Morris v. City of Lakeland, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BRANDON MORRIS,

Plaintiff,

v. Case No. 8:21-cv-2280-VMC-CPT

CITY OF LAKELAND, FLORIDA,

JEREMY WILLIAMS, individually,

and ALEXANDER COOKS,

individually,

Defendants.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendants City of Lakeland, Florida, Jeremy Williams, and

Alexander Cooks’ Motion for Summary Judgment (Doc. # 50),

filed on November 14, 2022. Plaintiff Brandon Morris

responded on December 5, 2022. (Doc. # 51). For the reasons

that follow, the Motion is granted.

I. Background

At approximately 1:30 AM on October 27, 2017, Brianna

Morris heard a noise inside her building at 1732 Olive Street

in Lakeland, Florida. (Doc. # 50-3 at 9:9-17, 13:9-14:12,

30:1-16). The building was both her dwelling and a warehouse

for her family’s ice cream truck business. (Doc. # 50-4 at

9:1-16). Ms. Morris was upstairs with her dog when she heard

the noise. (Doc. # 50-3 at 9:8-15). Ms. Morris lived in the

building with her brother, Brandon Morris. (Id. at 9:8-9).

After she heard the noise, Ms. Morris called her brother,

told him she had heard a noise, and asked him if he was home.

(Id. at 9:15-16). Mr. Morris said that he was not home. (Id.).

Ms. Morris then ran out of the building with her dog and

called 911, fearing that someone was attempting to break into

the dwelling. (Id. at 9:18-24). During her deposition, she

testified that the dwelling was “in a very bad part of the

area” and that she knew individuals had previously trespassed

in the warehouse. (Id. at 9:12-13, 12:5-13). She told the 911

dispatcher that she believed an unknown individual was in the

warehouse and indicated that she resided on the premises.

(Doc. # 50-2 at 1-2). Shortly after she relayed this

information to the dispatcher, Ms. Morris’s phone died. (Id.

at 2; Doc. # 50-3 at 17:2-3).

As it transpired, Mr. Morris was “joking around” when he

told his sister that he was not home. (Doc. # 50-4 at 27:22-

24). In fact, he was in another room, “fiddling with” a bench

press that made a “metal clanking” noise when he moved it.

(Id. at 24:5-13). He did not expect that his sister would

“take it to the extreme” and call 911. (Id. at 24:2-4). He

tried many times to call Ms. Morris to let her know that he

was home; however, she did not pick up because her phone was

dead. (Id. at 24:16-24). He remained inside the dwelling

waiting for Ms. Morris to return or call him back. (Id. at

24:20-24).

Officers from the Lakeland Police Department arrived on

the scene around 1:35 AM. After leaving the dwelling, Ms.

Morris walked around the block (Doc. # 50-3 at 16:14-16), and

ultimately met with Officer Colton Thompson on the street

approximately two buildings down from her dwelling. (Doc. #

50-7 at ¶ 7). Officer Thompson stated that Ms. Morris told

him (1) she was sleeping in the business, (2) she heard an

unknown individual attempting to break into the building, (3)

no one else was supposed to be in the building, and (4) she

became afraid upon hearing the noise and ran out of the

building. (Id.). Ms. Morris testified that she also told

officers that her brother was inside after she saw his car

parked outside the building. (Doc. # 50-3 at 10:7-10; 15:1-

5; 17:21-24; 31:1-4). No officer testified that they heard

this information (Doc. # 50-5 at 86:16-20; Doc. # 50-6 at

60:21-25; Doc. # 50-7 at ¶ 7), and the Detailed History for

Police Event does not indicate that she relayed this

information to the 911 dispatcher or the responding officers.

(Doc. # 50-2 at 1-4).

Officer Thompson relayed the information from Ms. Morris

over the radio to Officers Cooks and Williams. (Doc. # 50-7

at ¶ 8). Neither Officer Cooks nor Officer Williams spoke

directly to Ms. Morris. (Doc. # 50-5 at 86:16-20; Doc. # 50-

6 at 60:21-25). Officer Williams was a K-9 officer and

responded to the scene with his trained K-9, Hyde. (Doc. #

50-5 at 11:23-12:2; 12:14-13:14, 14:2-15:7). Officers Cooks

and Williams approached the front door of the dwelling and

found that the door was locked. (Id. at 47:13-48:3). The

officers announced themselves as police and issued a verbal

order to open the door. (Doc. # 50-3 at 18:14-18; Doc. # 50-

6 at 30:813, 43:21-44:3). While waiting at the door, Officer

Cooks saw someone “sneaking around” inside the dwelling.

(Doc. # 50-6 at 34:23-25).

Soon after police arrived at the door, Mr. Morris

unlocked and opened the door. (Doc. # 50-3 at 22:5-10; Doc.

# 50-4 at 25:17-19, 29:7-17; Doc. # 50-5 at 48:22-49:1; Doc.

# 50-6 at 26:4-6, 74:4-8). Officer Williams ordered Mr. Morris

to “Stop. Let me see your hands.” (Doc. # 50-5 at 49:2-6).

Mr. Morris stated that he came to the door to “[try] to notify

myself, like, ‘Hey, I’m coming out there.’” (Doc. # 50-4 at

26:11-13). He recalled seeing a dog, an officer with a rifle,

and other officers upon opening the door. (Id. at 29:18-25;

30:9-12). Mr. Morris then closed the door to a point that

only his face was visible. (Id. at 30:9-23). Mr. Morris stated

that he partially shut the door because he feared being

attacked by the dog. (Id. at 27:3-4). When Officer Williams

observed Mr. Morris beginning to shut the door, he believed

Mr. Morris was a burglar attempting to evade arrest. See (Doc.

# 50-5 at 100:20-101:1 (“So as far as I knew, I knew we had

an officer in the back. He was trying to – there’s some

suspect in this place trying to find a way out.”)). He further

explained that he was concerned Mr. Morris would retreat into

the dwelling and ambush the police, either with a weapon on

his person or with one he found inside. (Id. at 111:10-18).

As Mr. Morris closed the door, Officer Williams kicked

the door open and released Hyde. (Id. at 37:16-38:11; Doc. #

50-4 at 31:13-20, 32:17-21; Doc. # 50-6 at 33:24-34:3). Hyde

bit and held Mr. Morris’s left thigh, causing Mr. Morris to

fall to the floor. (Doc. # 50-4 at 32:22-33:13; Doc. # 50-5

at 39:11-13). Officers Williams and Cooks attempted to

handcuff Mr. Morris. (Doc. # 50-5 at 83:1-5). They commanded

Mr. Morris to put his hands behind his back; however, both

officers testified that Mr. Morris did not follow this

command. (Id. at 63:19-25, 66:21-67:6, 67:17-23, 115:3-4;

Doc. # 50-6 at 41:1-15, 48:14-21). Mr. Morris does not dispute

this. Instead, Mr. Morris recalled trying to tell the officers

that he lived in the dwelling and was not a burglar while

Hyde was biting him. (Doc. # 50-4 at 31:22-32:9).

Mr. Morris claims that Officer Williams struck his face

multiple times before handcuffing him. (Id. at 31:22-32:14,

35:14-36:8). Officer Williams denies ever striking Mr.

Morris. (Doc. # 50-5 at 67:10-68:7). Officer Cooks recalled

striking Mr. Morris’s torso with his flashlight approximately

two times in order to force Mr. Morris to comply with his

commands. (Doc. # 50-6 at 51:17-53:3). The officers

handcuffed Mr. Morris and arrested him for resisting an

officer without violence. (Doc. # 50-5 at 91:20-92:4, 114:14-

17). After Mr. Morris was handcuffed, Officer Williams

immediately ordered Hyde to release, which he did. (Id. at

6:7-21, 8:5-11, 9:17-11:22, 84:4-21; Doc. # 50-4 at 34:22-

24, 40:15-18, 41:7-9). The encounter lasted less than two

minutes. (Doc. # 50-2 at 4). The charge against Mr. Morris

was ultimately dropped before the case proceeded to trial.

(Doc. # 50-4 at 48:19-49:1).

Mr. Morris was transported to Lakeland Regional Health

approximately ten minutes after his arrest. (Doc. # 50-2 at

4). The dog bite did not require surgery or stitches, though

the wound required additional attention when Mr. Morris was

transferred to the jail infirmary the next day. (Doc. # 50-4

at 38:13-39:15). Mr. Morris also had a cut below his left

eye, but it did not require any treatment. (Id. at 59:9-22).

Mr. Morris initiated this action on September 27, 2021.

In his amended complaint, he asserts common law battery and

false arrest claims against the City of Lakeland for the

actions of Officer Williams and Officer Cooks (Count I), a 42

U.S.C. § 1983 claim for violation of the Fourth Amendment

against Officer Williams (Count II), and a 42 U.S.C. § 1983

claim for violation of the Fourth Amendment against Officer

Cooks (Count III). (Doc. # 24). On November 14, 2022,

Defendants moved for summary judgment on all claims. (Doc. #

50). Mr. Morris responded (Doc. # 51), and the Motion is ripe

for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

A. Counts II and III – Section 1983 False Arrest Claims

Against Officer Williams and Officer Cooks

Mr. Morris alleges that Officers Williams and Cooks

violated his rights under the Fourth Amendment by falsely

arresting him “without arguable probable cause.” (Doc. # 24

at ¶¶ 43, 47). Mr. Morris contends that his arrest for

resisting an officer without violence, a misdemeanor, lacked

probable cause because he did not close the door on the

officers and was only attempting to tell the officers that he

lived in the dwelling. (Doc. # 51 at 18). In their Motion,

the Defendants argue that they are entitled to summary

judgment on the excessive force claims in Counts II and III

because Officer Williams had probable cause to arrest Mr.

Morris, as he disobeyed several commands, attempted to shut

the front door upon seeing the officers, and resisted the

officers’ attempts to handcuff him. (Doc. # 50 at 10-13).

The Fourth Amendment protects individuals from

unreasonable search and seizure. U.S. Const. amend. IV. While

a warrantless arrest without probable cause violates the

Constitution and provides a basis for a 42 U.S.C. § 1983

claim, the existence of probable cause at the time of arrest

constitutes an absolute bar to a 42 U.S.C. § 1983 claim for

false arrest. Whittington v. Town of Surfside, 490 F. Supp.

2d 1239, 1249 (S.D. Fla. 2007), aff’d in part, 269 F. App’x

918 (11th Cir. 2008) (quoting Marx v. Gumbinner, 905 F.2d

1503, 1505–6 (11th Cir. 1990)). “For probable cause to exist,

. . . an arrest must be objectively reasonable based on the

totality of the circumstances.” Wood v. Kesler, 323 F.3d 872,

878 (11th Cir. 2003). “This standard is met when the facts

and circumstances within the officer’s knowledge, of which he

or she has reasonably trustworthy information, would cause a

prudent person to believe, under the circumstances shown,

that the suspect has committed, is committing, or is about to

commit an offense.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th

Cir.1998). “Although probable cause requires more than

suspicion, it does not require convincing proof, and need not

reach the [same] standard of conclusiveness and probability

as the facts necessary to support a conviction.” Wood, 323

F.3d at 878.

Officer Williams asserts that he had probable cause to

arrest Mr. Morris for violating Florida Statutes Section

843.02. The statute provides, in pertinent part: “Whoever

shall resist, obstruct, or oppose any officer . . . in the

lawful execution of any legal duty, without offering or doing

violence to the person of the officer, shall be guilty of a

misdemeanor of the first degree[.]” Fla. Stat. § 843.02. “[T]o

support a conviction for obstruction without violence [under

§ 843.02], the State must prove: (1) the officer was engaged

in the lawful execution of a legal duty; and (2) the

defendant’s action, by his words, conduct, or a combination

thereof, constituted obstruction or resistance of that lawful

duty.” C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009).

In the summary judgment context, the Court’s “focus is whether

a reasonable jury could find that evidence of either element

was lacking at the scene of the incident.” Andrade v. Marceno,

No. 2:19-cv-887-JES-MRM, 2023 WL 157087, at *6 (M.D. Fla.

Jan. 11, 2023) (quoting Baxter v. Roberts, 54 F.4th 1241,

1266 (11th Cir. 2022)). In order for the Court to find that

the officers were lawfully executing a legal duty, it looks

to the following:

[T]he conduct of the officer must be consistent

with the Fourth Amendment and any other relevant

requirements of law. This inquiry focuses on the

specific point in time when the resistance occurred

so that the essential inquiry is whether the

officer was lawfully executing a legal duty when

the obstructing conduct occurred. Ultimately, if an

arrest is not lawful, then a defendant cannot be

guilty of resisting it.

Baxter, 54 F.4th at 1267.

Officer Williams and Officer Cooks were engaged in the

lawful execution of a legal duty when they encountered Mr.

Morris. The officers were responding to a dispatch call about

a burglary in progress at a residence. (Doc. # 50-2 at 1-2).

Mr. Morris argues that the officers knew he was a resident of

the building because Ms. Morris told officers that if they

saw his car, then her brother was home. Doc. # 50-3 at 10:7-

10; 15:1-5; 17:21-24; 31:1-4). There is no indication from

the record that the arresting officers, Officer Williams and

Officer Cooks, knew she said this. Officer Thompson, who

acknowledged that he spoke to Ms. Morris, indicated that he

did not hear this information. (Doc. # 50-7 at ¶ 7). Further,

the Detailed History for Police Event does not indicate that

she gave this information to the 911 dispatcher or the

responding officers. (Doc. # 50-2 at 1-4). Even assuming Ms.

Morris told Officer Thompson that her brother was home if his

car was there, this still does not mean that Officers Williams

and Cooks knew the person at the door was a resident of the

building. Neither Officer Cooks nor Officer Williams spoke

directly to Ms. Morris. (Doc. # 50-5 at 86:16-20; Doc. # 50-

6 at 60:21-25). After speaking to Ms. Morris, Officer Thompson

relayed over the radio to Officers Cooks and Williams:

That [Ms. Morris] had been sleeping inside the

business; that she had heard someone attempting to

break into the south entrance of the building but

did not see who it was; that nobody else was

supposed to be in the business at the time except

for her; that she became afraid; that she exited

through the north door and called 911; and that she

heard someone enter the building as she was

leaving.

(Doc. # 50-7 at ¶ 8). Based on this information, Officers

Williams and Cooks did not know that Mr. Morris was inside

the building.

As officers investigating an emergency call about a

crime, Officers Williams and Cooks were performing a legal

duty. See Walker v. City of Orlando, Fla., No. 6:07-cv-651-

MSS-DAB, 2009 WL 10698032, at *8 (M.D. Fla. Apr. 24, 2009)

(finding a police officer investigating an emergency call was

performing a legal duty for the purposes of Section 843.02).

The question before the Court is therefore whether Mr.

Morris, “by his words, conduct, or a combination thereof . .

. obstruct[ed] or resist[ed] . . . that lawful duty.” C.E.L.,

24 So. 3d at 1186. The Court finds that he did.

According to the Defendants, Mr. Morris violated Section

843.02 by failing to follow the officers’ commands, shutting

the door, and resisting being handcuffed. Officer Williams

and Officer Cooks announced themselves as police and issued

a verbal order to open the door. (Doc. # 50-3 at 18:14-18;

Doc. # 50-6 at 30:813, 43:21-44:3). While Mr. Morris initially

opened the door to speak to the officers, he admits that he

began closing the door so only his face would be visible.

(Doc. # 50 at 27:3-4). This action alone constituted

resistance to the officers’ orders as they conducted a lawful

investigation. See Bassett v. State, 941 So.2d 440-41 (Fla.

4th DCA 2006) (affirming conviction for resisting arrest

without violence where defendant first opened door but

slammed door shut as officer attempted to enter); In Interest

of J.B., 621 So.2d 489, 490-91 (Fla. 4th DCA 1993) (affirming

conviction for resisting arrest without violence where

defendant slammed door shut, locked it, and refused to open

it in front of officer).

Mr. Morris also resisted arrest in violation of Section

843.02 when he failed to put his hands behind his back while

the officers were attempting to handcuff him. Officer

Williams and Officer Cooks commanded Mr. Morris to put his

hands behind his back; however, he did not follow this

command. (Doc. # 50-5 at 63:19-25, 66:21-67:6, 67:17-23,

115:3-4; Doc. # 50-6 at 41:1-15, 48:14-21). “[F]ailing to

present one’s hands for handcuffing is sufficient evidence to

establish probable cause for the charge of resisting arrest

without violence.” Williams v. City of Daytona Beach, No.

6:04-cv-1879, 2006 WL 354635 at *11 (M.D. Fla. Feb. 15, 2006)

(citing Savage v. State, 494 So.2d 274, 277 (Fla. 2d DCA

1986)).

Based on Mr. Morris’s actions, Officers Williams and

Cooks had probable cause to arrest Mr. Morris for resisting

arrest without violence. Because Officer Williams and Officer

Cooks had probable cause to arrest Mr. Morris for violation

of Section 843.02, summary judgment is proper as to Mr.

Morris’s unlawful arrest claims in Counts II and III.

B. Count II – Excessive Force Claim Against Officer

Williams

Mr. Morris alleges that Officer Cooks violated his

rights under the Fourth Amendment by inflicting excessive

force personally and through the use of his K-9, Hyde. (Doc.

# 24 at ¶ 44). He argues that Officer Williams’ decision to

release Hyde to bite and hold his leg was unreasonable given

that Mr. Morris was not burglarizing the residence. (Doc. #

51 at 10). He also claims that Officer Williams struck his

face several times while attempting to handcuff him. (Id.).

The Defendants argue that the use of Hyde was justified, as

Officer Williams was concerned Mr. Morris was attempting to

flee. (Doc. # 50 at 14-16). Additionally, they argue that,

even if Officer Williams struck Mr. Morris in the head, he

still did not use excessive force because the strikes were,

at most, a de minimis application of force. (Id. at 16-19).

Because the Court finds that the use of force was objectively

reasonable, it need not determine whether the use of force

was de minimis.

“The Fourth Amendment’s freedom from unreasonable

searches and seizures encompasses the plain right to be free

from the use of excessive force in the course of an arrest.”

Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). An

officer’s use of force must be objectively reasonable under

the circumstances, and “must be judged from the perspective

of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386,

396 (1989). To determine whether an officer used excessive

force, the Court must balance “the nature and quality of the

intrusion on the individual’s Fourth Amendment interests

against the importance of the governmental interests alleged

to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1,

8 (1985) (internal quotations omitted).

“Fourth Amendment jurisprudence has long recognized that

the right to make an arrest or investigatory stop necessarily

carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Graham, 490 U.S. at

396 (internal citations omitted). Accordingly, courts

evaluate “the facts and circumstances of each particular

case, including the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id.

Mr. Morris asserts that Officer Williams used

unreasonable force when he allegedly hit Mr. Morris multiple

times in the face and when he released Hyde and allowed the

dog to bite his leg. (Doc. # 51 at 13-16). Officer Williams

asserts that he did not strike Mr. Morris and that, even if

he did, such force was reasonable during the course of

arresting Mr. Morris. (Doc. # 50 at 16-18). Officer Williams

additionally maintains that releasing Hyde was reasonable, as

he believed Mr. Morris was attempting to flee. (Id. at 14-

16).

As an initial matter, Officer Williams asserts that he

did not strike Mr. Morris. (Doc. 50-5 at 67:10-68:7). Mr.

Morris testified that someone struck him in the face or head

before he was handcuffed and assumed that person was Officer

Williams. (Doc. # 50-4 at 31:22-32:14, 35:14-36:8). Even

assuming, however, that Officer Williams did strike Mr.

Morris in the head, such use of force was objectively

reasonable under the circumstances.

Here, Officer Williams’s use of force was objectively

reasonable. “[S]ome use of force by a police officer when

making a custodial arrest is necessary and altogether lawful,

regardless of the severity of the alleged offense.” Durruthy

v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003). The strikes

to his face occurred before Mr. Morris was handcuffed and

while he was resisting arrest. (Doc. # 50-4 at 31:22-32:14,

35:14-36:8). The alleged strikes were in the course of

affecting a lawful arrest. Further, the cut on his face did

not require any notable treatment. (Id. at 59:9-22). The

amount of force Mr. Morris submits Officer Williams used is

on par with what the Eleventh Circuit has sustained

previously, particularly in cases where suspects resisted

arrest. See Manners v. Cannella, 891 F.3d 959, 974 (11th Cir.

2018) (holding the officers’ use of force was objectively

reasonable where officers punched and tased suspect where

suspect was resisting arrest); Nolin v. Isbell, 207 F.3d 1253,

1255 (11th Cir. 2000) (finding force was objectively

reasonable where an officer grabbed the plaintiff “from

behind by the shoulder and wrist, threw him against a van

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

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

uncomfortable manner, and handcuffed him,” causing bruises

that did not require medical treatment); Buckley v. Haddock,

292 F. App’x 791, 796 (11th Cir. 2008) (determining use of

force was objectively reasonably where officer used taser

three times while trying to subdue suspect resisting arrest).

Second, Officer Williams did not inflict excessive force

through his K-9, Hyde. Officer Williams stated that he

released Hyde after Mr. Morris started to close the door

because he suspected that Mr. Morris was a burglar attempting

to flee the scene. (Doc. # 50-5 at 100:20-101:1; 111:6-112:3).

Hyde bit Mr. Morris’s left leg to prevent him from evading

arrest. (Id.). The bite wounds did not require surgery or

stitches and did not cause lasting damage. (Doc. # 50-4 at

38:13-39:15).

Mr. Morris cites Priester v. City of Riviera Beach, 208

F.3d 919 (11th Cir. 2000), in support of his contention that

the use of a canine constituted excessive force. (Doc. # 51

at 14-15). In Priester, the plaintiff, who was suspected of

stealing $20 in snacks, immediately surrendered to police,

did not attempt to flee or resist arrest, and did not pose a

threat of bodily harm to anyone. 208 F.3d at 927. These facts

are inapposite to this case. Here, police suspected Mr. Morris

of committing a much more serious crime, burglary, and of

attempting to flee. (Doc. # 50-5 at 100:20-101:1). Further,

Officer Williams noted that he was concerned Mr. Morris would

retreat into the dwelling and ambush the police, either with

a weapon on his person or with one he found inside. (Doc. #

50-5 at 111:10-18). Mr. Morris also refused to follow the

officers’ commands. Therefore, Priester is distinguishable

from the case at bar.

Rather, the Eleventh Circuit has determined that the use

of a canine is objectively reasonable where the individual

was suspected of committing a serious crime, attempted to

flee, or resisted arrest. See Crenshaw v. Lister, 556 F.3d

1283, 1293 (11th Cir. 2009) (determining use of canine was

objectively reasonable where officer believed suspect was

potentially armed and dangerous and fled from police, despite

the fact that the suspect sustained serious injuries);

Anderson on behalf of MA v. Vazquez, 813 F. App’x 358, 361

(11th Cir. 2020) (finding use of canine objectively

reasonable where officer observed three suspects committing

vehicular burglary and suspects disobeyed officers’ commands

and fled to avoid arrest).

Because Officer Williams’ use of force was objectively

reasonable under circumstances and, therefore, not excessive,

summary judgment is granted as to Mr. Morris’s excessive force

claims in Count II.

C. Count III – Excessive Force Claim Against Officer

Cooks

Mr. Morris alleges that Officer Cooks violated his

rights under the Fourth Amendment by “personally inflicting

excessive force.” (Doc. # 24 at ¶ 48). Officer Cooks testified

that he twice struck Mr. Morris in the torso with his

flashlight. (Doc. # 50-6 at 51:17-53:3). The Defendants argue

that, like Officer Williams’ alleged use of force, Officer

Cooks’ use of force was also objectively reasonable. (Doc. #

50 at 16-18).

The Court agrees that Officer Cooks’ use of force was

objectively reasonable. While attempting to handcuff Mr.

Morris, Officer Cooks hit him twice in the torso to force him

to comply with the officers’ commands to put his hands behind

his back and stop resisting. (Id.). Mr. Morris relies on

Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008) to

demonstrate that Officer Cooks’ use of force was excessive.

(Doc. # 51 at 13-14). However, his reliance is misplaced. In

Hadley, the Eleventh Circuit ruled that an officer was not

entitled to qualified immunity where he punched a suspect in

the stomach when the suspect was handcuffed and not resisting

arrest. 526 F.3d at 1330. Here, in contrast, Mr. Morris was

not yet handcuffed and was not following Officer Cooks’ orders

to put his hands behind his back. (Doc. # 50-4 at 31:22-32:9;

Doc. # 50-6 at 51:17-53:3); see also Mobley v. Palm Beach

Cnty. Sheriff Dep’t, 783 F.3d 1347, 1353 (11th Cir. 2015)

(“[F]orce applied while a suspect has not given up and stopped

resisting and may still pose a danger to the arresting

officers, even when that force is severe, is not necessarily

excessive.”). Officer Cooks’ use of force was objectively

reasonable under the circumstances. See Leach v. Hoffman, No.

8:19-CV-330-CEH-CPT, 2022 WL 900465, at *10 (M.D. Fla. Mar.

28, 2022) (finding officer’s use of force did not violate

plaintiff’s Fourth Amendment rights where officer used taser

on plaintiff who was resisting arrest while already

handcuffed).

Summary judgment is therefore granted as to Mr. Morris’s

excessive force claims in Count III.

D. Count I – Common Law Battery and False Arrest Claims

Mr. Morris also brings common law tort claims against

the City of Lakeland for false arrest and battery. (Doc. # 24

at ¶¶ 37-40). First, he argues that the City is liable for

false arrest because there was no probable cause to arrest

him. (Id. at ¶ 37-38). Mr. Morris brings suit against the

City, instead of the individual officers, pursuant to Section

768.28(9)(a), which states

The exclusive remedy for injury or damage suffered

as a result of an act, event, or omission of an

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

its subdivisions or constitutional officers is by

action against the governmental entity, . . . ,

unless such act or omission was 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. § 768.29(9)(a).

Under Florida law, false arrest is “the unlawful

restraint of a person against that person’s will.” Willingham

v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006).

“Probable cause is an affirmative defense to a false arrest

claim.” Miami-Dade Cnty. v. Asad, 78 So. 3d 660, 670 (Fla.

3d DCA 2012); see Rankin, 133 F.3d at 1435 (“[P]robable cause

constitutes an absolute bar to both state and § 1983 claims

alleging false arrest[.]”). And “the standard for determining

whether probable cause exists is the same under Florida and

federal law.” Rankin, 133 F.3d at 1435. As the Court has

already determined that Officer Williams and Officer Cooks

had probable cause to arrest Mr. Morris for resisting arrest

without violence, summary judgment is granted as to Mr.

Morris’s false arrest claim in Count I.

Mr. Morris also argues that Officer Williams and Officer

Cooks committed a battery through their use of force during

his arrest. (Doc. # 24 at ¶ 40). The claim relies on the same

actions as his Fourth Amendment excessive force claims. (Id.

at ¶ 39). Under Florida law, “[a] battery claim [against a

law enforcement officer] for excessive force is analyzed by

focusing upon whether the amount of force used was reasonable

under the circumstances.” City of Miami v. Sanders, 672 So.

2d 46, 47 (Fla. 3d DCA 1996). “If excessive force is used in

an arrest, the ordinarily protected use of force by a police

officer is transformed into a battery.” Id. Courts assess

state-law battery claims regarding excessive force under a

“similar standard” to that governing Fourth Amendment

excessive force claims. Sullivan v. City of Pembroke Pines,

161 F. App’x 906, 911 (11th Cir. 2006).

Here, as discussed with respect to Mr. Morris’s

constitutional excessive force claims, the officers’ use of

force was reasonable under the circumstances. See Cutino v.

Untch, 79 F. Supp. 3d 1305, 1315 (S.D. Fla. 2015) (“[T]o the

extent [Plaintiff] alleges that the Officers assaulted him

during the same encounter, that claim is likewise foreclosed

Since any threat of force was reasonable.”). Therefore,

summary judgment is granted on Count I as to Mr. Morris’s

battery claim.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendants City of Lakeland, Florida, Jeremy Williams,

and Alexander Cooks’ Motion for Summary Judgment (Doc.

# 50) is GRANTED.

(2) Summary judgment is granted in favor of City of Lakeland,

Florida, Jeremy Williams, and Alexander Cooks on all

counts of the amended complaint.

(3) The Clerk is directed to enter judgment accordingly and,

thereafter, CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this 8th

day of March, 2023.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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