Saint-Vil v. City of Miami Beach

United States District Court

for the

Southern District of Florida

Ronald M. Saint-Vil, Plaintiff, )

)

v. )

) Civil Action No. 19-24640-Civ-Scola

City of Miami Beach and Augustin )

Rodriguez, Defendants. )

Order on the Parties’ Motions to Strike and Summary Judgment

Ronald Saint-Vil sues the City of Miami Beach (“City”) and Officer

Augustin Rodriguez on several claims arising out of events that transpired on a

night in November 2017. The City and Officer Rodriguez separately moved for

summary judgment. For the reasons below, the Court grants the City’s motion

(ECF No. 132) in full and partially grants Officer Rodriguez’s (ECF No. 134).

But before addressing the merits, the Court takes up a housekeeping

matter. After briefing on the summary judgment motions closed, the

Defendants filed a notice of supplemental authority based on the deposition of

Richard Masten—Mr. Saint-Vil’s proffered expert. Mr. Saint-Vil moved to strike

the transcript as being filed prematurely (ECF No. 167), and in the alternative

asked that the Court consider the transcript in conjunction with Mr. Masten’s

errata sheet. (ECF No. 171.) The Defendants, in turn, asked the Court to strike

the errata sheet on the ground that it contains substantive changes that

contradict Mr. Masten’s deposition testimony. (ECF No. 172.)

Although courts may disregard changes in an errata sheet that

contradict a deponent’s testimony, Jacobs v. Chadbourne, 733 F. App’x. 483,

486 (11th Cir. 2018), the Court denies both motions as moot (ECF Nos. 167

and 172) because the Court did not rely upon the contested portions of Mr.

Masten’s deposition transcript on summary judgment. Both the transcript and

the errata sheet remain on the record. The Court’s ruling on summary

judgment follows.

1. Background

Mr. Saint-Vil is an African American man in his mid-forties. On the night

of November 10, 2017, he was working a charity event at the SLS Hotel in

Miami Beach, which ended no more than an hour after midnight. While Mr.

Saint-Vil and his wife were pulling out of the parking lot to head home, his wife

realized that she left her bag at the hotel. Mr. Saint-Vil dropped her off at the

front entrance and told her he would pick her up at the side entrance.

While he waited, Mr. Saint-Vil encountered two City police officers who

were processing a detainee for trespassing on the beach after-hours. Mr. Saint-

Vil decided to record what he saw. Officer Rodriguez—the arresting officer—had

handcuffed the detainee and was transferring him to a transport van manned

by Officer Curtis Crews, who was to take the detainee to the local jail. One of

Mr. Saint-Vil’s videos shows Officer Crews running; the other shows Officers

Rodriguez and Crews handling the detainee outside of the transportation van.

The parties contest whether this video was zoomed-in, which leaves unsettled

the question of how close Mr. Saint-Vil was to the officers as he recorded.

Regardless, this latter video shows that while handling the detainee, Officer

Rodriguez said to Mr. Saint-Vil, “Hey, you need anything?” and signaled a

thumbs up. (Saint-Vil Video, ECF No. 151.) The video abruptly ends there, and

what happened next is the subject of this suit.

A. Saint-Vil’s account

According to Mr. Saint-Vil, he responded to Officer Rodriguez with a “no,

sir” and walked to the back of his van, which he parked nearby, to call his wife.

(Compl. ¶ 20, ECF No. 1.) While he was on the phone with her, Officer

Rodriguez “aggressively approached him” and “demanded to know what he was

doing.” (Compl. ¶ 22; see also Dep. of Indre Grigaite 34:1-8, ECF No. 140-7.)

He told Officer Rodriguez that he was waiting for some equipment but Officer

Rodriguez simply “shouted to Mr. Saint-Vil, ‘you are coming with me.’” (Compl.

¶¶ 21-22.) While he asked Officer Rodriguez why he was being detained, Mr.

Saint-Vil saw Officer Rodriguez pull out a taser, which prompted him to yell

“Sir, what are you doing?” (Compl. ¶ 22.) Next, “Officer Rodriguez, unprovoked

and for no reason,” tased him. (Id.)

“In shock and disbelief . . . Mr. Saint-Vil removed the taser probes

from his body and ran toward the boardwalk behind the hotel[,]” which led to

the beach. (Compl. ¶ 23.) As Officer Rodriguez pursued Mr. Saint-Vil on foot,

he called for back-up. Officer Alfredo Garcia responded. Officer Garcia says he

commanded Mr. Saint-Vil to stop, “yelling to him, ‘Police, stop, police.’” (Dep. of

Off. Garcia 90:23-24, ECF No. 135-7.) Mr. Saint-Vil obeyed.

After Mr. Saint-Vil stopped—at this point, on the beach—Officer Garcia

says Mr. Saint-Vil assumed a “bladed stance” with clenched fists and arms

held “in an aggressive manner . . . around his chest,” which Officer Garcia

thought to mean that Mr. Saint-Vil would resist arrest or try to harm him. (Id.

63:10-13, 64:7-11.) In response, Officer Garcia says he deployed his taser gun

upon Mr. Saint-Vil, which incapacitated him and caused Mr. Saint-Vil to fall to

the ground. (Id. 67:13-15.) Once the five-second taser cycle ended, Officer

Garcia says he and Officer Rodriguez tried to handcuff Mr. Saint-Vil, who

resisted them. (Id. 67:17-19.) Officer Garcia says he warned Mr. Saint-Vil that

he would again tase him if he did not comply, but Mr. Saint-Vil continued to

“tense his body and throw his arms and legs.” (Id. 67:19-21, 69:1-5.) Officer

Garcia tased Mr. Saint-Vil a second time.

Mr. Saint-Vil denies ever assuming “a threatening or fighting stance”

toward Officer Garcia. (Decl. of Ronald Saint-Vil ¶ 14, ECF No. 140-2.) At some

point on the beach, Mr. Saint-Vil passed out and later awoke to find himself

handcuffed and surrounded by officers. (Dep. of Ronald Saint-Vil 165, ECF No.

72-1.) When he awoke, Mr. Saint-Vil says an officer derided him by saying

“Who got the biggest dick now, [n****r!]” and “You thought you were fast

[n****r], now we got you.” (Compl. ¶ 26.) He alleges at least one of those

statements was said by Officer Rodriguez. (Id. n.1.)1 Later that night, Mr. Saint-

Vil also says that Officer Rodriguez ordered him to “shut the [f**k] up, [n****r].”

(Id. ¶ 28.)

B. Officer Rodriguez’s account

Officer Rodriguez denies calling Mr. Saint-Vil a n****r. (Dep. of Off.

Rodriguez 40:1-9, ECF No. 140-35.) He relates a different version of what

happened after Mr. Saint-Vil’s video cuts off. According to Officer Rodriguez,

after he asked Mr. Saint-Vil if he needed anything, Mr. Saint-Vil said “no” but

drew dangerously near to him and Officer Crews while they were in the process

of changing the handcuffs on the detainee Mr. Saint-Vil recorded. “As a matter

of fact, we had already taken the cuffs off [the detainee], so we couldn’t have

anybody approaching us.” (Dep. of Off. Rodriguez 16:14-15.) Officer Rodriguez

says he repeatedly commanded Mr. Saint-Vil to step back but that Mr. Saint-

Vil “continued approaching and getting closer.” (Id. 17:4-5.) In fact, he says Mr.

Saint-Vil got close “to the point where I put my hand on his chest to make him

stop.” (Id. 18:3-5.) Mr. Saint-Vil, in turn, says he was “never given any

instructions[,]” and that if he had been instructed, he would have obeyed. (Dep.

of Ronald Saint Vil 140:15-20.)

But by Officer Rodriguez’s account, Mr. Saint-Vil slapped his hand and

“continued trying to push through [him].” (Dep. of Off. Rodriguez 19:4-5.) As a

result, Officer Rodriguez says he approached Mr. Saint-Vil to arrest him for

battery. That is when Officer Rodriguez says he noticed “a strong odor of

alcohol emitting from [Mr. Saint-Vil’s] breath” paired with slurred speech. (Id.

1 In the summary judgment briefing, Mr. Saint-Vil represented that both statements came from

Officer Rodriguez. (See Decl. of Ronald Saint-Vil ¶ 7; ECF No. 149, 4.)

21:20-22:8.) Mr. Saint-Vil denies having more than one drink that night. (Dep.

of Ronald Saint-Vil 94:17-26, 95:1-2.)

Officer Rodriguez did not tell Mr. Saint-Vil why he was being placed

under arrest but commanded Mr. Saint-Vil to allow himself to be arrested.

(Dep. of Off. Rodriguez 29:7-12, 29:21-24.) According to Officer Rodriguez, Mr.

Saint-Vil would not comply. (Id.) As such, he says he grabbed Mr. Saint-Vil’s

arm and that Mr. Saint-Vil again slapped his hand. (Id. 16:19-20.) Officer

Rodriguez says he first deployed his taser after Mr. Saint-Vil slapped his hand

away this second time. (Id. 29:7-12.)

Officer Crews, says he saw Mr. Saint-Vil “forcefully” push Officer

Rodriguez’s hand away. (Dep. of Off. Crews 69:20-22, ECF No. 135-3.)

However, Mr. Saint-Vil denies ever initiating “any contact with the officer,” and

says that that Officer Rodriguez “never placed his hand on my chest.” (Dep. of

Ronald Saint-Vil 141:3-13; see Decl. of Ronald Saint-Vil ¶ 12.)

In any event, Officer Rodriguez’s taser made contact with Mr. Saint-Vil

but did not incapacitate him, thus allowing Mr. Saint-Vil to flee. (Dep. of Off.

Rodriguez 31:15-17.) While in pursuit, Officer Rodriguez again deployed his

taser unsuccessfully and called for help as described above. (Arrest Aff. 2, ECF

No. 72-5.) By Officer Rodriguez’s account, Officer Garcia caught up to Mr.

Saint-Vil and successfully incapacitated him after administering a five-second

taser shock. (Id.) Once that five-second cycle ended, Officer Rodriguez says he

“tried to place Saint [sic] in custody but Saint kept on resisting and fighting.”

(Id.) That led to Officer Garcia tasing Mr. Saint-Vil again. (Id.) Mr. Saint-Vil

does not independently recall how many times he was tased; he says he

“knocked out for a second” after he fled and woke up to approximately eight

officers surrounding him. (Dep. of Ronald Saint-Vil 169:3-11.)

While Officers Rodriguez and Garcia waited for other first responders to

arrive, Officer Rodriguez recalls that Mr. Saint-Vil “was still being belligerent

and [that] he had a strong odor of alcohol.” (Dep. of Off. Rodriguez 37:6-7.) He

also says that Mr. Saint-Vil “vomited on the sand and you could smell a strong

odor of alcohol coming from his vomit.” (Id. 37:8-9.) Mr. Saint-Vil was taken to

Mount Sinai Hospital as a result of being tased. Medical records note that he

appeared “oriented” and “well” with no mention of him appearing intoxicated.

(ECF No. 140-4, 9.)

Although the State originally charged Mr. Saint-Vil with crimes including

battery, resisting arrest, and disorderly intoxication, it dropped all charges

against him. (ECF No. 95-4.) This suit against the City and Officer Rodriguez

follows.

2. Legal Standard

Summary judgment is proper if following discovery, the pleadings,

depositions, answers to interrogatories, affidavits and admissions on file show

that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Fed. R. Civ. P. 56. An issue of fact is “material” if it “might

affect the outcome of the suit under the governing law.” Furcron v. Mail Centers

Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (cleaned up). “A material fact

is genuine if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. (internal citation and quotations omitted).

The moving party bears the burden of proof to demonstrate the absence

of a genuine issue of material fact. Celotex, 477 U.S. at 323. All the evidence

and factual inferences reasonably drawn from the evidence must be viewed in

the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250,

1280 (11th Cir. 2004). “If more than one inference could be construed from the

facts by a reasonable fact finder, and that inference introduces a genuine issue

of material fact, then the district court should not grant summary judgment.”

Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

Once a party properly makes a summary judgment motion by

demonstrating the absence of a genuine issue of material fact, the nonmoving

party must go beyond the pleadings through the use of affidavits, depositions,

answers to interrogatories and admissions on file, and designate specific facts

showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323–24. The

nonmovant’s evidence must be significantly probative to support the claims.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not

weigh the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d

920, 924 (11th Cir. 2003). Rather, the Court will decide whether there is

sufficient evidence upon which a reasonable juror could find for the nonmoving

party. Id.

3. Discussion

Mr. Saint-Vil alleges three counts against the City and seven counts

against Officer Garcia.2 The Court evaluates each Defendant’s motion for

summary judgment individually.

2 The Complaint delineates through Count XI but does not contain a Count VI.

A. The City’s Motion

Mr. Saint-Vil sues the city for: (1) battery stemming from Officer Garcia’s

tasing him a second time (Count III); (2) negligent infliction of emotional

distress (“NIED”) as a result of the same (Count IX); and (3) failure to train and

supervise Officers Crews and Garcia on account of Officer Crews’s failure to

intervene and Officer Garcia’s excessive use of a taser (Count X).

Under Florida law, the City is liable for any “injury or damage suffered as

a result of an act, event, or omission” committed by an officer if the officer did

not act “in bad faith or with malicious purpose or in a manner exhibiting

wanton and willful disregard of human rights, safety, or property.” Fla. Stat.

§ 768.28(9)(a). If the officer did act in such a manner, the officer is personally

liable instead. Id. For the reasons below, the Court enters summary judgment

in favor of the City on all counts.

(1) Count III – Battery

Mr. Saint-Vil does not allege that Officer Garcia acted with “bad faith.”

Therefore, the City may be liable for the battery claim arising from Officer

Garcia’s second tase. Under Florida law, a battery occurs when a person

“[a]ctually and intentionally touches or strikes another person against the will

of the other[,]” or, where a person “[i]ntentionally causes bodily harm to

another.” See Wolk v. Seminole Cnty., 276 F. App’x 898, 900 (11th Cir. 2008);

Fla. Stat. § 784.03(1)(a). “However, [a] person is justified in using force, except

deadly force, against another when and to the extent that the person

reasonably believes that such conduct is necessary to defend himself or herself

or another against the other’s imminent use of unlawful force.” Wolk, 276 F.

App’x at 900 (cleaned up) (quoting Fla. Stat. § 776.012).

Law enforcement officers “need not retreat or desist from efforts to make

a lawful arrest because of resistance or threatened resistance to the arrest.”

Fla. Stat. § 776.05. An officer is “justified in the use of any force . . . [w]hich

he or she reasonably believes to be necessary to defend himself or herself or

another from bodily harm while making the arrest. Id. at § 776.05(1).

Thus, to prevail on his battery claim, Mr. Saint-Vil would have to prove

that Officer Garcia could not have reasonably believed the second tase

necessary to defend himself or others from bodily harm. See Fla. Stat.

§ 776.05(1). To do that, Mr. Saint-Vil would need to cite to some undisputed

evidence in the record that a rational jury could rely on to substantiate the

allegation that he had already passed out when Officer Garcia administered the

second tase. Although the Court views the record in the light most favorable to

him, Mr. Saint-Vil simply cannot do so. The record shows that he does not

independently recall the event and is otherwise devoid of evidence that

corroborates the notion that Mr. Saint-Vil was immobile when Officer Garcia

tased him for the second time. For example:

THE WITNESS: I’m not aware of – I wasn’t really made aware of

how many times I was tased until after I spoke with my

attorney.

[ . . . ]

Q: Well, you just said I didn’t learn about this until I spoke to my

attorney.

A: Right, I didn’t know that I was tased [t]hat many times. I didn’t

know. I know I was tased and I know I had blacked out, but I

didn’t know what was the reason for me passing out.

Q: Yeah, but you only said you were tased one time, and that was

back at the van when the officer first approached you,

correct?

A: I did say that I was tased at that time, but, you know, it was

once they caught up to me on—on the beach, like I said, I

had passed out, I didn’t—I might have got tased and maybe

passed out, I don’t know.

[ . . . ]

Q: Sir, when you were on the beach you said you went

unconscious, when in the whole sequence of events did you

go unconscious?

[ . . . ]

A: When I was on the beach, that’s the only time I remember.

Q: Immediately after you were tased?

[ . . . ]

A: I don’t remember.

(Dep. of Ronald Saint-Vil, 167:4-168:11, 285:20-286:5; see also Decl. of Ronald

Saint-Vil ¶ 13.) Although Mr. Saint-Vil points to Richard Masten’s proffered

expert opinion that the use of force was “excessive,” (Opp. 6, ECF No. 138), Mr.

Masten’s generalized opinion cannot stand in for the particular facts crucial to

Mr. Saint-Vil’s claim. The fact is that Mr. Saint-Vil does not independently

recall when he passed out relative to when Officer Garcia administered the

second tase. That is fatal. Accord Anderson, 477 U.S. at 256 (a non-movant

cannot defeat a properly supported motion for summary judgment “without

offering any concrete evidence from which a reasonable juror could return a

verdict in his favor and by merely asserting that the jury might, and legally

could disbelieve the [movant.]”).

Mr. Saint-Vil also argues that, even assuming Officer Garcia’s facts as

true, his second tase constitutes a battery because it ran contrary to City

policy. (Opp. 5.) That argument fails as a matter of law. In Florida, violations of

police department policies “may not be used to impose civil liability on a police

officer who acts pursuant to a state statute.” Brown v. City of Clewiston, 644 F.

Supp. 1417, 1421 (S.D. Fla. 1986) (Paine, J.) (citing Chastain v. Civil Svc. Brd.

of Orlando, 327 So. 2d 230 (Fla. 4th DCA 1976) (“[I]n an action at law for civil

damages, it is the state standard which is controlling, not the narrower

departmental regulations.”))); see also Brown v. City of Clewiston, 848 F.2d

1534, 1539 (11th Cir. 1988) (“Actually Chief Miller was correct to say that the

State statute [Section 776.05] then in effect ‘superseded’ his policy manual in

terms of the relevant standard for determining Officer Perez’s criminal and civil

liability under Florida law.”).

The inquiry is whether Officer Garcia could have reasonably believed the

second tase necessary to defend himself or others from bodily harm. See Fla.

Stat. § 776.05(1). It is not whether Officer Garcia violated City policy.

Accordingly, Mr. Saint-Vil’s battery claim fails.

(2) Count IX – NIED

Next, Mr. Saint-Vil alleges NIED as a result of “being unnecessarily tased

by Officer Garcia after [he] was already incapacitated[,]” or in other words—

excessive force. (Compl. ¶ 85.) Again, the City’s liability attaches here because

Mr. Saint-Vil does not allege that Officer Garcia acted in “bad faith.” See Fla.

Stat. § 768.28(9)(a).

However, under Florida law, Mr. Saint-Vil’s NIED claim amounts to one

for battery—not NIED. “Florida law dictates that [i]f excessive force is used in

an arrest, the ordinarily protected use of force by a police officer is transformed

into a battery.” Secondo v. Campbell, 327 F. App’x 126, 132 (11th Cir. 2009)

(citing City of Miami v. Sanders, 672 So. 2d 46, 46 (Fla. 3d DCA 1996)); see also

Essex Ins. Co. v. Big Top of Tampa, Inc., 53 So. 3d 1220, 1223 (Fla. 2d DCA

2011) (“Although couched in terms of negligence, O’Fell’s complaint alleges that

Davis used excessive force while arresting him and that such force caused

bodily injury to O’Fell . . . [t]herefore, O’Fell’s complaint alleges a battery[.]”).

Thus, Mr. Saint-Vil’s NIED claim fails as indistinct from his battery claim.

Yet, independent of the above, Mr. Saint-Vil’s NIED claim also fails

because Florida does not recognize a negligence claim premised solely on an

intentional tort. See Brown v. J.C. Penney Corp., 521 F. App’x 922, 924 (11th

Cir. 2013). Florida’s Third District Court of Appeal put it as follows:

“[T]here is no such thing as the ‘negligent’ commission

of an ‘intentional’ tort. A contrary determination places

a chilling effect on law enforcement efforts, and would

render meaningless the defense under Section

776.05(1). Law enforcement officers should not have to

worry about being ‘detectives of perspective’

concerning every potentional [sic] cause of action

flowing from discretionary police functions.”

Sanders, 672 So. 2d at 48 (cleaned up); see also Early v. City of Homestead,

Fla., No. 18-24260-CIV, 2019 WL 3083422, at *2 (S.D. Fla. July 15, 2019)

(Scola, J.) (“Defendants are correct that the Plaintiffs could not state a cause of

action for negligent infliction of emotional distress based on intentional

conduct[.]”); Bickel v. City of Coral Springs, No. 17-CV-60606, 2017 WL

2439078, at *5 (S.D. Fla. June 6, 2017) (Bloom, J.) (“Here, the specific

negligent infliction of emotional distress alleged as the tortious conduct

underlying Count IV’s vicarious liability claim is not legally cognizable, as it

unequivocally pertains to Carter’s ‘wrongful’ use of force during Bickel’s

arrest.”); Guzman v. City of Hialeah, No. 15-23985-CIV, 2016 WL 3763055, at

*7 (S.D. Fla. July 14, 2016) (Gayles, J.) (“[W]here a plaintiff alleges negligent

infliction of emotional distress in the context of a police officer’s infliction of an

intentional tort, such a claim is ‘non-cognizable.’”) (cleaned up); Garcia v.

Carnival Corp., 838 F. Supp. 2d 1334, 1337 (S.D. Fla. 2012) (Moore, J.) (“[I]t is

improper to state a claim for negligence premised solely on the defendant’s

alleged commission of an intentional tort.”).

Although it is true that a NIED claim may stand as a result of some

negligent act that occurred independent of the intentional tort, that is not the

case here. See Sanders, 672 So. 2d at 48; Early, 2019 WL 3083422, at *2

(declining to dismiss a NIED claim pled in parallel to intentional excessive force

claims where an arrestee was made to stand nude publicly).

Mr. Saint-Vil defends his “NIED” claim by citing to City of Boynton Beach

v. Weiss, 120 So.3d 606 (Fla. 4th DCA 2013). There, Florida’s Fourth District

Court of Appeal held that “[r]ecovery for negligent infliction of emotional

distress” was “permitted” in a case where “the jury found that the plaintiff had

been battered.” Id. at 612. In so holding, the Weiss court cursorily found:

“In Florida, the prerequisites for recovery for negligent

infliction of emotional distress differ depending on

whether the plaintiff has or has not suffered a physical

impact from an external force. If the plaintiff has

suffered an impact, Florida courts permit recovery for

emotional distress stemming from the incident during

which the impact occurred, and not merely the impact

itself.”

Id. (citing Eagle–Picher Indus., Inc. v. Cox, 481 So.2d 517, 526 (Fla. 3d DCA

1985)). As support for its ruling, the Weiss court noted that this language had

been “cited with approval” by the Florida Supreme Court in Willis v. Gami

Golden Glades, LLC, 967 So. 2d 846, 850 (Fla. 2007).

However, neither Willis nor Cox involved the question of whether a

negligence claim premised on an intentional tort was cognizable. By the above

language, both the Willis and Cox courts were merely expositing the fact that

Florida recognizes two types of NIED claims: (1) ones where the plaintiff

suffered a physical impact during the subject incident, and (2) ones where a

person other than the plaintiff suffered an impact. Neither court came close to

adjudicating the validity of a NIED claim premised on an intentional tort

committed by a defendant. As such, the Court agrees with the City that Weiss

is an “outlier decision that is inconsistent with the weight of authority[.]” (City’s

Reply 6, ECF No. 157.)

In sum, Mr. Saint-Vil’s NIED claim fails for two independent reasons.

First, because it is tantamount to, and therefore duplicative of, his battery

claim. And second, because it is not cognizable under Florida law, as Mr.

Saint-Vil only alleges that his injuries were the result of an intentional, and not

negligent, act.

(3) Count X – Negligent training and supervision

Last, Mr. Saint-Vil asserts a state law claim against the City for negligent

supervision and training on two grounds:

“91. Specifically, the City failed to supervise and train

officers, like Officer Crews, regarding the duty to

intervene if and when they witness a fellow officer

detaining, or attempting to detain, an innocent person,

and/or utilizing excessive force, and, subsequently,

giving false testimony to support false charges against

an innocent person.

92. The City further failed to supervise and train

officers, like Officer Garcia, on the appropriate, lawful

use of a taser. The City is or should have been aware

that excessive use of force, particularly with tasers,

has been a problem among City of Miami Beach Police

Officers, given past instances of excessive force,

including the death of a young graffiti artist, who was

tasered and killed for spray-painting at a McDonalds.”

(Compl. ¶¶ 91, 92.) In Florida, sovereign immunity attaches to a “city’s decision

regarding how to train its officers and what subject matter to include in the

training[,]” because that decision represents a discretionary governmental

function. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001).

By contrast, no immunity attaches to a city’s implementation of its training

and supervision policies. Id.

Mr. Saint-Vil’s allegation concerning the City’s purported failure to train

officers on a “duty to intervene” represents a clear challenge to the City’s

discretionary decision-making as to the content of its officers’ training

modules. As such, in this respect, Mr. Saint-Vil’s negligent training and

supervision claim is barred by the City’s sovereign immunity and fails as a

matter of law. See Frazier v. Israel, No. 18-CV-61418, 2018 WL 4599622, at *5

(S.D. Fla. Sept. 25, 2018) (Bloom, J.) (“Because Plaintiff’s claim is premised

upon the content of training by the Sheriff, the discretionary function exception

to the waiver of sovereign immunity applies, and Plaintiff’s claim is barred.”).

Mr. Saint-Vil’s allegation concerning the City’s purported failure to train

officers on the lawful use of tasers also falls into this category. At face value,

his claim expresses a generalized challenge concerning the quality of officers’

taser training. That entails the City’s discretion over how to train its officers.

Multiple courts have rejected similar claims. E.g., Waters v. City of Sunrise, No.

21-cv-62542, 2022 WL 1001488, at *10 (S.D. Fla. Apr. 3, 2022) (Bloom, J.)

(rejecting a claim for failure to train officers on use of force); Casado v. Miami-

Dade Cnty., 340 F. Supp. 3d 1320, 1331 (S.D. Fla. 2018) (O’Sullivan, Mag. J.)

(same); Whitaker v. Miami-Dade Cnty., 126 F. Supp. 3d 1313, 1331 (S.D. Fla.

2015) (Lenard, J.) (barring a negligent supervision claim against a municipality

for its purported failure “to adequately train its police officers to employ safe,

reasonable, and necessary techniques designed to de-escalate encounters”).

Thus, Mr. Saint-Vil’s negligent supervision and training claim fails on both

grounds stated in his complaint.

(4) Additional Claims

In the briefing on the City’s motion, Mr. Saint-Vil attempts to stretch his

claim beyond the confines of what the complaint avers by invoking a number of

purported flaws in the City’s training and supervision mechanisms. For

example, Mr. Saint-Vil represents that his challenge actually goes to the City’s

controls in ensuring that officers are up-to-date with their annual taser

recertification trainings. (See Opp. 9-10.) He says that Officer Crews violated

the City’s policy concerning body-worn cameras on the night in question. (Id. at

11.) And he also asserts that the City’s internal affairs investigations are partial

to officers. (Id. at 11-12.)

These points are nowhere in Mr. Saint-Vil’s complaint. Arguments in a

motion do not amend the contents of a pleading. See Mahoney v. Owens, 818

F. App’x 894, 898 (11th Cir. 2020) (“[I]n making the necessary preliminary

determination of what claims the plaintiff has actually raised . . . [the Court

is] bound by the contents of the plaintiff’s pleadings, even on summary

judgment.”) (cleaned up). It would be entirely inappropriate for Mr. Saint-Vil to

amend his claim by way of motion briefing at this juncture. Indeed, “plaintiffs

may not raise new claims at the summary judgment stage.” Id. (cleaned up).

(a) Training and supervision of Officer Garcia

However, in viewing the record in the light most favorable to Mr. Saint-

Vil, the Court acknowledges that the argument concerning the timeliness of

officers’ trainings can be reasonably read into paragraph 92 of the complaint.

In that regard, Mr. Saint-Vil argues that because of a lapse in training, Officer

“Garcia was in violation of the City’s Taser policy and should not have been

permitted to carry a taser between December 21, 2016 . . . and April 19,

2017, when he took his first recertification course.” (Opp. 10.) That allegation

challenges the City’s implementation of its taser recertification training as

applied to Officer Garcia—rather than the City’s discretion—and thus, if viable,

would open the City to liability. See Lewis, 260 F.3d at 1266.

Yet, Mr. Saint-Vil has not established that his injuries were caused by

any purported lapse in Officer Garcia’s taser recertification training. Mr. Saint-

Vil’s suit deals with injuries he alleges he suffered as a result of the incidents

occurring in the early morning of November 11, 2017. As his argument now

goes, “had the City ensured its training and disciplinary policies were being

properly executed and that Garcia and Rodriguez were attending all their

required training courses, Garcia and Rodriguez may not have used their

Tasers improperly” against him. (Opp. 11.) But the record is clear that Officer

Garcia completed his annual taser recertification training on April 19, 2017,

and thus was permitted to carry a taser on the night in question. (Sept. 15,

2021 Dep. of the City’s Rep. Osvaldo Ramos 8:12-25, ECF No. 140-28; Off.

Garcia Training History, ECF No. 140-30; see also Dep. of Richard Masten

218:20-25, ECF Nos. 166-1, 171-1.) In all, Mr. Saint-Vil has not shown,

through undisputed evidence, that his injuries stem from a failure by the City

to properly implement its taser training and supervision policies as to Officer

Garcia in the referenced timeframe. Accordingly, Mr. Saint-Vil’s negligent

supervision and training claim would fail even if it applied to the City’s

supervision and training of Officer Garcia.

(b) Training and supervision of Officer Rodriguez

As seen above, Mr. Saint-Vil also discusses Officer Rodriguez’s training

and supervision. Again, the complaint does not mention Officer Rodriguez as

the object of the negligent supervision and training claim. To the extent Mr.

Saint-Vil purports to base his claim on the City’s alleged shortcomings with

respect to Officer Rodriguez, the Court finds this too represents an

inappropriate attempt at modifying his pleading.

Nevertheless, had Mr. Saint-Vil pled Officer Rodriguez as the object of

this claim, it would still fail.

Mr. Saint-Vil alleges that Officer Rodriguez, “in targeting, tasing, and

arresting [him] for no apparent reason . . . acted in bad faith and with a

malicious purpose.” (Compl. ¶ 29.) That allegation is not without consequence.

As discussed earlier, Mr. Saint-Vil cannot sue the City for injuries stemming

from acts or omissions that an officer commits “in bad faith or with a malicious

purpose[.]” Fla. Stat. ¶ 768.28(9)(a); McGhee v. Volusia Cnty., 679 So. 2d 729,

733 (Fla. 1996). Consequently, even if the City did inadequately train or

supervise Officer Rodriguez on the appropriate use of a taser, Mr. Saint-Vil pled

himself out of suing the City for purportedly failing to train and supervise

Officer Rodriguez. See Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012) (in

cases where an employee acts with bad faith or malicious purpose, “the

plaintiff can recover only from the employee, not from the State.”); Dukes v.

Miami-Dade Cnty., No. 05-22665-CIV, 2006 WL 8433284, at *2 (S.D. Fla. July

10, 2006) (Huck, J.) (“Section 768.28 tends to cause plaintiffs to bring

‘mutually exclusive’ claims against a governmental entity and its employees.”);

see also Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1394 (S.D. Fla. 2008)

(Altonaga, J.) (“Florida courts have routinely held that a governmental entity

may not be held liable where its employee’s actions were malicious, in bad

faith, or showed reckless and wanton disregard . . . .” ); Bakri v. City of

Daytona Beach, No. 608-CV-1572-ORL28GJK, 2009 WL 1587165, at *2 (M.D.

Fla. June 5, 2009) (“even where malice is not an element of a cause of action, if

a plaintiff pleads that the individual municipal agents acted maliciously, a valid

claim is not stated against the municipality[.]”).

The court in Vasconez v. Hansell analyzed this very point:

“Suppose, for example, that a deputy commits a tort

while acting within the scope of his or her office. Under

Fla. Stat. § 768.28(9), the sheriff’s department is

automatically liable for the tort, unless it was

committed ‘in bad faith or with malicious purpose or

in a manner exhibiting wanton and willful disregard of

human rights, safety, or property.’ In the former case,

obviously, there is no need to assess the deputy’s

training, as the department is on the hook no matter

what sort of training was provided. In the latter case,

holding the department liable under a negligent

training theory would appear to contravene Fla. Stat.

§ 768.28(9), which provides that the government ‘shall

not be liable in tort for the acts or omissions of an

officer, employee, or agent . . . committed in bad

faith or with malicious purpose or in a manner

exhibiting willful disregard of human rights, safety, or

property.’”

871 F. Supp. 2d 1339, 1344 (M.D. Fla. 2012) (citing Miami–Dade County v.

Cardoso, 922 So.2d 301, 302 (3d DCA 2006) (Schwartz, J., concurring)

(“‘negligent training’ is not, as a matter of law, a distinct theory of liability for

compensatory damages which can form the basis of a separate award.”)).

This conclusion is consistent with the fact that Section 768.28

immunizes the City immunity from suit—not just liability—in respect of

injuries resulting from officers’ “bad faith.” See White v. Mesa, 817 F. App’x

739, 742 (11th Cir. 2020). To be clear, the Court is not saying that Mr. Saint-

Vil could not have pled his negligent training and supervision claim as an

alternative claim. The record simply shows that he chose not to so do. Indeed,

Mr. Saint-Vil’s allegation of Officer Rodriguez’s “bad faith” allegation is the

basis for Mr. Saint-Vil’s state law battery claims against Officer Rodriguez,

which is premised on Officer Rodriguez’s taser use. (Compl. ¶¶ 50, 54.)

Section 768.28(9)(a) thus requires the Court to conclude that the City

and Officer Rodriguez are incompatible defendants for purposes of a negligent

training and supervision claim that concerns Officer Rodriguez’s taser use. See

Gregory v. Miami-Dade Cnty., Fla., 719 F. App’x 859, 873 (11th Cir. 2017) (“[I]f

the factual allegations can occur only from bad faith or malicious or wanton

and willful conduct, then the claim against the government entity fails under §

768.28.”); Willis v. Dade Cnty. Sch. Bd., 411 So. 2d 245, 246 (Fla. 3d DCA

1982)(“We find no error in the determination of the trial court with respect to

Count I that a complaint which alleges a ‘malicious’ assault and battery fails to

state a cause of action pursuant to Section 768.28 . . . .”); see also Ford v.

Rowland, 562 So. 2d 731, 734 (Fla. 5th DCA 1990) (claim against

governmental entity barred by sovereign immunity where plaintiff must prove

bad faith against an individual defendant to prevail in separate claim against

that defendant); Parker v. State of Fla. Bd. of Regents ex rel. Fla. State Univ.,

724 So. 2d 163, 169 (Fla. 1st DCA 1998) (same).

Last, the Court notes that Mr. Saint-Vil makes no mention of Officer

Rodriguez’s “bad faith” in any of his claims against the City. This underscores

Mr. Saint-Vil’s intention to not plead in the alternative with respect to Officer

Rodriguez’s taser use. As such, Mr. Saint-Vil’s negligent supervision and

training claim against the City would fail even if it applied to the City’s training

and supervision of Officer Rodriguez—which it does not.

B. Officer Rodriguez’s Motion

Mr. Saint-Vil asserts three claims against Officer Rodriguez under 42

U.S.C. § 1983 and four state law claims. The section 1983 claims are for: false

arrest (Count IV); violation of the Fourteenth Amendment’s Equal Protection

Clause (Count V); and First Amendment retaliation (Count VII). The state law

claims are for: false arrest (Count I), battery (Count II), intentional infliction of

emotional distress (“IIED”) (Count VIII), and malicious prosecution (Count XI).

(1) Section 1983 claims

Officer Rodriguez argues that qualified immunity protects him from

Mr. Saint-Vil’s section 1983 claims. To receive qualified immunity, an officer

“bears the initial burden [of] prov[ing] that he acted within his discretionary

authority.” Strolis v. Heise, 834 F. App’x 523, 526 (11th Cir. 2020) (cleaned up),

cert. denied, 142 S. Ct. 116 (2021). Once an officer clears that threshold, he is

entitled to qualified immunity under section 1983 “unless (1) [he] violated a

federal statutory or constitutional right, and (2) the unlawfulness of [his]

conduct was clearly established at the time.” Id. (cleaned up).

While viewing the record in the light most favorable to Mr. Saint-Vil, the

Court finds that Officer Rodriguez has proven that he was acting within the

scope of his discretionary authority as a police officer during the events in

question. “[D]iscretionary authority includes all actions of a governmental

official that (1) were undertaken pursuant to the performance of his duties, and

(2) were within the scope of his authority.” Patel v. City of Madison, Ala., 959

F.3d 1330, 1338 (11th Cir. 2020) (cleaned up).

In considering whether Officer Rodriguez’s actions on the night in

question fell within his discretionary authority, the Court is to “strip out the

allegedly illegal conduct” and look at the “general nature of [his] action[s],

temporarily putting aside the fact that it may have been committed for an

unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate

circumstances.” Spencer v. Benison, 5 F.4th 1222, 1231 (11th Cir. 2021)

(cleaned up) (emphasis added); see also Carruth v. Bentley, 942 F.3d 1047,

1055 (11th Cir. 2019) (“A plaintiff cannot plead around qualified immunity

simply by saying that the official was animated by an unlawful purpose. The

exception would swallow the rule.”); Harbert Int’l, Inc. v. James, 157 F.3d 1271,

1282 (11th Cir. 1998) (“The inquiry is not whether it was within the defendant’s

authority to commit the allegedly illegal act. Framed that way, the inquiry is no

more than an ‘untenable’ tautology.”).

On the night in question, Officer Rodriguez was acting as an on-duty

police officer responsible for safely transferring an arrestee to Officer Crews. It

is within a law enforcement officer’s authority to detain persons and to use

force in doing so. Accordingly, putting the alleged constitutional infirmity aside,

as it must, the Court finds that Officer Rodriguez was acting within the scope

of his discretionary authority when he interacted with Mr. Saint-Vil.

With that threshold matter resolved, the Court next finds that Mr. Saint-

Vil’s Equal Protection claim fails as a matter of law and that genuine issues of

material fact prevent the Court from entering summary judgment with respect

to the false arrest and First Amendment retaliation claims.

(a) Count V – Equal Protection claim

To state an Equal Protection claim, Mr. Saint-Vil “must allege that

through state action, similarly situated persons have been treated disparately

. . . and put forth evidence that [Officer Rodriguez’s] actions were motivated

by race.” See Draper v. Reynolds, 369 F.3d 1270, 1278 n.14 (11th Cir. 2004)

(cleaned up). Thus, a showing of discriminatory effect in addition to one of a

discriminatory purpose is required. See B.T. v. Battle, No. 21-10318, 2021 WL

4147087, at *3 (11th Cir. Sept. 13, 2021).

The Eleventh Circuit recently reiterated this two-prong standard in

Mahoney, 818 F. App’x 894. There, the plaintiffs alleged that an officer ordered

them to a traffic stop because of their race. See id. at 897. The record included

proof that the officer later resigned from his position “after his supervisor

learned that he had used racial slurs and exchanged racially inflammatory

memes and jokes with a colleague at a previous job.” Id. at 896. Nevertheless,

the Eleventh Circuit held that the officer would still be entitled to summary

judgment on an Equal Protection claim because the plaintiffs “presented no

evidence that [Owens] treated [non-Black motorists] differently from Black

motorists.” Id. at 899 (cleaned up).

Here, Mr. Saint-Vil does not point to any evidence showing that Officer

Rodriguez treated similarly-situated persons differently. To the contrary, the

record reflects Officer Rodriguez’s testimony that no arrestee has ever lodged a

complaint against him on account of discrimination. (Dep. of Off. Rodriguez

76:7-8); see B.T., 2021 WL 4147087, at *5 (considering a defendant officer’s

testimony that he had not witnessed persons of other races engaging in

conduct similar to the plaintiff’s). Because Mr. Saint-Vil does not point to any

evidence of disparate treatment, his Equal Protection claim fails.

(b) Counts IV and VIII – False arrest and First Amendment retaliation claims

The record is replete with issues of material fact that prevent the Court

from reaching summary judgment in respect of Mr. Saint-Vil’s false arrest and

First Amendment retaliation claims.

As a threshold matter, the parties diverge on how close Mr. Saint-Vil was

standing to Officer Rodriguez while he was transferring custody of the arrestee

to Officer Crews. To recall, Mr. Saint-Vil’s alleged interference with Officer

Rodriguez’s handling of the arrestee is what Officer Rodriguez says prompted

the resulting interactions. Whereas Officer Rodriguez represents that he placed

his hand on Mr. Saint-Vil’s chest to keep him from coming close to the arrestee

(Dep. of Off. Rodriguez 18:3-5), Mr. Saint-Vil unequivocally testified that “[t]he

officer never placed his hand on [his] chest.” (Dep. of Ronald Saint Vil 141:6-7.)

Even if the Court were to rely on the video recorded by Mr. Saint-Vil, Mr. Saint-

Vil says he had zoomed in on his camera such that the physical distances

reflected in it are not accurate. (See id. 121:13-19.)

In addition, Officer Rodriguez says he made the decision to arrest Mr.

Saint-Vil after he grabbed Mr. Saint-Vil’s wrist and Mr. Saint-Vil allegedly

slapped his hand away. (Dep. of Off. Rodriguez 21:21-24, 29:25-30:3.)

However, Mr. Saint-Vil says that he “didn’t do anything to restrict [Officer

Rodriguez’s] ability” to grab his wrist. (Id. 149:21-22, 151:9-12.)

These factual discrepancies go directly to the question of whether Officer

Rodriguez had arguable probable cause to arrest Mr. Saint-Vil, which is

determinative of the arrest’s lawfulness. See Skop v. City of Atlanta, Ga., 485

F.3d 1130, 1137 (11th Cir. 2007). They also carry strong implications for the

First Amendment claim. See Khoury v. Miami-Dade Cnty. Sch. Brd., 4 F.4th

1118, 1126 (11th Cir. 2021). In respect of this latter claim, Mr. Saint-Vil must

establish, among others, that there is a causal connection between Officer

Rodriguez’s purportedly retaliatory actions and Mr. Saint-Vil’s exercise of his

free speech (i.e. recording the arrestee’s transfer). See id. at 1129. Because

there is a “significant dispute about the circumstances leading up to Officer

[Rodriguez’s] decision to detain” Mr. Saint-Vil, both of these claims must be

decided at trial. See id. at 1130.

(2) State law claims

Mr. Saint-Vil’s state law claims for IIED (Count VIII) and battery (Count

II) fail as a matter of law, but his claims for false arrest (Count I) and malicious

prosecution (Count XI) must be decided at trial.

(a) Count VIII – IIED

Florida courts “uphold claims of intentional infliction of emotional distress

only in extremely rare circumstances.” Casado, 340 F. Supp. 3d at 1332

(cleaned up). To prevail on an IIED claim, Mr. Saint-Vil must show that: “(1) the

wrongdoer’s conduct was intentional or reckless; that is, he intended his

behavior when he knew or should have known that emotional distress would

likely result; (2) the conduct was outrageous; that is, as to go beyond all

bounds of decency and to be regarded as atrocious and utterly intolerable in a

civilized community; (3) the conduct caused emotional distress; and (4) the

emotional distress was severe.” Id.

Concerning the latter requirement, “severe emotional distress means

emotional distress of such a substantial quality or enduring quality[ ] that no

reasonable person in a civilized society should be expected to endure it.” Brown

v. Bellinger, 843 F. App’x 183, 188 (11th Cir. 2021) (alteration in original)

(citing Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. 2d DCA 2018)).

Mr. Saint-Vil has not put forth evidence that a rational jury could rely upon

to reasonably conclude that his distress meets this threshold. For starters, Mr.

Saint-Vil has not sought any mental health treatment to remediate his

purported distress. (Dep. of Ronald Saint-Vil 215:2-9.) Nor has he made any

plans to seek such treatment. (Id. 243:2-13.) When asked to describe his

distress resulting from the arrest, Mr. Saint-Vil described being

“uncomfortable” and being anxious “about being pulled over” while driving

because of his race. (Id. 216:1-12, 243:2-13.) He also described “isolat[ing]

himself” to keep “out of danger.” (Id. 238:16-20.)

Apart from being uncorroborated by independently reliable evidence, this

level of distress is insufficient for recovery on an IIED claim. See Greer v. Ivey,

767 F. App’x 706, 713 (11th Cir. 2019) (holding that the district court properly

found that plaintiff failed to produce evidence beyond bare allegations of

emotional distress at summary judgment phase where he complained of post-

traumatic stress disorder, depression, anxiety, sleep loss, and fatigue); see also

Kim, 249 So. 3d at 1306 (“[S]ignificant feelings of fright, shame, worry, and

humiliations—and others besides—occasioned by the acts of others are, even if

regrettable, an unavoidable part of living in society.”). Thus, Mr. Saint-Vil’s

IIED claim fails as a matter of law.

(b) Count II – Battery

In Florida, a plaintiff’s battery claim is subsumed into his unlawful arrest

claim if the battery claim concerns an act incident to the arrest. See, e.g.,

Lester v. City of Tavares, 603 So. 2d 18, 19 (5th DCA 1992) (holding that acts

incident to an alleged unlawful arrest “do not give rise to an independent

tort.”); Blanton v. Miami-Dade Cnty., No. 07-22282-CIV, 2007 WL 3118517, at

*2 (S.D. Fla. Oct. 23, 2007) (Seitz, J.) (citing Williams v. Mills, 65 F.3d 155, 158-

59 (11th Cir. 1995)); see also Harris v. Miami-Dade Cnty. Dep’t of Corrs., 160 F.

App’x 814, 817 (11th Cir. 2005).

Mr. Saint-Vil alleges that Officer Rodriguez committed battery when

Officer Rodriguez tased him. (Compl. ¶¶ 47-52.) Putting aside the matter of

whether Officer Rodriguez’s use of the taser was justified, the record shows

that he indisputably tased Mr. Saint-Vil after detaining him. The complaint

plainly states as follows: “When Mr. Saint-Vil began questioning Officer

Rodriguez, in a non-threatening manner, as to why he was being detained,

Officer Rodriguez responded by tasering Mr. Saint-Vil.” (Compl. ¶ 47.) Before

Officer Rodriguez deployed his taser, Officer Rodriguez told Mr. Saint-Vil that

he was “coming with [him],” and the parties agree that Officer Rodriguez

attempted to apprehend Mr. Saint-Vil by the wrist twice. (Dep. of Ronald Saint-

Vil 144:9-16, 153-154; Dep. of Off. Rodriguez 29:7-12.)

As such, Mr. Saint-Vil’s battery claim is subsumed within his false arrest

claim and fails as an independent charge.

(c) Counts IV and XI – False arrest and malicious prosecution

Mr. Saint-Vil’s false arrest and malicious prosecution claims turn on the

question of whether Officer Rodriguez had probable cause to arrest Mr. Saint-

Vil. That inquiry requires a jury to make factual determinations that resolve

the inconsistent accounts provided by the parties. In addition, the question of

whether Mr. Saint-Vil can sue Officer Rodriguez for malicious prosecution

under section 768.28(9)(a) requires a jury’s determination as to whether he

acted “in bad faith, with malicious purpose, or in a manner exhibiting wanton

or willful disregard for human rights, safety, or property.” McGhee, 679 So. 2d

at 733. As such, Mr. Saint-Vil’s false arrest and malicious prosecution claims

must be resolved at trial.

4. Conclusion

For the foregoing reasons, the Court grants the City’s motion (ECF No.

132) in full and partially grants Officer Rodriguez’s (ECF No. 134) as follows:

1. The Court enters summary judgment in favor of the City on Counts III

(battery), IX (NIED), and X (negligent training and supervision), and

2. The Court enters summary judgment in favor of Officer Rodriguez on

counts II (battery), V (violation of Equal Protection under section

1983), and VIII (IIED).

The Court denies Officer Rodriguez’s motion (ECF No. 134) as to counts

I (state law false arrest), IV (false arrest under section 1983), VII (First

Amendment retaliation), and XI (malicious prosecution).

Additionally, the denies as moot both motions (ECF Nos. 167 and

172) concerning Mr. Masten’s deposition.

Done and ordered, in Miami, Florida, on May 19, 2022.

Rdbert N. Scola, Jr.

United States District Judge

3 The complaint does not list a Count VI.