Wade v. City of Miami Beach

United States District Court

for the

Southern District of Florida

Cody Wade, Plaintiff, )

)

v. ) Civil Action No. 21-22619-Civ-Scola

)

City of Miami Beach and others, )

Defendants. )

Order on Motion to Dismiss

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

(the “City”) motion to dismiss Count III of the complaint. (ECF No. 18.) The

Plaintiff filed an opposition (ECF No. 19), and the City filed a reply (ECF

No. 20). After careful consideration of the parties’ briefs and the relevant legal

authorities, the Court grants the City’s motion to dismiss Count III. (ECF

No. 18.)

1. Background

In late June 2019, Cody Wade was stopped by police outside of a

nightclub in Miami Beach. (ECF No. 1 at ¶ 14.) The police had been called by

the nightclub, as Wade may have been trespassing there. (Id. at ¶¶ 14–15.)

After a discussion, Officers Garcia and Rodriguez let Wade go on his way;

however, Wade had not yet crossed the street when Officer Garcia grabbed him

and forced him to the ground. (Id. at ¶¶ 16–17.) While Wade was on the

ground, Officer Rodriguez struck him on the head five times until he lost

consciousness. (Id. at ¶¶ 18–19.) Wade was not immediately given medical

attention, although he was later transported by ambulance to the hospital. (Id.

at ¶¶ 20–22.)

2. Legal Standard

A. Motion to Dismiss

A court considering a motion to dismiss must accept all of the

complaint’s allegations as true, construing them in the light most favorable to

the plaintiff. See 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 she fails to nudge her “claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570.

B. Municipal Liability Under 42 U.S.C. § 1983

Any person acting under the color of state law who violates a

constitutional right of another is liable for the injured party’s losses. See 42

U.S.C. § 1983. Moreover, this liability applies to a municipality when

“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[.]” Monell v. New York City Dep’t of Social Services, 436 U.S.

658, 694 (1978). However, there are limits on this liability. “[A] municipality

cannot be subjected to § 1983 liability based upon theories akin to respondeat

superior[;] . . . only deprivations arising from municipal custom or policy can

result in municipal liability.” Anderson v. City of Atlanta, 778 F.2d 678, 685

(11th Cir. 1985) (internal citations omitted) (citing Monell, 436 U.S. at 694). In

other words, “[w]hen an injury is inflicted as the result of governmental policy

or custom, the government is responsible under § 1983.” Id.

In particular, to adequately state a claim for municipal liability under

§ 1983, a plaintiff must plead (1) that their constitutional rights were violated,

(2) the municipality had a “custom or policy that constituted deliberate

indifference to that constitutional right,” and (3) that policy or custom caused

the violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing

City of Canton v. Harris, 489 U.S. 378, 388 (1989)). And to allege a “custom or

policy,” a plaintiff must plead either “(1) an officially promulgated policy or

(2) an unofficial custom of practice shown through the repeated acts of a final

policymaker for the county.” Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th

Cir. 2003). To meet the “deliberate indifference” standard, a plaintiff must

allege 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.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).

3. Analysis

Wade’s complaint does not state a claim for municipal liability under

§ 1983, as it does not allege a “custom or policy.” As an initial matter, Wade

has not alleged an officially promulgated policy. Rather, Wade alleges that the

City has an “unwritten policy or custom.” (ECF No. 19 at 4.) An unwritten

policy can constitute an unofficial custom, but it cannot be considered an

“officially promulgated policy.” See Grech, 335 F.3d at 1329. As Wade fails to

identify any officially established policy in Miami Beach, the Court holds that

Wade has failed to allege an official policy. See Moore v. Miami-Dade Cnty., 502

F. Supp. 2d 1224, 1231 (S.D. Fla. 2007) (Gold, J.) (holding that the plaintiff

failed to plead an official policy by not identifying “any County ordinance,

resolution, or administrative order”).

Therefore, Wade may only proceed against the City by alleging “an

unofficial custom or practice . . . shown through repeated acts of a final

policymaker[.]” Id. at 1230 (quoting Grech, 335 F.3d at 1329). This custom

must be a “widespread practice that . . . is so permanent and well settled as to

constitute a custom or usage with the force of law.” Brown v. City of Fort

Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (cleaned up) (quoting St.

Louis v. Proprotnik, 485 U.S. 112, 127 (1988)). As the custom must be

widespread and repeated, “random acts or isolated incidents are insufficient to

establish a custom[.]” Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th

Cir. 1986); see also Casado v. Miami-Dade Cnty., 340 F. Supp. 3d 1320, 1328

(S.D. Fla. 2018) (O’Sullivan, M.J.) (“[T]he plaintiff must allege a ‘pattern’ of

excessive force including specific facts of numerous incidents[.]”). To establish

a pattern, the plaintiff must show other incidents involving facts “substantially

similar to the case at hand.” See Bowe v. City of Hallandale Beach, No. 0:16-

CIV-60993, 2017 WL 5643304, at *5 (S.D. Fla. Aug. 7, 2017) (Dimitrouleas, J.);

see also Gurrera v. Palm Beach Cnty. Sheriff’s Office, 657 F. App’x 886, 893

(11th Cir. 2016) (“A pattern of similar constitutional violations is ordinarily

necessary.”) (cleaned up) (quoting Craig v. Floyd Cnty., 643 F.3d 1306, 1310

(11th Cir. 2011)). Moreover, the plaintiff must allege that the final policymaker

for the county “know[s] about [the custom] but failed to stop it.” Brown, 923

F.2d at 1481.

Wade has not adequately alleged a repeated, widespread unofficial

custom sufficient to survive a motion to dismiss. Merely alleging that the City

has such a widespread practice is not sufficient. See Sanchez v. Miami-Dade

Cnty., No. 06-21717-CIV, 2007 WL 1746190, at *3 (S.D. Fla. Mar. 28, 2007)

(King, J.) (holding that unsupported “vague allegation[s]” are not sufficient to

plead an official custom or practice). Indeed, words on a page, alone, do not

create truth or permit an inference of truth. See Iqbal, 556 U.S. at 678 (holding

that the plaintiff must plead factual content to permit a court to “draw the

reasonable inference” that the defendant is liable).

In an attempt to show a repeated pattern and demonstrate that the City

was on notice, Wade points to three news articles, alleging that these articles

demonstrate a “history of reports of excessive use of force incidents” and a

“history of misconduct of its officers.” (ECF No. 14 at ¶¶ 77–78 & n.1–2.) The

news articles detail the following facts:

(1) In 2010, the ACLU sued the City and two police officers, alleging a

practice of targeting gay men and arresting those who observe or

document police misconduct;

(2) In 2015, the City suspended a detective for multiple violent

confrontations; and

(3) In 2018, an unidentified Miami Beach officer used profanity and

wished harm to individuals riding motorbikes.

(See ECF No. 14 at ¶¶ 77–78 & n.1–2.)

These articles fail to permit a reasonable inference of widespread

practices “so permanent and well settled as to constitute a custom or usage

with the force of law.” Brown, 923 F.2d at 1481. Rather, these are three largely

outdated, isolated incidents. See Depew, 787 F.2d at 1499. Moreover, the

articles largely do not concern conduct similar to the conduct alleged here—the

failure of the City to adequately train and supervise employees in order to

prevent the unlawful use of violent force and the City’s failure to adequately

investigate and punish the use of excessive force. (ECF No. 1 at ¶¶ 24–25, 72–

73.) The first article involves an eleven-year-old allegation that the City

unlawfully targeted and arrested gay men who observed and reported police

misconduct, and the third article involves a three-year-old incident in which an

officer yelled inappropriate profanities and did not otherwise use force. While

the second article involves the alleged use of unlawful force, the activities by

one officer six years ago cannot raise an inference of a widespread custom.

Moreover, other than the three articles discussed above, Wade does not

allege any facts concerning the City’s alleged failure to hire, train, or supervise

in a manner that is tantamount to deliberate indifference. See Sanchez, 2007

WL 1746190, at *2 (holding that an “allegation that the county did not train

and supervise its officers with no specifics is not sufficient” to plead a

widespread custom). To survive a motion to dismiss, a plaintiff must allege

facts permitting an inference that the City knew of a need to train or supervise

but made a deliberate choice not to do so. See Gold, 151 F.3d at 1350. This

requires alleging either actual knowledge or multiple similar incidents, which

permit an inference of such knowledge and apathy. See Rivas v. Figueroa, No.

11-23195-Civ, 2012 WL 1378161, at *1, 3 (S.D. Fla. Apr. 20, 2012) (Scola, J.)

(denying motion to dismiss where the plaintiffs alleged “in great detail, sixteen

alleged instances” of officers who engaged in similar conduct and received no

disciplinary action); Vasquez v. City of Miami Beach, 895 F. Supp. 2d 1275,

1277–78 (S.D. Fla. 2012) (denying motion to dismiss where the plaintiff alleged

facts relating to thirty-eight incidents involving excessive force). In total, Wade

argues that the City’s need to train and supervise is “obvious” and that the

City’s failure to do so can be inferred by “an environment where excessive force

repeatedly takes place.” (ECF No. 19.) However, Wade neither alleges facts

regarding the City’s training or supervising nor pleads facts permitting an

inference of the City’s failure to train, supervise, or investigate.! For this

reason, Wade has not adequately pled a “custom or policy that constituted

deliberate indifference[.|” McDowell, 392 F.3d at 1289.

4. Conclusion

For the reasons stated above, the Court grants the City’s motion to

dismiss Count III of the complaint (ECF No. 18). Moreover, while Wade

requested leave to amend if the Court granted the motion to dismiss (ECF

No. 19 at 8), such request is improper and denied. See Mandala v. Tire Stickers,

LLC, 829 F. App’x 896, 902-03 (11th Cir. 2020); see also Newton v. Duke

Energy Florida, LLC, 895 F.3d 1270, 12777 (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.”).

Done and ordered in Miami, Florida, on October 5, 2021.

Robert N. Scola, Jr.

United States District Judge

1 Furthermore, Wade has not identified any City official or policymaker who “openly or tacitly

approved of the alleged actions of the police officers[.]” Sanchez, 2007 WL 1746190, at *3.