# Corbin v. Prummell, Jr.

> District Court, M.D. Florida · February 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10112092

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112092. Public record. Not legal advice.