Cruz v. MIAMI DADE COUNTY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 24-23132-Civ-BECERRA/TORRES

LUIGI CRUZ,

Plaintiff,

v.

MIAMI-DADE COUNTY, et al.,

Defendants.

___________________________________________/

REPORT AND RECOMMENDATION ON

DEFENDANT’S MOTION TO DISMISS

This cause comes before the Court on Defendants’, Miami-Dade County (“the

County”), Eddie Hall (“Officer Hall”), Travis Donaldson (“Officer Donaldson”), and

Santiago Alonso (“Officer Alonso), Motion to Dismiss five claims of Plaintiff, Luigi

Cruz’s Second Amended Complaint. [D.E. 38]. Plaintiff has filed a response, to which

Defendants have replied. The Motion, therefore, is ripe for disposition.1 After careful

review of the briefing and relevant authorities, and for the reasons set forth below,

we recommend that the Motion be GRANTED in part and DENIED in part.

1 On November 7, 2024, the Honorable Jacqueline Becerra referred all pre-trial

matters to the Undersigned Magistrate Judge for disposition. [D.E. 25].

I. BACKGROUND

This case arises out of the alleged use of excessive force by County corrections

officers towards Plaintiff. Plaintiff alleges the following facts that are assumed to be

true for purposes of this motion. While in custody for pre-trial detention at Metro

West Detention Center, he was subjected to a “shakedown.” Prior to lining up for the

shakedown, Plaintiff asked an officer for permission to use the restroom. While in

line to use the restroom, co-Defendant Officer Lumpkins asked Plaintiff why he was

standing in the restroom line. Plaintiff responded that another officer had given him

permission to do so. While Plaintiff was providing this response, Officer Lumpkin

repeatedly told him to “shut the fuck up.”

Then, Officer Lumpkins punched Plaintiff while Plaintiff was handcuffed.

Another officer (Officer Johnson) rushed over, and Officer Lumpkin punched Plaintiff

again, on the left side of his face. Officer Johnson then held Plaintiff’s arms as Officer

Lumpkin continued to punch Plaintiff. Next, Officer Lumpkins threw Plaintiff to the

ground, and Officer Lumpkins and Officer Johnson continued punching him. During

this beating, three other officers (Officers Hall, Donaldson, and Alonso) looked on, but

did not interfere.

As a result of his injuries, Plaintiff was brought to the North Clinic in Metro

West Detention Center, where he remained for three days. To recover for his

purported injuries, Plaintiff brought this lawsuit against the County, Officer

Lumpkins, Officer Johnson, Officer Hall, Officer Alonso, and Officer Donaldson. In

the now-Second Amended Complaint [D.E. 35], Plaintiff alleges the following eight

claims:

• Count I: Excessive Force under 42 U.S.C. § 1983 (against Officers

Lumpkins and Johnson);

• Count II: Failure to Intervene under 42 U.S.C. § 1983 (against Officers

Lumpkins, Hall, Donaldson, Johnson, and Alonso);

• Count III: Failure to Protect under 42 U.S.C. § 1983 (against the

County);

• Count IV: Battery (against the County and Officers Lumpkins and

Johnson);

• Count V: Assault (against the County and Officers Lumpkins and

Johnson);

• Count VI: Negligent Retention (against the County);

• Count VII: Negligent Training (against the County); and

• Count VIII: Monell Liability under 42 U.S.C. § 1983 (against the

County).

In the pending Motion, Defendants seek to dismiss Counts II, III, VI, VII, and

VIII of the operative Complaint.

II. APPLICABLE LAW AND PRINCIPLES

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim

for failure to state a claim upon which relief can be granted. “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory

statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. “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.” Id.; see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010)

(setting forth the plausibility standard). “Factual allegations must be enough to raise

a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555 (citation

omitted). Additionally:

Although it must accept well-pled facts as true, the court is not required

to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (noting “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions”). In evaluating the sufficiency of a plaintiff's pleadings, we

make reasonable inferences in Plaintiff's favor, “but we are not required

to draw plaintiff’s inference.” Aldana v. Del Monte Fresh Produce, N.A.,

Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, “unwarranted

deductions of fact” in a complaint are not admitted as true for the

purpose of testing the sufficiency of plaintiff's allegations. Id.; see also

Iqbal, 556 U.S. at 681 (stating conclusory allegations are “not entitled

to be assumed true”).

Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other

grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 453 n.2 (2012). The

Eleventh Circuit has endorsed “a ‘two-pronged approach’ in applying these principles:

1) eliminate any allegations in the complaint that are merely legal conclusions; and

2) where there are well-pleaded factual allegations, ‘assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief.’” American

Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556

U.S. at 679).

III. ANALYSIS

We will address in turn the claims that Defendants seek to dismiss: the failure

to intervene claim, the failure to protect and Monell claims, the negligent retention

claim, and the negligent training claim.

A. Failure to Intervene

Plaintiff alleges that Officers Hall, Donaldson, and Alonso watched Plaintiff’s

beating and failed to act. Specifically, Plaintiff alleges that “Officers Hall, Donaldson,

and Alonso … saw Officer Lumpkins and Johnson use excessive force against Mr.

Cruz.” [D.E. 35 at ¶ 55]. And while the observing officers “had a realistic opportunity

to stop Officer Lumpkins’ and Johnson’s use of excessive force,” and were “in a

position to intervene,” the observing officers “failed to intervene and failed to take

reasonable steps to prevent [the] use of excessive force on Plaintiff.” [Id. at ¶ 57].

Plaintiff further alleges that Officer Lumpkins was equipped to stop Officer Johnson’s

use of force, and vice-versa.

“[I]f a police officer, whether supervisory or not, fails or refuses to intervene

when a constitutional violation such as an unprovoked beating takes place in his

presence, the officer is directly liable ….” Ensley v. Soper, 142 F.3d 1402, 1407–08

(11th Cir. 1998); see also Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924

(11th Cir. 2000) (“We have previously said that an officer can be liable for failing to

intervene when another officer uses excessive force.”). Further, “for an officer to be

liable for failing to stop police brutality, the officer must be ‘in a position to

intervene.’” Id. at 1407 (quoting Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996)).

Defendants argue that “merely being present at the scene of an alleged use of

excessive force” is not an adequate factual predicate for a § 1983 claim. Rather,

Defendants aver that Plaintiffs are required to allege facts to show the officers had

the time and opportunity to intervene. Because, according to Defendants, the

operative Complaint lacks that factual support, Plaintiff’s claim is too conclusory and

should be dismissed.

In response, Plaintiff argues that the operative Complaint does contain

sufficient factual support. Specifically, Plaintiff points to allegations that all the

officers saw the beating, were nearby the scene, observed the excessive force, had

enough time to intervene, and chose not to. Nothing more, Plaintiff contends, is

required at this preliminary stage of the case.

We agree with Plaintiff that, accepting his allegations as true and resolving

reasonable inferences in his favor, his failure to intervene claim is not overly

conclusory. Plaintiff alleges that each of the officers “saw” the excessive force [D.E.

35 at ¶ 55], “had a realistic opportunity to stop” the force because “they were standing

nearby and had sufficient time,” [id. at ¶ 57], and yet “failed to take reasonable steps

to prevent” the force. [Id.]. Further, the operative Complaint indicates that the force

was not, for example, one or two punches, but a series of punches that involved a

second officer coming over and holding Plaintiff down.

Accordingly, the operative Complaint belies Defendants’ objection that

Plaintiff lacks factual support for his claim. Before the benefit of discovery and

evidence, we can reasonably infer that the officers, “standing nearby” and with time

to intervene, were “in a position to intervene.” See Edwards, 66 F.3d at 1298 (denying

defendant’s motion for summary judgment because “[t]here [was] no dispute that

Officer Lovett was present for the entire attack, and taking Edwards's account as

true, he made no effort to intervene and stop the ongoing constitutional violation”);

Detris v. Coats, 523 F. App'x 612, 616–17 (11th Cir. 2013) (reversing the district

court’s dismissal of a failure to intervene claim because “Detris's Complaint alleged

that Deputies Campbell and Key stood by and watched while White, Frost, and

Tournai beat him. Viewed in the light most favorable to Detris, Campbell and Key

were in a position to intervene because White, Frost, and Tournai continued to

assault Detris after he was pinned on the floor and begging for them to stop. Under

the facts alleged, Campbell and Key could have sought to intervene or could have told

the other officers to stop once Detris was pinned to the floor. As such, Detris pled

enough facts to state a plausible claim for relief.”); Blake v. Carter, No.

3:23CV8553/LAC/ZCB, 2024 WL 4244105, at *5 (N.D. Fla. Apr. 11, 2024), report and

recommendation adopted, 2024 WL 4246679 (N.D. Fla. Aug. 8, 2024) (“According to

Plaintiff's allegations, there were multiple officers in his cell during the forced cell

extraction when the excessive force was used, but none of them intervened to stop the

excessive force. As set forth above, Plaintiff has plausibly stated an excessive force

claim. And accepting Plaintiff's allegations as true and liberally construing them,

Plaintiff has stated a plausible failure to intervene claim. Thus, Defendants' motion

to dismiss the failure to intervene claim should be denied.”).

Thus, accepting Plaintiff’s allegations as true and drawing reasonable

inferences in his favor, we find that Plaintiff has plausibly alleged a claim for failure

to intervene. We recommend, therefore, that Defendants’ Motion be denied as to

Count II.2

B. Failure to Protect and Monell Claims

Next, Defendants argue that Plaintiff has not plausibly alleged either of his

§ 1983 claims against the County—failure to protect (Count III) and a more general

Monell claim (Count VIII). Those claims, argue Defendants, fail to satisfy the

contours of Monell because they fail to plausibly allege a custom, fail to plausibly

allege causation, and fail to adequately identify a policymaker.

Plaintiff, meanwhile, alleges that the County maintains several

unconstitutional customs. One such custom is “to tolerate the wrongful actions by

officers … such as the use of excessive force,” which causes the officers to believe such

force “is permissible.” [D.E. 35 at ¶ 33]. Further, Plaintiff alleges that the County

“allow[s] correction officer ‘shake down teams’ to have free reign to conduct

2 The individual Defendants did not directly raise a qualified immunity

challenge to the failure to intervene claim. Given the allegations of the operative

complaint, no such challenge can be raised at this point in the case. See, e.g.,

Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007) (plaintiff’s claim

that he underwent protracted beating by one officer after being handcuffed while

another officer was present permits an inference that one engaged in the beating and

the other failed to intervene); cf. Johnson v. White, 725 F. App’x 868, 878 (11th Cir.

2018) (qualified immunity precluded failure to intervene claim where the whole

excessive force incident lasted only a few seconds and evolved rapidly once plaintiff

was seized and handcuffed, where no other officer had a plausible opportunity to

intervene).

shakedowns without need or purpose and to use excessive force while conducting

shakedowns ….” [Id. at ¶ 34].

We must first, then, address whether Plaintiff has plausibly alleged a custom

under Monell. Liability of a municipality “may be predicated upon a showing that a

government employee's unconstitutional action ‘implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by

that body's officers,’ or is ‘visited pursuant to governmental “custom” even though

such custom has not received formal approval through the body's official decision-

making channels.’” Fundiller v. Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985)

(quoting Monell v. Dept. of Social Servs., 436 U.S. 658, 690–91 (1978)).

To support his customs’ allegations, Plaintiff points to prior incidents,

including: (1) a report that their exists a video of Officer Lumpkins beating an inmate

on April 12, 2019; (2) an Internal Affairs Investigation Report 19-214 related to that

excessive force; (3) another pending case (20-cv-21969-CMA); (4) an Internal Affairs

Investigation Report 20-638 related to Officer Johnson; (5) a 2023 NBC News Report

indicating that no staff has been terminated despite 1,185 use of force incidents

having been reported; and (6) a 2011 D.O.J. investigation which found a “pattern and

practice of constitutional violations in the correctional facilities operated by MDCR.”

[Id. at ¶ 36]. Plaintiff argues that this support, working together and separately,

renders plausible his allegations that the County has a deliberate indifference (i.e.,

an unconstitutional custom) towards officers’ use of excessive force, particularly in

the shakedown setting.

Conversely, Defendants argue that these examples do not adequately allege a

widespread practice or custom. As to the two prior incidents of excessive force,

Defendants posit that the two accusations are not alleged to be factually-similar

constitutional deprivations. And further, even if those incidents were found to be

constitutional violations, two incidents do not establish a pattern or practice. As for

the DOJ and NBC News reports, Defendants argue that findings of force in a prison

setting is “nothing new,” and is not evidence that detainees’/prisoners’ constitutional

rights have been violated. And as to the pending lawsuit, Defendants argue that

complaints and allegations standing alone do not equal a constitutional deprivation.

Even accepting Plaintiff’s allegations as true and drawing reasonable

inferences in his favor, we find that he has failed to plausibly allege a custom of

exhibiting deliberate indifference towards excessive force. For one, while Plaintiff

identifies one prior incident as to each officer, the factual support falls short of

alleging a plausible claim. The mere fact—even if true—that force has occurred in the

past does not mean that the County maintains a custom of permitting excessive force

under Monell. Rather, Plaintiff must allege that those prior incidents were factually

analogous, were in fact constitutional violations, and were not sufficiently addressed

by the County. Simply alleging that the officers may have used excessive force in the

past will not do. See Jackson v. Miami-Dade Cnty., No. 18-20665-CIV, 2018 WL

5787247, at *11 (S.D. Fla. Nov. 5, 2018) (“Although the Plaintiff alleges generally that

Defendant Slimack, who has been an officer for twenty years, has been the subject of

sixteen past complaints, at least ten of which involve the excessive use of force, the

Complaint provides no factual information regarding those complaints, and thus this

allegation is also insufficient to support a plausible claim for relief. In sum, to

establish the custom and policy of excessive force necessary to proceed against the

County, the Plaintiff must include at least some factual detail sufficient to establish

the plausibility of the conclusory allegations of the alleged unconstitutional policy.

Therefore, the undersigned recommends that Count I be dismissed with leave to

amend.”).

Here, the operative Complaint tells us only that “Defendant Lumpkins was

caught on camera beating an inmate”; an “Internal Affairs Investigation Report” was

created as to Officer Lumpkins; and an “Internal Affairs Investigation Report” was

created as to Officer Johnson for which we are provided no other details. At no point,

however, does Plaintiff allege that those prior incidents involved constitutional

violations, let alone ones factually similar to Plaintiff’s ostensible constitutional

deprivation.

As for the Officer Johnson report, Plaintiff does not even allege what the report

is related to or why it is relevant to his claim. And as to the Officer Lumpkin report,

Plaintiff does not allege that (1) the incident was a constitutional deprivation, and/or

(2) that it was factually similar to Plaintiff’s circumstances. The fact that, over the

course of their careers with the County, Officers Lumpkin and Johnson each have one

investigative report (that may or may not be similar to the case at hand), does not

plausibly allege a widespread custom under Monell. To even approach a plausible

Monell claim, Plaintiff would have to allege how and why those incidents were

factually-similar constitutional deprivations, and would likely need to provide several

more similar instances.

The operative Complaint lacks that requisite detail and support. And to be

clear, this is not a negligence claim—this is an attempt to impose direct liability onto

the municipality. To that drastic end, we cannot accept Plaintiff’s proffered inference

that, just because each officer had a prior investigative report and certain news

sources reported on the County, the County maintains a custom promoting or

permitting unconstitutional excessive force. See Marantes v. Miami-Dade Cnty., 649

F. App'x 665, 673 (11th Cir. 2016) (“And, even broadly construing the amended

complaint, he has cited only two incidences of alleged excessive force—his arrest and

a homicide involving the same set of officers who arrested him. These allegations do

not show that the County had a ‘longstanding and widespread practice’ of

encouraging excessive force. Nor do they show that the alleged custom was the

‘moving force’ behind Officer Giordano kicking Marantes's head and body.”); Gaviria

v. Guerra, No. 17-23490-CIV, 2018 WL 1876124, at *6 (S.D. Fla. Apr. 19, 2018)

(quoting Whitaker v. Miami-Dade Cty., 126 F. Supp. 3d 1313, 1321 (S.D. Fla. 2015))

(“Plaintiff fails to allege a widespread practice of excessive force by MDPD officers as

evidenced by multiple prior incidents. Plaintiff’s only references to incidents of

excessive force separate from the incident at issue are vague allegations Guerra and

Alvarez ‘ha[ve] a history of reports of excessive use of force incidents causing injuries

and violations of citizens' rights, of which Miami-Dade County was aware,’ and ‘ha[ve]

a propensity for misconduct, including excessive use of force against members of the

public.’ These allegations fall well short of demonstrating the use of excessive force

by MDPD officers ‘constitute[s] the sort of occurrence that is obvious, flagrant,

rampant and of continued duration that would establish a causal connection between

actions of the supervising official and the alleged constitutional violation.’”);

Whitaker, 126 F. Supp. 3d at 1321 (quoting Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999)) (“Third, even assuming these four isolated shootings in 2012 were

deemed to be unconstitutional uses of excessive force—an allegation not contained in

the Complaint—the Court does not accept Plaintiffs' legal conclusion that the prior

shootings constitute the sort of occurrence that is ‘obvious, flagrant, rampant and of

continued duration’ that would establish a ‘causal connection between actions of the

supervising official and the alleged constitutional deprivation.’”).

Accordingly, because Plaintiff has not plausibly alleged that the County

maintains a “widespread custom or practice” of condoning excessive force,

particularly in the “shakedown” setting, nor has Plaintiff otherwise plausibly alleged

the County’s liability, we recommend that Counts III and VIII be dismissed without

prejudice. See Bouyer v. Rounsoville, No. CIV.A. 108CV0856RWS, 2008 WL 2787484,

at *3–4 (N.D. Ga. July 15, 2008) (dismissing Monell claim where the plaintiff alleged

that the city “maintained a system of review of police conduct which is so untimely

and cursory as to be ineffective and to permit and tolerate the unreasonable excessive

use of force, criminal trespass, false arrest, false imprisonments and malicious

prosecutions by police officers” because “Plaintiff's conclusory allegations regarding

the City's policy fail to satisfy the pleading requirements under Twombly”); Blossom

v. City of St. Petersburg, No. 8:14-CV-3099-T-17-TB, 2015 WL 3493999, at *4 (M.D.

Fla. June 3, 2015) (“Plaintiff must allege more than bare conclusions to demonstrate

the City of St. Petersburg's: 1) training program is or was inadequate; 2) training

program can justifiably be said to represent ‘city policy;’ and 3) this city policy

resulted in a violation of constitutional rights. Therefore, the current Complaint lacks

facts necessary to show the City of St. Petersburg demonstrated deliberate

indifference and a failure to properly train its officers.”).

C. Negligent Retention

Next, Defendants move to dismiss Plaintiff’s negligent retention claim. In

support, Defendants argue that Plaintiff alleges that the officers were acting within

the scope of employment when they used excessive force on Plaintiff. The problem,

per Defendants, is that under Florida law, a negligent retention requires an employee

to being acting outside the scope of his employment. Accordingly, the claim should be

dismissed.

In response, Plaintiff argues that Florida law permits negligent retention

claims where the employee is acting within the scope of his employment. Further,

Plaintiff avers that he pleads this claim in the alternative; i.e., while Plaintiff alleges

in other portions of the operative Complaint that the officers were acting “reckless”

and beyond their job duties, he argues that, in the event a factfinder concludes that

the officers were acting within the scope of their employment, his negligent retention

claim can survive.

As an initial matter, we agree with Defendants that Florida law requires a

negligent-retention plaintiff to plead that the employee(s) was acting outside the

scope of his employment. Indeed, “[u]nlike the theory of respondeat superior where

an employer faces liability for an employee’s acts committed within the course or

scope of employment, the tort of negligent hiring or retention under Florida law

‘allows for recovery against an employer for acts of an employee committed outside

the scope and course of employment.’” Belizaire v. City of Miami, 944 F. Supp. 2d

1204, 1214 (S.D. Fla. 2013) (quoting Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA

1986)).

Florida’s Third District Court of Appeal has also crystallized this principle. See

Watson v. City of Hialeah, 552 So. 2d 1146, 1148 (Fla. 3d DCA 1989) (“By its very

nature, an action for negligent retention involves acts which are not within the course

and scope of employment and allows recovery even when an employer is not

vicariously liable under the doctrine of respondeat superior.”). The court’s opinion in

Watson is sensible, in that it distinguished a negligent retention claim from a

respondeat superior claim based on this critical distinguishing factor. And Watson

has strong footing in the Florida Supreme Court, which has defined negligent

retention to encompass “the negligence of the master in knowingly keeping a

dangerous servant on the premises and have held the master liable for the acts of his

servant outside the scope of his authority ….” Mallory v. O'Neil, 69 So. 2d 313, 315

(Fla. 1954) (emphasis added) (“Other jurisdictions have considered the negligence of

the master in knowingly keeping a dangerous servant on the premises and have held

the master liable for the acts of his servant outside the scope of his authority if

trespassing on the rights of those legally on the master's premises whether the

servant acted wilfully, maliciously or negligently. The doctrine of these cases was

approved in Restatement of Torts, § 317. It seems to be a sound rule and should be

applied in this case.”).

Having found that Florida law is settled, we now turn to Plaintiff’s allegations.

In the operative Complaint, Plaintiff alleges that it was unreasonable for the County

to retain Officers Lumpkin and Johnson, or at least not provide training or retraining

to the officers, because the County “knew or should have known” about the officers’

prior uses of excessive force. [D.E. 35 at ¶¶ 98–100]. Throughout the operative

Complaint, Plaintiff alleges that, “[a]t all times relevant to this action,” Officers

Lumpkin and Johnson were “acting within the course and scope of [their] employment

and under color of state law ….” [Id. at ¶¶ 8–9; 45].

The only time that Plaintiff alleges that the officers acted “in bad faith, with

malicious purpose, or in a manner exhibiting wanton and willful disregard for

Plaintiff’s rights” is within Plaintiff’s assault and battery claims. [Id. at ¶¶ 80, 91].

But only within those specific claims does Plaintiff allege that anything occurred

outside the scope of the officers’ employment. Those allegations are not incorporated

into Plaintiff’s negligent retention claim. Rather, the sentiments from his general

allegations that the officers, “[a]t all times relevant to this action” acted within the

scope of their employment, are incorporated into Plaintiff’s negligent retention claim.

[Id. at ¶¶ 8–9].

Consequently, we have no support to find that Plaintiff’s negligent retention

claim is meant to be pleaded in the alternative to a finding that the officers were

acting outside the scope of their employment. There is no indication in Plaintiff’s

negligent retention claim that the officers were acting outside the scope of their

employment.

Accordingly, because Plaintiff does not plead that Officers Lumpkin and

Johnson acted outside the scope of their employment when they engaged in the acts

that support Plaintiff’s negligent retention claim, Plaintiff’s claim fails under Florida

law. We thus recommend that, on this score, Defendant’s Motion be granted and

Plaintiff’s negligent retention be dismissed without prejudice. See Whitaker, 126 F.

Supp. 3d at 1329 (quoting Belizaire v. City of Miami, 944 F. Supp. 2d 1204, 1215 (S.D.

Fla. 2013)) (“Regardless of these pleading deficiencies, the claim is fundamentally

flawed because ‘Florida law ties liability under the theory of negligent retention to

acts committed outside the scope of employment[.] Plaintiff alleges that the officers

were acting within the scope of their employment.”); Yule v. Ocean Reef Cmty. Ass'n,

No. 19-10138-CIV, 2020 WL 3051505, at *10 (S.D. Fla. June 8, 2020) (collecting cases)

(“Courts in this District repeatedly dismiss negligent retention and supervision

claims where a plaintiff fails to allege that the employee's tortious conduct was

‘outside the scope’ of their job duties.”).

D. Negligent Training

Lastly, Defendants move to dismiss Plaintiff’s negligent training claim on

grounds of sovereign immunity. In support, Defendants argue that how the County

trains its police officers, and what subject matter the County chooses to include in

that training, is a discretionary function and is therefore barred by sovereign

immunity.

In response, Plaintiff argues that it challenges more than just what the County

chose to include in its training programs. And further, whether this claim

encompasses only discretionary functions, argues Plaintiff, is a fact-laden

determination not properly decided before discovery.

“In the context of a negligence claim, Florida courts have held that sovereign

immunity extends to ‘discretionary’ governmental functions, but not to acts that are

‘operational in nature.’” N.R. by Ragan v. Sch. Bd. of Okaloosa Cnty., Fla., 418 F.

Supp. 3d 957, 996 (N.D. Fla. 2019) (citing Kaisner v. Kolb, 543 So. 2d 732, 736 (Fla.

1989)). “Claims for negligent training are typically barred by sovereign immunity

because a ‘decision regarding how to train ... officers and what subject matter to

include in the training is clearly an exercise of governmental discretion regarding

fundamental questions of policy and planning.’” Hemmings v. Jenne, No. 10-61126-

CIV-COHN, 2010 WL 4005333, at *6 (S.D. Fla. Oct. 12, 2010) (quoting Lewis v. City

of St. Petersburg, 260 F.3d 1260, 1267 (11th Cir. 2001)). And to plead a viable

negligent training claim, a plaintiff “must show that [the municipality] was negligent

in the implementation or operation of the training program”; a plaintiff “cannot

merely challenge the content of the program.” Mercado v. City of Orlando, 407 F.3d

1152, 1162 (11th Cir. 2005).

Here, Plaintiff alleges that the County failed to properly train on “de-escalation

techniques” and failed to instruct officers “to use a reasonable amount of force,

instead of brutally battering Plaintiff.” [D.E. 35 at ¶ 112]. These allegations clearly

target the content (i.e., de-escalation and non-excessive force) that the County

omitted from its training—not the operational procedures. Accordingly, the

allegations directly target the County’s discretionary functions. See Hemmings, 2010

WL 4005333, at *6 (“Ms. Hemmings claims the Sheriff was negligent because he

failed to train Deputy Ferber and other employees. The Sheriff's decisions regarding

training are discretionary in that they are policy and planning questions, and not

mere operational decisions.”); see also Gualtieri v. Bogle, 343 So. 3d 1267, 1276 (Fla.

2d DCA 2022) (reversing denial of motion to dismiss negligent training claim filed

together with excessive force claim; “Here, the pertinent allegations in count three

clearly relate to the Sheriff’s decisions of how to train his deputies and what subject

matter to include in said training. These alleged deficiencies in the Sheriff’s training

of his deputies involve discretionary, planning-level functions for which the Sheriff is

entitled to sovereign immunity.”).

Consequently, because the County is entitled to sovereign immunity in the face

of these allegations, we recommend that Plaintiff’s negligent training claim be

dismissed. See Mercado, 407 F.3d at 1162 (“Because Mercado only challenges the

content of the program, not the way in which the program was implemented, Orlando

is entitled to sovereign immunity with respect to this claim.”); Lewis, 260 F.3d at 1266

(“Lewis does not challenge the implementation or operation of the City's police

training program as it relates to the officers involved in the shooting, but rather Lewis

challenges the City's policy decisions regarding what to include in the training of its

police officers. A city's decision regarding how to train its officers and what subject

matter to include in the training is clearly an exercise of governmental discretion

regarding fundamental questions of policy and planning. Because Lewis challenges

the reasonableness of basic policy decisions made by the City, the ‘discretionary’

function exception to the waiver of sovereign immunity applies and her claim is

barred.”); Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092,

1118 (11th Cir. 2005) (affirming the dismissal of a negligent training claim because

there, “as in Lewis, the challenged actions are the Sheriff's decisions regarding ‘how

to train its [corrections] officers and what subject matter to include in the training.’”).

IV. CONCLUSION

For the reasons set forth above, we recommend that Defendants’ Motion [D.E.

38] be GRANTED in part and DENIED in part:

A. Defendants’ Motion should be granted as to Count III (failure to protect),

and the claim should be dismissed without prejudice;

B. Defendants’ Motion should be granted as to Count VI (negligent retention)

and the claim should be dismissed without prejudice;

C. Defendants’ Motion should be granted as to Count VII (negligent training)

and the claim should be dismissed without prejudice; and

D. Defendants’ Motion should be granted as to Count VIII (Monell liability),

and the claim should be dismissed without prejudice.

E. Defendants’ Motion should be denied in all other respects.

Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the parties have

fourteen (14) days from service of this Report and Recommendation within which to

file written objections, if any, to the District Judge. Failure to timely file objections

shall bar the parties from de novo determination by the District Judge of any factual

or legal issue covered in the Report and shall bar the parties from challenging on

appeal the District Judge’s Order based on any unobjected-to factual or legal

conclusions included in the Report. 28 U.S.C. § 636(b)(1); 11th Cir. Rule 3-1; see, e.g.,

Patton v. Rowell, 2017 WL 443634 (11th Cir. Feb. 2, 2017); Cooley v. Commissioner

of Social Security, 2016 WL 7321208 (11th Cir. Dec. 16, 2016).

DONE and SUBMITTED in Chambers at Miami, Florida this 29th day of

April, 2025.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge