time Sergeant Gensimore arrived, the allegedly

excessive force had concluded, and Mrs. Corbin had been placed

under arrest. Nothing he is alleged to have observed gave Sergeant

Genismore a reasonable basis to believe there was not at least

arguable probable cause to arrest Mrs. Corbin. An injury to an

arrestee does not create a reasonable inference that there might

have been police misconduct, and Sergeant Genismore was not

obligated to investigate the propriety of Deputy Williams’

4

conduct. Wilkerson, 736 F.3d at 980 (citing Jones, at 1284-86).

All of Sergeant Gensimore’s personal conduct took place after the

initial seizure by Deputy Williams. Count II fails to plausibly

state a claim for liability based on a failure to intervene in a

false arrest/false imprisonment.

Sergeant Gensimore also asserts he is entitled to dismissal

of this portion of Count II based upon qualified immunity. The

Court agrees.

Mrs. Corbin first argues that Sergeant Gensimore has not met

his burden of showing that he was performing a discretionary

function. (Doc. #44, p. 16.) In the qualified immunity context,

the Court assesses whether the acts in question are of a type that

fell within the employee's job responsibilities. Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). The

Court’s inquiry is two-fold: Whether the officer was (a)

4

Mrs. Corbin argues that she screamed at Sergeant Gensimore

when he arrived at the scene that Deputy Williams had “unlawfully”

broken her leg. (Doc. #44, p. 11, 14.) The Complaint repeatedly

alleges that Mrs. Corbin screamed that Deputy Williams had broken

her leg, but never alleges that she characterized it as “unlawful.”

(Doc. #1, ¶¶ 54, 55, 68, 59, 61, 63, 64, 65, 66, 67, 70, 89.)

performing a legitimate job-related function (that is, pursuing a

job-related goal), (b) through means that were within his power to

utilize. Id. The facts set forth in the Complaint satisfy both

of these requirements, so the burden shifts to Mrs. Corbin on the

issue of qualified immunity.

Sergeant Gensimore arrived after-the-fact, and he did not

know or have reason to know if a constitutional right had been

violated. Plaintiffs have not presented authority establishing

the existence of a clearly established right under the

circumstances here. As the caselaw discussed above establishes,

no clearly established duty to intervene existed, and thus Sergeant

Gensimore is entitled to qualified immunity on the failure to

intervene claim.

(b) Personal Involvement In Unlawful Seizure

The second basis for liability in Count II is that Sergeant

Gensimore’s personal conduct upon arrival constituted a seizure

under the Fourth Amendment, for which there was no probable cause.

The Court finds that Mrs. Corbin has alleged sufficient facts to

state a plausible claim that Sergeant Gensimore personally

participated in her continued arrest and detention after his

arrival at the scene. Sergeant Gensimore assisted in Mrs. Corbin’s

continued detention and attempted to have her walk to a police

vehicle, where she would be confined. This conduct clearly

constitutes a “seizure” under the Fourth Amendment. Roberts v.

Spielman, 643 F.3d 899, 905 (11th Cir. 2011) (“For Fourth Amendment

purposes, a seizure occurs when an officer, ‘by means of physical

force or show of authority, has in some way restrained the liberty

of a citizen....’” quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16

(1968)).

Alternatively, Sergeant Gensimore argues that even if Count

II states a claim, he is entitled to qualified immunity because he

did not have fair notice that responding as backup and assisting

in moving an arrestee to a police vehicle, even if injured, would

constitute an unlawful seizure. (Doc. #30, pp. 17-18.) “Seizure”

principles are well-established:

The test for whether the officer restrained a

citizen's liberty is whether a reasonable

person would feel free to terminate the

encounter. [] We must imagine how an

objective, reasonable, and innocent person

would feel, not how the particular suspect

felt. [] All the circumstances are relevant,

[] including whether a citizen's path is

blocked or impeded”; whether the officers

retained the individual's identification; the

suspect's age, education and intelligence; the

length of the ... detention and questioning;

the number of police officers present; whether

the officers displayed their weapons; any

physical touching of the suspect; and the

language and tone of voice of the police.

United States v. Knights, 989 F.3d 1281, 1286 (11th Cir. 2021)

(internal citations and quotation marks omitted).

It would hardly surprise a law enforcement officer that

lifting a person off the ground while handcuffed and ordering her

to walk to a police car while waiting for an ambulance would

constitute a seizure within the meaning of these Fourth Amendment

principles. An officer’s status as back-up does not change these

principles. Under the facts as pled, this portion of Count II is

not barred by qualified immunity.

(4) Lieutenant Roguska

In Count III Mrs. Corbin alleges that Deputy Roguska is the

Lieutenant with the Sheriff’s Office who was contacted by Deputy

Williams from the hospital and told what had occurred. Count III

alleges that Lieutenant Roguska had the authority and duty to

inquire and intervene in the actions of Deputy Williams and

Sergeant Gensimore and to stop those actions. Count III further

alleges that Lieutenant Roguska could have stopped the unlawful

arrest and continuing detention of Mrs. Corbin, but instead ordered

Deputy Williams to charge Mrs. Corbin and to issue her a Notice to

Appear at the hospital, thereby effectuating and ratifying the

unlawful arrest, seizure, and detention.

Lieutenant Roguska argues that Count III fails to state a

claim because “there are no plausible allegations that Defendant

Roguska was aware or would have known that probable cause or

arguable probable cause did not exist when he recommended that the

arresting officer issue a notice to appear based on his phone call

with the arresting officer.” (Doc. #36, p. 11.) Dismissal is

required, he argues, because “there are simply not enough

allegations pled to maintain a claim for false arrest pursuant to

§ 1983.” (Id.) Additionally, Lieutenant Roguska argues he is

entitled to qualified immunity because he did not have fair warning

that his conduct would constitute an unlawful arrest. (Id. at

11.)

“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), abrogated in part on other grounds by Randall v. Scott,

610 F.3d 701 (11th Cir. 2010). A plaintiff can sue, however, under

a theory of supervisory liability. To establish supervisory

liability, a plaintiff must show either (1) that the supervisor

“personally participate[d] in the alleged constitutional

violation” or (2) that there is a “causal connection between the

actions of the supervising official and the alleged constitutional

deprivation.” Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir.

2007). A causal connection is shown when:

1) a “history of widespread abuse” puts the

responsible supervisor on notice of the need

to correct the alleged deprivation, and he or

she fails to do so; 2) a supervisor's custom

or policy results in deliberate indifference

to constitutional rights; or 3) facts support

an inference that the supervisor directed

subordinates to act unlawfully or knew that

subordinates would act unlawfully and failed

to stop them from doing so.

Id. See also Christmas v. Harris Cnty., Ga., 51 F.4th 1348, 1355

(11th Cir. 2022); Ingram v. Kubik, 30 F.4th 1241, 1254 (11th Cir.

2022). Ultimately, though, “[t]he standard by which a supervisor

is held liable in her individual capacity for the actions of a

subordinate is extremely rigorous.” Braddy v. Fla. Dep’t of Labor

& Emp't. Sec., 133 F.3d 797, 802 (11th Cir. 1998).

It is not alleged that Lieutenant Roguska participated in the

initial arrest and detention of Mrs. Corbin. By the time

Lieutenant Roguska was contacted, Mrs. Corbin had already been

arrested, taken to the hospital, and admitted. Mrs. Corbin can

prevail only if she has identified some other causal connection

between Lieutenant Roguska’s actions and Deputy Williams's

conduct. Christmas, 51 F.4th at 1355. In this case, Mrs. Corbin

has alleged no such connection. Additionally, Lieutenant Roguska

did not have a duty to investigate the basis of Deputy Williams’

arrest. Wilkerson, 736 F.3d at 980.

The allegations do not support finding supervisory liability

for the issuance of a Notice To Appear based on information

provided by Deputy Williams. Issuing the Notice to Appear formally

terminated the arrest. A notice to appear is “a written order

issued by a law enforcement officer in lieu of physical arrest

requiring a person accused of violating the law to appear in a

designated court or governmental office at a specified date and

5

time.” Fla. R. Crim. P. 3.125(a). By instructing issuance of

5

The parties argue over whether Lieutenant Roguska

“instructed/recommended” issuance of the Notice to Appear or

the Notice to Appear, Lieutenant Roguska brought to an end the

arrest, which is what Mrs. Corbin argues he should have done.

The motion to dismiss Count III will be granted as to

Lieutenant Roguska. Directing the issuance of a Notice to Appear

was not personal participation in the arrest or the alleged

constitutional violation and did not create the causal connection

with the constitutional violation. The alternative argument that

Lieutenant Roguska is entitled to qualified immunity is also

accepted. If Count III does state a claim, Lieutenant Roguska is

entitled to qualified immunity because Count III fails to allege

the violation of a clearly established constitutional right as to

Lieutenant Roguska’s conduct.

B. Federal Deliberate Indifference to Medical Need Counts

6

Counts VI and VII allege deliberate indifference/failure to

render aid in violation of 42 U.S.C. § 1983 against Deputies

Williams and Gensimore in their individual capacities. Count VI

alleges that Deputy Williams caused Mrs. Corbin to suffer a serious

medical injury by breaking her leg, which needed immediate medical

care. Count VI further alleges that Deputy Williams did not offer

“ordered” the issuance of the Notice to Appear. (Compare Doc.

#36, p. 4 with Doc. #50, p. 8.) The Complaint alleges that

Lieutenant Roguska “instructed” the deputy to issue the Notice to

Appear (Doc. #1, ¶ 79), so the Court sticks with that verb.

6

Count IV is not challenged by defendant Deputy Williams,

and there is no Count V.

or render medical aid himself, and delayed Mrs. Corbin’s access to

needed medical care. It also alleges that Deputy Williams forced

Mrs. Corbin to stay as positioned on the ground while he called

and waited for additional law enforcement officers to arrive. When

Sergeant Gensimore arrived, both deputies tried to force Mrs.

Corbin to stand and walk to a police car while handcuffed. When

Mrs. Corbin was unable to do so, Deputy Williams finally called

for emergency medical care. Paramedics arrived and transported

Mrs. Corbin to a hospital, where she was admitted and subsequently

underwent surgery on her leg.

Count VII alleges that Sergeant Gensimore caused Mrs. Corbin

to suffer a serious and immediate need for medical care by refusing

to offer medical aid, summon needed emergency medical care for her

broken leg, or instruct Deputy Williams to provide such aid. Count

VII further alleges that Sergeant Genismore forced Mrs. Corbin to

attempt to stand and walk to a police car on a broken leg while

handcuffed.

As recently summarized by the Eleventh Circuit:

The Due Process Clause of the Fourteenth

Amendment requires government officials to

provide medical aid to individuals who have

been injured during an arrest. City of Revere

v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.

Ct. 2979, 77 L. Ed. 2d 605 (1983). To succeed

on a claim for deprivation of medical care, a

plaintiff must prove (1) the existence of an

objectively serious medical need, and (2) that

the officer was deliberately indifferent to

that need. Valderrama v. Rousseau, 780 F.3d

1108, 1116 (11th Cir. 2015).

Wade v. Daniels, 36 F.4th 1318, 1326 (11th Cir. 2022). An

“objectively serious medical need” is a medical need “that has

been diagnosed by a physician as mandating treatment or ... that

is so obvious even a lay person would easily recognize the

necessity for a doctor's attention.” Hoffer v. Sec’y, Fla. Dep't

of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020) (quotation marks

omitted). Subjective deliberate indifference requires Mrs. Corbin

to plausibly show “that (1) the officer was aware of facts from

which the inference could be drawn that a substantial risk of

serious harm exists, (2) the officer actually drew that inference,

(3) the officer disregarded the risk of serious harm, and (4) the

officer's conduct amounted to more than gross negligence.” Wade,

36 F.4th at 1326.

Additionally, “[a]n officer may act with deliberate

indifference by delaying the treatment of a serious medical need.

The tolerable length of delay in providing medical attention

depends on the nature of the medical need and the reason for the

delay.” Wade, 36 F.4th at 1326 (citation and footnote omitted).

In Wade, a four-minute delay was found sufficient to defeat an

officer’s summary judgment motion. See also Harris v. Coweta

Cnty., 21 F.3d 388, 393-94 (11th Cir. 1994) (“A few hours’ delay

in receiving medical care for emergency needs such as broken bones

... may constitute deliberate indifference.”); Brown v. Hughes,

894 F.2d 1533, 1538 (11th Cir. 1990) (a delay of six hours “in

providing care for a serious and painful broken foot is sufficient

to state a constitutional claim”).

(1) Deputy Williams

Deputy Williams does not dispute that a broken leg is a

serious medical need. (Doc. #58, p. 4.) Deputy Williams asserts,

however, that Count VI does not plausibly allege his deliberate

indifference. Even if such a claim is plausibly stated, Deputy

Williams asserts he is entitled to qualified immunity.

According to the Complaint, Deputy Williams was the direct

cause of Mrs. Corbin’s broken leg. Mrs. Corbin is alleged to have

suffered increased physical injury (swelling) due to the delay,

which may have worsened her medical condition. Deputy Williams

was subjectively aware of the injury, since Mrs. Corbin screamed

that her leg was broken. Deputy Williams showed a reckless

disregard by trying to make her walk on the broken leg. The Court

finds that plaintiff has stated a plausible claim, and the motion

to dismiss Count VI will be denied.

As to qualified immunity, Deputy Williams asserts that as of

the date of the incident the law was not clearly established as to

the specific amount of time in which medical care must be summoned,

citing Wade. But the lack of a bright-line time rule does not

necessarily entitle officers to qualified immunity. Wade itself

made this clear, denying qualified immunity in a case involving a

four-minute delay. Dismissal based on qualified immunity is not

justified under the alleged facts in this case.

(2) Sergeant Gensimore

Sergeant Gensimore also does not dispute that a broken leg is

a serious medical need. (Doc. #30, pp. 10-11.) Sergeant Gensimore

asserts that the allegations in the Complaint do not rise to the

level of deliberate indifference since he was not on the scene

when the injury occurred. Sergeant Gensimore also argues that he

only assisted in trying to move Mrs. Corbin. (Doc.#30, pp. 12-

13.)

It is alleged that Sergeant Gensimore was informed by Deputy

Williams that the leg was broken. It is also alleged that Sergeant

Gensimore was deliberately indifferent by forcing Mrs. Corbin to

try and stand on the leg and by refusing medical attention in a

timely fashion after being informed of the broken leg. The Court

finds that Mrs. Corbin has stated a plausible claim as to Sergeant

Genismore in Count VII.

Sergeant Gensimore also asserts he is entitled to qualified

immunity. (Doc. #30, pp. 13-15.) Qualified immunity based on the

pleading will be denied for the same reasons stated above as to

Deputy Williams.

C. Florida State Law Claims

The remaining claims in the Complaint assert Florida state

law causes of action. Counts VIII and XIII were dismissed without

prejudice. (Doc. #24.) Before addressing the individual counts,

the Court discusses the Florida statutory immunity which the

officers assert as to several of these claims.

Florida's official immunity statute provides in pertinent

part:

An officer, employee, or agent of the state or of

any of its subdivisions may not be held personally

liable in tort or named as a party defendant in any

action for any injury or damage suffered as a result

of any act, event, or omission of action in the

scope of her or his employment or function, unless

such officer, employee, or agent acted in bad faith

or with malicious purpose or in a manner exhibiting

wanton and willful disregard of human rights,

safety, or property.

. . .

The state or its subdivisions are not liable in

tort for the acts or omissions of an officer,

employee, or agent committed while acting outside

the course and scope of her or his employment or

committed in bad faith or with malicious purpose or

in a manner exhibiting wanton and willful disregard

of human rights, safety, or property.

Fla. Stat. § 768.28(9)(a). This official immunity statute is a

species of sovereign immunity that shields officers from tort

liability unless one of the three exceptions is established. Perex

v. Mulvey, 915 F.3d 1276, 1291 (11th Cir. 2019).

Under this statute, a deputy sheriff is personally liable

only if he: (1) acted outside the scope of his employment or

function; or (2) was within the scope of his employment or function

and acted (a) “in bad faith,” or (b) “with malicious purpose,” or

(c) “in a manner exhibiting wanton and willful disregard of human

rights, safety, or property.” Fla. Stat. § 768.28(9)(a). While

these terms are not defined in the statute, “bad faith” has been

equated with the actual malice standard; “malicious purpose” has

been interpreted to mean the conduct was committed with ill will,

hatred, spite, or an evil intent, or the subjective intent to do

wrong; and “wanton and willful disregard of human rights or

safety,” has been held to mean conduct that is worse than gross

negligence, and requires proof that an officer knew, or reasonably

should have known, that the conduct would naturally or probably

result in injury and, with such knowledge, disregarded the

foreseeable injurious consequences. Butler v. Gualtieri, 41 F.4th

1329, 1336-37 (11th Cir. 2022).

(1) Florida Intentional Infliction of Emotional Distress

Counts

Two counts by Mrs. Corbin allege the intentional infliction

of emotional distress (IIED) in violation of Florida law. The

Florida Supreme Court first recognized the tort of intentional

infliction of emotional distress (IIED) in 1985. Metro. Life Ins.

Co. v. McCarson, 467 So. 2d 277 (Fla. 1985); Lopez v. Target Corp.,

676 F.3d 1230, 1235 (11th Cir. 2012). “[T]he elements of

intentional infliction are (1) intentional or reckless conduct (2)

that is “outrageous” in that it is “beyond all bounds of decency”

and “utterly intolerable in a civilized community” (3) and that

causes the victim emotional distress (4) that is “severe.” Kim v.

Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. 2d DCA 2018)

(citations omitted). See also Moore v. Pederson, 806 F.3d 1036,

1053 (11th Cir. 2015).

As to the second element, “[t]o successfully pursue a cause

of action for intentional infliction of emotional distress, the

plaintiff must show conduct so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a

civilized community.” Byrd v. BT Foods, Inc., 948 So. 2d 921, 928

(Fla. 4th DCA 2007) (internal quotation marks and citations

omitted). See also Mundy v. S. Bell Tel. & Tel. Co., 676 F.2d

503, 505 (11th Cir. 1982). “It is not enough that the intent is

tortious or criminal; it is not enough that the defendant intended

to inflict emotional distress; and it is not enough if the conduct

was characterized by malice or aggravation which would entitle the

plaintiff to punitive damages for another tort.” State Farm Mut.

Auto. Ins. Co. v. Novotny, 657 So. 2d 1210, 1213 (Fla. 5th DCA

1995) (citation omitted). In situations involving police

officers, “the extreme and outrageous character of the conduct may

arise from an abuse by the actor of a position,” and consequently

courts “give greater weight to the fact that the defendants had

actual or apparent authority over [the plaintiff] as police

officers.” Moore, 806 F.3d at 1053-54 (citation omitted).

“Whether conduct is outrageous enough to support a claim of

intentional infliction of emotional distress is a question of law,

not a question of fact.” Liberty Mut. Ins. Co. v. Steadman, 968

So. 2d 592, 595 (Fla. 2d DCA 2007) (citations omitted). See also

Nassar v. Nassar, 853 F. App’x 620, 622 (11th Cir. 2021). This

must be evaluated on an objective basis, and plaintiff’s subjective

response to the conduct does not control. Blair v. NCL (Bahamas)

Ltd., 212 F. Supp. 3d 1264, 1270 (S.D. Fla. 2016) (citing Liberty

Mutual Insurance Co. v. Steadman, 968 So. 2d 592, 595 (Fla. 2d DCA

2007)). “The standard is extremely high” under Florida law.

Hendricks v. Rambosk, No. 2:10-cv-526-FtM-29DNF, 2011 WL 1429646,

2011 U.S. Dist. LEXIS 40608, at *4 (M.D. Fla. Apr. 14, 2011).

As to the fourth element, “severe emotional distress means

emotional distress of such a substantial quality or enduring

quality[ ] that no reasonable person in a civilized society should

be expected to endure it.” Kim v. Jung Hyun Chang, 249 So. 3d

1300, 1305 (Fla. 2d DCA 2018) (citation omitted). See also Brown

v. Bellinger, 843 F. App’x 183, 188 (11th Cir. 2021).

(a) Deputy Williams

In Count XI, Mrs. Corbin alleges that Deputy Williams, acting

within the scope and course of his employment as a deputy sheriff,

intentionally and without cause raised his booted leg and kicked

her, an unarmed bystander, with such force that it took her to the

ground and broke her leg. Deputy Williams then intentionally

double-lock handcuffed Mrs. Corbin in that position in a pool of

her own urine while she screamed in pain due to her broken leg.

Deputy Williams intentionally kept Mrs. Corbin in that position

while he called for law enforcement back up, but not for emergency

medical assistance. Knowing Mrs. Corbin’s leg was broken, Deputy

Williams intentionally attempted to stand her up to make her walk

to a police car. Deputy Williams knew he caused intense physical

and emotional pain but refused to render or obtain medical aid.

Due to this conduct, Mrs. Corbin underwent two surgeries and is

still seeing a mental health therapist and experiencing

depression, nightmares, and anxiety as she adjusts to a new reduced

quality of life.

Deputy Williams asserts that these allegations are

insufficient to plausibly assert an IIED claim, even if his kick

caused a broken leg. He asserts that the allegations fail to

establish sufficiently outrageous conduct or that the conduct

caused sufficiently severe emotional distress. The Court agrees.

Viewed in the light most favorable to Mrs. Corbin, Deputy

Williams used a single kick to bring her to the ground and break

her leg. Deputy Williams then handcuffed Mrs. Williams, left her

on the ground, attempted to walk her to a police vehicle, and

eventually called for medical assistance. This conduct does not

go “beyond all possible bounds of decency” and is not “atrocious,

and utterly intolerable in a civilized community,” as required to

state a cause of action for IIED. Liberty Mut. Ins. Co. v.

Steadman, 968 So. 2d 592, 594–95 (Fla. 2d DCA 2007). Additionally,

the allegations do not establish that the emotional distress was

severe enough to satisfy the high bar in an IIED claim. Deputy

Wiliams’ motion to dismiss Count XI is granted.

(b) Sergeant Gensimore

In Count XII, Mrs. Corbin alleges that Sergeant Gensimore’s

actions were intentional, and he chose to participate in what

Deputy William did or was doing to Mrs. Corbin. Mrs. Corbin

alleges that Sergeant Gensimore allowed her to continue to lie on

the ground screaming in pain without offering aid, or summoning

medical attention, or instructing Deputy Williams to do so.

Sergeant Gensimore then intentionally attempted to lift Mrs.

Corbin from the ground on her broken leg while she was double

locked handcuffed. Sergeant Gensimore is alleged to have used his

authority under color of law to order Mrs. Corbin to walk to the

police car on her broken leg and failed to summon medical

assistance. This conduct caused Mrs. Corbin to have to undergo a

second surgery to insert permanent metal pins and/or rods to the

leg, and now she cannot go dancing with her husband.

Sergeant Gensimore argues that the allegations against him do

not rise to the level of conduct necessary to support an IIED

claim. (Doc. #30, pp. 5, 7-8.) The Court agrees. Sergeant

Gensimore was not at the scene when the stop was made, or the

injury occurred but arrived afterwards as backup. While he did

not immediately request medical assistance upon arrival, he was

not in a position to intervene or prevent Deputy Williams from

breaking Mrs. Corbin’s leg. The Court finds that Sergeant

Gensimore’s actions do not plausibly rise to the level of

outrageous required under Florida law to state a claim of IIED.

The motion to dismiss Count XII is granted.

Sergeant Gensimore also claims entitlement to sovereign

immunity under Fla. Stat. § 768.28(9)(a) as to the claim in Count

XII. (Doc. #30, pp. 9-10.) In light of the Court’s determination

that Count XII does not state a claim, there is no need to address

this claim.

(2) Florida Negligent Infliction of Emotional Distress

Two counts by Mr. Corbin assert claims of negligent infliction

of emotional distress (NIED) under Florida law. “[T]he elements

required to allege a cause of action for negligent infliction of

emotional distress [are]: (1) the plaintiff must suffer a physical

injury; (2) the plaintiff's physical injury must be caused by the

psychological trauma; (3) the plaintiff must be involved in some

way in the event causing the negligent injury to another; and (4)

the plaintiff must have a close personal relationship to the

directly injured person.” Zell v. Meek, 665 So. 2d 1048, 1054

(Fla. 1995). “Generally, in order to recover damages for emotional

distress caused by the negligence of another in Florida, the

plaintiff must show that the emotional distress flows from physical

injuries sustained in an impact.” Elliott v. Elliott, 58 So. 3d

878, 880 (Fla. 1st DCA 2011). “In essence, the impact rule

requires that before a plaintiff can recover damages for emotional

distress caused by the negligence of another, the emotional

distress suffered must flow from physical injuries the plaintiff

sustained in an impact.” R.J. v. Humana of Fla., Inc., 652 So. 2d

360, 362 (Fla. 1995). See also Rowell v. Holt, 850 So. 2d 474,

477–78 (Fla. 2003) (citations omitted); Williams v. Boyd-Panciera

Family Funeral Care, Inc., 293 So. 3d 499, 500 (Fla. 4th DCA 2020).

“[T]he underlying basis for the rule is that allowing recovery for

injuries resulting from purely emotional distress would open the

floodgates for fictitious or speculative claims.” R.J. v. Humana

of Fla., Inc., 652 So. 2d 360, 362 (Fla. 1995) (citation omitted).

“In Champion v. Gray, 478 So. 2d 17 (Fla. 1985), we held that

persons who suffer a physical injury as a result of emotional

distress arising from their witnessing the death or injury of a

loved one may maintain a cause of action for negligent infliction

of emotional distress.” Zell, at 1050.

The essence of our holding in Champion was to

recognize a claim where an actual physical

injury could be demonstrated to be caused by

psychic trauma. Temporal proximity will

usually be an important factor for the judge

or jury to consider in resolving the factual

question of causation. Its importance will

vary depending on the facts of each case.

Obviously, for example, the shorter the

interval of time between the psychic impact

and the physical injury the more weight this

factor may be given. That was the situation in

Champion. However, there are other factors

pertinent to the causation inquiry. For

example, the nature and severity of the injury

and the nature of the evidence also help to

confirm or rebut the causal connection between

the psychic injury and the physical injury.

However, the important question is whether the

psychic impact caused the physical injury,

whether that injury be manifest immediately,

or days, weeks, or months later. Just as a

physical bruise or injury may ultimately

result in a more serious condition not

initially apparent, so may the effects of

psychic trauma cause a serious physical

impairment. Of course, in both instances a

claimant has the burden of proving causation.

Id. at 1053. The same day as Champion, the Florida Supreme Court

held that “psychological trauma must cause a demonstrable physical

injury such as death, paralysis, muscular impairment, or similar

objectively discernible physical impairment before a cause of

action may exist.” Brown v. Cadillac Motor Car Div., 468 So. 2d

903, 904 (Fla. 1985); Zell, 665 So. 2d at 1052 n.4. Cf. Whiddon

v. Serv. Corp. Int'l, No. 4:21-CV-437-AW-MAF, 2022 WL 4180983, at

*2 (N.D. Fla. Sept. 7, 2022), appeal dismissed, No. 22-13622-J,

2022 WL 18417731 (11th Cir. Dec. 9, 2022) (vomiting as a physical

injury is insufficient unless in context of ingesting a

contaminated food or drink).

“Exceptions to the rule have been narrowly created and defined

in a certain very narrow class of cases in which the foreseeability

and gravity of the emotional injury involved, and lack of

countervailing policy concerns, have surmounted the policy

rationale undergirding application of the impact rule.” Rowell,

850 So. 2d at 478.

(a) Deputy Williams

In Count XIII, Mr. Corbin alleges negligent infliction of

emotional distress by Deputy Williams in his individual capacity.

Mr. Corbin alleges that he was physically present in the adjacent

parking lot undergoing a field sobriety test by Deputy Davidson.

Mrs. Corbin screamed that Deputy Williams broke her leg and

continued to scream from pain. Mr. Corbin could hear his wife’s

screams while Deputy Davidson had Mr. Corbin under his custody and

control. Mr. Corbin could not leave the adjacent parking lot to

go to his wife or to speak with paramedics without Deputy

Davidson’s permission. Mr. Corbin alleges that an exception to

the usual Florida impact rule allows him to recover since he was

in the zone of danger and was able to perceive the incident

involving his wife.

Mr. Corbin was 25 feet away from the events with Mrs. Corbin,

there was no threat of physical impact to him and no manifestation

of a physical injury or touching in response to the psychological

trauma. Count XIII does not state a plausible NIED claim, and the

motion to dismiss it will be granted.

Deputy Williams also claims entitlement to sovereign immunity

under Fla. Stat. § 768.28(9)(a) as to the claim in Count XIII.

(Doc. #58, pp. 17-18.) In light of the Court’s determination that

Count XIII does not state a claim, there is no need to address

this claim.

(b) Deputy Davidson

In Count XV, the only count against Deputy Davidson, Mr.

Corbin similarly alleges that he was physically present in the

adjacent parking lot undergoing a field sobriety test by Deputy

Davidson. Mrs. Corbin screamed that Deputy Williams broke her leg

and continued to scream from pain. Mr. Corbin could hear his

wife’s screams while Deputy Davidson had Mr. Corbin under his

custody and control. Mr. Corbin could not leave the adjacent

parking lot to go to his wife or to speak with paramedics without

Deputy Davidson’s permission, which he did not give to Mr. Corbin

to check on his wife. Deputy Davidson did not response to concerns

and told Mr. Corbin that he ‘better not move.’ Deputy Davidson

forced Mr. Corbin to stand there and listen to his wife of 30 years

scream in pain and thus rendered him helpless in his role and

duties as a husband. Mr. Corbin could see his wife on a stretcher,

but Deputy Davidson refused to communicate to Mr. Corbin where

they were taking his wife. Instead, Mr. Corbin was charged with

a DUI, handcuffed, and taken to the police station. Mr. Corbin

asserts mental anguish, and he is now in therapy.

Plaintiff argues that an exception to the impact rule allows

recovery if a closely related person was in the zone of danger.

(Doc.#60, p. 7.) As Mr. Corbin was 25 feet away, there was no

threat of physical impact upon him and no manifestation of a

physical injury in response to the psychological trauma is alleged.

The motion to dismiss will be granted.

Deputy Davidson also claims entitlement to sovereign immunity

under Fla. Stat. § 768.28(9)(a) as to the claim in Count XV. (Doc.

#54, pp. 12-13.) In light of the Court’s determination that Count

XV does not state a claim, there is no need to address this claim.

Accordingly, it is now

ORDERED:

1. Defendant Gensimore’s Motion to Dismiss for Failure to

State a Claim (Doc. #30) is DENIED IN PART AND GRANTED IN

PART as follows:

(a) The portion of Count II asserting a claim of failing

to intervene is dismissed without prejudice. The

motion is denied as to the remaining component of

Count II.

(b) The motion is denied as to Count VII.

(c) The motion is granted as to Count XII, which is

dismissed without prejudice.

2. Defendant Roguska’s Motion to Dismiss (Doc. #36) is GRANTED

and Count III is dismissed without prejudice.

3. Defendant Davidson’s Motion to Dismiss (Doc. #54) is

GRANTED and Count XV is dismissed without prejudice.

4. Defendant Aaron Williams’ Partial Motion to Dismiss (Doc.

#58) is DENIED IN PART AND GRANTED IN PART as follows:

(a) The motion is denied as to Count VI.

(6) The motion is granted as to Count XI, which is

dismissed without prejudice.

(c) The motion is granted as to Count XIII, which is

dismissed without prejudice.

DONE AND ORDERED at Fort Myers, Florida, this 13th day of

February 2023.

& AKL Be.

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Parties of record