Barmapov-Segev v. City of Miami

United States District Court

for the

Southern District of Florida

Erma Barmapov-Segev, Plaintiff, )

)

v. )

) Civil Action No. 19-23742-Civ-Scola

City of Miami and others, )

Defendants. )

Omnibus Order on Defendants’ Motions to Dismiss

This matter is before the Court on Defendant City of Miami’s motion to

dismiss (ECF No. 4) and Defendant Jem Martinez’s partial motion to dismiss the

Plaintiff’s complaint. (ECF No. 9.) The Plaintiff filed responses (ECF Nos. 14, 16)

and the Defendants replied (ECF No. 17, 21.) Having considered the parties’

briefs, the relevant caselaw, and the record, the Court grants in part and denies

in part the Defendants’ motions.

I. Background

On December 31, 2017, Plaintiff Barmapov-Segev was in Miami

celebrating New Year’s Eve with a friend. (ECF No. 1-3 at ¶ 15.) The Plaintiff was

driving northbound at the intersection of Biscayne Boulevard and SE 3rd Street.

(Id. at ¶ 16.) Defendant Martinez, an off-duty Public Service Aide and employee

of the City of Miami, was directing traffic at the intersection. (Id.) The Plaintiff

asked the Defendant if she could pass because she was running late to a dinner

reservation. (Id. at ¶ 17.) Martinez struck the Plaintiff’s vehicle with her hand

and told the Plaintiff to “fuck off.” (Id.) The Plaintiff proceeded safely past

Defendant Martinez and drove for about thirty feet. (Id. at ¶¶ 17-18.) The Plaintiff

was then stopped by Defendant Dell Amico, another safety officer, on foot. Dell

Amico stopped the Plaintiff because Martinez told him that she had to jump out

of the way of the vehicle because the Plaintiff tried to strike her with the vehicle.

(Id. at ¶ 18.)

Defendant Dell Amico detained the Plaintiff on the side of the road from

10:30 p.m. until approximately 11:45 p.m., when she was handcuffed and

arrested. (Id. at ¶ 21.) The Plaintiff was handcuffed and left in the car until

approximately 2:00 a.m. (Id. at ¶ 21.) The Plaintiff was charged with aggravated

assault with a deadly weapon and failure to obey a police officer. (Id. at ¶ 23.)

The State eventually nolle prossed all charges filed against the Plaintiff. (Id. at

25.)

The Plaintiff filed a ten count complaint against the City and the various

officers involved with her arrest for false arrest, false imprisonment, unlawful

search and seizure, defamation, malicious prosecution, battery, intentional

infliction of emotional distress, and various counts of negligence. The City moves

to dismiss the Plaintiff’s complaint in its entirety and Defendant Martinez filed a

partial motion to dismiss.

II. Legal Standard

Federal Rule of Civil Procedure 8(a) requires “a short and plain statement

of the claims” that “will give the defendant fair notice of what the plaintiff's claim

is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court

has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss

does not need detailed factual allegations, a 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. Factual

allegations must be enough to raise a right to relief above the speculative level.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted).

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotations and citations omitted).

“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.” Id. Thus, “only a complaint that states a plausible claim

for relief survives a motion to dismiss.” Id. at 1950. When considering a motion

to dismiss, the Court must accept all of the plaintiff's allegations as true in

determining whether a plaintiff has stated a claim for which relief could be

granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of Rule

12(b)(6), a court generally may not look beyond the pleadings, which includes

any information attached to a complaint. U.S. ex. Rel. Osheroff v. Humana, Inc.,

776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).

III. Analysis

A. The City’s Motion to Dismiss Counts I, II, V, VI, and IX

The Defendant moves to dismiss Counts I, II, V, VI, and IX based on

sovereign immunity under Fla. Stat. § 768.28 because the complaint alleges that

they were committed with malicious intent. (ECF No. 4 at 4-5.) The Plaintiff’s

response does not address the Defendant’s argument regarding sovereign

immunity under Florida law. (ECF No. 14.) Instead, the Plaintiff argues that her

count for malicious prosecution (Count V) is a constitutional claim that may be

brought under § 1983. (Id. at 2.) The only count in Plaintiff’s complaint that

invokes the Constitution is Count III. Nowhere in the complaint does the Plaintiff

cite to § 1983. Instead, Counts I, II, V, VI, and IX each refer to “Florida Statutes

and the laws of the State of Florida.” (ECF No. 1-3 at ¶¶ 38, 47, 77, 84, 109.)

Accordingly, the Court will construe Counts I, II, V, VI, and IX as Florida common

law claims for false arrest, false imprisonment, malicious prosecution, battery,

and intentional infliction of emotional distress, respectively.

Florida’s sovereign immunity statute provides the following:

The state or its subdivisions shall not be 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) (emphasis added). “Florida law thus provides that the

State and its subdivisions shall not be liable in tort for the acts or omissions of

an officer, employee, or agent committed in a manner exhibiting wanton and

willfully disregard of human rights, safety and property.” Gregory v. Miami-Dade

Cty., 719 F. App’x 859, 873 (11th Cir. 2017.) This does not mean, however, that

the sovereign immunity statute bars all claims for battery or false arrest. “While

battery is an intentional tort, the City may be held liable for an employee’s

intentional act(s) as long as the employee is acting within the course and scope

of his employment and the act or omission is not committed in bad faith, with

malicious purpose, or in a manner exhibiting wanton and willful disregard of the

plaintiff’s rights.” Id.

Here, the Plaintiff’s allegations in Count I for false arrest do not allege that

the Defendant officers acted in bad faith or with malicious intent. (See ECF No.

1-3 at 11-12.) The Plaintiff alleges that she was arrested based on the false

accusations of Defendant Martinez and Defendants Dell Amico, Williams, and

Gonzalez failed to investigate Defendant Martinez’s false allegations. (Id. at ¶ 34.)

There is no dispute between the parties that the officers were acting within the

scope of their employment. Accordingly, the Court declines to dismiss Count I as

to the City.

With regard to Counts II, V, VI, and IX, the Plaintiff’s complaint contains

allegations of intentional and malicious conduct. For example, Count II for false

imprisonment alleges that Defendant Martinez “maliciously and intentionally

lied when reporting” Plaintiff’s conduct to the Miami Dade Police Department.

(ECF No. 1-3 at ¶ 42.) Count V for malicious prosecution alleges that Defendant

Martinez “knowingly, maliciously, and intentionally” made a false report

regarding the Plaintiff so she would be arrested. (Id. at ¶ 71.) This was done “with

ill will or evil intent.” (Id.) Count VI for battery alleges that Defendant Martinez

“acted with malice and her intentional, malicious actions, omissions, and false

statements” resulted in “non-consensual touching of Plaintiff.” (Id. at ¶ 81.)

Lastly, Count IX for intentional infliction of emotional distress also alleges that

Defendant’s actions were “deliberate and reckless, and amount to outrageous

conduct that is atrocious and intolerable in a civilized society.” (Id. at ¶ 107.)

Based on these allegations of malicious and willful disregard for the Plaintiff’s

rights, § 768.28(9)(a) immunity applies. See Gregory, 719 F. App’x at 873.

Accordingly, the Court finds that the City is immune from suit and dismisses

Counts II, V, VI, and IX as to the City.

B. Defendant Martinez’s Motion to Dismiss Count II

Defendant Martinez moves to dismiss Counts II for false imprisonment as

duplicative of Count I for false arrest. “Generally, false arrest and false

imprisonment are different labels for the same cause of action.” Smart v. City of

Miami, 107 F. Supp. 3d 1271, 1280 (S.D. Fla. 2015) (Cooke, J.) (citations and

quotations omitted). Courts often find that false imprisonment is duplicative of

false arrest where the “arrest and subsequent imprisonment [are] coterminous.

That is, an individual was detained for a period of time that was commensurate

with the arrest for a particular offense. In such a circumstance, probable cause

to believe the individual committed the offense would render the arrest, and the

concomitant period of detention (i.e, the imprisonment) flowing directly from the

arrest, lawful.” Id. 1280-81. On the other hand, there are some circumstances

in which the two claims are not treated identically. In Mathis v. Coats, 24 So. 3d

1284, 1287 (Fla. 2d DCA 2010), the plaintiff was arrested one afternoon for

driving under the influence. She was taken to Central Breath Testing (CBT), given

a number of sobriety tests, and taken to the booking area. Id. at 1287. She was

released from jail at noon the next day. Id. The appellate court affirmed the trial

court’s grant of summary judgment on the false arrest claim because there was

probable cause to arrest at the time of the traffic stop. The court, however,

reversed on the false imprisonment claim because the plaintiff “may be able to

demonstrate that probable cause evaporated at some point after she was

transported to CBT and jailed.” Id. at 1290. The length of the arrest was not

commensurate with the offense at issue.

Here, the Plaintiff was arrested sometime before midnight and released at

8:47 a.m. (ECF No. 1-3 at ¶ 23.) The Plaintiff alleges that she was “falsely

imprisoned, detained, and otherwise arrested for approximately 10 hours and 37

minutes.” (Id.) The allegations in Counts I and II are largely the same: the Plaintiff

was unlawfully arrested and held for an unreasonable amount of time. (Id. at ¶¶

36, 43.) In this scenario, a finding of probable cause would render the arrest and

the “concomitant period of detention” lawful. Smart, 107 F. Supp. 3d at 1281.

Because the two are so closely related and she was “detained for a period of time

that was commensurate with the arrest,” Count II is duplicative of Count I. See

id. at 1280-81.

C. The City’s Motion to Dismiss Count III

Count III asserts a claim for unlawful search and seizure under the Fourth

Amendment of the Constitution. (ECF No. 1-3 at 15.) The Court assumes, as the

Defendant has, that the Plaintiff meant to invoke 42 U.S.C. § 1983.

Municipalities and other local government entities are subject to liability under

§ 1983 and may be sued directly for relief where “the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s

officers.” Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A

municipality or other local government entity “cannot be held liable solely

because it employs a tortfeasor—or, in other words, a municipality cannot be

held liable under § 1983 on a respondeat superior theory.” Id. at 691 (emphasis

in original). Only if the alleged constitutional violations resulted from a custom,

policy, or practice of a local government entity may that entity be held liable. Id.

at 694; Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th

Cir. 1987); see also Farred v. Hicks, 915 F.2d 1530, 1532–33 (11th Cir. 1990)

(“Governmental entities may be held liable under section 1983 when a

governmental ‘policy or custom’ is the ‘moving force’ behind the constitutional

deprivation.”) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).

A policy or custom “is established by showing a persistent and widespread

practice and an entity’s actual or constructive knowledge of such customs,

though the custom need not receive formal approval.” German v. Broward Cty.

Sheriff's Office, 315 F. App’x 773, 776 (11th Cir. 2009) (citing Depew v. City of

St, Mary’s, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986)). The practice or custom

must be “so pervasive, as to be the functional equivalent of a policy adopted by

the final policymaker.” Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th

Cir. 1994). For example, if a municipality’s rules and regulations for the

operation of its police department are repeatedly violated and the municipality

has knowledge of the conduct but fails to rectify the situation, it may be liable.

Depew, 787 F.2d at 1499 (“The continued failure of the [municipality] to prevent

known constitutional violations by its police force is precisely the type of informal

policy or custom that is actionable under section 1983.”). However, “[n]ormally

random acts or isolated incidents are insufficient to establish a custom or

policy.” Id.

Here, the Plaintiff fails to establish a pattern or practice of unlawful

searches and seizures. The Plaintiff attempts to establish a custom, policy, or

practice by the City of Miami Police Department by listing statistics about the

City’s excessive use of force. (ECF No. 1-3 at 19.) For example, “it has been

reported in a 2014 Miami New Times article that Miami Police have used their

Tasers more than 3000 times and at least 11 men have died.” (Id. at ¶ 58(ii).) The

Plaintiff argues that she “included evidence of Defendant City’s pattern and

practice and/or custom and policy of using excessive force as part of an

argument that Defendant City proliferates and condones the violations of citizens

constitutional rights.” (ECF No. 14 at 11.) She included evidence showing that

the City has “a pattern and practice and/or custom and policy of falsifying

evidence and planting evidence as alleged in this case, of failing to accept and/or

make complaints against officers, of asking leading questions during

investigations, and has a pattern and practice of violating citizen’s rights under

the Fourth Amendment.” (Id.) Notably, the Plaintiff does not argue that she has

provided facts to establish a policy or custom of illegal searches and seizures.

The Plaintiff’s claim is for unlawful seizure based on her arrest. This is unrelated

to the City’s alleged problems with excessive force or other Fourth Amendment

violations. Accordingly, the Court dismisses Count III as to the City.

D. Defendant Martinez’s Motion to Dismiss Count III

The Defendant moves to dismiss Count III arguing that the Plaintiff has

not asserted enough facts to show that Martinez was acting under color of state

law. (ECF No 9 at 5.) The Plaintiff responds by arguing that Defendant Martinez

was a Public Service Aide directing traffic and thus acting under color of state

law. (ECF No. 16 at 11.) Upon careful review, the Court agrees with the Plaintiff.

Section 1983 does not federalize all torts or other deprivations of rights

committed by a person who is a law enforcement officer or other government

agent. Instead, the statute covers only those deprivations committed under color

of any statute, ordinance, regulation, custom, or usage, of any State or Territory

or the District of Columbia.” Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261,

1265 (11th Cir. 2012). “A defendant acts under color of state law when she

deprives the plaintiff of a right through the exercise of authority that she has by

virtue of her government office or position. The dispositive question is whether

the defendant was exercising the power she possessed based on state authority

or was acting only as a private individual.” Id.

Here, the complaint alleges that Defendant Martinez was a public safety

officer directing traffic. (ECF No. 1-3 at ¶¶ 16-17.) The Plaintiff asked Martinez if

she could pass through traffic and Martinez hit the Plaintiff’s car and cursed at

her. (Id. at ¶ 17.) Martinez then communicated to another officer, Dell Amico,

what occurred and Dell Amico stopped the Plaintiff. (Id. at ¶ 18.) Construing the

complaint’s allegations in the light most favorable to the Plaintiff, it appears

Martinez was a public safety officer directing traffic on a busy street during New

Year’s Eve when the altercation took place. There is no indication that the

Plaintiff believed she was asking a civilian if she could pass or confused Martinez

for a civilian crossing the street. Accordingly, Defendant Martinez’s motion to

dismiss Count III is denied.

E. Defendant City and Defendant Martinez’s Motions to Dismiss

Count IV

Count IV of the Plaintiff’s complaint asserts a claim for defamation based

on the “defamatory statements” made by Defendant Martinez that led to

Plaintiff’s arrest. (ECF No. 103 at 21-22.) The Defendants both move to dismiss

this claim arguing that they are immune from suit because Defendant Martinez

was acting within the scope of her authority. (ECF No. 4 at 6.) The Plaintiff argues

that Defendant Martinez was not acting within the scope of her authority

because she is a public safety officer with no enforcement powers. (ECF No. 16

at 8.) Therefore, when she reported to Defendant Dell Amico that she was almost

struck by Plaintiff’s car, she was acting outside the scope of her authority. Upon

review, the Court agrees with the Defendants.

“In Florida, public officials who make statements within the scope of their

duties are absolutely immune from suit for defamation.” Steppe v. City of Miami,

Case No. 16-24999, 2017 U.S. Dist. LEXIS 119161, at *19 (S.D. Fla. July 27,

2017) (McAliley, Mag. J.). Here, “[t]here is no evidence that the [ ] officers made

any statements outside the scope of their official duties.” Id. at *19-*20. Martinez,

acting as a public safety officer, was directing traffic, did not let the Plaintiff pass,

and after Plaintiff passed, Martinez reported to her fellow officers that the

Plaintiff tried to hit her with her car. All of these functions are within the scope

of her duties. See Meyer v. City of Gainesville, No. 15-cv-185, 2016 WL 674659,

at *7 (N.D. Fla. Jan. 7, 2016) (pulling over plaintiff, conversing with fellow officer

on the radio, and arresting plaintiff were within scope of officer’s duties).

Accordingly, the City and Officer Martinez are entitled to immunity and the Court

dismisses Count IV.

F. Defendant Martinez’s Motion to Dismiss Count VI for Battery

Defendant Martinez moves to dismiss Count VI for battery arguing that

Defendant Martinez did not actually arrest, handcuff, or detain Plaintiff.

Therefore, Martinez was not involved in the Plaintiff’s alleged battery. (ECF No.

9 at 7.) In response, the Plaintiff asserts that Defendant Martinez’s conduct

indirectly resulted in the Plaintiff’s battery. (ECF No. 16 at 13.)

“Under Florida law, the tort of battery requires the plaintiff to prove the

following elements: (1) the intent to cause a harmful or offensive contact with

another person; and (2) an offensive contact that directly or indirectly results.”

Rubio v. Lopez, 445 F. App’x 170, 175 (11th Cir. 2011) (emphasis added). The

parties agree that Defendant Martinez did not touch the Plaintiff. The question

is whether the fact that Defendant Martinez’s actions resulted in the alleged

battery is sufficient to sustain a cause of action against Defendant Martinez.

Neither party cites a case on the issue of an indirect battery. The Defendant does

not even address the argument in her Reply. (ECF No. 21.) The Court will not

serve as counsel’s law clerk and make the arguments that should have been

developed by each side. See Fed. Ins. Co. v. Cty. Of Westchester, 921 F. Supp.

1136, 1138 (S.D.N.Y. 1996) (“Under the adversary system, it is counsel’s

responsibility to explain why these points have legal merit; the Court does not

serve as counsel’s law clerk.”). Accordingly, the motion to dismiss Count VI is

denied.

G. Count VII

Count VII is a shotgun pleading. Count VII purports to assert claims for

“negligence and/or negligent hiring, training, supervision, and retention.” (ECF

No. 1-3 at 28.) A shotgun pleading “commits the sin of not separating into a

different count each cause of action or claim for relief.” Gharfeh v. Carnival Corp.,

309 F. Supp. 3d 1317, 1322 (S.D. Fla. April 6, 2018) (Goodman, J.). The

Plaintiff’s claims of negligent hiring, training, supervision, and retention are each

“legally distinct claims requiring separate analyses.” Nieves v. City of Hialeah,

No. 17-cv-22726, 2018 U.S. Dist. LEXIS 19445, at *14 (S.D. Fla. Feb. 3, 2018)

(Moore, J.). Although the Court may dismiss on these grounds, the Court will

address each claim in turn.

To state a claim for negligent hiring or retention, a plaintiff must allege

that “(1) the agent/employee/contractor was incompetent or unfit to perform the

work; (2) the employer knew or reasonably should have known of the particular

incompetence or unfitness; and (3) the incompetence or unfitness was a

proximate cause of the plaintiff's injury.” Witover v. Celebrity Cruises, Inc., 161

F. Supp. 3d 1139, 1148 (S.D. Fla. 2016) (Lenard, J.) (citations and quotations

omitted). To satisfy the second element of these claims, “a plaintiff must allege

facts showing that the employer was put on notice of the harmful propensities of

the agent/employee/contractor.” Id. (citations and quotations omitted).

Negligent hiring occurs when the employer knew or should have known of the

employee’s unfitness before the employee was hired. Id. The issue of liability

“primarily focuses upon the adequacy of the employer’s pre-employment

investigation into the employee’s background.” Id. Negligent retention occurs

“after employment begins, where the employer knows or should know of the

employee’s unfitness and fails to take further action such as investigating,

discharge or reassignment.” Id. (citations and quotations omitted).

Other than in the title of Count VII, the Plaintiff’s complaint does not

allege any facts related to her claim of negligent hiring, much less evidence that

the City was put on notice of the officers’ incompetence or unfitness. The

complaint also fails to put forth any allegations that the City should have known

of the Defendant officer’s unfitness to support her negligent retention claim. The

same analysis applies to the Plaintiff’s claim of negligent supervision. “Because

[Plaintiff] has not brought forth any evidence that [Defendant City] had notice

that either of the officers had ‘harmful propensities’ or was otherwise unfit to

serve as a police officer, [s]he cannot state a claim for negligent supervision.”

Mercado v. City of Orlando, 406 F.3d 1152, 1162 (11th Cir. 2005).

The Plaintiff’s claim for negligent training also fails. The Plaintiff challenges

the City’s alleged failure to train officers regarding the use of unreasonable

search and seizure and the requirement to treat females equally to other citizens.

(ECF No. 1-3 at ¶ 89.) “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.” Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001).

These training decisions are “discretionary governmental functions immune from

tort liability.” Id. Because the Plaintiff challenges basic policy decisions made by

the City, the “discretionary function exception to the waiver of sovereign

immunity applies and her claim is barred.” Id. Accordingly, the Court dismisses

Count VII.

H. Count VIII

Count VIII is titled “Negligence, Negligent Supervision, and Failure to

Conduct a Fair and Impartial Investigation.” (ECF No. 13 at 30-31.) The Court

has already addressed the Plaintiff’s claim for negligent supervision. The

remaining allegations in Count VIII are for negligent investigation. Florida law,

however, does not recognize a cause of action for negligent investigation. See

Olson v. Dier, 10-cv-1771, 2011 WL 4905640, at *2 (M.D. Fla. Oct. 13, 2011)

(applying Florida law). Accordingly, the Court dismisses Count VIII.

I. Defendant Martinez’s Motion to Dismiss Count IX

The Defendant moves to dismiss Count IX for intentional infliction of

emotional distress arguing that, although Martinez’s conduct may be offensive,

it does not rise to the level of supporting a claim for intentional infliction of

emotional distress. (ECF No. 9 at 8.) In response, the Plaintiff asserts that

Martinez’s false accusations, which lead to the Plaintiff’s arrest, are sufficient.

Upon review, the Court agrees with the Plaintiff.

To state a claim for intentional infliction of emotional distress under

Florida law, a plaintiff must allege “(1) deliberate or reckless infliction of mental

suffering, (2) outrageous conduct that (3) caused the emotional distress, and (4)

that the distress was severe.” Tillman v. Orange Cty, 519 F. App’x 632, 636 (11th

Cir. 2013). In Tillman, the Eleventh Circuit held that “police officers falsif[ying]

charging documents in order to convict a man of a nonexistent crime[,] is the

type of extreme conduct considered to be intolerable in a civilized society[.]” Id.

at 637. According to the allegations in Plaintiff’s complaint, Martinez made false

accusations against the Plaintiff to “punish” her, which led to her arrest and

malicious prosecution. (ECF No. 1-3 at ¶¶ 27-28.) Taking these allegations in the

light most favorable to the Plaintiff, the Court declines to dismiss Count IX

against Defendant Martinez.

J. The Parties’ Motions to Dismiss Count X

Count X of Plaintiff’s complaint asserts a claim for negligent infliction of

emotional distress. The Defendant moves to dismiss Count X arguing that the

Plaintiff’s claim of negligent infliction of emotional distress is based on the alleged

false arrest and malicious prosecution. The Plaintiff cannot sustain a claim of

negligence on the basis of intentional torts. The Plaintiff does not respond to the

Defendant’s argument in her response.

“[N]egligence stemming from an arrest and/or imprisonment is subsumed

by the tort of false arrest/false imprisonment.” Hernandez v. Metro-Dade Cty.,

992 F. Supp. 1365, 1369 (S.D. Fla. 1997) (King, J.). Moreover, the negligent

commission of an intentional tort is an “oxymoron.” See Secondo v. Campbell,

327 F. App’x 126, 131 (11th Cir. 2009) (“Florida courts have conclusively

established that a cause of action for the negligent use of excessive force is an

oxymoron.”). Here, the Plaintiff alleges that she suffered emotional distress when

the City “falsely accus[ed]” her of misconduct and “initiate[d] malicious

prosecution” against her. (ECF No. 1-3 at ¶ 113.) Because these claims form part

of the malicious prosecution and false arrest claims, Count X must fail. See

Bickel v. City of Coral Springs, 17-cv-60606, 2017 WL 2439078, at *5 (S.D. Fla.

June 6, 2017) (Bloom, J.) (explaining that a “separate negligence claim based

upon a distinct act of negligent may be brought against a police officer . . . only

where the negligence component pertains to something other than the actual

application of force during the course of the arrest.”).

Defendant Martinez argues that she is allowed to plead claims, such as

intentional infliction of emotional distress, in the alternative. (ECF No. 16 at 16.)

This argument misses the mark. The Plaintiff’s claims for battery, false arrest,

and malicious prosecution are intentional torts. As explained above, an

intentional tort cannot form the basis of a negligence cause of action. Therefore,

Count X fails and cannot be pleaded as an alternative to the intentional torts

asserted by the Plaintiff.

IV. Conclusion

Based on the foregoing, the Court grants in part and denies in part the

Defendant City’s motion to dismiss. (ECF No. 4.) The Court denies the

Defendant’s motion to dismiss Count I. The Court grants the Defendant’s motion

to dismiss Counts II, I, IV, V, VI, VII, VHI, IX, and X. Count VIII is dismissed

with prejudice. All other counts are dismissed as to the City without prejudice.

The Court also grants in part and denies in part Defendant Martinez’s

partial motion to dismiss. (ECF No. 9.) The Court dismisses Counts II, IV, and

X as to Defendant Martinez. The Court denies the Defendant’s motion to dismiss

Counts III, VI, and IX.

Currently pending before the Court are three additional motions to dismiss

by Defendants Reyes, Williams, and Harrison. (ECF Nos. 10, 12, 27.) Instead of

ruling on the two pending motions, which contain a number of the same

arguments addressed above, the Court directs the Plaintiff to file an Amended

Complaint on or before December 4, 2019.

Done and ordered at Miami, Florida, on November 19, 2019.

Robdit N. Scola, Jr.

United States District Judge