Watkins v. Sergeant M. Bigwood

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-cv-63035-BLOOM/Valle

ERIC WATKINS,

Plaintiff,

vs.

SERGEANT M. BIGWOOD, et al.,

Defendants.

__________________________/

ORDER

THIS CAUSE is before the Court upon Defendant City of Lauderhill’s (“Defendant”),

Motion to Dismiss, ECF No. [53] (“Motion”). Plaintiff filed his Response, ECF No. [55]

(“Response”), to which Defendant filed its Reply, ECF No. [56] (“Reply”).1 The Court has

considered the Motion, the Response, the Reply, the record in this case, the applicable law, and is

otherwise fully advised. For the reasons set forth below, the Motion is granted.

I. BACKGROUND

On March 11, 2020, the Court granted in part and denied in part Co-Defendant Officers’

motion to dismiss and motion for more definite statement. See ECF No. [30] (“Order”).

Specifically, the Court dismissed the official capacity claims against Co-Defendant Officers

without prejudice and required Plaintiff to file an amended complaint that comports with Rules 8

and 10, Fed. R. Civ. P. See id. On March 19, 2020, Plaintiff filed his First Amended Complaint,

1 Co-Defendants, Sergeant M. Bigwood (“Bigwood”), Officer T. Yopps (“Yopps”), and Officer

Samuel Ramos (“Ramos”) (collectively, “Co-Defendant Officers”) filed an Answer and

Affirmative Defenses, see ECF No. [54], to the operative Second Amended Complaint, ECF No.

[49] (“SAC”). Plaintiff also filed a motion for leave to file a sur-reply, ECF No. [57], which motion

was denied on June 17, 2020. ECF No. [58].

ECF No. [35], in which he brought two counts against Co-Defendant Officers only in their

individual capacities and no counts against Defendant. See ECF No. [35] at ¶¶ 3-5. On April 30,

2020, the Court entered an Omnibus Order, ECF No. [48], denying Co-Defendant Officers’ motion

to dismiss that pleading. On May 4, 2020, Plaintiff filed the instant complaint in which he added

Defendant as a new party Defendant, re-raised official capacity claims against Co-Defendant

Officers, and added two new counts. See ECF No. [49]. Although the Court struck the SAC that

same day because it was filed without Plaintiff having attained leave of court, see ECF No. [50],

on May 6, 2020, the Court later reinstated the pleading. See ECF No. [52].

This action arises out of Plaintiff’s involuntary detention for a mental health evaluation

after joggers in a public park complained to Co-Defendant Officers about Plaintiff’s alleged

behavior—brandishing a knife and shouting anti-gay slurs—while in the park. See generally ECF

No. [49]. Plaintiff alleges that he is homeless and lives out of his car. Id. at ¶ 23. He alleges that

on December 15, 2014, he was sitting outside his car in Mullins Park while preparing to make

breakfast, and he was singing an anti-gay reggae song.2 Id. at ¶¶ 11, 22. According to Plaintiff,

this had been his “routine for more than a year prior.” Id. at ¶ 12. He was situated approximately

60 feet away from the walkway where patrons walk or exercise. Id. at ¶ 11. He asserts that two

joggers, Tanika Beckford (“Beckford”) and Jermaine Jackson (“Jackson”), were offended by

Plaintiff’s singing. Id. at ¶ 13. He alleges that Jackson believed that Plaintiff was speaking to him,

but he ignored Jackson and continued to sing. Id. at ¶ 15. Jackson, in response, cursed at him and

attempted to physically attack Plaintiff but was restrained by Beckford, and they walked out of the

park while Plaintiff continued singing. Id. at ¶¶ 15-17, 22. According to Plaintiff, Beckford and

2 The song’s lyrics included references to shooting homosexuals, and it included derogatory terms

such as “faggot” and “batty boy.” See id. at ¶¶ 22, 27.

Jackson told him that they were going to call the police and have him arrested for singing the anti-

gay song. Id. at ¶ 18.

Sometime later, Officers Ramos and Manchula3 arrived on the scene. Ramos informed

Plaintiff that the police were called in response to a complaint that he was “in the park disturbing

the peace.” Id. at ¶ 19. Plaintiff alleges that, in a “calm cool and collected manner,” he informed

Ramos that he was not creating a disturbance but that he was “merely singing a song boom bye

bye in a [f]aggot boy head and the two patrons got upset and started cursing” at him. Id. at ¶ 20.

Bigwood later arrived, and he informed Plaintiff that Beckford and Jackson had complained that

he had been making anti-gay slurs while waiving a knife in his hand. Id. at ¶ 21. Plaintiff told

Bigwood that he possessed two knives, which he uses to prepare his meals, but he denied having

the knives out while he was singing because he had yet to prepare breakfast. Id. at ¶¶ 23-25. In

response to Bigwood’s question about how Beckford would know that he had a knife, Plaintiff

informed him that every day he is “in the park with [his] desk outside [his] car and that [he is]

either doing writing or preparing [his] meals.” Id. at ¶ 26.

After Bigwood listened to Plaintiff sing the song and spoke with Beckford and Jackson,

Bigwood reportedly informed Plaintiff that he believed Plaintiff needed a mental health

examination based upon the incident at hand and a previous incident eight months earlier in April

2014 at another park. Id. at ¶¶ 27-28. Plaintiff alleges that that previous incident involved “a park

manager wanting to officially trespass [Plaintiff] from the park” and that Officer Manchula had

been involved in that incident. Id. at ¶¶ 29-30. Plaintiff also alleges that that incident did not

involve complaints from patrons that he was shouting anti-gay slurs. Id. at ¶ 44. After speaking

3 Officer Manchula is not named as a defendant. Plaintiff alleges that he “had a history with”

Officer Manchula. See id. at ¶ 19.

with Officer Manchula, Bigwood again told Plaintiff that he believed that he needed a mental

evaluation because of his “constant singing of the antigay song in parks” and because he believed

that Plaintiff had waived his knife as Beckford claimed. Id. at ¶ 31. According to Plaintiff, Bigwood

asked him to voluntarily submit himself to a mental health examination, but he refused to go. Id.

at ¶¶ 33-34.

The SAC alleges that Bigwood, in response, ordered Ramos and Yopps to arrest Plaintiff

which they did. Plaintiff was handcuffed, placed in a police car, had his phone confiscated,4 and

was taken to a “mental facility.” Id. at ¶¶ 35-36. Plaintiff denies that he was confrontational with

the police, and Beckford and Jackson’s reports to the police were unreliable and not provided in a

sworn affidavit. Id. at ¶¶ 37-38. According to Plaintiff, Beckford and Jackson made various false

statements to police, such as Plaintiff shouting anti-gay slurs at Jackson, appearing hostile and

preparing to physically engage Jackson, and stabbing the air toward Jackson with a knife. Id. at ¶¶

38, 40-41. Plaintiff also denies telling Bigwood that he hated homosexuals and that he had shouted

anti-gay slurs. Id. at ¶ 42.

Plaintiff denies that his behavior varied from calm to angry, and he alleges that he never

expressed feelings of a conspiracy that random citizens and police were targeting him without

cause, which Bigwood allegedly reported. See id. at ¶ 43. He also denies telling Bigwood that he

is “not fucking going anywhere.” Id. at ¶ 45. According to Plaintiff, prior to December 15, 2014,

no mental health professional had certified that he met the criteria for involuntary examination. Id.

at ¶ 46. He further alleges that during his conversation with Bigwood, he expressed his belief that

Bigwood’s decision to arrest him under the Baker Act was a “conspiracy between Bigwood and

4 Plaintiff alleges that he was video recording the entire incident on his cell phone, but that when

he was released from the medical facility, the video was deleted from his phone, and only Officers

Ramos and Manchula knew that he was recording the incident. Id. at ¶¶ 35, 39.

the other officers, especially Manchula and the complainants, but specifically the officers because

of Plaintiff’s past and present pending lawsuits against Lauderhill police officers, especially

Manchula who Plaintiff had a pending lawsuit against,” and that the decision to arrest him was “to

retaliate against Plaintiff to cause him mental anguish and hardship and to disrupt and hinder

Plaintiff from timely filing a response in court in the case against Manchula[.]” Id. at ¶ 47.

The SAC asserts four counts based on First and Fourth Amendment violations.

Specifically, Count I asserts a Fourth Amendment violation against the Co-Defendant Officers.

See id. at ¶ 9. Count II asserts a First Amendment claim against the Co-Defendant Officers. See

id. at ¶¶ 3-6, 10. Count III asserts a Fourth and First Amendment claim against the Co-Defendant

Officers in their official capacities. See id. at ¶ 52. And Count IV asserts a Monell claim against

Defendant grounded on an alleged failure to train or inadequate training theory. See id. at ¶ 53.

According to Plaintiff, Defendant “failed to train and/or adequately train its officers,

including [Co-Defendant Officers] in [(1)] knowing what potential kinds of behaviors, actions and

related mental illnesses justifies a reason to believe that a person is mentally ill and warrants an

immediate mental examination (2) knowing what potential mental illness the person may have

based on their actions or behavior and how that suspected mental illness will cause them to refuse

voluntary mental examination or not be able to determine for their self whether examination is

necessary (3) knowing what potential behavior, actions or mental illness, without car[e] or

treatment, would likely cause the persons to suffer from neglect or refuses to care for their self and

that such neglect would cause a real and present threat of substantial harm to their well being and

its not apparent that such harm maybe avoided via the help of their family or friends (4) knowing

what kind of potential behavior, actions or mental illness would present a substantial likelihood

that without care or treatment to the person will cause serious bodily harm to their selves or others

in the near future as evidence[d] by re[c]ent behavior.” Id. at ¶ 57.

Plaintiff alleges that Defendant’s Field Training Program “No. IG-29” for its officers

regarding the mentally ill and Baker Act is “grossly inadequate training regarding probable cause”

for involuntary detention. Id. at ¶¶ 58-59. He adds that Defendant’s actions show “deliberate

indifference” to his constitutional rights. Id. The SAC seeks $1,000,000 in compensatory damages

from each Co-Defendant Officer, $5,000,000 from Defendant, and $2,000,000 in punitive damages

from each Co-Defendant Officer. Id. at ¶¶ 62-63.

Defendant now moves to dismiss all claims pled against the Co-Defendant Officers in their

official capacities and the alleged claim against “all police officers” employed by Defendant in

Count I. See ECF No. [53].5 Thus, Defendant seeks dismissal of Counts I-III. Additionally,

Defendant moves to dismiss the Monell failure to train claim against Defendant for failing to state

an actionable claim. Id.

Plaintiff responds with four arguments. First, he asserts that he does not raise an official

capacity claim against any Defendant in Counts I or II, and he states that Count I is not directed

against “all police officers” of the Lauderhill Police Department. ECF No. [55] at 1. Second, he

maintains that the official capacity claim in Count III is sufficiently pled. Id. at 2-3. Third, he

contends that he sufficiently pled a claim for failure to train in Count IV pursuant to Canton v.

Harris, 489 U.S. 378 (1989). Id. at 3-5. Fourth, he concedes that he “made a mistake” in paragraph

59 of the SAC regarding his representation that the Field Training program reportedly does not

give officers any authority to determine if a person has a mental illness. Id. at 5-6. However, he

5 Counts I and II do not purportedly seek liability against Co-Defendant Officers in their official

capacities. See ECF No. [49] at ¶¶ 9, 10. However, the SAC reflects generally that Plaintiff sues

them in their individual and official capacities. See id. at ¶¶ 3-5. Therefore, Defendant asserts that

it moves to dismiss Counts I and II “in an abundance of caution . . . to the extent Plaintiff has

asserted these claims against the Officers in their official capacities.” ECF No. [53] at 5.

stresses that the training program is inadequate regardless of his mistaken allegation. Id. at 6-7.

In reply, Defendant makes three arguments. First, it asserts that “in light of Plaintiff’s

clarification” of the scope of Counts I and II, it seeks “an order clarifying that Counts One and

Two shall not be construed to assert claims against any officer in his or her official capacity or any

claims against ‘all police officers of the Lauderhill Police Department.’” ECF No. [56] at 1.

Second, it argues that Count III should be dismissed because it fails to state a claim under any

Monell theory. Id. at 2-3. In particular, Defendant asserts that, as a municipality, it cannot be a

“final policymaker,” and that Co-Defendant Officers cannot be the final policymakers based on

the SAC’s express allegations. Id. It also argues that to the extent Count III is based on a failure to

train theory, it is “wholly duplicative” of Count IV. Id. at 3. Finally, Defendant asserts that any

claim predicated on a failure to train theory fails. Specifically, it maintains that Plaintiff’s analogy

of the instant case to Canton is misplaced, Plaintiff fails to identify a pattern of similar

constitutional violations by untrained employees, he fails to identify why the need for training was

“so obvious” that the “single incident” exception should apply, and he ignores the training policy

referenced in the SAC and attached to the Motion without addressing specifically how the training

policy is inadequate based on its contents. Id. at 3-6.

The Motion, accordingly, is ripe for consideration.

II. LEGAL STANDARDS

A. Motion to dismiss

A pleading in a civil action must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need

detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor

of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.

Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and

courts “are not bound to accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.

Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the

factual allegations in the complaint ‘obvious alternative explanations,’ which suggest lawful

conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Am. Dental

Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

A court considering a Rule 12(b) motion is generally limited to the facts contained in the

complaint and attached exhibits, including documents referred to in the complaint that are central

to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess,

Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four

corners of the complaint may still be considered if it is central to the plaintiff’s claims and is

undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.

2002)).

B. Pro se litigants

“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys

and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998). This leniency, however, does not confer on pro se litigants “a right to receive

special advantages not bestowed on other litigants. [The pro se litigant] must, for example, abide

by local rules governing the proper form of pleadings.” Procup v. Strickland, 760 F.2d 1107, 1115

(11th Cir. 1985). Further, courts cannot serve as de facto counsel for a party and cannot rewrite a

deficient pleading for the sake of sustaining an action. Jarzynka v. St. Thomas Univ. of Law, 310

F. Supp. 2d 1256, 1264 (S.D. Fla. 2004). The Court cannot simply “fill in the blanks” to infer a

claim, Brinson v. Colon, 2012 WL 1028878, at *1 (S.D. Ga. Mar. 26, 2012), as “it is not the Court’s

duty to search through a plaintiff’s filings to find or construct a pleading that satisfies Rule

8,” Sanders v. United States, 2009 WL 1241636, at *3 (N.D. Ga. Jan. 22, 2009); see Bivens v.

Roberts, 2009 WL 411527, at *3 (S.D. Ga. Feb. 18, 2009) (“[J]udges must not raise issues and

arguments on plaintiffs’ behalf, but may only construe pleadings liberally given the linguistic

imprecision that untrained legal minds sometimes employ.” (citing Miller v. Donald, 541 F.3d

1091, 1100 (11th Cir. 2008))). In determining whether a pro se litigant has stated a claim, “the

court ought not penalize the litigant for linguistic imprecision in the more plausible allegations,”

while keeping in mind that “wildly implausible allegations in the complaint should not be taken to

be true.” Miller, 541 F.3d at 1100.

III. DISCUSSION

Determining whether Defendant is entitled to dismissal of the claims at issue raises two

overarching issues. The first is whether Plaintiff has stated an actionable “official capacity” claim

in Count III. The second is whether Plaintiff has adequately stated a failure to train claim against

Defendant in Count IV. The Court will address each issue in turn.

A. Section 1983 and official capacity liability

“In contrast to individual capacity suits, when an officer is sued under Section 1983 in his

or her official capacity, the suit is simply ‘another way of pleading an action against an entity of

which an officer is an agent.’” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). “Such

suits against municipal officers are, therefore, in actuality, suits directly against the city that the

officer represents.” Id. “Because suits against a municipal officer sued in his official capacity and

direct suits against municipalities are functionally equivalent, there no longer exists a need to bring

official-capacity actions against local government officials, because local government units can be

sued directly (provided, of course, that the public entity receives notice and an opportunity to

respond).” Id. 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[.]”); Cook ex-rel. Estate of Tessier v. Sheriff of

Monroe Cty. Fla., 402 F.3d 1092, 1115 (11th Cir. 2005) (“Personal-capacity suits seek to impose

personal liability upon a government official for actions he takes under color of state law. Official-

capacity suits, in contrast, generally represent only another way of pleading an action against an

entity of which an officer is an agent. As long as the government entity receives notice and an

opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as

a suit against the entity. It is not a suit against the official personally, for the real party in interest

is the entity.”) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)).

B. Municipal liability under Section 1983 (Monell claim)

Any person acting under color of state law who violates a constitutional right of another is

liable for the injured party's losses. 42 U.S.C. § 1983. “Section 1983 provides a fault-based

analysis for imposing municipal liability; therefore, plaintiffs must establish that the city was the

person who caused them to be subjected to their deprivation.” Depew v. City of St. Marys, Ga., 787

F.2d 1496, 1499 (11th Cir. 1986). “[W]hen execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly be said to represent official

policy, inflicts the injury th[en] the government as an entity is responsible under § 1983.” Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

To impose Section 1983 municipal liability, a plaintiff must show: (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). “A plaintiff . . . has two

methods by which to establish a [municipal actor’s] policy: identify either (1) an officially

promulgated [ ] policy or (2) an unofficial custom or practice of the [municipal actor] shown

through the repeated acts of a final policymaker for the [municipal actor].” Grech v. Clayton Cnty.,

Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). “Under either avenue, a plaintiff (1) must show that

the local governmental entity . . . has authority and responsibility over the governmental function

in issue and (2) must identify those officials who speak with final policymaking authority for that

local governmental entity concerning the act alleged to have caused the particular constitutional

violation in issue.” Id. at 1330. “To establish a policy or custom, it is generally necessary to show

a persistent and wide-spread practice[; h]owever, the custom need not receive formal

approval.” Depew, 787 F.2d at 1499; see also Smith v. Mercer, 572 F. App’x 676, 679 (11th Cir.

2014) (“A plaintiff must identify a ‘consistent and widespread practice’ of constitutional

deprivations to prove local government liability for an unofficial custom.”); Carter v.

Columbus Consol. Gov’t, 559 F. App’x 880, 881 (11th Cir. 2014) (“the challenged practice or

custom must be ‘so pervasive as to be the functional equivalent of a formal policy’”)

(quoting Grech, 335 F.3d at 1330 n. 6).

Where a municipality’s failure to train or supervise its employees in a relevant respect

evidences a “deliberate indifference” to the rights of its inhabitants, such a shortcoming may

constitute a “policy or custom” actionable under § 1983. City of Canton v. Harris, 489 U.S. 378,

389 (1989). “In addition, . . . a municipality’s failure to correct the constitutionally offensive

actions of its employees can rise to the level of a custom or policy ‘if the municipality tacitly

authorizes these actions or displays deliberate indifference’ towards the misconduct.” Griffin v.

City of Opa–Locka, 261 F.3d 1295, 1308 (11th Cir. 2001) (citing Brooks v. Scheib, 813 F.2d 1191,

1193 (11th Cir. 1987)); Canton, 489 U.S. at 388 (rejecting city’s argument that municipal liability

can be imposed only where the challenged policy itself is unconstitutional, and finding that “there

are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for liability

under § 1983”). That is, “a Section 1983 claim for inadequate training exists only where the failure

to train amounts to deliberate indifference to the rights of persons with whom the police come into

contact.” Riley v. Newton, 94 F.3d 632, 638 (11th Cir. 1996) (quotation omitted); see

also Canton, 489 U.S. at 389 (“Only where a municipality’s failure to train its employees in a

relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a

shortcoming be properly thought of as a city ‘policy or custom’ that is actionable

under § 1983.”); Gold v. City of Miami, 151 F.3d 1346, 1350–51 (11th Cir. 1998) (“[A]n allegation

of failure to train or supervise can be the basis for liability under § 1983 . . . only where the

municipality inadequately trains or supervises its employees, this failure to train or supervise is a

city policy, and that city policy causes the employees to violate a citizen’s constitutional rights.”).

C. Count III

Because Plaintiff represents that he does not raise any official capacity claims in Counts I

or II, see ECF No. [55] at 1, and the Court likewise does not find that these counts assert such

claims, the Court first addresses Count III. This count alleges that Co-Defendant Officers, “in their

official capacity, violated Plaintiff’s Fourth Amendment right to be free from arrest and Baker

Acting without probable cause and his First Amendment right to free speech in a park when they

arrested and Baker Acted Plaintiff without probable cause pursuant to the City of Lauderhill’s

policy of failing to train, and or inadequately training its officers in knowing how to determine if

a person their officers would come in contact with meets the criteria for involuntary Baker Acting.”

ECF No. [49] at ¶ 52. As noted above, because this claim is brought against Co-Defendant Officers

in their official capacities, this is construed as a claim against Defendant. Busby, 931 F.2d at 776.

According to Defendant, Count III fails because there are no allegations that the Co-

Defendant Officers had final policymaking authority, as is required to state a claim based on

actions of a City employee. “The mere delegation of authority to a subordinate to exercise

discretion is not sufficient to give the subordinate policymaking authority. Rather, the delegation

must be such that the subordinate’s discretionary decisions are not constrained by official policies

and are not subject to review.” Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 1989) (citation

omitted).

Plaintiff responds that the City of Lauderhill “was the final policymaking authority[.]” ECF

No. [55] at 2. He adds, however, that “[a]ssuming arguendo that under count three [Plaintiff] was

required to claim that the officers ultimately Baker Acted him as the final policy or decision makers

of the City one can infer the same thing from the claim under counts three and its supporting facts.”

See id. (citing ECF No. [49] at ¶¶ 52, 54-60). He states that the Court should not dismiss Count

III, but instead should give him an opportunity to amend if Count III is insufficiently pled. Id. at

3.

In reply, Defendant argues that Count III fails because a municipality cannot be a final

policymaker. ECF No. [56] at 2 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83

(“Municipal liability attaches only where the decisionmaker possesses final authority to establish

municipal policy with respect to the action ordered. The fact that a particular official—even a

policymaking official—has discretion in the exercise of particular functions does not, without

more, give rise to municipal liability based on an exercise of that discretion. The official must also

be responsible for establishing final government policy respecting such activity before the

municipality can be held liable.”) (footnotes and internal citation omitted); see also Willingham v.

City of Valparaiso Fla., 638 F. App’x 903, 906–07 (11th Cir. 2016) (noting that a city commission

is not an official for purposes of Monell). Similarly, it maintains that the Co-Defendant Officers

cannot be the final policymaker for liability purposes.

This Court previously found that Plaintiff did not state an actionable Monell claim based

on allegations made against Co-Defendant Officers in their official capacities. See Watkins v.

Bigwood, No. 18-CV-63035, 2020 WL 1166720, at *5 (S.D. Fla. Mar. 11, 2020). Upon review,

the instant SAC likewise suffers from insufficient allegations. Plaintiff does not allege the identity

of the officials with final policymaking authority so as to render Defendant liable. See, e.g.,

Andrade v. Miami Dade Cty., No. 09-23220-CIV, 2011 WL 4345665, at *8-9 (S.D. Fla. Sept. 16,

2011) (dismissing Monell claim where plaintiff failed to identify a final policymaker, and rejecting

plaintiff’s argument that the identification of a policymaker is “unnecessary” because plaintiff

“apparently conflates the determination of official policymaker . . .with the necessity of alleging

an official policymaker as an element of stating § 1983 claim”); Quintanilla v. Miami-Dade Cty.,

No. 09-20821-CIV, 2009 WL 3334343, at *1 (S.D. Fla. Oct. 15, 2009) (dismissing claim for failing

to “allege the identity of the final policymaking authority responsible for the alleged custom or

policy that caused the Plaintiff’s injuries,” and noting that for section 1983 liability to attach to a

municipality, a plaintiff “must identify those officials who speak with final policymaking authority

for that local governmental entity concerning the act alleged to have caused the particular

constitutional violation in issue”) (citing Grech, 353 F.3d at 1329); Estate of Osorio v. Miami-

Dade Cty., 191 F. Supp. 3d 1366, 1370 (S.D. Fla. 2016) (dismissing section 1983 claim where

plaintiff provided no factual allegations of a single official or unofficial policy, failed to identify a

final policymaker, and only included conclusory allegations); see also Hill v. Clifton, 74 F.3d 1150,

1152 (11th Cir. 1996) (“Municipalities may be sued under 42 U.S.C. § 1983 if an official policy

or custom of the municipality violates constitutional requirements. Only those officials who have

final policymaking authority may render the municipality liable under § 1983. [Plaintiff] concedes

that [the police chief] was not the final policymaking authority in regard to the actions taken against

[plaintiff]. Thus the actions of [the police chief] cannot impose liability on the city.”) (internal

citations omitted).

The Court agrees that the City itself is not a final policymaker, and the SAC’s allegations

and the Response do not demonstrate that the Co-Defendant Officers are a final policymaker. The

“‘Eleventh Circuit has interpreted Monell’s policy or custom requirement to preclude § 1983

municipal liability for a subordinate official’s decisions when the final policymaker delegates

decisionmaking discretion to the subordinate, but retains the power to review the exercise of that

discretion.’ Accordingly, ‘[f]inal policymaking authority over a particular subject area does not

vest in an official whose decisions in the area are subject to meaningful administrative

review.’ Conversely, final policymaking authority may vest in an official whose decisions in an

area are not subject to meaningful administrative review.” Willingham, 638 F. App’x at 907

(internal citations omitted; emphasis in original). Merely because the SAC alleges that the Co-

Defendant Officers had discretion to determine if someone meets the criteria for involuntary

examination does not necessarily transform them into final policymakers. Count III, accordingly,

fails to state a claim.

D. Count IV

In Count IV, Plaintiff alleges that Defendant is liable for Co-Defendant Officers’ violation

of his Fourth Amendment and First Amendment rights because of Defendant’s policy of “failing

to train and or inadequate training its officers in knowing how to determine if a person they came

in contact with meets the criteria for involuntary Baker Acting. Such policy . . . amounts to

deliberate indifference to the constitutional rights of Plaintiff whom the officers came in contact

with.” ECF No. [49] at ¶ 53.

“[T]here are limited circumstances in which an allegation of a ‘failure to train’ can be the

basis for liability under § 1983.” Canton, 489 U.S. at 387. “[T]he inadequacy of police training

may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come into contact.” Id. at 388. “Only

where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate

indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city

‘policy or custom’ that is actionable under § 1983.” Id. at 389. In this respect, “‘[m]unicipal

liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of

action is made from among various alternatives’ by city policymakers. Only where a failure to

train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ . . . can a city be

liable for such a failure under § 1983.” Id. (internal citations omitted).

“Deliberate indifference can be established in two ways: by showing a widespread pattern

of similar constitutional violations by untrained employees or by showing that the need for training

was so obvious that a municipality’s failure to train its employees would result in a constitutional

violation.” Mingo v. City of Mobile, Ala., 592 F. App’x 793, 799-800 (11th Cir. 2014) (citing

Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011); Gold, 151 F.3d

at 1350–52). “To establish a city’s deliberate indifference, ‘a plaintiff must present some evidence

that the municipality knew of a need to train and/or supervise in a particular area and the

municipality made a deliberate choice not to take any action.’” Lewis v. City of W. Palm Beach,

Fla., 561 F.3d 1288, 1293 (11th Cir. 2009) (quoting Gold, 151 F.3d at 1350). “[A] pattern of

similar constitutional violations by untrained employees is ordinarily necessary to demonstrate

deliberate indifference for purposes of failure to train.” Weiland v. Palm Beach Cty. Sheriff’s

Office, 792 F.3d 1313, 1328 (11th Cir. 2015) (citation omitted).

This Court has previously found that a claim against a municipality for failure to train its

officers was deficient where it does not set forth specific facts regarding “(1) the nature of any

inadequate policies or procedures; (2) the factual basis – other than that this incident occurred –

for concluding that the City’s training is contrary to law; (3) the identity of any prior incidents

which would have placed the City on notice of any policy or training deficiencies; and/or (4) the

factual basis underlying assertions that the City employed incompetent officers.” Willis v. City of

Coral Springs, No. 16-CV-60959, 2016 WL 3747611, at *5 (S.D. Fla. July 13, 2016) (concluding

that failure to train claim was insufficiently pled).

Here, Plaintiff alleges that Defendant failed to provide sufficient training for its officers to

know “how to determine if a person they come in contact with meets the criteria for involuntary

Baker Acting.” ECF No. [49] at ¶ 53. In particular, he alleges as follows:

Prior to December 15, 2014 Defendant City of Lauderhill was aware that in order

for their officers to have probable cause to arrest and involuntarily Baker [A]ct a

person F.S.S. 394.463, involuntary examination, requires law enforcement to have

a reason to believe a person has a mental illness that is causing them to refuse

voluntary examination or not to be able to determine whether examination is

necessary, that without treatment or care the person would likely suffer neglect or

refuse to care for their self, that such would present a threat of substantial harm to

themselves and that law enforcement must determine if there’s a substantial

likelihood that without care or treatment the person will cause serious bodily harm

to himself or herself or other[s] in the near future evidenced by their re[c]ent

behavior.

. . .

The City of Lauderhill failed to train and or adequately train its officers, including

[Co-Defendant Officers], in [1] knowing what potential kinds of behaviors, actions

and related mental illnesses justifies a reason to believe that a person is mentally ill

and warrants an immediate mental examination (2) knowing what potential mental

illness the person may have based on their actions or behavior and how that

suspected mental illness will cause them to refuse voluntary mental examination or

not be able to determine for their self whether examination is necessary (3) knowing

what potential behavior, actions or mental illness, without car[e] or treatment,

would likely cause the persons to suffer from neglect or refuses to care for their self

and that such neglect would cause a real and present threat of substantial harm to

their well being and its not apparent that such harm maybe avoided via the help of

their family or friends (4) knowing what kind of potential behavior, actions or

mental illness would present a substantial likelihood that without care or treatment

to the person will cause serious bodily harm to their selves or others in the near

future as evidence[d] by re[c]ent behavior.

The City of Lauderhill’s police department’s Field Training program for its officers

regarding the mentally ill and Baker Act is grossly inadequate training regarding

probable cause to determine if someone should be involuntarily Baker Acted. . . .

The Lauderhill police department field training program for mentally ill/Baker Act

No. IG-29 is the only training the City of Lauderhill provides its officers regarding

the mentally ill and Baker Act. This training program [] does not give its officers

any authority to determine if a person has a mental illness, as is required by the

Baker Act, hence it does not provide its officers with any training as to how to

determine if a person is mentally ill. The training program [] merely assumes that

the officer is called for a mentally ill person. A determination regarding whether a

person is mentally ill is the first requirement of the Baker Act. The training program

goes on to give its officers full discretionary authority to determine if the person

meets the criteria for involuntary examination but it does not train its officers how

to make such discretionary determinations, such as what conduct, behavior or

actions qualifies as a potential mental illness and no training regarding how to

determine if the potential mental illness is causing the other Baker Act element in

the persons, which the Baker Act requires to be determined from the mental illness

prior to involuntary Baker Acting the person.

Id. at ¶¶ 55, 57-59. According to Defendant, Count IV fails because Plaintiff does not allege a

“pattern of similar constitutional violations by untrained employees” but rather focuses solely on

his December 15, 2014 involuntary commitment. ECF No. [53] at 7. Therefore, it submits that

Plaintiff has not offered any factual basis, other than that this incident occurred, to conclude that

the City’s training is inadequate, that there were prior incidents that would have placed Defendant

on notice of any policy or training deficiencies, or that Defendant employed incompetent officers.

Id. at 7-8. The Court agrees. See Willis, 2016 WL 3747611, at *4-5.

As in Willis, “conspicuously absent from the [SAC] are fact allegations relating to anything

other than the events of [December 15, 2014]. Such wholly unsupported conclusions that the City

failed to establish appropriate police procedures and train police personnel accordingly,

particularly in a state with a liberal public records law, are plainly insufficient.” Id. at 5 (citing

Larosa v. City of Sweetwater, 2014 WL 235449, at *2 (S.D. Fla. Jan. 22, 2014) (dismissing

complaint which “offer[ed] no factual allegations other than [plaintiff’s] own arrest and the

circumstances surrounding that arrest” to substantiate allegations of a policy or custom); Whitaker

v. Miami-Dade Cnty., 126 F. Supp. 3d 1313, 1327-28 (S.D. Fla. 2015) (dismissing federal failure

to train claims because “the facts alleged simply do not plausibly give rise to the inference that a

final policymaker for the County made a ‘decision not to train the officer[,]’ or that it was obvious

that their failure to do so would result in a constitutional deprivation”)).

Additionally, Defendant argues that to the extent Plaintiff alleges that the City’s Field

Training Program Incident Guide No. IG-29 is “inadequate” because it allegedly “does not give

its officers any authority to determine if a person has a mental illness, as is required by the [Baker]

Act,” his allegations are belied by Incident Guide No. IG-29 and a misstatement of the Baker Act

itself. See ECF No. [53] at 8-9 (citing ECF No. [53-1]). Defendant adds that the Field Training

Program “provides discrete criteria for an involuntary Baker Act, which not only tracks the

language of Section 394.463, Fla. Stat., but also provides concrete examples[.]” Id. at 9. In the

Response, Plaintiff “concedes” that he “made a mistake” concerning his allegations of the Field

Training Program, but that the “mistake” is cured by his additional allegations that point out what

the Fielding Training Program “did not train its officers in.” ECF No. [55] at 5-6. In reply,

Defendant asserts that Plaintiff fails to “specifically address how the City’s training policy is, in

fact, inadequate based on the contents of the policy[.]” ECF No. [56] at 6.

At this stage, the Court need not decide the ultimate issue of whether Defendant’s Field

Training Program is legally inadequate. The SAC fails to allege sufficiently, as an alternative basis

to set forth a failure to train claim, that the purported training deficiencies are “so obvious” that

Defendant’s failure to provide training in the manner Plaintiff seeks amounts to deliberate

indifference. See, e.g., Canton, 489 U.S. 378, 396–97 (“The claim in this case—that police officers

were inadequately trained in diagnosing the symptoms of emotional illness—falls far short of the

kind of ‘obvious’ need for training that would support a finding of deliberate indifference to

constitutional rights on the part of the city. . . . [T]he diagnosis of mental illness is not one of the

‘usual and recurring situations with which [the police] must deal.’ The lack of training at issue

here is not the kind of omission that can be characterized, in and of itself, as a ‘deliberate

indifference’ to constitutional rights.”) (O’Connor, J., concurring in part and dissenting in part;

internal citations omitted); Weiland, 792 F.3d at 1329 (affirming dismissal of failure to train claim

because although “evidence of previous incidents is not required to establish city policy if the need

to train and supervise in a particular area is ‘so obvious’ that liability attaches for a single incident,”

the complaint failed to allege that “the need for specialized training in the constitutional restrictions

on the use of force when dealing with mentally ill citizens is ‘so obvious’ that the failure to provide

Case No. 18-cv-63035-BLOOM/Valle

such training amounts to deliberate indifference”). In this respect, although Plaintiff alleges that

the City’s training policy is flawed, the SAC does not explain why these deficiencies would have

been so obvious under Fla. Stat. § 394.463 that Defendant’s actions amount to deliberate

indifference. Accordingly, Count IV fails at this time.

As a result of the foregoing analysis, dismissal of Counts HI and IV is appropriate.

However, because Defendant has not demonstrated that amendment is futile such that these claims

can have no potential basis as a matter of law, dismissal shall be without prejudice.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [53], is

GRANTED.

DONE AND ORDERED in Chambers at Miami, Florida, on July 6, 2020.

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Eric Watkins

7990 Hampton Blvd

Apt. 110

North Lauderdale, FL 33068

Email: kemet121671.ew@ gmail.com

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