Baxter v. Roberts

• Decision Date: 28 March 2021
• Docket Number: CASE NO. 5:19cv216-MCR/MJF
• Citation: Baxter v. Roberts, CASE NO. 5:19cv216-MCR/MJF (N.D. Fla. Mar 28, 2021)
• Parties: MICHAEL BAXTER, Plaintiff, v. LOUIS S ROBERTS, III, TREVOR LEE, DEPUTY, Defendants.
• Court: U.S. District Court — Northern District of Florida

MICHAEL BAXTER, Plaintiff, v. LOUIS S ROBERTS, III, TREVOR LEE, DEPUTY, Defendants.

CASE NO. 5:19cv216-MCR/MJF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

March 28, 2021

ORDER

In this civil rights case, see 42 U.S.C. § 1983, Plaintiff Michael Baxter brings constitutional claims of excessive force and false arrest against Deputy Trevor Lee, individually, and Louis S. Roberts, III, in his official capacity as the Sheriff of Okaloosa County, arising out of Baxter's arrest on December 24, 2017. Baxter also asserts state common law claims of false arrest and battery. Pending are Defendants' Motions for Summary Judgment, ECF Nos. 31, 32, and Defendants' Amended Motion to Strike Undisclosed Witness, Cory Finch, ECF No. 40. Having fully reviewed the matter, the Court finds that the motions are due to be granted.

I. Background¹

On December 24, 2017, Deputy Trevor Lee of the Jackson County Sheriff's Office stopped a blue pickup truck driven by Plaintiff Michael Baxter. On that evening, according to Baxter's deposition testimony, he had stopped at a convenience store, where he purchased gas and a beer. He returned to the highway, changed lanes to pass a slow-moving vehicle after using his blinker and was pulled over by Deputy Lee. See ECF No. 33-2, 33 (Baxter Depo. at 31). Deputy Lee's body-worn video camera ("bodycam") captured the encounter with Baxter on tape. The tape shows that Lee initially approached the passenger side of the truck, asked Baxter if he was ok, explaining, "you were all over the road." Baxter did not deny this but explained that he was trying to make a phone call.² Deputy Lee immediately noticed a beer can in the front seat and informed Baxter that he had committed a traffic violation by having an open alcohol container in the vehicle. Baxter replied,"Sir, I haven't been drinking on it."³ Baxter then searched around the truck for his vehicle registration but was unable to locate it. Lee told him to keep looking while he went to his vehicle to check Baxter's license.

When Lee returned to Baxter's passenger side door, Baxter was on the phone with his girlfriend; he remained on the phone until his arrest.⁴ Deputy Lee informed Baxter he would be issuing a warning citation for the open container and that he should "sit tight" because he was also going to walk a canine around the vehicle for an open air dog sniff.⁵ Deputy Lee returned to his police vehicle a second time and began typing, presumably a written warning. He then approached Baxter's truck on the driver's side and instructed Baxter to exit the vehicle so he could conduct an open air dog sniff.⁶ Instead of exiting immediately, Baxter repeatedly questioned Lee's basis for probable cause and persisted in asking why he needed to exit the vehicle for Lee to walk the dog to walk around. Deputy Lee informed Baxter hecould be arrested for interfering with his deployment of a K-9 unit, and repeatedly instructed Baxter exit. According to Baxter, he became flustered because his pants were caught on his seat belt (this is not clear on the video, but reasonable inferences are drawn in his favor at this stage). Deputy Lee momentarily grabbed Baxter's arm but did not pull him out of the truck. Instead, after repeated commands by Lee, Baxter stepped out of the vehicle voluntarily.

As Baxter stood, Deputy Lee commanded him to hand over his keys. Baxter said, "No sir, they're my keys," and a struggle ensued. Deputy Lee forcibly removed the keys from Baxter's hand while Baxter struggled to hold them, and Lee threw Baxter to the pavement face first, placing a knee on his back to place him in handcuffs.⁷ See ECF No. 33-2 at 38-43 (Depo. at 36-41). Baxter contends that as a result, he suffered a chipped tooth and facial abrasions.⁸ ECF No. 33-1 (Baxter'sdeclaration). Deputy Lee charged Baxter with resisting an officer without violence and also issued a ticket for having an open container in the vehicle.

Sergeant Shane Tipton arrived shortly thereafter, and Deputy Lee deployed his dog, Roxy, for an open air sniff around the truck. Lee reported that she alerted to the driver's side door, and he searched the pickup. Lee found a small black pistol in the front passenger glove compartment, which Baxter had disclosed to him; no narcotics were found. The pistol was collected for safe keeping, the vehicle was towed, and Baxter was taken to the hospital at his request before spending the night in jail. Baxter said he overheard Lee laughing and telling other officers present that he had to charge him with something because he had "roughed him up." Baxter lodged an oral complaint about Lee's conduct with Sergeant Tipton but contends the Sheriff took no action to investigate or discipline Lee. Subsequently, according to Baxter, Lee followed him on at least two occasions, flashed his lights for Baxter to pull over, and then merely passed by. Ultimately, the State of Florida dismissed the charges against Baxter.

Deputy Lee's incident report, which he has verified as true, differs in some respects from Baxter's version of the events.⁹ According to the report, Lee stopped Baxter after observing the pickup truck swerve from left to right in its lane, striking the white fog line and the yellow center line several times. He also reported that Baxter was noncompliant with orders to exit the vehicle (as is clear on the video) and, when Baxter finally agreed to exit, he instead began to place his hand in his pocket (this is not clear on the video—according to Baxter, his pants were caught on the seatbelt). Deputy Lee reported that when he attempted to assist Baxter from the vehicle, Baxter "snatched away," and after a short struggle, he placed him into custody for resisting lawful commands. (Lee omitted from the report his request that Baxter hand over his keys, which Baxter flatly refused to do, as clearly shown on the video).

Eight months later, on August 1, 2018, the Jackson County Sheriff's Office requested a criminal investigation by the Florida Department of Law Enforcement("FDLE") regarding allegations of misconduct involving the fabrication of evidence and falsifying of reports on the part of another deputy, Zachary Wester, with whom Lee sometimes worked. In connection with that investigation, the FDLE reviewed files involving Lee as well. The FDLE report noted a policy violation by Lee in connection with one arrest in March 2017, seven months before Baxter's arrest, on grounds that Lee's report contradicted the videotape of the incident.

In July 2019, Baxter filed an eight-count civil rights complaint against Lee and the Sheriff based on his arrest on December 24, 2017. The claims against Lee individually include common law battery (Count II), excessive force in violation of the Fourth Amendment (Count IV), common law false imprisonment/arrest (Count V), and false arrest in violation of the Fourth Amendment (Count VIII). Baxter raises the same causes of action against the Sheriff in his official capacity, asserting he is vicariously liable under state law for the wrongful conduct of Lee, acting within the scope of his employment (Counts I, VI), and asserting municipal liability for the alleged constitutional violations, which he contends resulted from the Sheriff's policy or practice of disregarding deputy misconduct or disregarding a need for policies governing supervision, hiring and training (Counts III, VII). Lee and the Sheriff move for summary judgment on all claims and move to strike the statement of an undisclosed witness.

II. Discussion

A. Motion to Strike Undisclosed Witness

Pursuant to Rule 26(a), parties are required to "disclose the name and identifying information of persons 'likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims and defenses.'" Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 26(e) directs the parties to continue to supplemental their Rule 26 disclosures if they learn "that in some material respect the disclosure or response is incomplete or incorrect." Fed. R. Civ. P. 26(e)(1)(A). A failure to disclose a witness may result in exclusion of that witness as evidence on a motion or at trial, unless the failure is harmless or was substantially justified. See Rigby v. Philip Morris USA Inc., 717 F. App'x 834, 835 (11th Cir. 2017) (citing Fed. R. Civ. P. 37(c)(1)). In making this determination, the district court considers: "(1) the importance of the testimony, (2) the reason for the failure to disclose the witness earlier, and (3) the prejudice to the opposing party if the witness had been allowed to testify." R.M.R. ex rel. P.A.L. v. Muscogee Cnty. Sch. Dist., 165 F.3d 812, 818 (11th Cir. 1999) (citing Fabrica Italiana Lavorazione Materie Organiche S.A.S. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th Cir. 1982)). Moreover, after a scheduling deadline has expired, the deadline may be modified only on a showing of good cause, which requires a showing of diligence. See Fed. R. Civ. P. 16(b)(4); see Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) ("This good cause standard precludes modification unless the schedule cannot 'be met despite the diligence of the party seeking the extension.'") (quoting Rule16's advisory committee's note).

Defendants move to strike the statement of former deputy, Sergeant Corey Finch, ECF No. 33-9, which Baxter attached to his responses in opposition to summary judgment. Finch was not timely disclosed as a witness in this case, and his statement was not taken until October 18, 2020, over one month after the close of discovery in mid-September. Baxter argues the failure to disclose was inadvertent. As background, Finch had been Lee's supervisor for a time and also supervised Zachary Wester. When over 40 cases were filed against Wester and the Sheriff claiming Wester fabricated evidence (some cases also included Lee as a defendant), the Court consolidated them for discovery. Baxter's case...