Shadmani v. Barnes

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

AMIR SHADMANI,

Plaintiff,

v. Case No. 3:22-cv-1008-MMH-JBT

J. M. BARNES, individually, A. G.

SCOTT, individually, and T. K.

WATERS, in his official capacity as

Sheriff of the City of Jacksonville,

Florida,1

Defendants.

ORDER

THIS CAUSE is before the Court on Defendant Sheriff Pat Ivey’s Motion

to Dismiss Count V of Plaintiff's Complaint and Supporting Memorandum of

Law (Doc. 9; Motion), filed November 8, 2022. In the Motion, the Sheriff

requests that the Court dismiss Count V of Plaintiff Amir Shadmani’s

Complaint and Demand for Jury Trial (Doc. 1; Complaint), filed September 16,

2022, on the grounds that it fails to state a claim upon which relief can be

granted. Shadmani timely filed a response in opposition to the Motion. See

Plaintiff’s Response in Opposition to Defendant Sheriff Ivey’s Motion to Dismiss

1 T.K. Waters became the Sheriff of the City of Jacksonville on November 20, 2022.

Pursuant to Rule 25(d), Federal Rules of Civil Procedure, T.K. Waters is substituted for Pat

Ivey as Defendant in this suit. The parties should use the proper caption in all future filings.

Count V of Plaintiff’s Complaint (Doc. 10; Response), filed November 29, 2022.

Accordingly, this matter is ripe for review.

I. Legal Standard

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1 (2002);

see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th

Cir. 2002). In addition, all reasonable inferences should be drawn in favor of

the plaintiff. See Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th

Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some

minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d

1250, 1262–63 (11th Cir. 2004). Indeed, while “[s]pecific facts are not

necessary,” the complaint should “‘give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.

at 556). The “plaintiff's obligation to provide the grounds of his entitlement

to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(citations omitted); see also BellSouth Telecomm., 372 F.3d at 1262 (explaining

that “conclusory allegations, unwarranted deductions of facts or legal

conclusions masquerading as facts will not prevent dismissal”) (citations and

quotations omitted). Indeed, “the tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions,”

which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556

U.S. at 679. Thus, in ruling on a motion to dismiss, the Court must determine

whether the complaint contains “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting

Twombly, 550 U.S. at 570).

II. Background2

On September 17, 2019, Shadmani made a late-night visit to a coffee shop

owned by his friend and client. Complaint ¶ 10. Arriving shortly before 2:50

A.M., he legally parked his car in front of the shop. See id. ¶¶ 10–11. While

the car was still running, Officers Barnes and Scott of the Jacksonville Sheriff’s

2 In considering the Motion, the Court must accept all factual allegations in the

Complaint as true, consider the allegations in the light most favorable to the plaintiff, and

accept all reasonable inferences that can be drawn from such allegations. Hill v. White, 321

F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th

Cir. 1994). As such, the facts recited here are drawn from the Complaint, and may well differ

from those that ultimately can be proved.

Office (JSO) approached the vehicle. See id. ¶ 11. Citing a rise in burglaries

and asserting that Shadmani was illegally parked, Barnes ordered Shadmani

out of the car, searched him, and—although stating that he was not under

arrest—placed Shadmani in the back of the officers’ police cruiser. Id. ¶¶ 11,

14–15. Shadmani complied with the officers’ requests. Id. ¶ 14. The officers

then claimed to see a white powder on a folder in the passenger seat and began

searching Shadmani’s car. Id. ¶¶ 15–18. Suspecting that the powder was

cocaine, the officers decided to handcuff Shadmani using an “arm bar

maneuver” to force his compliance. Id. ¶¶ 17–18. Shadmani requested an

explanation, but the officers simply forced Shadmani’s hand towards his upper

back, pushed him against the police cruiser, and struck his lower back several

times. Id. ¶ 20. “Believing he was being battered and unlawfully detained,”

Shadmani pulled away from the officers and tried to escape. Id. ¶ 21. The

officers gave chase, tasing Shadmani and causing him to fall. Id. As

Shadmani lay on the ground, the officers “pounce[d]” on him and punched him.

Id. Shadmani made a final attempt to escape, but collapsed again as the

officers continued to tase him. Id. The officers then “tackled” Shadmani,

punching and striking him in his head, neck, face, and back. Id. During these

events, Shadmani was “completely defenseless.” Id. ¶ 22. After subduing

Shadmani, the officers forcibly swabbed his nose before arresting him for

possession of cocaine, possession of controlled substance paraphernalia, and

resisting an officer with violence. Id. ¶¶ 24–25. The officers never collected

cocaine from the scene. Id. ¶ 17. Prosecutors ultimately dropped the drug

charges entirely and reduced the remaining charge to resisting an officer

without violence. Id. ¶ 26.

As a result of the incident, Shadmani suffered a broken nose, a broken

arm, a large facial contusion, and other injuries, and required surgery to his

nose and back. Id. ¶ 23. Seeking relief for these injuries, Shadmani now

asserts claims against each officer, alleging in Counts I and II of the Complaint

that they violated his Fourth and Fourteenth Amendment rights.3 See id.

¶¶ 38–50. In addition to the claims against the individual officers, Shadmani

brings three claims against the Sheriff in his official capacity as the Sheriff of

the City of Jacksonville, Florida. In Count III, Shadmani asserts a claim for

municipal liability under 42 U.S.C. § 1983. See id. ¶ 52. In Count IV, he

brings a state-law battery claim against the Sheriff under a vicarious liability

theory. See id. ¶¶ 61–64. And in Count V, Shadmani asserts a state-law

claim for negligence against the Sheriff in his official capacity.

3 Barnes and Scott filed answers to the Complaint and have not sought dismissal. See

Defendant Officer J.M. Barnes’ Answer and Affirmative Defenses (Doc. 7), filed November 8,

2022; Defendant Officer A.G. Scott’s Answer and Affirmative Defenses (Doc. 8), filed

November 8, 2022. Shadmani’s claims against the individual officers are therefore not before

the Court at this time.

III. Discussion

In the instant Motion, the Sheriff seeks to dismiss only the state-law

claim in Count V, arguing that Shadmani has no viable claim for negligence or,

in the alternative, that the claim is barred by the doctrine of sovereign

immunity.4 For the reasons that follow, the Court concludes that the Motion

is due to be granted and Count V dismissed.

A suit against a public official in his official capacity is treated as a suit

against the local government entity he represents, in this case the City of

Jacksonville. See Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Owens v.

Fulton Cnty., 877 F.2d 947, 951 n.5 (11th Cir. 1989). Although the State of

Florida and its subsidiaries such as municipalities are generally immune from

tort liability, Florida has waived its immunity “under circumstances in which

the state agency or subdivision, if a private person, would be liable to the

claimant, in accordance with the general laws of this state.” Lewis v. City of

St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001) (quoting Fla. Stat.

4 In a heading of his argument, the Sheriff asserts that Count V fails to state a claim

“under Section 1983.” See Motion at 5. Although Shadmani does bring a claim for municipal

liability under § 1983, it is pleaded in Count III, not Count V. See Complaint ¶¶ 52–59. The

heading thus appears to be an error. Indeed, the Sheriff specifically contrasts the other

counts with Counts IV and V because the latter are “state tort law claims . . . for battery and

negligence, respectively.” Motion at 2. Of these two state-law claims, the Sheriff only

requests dismissal of Count V—the negligence claim. See id. at 8 (arguing—in conclusion—

that “Count V of the Plaintiff’s Complaint is due to be dismissed”). The Court does not

interpret the Sheriff’s Motion as seeking dismissal of Count III, and thus does not address

Shadmani’s § 1983 arguments. See Response at 4–6 (responding to the contention that Count

V fails to state a claim “under Section 1983”).

§ 768.28(1)). Thus, when presented with a negligence suit against a state or

its subsidiary, the Court “should first determine whether the circumstances

alleged would subject a private person to liability under Florida law.” Id.

(citing Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989)). If the plaintiff can

meet this burden, then the Court must decide “whether the challenged actions

are nonetheless acts which required the exercise of basic governmental

discretion, as opposed to implementation of an already established policy.”

Lewis, 260 F.3d at 1262. A “governmental agency is immune from tort liability

based upon actions that involve its ‘discretionary’ functions.” Cook ex rel.

Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1117 (11th Cir.

2005) (quoting Lewis, 260 F.3d at 1266); see also Gelbard v. City of Miami, 845

F. Supp. 2d 1338, 1340 (S.D. Fla. 2012) (quoting Lewis, 260 F.3d at 1264).5

Accordingly, the Court begins with Shadmani’s allegations of negligence before

turning to the question of sovereign immunity.

Shadmani’s specific theory of negligence is unclear. The allegations in

Count V of the Complaint could be understood to assert negligence by the

individual officers (under a respondeat superior theory6), negligent training by

5 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive effects.”).

6 Under Florida law, a municipality can be vicariously liable for the tortious acts of its

employees. See Young v. Borders, No. 5:13-cv-113-Oc-22PRL, 2014 WL 11444072, at *21

(M.D. Fla. Sept. 18, 2014); Saballos v. Bonilla, No. 05-21928-CIV, 2006 WL 3940552, at *8

JSO, or negligent supervision by JSO. See Complaint ¶ 68 (asserting that the

officers “breached the duty owed to Mr. Shadmani” by using unnecessary force);

id. ¶ 69 (asserting that “JSO breached the aforementioned duties” by, among

other things, “training Barnes and Scott to unreasonabl[y] use force on

suspects,” “not training or supervising Barnes and Scott on reasonable uses of

force,” choosing not to teach de-escalation techniques, and “condoning” the use

of unreasonable force against Shadmani). 7 In his Response, Shadmani

elaborates on his claim in this count by asserting that the Sheriff, in his official

capacity, “breached [his] duty of care owed to [Shadmani] by negligently failing

to properly train and supervise Officer Barnes and Officer Scott, and by

allowing unreasonable use of force as a pattern and protocol at JSO.” Response

at 4.

As an initial matter, the Court notes that Shadmani does not allege any

facts suggesting that the individual officers were negligent, only that they used

(S.D. Fla. Dec. 5, 2006).

7 The Court notes that Shadmani also appears to argue for municipal liability on the

grounds that the Sheriff allowed “unreasonable use of force as a pattern and protocol” and

“condon[ed] Barnes and Scott’s unreasonable use of force.” See Complaint ¶ 69; Response at

6. These assertions appear to simply restate the argument that JSO negligently trained

officers to use excessive force. It is also unclear why “condoning Barnes and Scott’s

unreasonable use of force” would give rise to negligence liability, partly because Shadmani

does not explain how the Sheriff condoned it. See id. To the extent that Shadmani asserts

that JSO’s policies violated his federal rights or seeks to impose liability on the city based on

the officers’ actions, he has already brought those claims in Counts III and IV, respectively—

counts which the Sheriff has not moved to dismiss. See Complaint ¶¶ 52–64. Otherwise,

this assertion appears equally duplicative of the negligent training theory.

excessive force.8 “The Florida courts have consistently and unambiguously

held that ‘it is not possible to have a cause of action for negligent use of excessive

force because there is no such thing as the negligent commission of an

intentional tort.’” See Secondo v. Campbell, 327 F. App’x 126, 131 (11th Cir.

2009) (per curiam) (quoting City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. 3d

DCA 1996).9 However, “‘a separate negligence claim based upon a distinct act

of negligence may be brought against a police officer in conjunction with a claim

for excessive use of force, . . . [but] the negligence component must pertain to

something other than the actual application of force during the course of

arrest.’” Id. (quoting Sanders, 672 So. 2d at 48). For example, “a cause of

action for the negligent handling of a firearm and the negligent decision to use

a firearm separate and distinct from an excessive force claim” is recognized

under Florida law. See Lewis, 260 F.3d at 1263; see also Wyatt v. City of

Jacksonville, No. 3:08-cv-264-J-32TEM, 2008 WL 2916358, at *1 (M.D. Fla. July

29, 2008) (finding that the plaintiff adequately stated a claim for negligent

handling of a police dog). Here, Shadmani alleges that the individual officers

8 Shadmani clarifies in his Response that he is not employing a “negligent arrest”

theory of liability. See Response at 4. For the sake of completeness, however, the Court

nonetheless considers the assertion that the individual officers “breached the duty” to “use

reasonable care in effectuating [Shadmani’s] seizure.” See Complaint ¶¶ 67–68.

9 The Court does not rely on unpublished opinions as binding precedent, but they may

be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

breached their duty of care by “unnecessarily tasing” him, “tackling him,

mounting him and punching” him repeatedly. Complaint ¶ 68. All of

Shadmani’s allegations, accepted as true, assert that Shadmani was subjected

to intentional acts of force, not negligence. Accordingly, Shadmani’s

allegations do not plausibly plead a claim of negligence.

The Court turns next to Shadmani’s negligent supervision theory. See

Id. ¶ 69; Response at 4. “‘To state a cause of action for negligent supervision

or negligent retention under Florida law the claimant must allege: (1) the

existence of a relationship giving rise to a legal duty to supervise; (2) negligent

breach of that duty; and (3) proximate causation of injury by virtue of the

breach.’”10 Atmore v. City of Lake Wales, No. 8:08-cv-2320-T-27EAJ, 2009 WL

10670908, at *3 (M.D. Fla. Dec. 1, 2009) (quoting Albra v. City of Ft.

Lauderdale, 232 F. App’x 885, 888 (11th Cir. 2007)). To establish the

employer’s negligence, a plaintiff must show that “during the course of

employment, the employer [became] aware or should have become aware of

problems with an employee that indicated his unfitness, and the employer

[failed] to take further action such as investigating, discharge, or

reassignment.” See Groover v. Polk Cnty. Bd. of Comm’rs, 460 F. Supp. 3d

10 Under Florida law, “[n]egligent supervision is the same cause of action as negligent

retention.” See Groover v. Polk Cnty. Bd. of Comm’rs, 460 F. Supp. 3d 1242, 1251 (M.D. Fla.

2020).

1242, 1251 (M.D. Fla. 2020) (quoting Degitz v. S. Mgmt. Servs., Inc., 996 F.

Supp. 1451, 1461 (M.D. Fla. 1998)). Here, however, Shadmani does not plead

any facts suggesting that JSO was or should have been aware of prior

misconduct by Barnes or Scott. Although Shadmani provides examples of

alleged misconduct by JSO employees, only three such employees are

identified—none of whom Shadmani alleges to have been involved in his arrest.

See Complaint ¶¶ 28–36 (listing prior incidents); see also id. ¶¶ 29, 32

(describing alleged misconduct by “Police Lieutenant R.W. Beltz,” “Police

Officer C.M. Weippert,” and “Police Officer R.J. Tolen”). On this point,

Shadmani argues that the “discovery phase has not yet begun,” and he thus has

not been able to depose the Sheriff regarding “any notices of prior instances of

unfitness in either of these Officers.” Response at 5–6. The problem with this

argument is that it places the discovery cart before the pleading horse. The

Supreme Court in Twombly expressly stated that a mere “formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

(emphasis added). Shadmani must plead sufficient facts in his Complaint to

survive a motion to dismiss in order to proceed with discovery. At least as to

his negligent supervision claim in Count V, he has not done so.

Finally, the Court turns to Shadmani’s theory that the Sheriff breached

his duty of care either by actively training individual officers to use excessive

force, or by failing to train them on reasonable force and “de-escalation

techniques.” See Complaint ¶ 69. In general, under Florida law, an employer

is liable “for reasonably foreseeable damages resulting from the negligent

training of its employees and agents.” Lewis, 260 F.3d at 1265. Here,

although his allegations are rather conclusory, Shadmani arguably states a

claim against the Sheriff which would subject a private person to liability.

Thus, the Court moves to the second step of the sovereign immunity analysis

and considers whether the challenged actions were an exercise of governmental

discretion. Lewis, 260 F.3d at 1262.

“[A] governmental agency is immune from tort liability based upon

actions that involve its ‘discretionary’ functions, such as development and

planning of governmental goals and policies.” Id. at 1266. In Lewis, the

Eleventh Circuit explained that “[a] city’s decision regarding how to train its

officers and what subject matter to include in the training is clearly an exercise

of governmental discretion regarding fundamental questions of policy and

planning.” See id. On the other hand, a challenge to the implementation or

operation of a city’s policies or training program would involve operational

actions for which the city would not have sovereign immunity. See id. Here,

Shadmani’s negligent training claim relates to the Sheriff’s decisions about how

to train officers and what subject matter to include in the training, see

Complaint ¶ 69, and that action is discretionary in nature.11 See Lewis, 260

F.3d at 1266. Thus, to the extent that Shadmani alleges that the Sheriff

negligently trained JSO officers, his state-law claim is barred by sovereign

immunity and due to be dismissed.12

IV. Conclusion

Because Shadmani fails to state a claim in Count V, the Motion is due to

be granted, and Count V of the Complaint will be dismissed.

Accordingly, it is

ORDERED:

1. The Clerk of the Court is directed to update the caption of the case

to substitute T.K. Waters in place of Pat Ivey as the Sheriff of the

City of Jacksonville.

11 Shadmani also pleads, in the alternative, that the officers “misunderstood their

training by JSO.” Complaint ¶ 70. However, Shadmani does not allege any facts suggesting

that any such misunderstanding resulted from JSO’s negligence in the implementation or

operation of any policy or training program. Accordingly, this alternative theory is

insufficient to support a claim of negligence against the Sheriff.

12 As described above, however, the Sheriff has only sought the Court’s dismissal of

Shadmani’s state-law negligence claim in Count V. See Motion at 1–2, 8. Dismissal of

Count V does not prevent Shadmani from challenging the Sheriff’s training policies. It

simply means that he must do so through his § 1983 claim in Count III, not his state-law

negligence claim in Count V. Indeed, state-law sovereign immunity “has no application to

claims . . . under Section 1983.” Hufford v. Rodgers, 912 F.2d 1338, 1341 & n.1 (11th Cir.

1990); see also Connor v. Halifax Hosp. Med. Ctr., 135 F. Supp. 2d 1198, 1223 (M.D. Fla. 2001)

(rejecting a state agent’s assertion of immunity under section 768.28(9)(a) in response to a

§ 1983 claim).

2. Defendant Sheriff T.K. Waters' Motion to Dismiss Count V of

Plaintiff's Complaint and Supporting Memorandum of Law (Doc. 9)

is GRANTED. Count V of the Complaint is DISMISSED.

3. Sheriff Waters shall answer the Complaint on or before April 17,

2023.

DONE AND ORDERED in Jacksonville, Florida, this 28th day of

March, 2023.

United States District Judge

1e31

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