Battista v. Cannon, 96-688-CIV-T-17(A).

• Decision Date: 24 July 1996
• Docket Number: No. 96-688-CIV-T-17(A).,96-688-CIV-T-17(A).
• Citation: 934 F. Supp. 400
• Parties: Michelle BATTISTA, f/k/a Michelle Brinson, Plaintiff, v. Lee CANNON, Sheriff of Pasco County, Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

934 F. Supp. 400

Michelle BATTISTA, f/k/a Michelle Brinson, Plaintiff, v. Lee CANNON, Sheriff of Pasco County, Florida, Defendant.

No. 96-688-CIV-T-17(A).

United States District Court, M.D. Florida, Tampa Division.

July 24, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Craig A. Laporte, Riley, Proly & Laporte, Port Richey, FL, for Michelle Battista.

Keith C. Tischler, Powers, Quaschnick, Tischler & Evans, Tallahassee, FL, for Lee Cannon.

ORDER DENYING MOTION TO DISMISS

KOVACHEVICH, Chief Judge.

This cause comes before the Court for consideration of Defendant, Lee Cannon's, motion to dismiss the Plaintiff's complaint (Docket No. 4), filed April 29, 1996, and Plaintiff's response in opposition thereto, filed May 17, 1996 (Docket No. 10). Defendant asserts that the complaint fails to state claims upon which relief can be granted.

I. FACTUAL BACKGROUND

The complaint alleges that on June 11, 1994, Deputy Phillip Wayne Armstrong, who was employed by the Defendant, Lee Cannon, Sheriff of Pasco County, stopped the Plaintiff for a traffic infraction. The Plaintiff alleges that she was detained, placed in official custody, and transported in a marked patrol car toward the Pasco County Detention Center. The Plaintiff further alleges that Armstrong threatened to charge her and put her in jail if she did not engage in sexual intercourse with him. The complaint alleges that Armstrong then proceeded to sexually batter the Plaintiff.

The Plaintiff has alleged that the Defendant, as the Sheriff of Pasco County, knew at least six (6) months prior to this alleged incident that Deputy Armstrong had engaged in similar conduct with other female motorists. The Plaintiff alleges that although the Defendant had knowledge of these prior incidents where Armstrong offered female motorists the opportunity to engage in sexual intercourse in order to avoid traffic citations and/or jail, the Defendant never investigated the alleged incidents and did not take any action against Armstrong.

The Plaintiff further alleged in her complaint that the Defendant did not have any policies or procedures related to the detention, arrest, or transportation of females by male Deputies.

The complaint in this action contains the following causes of action against Defendant Cannon: Count I — Action for Sheriff's violation of Plaintiff's Constitutional Rights under 42 U.S.C. § 1983, Count II — Negligent Retention, and Count III — Negligent Supervision.

II. STANDARD OF REVIEW

A complaint should not be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). When reviewing a motion to dismiss, the court is required to view the complaint in the light most favorable to the Plaintiff and accept all allegations of the complaint as true. Colodny v. Iverson, Yoakum, Papiano & Hatch, 838 F.Supp. 572 (M.D.Fla.1993) (citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Although the Court must take the allegations in the complaint as true when reviewing the motion to dismiss, it is not permitted to read into the complaint facts that are not there. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944-45, 92 L.Ed.2d 209 (1986); Beck v. Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir.1992).

III. FEDERAL CLAIMS

A. COLOR OF LAW

Only two allegations are required to state a cause of action under 42 U.S.C. § 1983. "First, the Plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). See also, Tillman v. Coley, 886 F.2d 317, 319 (11th Cir.1989); Barfield v. Brierton, 883 F.2d 923, 934 (11th Cir.1989); Cornelius v. Town of Highland Lake, Alabama, 880 F.2d 348, 352 (11th Cir.1989).

The Defendant argues that Deputy Armstrong was not acting under the color of law when the alleged misconduct occurred. "It is firmly established that a Defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State." West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). "Generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." Id. at 50, 108 S.Ct. at 2255. If the allegations in the complaint are taken as true, Armstrong abused the position of deputy which was given to him by the State. The complaint alleges that Deputy Armstrong's misconduct occurred while he was on duty, wearing his uniform, driving a marked patrol car, and conducting official business. The complaint clearly alleges that Armstrong used the authority given to him by the State in order to deprive the Plaintiff of her Constitutional rights.

The Defendant is correct in stating that all acts of state employees are not under color of state law, yet the alleged facts in the instant case demonstrate that Armstrong was acting under color of state law. The defendant relies on Thomas v. Cannon, 751 F.Supp. 765, 768 (N.D.Ill.1990) which is clearly distinguishable from the instant case. In Thomas, the court found that the attempted rape of two girls by a transit worker of the Chicago Transit Authority was not under color of state law because the act was not "even remotely related to the performance of his job." Id. at 768. In the instant case, the alleged act occurred during the performance of Armstrong's job and in conjunction with the authority given to him as a result of his position as deputy.

This Court finds that the Plaintiff has alleged facts which could be sufficient for a jury to find that Armstrong was acting under the color of state law at the time that the Plaintiff alleges her Constitutional rights were violated. Additionally, the complaint clearly alleges that Defendant Cannon was acting under color of state law at the time of the alleged incident in as much as he was serving in the capacity of Pasco County Sheriff and presiding over the Pasco County Sheriff's Office.

B. MUNICIPAL LIABILITY

A local government official may be sued in his or her official capacity under Section 1983, where the local government may be sued in its own name. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035-36, n. 55, 56 L.Ed.2d 611 (1978). The Supreme Court had held that a local governing body may be sued under 42 U.S.C. § 1983 if its "policy or custom" was "the moving force of the constitutional violation." Id. at 694, 98 S.Ct. at 2038. The Eleventh Circuit Court of Appeals has recently stated that "only those officials who have final policymaking authority may render the municipality liable under § 1983." Hill v. Wayland, 74 F.3d 1150, 1152 (11th Cir.1996) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). It has been established in Florida that the Sheriff is the policymaker and final authority for his agency. Lucas v. O'Loughlin, 831 F.2d 232, 235 (11th Cir. 1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1595, 99 L.Ed.2d 909 (1988).

"Official policy may be established by the omissions of supervisory officials as well as their affirmative acts." Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981). The Supreme Court has also found that Section 1983 liability arises when actions or inactions on the part of the municipality lead to "deliberate indifference." See, City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.1992).

The Plaintiff has alleged that the Defendant, in his official capacity as Sheriff of the Pasco County Sheriff's Office, had de facto policies, as well as customs, which were the moving force behind the deprivation of her Constitutional rights. If proven, the Defendant's alleged failure to investigate, supervise or discipline Armstrong may be sufficient to constitute liability. See, Rivas v. Freeman, 940 F.2d 1491 (11th Cir.1991) (explaining that a sheriff may be liable for deprivation of Constitutional rights as a result of his failure to train, supervise or discipline his deputies).

C. EIGHTH AMENDMENT

Being that the Plaintiff was not convicted of a crime, and there were no allegations of conduct which constituted punishment, the implementation of the Eighth Amendment is inapplicable. See, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Court hereby strikes all reference to the violation of the Eighth Amendment from the Complaint, having received no objection thereto from the Plaintiff.

D. FOURTEENTH AMENDMENT

A liberty interest which is protected by the Due Process Clause of the Fourteenth Amendment is found in a person's bodily integrity. Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir.1994). In Doe, an act of sexual abuse by a state employee was found to have violated that right. Id. at 445. Additionally, the Doe Court found that supervisory personnel could be found liable for the deprivation of Constitutional rights, if the failure to supervise amounted to a deliberate indifference to the Plaintiff's Constitutional rights. Id.

The Eleventh Circuit has held that "pre-trial detainees may bring Section 1983 actions to redress violations of their rights under the due process clause of the Fourteenth Amendment ..." Vineyard v. County of Murray, 990 F.2d 1207 (11th Cir.1993). The Plaintiff alleges that she was in custody and told that she was going to the Detention Center at the time her rights were violated.

In its motion to dismiss, the Defendant states that the Plaintiff fails to state a cause of action under...