Andrade v. Miami Dade Cnty.
| Decision Date | 16 September 2011 |
| Docket Number | CASE NO. 09-23220-CIV-LENARD |
| Parties | KELVIN ANDRADE, Plaintiff, v. MIAMI DADE COUNTY, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
(D.E. 34)
THIS CAUSE is before the Court on Defendant Miami Dade County's Motion to Dismiss Amended Complaint (D.E. 33) and Defendant Officers' Motion to Dismiss Plaintiff's Amended Complaint (D.E. 34), both filed on November 15, 2010. Plaintiff Kelvin Andrade filed Responses (D.E. 35 and 36) to both Motions to Dismiss on December 2, 2010. Defendants filed their respective Replies (D.E. 37 and 38) on December 13, 2010. Upon review of the Motions to Dismiss, the Responses, the Replies and the record, the Court finds as follows.
I. Factual and Procedural Background
The events which gave rise to this action took place on September 23, 2005. (Am. Compl. ¶ 10, D.E. 32.) That evening, Plaintiff allegedly suffered a psychotic break, stripped off all of his clothing while outdoors and commenced ranting and engaging in other bizarreand alarming behavior. (Id. ¶ 10.) His neighbors called the police and Defendants Natasha Ocasio, Eric Goldberg, J.C. Rodriguez and Eddie Torres, all police officers in the Miami-Dade Police Department, responded. (Id. ¶ 12.) Upon their arrival, Ocasio alone approached Plaintiff and "shined a flashlight in his eyes, seized him, and attempted to take him into custody." (Id. ¶ 14.) Plaintiff, in his agitated state, resisted Ocasio's attempted arrest. (Id. ¶ 15.) During the ensuing struggle, Ocasio wrestled Plaintiff to the ground. (Id. ¶ 16.) Officers Goldberg, Rodriguez and Torres then allegedly beat Plaintiff with asps and tased him several times. (Id. ¶ 17.) During the struggle, Ocasio drew her firearm and shot Plaintiff twice. (Id. ¶ 18.)
On September 21, 2009, Plaintiff filed his Complaint in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, alleging various violations of his civil rights pursuant to 42 U.S.C. § 1983 . Defendants removed the action to this Court on October 23, 2009, alleging that this Court has original jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). (Notice of Removal ¶ 3, D.E. 1 ().) On September 30, 2010, the Court granted Defendants' Motions to Dismiss (D.E. 24) but allowed Plaintiff to file an Amended Complaint to remedy all counts that were dismissed without prejudice.
Plaintiff's Amended Complaint alleges claims of Excessive Force pursuant to 42 U.S.C. § 1983 (Count I), a state law claim of excessive force (Count II) and Unlawful Seizure pursuant to 42 U.S.C. § 1983 (Count III). Defendants now move to dismiss theAmended Complaint.1II. Defendants' Motions to Dismiss
A. Defendant Officers' Motion to Dismiss
Defendants Ocasio, Goldberg, Rodriguez and Torres move to dismiss the § 1983 excessive force claim against them (Count I). First, Ocasio argues that she is entitled to qualified immunity from suit on this claim. (Officers' Mot. at 3-6.) Specifically, she behaved reasonably during her encounter with Plaintiff on September 23, 2005. (Id.) Goldberg, Rodriguez and Torres also argue that they behaved reasonably with respect to their use of force and therefore are subject to qualified immunity. (Id. at 8-9.)
Moreover, the officers contend that Plaintiff should not be allowed to transform the previously dismissed failure to intervene claim against them into an excessive force claim by completely changing his factual allegations. (Id. at 6-8.)2 They cite the language of this Court's Order to mean that Plaintiff would only be allowed to replead his failure to intervene claim against Goldberg, Rodriguez and Torres. (Id.)3
B. Miami-Dade County's Motion to Dismiss Complaint
Defendant MDC moves to dismiss Plaintiff's claims of excessive force (Count II) and § 1983 unlawful seizure pursuant to official policy (Count III).
MDC argues that Plaintiff cannot adequately plead municipal liability under § 1983 because he fails to identify an official county policy, a final policymaker for the county or demonstrate that MDC has officially promulgated the policy or tolerated the unofficial custom which led directly to his injuries. (Id. at 5-6, 8-10.) Nor does Plaintiff identify an MDC official who speaks with final policymaking authority concerning the alleged acts which caused the constitutional violations. (Id. at 6-8.) Similarly, MDC contends that Plaintiff's pleadings cannot adequately support the failure to train claims against it. (Id. at 11-13.) It argues that Plaintiff does not allege any widespread practice of which MDC was aware and deliberately indifferent to. (Id.) MDC notes that Plaintiff's Amended Complaint contains large chunks copied and pasted from his original Complaint, found previously to be deficient. (Id. at 2-3.)
MDC next argues that Plaintiff's state law excessive force claim must be dismissed. Insofar as this claim is based on the actions of Goldberg, Rodriguez and Torres, it must fail since this Court has already dismissed the failure to intervene claim against MDC with prejudice. (Id. at 13.)
Furthermore, Florida law does not support a claim for excessive force; rather, Plaintiff must plead his claim as a battery. (Id. at 14.) Should the Court transform Plaintiff's excessive force claim into one of battery, it should still dismiss the claim as the officers areonly liable for force that is "clearly excessive" - not the case here. (Id. at 14 (citing Davis v. Williams, 451 F.3d 759, 768 (11th Cir. 2006). MDC reminds the Court that it previously found Ocasio's use of force reasonable and should do so again. (Id. at 14-15.)
C. Plaintiff's Response to the Motions to Dismiss
Plaintiff's Responses are short on law but strenuously plead for this Court to allow discovery to develop the record further and fill in any gaps. He admits that he has changed his factual allegations against Goldberg, Rodriguez and Torres and credits the new claim to his lack of memory and a desire to correct the record, not the Court's previous dismissal of his failure to intervene claim.
III. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain factual allegations which are "enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Although it is not necessary for the complaint to contain detailed factual allegations, the "plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal quotations omitted). The facts set forth must be sufficient to push the claims from the realm of "conceivable to plausible." Id. at 570. In recent decisions, the Eleventh Circuit further advised that courts may make reasonable inferences in a plaintiff's favor, but they are not required to draw plaintiff's inference. Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260 (11th Cir. 2009) (quotationsomitted); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Likewise, "unwarranted deductions of fact" in a complaint may not be admitted as true for determining the sufficiency of the allegations. Aldana, 416 F.3d at 1248; see also Ashcroft v. Iqbal, 556 U.S. ---, 129 S. Ct. 1937, 1951 (2009)
The qualified immunity defense is an immunity from suit, not merely damages. March v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc). Courts are generally urged to apply the affirmative defense of qualified immunity at the earliest possible stage in litigation, including at the dismissal stage. See March, 268 F.3d at 1022; see, e.g., Chesser v. Sparks, 248 F.3d 1117 (11th Cir. 2001) (). Unless the plaintiff clearly alleges a violation of established law in his complaint, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
A public official asserting the defense of qualified immunity must first establish that he was "engaged in a 'discretionary function' when he performed the acts of which the plaintiff complains." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). There is no dispute here that Defendants Ocasio, Goldberg, Rodriguez and Torres were engaged in a discretionary duty when they encountered and subsequently arrested Plaintiff on the evening of September 23, 2005. See Hadley v. Gutierrez, 526F.3d 1324, 1329 (11th Cir. 2008). The next step of the Court's inquiry is to determine whether their conduct violated a constitutional right and the right was clearly established. Durruthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2007). Phrased another way, did the Defendants act "according to means that were within [their] power[?]" Khoury v. Fernandez, 2008 U.S. Dist. LEXIS 33195, *7 (S.D. Fla. Apr. 22, 2008); see also Holloman, 370 F.3d at 1265-66.
IV. Discussion
Plaintiff claims that his being shot twice by Ocasio constituted excessive force. According to him, the presence of a naked, ranting man should have put her on notice that they were dealing with an insane person, therefore the use of deadly force - shooting the Plaintiff twice - was excessive under the Fourth Amendment given the circumstances.
Focusing on Plaintiff's factual allegations, the Court notes that Ocasio and her colleagues...
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