Ermini v. Scott, Case No: 2:15-cv-701-FtM-99CM.

• Citation: 249 F.Supp.3d 1253
• Decision Date: 05 April 2017
• Docket Number: Case No: 2:15-cv-701-FtM-99CM.
• Parties: Patricia I. ERMINI, f/k/a Patricia I. Mapes, Plaintiff, v. Mike SCOTT, in his official capacity as Sheriff of Lee County, Florida, Charlene Palmese, individually, Richard Lisenbee, individually, Robert Hamer, individually, and William Murphy, individually, Defendants.
• Court: U.S. District Court — Middle District of Florida

249 F.Supp.3d 1253

Patricia I. ERMINI, f/k/a Patricia I. Mapes, Plaintiff,

v.Mike SCOTT, in his official capacity as Sheriff of Lee County, Florida, Charlene Palmese, individually, Richard Lisenbee, individually, Robert Hamer, individually, and William Murphy, individually, Defendants.

Case No: 2:15-cv-701-FtM-99CM.

United States District Court, M.D. Florida, Fort Myers Division.

Signed April 5, 2017

Colleen J. MacAlister, Law Offices of Colleen J. MacAlister, PA, Naples, FL, for Plaintiff.

Bruce W. Jolly, Gregory James Jolly, Purdy, Jolly, Giuffreda & Barranco, PA, Ft. Lauderdale, FL, for Defendants.

OPINION AND ORDER

JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

This matter comes before the Court on defendants William Murphy, Mike Scott, Robert Hamer, Richard Lisenbee, and Charlene Palmese's Motions for Summary Judgment (Docs. ##56, 56, 59) filed on January 19 and 20, 2017. Plaintiff filed responses (Docs. #63¹ , 64, 65) on February 6, 2017. For the reasons set forth below, Defendants William Murphy, Robert Hamer, Richard Lisenbee, and Charlene Palmese's motions are granted and Defendant Mike Scott's motion is granted in part and denied in part.

I.

Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Baby Buddies, Inc. v. Toys "R" Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is "material" if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010). However, "if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment." St. Charles Foods, Inc. v. Am.'s Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding summary judgment "may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts")). "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).

II.

This is a federal civil rights suit arising out of an incident that unfolded on the evening of March 23, 2012, culminating in the shooting of plaintiff Patricia Ermini² (plaintiff or Mapes) by Lee County Sheriff's Deputy Robert Hamer (Deputy Hamer). Plaintiff filed a twelve-count Amended Complaint (Doc. #52) alleging federal civil rights and state law claims. The material undisputed facts (along with some disputed facts) are as follows:

A. The Events of March 23, 2012

On March 23, 2012, at approximately 8:40 p.m., plaintiff's daughter, Robin LaCasse (LaCasse), called the Lee County Sheriff's Office from her home in Maine, requesting a welfare check for her 71–year old mother, plaintiff Patricia Mapes, who lived in Fort Myers, Florida. During that call, LaCasse told the operator that she had recently spoken on the phone to her mother, who had been going through a long and contentious divorce proceeding that had left her financially ruined. LaCasse stated that her mother seemed distraught and suicidal, and LaCasse was concerned because she had been unable to get back in touch with her mother. LaCasse informed the operator that her mother had a handgun in her house and suspected that she had been consuming alcohol that evening, even though Mapes had denied doing so to her daughter. LaCasse told the operator that Mapes liked wine and used to drink wine. After giving the address of her mother's home to the operator, LaCasse was told by the operator that the Sheriff's Office would go check on Mapes and report what they found.

At approximately 8:45 p.m., Deputies Charlene Palmese, Robert Hamer, and Richard Lisenbee were dispatched to plaintiff's home. The information they received prior to reaching the residence was contained in the computer-aided dispatch (CAD) report. Based on the CAD report, the deputies knew plaintiff's name; age; that she was going through a divorce and was possibly suicidal; that her daughter was concerned for her well-being; that she owned a handgun; and that she was possibly intoxicated. None of the deputies had had any prior contacts with Mapes or the residence prior to that evening.

Deputy Lisenbee arrived first at about 8:53 p.m., parked his marked sheriff's vehicle nearby, and approached the house alone. Deputy Lisenbee conducted a brief sweep of the exterior of the house, noticing there was a car in the garage. Deputy Lisenbee then began banging loudly on the front door and announcing "Sheriff's Office." After seeing no one inside and receiving no response, Deputy Lisenbee found that the front door was closed but unlocked. Deputy Lisenbee opened the door, stepped slightly inside while shining his flashlight, announced "Sheriff's Office, Sheriff's Office," and asked if anyone was home. Deputy Lisenbee observed that no lights were on in the house, it was very dark, and the house was in disarray. Lisenbee saw an empty wine bottle on the floor of living room. After receiving no response to his inquiry, Deputy Lisenbee backed out of the house.

Deputy Palmese arrived in a separate vehicle, and Deputy Lisenbee informed her what was going on. Deputies Lisenbee and Palmese approached the now-open front door³ and Deputy Lisenbee yelled "Sheriff's Office." There was no answer. Deputy Palmese had a bad feeling about the situation because it was so dark and quiet. The deputies decided to wait for additional backup.

At approximately 8:57 p.m., Deputy Hamer was the last of the three dispatched officers to arrive at Mapes' home. Deputy Hamer retrieved an AR15 rifle from the trunk of his patrol car, as he would typically do when called to a scene that was known to have a firearm.

All three deputies testified that it was standard protocol to enter a home when asked to conduct a welfare check, which is what they did next. As the deputies went through the front door, they did not knock but announced themselves by stating "Sheriff's Office" once or twice, but received no response. No lights were on in the home and the deputies did not turn any on. The deputies had drawn their weapons, which had high-powered flashlights illuminating their way. The deputies began "clearing" the interior of the home, beginning with the living room.

The double doors to the master bedroom—which were wood so the officers could not see through them—were both closed. When opened, the doors swung into the bedroom. Deputy Lisenbee opened the right door to the master bedroom⁴ , stood inside the doorway, shined his flashlight inside, saw Mapes on the bed, and said "Sheriff's Office. Are you ok." Mapes responded by saying "who's there?" Deputy Lisenbee stated that he was with the Sheriff's Office, said he was there to make sure she was okay, and asked "are you okay?" Deputy Lisenbee testified that Mapes told him he had better get out of her house or she was going to shoot him, and to stop shining the flashlight on her. Plaintiff recalled telling the people she had a gun and to get out of her house, but does not remember telling them that she was going to shoot them. Deputy Lisenbee began to back out of the bedroom.

Deputy Hamer was outside the bedroom. Hearing plaintiff's threat to shoot, Deputy Hamer raised his rifle into a position to shoot at the master bedroom. Deputy Lisenbee, now outside the bedroom, saw a handgun emerge around the master bedroom door, which was illuminated by flashlights, but did not see plaintiff's body emerge through the doorway. Through the open side of the door Deputy Hamer saw a gun coming around the corner, and then saw half of plaintiff's body, clothed only in underwear. According to Deputy Hamer, as plaintiff was walking towards the door she was in a shooting-stance position with both hands on a handgun, finger on the trigger, pointed directly at Deputy Hamer.⁵ Mapes said "I'm gonna shoot you." Deputy Hamer feared for his life, as well as the lives of the other deputies, and fired seven rounds through the door at plaintiff, never speaking before he shot.⁶ Five of the rounds struck Mapes.

Mapes testified that she woke up in a complete panic to someone saying "she's in here," but had not heard the people knock on the door or announce that they were law enforcement officers. Mapes responded by saying "Get out of my house. I have a gun." Plaintiff got out of bed and hid behind the door. Mapes again told the intruders to leave, and heard someone say he was with the Sheriff's Department. Mapes said she had not called the Sheriff's Department, and again told the person to get out of her house. Mapes also told the person to put the light out. Mapes does not remember retrieving her gun or pointing it at the deputies, and never said "I'm going to shoot you." Mapes testified that she would never have threatened to shoot because she was taught not to do that in training to use the handgun.

Deputy Hamer testified he stopped firing because he saw Mapes fall and saw the gun fall out of her hands. Deputy Hamer kicked the gun away, handcuffed Mapes, and continued to clear the area. The handgun plaintiff had been holding, as well as a spent shell casing from the gun, were recovered near where she had fallen after being shot. Deputy Hamer knew that he...