Estate of Bashimam v. City of Tallahassee

• Decision Date: 11 March 2011
• Docket Number: CASE NO. 4:10cv343-RH/WCS
• Parties: ESTATE OF Nabel BASHIMAM, etc., et al., Plaintiffs, v. CITY OF TALLAHASSEE et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

2011 WL 13232538

ESTATE OF Nabel BASHIMAM, etc., et al., Plaintiffs, v. CITY OF TALLAHASSEE et al., Defendants.

CASE NO. 4:10cv343-RH/WCS

United States District Court, N.D. Florida, Tallahassee Division.

March 11, 2011

Only the Westlaw citation is currently available.

Attorneys and Law Firms

Melissa Ann Horwitz, Law Offices of Richard Johnson, Richard Errol Johnson, Richard E. Johnson PA, James Vernon Cook, James V. Cook PA, Tallahassee, FL, for Plaintiffs.

Billy Jack Hendrix, City Attorneys Office, Brett Michael Waronicki, Lisa Ann Barclay, Michael Patrick Spellman, Robert Jacob Sniffen, Sniffen & Spellman PA, Tallahassee, FL, for Defendants.

ORDER DISMISSING THE CLAIMS AGAINST DEFENDANT McNEIL AND OTHERWISE DENYING THE MOTIONS TO DISMISS

Robert L. Hinkle, United States District Judge

*1 This case arises from a police shooting. An officer shot and killed a person he was trying to arrest and shot at the person's companion. The decedent's personal representative and the companion have sued the officer, the police chief, and the city. The defendants have moved to dismiss. This order dismisses the claims against the police chief but denies the motions to dismiss the claims against the officer and the city. The order also denies the officer's motion for a more definite statement.

I

The plaintiffs' claims as now pending are set out in the second amended complaint. On the defendants' motions to dismiss, the second amended complaint's factual allegations—though not its legal conclusions—of course must be accepted as true. This order sets out the facts as alleged.

City of Tallahassee police officer Richard Pulido saw a pickup truck at a gas station and ran its license plate. It was registered to Nabel Bashimam. A Colorado warrant was out for Mr. Bashimam's arrest for violating conditions of probation on a drug conviction.

Officer Pulido approached the driver and learned that it was indeed Mr. Bashimam. Officer Pulido attempted an arrest. Mr. Bashimam fled on foot, and Officer Pulido gave chase, also on foot. The truck's single passenger, Melissa Dixon, began driving the truck.

Mr. Bashimam jumped into the truck's bed. Officer Pulido followed Mr. Bashimam into the truck's bed and shot him several times, killing him. Officer Pulido next shot at Ms. Dixon, but a metal support in the seat back stopped the bullet. She suffered injuries from shattered glass or shrapnel.

II

In the second amended complaint, Mr. Bashimam's personal representative and Ms. Dixon assert that Officer Pulido used excessive force in violation of the Fourth Amendment. The plaintiffs have named as defendants not only Officer Pulido but also the police chief at the time—Walter McNeil—and the City of Tallahassee. The plaintiffs seek compensatory damages from all defendants and punitive damages from Officer Pulido and Chief McNeil. The personal representative also asserts a claim on behalf of Mr. Bashimam's survivors—his parents—for their mental anguish.

Officer Pulido has moved to dismiss or for a more definite statement. The City and Chief McNeil have moved to dismiss.

III

The second amended complaint is easily sufficient to state a claim on which relief can be granted against Officer Pulido. It alleges that Mr. Bashimam was fleeing but otherwise threatening nobody. It alleges he posed no danger to anyone and that Officer Pulido had no reason to believe otherwise. And it alleges that Officer Pulido had no reason to believe Mr. Bashimam had committed a violent crime. If these are the facts—as must be accepted on the motion to dismiss—shooting Mr. Bashimam was unconstitutional as a matter of clearly established law:

Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.

*2 Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L.Ed. 2d 1 (1985).

Officer Pulido says, though, that the second amended complaint fails to state a claim because it does not sufficiently allege a basis for recovery for the survivors' mental anguish. This is not so. On any fair reading, the second amended complaint alleges a claim precisely as authorized by the Florida wrongful-death statute. See Fla. Stat. § 768.21. When a person dies as the result of a constitutional violation in Florida, the personal representative may recover under 42 U.S.C. § 1983—on behalfof the estate and survivors—the damages authorized by the Florida wrongful-death statute. This is so because § 1983 incorporates state remedial provisions of this kind. See Carringer v. Rodgers, 331 F.3d 844, 850 (11th Cir. 2003); Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961). And Officer Pulido does not need a more definite statement; the second amended complaint is clear enough on these points.

Officer Pulido says that if this is the basis for recovery, the claim is barred by the statute of limitations, because the case was filed more than two years—though less than four—after the shooting. The statute of limitations in Florida for a wrongful-death claim is indeed two years. But the statute of limitations for a § 1983 claim in Florida is four years, even when the claim results from a death. This is so because, as the United States Supreme Court and the Eleventh Circuit have both squarely held, there is but a single statute of limitations for § 1983 claims that arise in a state, and it is the state's residual personal-injury statute of limitations. See Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L.Ed. 2d 594 (1989); Jones v. Preuit & Mauldin, 876 F.2d 1480 (11th Cir. 1989). See also Niesen v. City of Clearwater, No. 8:08-cv-1599-T-30TBM, 2009 WL 1046122 (M.D. Fla. April 20, 2009) (applying—without discussion—Florida's residual personal-injury four-year statute of limitations to a § 1983 claim in Florida arising from a wrongful death). The Eleventh Circuit explained this in Jones:

[Under a prior, now-abandoned approach], federal courts in section 1983 actions applied the limitations period of the most closely analogous action under the law of the forum state, providing that that limitations period was not inconsistent with federal policy. See, e.g., Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L.Ed. 2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L.Ed. 2d 295 (1975). This led to a variety of limitations periods being applied to section 1983 actions in a given state depending on the characterization of a particular action. See generallyBurnett v. Grattan, 468 U.S. 42, 49-50, 104 S. Ct. 2924, 2929-30, 82 L.Ed. 2d 36 (1984); see, e.g., Hess v. Eddy, 689 F.2d 977 (11th Cir. 1982) (two years for wrongful death), cert. denied, 462 U.S. 1118, 103 S. Ct. 3085, 77 L.Ed. 2d 1347 (1983); Nathan Rodgers Construction & Realty Corp. v. City of Saraland, 670 F.2d 16 (5th Cir. Unit B. 1982) (one year for denial of sewer permit); see alsoJones v. Preuit & Mauldin, 763 F.2d [1250,] 1253 n. 1 [ (11th Cir. 1985) ] (collecting cases in Alabama). The district court in this case characterized plaintiff's claim as most analogous to claims brought under Alabama's residual statute of limitations, Ala.Code § 6-2-39(a)(5) (repealed) (1985). That section contained a one-year limitations period. Because plaintiff filed suit twenty-two months after his cause of action arose, the district court dismissed the case as time-barred. Plaintiff appealed.

*3 While the appeal was pending, the Supreme Court changed the way federal courts select the most appropriate statute of limitations in section 1983 actions. In Wilson v. Garcia, 471 U.S. 261, 105 S. Ct.1938, 85 L.Ed. 2d 254 (1985), the Supreme Court abandoned the patchwork approach followed in Johnson, supra, and held that principles of uniformity, certainty, and efficiency required application of a single limitations period for all actions brought in a single state under section 1983. The Court then held that the forum state's statute of limitations for personal injury actions should provide that single limitations period. Id. at 275-76, 105 S. Ct. at 1946-47.

A panel of this Court applied Wilson on the appeal from the district court's dismissal of plaintiff's case. The Court held that Alabama's six-year statute of limitations for trespass, Ala.Code § 6-2-34(1), should apply rather than the residual personal injury statute of limitations, Ala.Code § 6-2-39(a)(5) (repealed). 763 F.2d at 1256. Plaintiff filed suit well within this six-year period. Consequently, the panel reversed the district court's dismissal and remanded the case for further proceedings.

On remand, the district court granted summary judgment to defendants. On appeal, a panel of this Court affirmed in part and reversed in part. On petition for rehearing en banc, this Court vacated the panel opinion and granted the petition for rehearing. A sharply divided Court affirmed the grant of summary judgment. After the plaintiff filed a petition for writ of certiorari to the United States Supreme Court, the Supreme Court decided Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L.Ed. 2d 594 (1989). In Owens, the Court held that, in states like Alabama with more than one statute of limitations for personal injury actions, the residual personal injury statute of limitations applies to all actions brought under section 1983.

Jones, 876 F.2d at 1482.

In Florida, the residual personal-injury statute of limitations is four years. It applies to all § 1983 actions arising in Florida. The plaintiffs filed this case within four years after the shooting. The statute of limitations does not bar the claims.

In sum, the second amended complaint adequately alleges that Officer Pulido shot and killed Mr. Bashimam and shot at and injured—with broken glass and shrapnel—Ms. Dixon. The second amended complaint adequately alleges that this was unconstitutionally excessive force. The second amended complaint states a claim against Officer Pulido on which relief can be granted and is not barred by the...