# Barmapov-Segev v. City of Miami

> District Court, S.D. Florida · November 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10117133

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** November 20, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10117133. Public record. Not legal advice.