# Perera-Gonzalez v. Rodriguez

> District Court, S.D. Florida · May 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10119137

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** May 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10119137

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10119137. Public record. Not legal advice.