Perera-Gonzalez v. Rodriguez

United States District Court

for the

Southern District of Florida

Eddy Perera-Gonzalez, Plaintiff, )

)

v. )

Civil Action No. 20-23973-Civ-Scola

)

Jorge Rodriguez and City of Hialeah, )

Florida, Defendants. )

Order Granting Motion to Dismiss and Motion to Strike

Plaintiff Eddy Perera-Gonzalez seeks damages from Defendants Jorge

Rodriguez, a law enforcement officer, and the City of Hialeah (the “City”),

Rodriguez’s municipal employer, for injuries Perera-Gonzalez alleges he

sustained when Rodriguez shot him in the neck. (1st Am. Compl. (“Compl.”), ECF

No. 16.) The City has filed a motion to dismiss (City’s Mot., ECF No. 19), arguing

Perera-Gonzalez fails to state a claim for failure to train, failure to supervise, or

negligent hiring. Rodriguez answered the complaint but also filed a motion to

strike Perera-Gonzalez’s claim for punitive damages (Rodriguez’s Mot., ECF No.

23). Perera-Gonzalez opposes both motions (Pl.’s Resp. to the City, ECF No. 25;

Pl.’s Resp. to Rodriguez, ECF No. 28) and the City and Rodriguez have both

timely replied (City’s Reply, ECF No. 32; Rodriguez’s Reply, ECF No. 33). After

careful review, the Court agrees with the Defendants and grants both the City’s

motion to dismiss (ECF No. 19) and Rodriguez’s motion to strike (ECF No. 23).

1. Background1

Suffering from depression and suicidal thoughts, in October 2017, Perera-

Gonzalez grabbed a machete and climbed on top of the roof of a residence in

Hialeah, Florida. (Compl. ¶¶ 7–10.) While on the roof, Perera-Gonzalez cut his

own throat with the machete. (Id. ¶ 11.) Members of the Hialeah Police

Department responded to the scene and surrounded the building. (Id. ¶ 12, 14.)

Officers V. Estrada, E. Gonzalez, Y. Rodriguez, M. Lopez, and O. Mejia

maintained a secure perimeter around the building while Defendant Rodriguez

held a position between thirty and fifty feet from Perera-Gonzalez. (Id. ¶¶ 13–14.)

While Perera-Gonzalez was seated on the roof and not holding the machete,

Rodriguez fired a single shot at Perera-Gonzalez, striking him in the neck. (Id. ¶¶

15–16.) Perera-Gonzalez was taken to the hospital for his injuries and placed

1 The Court generally accepts the Plaintiff’s factual allegations as true for the purposes of

evaluating the Defendants’ motions. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d

1364, 1369 (11th Cir. 1997).

under arrest. (Id. ¶ 17.) Members of the Hialeah Police Department told Perera-

Gonzalez’s family that he had been shot “in order to save him.” (Id. ¶ 28.)

A “Complaint/Arrest Affidavit,” prepared by either Rodriguez or the other

officers, charged Perera-Gonzalez with armed burglary and assault or battery;

resisting an officer with violence; and aggravated assault on a law enforcement

officer. (Id. ¶¶ 18–20.) The criminal complaint, or arrest affidavit, relays that,

when the officers arrived on scene, Rodriguez was bleeding from his neck and

making motions of throwing the machete at the officers. (Id. ¶¶ 19.) The

document goes on to say that Rodriguez, who was directly below Perera-

Gonzalez, gave repeated warnings for Perera-Gonzalez to drop the machete. (Id.)

Continuing, the affidavit recounts that Perera-Gonzalez then swung the machete

“in a throwing motion” towards Rodriguez who then fired one shot. (Id.)

According to that complaint, the officers did not know at that time whether

Perera-Gonzalez had been struck by that shot. (Id.) Ultimately, the Miami-Dade

State Attorney dismissed the initial three charges and charged Perera-Gonzalez,

via information, with burglary of an unoccupied dwelling with aggravated

assault. (Id. ¶ 22.)

A video of the incident, broadcast on the nightly news, depicts Perera-

Gonzalez, sitting on the roof, disoriented. (Id. ¶ 25.) In the video, Perera-Gonzalez

is not holding a machete or making any motions of throwing or swinging a

machete. (Id.) The video also shows Perera-Gonzalez grabbing his neck when he

was shot, with blood appearing all over his body. (Id.) According to Perera-

Gonzalez, the news footage “clearly reflects an unarmed man who is not

threatening anyone,” and who is then “shot in the neck for no apparent reason.”

(Id. ¶ 26.) Perera-Gonzalez maintains that “from Sergeant J. Rodriguez’s vantage

point, it was clear Mr. Perera-Gonzalez was not a threat to the Sergeant or to any

other officer on the scene.” (Id. ¶ 27.)

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all the complaint’s allegations as true,

construing them in the light most favorable to the plaintiff. Pielage v. McConnell,

516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a

short and plain statement of the claim showing that the pleader is entitled to

relief, a plaintiff must nevertheless articulate “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “But where the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has alleged—but it has

not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal punctuation omitted). A

court must dismiss a plaintiff’s claims if it fails to nudge its “claims across the

line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Federal Rule of Civil Procedure 12(f), on the other hand, provides that the

Court may “strike from a pleading . . . any redundant, immaterial, impertinent,

or scandalous matter.” Fed. R. Civ. P. 12(f). A motion to strike is a “drastic

remedy to be resorted to only when required for the purposes of justice.” Slone v.

Judd, 2009 WL 5214984, at *1 (M.D. Fla. Dec. 29, 2009) (quoting Augustus v.

Bd. of Pub. Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir.

1962)).

3. Analysis

A. Perera-Gonzalez fails to state a claim against the City for failure to

train or supervise.

The City argues Perera-Gonzalez’s complaint fails to state a claim against

it for a failure to train or supervise because it does not set forth facts that would

support either a finding of an express official custom or policy or a showing of

deliberate indifference. (E.g., City’s Mot. at 1.) In response, Perera-Gonzalez

insists his allegations are sufficient, rejecting the City’s contention that the

allegations are conclusory or lacking in any way. (Resp. to City at 4–5.) After

review, the Court agrees with the City: Perera-Gonzalez has not stated a claim

against the City for either a failure to train or supervise.

“In limited circumstances, a local government’s decision not to train

certain employees to avoid violating citizens’ rights may rise to the level of an

official government policy for purposes of § 1983.” Weiland v. Palm Beach County

Sheriff's Office, 792 F.3d 1313, 1328 (11th Cir. 2015) (cleaned up). Ordinarily,

though, “a pattern of similar constitutional violations by untrained employees is

. . . necessary to demonstrate deliberate indifference for purposes of failure to

train.” Id.; see also Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir.1998)

(“[The Eleventh Circuit repeatedly has held that without notice of a need to train

or supervise in a particular area, a municipality is not liable as a matter of law

for any failure to train and supervise.”)

Perera-Gonzalez argues his allegations in paragraphs twenty-nine and

forty-one of his complaint sufficiently set forth facts showing a “pattern of similar

constitutional violations by untrained employees.” (Pl.’s Resp. to City at 4.) The

Court disagrees. In these paragraphs Perera-Gonzalez states only that the City

knew “its officers would regularly encounter individuals suffering from

depression and suicidal behavior” and that, because of its failure to train, “city

police officers would use unnecessary, and potentially deadly, force on [such]

individuals.” (Compl. ¶¶ 29, 41.) These allegations are wholly conclusory and

devoid of any actual supporting facts: they simply amount to bare assertions

about an unspecified number of people who supposedly experienced

unnecessary force, of some unspecified type, during an unknown period of time.

This is not enough. “Instead, it is clear that the claim outlined [here] arises from

a single incident and the actions of [one officer].” Weiland, 792 F.3d at 1329.

Even if a plaintiff is unable to establish a pattern, however, he may still

state a claim for failure to train or supervise by setting forth facts that show “the

need to train and supervise in a particular area is ‘so obvious’ that liability

attaches for a single incident.” Id. (quoting Gold, 151 F.3d at 1352). Perera-

Gonzalez maintains he has met this standard by alleging (1) he “was illegally

shot by [Rodriguez] while sitting on a roof top, having just cut his own throat

with a machete and not threatening the officer”; and (2) “the need for specialized

training and supervision of armed officers interacting with suicidal persons is ‘so

obvious’ that it amounts to a deliberate indifference to the Constitutional rights

of the persons with whom police have contact.” (Pl.’s Resp. to City at 5.) Again,

though, Perera-Gonzalez’s allegations are not enough. “[C]ontentions ‘that police

officers were inadequately trained in diagnosing the symptoms of emotional

illness[ ]fall[] 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.’” Young v. City of Augusta, Ga. Through DeVaney, 59 F.3d 1160, 1172

(11th Cir. 1995) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 396 (1989)

(O’Connor, J., concurring in part and dissenting in part)); see also Weiland, 792

F.3d at 1329 n. 20 (citing Wright v. Sheppard, 919 F.2d 665, 674 (11th

Cir.1990), for the proposition that “a sheriff’s department was not liable for a

deputy’s act where no evidence of a history of widespread prior abuse put the

department on notice of the need for improved training or supervision”) (cleaned

up). Without more, Perera-Gonzalez’s allegations do not establish the City’s

liability with respect to his failure-to-train and failure-to-supervise counts.

B. Perera-Gonzalez fails to state a claim against the City for negligent

hiring.

Perera-Gonzalez also insists his negligent-hiring allegations are sufficient.

Without citing any supporting caselaw, he points to his allegations that

Rodriguez had (1) a “prior record relating to the use of excessive force and

veracity” and (2) a “lack of experience in responding to suicidal and depressed

persons” as demonstrating the City’s deliberate indifference in hiring Rodriguez.

(Pl.’s Resp. to City’s Mot. at 6.) After review, the Court finds Perera-Gonzalez’s

allegations fall far short of asserting a plausible claim for negligent hiring under

42 U.S.C. § 1983.

The standard for establishing a negligent-hiring claim under § 1983 is

exacting: “Only where adequate scrutiny of an applicant’s background would

lead a reasonable policymaker to conclude that the plainly obvious consequence

of the decision to hire the applicant would be the deprivation of a third party’s

federally protected right can the official’s failure to adequately scrutinize the

applicant’s background constitute ‘deliberate indifference.’” Bd. of County Com’rs

of Bryan County, Okl. v. Brown, 520 U.S. 397, 411 (1997). Mere indifference

alone, then, is not enough. Id. Rather, “[t]o impose § 1983 liability based on a

hiring decision, a plaintiff must demonstrate that the municipal actor

disregarded a known or obvious consequence of hiring the applicant.” Griffin v.

City of Opa-Locka, 261 F.3d 1295, 1313 (11th Cir. 2001).

Under this standard, Perera-Gonzalez’s claim fails because it is based on

nothing more than conclusory allegations, unsupported by any actual facts. For

example, Perera-Gonzalez’s points to Rodriguez’s “prior record relating to use of

excessive force and veracity” and his “lack of experience in responding to suicidal

and depressed persons” as sufficiently detailing “the specific ways that Sergeant

Rodriguez was unfit.” (Pl.’s Resp. at 6 (quoting Compl. ¶ 55).) From these

allegations, however, the Court has no way of knowing what actual background

details should have led the City to conclude that the “plainly obvious

consequence” of hiring Rodriguez would have resulted in the deprivation of the

constitutional rights alleged in this case. Further, although Perera-Gonzalez

informs that Rodriguez has a record “relating to [the] use of excessive force and

veracity” (emphasis added), he doesn’t contend any actual misconduct and

certainly doesn’t detail what, exactly, that misconduct might have even been. In

other words, Perera-Gonzalez fails to supply allegations that would establish

“that this officer was highly likely to inflict the particular injury suffered by the

plaintiff” in this case. Brown, 520 U.S. at 412 (emphasis in original).

Perera-Gonzalez’s allegation that the “City’s failure to check [Rodriguez’s]

background amounted to deliberate indifference to the risk that a violation of

Plaintiff’s [c]onstitutional rights would follow the hiring decision” (Compl. ¶ 55)

fares no better. Instead, it amounts to only a formulaic recitation of the elements

of his claim: it is purely conclusory and devoid of factual support. To be sure,

the Court finds nothing in Perera-Gonzalez’s allegations that would establish

that Rodriguez’s record, if reviewed, would have necessarily alerted the City that

the complaint’s alleged constitutional violations would be the plainly obvious

consequence of its hiring decision. See Brown, 520 U.S. at 414 (concluding that

“inadequate scrutiny” of a deputy’s record “cannot constitute ‘deliberate

indifference’” to the violation of a plaintiff’s constitutional rights unless facts

show the deputy’s alleged use of excessive force would have “necessarily” “been a

plainly obvious consequence of the hiring decision”).

In sum, Perera-Gonzalez’s allegations fall far short of establishing a

negligent-hiring claim against the City.

C. The Court strikes Perera-Gonzalez’s claim for punitive damages

against Rodriguez.

Perera-Gonzalez maintains he is entitled to punitive damages because the

allegations of his complaint “successfully plead excessive force and therefore

show [Rodriguez] had a serious disregard for the consequences of his actions

when he shot an unarmed man who was not a threat to anyone and suffering

from a suicidal and depressive episode.” (Pl.’s Resp. to Rodriguez’s Mot. at 3.)

According to Perera-Gonzalez, then, allegations sufficient to state a claim for

excessive force, by definition, are sufficient to state a claim for punitive damages.

The Court disagrees and further concludes that Perera-Gonzalez’s bare

allegations regarding his entitlement to punitive damages are otherwise

conclusory.

“Punitive damages are appropriate under § 1983 ‘when the defendant’s

conduct is shown to be motivated by evil motive or intent, or when it involves

callous or reckless indifference to the federally protected rights of others.’”

Wright, 919 F.2d at 670 (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). In

evaluating a Fourth Amendment excessive-force claim, on the other hand, “the

question is whether the officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them, without regard to their underlying

intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). That is, “[a]n

officer’s evil intentions will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer’s good intentions make an

objectively unreasonable use of force constitutional.” Id. And so, therefore, an

officer could quite conceivably use excessive force, in violation of the Fourth

Amendment, without having acted with evil motive or intent or even callous or

reckless indifference. Perera-Gonzalez’s premise, then, that the allegations that

state a claim for excessive force necessarily state a claim for punitive damages is

unavailing.2

Next, Perera-Gonzalez cites to paragraph thirty-seven of his complaint to

show that he sufficiently alleged “Rodriguez acted maliciously and with callous

and reckless indifference.” (Pl.’s Resp. to Rodriguez’s Mot. at 2.) Paragraph

thirty-seven, in turn, recites just that: “Rodriguez was acting maliciously with

callous and reckless indifference towards the Plaintiff’s federally protected right.”

2 Perera-Gonzalez’s reliance on Atkinson v. Israel, 1:15-CV-61716-UU, 2015 WL 13239188, at *5

(S.D. Fla. Dec. 10, 2015) (Ungaro, J.) is unpersuasive. In that case the court pointedly noted that

the “[p]laintiff’s version of the facts indicate, quite clearly, that the [o]fficers’ use of force was

grossly—if not exceptionally—disproportionate to the . . . need of such force.”

(Compl. ¶ 37.) This allegation is not enough. Instead, the complaint must go

beyond such bare conclusory allegations and “plead specific acts” demonstrating

the entitlement to punitive damages. Black v. Kerzner Int’l Holdings, Ltd., 12-

60301-CIV, 2013 WL 11971270, at *2 (S.D. Fla. May 20, 2013) (Snow, Mag. J.).

The other allegations Perera-Gonzalez points to do not salvage his claim.

For example, in his complaint, Perera-Gonzalez describes news footage3 that

“clearly reflects an unarmed man who is not threatening anyone be shot in the

neck for no apparent reason.” (Compl. ¶ 26.) Perera-Gonzalez further alleges

that, from “Rodriguez’s vantage point, it was clear that Mr. Perera-Gonzalez was

not a threat to [Rodriguez] or to any other officer on the scene.” (Id. ¶ 27.) First,

while the video may reflect one vantage point indicating Perera-Gonzalez was not

a threat, it offers no support for Perera-Gonzalez’s bare conclusion that

Rodriguez, positioned elsewhere, acted maliciously or with callous or reckless

indifference. While the facts alleged might allow for a finding that Rodriguez

acted unreasonably, any more than that simply cannot be inferred from these

allegations.

Likewise, Perera-Gonzalez’s allegations regarding what he alleges is a false

and misleading “Complaint/Arrest Affidavit” are equally unavailing. First, there

are no facts alleged to support the supposition that Rodriguez purposely

fabricated the affidavit. Further, Perera-Gonzalez does not even allege that

Rodriguez himself was necessarily responsible for drafting what he describes as

the misleading portions of the affidavit. Instead, Perera-Gonzalez posits that the

affidavit was either prepared by Rodriguez or prepared on his behalf and that it

was also prepared “in concert with the other officers” who had been present at

the scene. Next, Perera-Gonzalez fails to supply facts that would establish the

falsity of the affidavit, either in part or in its entirety. Rather, he conclusory

maintains it is “false, misleading and a complete fabrication” without any detail

or factual support. And, ultimately, much of what is presented in the affidavit is

actually wholly consistent with the complaint’s allegations. Lastly, Perera-

Gonzalez fails to explain, in any event, how Rodriguez’s supposedly fabricating

3 The Court notes that Rodriguez filed what he describes as television footage of the incident. The

Court has no way of knowing if this is the same news footage Perera-Gonzalez references in his

complaint. Further, Rodriguez does not describe the video as being either central to Perera-

Gonzalez’s complaint or undisputed. Lastly, the video is of poor quality, the people depicted are

speaking Spanish, and no translation has been provided. In consideration of all these factors, the

Court declines to consider the video in rendering its decision on Rodriguez’s motion. C.f. Jones v.

Automobile Ins. Co. of Hartford, Connecticut, 917 F.2d 1528, 1531–32 (11th Cir.1990) (“It is

within the judge’s discretion to decide whether to consider matters outside of the pleadings that

are presented to the court.”); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.2005) (recognizing

that exhibits filed in conjunction with a motion to dismiss may be considered provided they are

central to the complaint and undisputed).

an affidavit, after allegedly applying the excessive force he is accused of, would

result in punitive damages in conjunction with the excessive-force claim itself.

Ultimately, then, based on the above analysis, the Court agrees that

Perera-Gonzalez’s punitive-damages demand should be struck from the

complaint.

4. Conclusion

For the reasons set forth above, the Court dismisses, with prejudice,

Perera-Gonzalez’s claims against the City (counts two, three, and four) because

he has failed to a claim under Rule 12(b)(6); and strikes Perera-Gonzalez’s

demand for punitive damages against Rodriguez because it is unsupported by

the facts alleged in his complaint. Accordingly, the Court grants both the City’s

motion to dismiss (ECF No. 19) as well as Rodriguez’s motion to strike (ECF No.

23).

Further, the Court denies Perera-Gonzalez’s requests for leave to amend,

inserted, seemingly, as afterthoughts in his opposition to both motions (P1.’s

Resp. to the City at 4, 7; Pl.’s Resp. to Rodriguez at 5): these requests are

procedurally defective as well as lacking in substantive support. See Newton v.

Duke Energy Florida, LLC, 895 F.3d 1270, 1277 (11th Cir. 2018) (“[W]here a

request for leave to file an amended complaint simply is imbedded within an

opposition memorandum, the issue has not been raised properly.”); Avena v.

Imperial Salon & Spa, Inc., 740 Fed. App’x 679, 683 (11th Cir. 2018) (“[W]Je’ve

rejected the idea that a party can await a ruling on a motion to dismiss before

filing a motion for leave to amend.”) (noting also that “a motion for leave to

amend should either set forth the substance of the proposed amendment or

attach a copy of the proposed amendment”) (cleaned up).

Finally, the Clerk is directed to terminate the City of Hialeah from this

case; the case will proceed, on count one, against Rodriguez only.

Done and ordered at Miami, Florida, on May 19, 2021.

(oe N. fA Jr.

United States District Judge