Waters v. Officer Calderon

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-61681-CIV-SINGHAL

VICKI WATERS, as Personal Representative

of the Estate of Brittni A. Muldrew, Deceased, et al.,

Plaintiffs,

v.

CITY OF COCONUT CREEK, et al.,

Defendants.

/

ORDER

THIS CAUSE is before the Court on the Motion to Dismiss Second Amended

Complaint and Motion to Strike Certain Damages Claims (DE [70]) filed by Defendants

Andrea Calderon (“Calderon”), Alejandro Escobar (“Escobar”), Amanda Cummings

(“Cummings”), Arthur Patton (“Patton”), and Ty Morgan (“Morgan”) (collectively the

“Individual Defendants”).

I. BACKGROUND

Plaintiff, Vicki Waters (“Waters”), is the personal representative of the Estate of

Brittni A. Muldrew. Plaintiffs Vicki Waters, Brienna Muldrew, and Rian Muldrew (the

“individual Plaintiffs”) are survivors and sue on their own behalf. Plaintiffs seek damages

under Florida law and under the federal civil rights statute, 42 U.S.C. § 1983, for the death

of Brittni A. Muldrew (“Muldrew”) in a police-involved shooting. Defendants are the City of

Coconut Creek (“City”), five officers sued in their individual capacities, and five “John

Does.”

Plaintiffs’ claims are set forth in a Second Amended Complaint. (DE [49]). That title

is a bit misleading. Plaintiffs filed two Amended Complaints before service of process was

2024. (DE [49]). The Individual Defendants were only served with the Second Amended

Complaint. See (DE [60], [61], and [62]).

Plaintiffs sue the Individual Defendants and John Does for Wrongful Death, Fla.

Stat. § 768.16 et seq. (Counts 1-6), deprivation of Fourth Amendment rights from the use

of excessive force, 42 U.S.C. § 1983 (Counts 7-12), and Fourth Amendment failure to

intervene (Counts 13-17). Plaintiffs also sue Defendants Patton and Cummings under 42

U.S.C. § 1983 based on “supervisorial responsibility” for violations of Plaintiffs’ civil rights.

The Individual Defendants move to dismiss the Second Amended Complaint

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The motion is fully briefed

and ripe for review. For the reasons discussed below, the Motion to Dismiss is granted

with leave to amend.

II. LEGAL STANDARDS

At the pleading stage, a complaint must contain “a short and plain statement of the

claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8(a)

does not require “detailed factual allegations,” it does require “more than labels and

conclusions . . . a formulaic recitation of the cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, “factual allegations

must be enough to raise a right to relief above the speculative level” and must be sufficient

“to state a claim for relief that is plausible on its face.” Id. at 555. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

“limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d

949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th

Cir. 2002)). Courts must review the complaint in the light most favorable to the plaintiff, and

it must generally accept the plaintiff’s well-pleaded facts as true. Hishon v. King & Spalding,

467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir.

2007). However, pleadings that “are no more than conclusions are not entitled to the

assumption of truth. While legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Iqbal, 556 U.S. at 679.

III. DISCUSSION

A. Standing

The Individual Defendants move to dismiss the claims of Plaintiffs Vicki Waters,

Brienna Muldrew, and Rian Muldrew, individually.1 The claims of these individuals are

properly dismissed.

Under Florida’s Wrongful Death Act, only the decedent’s personal representative

may bring suit. Fla. Stat. § 768.20. “Florida's wrongful death statute focuses on the loss

suffered by survivors of the decedent and creates a separate entitlement to damages for

each survivor. However, the survivors cannot bring separate legal actions.” Wiggins v. Est.

of Wright, 850 So. 2d 444, 446 (Fla. 2003). Although the survivors are not parties to the

suit, “[t]he amounts awarded to each survivor and to the estate shall be stated separately

in the verdict.” Fla. Stat. § 768.22. Clearly, lawful survivors may recover damages for the

wrongful death of a decedent. But the estate is the only party that can file suit. Wiggins,

1 The Individual Defendants adopt the standing argument raised by the City of Coconut Creek in its Motion

to Dismiss. (DE [66]). The Court granted the City of Coconut Creek’s Motion to Dismiss, see (DE [82]), but

did not address the standing issue.

claims. See Brown v. Seebach, 763 F. Supp. 574, 580 (S.D. Fla. 1991) (dismissing all

claims of decedent’s parents).

Furthermore, the Individual Plaintiffs have no standing to raise § 1983 claims on

behalf of the decedent. Any claim for constitutional violations must be brought in a

representative capacity by her estate. Walton for Estate of Smith v. Fla. Dept. of Corrections,

2018 WL 1393520, at *6 (M.D. Fla. Mar. 20, 2018). “[A] § 1983 cause of action, by virtue of

the explicit language of the section itself, is a personal action cognizable only by the party

whose civil rights had been violated.” Id. (quoting Jaco v. Bloechle, 739 F.2d 239, 242 (6th

Cir. 1984)). The Individual Plaintiffs have no standing under either the Florida Wrongful

Death Act or 42 U.S.C. § 1983; the individual claims of Vicky Waters, Brienna Muldrew, and

Rian Muldrew are dismissed; any damages to be awarded to them as survivors of Brittni

Muldrew are to be recovered in a suit brought by the Estate. Fla. Stat. § 768.20.

B. John Doe Defendants

Plaintiffs have “named” five John Does as Defendants:

Defendant, JOHN DOES (1-5) (“DOES”) were at all times relevant

to this Complaint, an employee of the CITY and a police officer of

the CCPD. At all times material and relevant to this Complaint,

Defendant JOHN DOES 1-5 acted in their individual capacity, under

color of state law and with complete authority and ratification of the

CITY.

(DE [49] ¶ 16). The DOES are named as Defendants in 3 counts: in Count 6 (Wrongful

Death), Count 12 (Fourth Amendment Excessive Force), and Count 17 (Fourth Amendment-

Failure to Intervene).

Defendants move to dismiss the claims against the JOHN DOE Defendants. “As a

general matter, fictitious-party pleading is not permitted in federal court.” Weiland v. Palm

Beach County Sheriff’s Office, 792 F.3d 1313, 1318 (11th Cir. 2015). Plaintiffs argue that

names can be identified.

Plaintiffs fail to meet the limited circumstances under which a John Doe can be

named in a complaint. Courts will allow “plaintiffs to sue real parties under fictitious names

only when use of a ‘John Doe’ label is, ‘at the very worst, surplusage’ because the plaintiff’s

description of the defendant is ‘sufficiently clear to allow service of process.’” Vielma v.

Gruler, 808 Fed. Appx. 872, 880 (11th Cir. 2020) (quoting Dean v. Barber, 951 F.2d 1210,

1215-16 & n.6 (11th Cir. 1992)). A description of the John Doe’s job title, for example, is

sufficient to identify the intended defendant. Dean, 951 F.2d at 1215-16 (claim against “Chief

Deputy of the Jefferson County Jail John Doe” permitted to stand). But where the complaint

provides “only general physical attributes and a title that is held by many individuals,” it falls

short of enabling a process server to identify an individual. Vielma, 808 Fed. Appx. at 880.

In this case, Plaintiffs only pled that the John Does are police officers. The Amended

Complaint contains no physical description of the JOHN DOES and no specific factual

allegations of any action taken by them from which their identities can be determined. This

is insufficient and cannot stand. Counts 3, 6, and 12 will be dismissed.

C. Wrongful Death Act

The Individual Defendants move to dismiss the wrongful death claims (Counts 1

through 5). The Wrongful Death Act right of action states as follows:

When the death of a person is caused by the wrongful act,

negligence, default, or breach of contract or warranty of any person,

including those occurring on navigable waters, and the event would

have entitled the person injured to maintain an action and recover

damages if death had not ensued, the person or watercraft that

would have been liable in damages if death had not ensued shall be

liable for damages as specified in this act notwithstanding the death

of the person injured, although death was caused under

circumstances constituting a felony.

the factual allegations about the shooting and then allege the following: “[Defendant] caused

the death of Brittni Muldrew intentionally, recklessly, or negligently, in violation of § 768.16,

et seq. Fla. Stats., and in violation of § 782.04, Fla. Stats. (Murder) or of § 782.07, Fla. Stats.

(Manslaughter).” (DE [49] ¶¶ 69, 74, 79, 84, and 89).

Defendants move to dismiss the wrongful death claims on the ground that Plaintiff

does not identify an underlying tort as the basis for the claim. See Laizure v. Avante at

Leesburg, Inc., 109 So. 3d 752, 759-61 (Fla. 2013) (“the ability of the estate and heirs to

recover is predicated on the decedent's entitlement to maintain an action and recover

damages if death had not ensued”). The manslaughter and murder statutes cited by Plaintiff

do not create a private cause of action for damages. Haegele v. Judd, 2020 WL 1640034,

at *3 (M.D. Fla. Apr. 2, 2020).

The wrongful death counts do allege that the Individual Defendants “intentionally,

recklessly, or negligently” caused the death of Brittni Muldrew. This verbiage is conclusory

and fails to allege the elements of any tort. In her response, Plaintiff argues that “shooting

and beating someone is quite obviously assault and battery” and, therefore, underlying torts

have been pled. (DE [74], p. 3). But these torts are not pled. The Court will, therefore, grant

the Motion to Dismiss Counts 1 through 5, but give Plaintiff leave to amend.2

Defendants also argue they are entitled to sovereign immunity from the wrongful

death claims. A governmental employee acting within the scope of his employment is

immune from suit unless he acted “in bad faith, with malicious purpose, or in a manner

2 In a separate order, the Court granted the City of Coconut Creek’s Motion to Dismiss and did not grant

Plaintiff leave to amend. Before the Individual Defendants were served with the Summons and Second

Amended Complaint, the City of Coconut Creek had moved to dismiss Plaintiff’s First Amended Complaint

and Plaintiff responded by amending the pleading. Plaintiff was not granted leave to amend a second time.

The Individual Defendants are in a different posture because they have only responded to the Second

Amended Complaint and were never served with the earlier Complaints.

employee is immune, the claimant’s sole remedy is against the governmental entity. Id.

Defendants argue there are no allegations the Individual Defendants acted outside the

scope of their employment or in bad faith, with malicious purpose, or in a manner exhibiting

wanton and willful disregard.

The Court will deny the motion to dismiss on the sovereign immunity issue without

prejudice. Plaintiff has been granted leave to amend the wrongful death counts. If

appropriate, the Individual Defendants may raise this ground in response to the Third

Amended Complaint.

D. Excessive Force Claims

Individual Defendants Calderon, Patton, Cummings, and Escobar move to dismiss

the excessive force claims in Counts 7 through 10 on the ground that the Second Amended

Complaint fails to allege with specificity who shot Muldrew. Defendants also argue that

Fourth Amendment claims must be evaluated under an “objective reasonableness” standard

and the Second Amended Complaint does not allege facts that would show Defendants’

conduct was unreasonable. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). The Court

disagrees.

Plaintiff alleges that Muldrew was shot 9 times during a traffic stop. 3 (DE [49], ¶ 54).

Plaintiff also alleges that Calderon, Patton, Cummings, and Escobar had guns drawn and

pointed toward Muldrew. Id. ¶¶ 38, 49, 51, and 53. Plaintiff alleges “they open fire on Brittni

3 A plaintiff may, but need not, refer to video in her pleading. When a video is included with the complaint, the

court “must construe all ambiguities in the video footage in favor of the plaintiff.” Jackson v. City of Atlanta,

Georgia, 97 F.4th 1343, 1350 (11th Cir. 2024) (quotations omitted). But if the events recorded on the video

obviously contradict the plaintiff’s alleged facts, the court must “accept the video’s depiction instead of the

complaint’s account.” Id. The parties briefed the present motion before Plaintiff filed the videos. See Notice of

Conventional Filing (DE [81]).

Brittni none of them were in any danger.” Id. ¶¶ 54-55.

The Court reads the Second Amended Complaint to allege that all the officers fired

shots. Whether the officers’ actions were reasonable cannot be determined at this stage.

The Court will deny the Motion to Dismiss as to Counts 7 through 10 without prejudice to

renew in the event Plaintiff includes video in her Third Amended Complaint.

E. Excessive Force Claim against Defendant Morgan

Defendant Morgan moves to dismiss the excessive force claim against him (Count

11) because the Second Amended Complaint appears to acknowledge that Muldrew was

already deceased at the time of Morgan’s use of force. According to the Second Amended

Complaint, Muldrew was shot, “her body was … removed from the automobile … [and]

Morgan approached [the] body with his cold steel telescopic baton drawn and began

repeatedly with full force striking Brittni’s head with his baton.” Id. ¶ 57. Morgan argues that

the reference to Muldrew’s “body” implies that she was already dead when he began beating

her head. Once a person is deceased there can be no constitutional violations. See

Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979) (“After death, one is no longer a

person within our constitutional and statutory framework and has no rights of which he may

be deprived.”).

Plaintiff responds that the moment of death has not been determined or proven and,

therefore, the constitutional claim for excessive force can proceed. The Court agrees. At this

stage, dismissal of the excessive force claim against Morgan is premature.4

4 Plaintiff’s arguments about mishandling a corpse have no bearing on the constitutional claim of use of

excessive force. The Estate has not raised a claim for mishandling a corpse and the Constitution does not

encompass protection for corpses.

Counts 13 through 16 allege that Defendants Escobar, Cummings, Patton, and

Calderon5 violated Muldrew’s constitutional rights by failing to intervene in and stop

Morgan’s alleged use of excessive force. Defendants move to dismiss these counts.

“[A]n officer who is present at the scene and fails to take reasonable steps to protect

the victim of another officer’s use of excessive force can be held liable for his nonfeasance.”

Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985). An officer will not be

liable for failure to intervene if he did not have a reasonable opportunity to protect the victim.

Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996).

Defendants argue the Second Amended Complaint does not allege sufficient facts to

support a claim for failure to intervene because it does not allege facts that would show the

Individual Defendants had a reasonable opportunity to protect Muldrew. The issues raised

by the Individual Defendants are more appropriately resolved at summary judgment or trial.

The Motion to Dismiss Counts 13 through 16 is denied.

G. Supervisory Liability

In Counts 19 and 20, Plaintiff alleges “supervisory liability” by Defendants Patton and

Cummings. Defendants move to dismiss. First, Defendants are unsure whether Counts 19

and 20 are directed against Patton and Cumming or against the City of Coconut Creek. The

Court shares that confusion. Indeed, in the Order on the City of Coconut Creek’s Motion to

Dismiss, the Court construed Counts 19 and 20 as being made against the City. But to the

extent these counts are intended to be against Patton and Cummings in their individual

capacities, the Court will consider them here.

5 Count 17 alleges the JOHN DOES failed to intervene in Morgan’s alleged use of excessive force. The

Court dismissed the claims against the JOHN DOES, infra, but this analysis applies to Count 17 as well.

responsibility or respondeat superior. Keith v. DeKalb County, Georgia, 749 F.3d 1034, 1047

(11th Cir. 2014). “Instead, to hold a supervisor liable a plaintiff must show that the supervisor

either directly participated in the unconstitutional conduct or that a causal connection exists

between the supervisor's actions and the alleged constitutional violation.” Id. A causal

connection exists

when a history of widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation, and he fails to do

so. Alternatively, the causal connection may be established when a

supervisor's custom or policy ... result[s] in deliberate indifference to

constitutional rights or when facts support an inference that the

supervisor directed the subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop them from doing so.

Id. at 1048. “[T]he standard by which a supervisor is held liable in her individual capacity for

the actions of a subordinate is extremely rigorous.” Christmas v. Harris County, Georgia, 51

F.4th 1348, 1355 (11th Cir. 2022).

The Second Amended Complaint fails to allege any factual basis that would support

a claim for supervisory liability against Patton or Cummings: Plaintiff alleges no facts to show

that Patton and Cummings were Morgan’s supervisors; Plaintiff does not allege that Patton

or Cummings participated in any way in Morgan’s activities; and Plaintiff does not allege that

Patton or Cummings in any way had prior notice of a need to correct Morgan. There are,

simply, no allegations that would support individual liability of Patton or Cummings. To the

extent they are addressed to Patton and Cummings in their individual capacities, Counts 19

and 20 are dismissed.

H. Damages

Defendants move to strike Plaintiff’s claims for damages, arguing they are

insufficiently pled and/or not recoverable under Florida’s Wrongful Death Act and Section

1983. Most of Defendants’ arguments are moot because the claims made by the individual

Plaintiffs have been dismissed. The wrongful death counts simply seek those damages

recoverable under the statute, so there are no problems there. Likewise, after dismissal of

the Individual Plaintiffs’ claims, the § 1983 claims are only brought by the Estate on behalf

of Brittni Muldrew. There is no basis for striking the damages claims. If this case were to go

to trial, the Court and the parties will address the issue of damages at that time.

IV. CONCLUSION

For the reasons discussed above, it is hereby

ORDERED AND ADJUDGED that the Individual Defendants’ Motion to Dismiss

Second Amended Complaint (DE [70]) is GRANTED IN PART AND DENIED IN PART.

The individual claims of Vicky Waters, Brienna Muldrew, and Ryan Muldrew are

DISMISSED for lack of standing. The claims against the JOHN DOE Defendants (Counts

6, 12, and 17) are DISMISSED. Counts 1 through 5 are DISMISSED WITH LEAVE TO

AMEND. Counts 19 and 20 are DISMISSED. Plaintiff may amend Counts 19 and 20

ONLY IF Plaintiff can allege a good faith, non-conclusory, and factual basis for

supervisory liability. The remainder of the Motion to Dismiss is DENIED. Plaintiff shall file

a Third Amended Complaint by AUGUST 15, 2024.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 5th day of

August 2024. \

UNITED STATES DISTRICT JUDGE

Copies furnished counsel via CM/ECF

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