# Bruton v. City of Homestead

> District Court, S.D. Florida · October 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10119793

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 18, 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/10119793

## How later opinions describe it (automated extraction)

- holding that “a plaintiff could not establish a Monel! claim when he could not point to any other incidents involving similar facts”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-23960-GAYLES/OTAZO-REYES

SABRIAN BRUTON,

Plaintiff,

v.

CITY OF HOMESTEAD, a municipal
subdivision of the State of Florida,
SHAVAR SIMMONS, CARLOS
LAGO, ENGELBERT GUZMAN,
CHRISTIAN DEJOHN, KEVIN
CARVAJAL, and EILEEN CALVO,

Defendants.
______________________________________/

ORDER

THIS CAUSE comes before the Court on Defendants’, the City of Homestead (the “City”),
Officer Eileen Calvo, and Officer Christian Dejohn (collectively, “Defendants”), Motion to
Dismiss (the “Motion”) [ECF No. 5]. The Court has considered the Motion and the record and is
otherwise fully advised. For the reasons that follow, the Motion is granted.
BACKGROUND1
I. Factual Background2
On July 6, 2018, Officer Dejohn initiated a traffic stop on Plaintiff Sabrian Bruton’s vehicle
for an allegedly improper license plate cover. Although Plaintiff complied with the traffic stop,
Officer Dejohn approached Plaintiff’s vehicle with his firearm drawn. Officer Calvo deescalated

1 As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiff’s Complaint as true. See Brooks
v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam).
2 Plaintiff Sabrian Bruton previously filed a similar action, which the Court dismissed without prejudice for failure to
state a claim. See Bruton v. City of Homestead, No. 19-CIV-23999, [ECF No. 15] (S.D. Fla. Mar. 25, 2020). Therefore,
the Court assumes the parties’ familiarity with the factual allegations.
the situation when she arrived at the scene. After Officer Dejohn ran Plaintiff’s identifying
information through the computer system, he abruptly ordered Plaintiff out of his vehicle.
Although Plaintiff complied and exited his vehicle, Officer Dejohn again drew his firearm and
ordered Plaintiff to the ground. Because he feared for his life, Plaintiff fled the scene by foot.

Officers Carvajal, Guzman, Lago, and Simmons arrived at the scene and assisted Officers Dejohn
and Calvo in pursuing Plaintiff. Plaintiff entered the backyard of a residence, where Officer
Carvajal eventually handcuffed Plaintiff’s hands and feet. Plaintiff alleges that Officers Carvajal,
Lago, Simmons, and Guzman began beating him while handcuffed, causing Plaintiff to suffer
significant injuries that required facial reconstruction surgery. Plaintiff also alleges that Officer
Calvo observed the incident from “about one hundred (100) feet away,” but failed to act. [ECF
No. 1 at 6 ¶ 35]. Plaintiff does not, however, allege that Officer Dejohn observed the incident.
II. Procedural History
On September 27, 2019, Plaintiff filed an action against the City and Officers Calvo,
Carvajal, Dejohn, Guzman, Lago, and Simmons. See Bruton v. City of Homestead, No. 19-CIV-

23999, [ECF No. 1] (S.D. Fla. Sept. 27, 2019). On March 25, 2020, this Court dismissed Plaintiff’s
action without prejudice for failing to properly allege his claims. See Bruton v. City of Homestead,
No. 19-CIV-23999, [ECF No. 15] (S.D. Fla. Mar. 25, 2020). On September 29, 2020, Plaintiff
filed a new action3 against the City and Officers Calvo, Carvajal, Dejohn, Guzman, Lago, and
Simmons, alleging: (1) excessive force in violation of the Fourth and Fourteenth Amendments,
pursuant to 42 U.S.C. § 1983, as to Officers Carvajal, Guzman, Lago, and Simmons (Count I); (2)
failure to intervene in violation of the Fourth and Fourteenth Amendments, pursuant to § 1983, as
to Officers Calvo, Carvajal, Dejohn, Guzman, Lago, and Simmons (Count II); deliberately

3 This action was initially assigned to District Judge Beth Bloom. [ECF No. 2]. This Court accepted transfer of this
matter because of Plaintiff’s previous action before this Court. [ECF No. 7].
indifferent policies, practices, customs, training, and supervision in violation of the Fourth and
Fourteenth Amendments, pursuant to § 1983, as to the City (Count III); and (4) state law battery
against Officers Carvajal, Guzman, Lago, and Simmons (Count IV). [ECF No. 1]. On October 14,
2020, Defendants filed the instant Motion. [ECF No. 5].

LEGAL STANDARD
To survive a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face,’” meaning that it must contain “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true,
“conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be
supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010). “[T]he
pleadings are construed broadly,” Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120

(11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the
plaintiff. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). At bottom,
the question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is]
sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011)
(internal quotation and citation omitted).
DISCUSSION
I. Count II: Failure to Intervene Against Officers Calvo and Dejohn
In Count II of the Complaint, Plaintiff brings claims against Officers Calvo, Carvajal,
Dejohn, Guzman, Lago, and Simmons for “failing to intervene and prevent the violation of
Bruton’s constitutional rights by fellow officers.” [ECF No. 1 at 13 ¶ 73]. Defendants move to
dismiss the Complaint as to them for two reasons. First, Defendants argue that Officers Calvo and
Dejohn should be entitled to qualified immunity. [ECF No. 5 at 4–5]. Second, Defendants argue
that Plaintiff fails to allege that Officers Calvo and Dejohn’s actions violated the Fourth

Amendment. [ECF No. 5 at 5–7]. Specifically, Defendants argue that Plaintiff has not sufficiently
alleged that Officers Calvo and Dejohn had the opportunity, or were in a position, to intervene
during the alleged excessive force. Id.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under
color of state law committed an act that deprived him of some right protected by the Constitution
or laws of the United States.” Lindbloom v. Manatee Cnty., 808 F. App’x 745, 749 (11th Cir. 2020)
(per curiam). “[A]n officer who is present at the scene and who fails to take reasonable steps to
protect the victim of another officer’s use of excessive force, can be held liable for his
nonfeasance.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007) (per curiam)
(internal quotation marks omitted) (quoting Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir.

2002)). This means that “an observing officer must have both the opportunity to intervene and be
in a position to intervene and yet fail to do so.” Johnson v. White, 725 F. App’x 868, 878 (11th
Cir. 2018) (per curiam). A claim for failure to intervene therefore involves determining (1) whether
excessive force was used by an officer and (2) whether other officers were “in a position to
intervene yet failed to do so.” Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008).
Here, assuming the Court were to find that Officers Carvajal, Guzman, Lago, and Simmons
used excessive force, Plaintiff still fails to “allege any facts that would allow [the Court] to
conclude that [Officers Calvo and Dejohn] had time and were in a position to intervene.” Marantes
v. Miami-Dade Cnty., 649 F. App’x 665, 672 (11th Cir. 2016) (per curiam). As to Officer Calvo,
Plaintiff fails to sufficiently allege how Officer Calvo—from approximately 100 feet away and
within seconds—was in a position to intervene under the circumstances. See Johnson, 725 F.
App’x at 878 (“Instances of force that occur within seconds do not place officers in a realistic
position to intervene.”); Hadley, 526 F.3d at 1331 (“The court did not find that [the officer] . . .

could have anticipated and then stopped [the excessive force] . . . .”). Plaintiff fails to even allege
that Officer Dejohn was present during the alleged excessive force. See Militello v. Sherriff of
Broward Sheriff’s Off., 684 F. App’x 809, 815 (11th Cir. 2017) (granting qualified immunity where
corrections officers did not observe the alleged physical attack and did not have an opportunity to
intervene). Defendants’ Motion is therefore granted as to Count II, and Plaintiff’s Complaint is
dismissed without prejudice as to Count II.
II. Count III: Deliberately Indifferent Policies, Practices, Customs, Training, and
Supervision Against the City

In Count III of the Complaint, Plaintiff alleges that the City “failed to adequately train or
otherwise supervise and direct [the Homestead Police Department] and its officers concerning the
rights of the citizens they encounter in their duties,” resulting in “a well-settled policy, practice[,]
and custom for officers . . . to take extreme and reckless action against the citizens of the City . . .
all in the name of self-defense, resulting in officers seriously injuring innocent citizens.” [ECF No.
1 at 17 ¶ 97]. Defendants argue that Plaintiff’s claim is insufficient because he fails to allege that
an unconstitutional policy existed or that a municipal custom exists that is causally connected to
his injuries. [ECF No. 5 at 7–13].
Ordinarily, “a local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694
(1978). See also Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005)
(“[M]unicipalities cannot be held liable for employees under respondeat superior.”). However, a
local government is responsible under § 1983 “when execution of a government’s policy or custom
. . . inflicts the injury . . . .” Monell, 436 U.S. at 694. Stated differently, a city is liable “only for
acts for which [the city] is actually responsible.” Grech v. Clayton Cnty., 335 F.3d 1326, 1329
(11th Cir. 2003) (citation and internal quotation marks omitted). “[T]o impose § 1983 liability on

a [city], a plaintiff must show: (1) that his constitutional rights were violated; (2) that the [city]
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).
To establish the City’s policy, Plaintiff must “identify either (1) an officially promulgated
[City] policy or (2) an unofficial custom or practice of the [City] shown through the repeated acts
of a final policymaker for the [City].” Grech, 335 F.3d at 1329. “Because a [city] rarely will have
an officially-adopted policy of permitting a particular constitutional violation, most plaintiffs . . .
must show that the [city] has a custom or practice of permitting it and that the [city’s] custom or
practice is the moving force [behind] the constitutional violation.” Id. at 1330 (fourth alteration in

original) (internal quotation marks omitted) (quoting City of Canton v. Harris, 489 U.S. 378, 389
(1989)).
The Court finds that Plaintiff fails to properly raise his § 1983 claim because he does not
specifically allege an official City policy or custom that caused a violation of his constitutional
rights. Rather, Plaintiff alleges generally that: (1) the City had “a well-settled policy, practice[,]
and custom for officers . . . to take extreme and reckless action . . . in the name of self-defense;”
(2) the City “was on notice[] by this history of widespread abuse;” and (3) the City “ratified,
condoned, and consented to [the Homestead Police Department] officers’ unlawful conduct” by
“limiting and/or failing to properly investigate . . . .” [ECF No. 1 at 17–18 ¶¶ 97–99]. However,
these allegations are vague and conclusory, and Plaintiff fails to provide a factual basis for them
in his Complaint. Plaintiff also fails to specifically allege that the City repeatedly failed to train or
supervise its officers. While he cites to articles detailing incidents of excessive force by police
officers, see [ECF No. 1 at 18-19 nn.2-3], the incidents described in those articles are too remote
and not substantially similar to the incident in this case. See Mercado, 407 F.3d at 1161-62
(holding that “a plaintiff could not establish a Monel! claim when he could not point to any other
incidents involving similar facts”). And, as Defendants aptly note, “random acts or isolated
incidents are insufficient to establish a custom or policy.” Depew v. City of St. Marys, 787 F.2d
1496, 1499 (11th Cir. 1986). Defendants’ Motion is therefore granted as to Count III, and
Plaintiff's Complaint is dismissed without prejudice as to Count III.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants’, the City of Homestead, Officer Eileen Calvo, and Officer Dejohn,
Motion to Dismiss, [ECF No. 5], is GRANTED.
2. Plaintiff Sabrian Bruton’s Complaint, [ECF No. 1], is DISMISSED without
prejudice as to Counts II and II.
DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of October, 2021.

Df
Qld
UNITED STATES DIST JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10119793. Public record. Not legal advice.