# Andrade v. Rambosk

> District Court, M.D. Florida · August 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10113663

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 8, 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

JESSE ANDRADE, as Personal
Representative of the Estate of
Nicholas Morales, deceased, and on
behalf of Nicolas Morales’s minor
son N.M. Jr.,

Plaintiff,
Case No.: 2:22-cv-482-JLB-KCD
v.

KEVIN RAMBOSK, PIERRE JEAN,
NATHAN KIRK, BRIAN TARAZONA,
and COLLIER COUNTY, FLORIDA,

Defendants.
_______________________________________/

ORDER
Before the Court is Defendant Collier County, Florida’s (“Collier County”)
Motion to Dismiss Plaintiff’s Amended Complaint. (Doc. 50). Plaintiff filed a
response. (Doc. 59). Upon careful review and accepting all well-pleaded facts in the
Amended Complaint (Doc. 42) as true, the Motion is GRANTED in part and
DENIED in part.
BACKGROUND1
On September 17, 2020, at approximately 1:12 a.m., a resident of Immokalee,

1 “At the motion to dismiss stage, all well-pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” , 187 F.3d 1271, 1273 n.1 (11th Cir. 1999)
(citation omitted). Accordingly, this background section relies on the facts recited in
the Amended Complaint.
Florida placed an emergency call, claiming that a “Mexican” or “Mexicano” male
with a shovel was banging on her door and asking to be let in. (Doc. 42 at ¶ 17).
The subject of the emergency call was 37-year-old Nicolas Morales, a farm worker

who lived in Immokalee and was a single father to then 12-year-old N.M. (Id. at ¶
18). Mr. Morales was a Spanish speaker. (Id.) Mr. Morales was 5’4” and weighed
approximately 149 pounds. (Id.)
The facts leading to that emergency call and ultimately resulting in Mr.
Morales’s death are alleged in the operative complaint as follows:
At about midnight, Mr. Morales woke up N.M. and told him that he was

seeing spirits and creatures, and that the house was poisoned. (Id. at ¶ 23). Mr.
Morales then left the house through a back window. (Id.) Three deputies—
defendants Pierre Jean, Nathan Kirk, and Brian Tarazona—were dispatched to the
scene of the emergency call. (Id. at ¶ 24). Upon arrival at the scene, Deputy Jean –
a 6-foot-tall, estimated 250-pound army veteran and former football player – exited
his vehicle, drew his pistol, and aimed it at Mr. Morales. (Id. at ¶ 30). Deputy Jean
rapidly approached Mr. Morales and yelled in English, “hey don’t come over here,”

and “get on the ground.” (Id.) Deputy Tarazona also exited his vehicle and ran
towards Mr. Morales. (Id. at ¶ 31). Deputy Kirk, a K-9 officer, exited his vehicle
with his K-9, a German Shepherd. (Id. at ¶¶ 25, 31). The deputies yelled varied
commands at Mr. Morales in English. (Id. at ¶ 33). Plaintiff alleges that the
deputies had “strong reason to believe Mr. Morales might not understand English”:
(1) based on their “training and prior law enforcement work in the County,” and (2)
“the 911 caller and dispatch both identified Mr. Morales as a Mexican and Hispanic
male.” (Id. at ¶ 34).
Mr. Morales was holding gardening tools – a shovel and shears – but never

raised either at the deputies. (Id. at ¶ 35). Plaintiff alleges that the deputies never
saw gardening shears in Mr. Morales’s hands. (Id. at ¶ 36). When the deputies
approached, Mr. Morales dropped the shovel. (Id. at ¶ 37).
Then, twenty-one seconds after arriving at the scene and without warning,
Deputy Jean shot at Mr. Morales four times from five feet away, striking Mr.
Morales with three bullets – in the shoulder, abdomen, and pelvis. (Id. at ¶ 40).

Mr. Morales fell to the ground, crying and screaming. (Id.) Right after Deputy Jean
shot his firearm, Deputy Kirk released the K-9 German Shepherd. (Id. at ¶ 42).
The dog ripped through Mr. Morales’s skin and tissue, and Mr. Morales thereafter
vomited. (Id.)
Deputy Kirk approached Mr. Morales and yelled to Deputy Jean: “Don’t
[f**king] shoot me, you hear me?” (Id. at 44). Deputy Jean responded that he
would put the gun away but continued pointing it at Mr. Morales. (Id.) Deputy

Kirk removed the dog from Mr. Morales’s shoulder after a minute and called for the
administration of first aid. (Id. at ¶¶ 46–47). Deputy Tarazona went to his vehicle
to retrieve a first aid kit. (Id. at ¶ 46). At some point after the shooting and K-9
attack, Deputy Tarazona said to Deputy Jean, “less lethal, less lethal,” at which
point Deputy Jean holstered his gun, pulled out a taser, and pointed it at Mr.
Morales. (Id. at ¶ 48).
Deputy Tarazona then approached Mr. Morales and attempted to handcuff
him. (Id. at ¶ 51). He yelled at Mr. Morales in Spanish to give him his hands to be
handcuffed. (Id.) Mr. Morales responded in Spanish, conveying that he could not

because his back hurt. (Id.) Mr. Morales was taken to Naples Community Hospital
at around 2:03 a.m., approximately 40 minutes after he was shot. (Id. at ¶ 53). Mr.
Morales was pronounced dead at the hospital at 2:15 a.m. and the Medical
Examiner determined that the manner of death was a homicide. (Id. at ¶ 54).
Mr. Morales’s death left his son an orphan. (Id. at ¶ 59). A video of the
shooting was uploaded onto the internet about five months after Mr. Morales’s

death. (Id. at ¶ 60). No notice was given to Mr. Morales’s family before the video
was uploaded onto the internet. (Id.)
Plaintiff alleges that the deputies’ conduct violated the Collier County
Sheriff’s Officer’s (“CCSO”) policies, including their use of force policies (id. at ¶¶
62–71), their mental health policy (id. at ¶¶ 72–76), and their prohibition on false
reporting (id. at ¶¶ 77–78). Plaintiff also alleges that CCSO’s investigations into
the shooting of Mr. Morales were designed to protect the deputies from

accountability. (Id. at ¶¶ 79–116). Plaintiff further alleges that the CCSO failed to
adequately screen, supervise, and retain Deputy Jean prior to the shooting. (Id. at
¶¶ 117–138). Finally, Plaintiff alleges that the CCSO has a pattern and custom of
using unreasonable force on civilians and a custom of failed accountability. (Id. at
¶¶ 139–219).
The initial complaint was filed on August 10, 2022 against Collier County
Sheriff Kevin Rambosk, and deputies Jean, Kirk, and Tarazona. (Doc. 1). The
amended complaint added Collier County as a defendant. (Doc. 42). Plaintiff seeks
damages for, among other things, N.M.’s pain and suffering and Mr. Morales’s

medical and funeral expenses. (Id. at ¶¶ 220–25).
The Amended Complaint contains ten total counts, five of which are against
Collier County. (Id. at 54–79). The claims against Collier County are as follows:
Monell claim pursuant to 42 U.S.C. § 1983 (Count III); Wrongful Death Act Claim
under Fla. Stat. Ann. § 768.16 et seq. (Count V); Battery State Law Claim (Survivor
Action under Fla. Stat. Ann. § 46.021) (Count VII); Negligence State Law Claim

(Survivor Action under Fla. Stat. Ann. § 46.021) (Count IX); and Indemnification
(State Law Claim under Fla. Stat. Ann. § 111.071) (Count X).
Collier County’s Motion to Dismiss (Doc. 50) asks that the Court dismiss
Collier County with prejudice. (Doc. 50 at 25).
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed
for failure to state a claim upon which relief can be granted. To survive a motion to

dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter to
“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
standard of plausibility is met when the plaintiff pleads enough factual content “to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id.
When reviewing a motion to dismiss, courts must accept all factual
allegations contained in the complaint as true and view the facts in the light most

favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). Legal
conclusions, however, “are not entitled to the assumption of truth.” Ashcroft, 556
U.S. at 664. In fact, “conclusory allegations, unwarranted factual deductions or
legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta
Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
DISCUSSION

I. Count III: Monell claim under 42 U.S.C. § 1983
Count III seeks to hold Collier County and Sheriff Rambosk liable for
customs of excessive force and failed accountability, and for failure to screen Deputy
Jean. (Doc. 42 at ¶¶ 250–69). It alleges that Collier County and Sheriff Rambosk
“are separately liable for failing to adequately screen Jean before promoting him to
deputy sheriff.” (Id. at ¶ 259).
Section 1983 creates a cause of action against any “person” who deprives

someone of their federally protected rights under color of state law. Generally, to
succeed on a Monell claim, a plaintiff must prove “(1) that his constitutional rights
were violated; (2) that the municipality had a custom or policy that constituted
deliberate indifference to that constitutional right; and (3) that the policy or custom
caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
The Supreme Court has held that local government entities are “persons” under
section 1983 but “cannot be held liable . . . on a respondeat superior theory.” Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, local governments can
only be held liable under section 1983 when they execute a “policy or custom” that

“inflicts the injury.” Id. at 694. Local government liability under Monell may be
based on “(1) an express policy; (2) a widespread practice so permanent and well-
settled that it constitutes a custom; or (3) an act or decision of an officer with final
policy-making authority.” Boudreaux v. McArtor, 681 F. App’x 800, 804 (11th Cir.
2017) (citing Cuesta v. Sch. Bd., 285 F.3d 962, 966–68 (11th Cir. 2002)).
Collier County argues that it should be dismissed because the case “involves

the Sheriff’s law enforcement function as an independent constitutional officer
under Florida law which function the County is not responsible [for].” (Doc. 50 at
16).
The Eleventh Circuit has “not been entirely consistent on whether the
relevant entity in an official-capacity suit against a sheriff in Florida is the County
or the Sheriff’s Department (as a unit operating autonomously from the County).”
Brown v. Neumann, 188 F.3d 1289, 1290 n.2 (11th Cir. 1999). In Lucas v.

O’Loughlin, 831 F.2d 232 (11th Cir. 1987), the Eleventh Circuit concluded that
although a sheriff was elected by virtue of state law, “he was elected to serve the
county as sheriff.” Id. at 235. The Eleventh Circuit explained:
In that capacity, he had absolute authority over the
appointment and control of his deputies. His and their
salaries were paid by local taxation and according to a
budget approved by the county commissioners. We
conclude, therefore, that his act was the act of [the] County.
The trial court erred in dismissing the county as defendant.
Id. Later, in McMillian v. Monroe County, 520 U.S. 781 (1997), the Supreme Court
held that in determining whether a sheriff is a state or county policymaker for
purposes of a section 1983 action, “the question is not whether [the sheriff] acts for
[the state] or [the county] in some categorical, ‘all or nothing’ manner,” but rather
whether the sheriff is acting for the state “in a particular area, or on a particular
issue.” Id. at 785.

Post-McMillian, the Eleventh Circuit has found that “[w]hen, as here, the
defendant is the county sheriff, the suit is effectively an action against the
governmental entity he represents—in this case Monroe County.” Cook ex rel. Est.
of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir. 2005); see
also Adcock v. Baca, 157 F. App’x 118, 119 (11th Cir. 2005) (“When, as here, the
defendant in a § 1983 civil rights action is the county sheriff, the suit is effectively

an action against the governmental entity he represents—in his case, Polk
County.”) (citation omitted).
At this juncture, the Court does not have the information necessary to either
dismiss the County from this case or to affirmatively rule that the County is a
proper defendant in this matter. Accordingly, the County’s motion is denied
without prejudice to the County renewing these arguments at the summary
judgment stage.

Collier County requests that the Court certify the decision on this issue for
interlocutory appeal. (Doc. 50 at 17). Under 28 U.S.C. § 1292(b), a district court
may certify an order for interlocutory appeal if “such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and
[if] an immediate appeal from the order may materially advance the ultimate
termination of the litigation” (emphasis added). The party seeking leave to appeal

must satisfy all three elements. See 28 U.S.C. § 1292(b); In re Brown, No. 3:18-cv-
415-J-34, 2018 WL 3496790, at *2 (M.D. Fla. July 20, 2018) (“The party seeking to
appeal an interlocutory order must satisfy all three elements or leave to appeal
must be denied.”) (citation omitted). “Most interlocutory orders do not meet this
test.” OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1359 (11th
Cir. 2008). Indeed, section 1292(b) interlocutory review is a “rare exception.” See

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1264 (11th Cir. 2004) (“[W]hether
to grant permission for an interlocutory appeal lies in the discretion of the appellate
court, which in exercising its discretion should keep in mind that the great bulk of
its review must be conducted after final judgment, with § 1292(b) interlocutory
review being a rare exception.”).
Collier County failed to address the elements of section 1292(b).
Nevertheless, the Court has considered this issue and determines that Collier

County could not meet the standard set forth by section 1292(b) because dismissal
of Collier County would not “materially advance the ultimate termination of the
litigation.” See 28 U.S.C. § 1292(b). An interlocutory appeal would materially
advance the ultimate termination of the litigation where it “would serve to avoid a
trial or otherwise substantially shorten the litigation.” McFarlin, 381 F.3d at 1259.
Collier County is only a defendant in five of ten counts, and even within those five
counts, Collier County is only the sole defendant in one count, the indemnification
count, which the Court dismisses via this order. See infra, § III; (see also Doc. 42 at
¶¶ 328–31). Thus, resolving this issue would not remove any counts from the

Amended Complaint. Accordingly, resolution of this issue on an interlocutory basis
would not serve to avoid a trial or otherwise shorten the litigation. See, e.g., Collier
HMA Physician Mgmt, LLC v. NCH Healthcare Sys., Inc., No. 2:18-cv-408-SPC-
MRM, 2022 WL 1540396, at *4 (M.D. Fla. May 16, 2022) (denying request for
interlocutory appeal where claims must go to trial regardless of an appeal and
where defendant offered “no reason why [plaintiff] should wait for its claims to be

adjudicated while it pursues an interlocutory appeal”); Wyndham Vacation
Ownership, Inc. v. Montgomery Law Firm, LLC, No 8:19-cv-1895-CE-CPT, 2021 WL
510273, at *3 (M.D. Fla. Feb. 11, 2021) (finding that an immediate appeal would not
materially advance the termination of the litigation because the issue involved one
count of nine and there were multiple plaintiffs and multiple defendants involved
with many other claims). Because all three elements must be met for the Court to
grant leave to appeal, the Court need not consider the other elements.

Accordingly, Collier County’s request for the Court to certify the decision for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is denied.
II. Counts V, VII, and IX: State law vicarious liability claims.
“Unlike federal § 1983 claims, Florida law allows a municipality to be held
vicariously liable for the tortious acts of its employees.” Bowman v. Hunter, No.
3:22-cv-545-MMH-MCR, 2023 WL 2561335, at *8 (M.D. Fla. Mar. 17, 2023) (citing
Young v. Borders, No. 5:13-cv-113-Oc-22PRL, 2014 WL 11444072, at *21 (M.D. Fla.
Sept. 18, 2014)). Except when an employee acts “outside the course and scope of her
or his employment” or “in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard of human rights, safety, or property,”
Florida law provides:
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, or the head of such entity in her or
his official capacity, or the constitutional officer of which
the officer, employee, or agent is an employee.

Fla. Stat. § 768.28(9)(a).
Collier County argues that these state law claims must be dismissed because
it cannot be liable for the conduct of the defendant deputies, who were appointed
and employed by the CCSO. (Doc. 50 at 5 (citing Doc. 42 at ¶ 14)). In support of
this claim, Collier County cites Erickson v. Hunter, No. 95-387-CIV-FTM-17D, 1996
WL 427769 (M.D. Fla. Apr. 10, 1996), where the court dismissed a complaint
against the CCSO, finding that the sheriff “in his official capacity, is the [CCSO]”
and thus “[i]t is redundant and unnecessary to name the Collier County Sheriff’s
Office in this action.” Id. at *1 (emphasis in original). While Erickson indicates
that the sheriff is a proper party, it does not, as Collier County suggests, claim that
the sheriff is the only proper party.
Collier County does not cite a single case that would support its argument
that it cannot be held vicariously liable under section 768.28(9)(a). Instead, Collier
County cites cases such as Erickson, which has a narrow holding that does not
prevent a suit against Collier County.
Accordingly, Collier County’s motion to dismiss Counts V, VII, and IX is

denied.
III. Count X: Indemnification
Count X of the Amended Complaint provides that “[p]ursuant to Fla. Stat.
Ann. § 111.071, Florida counties are directed to pay judgments for damages for
which employees are liable within the scope of their employment activities.” (Doc.
42 at ¶ 329). Accordingly, the Amended Complaint alleges that Collier County is

responsible for judgments entered against Deputies Jean, Kirk, and Tarazona. (Id.
at ¶ 331).
Section 111.071 provides:
Any county, municipality, political subdivision, or agency
of the state which has been excluded from participation in
the Insurance Risk Management Trust Fund is
authorized to expend available funds to pay . . . any final
judgment . . . arising from a complaint for damages or
injury suffered as a result of any act or omission of action
of any officer, employee, or agent in a civil or civil rights
lawsuit described in [§] 111.07. . . . If the action is a civil
rights action arising under 42 U.S.C. [§] 1983, or similar
federal statutes, payments for the full amount of the
judgment may be made unless the officer, employee, or
agent has been determined in the final judgment to have
caused the harm intentionally.

Fla. Stat. § 111.071(1)(a) (emphasis added). The statute indicates that a county is
authorized to and may expend available funds to pay a final judgment, but does not
require a county to do so. Based on the plain language of the statute, the Court
cannot find that section 111.071 requires Collier County to pay any judgments
entered against Deputies Jean, Kirk, and Tarazona.
Accordingly, Collier County’s Motion to Dismiss Count X is granted.
CONCLUSION
For the reasons set forth above, Collier County’s Motion to Dismiss (Doc. 50)
is GRANTED in part and DENIED in part. Defendant shall file an answer to
the remaining counts in Plaintiff's amended complaint (Doc. 42) within fourteen
(14) days of the date of this Order.
ORDERED at Fort Myers, Florida on August 8, 2023.
if 9 ke
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113663. Public record. Not legal advice.