Croom v. Balkwill

• Decision Date: 18 November 2009
• Docket Number: Case No. 8:08-cv-1219-SCB-MAP.
• Citation: 672 F.Supp.2d 1280
• Parties: Patsy CROOM, Plaintiff, v. Sheriff William F. BALKWILL, in his official capacity; SCSO Sergeant Clifford Legg, in his individual and official capacities; SCSO Detective Frank Bybee, in his individual and official capacities; and SCSO Deputy Stephanie Graham, in her individual and official capacities, Defendants.
• Court: U.S. District Court — Middle District of Florida

672 F.Supp.2d 1280

Patsy CROOM, Plaintiff, v. Sheriff William F. BALKWILL, in his official capacity; SCSO Sergeant Clifford Legg, in his individual and official capacities; SCSO Detective Frank Bybee, in his individual and official capacities; and SCSO Deputy Stephanie Graham, in her individual and official capacities, Defendants.

Case No. 8:08-cv-1219-SCB-MAP.

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

November 18, 2009.

Noyl Houston, Houston Law Firm, PA, Jonesboro, AR, Thomas P. Scarritt, Scarritt Law Group, PA, Tampa, FL, for Plaintiff.

Frederick Joseph Elbrecht, Ralph L. Marchbank, Jr., Dickinson & Gibbons, PA, Nevin A. Weiner, Law Office of Nevin A. Weiner, PA, Sarasota, FL, for Defendant.

ORDER ON MOTION TO STRIKE AFFIDAVIT FILED IN SUPPORT TO MOTION FOR SUMMARY JUDGMENT, AND ON MOTIONS FOR SUMMARY JUDGMENT

ELIZABETH A. KOVACHEVICH, District Judge.

THE CAUSE is before the Court on three motions for summary judgment and incorporated memoranda in support filed by Defendants, William F. Balkwill ("Balkwill"), Frank Bybee ("Bybee"), Stephanie Graham ("Graham"), and Clifford Legg ("Legg") [Dkts. 22, 29, 31], and three memoranda in response then filed by Plaintiff, Patsy Croom. [Dkts. 50, 51, 52]. Defendant Graham filed a Motion for Partial Summary Judgment and Incorporated Memorandum of Law In Support. [Dkt. 29]. Defendant Graham also filed the Affidavit of Stephanie Graham. [Dkt. 34]. In response, Plaintiff filed a Memorandum of Law in Opposition to Defendant's Motion for Partial Summary Judgment and Motion to Strike Defendant Graham's Affidavit Filed in Support of Defendant's Motion for Partial Summary Judgment [Dkt. 50], to which Defendant Graham in response filed an Opposition to Plaintiff's Motion to Strike. [Dkt. 59]. Defendants Balkwill and Bybee filed a Motion for Partial Summary Judgment and Incorporated Memorandum of Law In Support [Dkt. 22], to which Plaintiff in response filed Memoranda of Law in Opposition to Defendants' Motion for Partial Summary Judgment. [Dkts. 51, 52]. Defendant Legg filed a Motion for Summary Judgment and Incorporated Memorandum of Law In Support [Dkt. 31], to which Plaintiff in response filed a Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment. [Dkt. 52]. A review of the entire record, including motions, exhibits, and affidavits demonstrates that Defendants Graham, Legg, Balkwill, and Bybee's motions for summary judgment must be granted.

STATEMENT OF THE CASE

Plaintiff originally filed a seventeen-count¹ complaint in the Circuit Court for the Twelfth Judicial Circuit, Sarasota County, Florida on June 2, 2008. [Dkt. 2]. Defendant Balkwill removed the case to this Court on June 25, 2008. [Dkt. 1]. Plaintiff alleges claims under 42 U.S.C. § 1983 against Sheriff Balkwill, in his official capacity, and Sergeant Legg, Detective Bybee, and Deputy Graham, in their individual and official capacities, for false arrest and excessive use of force. [Dkt. 2]. Plaintiff further alleges claims under Florida Statute § 768.28 against Sheriff Balkwill, in his official capacity, and Sergeant Legg, Detective Bybee, and Deputy Graham, in their individual and official capacities, for false arrest and imprisonment, assault, and battery. Id. Plaintiff also alleges a claim under Florida Statute § 768.28 against Sheriff Balkwill, in his official capacity, for negligence. Id.

BACKGROUND

The facts, taken as true only for purposes of resolving the instant motions, reflect the following. In June 2004, Defendant Bybee received information from a confidential informant that three individuals, Mr. Edward Gable, Mr. Tashko Dinev, and Mr. Bryan Flowers (Plaintiff's son), were selling ketamine² from two residences in Sarasota, Florida, located at 1370 13th Street and 325 Ohio Place, No. 8. [Bybee Dep. P. 74-75, Ex 3]. Defendant Bybee retrieved their drivers' license information from the Department of Highway Safety and Motor Vehicles, which confirmed that Flowers and Dinev resided at 1370 13th Street and Gable resided at 325 Ohio Place, No. 8. Id. at Ex. 3. The informant further related to Defendant Bybee that the ketamine was being shipped to Gable, Dinev, and Flowers from Bulgaria. Id.

From July through August 2004, Defendant Bybee conducted drive-by surveillance on the residences on at least twenty (20) occasions, which consisted of observing the houses, noting whether or not there was any activity, and recording the license plates of vehicles parked on the property. Id. at 79-81. On July 18, 2004, Defendant Bybee visited 325 Ohio Place, No. 8 and discovered ten ketamine bottles discarded outside the door of the apartment in a public access "common area." Id. at 75, Ex. 3. Defendant Bybee seized the bottles and notified the United States Postal Service that any packages addressed to either 325 Ohio Place, No. 8 or 1370 13th Street, Sarasota from Bulgaria should be detained for evaluation by U.S. Customs. Id. at 76, Ex. 3. On July 26, 2004, Bybee returned to 325 Ohio Place, No. 8 and made contact with Gable. Id. Gable confirmed that he received shipments of ketamine from Dinev and Flowers. Id. at 76-77.

On August 12, 2004, Defendant Bybee was notified by Postal Inspector Moffitt that a package from Bulgaria addressed to 1370 13th Street had arrived. Id. at 77. On August 17, 2004, U.S. Postal Service and U.S. Customs seized the package. Id. 78, Ex. 3. Special Agent Edward Wrage of U.S. Customs verified that the package contained thirty-five vials of ketamine with manufacturer's labels and tamper proof seals. Id. at 78-79, Ex. 3.

On August 20, 2004, Defendant Bybee obtained an anticipatory search warrant for 1370 13th Street, pending the delivery and acceptance of the package. Id. at Exs. 3, 4. Sarasota County Sheriff has a written policy that outlines the procedures for executing search warrants and the three classifications for search warrants: low hazard, high hazard, and special hazard. Id. at 52-53, Ex. 2. In accordance with the policy, Defendant Bybee classified the subject warrant as a high hazard. Id. at 52-53, Ex. 2.

On August 20, 2004,³ a briefing was held to discuss the execution of the warrant. [Legg Dep. P. 24-27]. In attendance were officers from the Postal Service, Customs Service, and Sarasota County Sheriff's Office. Id. The following officers from Sarasota County Sheriff's Office attended the briefing: Defendants Graham, Bybee, and Legg and Detectives Falcone, Wallace, Manning, Minchin, Doyle, and Shaw. [Bybee Dep. Ex. 3]. During the briefing, the officers were organized into two teams: (1) an entry/search team, which included Defendants Bybee and Legg and Detectives Falcone, Manning, Minchin, Doyle, and Shaw; and (2) a perimeter team, which included Defendant Graham and Detective Wallace. [Bybee Dep. P. 100; Legg Dep. P. 20-21]. Defendant Legg decided that Defendant Graham would be on the perimeter team because she had not been through "entry" training. [Legg Dep. P. 21]. After the briefing, the teams departed for the subject's residence in separate unmarked vehicles for the entry/search and perimeter teams. [Bybee Dep. P. 104-105].

As the Court must take the facts in the light most favorable to Plaintiff, the Court refers to Plaintiff's deposition testimony to describe what happened next.⁴ On August 20, 2004, the date of the incident, Plaintiff was a sixty-two year old woman with a long history of medical conditions, including rheumatoid arthritis and osteoarthritis. [Croom Dep. I.P. 30-36]. She had also undergone numerous surgeries prior to August 20, 2004.⁵ Id.

Around 3:00 to 3:30 p.m. on August 20, 2004, Plaintiff, dressed in a one-piece bathing suit, was in the front yard of 1370 13th Street gardening when Postal Inspector Crockett, dressed as a mailman, approached her carrying a package. Crockett was wearing a one-way transmitter to allow Defendant Bybee to hear whatever conversation occurred during the package delivery. [Bybee Dep. P. 113-114]. Crockett asked Plaintiff if she knew the person to whom the package was addressed. [Croom Dep. I.P. 73]. Plaintiff explained that she did not know the person, that she was not originally from the Sarasota area, and that she was in Sarasota visiting her son, whose wife had just committed suicide. Postal Inspector Crockett indicated that it was awfully hot for her to be out sunning. Plaintiff replied that she had rheumatoid arthritis with many surgeries, and that the sun made her feel better. Plaintiff showed Crockett the scars on her left shoulder and left knee. [Croom. Dep. I.P. 78-79]. Crockett asked Plaintiff if she would sign for the package, and she signed for it. [Bybee Dep. P. 116]. Plaintiff then took the package inside the residence, and placed it on the computer table. [Croom Dep. I.P. 75].

The package was wired to emit a radio signal indicating that it had been opened. [Bybee Dep. P. 114]. The Entry Team waited in the raid van for the signal, but never received it. [Legg Dep. P. 65-67; Bybee Dep. P. 144]. Defendant Legg decided to begin the operation thirty (30) minutes after the package was delivered. [Bybee Dep. P. 114]. At that time, Plaintiff was back out in the front yard, still wearing the blue one-piece bathing suit. [Bybee Dep. P. 122-23]. Plaintiff was sitting on a piece of timber watering the plants, with only a gardening hose in her hands. [Croom Dep. I.P. 87-95].

Suddenly, Plaintiff heard people screaming and hollering "hit the ground, get down on the ground. Get down." [Croom Dep. I.P. 87]. The people yelling at her were dressed in black, had masks on, and were carrying guns. [Croom Dep. I.P. 87-88]. Plaintiff does not recall the individuals identifying themselves as law enforcement officers. [Croom Dep. I.P. 93-4]. A female member of the group, later identified as Defendant Graham, came through the gate as Plaintiff was trying to get down on the ground. [Croom Dep. I.P. 88]. Defendant Graham yelled at Plaintiff to "get down." [Croom Dep. I.P. 88]. Plainti...