Cutino v. Untch

• Decision Date: 14 January 2015
• Docket Number: Case No. 12–22201–CIV–COHN/SELTZER.
• Parties: Carlos CUTINO, Plaintiff, v. John UNTCH, Stephen Jepkema, Mark Moretti, individually; Several Unknown Police Officers of The City of Miramar, Florida, a Florida municipal corporation; and The City of Miramar, Florida, a Florida municipal corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

79 F.Supp.3d 1305

Carlos CUTINO, Plaintiff

v.John UNTCH, Stephen Jepkema, Mark Moretti, individually; Several Unknown Police Officers of The City of Miramar, Florida, a Florida municipal corporation; and The City of Miramar, Florida, a Florida municipal corporation, Defendants.

Case No. 12–22201–CIV–COHN/SELTZER.

United States District Court, S.D. Florida.

Signed Jan. 14, 2015.

Louis Michael Jepeway, Jr., Jepeway and Jepeway, P.A., Jeffrey David Weinkle, Miami, FL, for Plaintiff.

Alicia Hayley Welch, John Joseph Quick, Weiss Serota Helfman Cole Bierman & Popok, PL, Coral Gables, FL, Matthew Harris Mandel, Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Fort Lauderdale, FL, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Defendants' Motion for Summary Judgment [DE 122] (“Motion”). The Court has carefully reviewed the Motion and all related filings and is otherwise fully advised in the premises.

I. Background

A. Material Facts

On June 16, 2008, two detectives of the Miramar, Florida, Police Department applied for a warrant to search a residence in Miramar. The warrant application provided facts indicating that Anthony Coombes—who had previously been arrested for many crimes, including drug offenses—was selling crack cocaine from the residence. The application further stated that, in September 2007, a shooting homicide had occurred in the front yard of the home. Based on this information, a Broward County Circuit Judge issued a warrant to search the house for cocaine and related items. See DE 123 (Def.'s Statement of Undisputed Facts in Supp. of Mot. for Summ. J.) at 1–2, ¶¶ 1–7; DE 139 (Pl.'s Statement of Disputed Material Facts in Opp'n to Mot. for Summ. J. of Defs.) at 1–2, ¶¶ 1–7.

Soon thereafter, the same detectives issued an Operations Plan (“Plan”) for executing the search warrant. In addition to the facts stated in the warrant application, the Plan reported that a confidential informant had seen visitors of the home carrying handguns in their waistbands. Under the Plan, the Miramar SWAT Team would enter the residence, secure it, and allow other law-enforcement officers to search the house. Members of the SWAT Team, including Defendants Detective John Untch and Officer Mark Moretti (together, the “Officers”), were given a tactical briefing on the Plan. See DE 123 at 2–4, ¶¶ 8–11, 14–17; DE 139 at 2–3, ¶¶ 8–11, 14–17.

On June 20, 2008, the SWAT Team entered the house to execute the warrant. The Officers proceeded to a bedroom, where they found Plaintiff Carlos Cutino.See DE 123 at 4, ¶¶ 19, 21; DE 139 at 3, ¶¶ 19, 21. The parties offer differing versions of the events that happened next.

Defendants maintain that when the Officers entered the bedroom where Cutino was located, they had their guns drawn with attached lights. Cutino was lying on his back in bed; his eyes were open, and he was staring blankly. The Officers identified themselves as police and told Cutino to show them his hands. But Cutino rolled over onto his stomach and put his hands in the waistband of his pants, causing the Officers to fear that he might have a weapon. The Officers then pulled Cutino off the bed and onto the floor, causing injuries to his face. When Moretti grabbed Cutino's arm to pull him off the bed, he resisted by bracing, tensing, and locking his arms in place. This behavior continued on the floor, and Cutino refused to remove his hands from his waistband. The Officers tried to secure Cutino's arms behind his back in order to handcuff him, but he was kicking his legs at Moretti. Although the Officers repeatedly told Cutino to stop resisting, he tried to bite Untch and was growling. Also, Untch kneeled on the ground and held Cutino's head between Untch's knees because Cutino was trying to bite him. Moretti struck Cutino's right shoulder with the palm of his hand so that Cutino would release his arm and could be handcuffed. Untch likewise applied palm-heel strikes to Cutino's shoulder blades to get a hold of his arms. The Officers called for support because they needed help to secure Cutino. After a further struggle, and with the assistance of another detective, Cutino was handcuffed and taken to the living room. See DE 123 at 5–7, ¶¶ 23–49.

Cutino testified that when the SWAT Team executed the search warrant, he was sleeping at the residence, the home of Anthony Coombes's mother. Cutino was staying at the house because Coombes's mother had hired him to perform a plumbing job. Coombes and his girlfriend were also present in the home. According to Cutino, he woke up when the bedroom door opened and flashlights were shined in his face. Cutino thought it was Coombes playing a joke on him, so he turned onto his stomach, with his hands by his sides, and went back to sleep. Without saying anything, someone (a police officer, he later learned) pulled him out of bed by his ankles. While Cutino was on the edge of the bed, another officer put him in a chokehold and punched him in the face and on the head. With one hand still on Cutino's throat, the officer lifted Cutino up against the wall. The officer may have said something when he had Cutino in a chokehold, but Cutino could not hear him because he was struggling to breathe and his ears had been beaten. The officer then dropped Cutino onto the granite floor, and his head struck the surface very hard. Officers then pulled Cutino's arms behind his back and put their knees on his shoulder, with one officer holding his feet. While trying to put Cutino's arms behind his back, officers kicked and stomped him all over his body and hit him with their fists. See DE 121–1 (Dep. of Carlos Cutino) at 11–14, 19–21, 24–39, 41–42, 105–08, 111–14, 116–18, 127.

Thereafter, Cutino testified, two officers dragged him by his shoulders into the bathroom. They used a towel to wipe the blood off his face, which was bleeding badly. In the bathroom, the officers said to each other, “We got the wrong man. We going to have to put two charges on him because they going to blame us for this.” After discussing what they were going to say about the incident, the officers dragged Cutino to the living room, where they handcuffed him.See id.

Cutino could not recall whether he kicked the officer while being held in a chokehold, but he denies kicking the officer before that time. He also denies trying to hit, bite, or growl at any officer. Cutino could not remember whether he placed his hands in his waistband during the encounter with police. Nor could he recall whether he braced his arms and resisted being handcuffed. See id.¹

The remaining material facts are largely undisputed.² After being handcuffed, Cutino was treated by emergency personnel outside the residence, and police transported him to a local hospital. Cutino was later charged with resisting an officer with violence. See Fla. Stat. § 843.01 ; DE 123–1 at 9–10 (Booking Report). Following a jury trial in August 2009, Cutino was acquitted of this charge. See DE 123 at 8, ¶¶ 52, 54; id. at 10, ¶¶ 68, 69; DE 139 at 7, ¶¶ 52, 54; id. at 10, ¶¶ 68, 69.

B. Procedural History

On June 12, 2012, Cutino brought this action against the Officers and the City of Miramar (the “City”). See DE 1 (Compl.).³ In his current Amended Complaint, Cutino asserts three federal claims against the Officers pursuant to 42 U.S.C. § 1983 : excessive use of force (Count I), unconstitutional arrest (Count II), and malicious prosecution (Count III). See DE 12 at 5–7. Cutino also pleads state-law claims against the Officers for malicious prosecution (Count IV) and against the City for assault and battery (Count V) and false imprisonment (Count VI). See id. at 7–9. Defendants have filed an Answer to the Amended Complaint, denying liability and alleging affirmative defenses, including that the Officers are entitled to qualified immunity. See DE 30.

In their present Motion, Defendants argue that summary judgment should be granted in their favor because the Officers used reasonable force to apprehend Cutino, had probable cause to arrest him for resisting an officer with violence, and are protected by qualified immunity. See DE 122. Cutino has filed a Response opposing the Motion, and Defendants have submitted a Reply. See DE 141; DE 152. The parties have also filed various documentary evidence in support of their arguments.

II. Discussion

A. Summary Judgment Standards

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To satisfy this burden, the movant must demonstrate that “there is an absence of evidence to support the nonmoving party's case.” Id. at 325, 106 S.Ct. 2548.

If the movant makes this initial showing, the burden of production shifts, and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant “may not rest upon the mere allegations or denials in its pleadings” but instead must present “specific facts showing that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573, 1576–77 (11th Cir.1990). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3).

Essentially, so long as the...