Aguilar Mendez v. St. Johns County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

)

VIRGILIO AGUILAR MENDEZ, )

)

Plaintiff, )

)

v. ) CIVIL ACTION

) NO. 3:24-00195-WGY-PDB

ST. JOHNS COUNTY, a political )

subdivision of the State of )

Florida, MICHAEL KUNOVICH, through )

his personal representative of his )

estate, in his official and )

individual capacity as a St. Johns )

County police officer, and ROBERT )

A. HARDWICK, in his official )

capacity as Sheriff of St. Johns )

County and his individual capacity )

as a St. Johns County police )

officer, GAVIN HIGGINS, in his )

individual capacity as a St. Johns )

County police officer, and GEORGE )

MONTGOMERY, in his individual )

capacity as a St. Johns County )

police officer, )

)

)

Defendants. )

)

YOUNG, D.J.1 May 14, 2025

ORDER

Virgilio Aguilar Mendez (“Aguilar Mendez”) brought this

suit against St. Johns County, Michael Kunovich (“Kunovich”)

through the representative of his estate and in his official and

individual capacity as a St. Johns County police officer, Robert

1 Of the District of Massachusetts, sitting by designation.

A. Hardwick (“Hardwick”) in his official capacity as Sheriff of

St. Johns County and his individual capacity, and Gavin Higgins

(“Higgins”) and George Montgomery (“Montgomery”) in their

individual capacities as St. Johns County police officers

(collectively, “the Defendants”). See Second Am. Compl.

(“SAC”), ECF No. 44. Aguilar Mendez alleges that Kunovich

unconstitutionally searched and seized him in violation of the

Fourth Amendment; that Higgins and Montgomery, together with

Kunovich, falsely arrested and battered him under Florida law;

that St. Johns County and Hardwick in his official capacity

violated the Equal Protection Clause, established

unconstitutional policies or customs that caused him injury, and

failed to train Kunovich and others, also causing him harm; that

Hardwick in his official capacity defamed him in connection with

a constitutional violation, inflicting a “stigma plus” injury;

and that Hardwick in his individual capacity defamed him, abused

legal process, and intentionally inflicted emotional distress on

him, the last of which Kunovich did as well. Id. ¶¶ 113-239.

The Defendants moved to dismiss all counts against them.

Def. Def. St. Johns County’s Mot. Dismiss Pl.’s Second Am.

Compl. (“Def. St. Johns County Mem.”), ECF No. 48; Defs. Higgins

& Montgomery’s Mot. Dismiss Pl.’s Second Am. Compl. (“Defs.

Higgins & Montgomery’s Mem.”), ECF No. 49; Def. Kunovich’s Mot.

Dismiss Pl.’s Second Am. Compl. (“Def. Kunovich’s Mem.”), ECF

No. 50; Def. Sheriff Hardwick’s Mot. Dismiss Pl.’s Second Am.

Compl. (“Def. Hardwick’s Mem.”), ECF No. 51. Aguilar Mendez

opposed these motions. Mem. Law Opp’n Mot. Dismiss Def.

Kunovich (“Pl.’s Opp’n Kunovich”), ECF No. 55; Mem. Law Opp’n

Mot. Dismiss Defs. Higgins & Montgomery (“Pl.’s Opp’n Higgins &

Montgomery”), ECF No. 56; Mem. Law Opp’n Mot. Dismiss Def.

Hardwick (“Pl.’s Opp’n Hardwick”), ECF No. 57; Mem. Law Opp’n

Mot. Dismiss Def. St. Johns County (“Pl.’s Opp’n St. Johns”),

ECF No. 58.

At a hearing held on April 30, 2025, after hearing

argument, this Court took the matter under advisement. Minute

Entry, ECF No. 66. The Defendants’ motions to dismiss are

hereby DENIED in part as to all counts against Kunovich and

against Higgins and Montgomery, and ALLOWED in part as to all

counts against St. Johns County and Hardwick.

First, Kunovich’s motion to dismiss is denied as to all

counts against him. Aguilar Mendez adequately alleges that

Kunovich stopped and seized him without reasonable suspicion,

grabbing his arm and ordering him not to walk away based only on

his presence in a (possibly) high-crime area, SAC ¶¶ 41-57, 150,

176-77, which is unconstitutional under clearly established law,

Brown v. Texas, 443 U.S. 47, 51-52 (1979) (“The fact that [the

suspect] was in a neighborhood frequented by drug users,

standing alone, is not a basis for concluding that [the suspect]

himself was engaged in criminal conduct.”). Kunovich’s argument

that Aguilar Mendez was in fact fleeing, Def. Kunovich’s Mem.

11-12, presents a fact issue not proper for this Court to

resolve at this stage.2 Aguilar Mendez also adequately alleges

that Kunovich knowingly escalated this seizure into a false

arrest for a malicious purpose, that is, to cover up the initial

unconstitutional stop and with disregard for the arrest’s

unconstitutionality, Compl. ¶ 135, overcoming the statutory

immunity bar on tort actions based on non-malicious acts done in

the course of an officer’s duty, see Butler v. Gualtieri, 41 F.

4th 1329, 1336-38 (11th Cir. 2022) (describing the fact-

intensive nature of the question whether an officer acted with

malice, bad faith, or willful disregard of human rights, such

that the officer may be held liable for actions done in the

course of duty under Fla. Stat. § 768.28(9)(a)); see also

2 Aguilar Mendez’s complaint references Kunovich’s Body-Worn

Camera video several times, see Compl. ¶¶ 38, 49, 57, 95, 97,

125, 233; Sgt. Kunovich’s Body-Warn Camera Footage, ECF No. 50-

1, but Aguilar Mendez disputes the authenticity of the video,

Pl.’s Opp’n Kunovich 3-5. Although Aguilar Mendez did not

squarely raise the authenticity issue at the April 30 hearing,

nor apparently when conferring with opposing counsel, Def.

Kunovich’s Mem. 4, this Court therefore does not consider the

video here, see Baker v. City of Madison, Ala., 67 F. 4th 1268,

1276 (11th Cir. 2023) (allowing for incorporation-by-reference

of documents attached to motion to dismiss where “documents’

contents are undisputed” (emphasis added)) -- while noting that,

in any case, factual allegations are accepted at the motion to

dismiss stage “where no obviously contradictory video evidence

is available,” id. at 1277-78, which presents a high bar where

the allegations center on a protracted scuffle.

Robbins v. City of Miami Beach, 613 So.2d 580, 581 (Fla. 3d DCA

1993) (permitting false arrest claim to go forward based on

pretextual arrest theory, and describing right to non-violently

resist unlawful arrest); that he used excessive force in

effecting the arrest, committing a state law battery, also with

malice; and that he intentionally and maliciously inflicted

emotional distress on Aguilar Mendez by stopping him without

suspicion and escalating the stop into a knowingly false arrest

which, after a lengthy struggle and the use of excessive force

from multiple officers, culminated in a long imprisonment, see

Corbin v. Prummell, 655 F. Supp. 3d 1143, 1165 (M.D. Fla. 2023)

(noting that, although the outrageousness standard for

intentional infliction of emotional distress claims is

“extremely high” under Florida law, police officers are held to

a higher standard due to their actual or apparent authority and

the potential for abuse of their position (citation omitted)).

Second, Higgins and Montgomery’s motion to dismiss is also

denied. Aguilar Mendez alleges that he began passively

resisting arrest at some point after Kunovich seized him, Compl.

¶¶ 63-64, but, drawing all inferences in his favor as this Court

must at this stage, Aguilar Mendez plausibly alleges that

Higgins and Montgomery knew there was no reasonable suspicion

for the initial stop or probable cause for the arrest, id. ¶

136, and thus that they too maliciously used excessive force to

effect an unlawful arrest, see Gomez v. Lozano, No. 09-22988-

CIV, 2010 WL 11505113, at *6 (S.D. Fla. Dec. 30, 2010)

(acknowledging conclusory nature of plaintiff’s malice

allegations, but allowing claim to go forward on the facts

alleged because “[t]he senseless, random detention and beating

of an innocent pedestrian constitutes wanton or willful

disregard for human rights and raises a strong inference of

malice or bad faith”). “[U]nder Florida law,” moreover,

“probable cause is normally an affirmative defense,” Turner v.

Wlliams, No. 3:19-cv-641-J-32PDB, 2020 WL 1904016, at *12 (M.D.

Fla. Apr. 17, 2020), so Higgins and Montgomery bear the burden

of proof on the issue of whether they had probable cause to

arrest Aguilar Mendez for violently resisting arrest as they

claim they did, see Defs. Higgins & Montgomery’s Mem. 8-9.

Third, St. Johns County’s motion to dismiss is allowed in

full. There is some tension in the law as to whether the county

is a proper party to this lawsuit, C.P. by and through Perez v.

Collier Cnty., 145 F. Supp. 3d 1085, 1097 (M.D. Fla. 2015)

(“Determining the entity a Florida sheriff represents in a

section 1983 official capacity suit has proven problematic.”),

but in any case, Aguilar Mendez’s claims against it are

unsupported by specific facts raising an inference of

discriminatory intent, see Adams v. Demopolis City Schs., 80 F.

4th 1259, 1273 (11th Cir. 2023) (discussing discriminatory

intent requirement for claims based on the Equal Protection

Clause), or of an unconstitutional policy that extends beyond

this incident, see Myrick v. Fulton Cnty., Ga., 69 F. 4th 1277,

1299 (11th Cir. 2023) (requiring plaintiffs to “point to

multiple incidents” when alleging unwritten unconstitutional

policy); Piazza v. Jefferson Cnty., Ala., 923 F.3d 947, 957-58

(11th Cir. 2019) (same, applied to a motion to dismiss); O’Keefe

v. Patterson, No. 8:18-cv-01957-T-02CPT, 2019 WL 652509, at *10

(M.D. Fla. Feb. 15, 2019) (discussing requirement of more than

one prior incident and limited nature of single-instance

exception).

Fourth, Hardwick’s motion to dismiss is allowed as to all

counts, because, as to the official capacity claims against him,

Aguilar Mendez does not allege facts giving rise to an inference

of intentional discrimination or of an unconstitutional policy

extending beyond this single incident, but rather attacks a

smattering of disparate policies; and, as to the individual

capacity claims against him, Hardwick is immune from suit for

defamation based on statements made in the course of his duties,

which duties are “liberally construe[d]” under Florida law,

Gomez v. City of Miami, No. 23-13363, 2024 WL 4369605, at *1-2

(11th Cir. Oct. 2, 2024), Aguilar Mendez generally alleges a

cover-up but not specific facts beyond those statements giving

rise to an inference of abuse of legal process, see Stephens v.

Geoghegan, 702 So.2d 517, 525 (Fla. 2d DCA 1997) (rejecting

“emasculat[ion]” of absolute immunity for official statements by

“letting survive a claim that the offending speech or writing

was intentionally designed to provoke a given response, while

protecting the tortfeasor from the substantive tort of

defamation itself”), nor does he cite any case law to support

his advancement of a novel abuse of process theory, see Scott v.

District of Columbia, 101 F.3d 748, 756 (D.C. Cir. 1996) (“The

fact that the officers expected to realize some benefit from

covering up their own alleged wrongdoing simply points to an

ulterior motive, not the kind of perversion of the judicial

process that gives rise to a cause of action for abuse of

process.”); Bothmann v. Harrington, 458 So.2d 1163, 1169 (Fla.

3d DCA 1984) (“There is no abuse of process, however, when the

process is used to accomplish the result for which it was

created, regardless of an incidental or concurrent motive of

spite or ulterior purpose. In other words, the usual case of

abuse of process involves some form of extortion.”), and

Hardwick’s statements at a press conference and related

allegations do not constitute outrageous conduct of the kind

required to make out an intentional infliction of emotional

distress claim, see Cassell v. India, 964 So.2d 190, 196 (Fla.

4th DCA 2007) (applying defamation privilege to intentional

infliction of emotional distress claim).

For these reasons, this Court rules that Kunovich’s motion

to dismiss is DENIED as to all counts, Higgins and Montgomery’s

motion to dismiss is DENIED as to both counts, St. Johns

County’s motion to dismiss is ALLOWED as to all counts, and

Hardwick’s motion to dismiss is ALLOWED as to all counts.

SO ORDERED.

_/s/ William G. Young_

WILLIAM G. YOUNG

DISTRICT JUDGE