# Waters v. City of Sunrise

> District Court, S.D. Florida · April 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10120432

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** April 3, 2022
- **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/10120432

## How later opinions describe it (automated extraction)

- explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-62542-BLOOM/Valle

TEQUILA WATERS,
as personal representative of
the estate of Damian Martin
and Tequila Waters individually,

Plaintiff,

v.

CITY OF SUNRISE,
a municipality of the State of Florida,
ERIC PLUNSKE, individually, and
TERRANCE WALKER, individually,

Defendants.
_________________________/

ORDER ON CITY OF SUNRISE’S MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant City of Sunrise’s (“Defendant”) Motion
to Dismiss Plaintiff’s First Amended Complaint, ECF No. [8] (“Motion”). Plaintiff Tequila Waters
(“Plaintiff”) filed a Response in Opposition, ECF No. [21] (“Response”), to which Defendant filed
a Reply, ECF No. [22] (“Reply”). The Court has carefully reviewed the Motion, the record in this
case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion
is granted in part and denied in part consistent with this Order.
I. BACKGROUND
On March 8, 2021, Plaintiff Tequila Waters, individually and as personal representative of
the Estate of Damian Martin (“Decedent”), filed her Complaint in the Circuit Court of the 17th
Judicial Circuit, in and for Broward County, Florida. See ECF [1-3] at 56-60. Defendant City of
Sunrise filed its first Motion to Dismiss, see id. at 28-36, which the State Court granted, dismissing
the Complaint with leave to amend, see id. at 6. On November 26, 2021, Plaintiff filed her First
Amended Complaint. ECF No. [1-2] (“Amended Complaint”). In the Amended Complaint,
Plaintiff asserts three counts against Defendant: violation of Fourth Amendment federal civil rights
resulting from deliberate indifference (Count I); violation of Fourteenth Amendment federal civil

rights resulting from excessive force (Count II); and negligence for the wrongful death of Damian
Martin (Count III). See generally id.
Defendant subsequently removed the case to this Court, see ECF No. [1], and filed the
instant Motion to Dismiss Plaintiff’s First Amended Complaint, see ECF No. [8]. In the Motion,
Defendant contends that Plaintiff lacks standing to bring a claim on behalf of Decedent. Defendant
also argues that Plaintiff fails to state a claim for relief because there is no viable deliberate
indifference claim under the Fourth Amendment, no viable excessive force claim under the
Fourteenth Amendment, and no custom or policy for § 1983 liability pursuant to Monell.
Defendant further submits that Plaintiff fails to allege a viable negligence claim and that it is
entitled to sovereign immunity. Plaintiff responds that she has standing to sue on behalf of

Decedent, the Amended Complaint alleges customary practices that led to Decedent’s death,
and Defendant is not entitled to qualified immunity.
II. LEGAL STANDARD
A. Standing
One element of the case-or-controversy requirement under Article III of the United States
Constitution is that plaintiffs “must establish that they have standing to sue.” Raines v. Byrd, 521
U.S. 811, 818 (1997). It is a threshold question of “whether the litigant is entitled to have the court
decide the merits of the dispute or of particular issues.” Sims v. Fla. Dep’t of Highway Safety &
Motor Vehicles, 862 F.2d 1449, 1458 (11th Cir. 1989) (en banc). “‘The law of Article III
standing . . . serves to prevent the judicial process from being used to usurp the powers of the
political branches,’ and confines the federal courts to a properly judicial role.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016) (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408
(2013); Warth v. Seldin, 422 U.S. 490, 498 (1975)). Further, “standing requirements ‘are not mere

pleading requirements but rather [are] an indispensable part of the plaintiff’s case.’” Church v.
City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992)). “Indeed, standing is a threshold question that must be explored at the outset
of any case.” Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1232 (11th Cir. 2019) (citing Bochese
v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)), cert. denied, 140 S. Ct. 900 (2020).
“In its absence, ‘a court is not free to opine in an advisory capacity about the merits of a plaintiff’s
claim.’” Id. (quoting Bochese, 405 F.3d at 974). “In fact, standing is ‘perhaps the most important
jurisdictional’ requirement, and without it, [federal courts] have no power to judge the merits.” Id.
(footnote omitted) (quoting Bochese, 405 F.3d at 974).
[A]t an irreducible minimum, Art. III requires the party who invokes the court’s
authority to “show that he personally has suffered some actual or threatened injury
as a result of the putatively illegal conduct of the defendant,” and that the injury
“fairly can be traced to the challenged action” and “is likely to be redressed by a
favorable decision.”
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 472
(1982) (quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979)). In other words,
to establish standing, a plaintiff must allege that: (1) it “suffered an injury in fact that is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or hypothetical;” (2) “the injury is
fairly traceable to conduct of the defendant;” and (3) “it is likely, not just merely speculative, that
the injury will be redressed by a favorable decision.” Kelly v. Harris, 331 F.3d 817, 819-20 (11th
Cir. 2003).
“The party invoking federal jurisdiction bears the burden of proving standing.” Fla. Pub.
Int. Rsch. Grp. Citizen Lobby, Inc. v. E.P.A., 386 F.3d 1070, 1083 (11th Cir. 2004) (quoting
Bischoff v. Osceola Cnty., 222 F.3d 874, 878 (11th Cir. 2000)). “Because standing is jurisdictional,
a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1).” Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190,
1203 n.42 (11th Cir. 1991). “If at any point in the litigation the plaintiff ceases to meet all three
requirements for constitutional standing, the case no longer presents a live case or controversy,
and the federal court must dismiss the case for lack of subject matter jurisdiction.” Fla. Wildlife
Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011) (citing CAMP Legal
Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1277 (11th Cir. 2006) (“CAMP”))). “In assessing
the propriety of a motion for dismissal under Fed. R. Civ. P. 12(b)(1), a district court is not limited
to an inquiry into undisputed facts; it may hear conflicting evidence and decide for itself the factual
issues that determine jurisdiction.” Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th
Cir. 1991). “When a defendant properly challenges subject matter jurisdiction under Rule 12(b)(1)

the district court is free to independently weigh facts, and ‘may proceed as it never could under
Rule 12(b)(6) or Fed. R. Civ. P. 56.’” Turcios v. Delicias Hispanas Corp., 275 F. App’x 879, 880
(11th Cir. 2008) (quoting Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)).
B. Failure to State a Claim
A pleading 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, 127 S.
Ct. 1955, 167 L.Ed.2d 929, (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173
L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation”). Additionally, a complaint may not
rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129
S. Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). “Factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct.
1955. If the allegations satisfy the elements of the claims asserted, a defendant’s motion to dismiss
must be denied. Id. at 556.
When reviewing a motion to dismiss, 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 Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); 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)
(“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving
party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678.

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
Technologies, 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)). While
the court is required to accept as true all allegations contained in the complaint, courts “are not
bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S.
at 555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
III. DISCUSSION

A. Standing
Defendant first seeks to dismiss Plaintiff’s claims on the basis that Plaintiff has not been
appointed as Decedent’s personal representative. See ECF No. [8] at 2-3; see also Fla. Stat.
§ 768.20 (providing that a wrongful death action “shall be brought by Decedent’s personal
representative”). Plaintiff responds that she “has been issued letters of administration from the
Circuit Court and is the Personal Representative of the Estate of Damian Martin.” ECF No. [21]
at 4; see also ECF No. [21-1] (attaching the letters of administration). Defendant replies that the
letters were issued on January 5, 2022, which was fifteen (15) days after Plaintiff filed the
Amended Complaint and over three hundred (300) days after Plaintiff filed the original Complaint.
See ECF No. [22] at 1. Defendant argues that because Plaintiff lacked standing when the lawsuit

was filed, the Amended Complaint should be dismissed. See id. at 1-2.
The Court agrees with Plaintiff. While the “failure to plead a plausible factual basis for the
capacity to sue or be sued can serve as the basis for dismissing a complaint[,]” the Eleventh Circuit
has instructed that when the “appointment as a personal representative is a virtual certainty . . .
courts should stay proceedings rather than dismiss them.” Gubanova v. The Blackstone Grp. L.P.,
No. 12-22319-CIV, 2013 WL 12064500, at *2, *5 (S.D. Fla. Feb. 25, 2013) (citing Glickstein v.
Sun Bank/Miami, N.A., 922 F.2d 666, 671 (11th Cir. 1991), abrogated on other grounds by Saxton
v. ACF Indus., Inc., 254 F.3d 959 (11th Cir. 2001)).
In this case, based on Plaintiff’s letters of administration, the contents of which Defendant
does not dispute, Plaintiff has adequately established that she is the personal representative for
Decedent’s estate and has standing to sue. See Gubanova, 2013 WL 12064500, at *5; Glickstein,
922 F.2d at 671. Therefore, pursuant to Eleventh Circuit precedent, dismissal of Plaintiff’s claims
under these circumstances is not appropriate.1 As such, the Court proceeds to address the merits

of Defendant’s remaining arguments.
B. Failure to State a Claim
i. Count I
In Count I, Plaintiff asserts against Defendant “a violation of 4th Amendment federal civil
rights resulting from deliberate indifference.” ECF No. [1-2] ¶¶ 32-35. Defendant argues that the
Amended Complaint fails to state a claim because (1) a “deliberate indifference” claim arises from
the Fourteenth Amendment, rather than the Fourth Amendment; (2) a “deliberate indifference”
claim requires a custodial arrest; (3) pursuant to Monell v. Dep’t. of Social Services, etc., 436 U.S.
658, 691 (1978), Defendant cannot be liable where there is no policy or custom that caused

Decedent’s death; and (4) Defendant is entitled to sovereign immunity. See ECF No. [8] at 3-8;
10-12.
Plaintiff responds that the use of physical force to the body of a person with intent to
restrain is a seizure that constitutes a custodial arrest. See ECF No. [21] at 4-5 (citing Torres v.

1 Further, a stay to confirm Plaintiff’s appointment is unnecessary given the attached letters. In addition,
Defendant’s reliance on Davis v. Fed Election Comm’m, 554 U.S. 724, 734 (2008), and the dissenting
opinion in Reshard v. Britt, 839 F.2d 1499, 1501 (11th Cir. 1988), is unavailing. See ECF No. [22] at 1-2.
Davis did not concern the issue of whether a plaintiff’s belated appointment as the personal representative
of a decedent’s estate required dismissal of the plaintiff’s claims based on a lack of standing. 554 U.S. at
734. Rather, Davis stands for the general requirement that a plaintiff must demonstrate standing for each
claim it seeks to press. See id. The case offers no specific guidance for the factual circumstances of this
case. Defendant’s reliance on the dissenting opinion in Reshard is also unavailing because the issue before
the Eleventh Circuit was whether personal representatives of an estate could proceed pro se. 839 F.2d at
1501. Reshard did not address the issue of whether a belated appointment required dismissal. See id.
Madrid, 141 S. Ct. 989, 993 (2021)). According to Plaintiff, the deployment of tasers, one of which
allegedly struck Decedent, was a use of physical force on Decedent’s body that established
Decedent’s custodial arrest. See id. In addition, Plaintiff argues that allegations about Defendant’s
customary practices of granting broad discretion to its officers, offering insufficient training for

water rescue, and implementing hiring standards that precipitated in the drowning of suspects in
custody and the deployment of tasers near waterways satisfy the standard set forth in Monell. See
ECF No. [21] at 7-8. Plaintiff further argues that qualified immunity has no application to this
case, but does not otherwise address Defendant’s argument about sovereign immunity. See id. at
5-7. Defendant replies that there is no evidence that the taser struck Decedent and attaches an
autopsy report indicating that the taser did not strike Decedent. See ECF No. [22] at 2; see also
ECF No. [8] at 10 n.1. As such, Defendant submits that Decedent was never in custody. Defendant
also argues that the Amended Complaint fails to allege any facts regarding Defendant’s notice of
similar prior civil rights violations arising from Defendant’s customs or policies to sustain
Plaintiff’s claim. See id. at 3-4.

a. Fourteenth Amendment
The Court agrees with Defendant to the extent that Defendant argues that a deliberate
indifference claim arises from the Fourteenth Amendment, rather than the Fourth Amendment. In
Waldron v. Spicher, the Eleventh Circuit stated that “[n]o case in the Supreme Court, or in this
Circuit, or in the Florida Supreme Court has held that recklessness or deliberate indifference is a
sufficient level of culpability to state a claim of violation of substantive due process rights in a
non-custodial context.” 954 F.3d 1297, 1310 (11th Cir. 2020). Therefore, the only viable claim of
deliberate indifference must come from a custodial context. Further, the Eleventh Circuit has held
that deliberate indifference claims brought by arrestees and pretrial detainees are governed by the
Fourteenth Amendment’s Due Process Clause. Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir.
1996) (“Claims involving the mistreatment of arrestees or pretrial detainees in custody are
governed by the Fourteenth Amendment’s Due Process Clause . . . .”).2 Because a deliberate
indifference claim must arise from a custodial context and claims involving the mistreatment of

arrestees and pretrial detainees are governed by the Fourteenth Amendment, Plaintiff’s deliberate
indifference claim premised on the Fourth Amendment fails.
However, in the interest of judicial economy and in fairness to Plaintiff, the Court proceeds
to analyze why Plaintiff’s deliberate indifference claim would fail even if she brought her claim
under the Fourteenth Amendment. If Plaintiff brought her claim under the Fourteenth Amendment,
the material issue would have been whether Decedent was under custodial arrest. See Waldron,
954 F.3d at 1310. The Supreme Court defines seizure or custodial arrest as follows:
The word “seizure” readily bears the meaning of a laying on of hands or application
of physical force to restrain movement, even when it is ultimately unsuccessful.
(“She seized the purse-snatcher, but he broke out of her grasp.”) It does not
remotely apply, however, to the prospect of a policeman yelling “Stop, in the name
of the law!” at a fleeing form that continues to flee. That is no seizure. . . . An arrest
requires either physical force (as described above) or, where that is absent,
submission to the assertion of authority.
California v. Hodari D., 499 U.S. 621, 626 (1991) (emphasis in original). In this case, there are no
allegations that Decedent submitted to the officers’ assertion of authority. Therefore, the Court
must examine whether there was a use of force on Decedent’s body. In Torres v. Madrid, the
Supreme Court held that “[t]he analysis does not change because the officers used force from a
distance to restrain [the arrestee]. The required corporal seising or touching the defendant’s body,
can be as readily accomplished by a bullet as by the end of a finger.” 141 S. Ct. 989, 991 (2021)

2 However, as noted below, unlike deliberate indifference claims, excessive force claims brought by
arrestees are governed by the Fourth Amendment rather than the Fourteenth Amendment. See Crocker v.
Beatty, 995 F.3d 1232, 1246 (11th Cir. 2021), cert. denied, 142 S. Ct. 845 (2022).
(citation and internal quotation marks omitted).3 The Amended Complaint alleges that “Officer
Walker deployed a taser on Damian Martin” and that “[t]he deployment of the taser was an attempt
by the officers to restrain and seize the Plaintiff [sic] Damian Martin. This application of physical
force to the Plaintiff’s [sic] person gives rise to a duty pursuant to. [sic] Torres v. Madrid[.]” ECF

No. [1-2] ¶¶ 16, 18. Although Defendant disputes that the taser struck Decedent in its Motion and
Reply, see ECF Nos. [8] at 10 n.1, [22] at 2, at this stage of the proceedings, the Court must
presume that all factual allegations in the Amended Complaint are true. As such, the Court
determines that Plaintiff sufficiently alleged the use of physical force on the body of Decedent,
placing Decedent under custodial arrest and triggering Fourteenth Amendment protections.4
b. Monell
The Court next considers whether the Amended Complaint alleges a policy or custom that
caused Decedent’s death. According to Defendant, as a governmental entity, Defendant is liable
only “when execution of [its] 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 . . .” of which

Plaintiff complains. ECF No. [8] at 6 (quoting Monell, 436 U.S. at 691; Mercado v. City of
Orlando, 407 F.3d 1152 (11th Cir. 2005); Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489
(11th Cir. 1997)). Defendant argues that there is no allegation of a policy that is “longstanding and

3 Defendant argues that Torres is inapplicable because the case did not involve a deliberate indifference
claim. See ECF No. [2] at 2. Defendant, however, does not explain why the difference in the claims makes
the Supreme Court’s analysis of what constitutes a seizure or an arrest to be inapplicable to this case. See
id. This Court considers the difference between the claim in Torres and the claims in this case to be a
distinction without a difference, and the Court looks to Hodari and Torres for the definition of a custodial
arrest to apply in this context.
4 To the extent that Defendant asks the Court to look to the Broward County Medical Examiner Autopsy
Report, which specifically states that “[t]here is no evidence of the taser striking Decedent[,]” ECF No. [22-
1] at 6, the Court is not persuaded. While the Court may take judicial notice of public records such as an
autopsy report, see Walker v. Prieto, 414 F.Supp. 2d 1148, 1154 n.1 (S.D. Fla. 2006), the Court notes that
at the pleading stage, the Court must presume that all factual allegations in the Complaint are true. As such,
the Court presumes, for the purposes of this Order, that the taser struck Decedent’s body in accordance with
the factual allegations in the Complaint.
widespread” that caused Decedent’s death or similar prior incidents such that Defendant can be
deemed to have known of any deficient policy. See id. (quoting Brown v. City of Fort Lauderdale,
923 F.2d 1474, 1481 (11th Cir. 1991)). As noted above, Plaintiff argues that allegations about
Defendant’s customary practices of granting broad discretion to its officers, offering insufficient

training for water rescue, and implementing hiring standards that precipitated in the drowning of
suspects in custody and the deployment of tasers near waterways satisfy the standard set forth in
Monell. See ECF No. [21] at 7-8. Plaintiff, however, does not address Defendant’s argument that
the Amended Complaint fails to allege any similar prior incidents to establish that Defendant knew
about the deficient practices.
The Court agrees with Defendant. The Eleventh Circuit has stated that to establish a
governmental entity’s § 1983 liability, the plaintiff must allege facts establishing an
unconstitutional practice “so permanent and well settled as to constitute a custom or usage with
the force of law.” Brown, 923 F. 2d at 1481 (citation and internal quotation marks omitted).
Further, the allegations must reflect a practice so “longstanding and widespread,” that it can be

“deemed authorized by the policy-making officials because they must have known about it but
failed to stop it.” Id. In addition, to survive a motion to dismiss a deliberate indifference claim, the
plaintiff must adequately plead that the defendant was “subjectively aware of the substantial risk
of serious harm in order to have had a sufficiently culpable state of mind.” See Alsobrook v.
Alvarado, 986 F. Supp. 2d 1312, 1320 (S.D. Fla. 2013).
In this case, Plaintiff fails to allege any facts to establish that Defendant was subjectively
aware of the substantial risk of serious harm in order to have had a sufficiently culpable state of
mind. See generally ECF No. [1-2]. The Amended Complaint is devoid of any allegations of
similar prior incidents involving Defendant’s officers that would have put Defendant on notice
that its customary practices of granting broad discretion to its officers, offering insufficient training
for water rescue, and implementing certain hiring practices posed a substantial risk of serious
harm. As such, Plaintiff’s claim of deliberate indifference against Defendant would have been
dismissed even if Plaintiff brought her claim under the Fourteenth Amendment.

c. Sovereign Immunity
Though the Court need not continue, for the sake of clarity, the Court addresses
Defendant’s claim that it is entitled to sovereign immunity. See ECF Nos. [8] at 10-12; [22] at 6.
It is unclear from the Motion and the Reply whether Defendant is claiming sovereign immunity to
dismiss all claims or only Count III. As noted above, Plaintiff argues that qualified immunity has
no application to this case, but does not otherwise address Defendant’s argument about sovereign
immunity. See ECF No. [21] at 5-7.
The Court finds instructive the Eleventh Circuit’s holding that “[t]he Supreme Court made
it absolutely clear in Howlett v. Rose, 496 U.S. 356 (1990), that Florida sovereign immunity law
could not be invoked to shield a municipal entity from § 1983 liability.” Abusaid v. Hillsborough

Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1314 (11th Cir. 2005). As such, to the extent that
Defendant relies on sovereign immunity to dismiss Count I, the Court is not persuaded.
Nonetheless, Count I is dismissed because it seeks relief for deliberate indifference under the
Fourth Amendment and because it fails to satisfy the requirements of Monell as discussed above.
ii. Count II
In Count II, Plaintiff asserts against Defendant “a violation of 14th Amendment federal
civil rights resulting from excessive force.” ECF No. [1-2] ¶¶ 36-40. Defendant argues that an
excessive force claim under the Fourteenth Amendment requires the victim to be a pretrial detainee
who has received “a ‘judicial determination of probable cause as a prerequisite to [the] extended
restraint of [his] liberty following arrest.’” ECF No. [8] at 5 (quoting Bell v. Wolfish, 441 U.S. 520,
536 (1979) (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)) (alterations in original)).
According to Defendant, there was no judicial determination of probable cause in this case. See id.
As before, Defendant also argues that Defendant cannot be liable where there is no policy or

custom that caused Decedent’s death pursuant to Monell and that Defendant is entitled to sovereign
immunity. See id. at 6-8, 10-12. Plaintiff fails to address Defendant’s argument with regard to the
lack of a probable cause determination, but, as noted above, Plaintiff argues that Defendant’s
customary practices establish liability under Monell and that Defendant is not entitled to qualified
immunity. See ECF No. [21] at 5-8.
a. Fourth Amendment
The Court agrees with Defendant to the extent that Plaintiff fails to state a claim for relief
under the Fourteenth Amendment. As Defendant correctly notes, “under the Supreme Court’s
current framework [for claims of excessive force], the Fourth Amendment covers arrestees, the
Eighth Amendment covers prisoners, and the Fourteenth Amendment covers those who exist in

the in-between—pretrial detainees.” Crocker v. Beatty, 995 F.3d 1232, 1246 (11th Cir. 2021), cert.
denied, 142 S. Ct. 845 (2022) (citing Piazza v. Jefferson Cnty., 923 F.3d 947, 952 (11th Cir. 2019))
(internal quotation marks omitted). Further, as Defendant correctly notes, “[t]he Supreme Court
long ago described a pretrial detainee as a person who had received a judicial determination of
probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.” Id.
(alterations in original; citations and internal quotation marks omitted). In this case, Plaintiff fails
to allege that there has been a judicial determination of probable cause that would make Decedent
a pretrial detainee. As such, the Fourteenth Amendment does not extend any protection against
excessive force for Decedent, and Plaintiff’s excessive force claim premised on the Fourteenth
Amendment fails.
Nonetheless, as before, in the interest of judicial efficiency and in fairness to Plaintiff, the
Court proceeds to address why Plaintiff’s claim of excessive force would fail even she brought her

claim under the Fourth Amendment, which applies to excessive force claims brought by arrestees.
As discussed above, according to the allegations in the Amended Complaint, Decedent was an
arrestee because the taser prong struck Decedent’s body. Therefore, Fourth Amendment
protections against excessive force apply. See Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir.
2002) (“The Fourth Amendment’s freedom from unreasonable searches and seizures encompasses
the plain right to be free from the use of excessive force in the course of an arrest.”). However,
“Fourth Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). In order to allege a claim
of excessive force under the Fourth Amendment, a plaintiff must allege that the officer used

unreasonable force, which turns on a number of factors. In Sebastian v. Ortiz, the court, in
addressing a motion to dismiss, stated that allegations of excessive force turned on “the severity
of the crime, whether the suspect pose[d] an immediate threat, and whether the suspect [was]
resisting or fleeing.” No. 16-20501-CIV, 2017 WL 4382010, at *7 (S.D. Fla. Sept. 29, 2017), aff’d,
918 F.3d 1301 (11th Cir. 2019) (quoting Gold v. City of Miami, 121 F.3d 1442, 1446 (11th Cir.
1997)).
Although the Amended Complaint alleges that Decedent was fleeing, the Amended
Complaint does not allege the criminal activity Decedent engaged in, if any, and whether Decedent
was armed or otherwise posed a threat to the officers. Instead, Plaintiff alleges in a conclusory
manner that the “discharge of a firearm exceeded the degree of force which a reasonable [sic]
prudent properly trained law enforcement officer would have applied under the same
circumstances.” ECF No. [1-2] ¶ 39. As stated above, while courts are required to accept as true
all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion

couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. An allegation
of the deployment of two tasers, only one of which allegedly struck Decedent, constitutes the use
of excessive force is a legal conclusion couched as a factual allegation. Therefore, because the
Amended Complaint alleges Defendant’s officers’ use of excessive force in a conclusory manner
without further factual enhancement, Count II must be dismissed even if the claim was brought
under the Fourth Amendment.
b. Monell
Although the Court need not continue, the Court turns to Defendant’s argument that Monell
also requires the dismissal of Plaintiff’s excessive force claim. See ECF No. [8] at 6-8. As the
Court noted above, Defendant can only be liable under § 1983 “when execution of [its] 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 . . .” of which Plaintiff complains. Monell, 436 U.S. at
691. Further, the allegations must reflect a practice so “longstanding and widespread,” that it can
be “deemed authorized by the policy-making officials because they must have known about it but
failed to stop it.” Brown, 923 F. 2d at 1481 (11th Cir. 1991). As before, Plaintiff fails to allege any
facts or prior incidents to establish that Defendant was subjectively aware of constitutionally
deficient policies and failed to stop the policies. See generally ECF No. [1-2]. This, too, defeats
Plaintiff’s claim of excessive force against Defendant even if she brought her claim under the
Fourth Amendment.5
iii. Count III
In Count III, Plaintiff asserts a negligence claim against Defendant. See ECF No. [1-2]
¶¶ 41-44.6 Defendant maintains that Decedent was never in custody and argues that a

governmental entity cannot be held liable for an allegedly negligent failure to arrest a person who
subsequently injured himself. See ECF No. [8] at 8-10. According to Defendant, a “special duty”
for a negligence claim arises only when “law enforcement officers become directly involved in
circumstances which place people within a zone of risk by creating or permitting dangers to exist,
by taking persons into police custody, detaining them, or otherwise subjecting them to danger.”
Id. at 9. Defendant posits that no such special duty existed here. Defendant lastly maintains that
Defendant is entitled to sovereign immunity. See id. at 10-12.
Plaintiff responds that her negligence claim is predicated on Defendant’s officers’ failure
to render aid to Decedent as he was drowning despite being trained in water rescue and their

decision to deploy a taser near a body of water. See ECF No. [21] at 4-5. Plaintiff also raises
arguments related to qualified immunity, which are inapplicable here. See id. at 5-7. In its Reply,
Defendant maintains that Defendant’s officers did not arrest or detain Decedent, and Defendant
did not owe Decedent a special duty of care. See ECF No. [22] at 4-5. Defendant further submits

5 As stated before, sovereign immunity does not defeat Plaintiff’s claim that Defendant violated Plaintiff’s
federal civil rights. See Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1314 (11th Cir.
2005). Therefore, to the extent that Defendant relies on sovereign immunity to argue for the dismissal of
Count II, the argument is unavailing.
6 The Court chooses to exercise supplemental jurisdiction over Plaintiff’s state law claim due to concerns
of comity, judicial economy, convenience, and fairness, even though all of the federal claims over which
the Court has original jurisdiction have been dismissed. See Crosby v. Paulk, 187 F.3d 1339, 1352 (11th
Cir. 1999) (quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996)). As stated
below, the Court dismisses the federal claims without prejudice and with leave to amend, thus favoring the
exercise of supplemental jurisdiction to address Plaintiff’s remaining state law claim.
that Plaintiff’s argument that Defendant’s officers deployed a taser near a body of water does not
establish a duty of care and that Defendant created his own zone of danger by jumping into a canal.
See id. at 5.
a. Negligence

The Court finds it necessary to first outline the applicable law. First, there is no common
law duty to rescue a stranger. See Est. of Ferguson v. Mascara, No. 09-14192-CIV, 2010 WL
11558195, at *2 (S.D. Fla. Sept. 7, 2010), on reconsideration, No. 09-14192-CIV, 2011 WL
13225161 (S.D. Fla. Jan. 19, 2011) (citing Bradberry v. Pinellas County, 789 F.2d 1513, 1516
(11th Cir. 1986)). Further, “[t]here is no general duty to rescue a stranger in distress . . . . And the
fact that the defendant is a public officer adds nothing. A mere failure to rescue is not tortious just
because the defendant is a public officer whose official duties include aiding people in distress.”
Hamilton v. Cannon, 80 F.3d 1525, 1529 n.4 (11th Cir. 1996) (citations and internal quotation
marks omitted). There are exceptions to this rule, where the individual needing rescue is in custody
or where the state created the dangerous situation. See Est. of Ferguson, 2010 WL 11558195, at

*3 (citing Willis v. Charter Township of Emmett, 360 F. App’x. 596, 599 (6th Cir. 2010)). “Under
the custody exception, if the state has restrained the ability of an individual to act on his own
behalf, then the state would have a corresponding duty to assume responsibility for that
individual’s well being. Under the state created danger exception, if the state placed the individual
in danger, in a manner that shocks the conscience then the duty to rescue might be triggered.” Id.
(citation and internal quotation marks omitted).
In this case, there was no general duty to rescue Decedent. The fact that Defendant’s
officers are public officers does not change the analysis, and the fact that the officers’ duties
include helping people in distress is inapposite. See Hamilton, 80 F.3d at 1529 n.4. However, as
discussed above, Decedent was in custody, and the officers had a corresponding duty to assume
responsibility for Decedent’s well-being under the custody exception. See Est. of Ferguson, 2010
WL 11558195, at *3. Further, although Defendant relies on Seguine v. City of Miami, 627 So.2d
14 (Fla. 3d DCA 1993), that case is inapposite as the decedent in that case was never in custody.

In Seguine, when the officers drew their guns and ordered the decedent to stop in an effort to arrest
him, the decedent dove into an adjacent canal and subsequently drowned. See id. at 15-16. There
was no allegation that the officers applied any physical force to place the decedent in custody. See
id. Unlike Seguine, because Defendant’s officers allegedly used physical force to place Decedent
in custody, the officers had a corresponding duty to assume responsibility for Decedent’s well-
being.7
b. Sovereign Immunity
Having established Defendant’s duty, the material question is whether the doctrine of
sovereign immunity applies. Unlike § 1983 claims, state law negligence claims are subject to the
doctrine of sovereign immunity to a limited extent. See Fla. Stat. § 768.28; Com. Carrier Corp. v.

Indian River Cnty., 371 So. 2d 1010, 1020 (Fla. 1979). Under Florida law, for sovereign immunity
to apply, the challenged conduct must involve an exercise of executive or legislative power such
that a court’s intervention would inappropriately entangle the court in fundamental questions of
policy and planning. Beach Cmty. Bank v. City of Freeport, Fla., 150 So. 3d 1111, 1114 (Fla.
2014). In the context of custodial arrests, the Eleventh Circuit has stated, in relevant part:
Under Florida law, when an officer has made an initial discretionary decision to
conduct a stop and then proceeds to carry out that decision, the officer is no longer
exercising a “discretionary” function, but is engaged in an “operational” task. In
this case, the officers, having decided to stop [the decedent], had an obligation to
proceed with reasonable care.

7 The Court need not consider state created danger exception since the custody exception applies.
Lewis v. City of St. Petersburg, 260 F.3d 1260, 1265 (11th Cir. 2001). The Eleventh Circuit further
distinguished negligent training and supervision claims, which are based on discretionary
decisions, and claims of negligent failure to care for the well-being of arrestees, which are
operational decisions. See id. at 1265 (holding that the negligent training claim involved

“discretionary governmental functions immune from tort liability”).
In this case, the Amended Complaint properly alleges that the officers failed to exercise
reasonable care once it engaged in the operational task of arresting Decedent. See ECF No. [1-2]
¶ 44. However, to the extent that Plaintiff bases her negligence claim on a failure to train,
supervise, and instruct its officers, see id. ¶¶ 44.I, 44.J, the Court determines that those acts were
discretionary decisions subject to sovereign immunity. See Lewis, 260 F.3d at 1265. Given that the
Amended Complaint sets forth Count III with allegations of both negligent failure to exercise
reasonable care and also negligent failure to train, supervise, and instruct, Count III fails to provide
Defendant adequate notice of the exact claim against Defendant and the grounds upon which the
claim rests. As such, the Court must dismiss Count III.8

8 Defendant relies on two Florida Supreme Court cases. See ECF No. [8] at 11-12. In Carter v. City of
Stuart, 468 So. 2d 955, 957 (Fla. 1985), the Florida Supreme Court held that the decision made by a city
employee on whether to enforce an animal control ordinance was discretionary in nature and, therefore,
protected by sovereign immunity. In City of Daytona Beach v. Palmer, 469 So. 2d 121, 122 (Fla. 1985),
the Florida Supreme Court similarly held that fire-fighting decisions made by firefighters were discretionary
decisions that were protected by sovereign immunity. However, those two cases are distinguishable from
the instant case in light of Lewis v. City of St. Petersburg, 260 F.3d 1260, 1265 (11th Cir. 2001). Carter
only pertained to the decision to enforce an ordinance, which is discretionary, not the actions that the city
employee took after the decision to enforce an ordinance, which would have been operational tasks subject
to liability. 468 So. 2d at 956. In Palmer, the court held that decisions regarding how to properly fight a
fire, how to rescue victims in a fire, or what and how much equipment to send to a fire, were discretionary
judgmental decisions. 469 So. 2d at 123. However, the court carefully distinguished those types of
discretionary fire-fighting decisions from “negligent conduct resulting in personal injury while fire
equipment is being driven to the scene of a fire or personal injury to a spectator from the negligent handling
of equipment at the scene,” which the court considered to be operational tasks subject to liability. Id.
Similarly, in this case, the decision to arrest Decedent was a discretionary decision, but the negligent
conduct in failing to exercise reasonable care in rescuing Decedent who was in custody, was an operational
task subject to a waiver of sovereign immunity.
iv. Dismissal Without Prejudice
As a final matter, because Defendant seeks dismissal of Plaintiff’s claims with prejudice,
see ECF No. [8] at 10, the Court considers whether the dismissal of Plaintiff’s claims against
Defendant should be with or without prejudice. Considering the Parties’ arguments, the Court

determines that granting Plaintiff another opportunity to plead her claims against Defendant would
not be futile. If Plaintiff is able to allege prior incidents to establish Defendant’s subjective
knowledge of the dangers of its custom and policies and appropriately bring her claim of deliberate
indifference under the Fourteenth Amendment and her claim of excessive force under the Fourth
Amendment, Plaintiff could satisfy the requirements of Monell. Further, Plaintiff could properly
allege a negligence claim by clarifying that her negligence claim is based on allegations of
Defendant’s officers’ failure to exercise reasonable care after deciding to arrest Decedent, rather
than allegations of negligent training, supervision, and instruction. As such, because this Court is
not unsympathetic, Plaintiff may have one opportunity to rectify her pleading.
IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant City of Sunrise’s Motion to Dismiss, ECF No. [8], is GRANTED IN
PART AND DENIED IN PART.
2. Plaintiff’s claims against Defendant City of Sunrise are DISMISSED.
a. Counts I and II are dismissed without prejudice. Plaintiff shall file an amended
complaint setting forth Plaintiff’s claims of deliberate indifference and
excessive force against Defendant in accordance with the Court’s Order by no
later than April 14, 2022.
Case No. 21-cv-62542-BLOOM/Valle

b. To the extent that Count III is based on a negligent failure to train, supervise,
and instruct, the claim is dismissed with prejudice. To the extent that Count HI
is based on a negligent failure to exercise reasonable care in effectuating
Decedent’s arrest, the claim is dismissed without prejudice. Plaintiff shall file
an amended complaint setting forth Plaintiff's claim of negligence against
Defendant in accordance with the Court’s Order by no later than April 14, 2022.
3. Plaintiffs case shall proceed against all remaining Defendants.
DONE AND ORDERED in Chambers at Miami, Florida, on April 3, 2022.

BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10120432. Public record. Not legal advice.