Brown v. City of Clewiston

Decision Date30 September 1986
Docket NumberNo. 83-8065-Civ.,83-8065-Civ.
Citation644 F. Supp. 1407
PartiesJoseph Todd Eric BROWN, Plaintiff, v. CITY OF CLEWISTON and Luis Perez, Defendants.
CourtU.S. District Court — Southern District of Florida

John Cecilian, Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, Fla., for defendants.

Michael Nugent, Cone, Wagner, Nugent & Johnson, P.A., West Palm Beach, Fla., for plaintiff.

ORDER DENYING JUDGMENT ON THE PLEADINGS AND TREATING MOTION AS MOTION FOR SUMMARY JUDGMENT AFTER NOTICE TO ALL PARTIES; GRANTING SUMMARY JUDGMENT WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

PAINE, District Judge.

This cause is before the Court for consideration of the motion for judgment on the pleadings filed by defendant CITY OF CLEWISTON (D.E. # 66), pursuant to Rules 12(c) and 12(h)(2) of the Federal Rules of Civil Procedure. The defendant CITY claims that the plaintiff has failed to state a claim upon which relief can be granted for liability under the Civil Rights Act of 1871, 42 U.S.C. § 1983 and for common law negligence and assault and battery.

I

The plaintiff's claim in the case at bar arises out of an incident which occurred on June 18, 1979. The plaintiff, JOSEPH BROWN, then age fifteen, alleges that defendant LUIS PEREZ, a police officer employed by the CITY OF CLEWISTON, negligently and carelessly discharged his firearm, severely injuring BROWN when BROWN attempted to flee from imminent arrest after committing a burglary. He states that excessive force was used despite the fact that he was unarmed at the time, was not an immediate threat to any other person in the vicinity, and that Officer PEREZ knew his name and place of residence. This § 1983 action, including two (2) state claims for negligence and assault and battery, was filed against these two defendants on the basis of alleged deprivations of Constitutional rights secured to the plaintiff by the Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution.

The essential allegations against the CITY, as set forth in the plaintiff's amended complaint (D.E. 35) are: (1) That defendant LUIS PEREZ was a police officer and agent/employee of the CITY at the time this incident occurred; (2) That the defendant PEREZ was acting under color of state law or ordinance or standard operating procedure of the CITY; (3) That PEREZ, acting within the course and scope of his employment as an agent of the CITY, acted wantonly, willfully and/or with gross negligence in discharging a firearm at the minor plaintiff; (4) That the plaintiff was injured; (These allegations are contained in Count I of the complaint, for violations of 42 U.S.C. § 1983, and were incorporated by reference in Count II and Count III); (5) That the CITY "negligently and carelessly failed to instruct or supervise" PEREZ inasmuch as PEREZ "was attempting to arrest the Plaintiff at the time of the shooting and used a greater degree of force than was necessary in making or preserving the arrest." (As alleged in Count II and Count III); and (6) In conjunction with his claim for assault and battery, the plaintiff alleges that the defendant PEREZ acted intentionally, as opposed to negligently.

Before addressing the specific issues raised herein, we feel it necessary to discuss an apparent paradox: The plaintiff alleges in two counts of the amended complaint that PEREZ acted negligently. In Count III, he alleges that PEREZ acted intentionally. He does not plead these claims in the alternative. He asks that both defendants be found liable on all three counts despite this inconsistency in theories.

On its face, it appears that the plaintiff is, in common parlance, trying "to have his cake and eat it too" (a cliche whose significance is often lost on those of us who believe that that is what cake is for). Given our liberal pleading requirements, we will allow the inconsistent allegations to stand; we will not, for instance, grant judgment on the pleadings on Count III (for intentional assault and battery) on the grounds that the plaintiff's allegations of negligence belie alleged intentional wrongful conduct. In other words, we will "let him eat cake".

II

The determination of whether allegations in a complaint set forth a claim cognizable by the Court is essentially one of law. Zamora v. Columbia Broadcasting System, 480 F.Supp. 199 (S.D.Fla.1979). Judgment on the pleadings is a proper motion for raising a defense of failure to state a claim upon which relief can be granted. Fed.R.Civ.Pr. 12(h)(2); See, 5 Wright & Miller, Federal Practice and Procedure, Civil § 1367.

Generally, for purposes of a motion for judgment on the pleadings, all factual allegations in the complaint are taken as true; the motion can only be sustained if the complaining party can prove no set of facts in support of his claim which would entitle him to relief. Cash v. C.I.R., 580 F.2d 152 (5th Cir.1978). In ruling on the motion for judgment on the pleadings, we may only consider the pleadings themselves.

Since motions for judgment on the pleadings are concerned with a determination of the substantive merits of a controversy, such motions can only be granted if no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law. See, generally, 5 Wright & Miller, Federal Practice and Procedure, Civil §§ 1367-1369.

In the instant case, the CITY's answer raises issues of fact which preclude us from granting a motion for judgment on the pleadings. See, Parker v. DeKalb Chrysler Plymouth, 459 F.Supp. 184, (N.D.Ga.1978), aff'd., 673 F.2d 1178 (5th Cir.1982). We may, however, treat this motion as a motion for summary judgment and consider matters outside the pleadings, provided each party has a reasonable opportunity to present all material pertinent to such a motion. Fed.R.Civ.Pr. 12(c).

On Friday, June 13, 1986, this Court authorized its law clerk, to communicate with the attorneys for the respective parties by telephone. During the conference call held on that date, the attorneys were informed that the Court was inclined to treat the motion for judgment on the pleadings as a motion for summary judgment, and requested each attorney to file any additional material he would have the Court consider in connection with such a motion. Counsel for the plaintiff, Mr. Nugent, stated that he would file some material (in addition to that which is already of record) within the week. Mr. Cicilian, counsel for both defendants, stated that he objected to the material plaintiff would be filing but that he had no additional material for the Court's consideration.

In accordance with that conference call, the plaintiff filed a number of exhibits in opposition to the motion for judgment on the pleadings/for summary judgment and an objection to the Court's action (D.E. 99). The defendant CITY filed an objection to the plaintiff's exhibits (D.E. 103). For the record, these objections are overruled.

III FINDINGS OF FACT

The plaintiff and the CITY have stipulated to the following facts:1 On June 18, 1979, Officer LUIS PEREZ was a police officer employed by the defendant CITY. PEREZ was within the vicinity of Concordia Avenue in the City of Clewiston and was observing an apartment located at 834 Concordia Avenue. PEREZ was acting within the course and scope of his employment at that time and during the course of subsequent events.

As PEREZ watched, Plaintiff BROWN went to the back of the apartment at 834 Concordia Avenue, broke the glass in a window there, and crawled into the apartment. BROWN entered the apartment with the intent to steal a stereo and/or other property. Thereafter, BROWN exited the apartment and returned to a car which was parked nearby. Three (3) of his friends awaited him there.

Officer PEREZ approached the parked vehicle, announced that he was a police officer and told BROWN that he was under arrest. At the time, PEREZ knew who the plaintiff was, knew that he was a juvenile and knew his address. BROWN knew PEREZ was a police officer and that he (PEREZ) was attempting to place the plaintiff under arrest.

After PEREZ told the plaintiff that he was under arrest, BROWN attempted to escape by fleeing. Officer PEREZ discharged his firearm, hitting the plaintiff in the leg, in order to prevent his (BROWN's) escape. (All of the foregoing facts are stipulated to in the pretrial stipulation, D.E. 59).

The following facts, although not stipulated to, are uncontroverted: BROWN committed a felony, to wit: Burglary. BROWN was unarmed at the time he was shot and was not a threat to PEREZ or any other person. Officer PEREZ was not in fear of death or bodily harm at the time he shot BROWN.

From the depositions and exhibits submitted to the Court by the plaintiff, BROWN, we find the following facts to be undisputed by either party: In 1977 or 1978, then-Chief of Police Wilbur Miller promulgated certain rules and regulations for the Clewiston police officers (Deposition of Wilbur Miller, D.E. 100, pp. 7-8, 29-32, Deposition of Raynola Stiles, D.E. 32, pp. 52-53). That original manual included rules and regulations concerning the use of deadly force (D.E. 100, p. 8). Officers of the Clewiston police department were required to sign for a copy of these rules, and were told that they must follow the rules in the manual (D.E. 100, pp. 8, 10, 23, 39).

The rules and regulations provided, in section 3.43 (See, D.E. 75, Plaintiff's Notice of Filing Exhibits), as follows:

Firearms and Weapons:

Authorized Uses: A member shall not draw or display his firearm except for a legal use or official inspection. A Member should never draw his firearm unless he plans to and is ready to use it. When it is necessary to use a firearm, it shall be fired for effect, not to wound or warn. A member may discharge his firearm in connection with the performance of his official police duty, for the following reasons or circumstances.
....
c. To defend himself from death or serious injury.
d. To defend another person, unlawfully attacked, from death
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3 cases
  • Rodriguez v. City of Passaic
    • United States
    • U.S. District Court — District of New Jersey
    • February 21, 1990
    ...Cannon, supra, 474 U.S. at 348, 106 S.Ct. at 670; Daniels v. Williams, supra 474 U.S. at 336, 106 S.Ct. at 667; Brown v. City of Clewiston, 644 F.Supp. 1407, 1413 (S.D.Fla.1986) (claim of negligent failure to train police officer who shot unarmed fleeing felon is not cognizable under § 1983......
  • Brown v. City of Clewiston
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 13, 1988
    ...Brown was unarmed and presented no threat of death or bodily harm to Officer Perez or others. See generally Brown v. City of Clewiston, 644 F.Supp. 1407, 1409-10 (S.D.Fla.1986) (describing the undisputed facts surrounding the shooting incident). Also, "Perez knew who the plaintiff [Brown] w......
  • Matthews v. City of Atlanta, Civ. A. No. 1:87-CV-0026-JOF.
    • United States
    • U.S. District Court — Northern District of Georgia
    • October 19, 1988
    ...951 (quoting Languirand at 227-28); see also Stokes v. Bullins, 844 F.2d 269, 273 (5th Cir.1983). More recently, in Brown v. City of Clewiston, 644 F.Supp. 1407 (S.D.Fla.), aff'd, 848 F.2d 1534 (11th Cir.1988), the court of appeals affirmed the district court's dismissal of the appellant's ......

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