Feliciano v. City of Miami Beach

• Decision Date: 08 March 2012
• Docket Number: Case No. 10–23139–CV.
• Citation: 847 F.Supp.2d 1359
• Parties: Janet FELICIANO, Plaintiff, v. CITY OF MIAMI BEACH, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

847 F.Supp.2d 1359

Janet FELICIANO, Plaintiff,

v.CITY OF MIAMI BEACH, et al., Defendants.

Case No. 10–23139–CV.

United States District Court, S.D. Florida.

March 8, 2012.

Robert William Ross, Jr., Jennifer Lucas Keesler, Cape Coral, FL, for Plaintiff.

Robert F. Rosenwald, Jr., City Of Miami Beach, Joshua Michael Entin, Rosen Switkes

& Entin P.L., Miami Beach, FL, for Defendants.

OMNIBUS ORDER GRANTING DEFENDANT CITY OF MIAMI BEACH'S MOTION FOR SUMMARY JUDGMENT (D.E. 117) AND DENYING AS MOOT DEFENDANT CITY OF MIAMI BEACH'S MOTION TO DISMISS (D.E. 68)

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Defendant City of Miami Beach's Motion for Summary Judgment (D.E. 117), filed November 15, 2012. Plaintiff filed her Response (D.E. 130) on November 29, 2011. The City filed its Reply (D.E. 140) on December 12, 2012. Also before the Court is the City's Motion to Dismiss (D.E. 68), filed June 6, 2011. Plaintiff responded to that motion (D.E. 75) on June 30, 2011, and the City replied (D.E. 81) on July 22, 2011.

Having considered the Motion for Summary Judgment, Response, Reply, related pleadings, and the record, the Court finds as follows.

I. Background

a. Underlying Incident

The record evidence, viewed in a light most favorable to the non-moving party, reveals as follows.

In August 2006, Miami Beach Police received a confidential tip from Plaintiff's neighbor that drug activity was taking place in Plaintiff's home. (Defendant Officers' Statement of Facts, D.E. 113 at ¶ 1.) The tip indicated that the residents at Plaintiff's address were possibly drug dealers. ( Id.) The tip also indicated that the residents had three small children. ( Id.)

On September 2, 2006, at approximately 9 p.m., Miami Beach Police Department Officers Andrew Dohler, Douglas Dozier, Robert Acosta, and James Nash went to Plaintiff's residence to investigate the complaint. ( Id. at ¶ 4.) They were in plain clothes. (Plaintiff's Statement of Material Facts, D.E. 131 at ¶ 1.) The officers came to the Plaintiff's door and allegedly smelled a strong odor of marijuana emanating from the apartment. (Defendant Officers' Statement of Facts, D.E. 113 at ¶ 5.) Acosta knocked on Plaintiff's door. ( Id.)

Plaintiff was at home with boyfriend Edgardo Gonzaga and their three children. ( Id. at ¶ 7; Plaintiff's Statement of Material Facts, D.E. 131 at ¶ 5.) Plaintiff was five to eight weeks pregnant. (Defendant Officers' Statement of Facts, D.E. 113 at ¶ 13C; Plaintiff's Counter–Statement of Facts, D.E. 131 at ¶ 13C.) Gonzaga was in the bedroom watching television. (Plaintiff's Statement of Material Facts, D.E. 131 at ¶ 5.)

Plaintiff's eldest child opened the door. ( Id. at ¶ 2.) Plaintiff came to the doorway and saw the officers outside. ( Id.) The officers told Plaintiff that they received a tip that drugs were being sold from the home. ( Id.) Dohler asked to enter the home and conduct a search. ( Id. at ¶ 3.) Plaintiff refused any entry without a warrant. ( Id.) Dohler told Plaintiff that that they did not need a warrant because there was a candle burning in her window. ( Id. at ¶ 4.) Dohler said that the burning candle was a fire hazard justifying removal of the children from the home. ( Id.)

Soon Gonzaga came out of the bedroom and into the living room. ( Id. at ¶ 5.) The officers claim that they saw a marijuana joint in Gonzaga's hand. (Defendant Officers' Statement of Facts, D.E. 113 at ¶ 9.) At this point the officers allegedly rushed through the door and into Plaintiff's apartment. (Plaintiff's Statement of Facts, D.E. 131 at ¶ 5.)

Acosta grabbed Plaintiff by the neck and forced her towards the couch. ( Id. at ¶ 6.) He then restrained her by holding her arms and began repeatedly pushing her abdomen into the wooden couch arm. ( Id.) Plaintiff begged Acosta to stop hurting her because she was pregnant. ( Id.) Plaintiff also told Officer Acosta that she was asthmatic. ( Id.) Acosta laughed but said nothing. ( Id.) Nash stood next to Plaintiff and Acosta and did not intervene. ( Id. at ¶ 7.)

Dozier and Dohler grabbed Gonzaga by the neck. ( Id. at ¶ 8.) Plaintiff's eldest child ran to help Gonzaga. ( Id.) Nash grabbed the child by the shoulder and threw him against the wall. ( Id.) Gonzaga struggled, attempting to get away from the officers and go help his son. ( Id.) Dohler and Dozier handcuffed Gonzaga and placed him under arrest. ( Id.) During a search of Gonzaga's person incident to arrest, Officers discovered a small amount of cannabis as well as rolling paper. (Defendant Officers' Statement of Facts, D.E. 113 at ¶ 15.)

Acosta released Plaintiff to sit on the couch with her children. ( Id. at ¶ 9); (Defendant Officers' Statement of Facts, D.E. 113 at ¶ 16.)

Acosta, Dohler, and Dozier proceeded to search Plaintiff's bedroom and kitchen. ( Id. at ¶ 10.) The officers went through Plaintiff's underwear drawer and pantry. ( Id.) Neither Plaintiff nor Gonzaga provided consent to the search. ( Id.)

One officer emerged from the kitchen and said that he had found a marijuana joint. ( Id. at ¶ 11.)

The officers arrested Gonzaga for possession of marijuana, possession of drug paraphernalia, and resisting arrest. ( Id. at ¶ 12.) All charges were later dropped. ( Id.) The seized contraband was never tested and ultimately was destroyed. (Acosta Deposition, D.E. 114–4 at 84–85.)

The entire episode lasted ten to fifteen minutes. (Plaintiff's Statement of Facts, D.E. 131 at ¶ 13.)

Plaintiff experienced cramping and bleeding after the officers left. ( Id. at ¶ 14.) The next night, Plaintiff went to the emergency room and learned that she had suffered a miscarriage. ( Id.)

Plaintiff maintains that there were no drugs anywhere in or near her residence on September 2, 2006. (Plaintiff's Counter–Statement of Facts, D.E. 131 at ¶¶ 5, 15.) She also claims that Gonzaga had no drugs in his hand when he came out of the bedroom and that no joint was ever recovered by police. ( Id. at ¶¶ 9, 11, 16.)

b. Visit to Internal Affairs

Plaintiff, Gonzaga, and Plaintiff's father went to the Miami Beach Department Internal Affairs Department on September 5, 2006, to report the incident. (Plaintiff's Counter–Statement of Facts, D.E. 132 at ¶ 24.) Plaintiff gave a preliminary statement to one investigator and a tape-recorded statement to another. (Plaintiff's Statement of Facts, D.E. 132 at ¶ 7.)

At some point Plaintiff felt she was being questioned accusatorily, so she left. (Plaintiff's Statement of Facts, D.E. 132 at ¶ 8.) She provided her contact information but received no follow-up communication from the department. ( Id. at ¶ 10.)

c. MBPD Policies, Trainings, and Unrelated Complaints

The Miami Beach Police Department has promulgated standard operating procedures (“SOPs”) that govern police conduct. (City of Miami Beach's Statement of Undisputed Facts, D.E. 118 at ¶ 1.) The SOPs are based on standards developed and promulgated by The Commission on Accreditation for Law Enforcement Agencies and The Commission for Florida Law Enforcement Accreditation. ( Id.)

The “use-of-force” SOP sets forth the following factors for consideration in use-of-force situations: seriousness of crime; size, age and weight of subject; apparent physical ability of subject; presence of weapons; known history of violence; medical condition, mental state and influence of drugs or alcohol; and number of subjects present. ( See Plaintiff's Response in Opposition to Summary Judgment, D.E. 130 at 7 n. 9.)

Both Plaintiff's expert and the City's expert agree that the use-of-force SOP and other related SOPs adequately protect all members of the public, including so-called “special needs” groups like pregnant women, children, the elderly, asthmatics, and the physically disabled. (City of Miami Beach's Statement of Undisputed Facts, D.E. 118 at ¶ 3.)

The Miami Beach Police Department conducted mandatory training courses between 2003 and 2006. ( Id. at ¶ 2.). Among the mandatory courses were those pertaining to the protection of the elderly, young, and disabled. ( Id.) The department also conducts mandatory annual retrainings for all officers. ( Id.) However, Officers Acosta and Nash have no recollection of receiving training specific to restraint of special populations within the last eight years. (Plaintiff's Counter–Statement of Facts, D.E. 132 at ¶ 2.).

The Miami Beach Police Department has an Internal Affairs unit, housed separately from the police department, which conducts investigations into complaints of police misconduct. ( See id. at ¶¶ 5–11, 24.) All Internal Affairs investigators are supervisory in rank and attend Internal Affairs school. ( Id. at ¶ 7.) Plaintiff's expert opines that Internal Affairs has a practice of inadequately investigating and disciplining officer misconduct. ( See id. at ¶ 8.) Plaintiff's expert bases his opinion on three prior and unrelated complaints filed with the police department Internal Affairs unit between 2003 and 2006.( Id.) In one incident, the complainant alleged that an MBPD officer pulled her by the hand during a traffic stop and altercation. ( Id. at ¶ 15.) Internal Affairs interviewed six witnesses and found no inappropriate use of force, though it did find that the officer was discourteous and disciplined him with verbal counseling. ( Id.) In the second incident, two officers were alleged to have used excessive force with an arrestee. (Defendant's Motion for Summary Judgment, D.E. 117 at 10.) Internal Affairs interviewed eighteen witnesses, convened a panel of subject-matter experts, and identified seven possible violations. (City of Miami Beach's Statement of Undisputed Facts, D.E. 118 at ¶ 17.) Many of the charges were found substantiated, and one of the accused officers was suspended for two weeks without pay following the investigation. ( Id. at ¶ 19.) And in the third incident, an officer used a taser to subdue a resisting subject. ( Id. at ¶ 20.) Internal Affairs interviewed seventeen witnesses and concluded that the force used was...