Fils v. City of Aventura, Case No. 05–CIV–22308.

• Citation: 768 F.Supp.2d 1188
• Decision Date: 23 August 2010
• Docket Number: Case No. 05–CIV–22308.
• Parties: Cindy FILS and Nemours Maurice, Plaintiffs,v.CITY OF AVENTURA, et al., Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

768 F.Supp.2d 1188

Cindy FILS and Nemours Maurice, Plaintiffs,
v.
CITY OF AVENTURA, et al., Defendants.

Case No. 05–CIV–22308.

United States District Court, S.D. Florida.

Aug. 23, 2010.

[768 F.Supp.2d 1194]

Arthur Benjamin Calvin, Coconut Grove, FL, for Plaintiffs.Scott David Alexander, Johnson Anselmo Murdoch Burke Piper & McDuff, Fort Lauderdale, FL, Harriet R. Lewis, Oliver Gene Gilbert, III, Stephanie Gale (Cherlin) Deutsch, Gary K. Oldehoff, Lewis Stroud & Deutsch PL, Boca Raton, FL, for Defendants.

ORDER ON REMAND WILLIAM M. HOEVELER, Senior District Judge.

Before the Court are four motions for summary judgment. On September 19, 2008, the City of Aventura and Aventura police chief Thomas Ribel filed separate motions for summary judgment against the plaintiffs (ECF No. 138 and 139). On October 2, 2008, police officers Sean Bergert, Charles Carlantone, Jeffrey Burns, Christopher Goranitis, Jason Williams, and Harvey Arango filed a joint motion for summary judgment against Cindy Fils (ECF No. 160), and a joint motion for summary judgment against Nemours Maurice (ECF No. 159). All four motions primarily addressed whether the defendants were entitled to qualified immunity.

On January 29, 2009, the Court denied all four motions in a cursory order [ECF No. 195], and the defendants appealed.¹ On July 6, 2010, the United States Court of Appeals for the Eleventh Circuit issued an order of limited remand instructing me to provide a more comprehensive ruling on the motions for summary judgment, because my initial treatment was not amenable to meaningful appellate review. The court of appeals retained jurisdiction to ensure a speedy resolution of the qualified immunity issues. Upon further consideration of the facts, and viewing them through the correct legal standard, I must humbly alter my conclusions. It is clear to me now that I erred in denying all four summary judgment motions without methodically evaluating each claim against each defendant. In this revised order, I have endeavored to perform my job of conducting a proper analysis, in the manner I should have done the first time.

[768 F.Supp.2d 1195]

I. BACKGROUND

A. The fourth amended complaint

This lawsuit was filed on August 19, 2005. The forth amended complaint (“the complaint”) was filed July 6, 2007. The case is brought by the plaintiffs against the City of Aventura, Aventura police chief Thomas Ribel, and six individual police officers, alleging state torts and federal constitutional violations arising from the plaintiffs' arrest on August 23, 2003. The complaint asserts twenty-four counts against the various defendants, which I will summarize.

In Counts I and II, plaintiffs Cindy Fils and Nemours Maurice, respectively, assert false imprisonment claims against the six Aventura police officers. In Counts III and IV, the plaintiffs assert the same false imprisonment claims against the City of Aventura.

In Count V, Fils asserts a civil rights claim under 42 U.S.C. § 1983 against police officer Sean Bergert, for depriving her constitutional rights under the color of state law. According to the complaint, the “rights” that Officer Bergert violated are:

“a. the right and privilege not to be deprived of her life and liberty without due process and equal protection of the law; and/or

b. the right and privilege to be free from unlawful attack upon the physical integrity of her person; and/or

c. the right and privilege to be secure in her person while in the custody of police officers; and/or

d. the right and privilege not to be subjected to punishment without due process of law; and/or

e. the right and privilege while in custody to be free from illegal assault and battery by any person exercising the authority of the CITY OF AVENTURA, CITY OF AVENTURA POLICE DEPARTMENT and the State of Florida; and/or

f. the right and privilege to be free from cruel and unusual punishment; and/or

g. the right to be free from physical abuse and intimidation; and/or

h. the right to be free from unreasonable seizure.”

In Counts VI–X, Fils repeats the same allegations verbatim in separate § 1983 claims against the other five police officers. In turn, in Counts XI–XVI, Nemours Maurice repeats identical § 1983 allegations against each of the six police officers. Despite the officers' different roles in the plaintiffs' arrests, every § 1983 claim asserted against the police officers is exactly the same.

In Counts XVII and XVIII, Fils and Maurice, respectively, claim that the City of Aventura and police chief Thomas Ribel (in his individual and official capacities) are liable under § 1983 for instituting a practice or policy of deliberate indifference to the hiring and screening of Aventura police officers. Similarly, in Counts XIX and XX, Fils and Maurice assert § 1983 claims against Chief Ribel and the City of Aventura for failing to properly train and supervise members of the Aventura police force.

In Counts XXI and XXII, Fils and Maurice, respectively, allege that all six police officers are liable for malicious prosecution under Florida law, for initiating criminal proceedings without probable cause. Finally, in Counts XXIII and XIV, the plaintiffs charge the six police officers with committing state-law batteries.

B. Factual background

The facts, as set forth below, are viewed in light most favorable to the plaintiffs. At times, conflicts in the evidence are noted,

[768 F.Supp.2d 1196]

but the version used in analyzing the summary judgment motions is the plaintiffs' version.²

On the night of Friday, August 23, 2003, Cindy Fils and Nemours Maurice were on a date to a hip-hop event at Broadway Billiards in Aventura. Fils Dep. 51, July 3, 2007. The event was hosted by Mr. Maurice's acquaintance Jimmy Augustine, as well as promoter Nerlange Cineus and the club disk jockey Bernie Jadotte. Maurice Dep. 45, June 27, 2007. The plaintiffs arrived at the club sometime after midnight and sat at the bar. Fils Dep. 53–54. They chatted while Ms. Fils drank one or two cocktails and Mr. Maurice played on a video arcade. Maurice Dep. 76. They remained in the bar area until sometime close to 3:00 a.m., when Maurice observed an altercation between a man and a woman on the dance floor. Id. at 95. Maurice walked over and spoke to the woman, Julie Etienne, who claimed to have been physically assaulted. Id. at 103, 107. Maurice offered to escort Ms. Etienne to the parking lot so she could explain what happened to the off-duty police officers Elricco Barnes and Jason Williams.³ Id. at 107; Cineus Dep. 64, Sept. 19, 2007. Ms. Eteinne was screaming and angry as she and Maurice walked toward the exit, and she became confrontational with the police officers once she was outside. Maurice Dep. 108, 111.⁴ Officer Barnes eventually attempted to put Ms. Eteinne in handcuffs, which she resisted. Maurice Dep. 120. Barnes struggled for a moment to apply the handcuffs, and either verbally instructed Ms. Eteinne to sit on the ground or physically forced her to the ground, depending on whose story you believe. Id. at 112. Meanwhile, Ms. Eteinne's companion, Latrice Edwards, began protesting her friend's arrest and challenging Officer Barnes. Id. at 113. Officer Barnes warned Ms. Edwards to stand back more than once, but she did not comply. Id. at 120. Officer Barnes then shot Ms. Edwards with a taser gun and she fell to the ground. Id. at 113.⁵ By this point, a crowd of somewhere between fifteen and thirty-five patrons from Broadway Billiard's had gathered in the parking lot, including Ms. Fils, Jimmy Augustine, Nerlange Cineus, and Bernie Jadotte.⁶ Several Aventura police cruisers arrived, along with a paddy wagon and a police K–9 unit. Cineus Dep. 72.

[768 F.Supp.2d 1197]

As the situation with Ms. Eteinne and Ms. Edwards was calming down to some extent,⁷ Maurice and Jimmy Augustine walked toward the entrance of the club and began telling patrons to either enter or exit, but not to crowd around the doorway. Maurice Dep. 134. Maurice claims he was facing the entrance when he commented to Augustine about the Aventura police force, saying in a regular tone of voice: “they're overreacting, these motherfuckers are overreacting.” Id. at 143–44. Officer Sean Bergert (who was the first back-up unit to arrive, according to the plaintiffs' summary judgment papers) was a short distance behind Maurice and overheard the comment.⁸ Id. at 141. Officer Bergert asked, “what you said, motherfucker?” Id. at 141. Maurice turned around and saw Officer Bergert standing several feet away with his taser drawn. Id. at 141:14; Fils Dep. 94:9. Maurice raised his hands and took a step back. Maurice Dep. 144. According to Maurice, Officer Bergert had not made any commands up until this point, and he did not direct Maurice to surrender or return to the club. Id. at 148–49, 156; Fils Dep. 82. ⁹ As the two men allegedly stood in silence, Officer Bergert fired his twin taser probes into Maurice's chest and delivered the electricity. Maurice's body became tense and his knees locked up, but he did not fall to the ground. Maurice Dep. 153. Maurice testified that once he was on the ground, “Bergert had his knees in the back of my head [and] I believe it was him that did the contact tase in the back of my neck. And he was grinding the taser in the back of my neck and saying, you mother fucker, you mother fucker.” Maurice Dep. 149:9–15.¹⁰ Either while Maurice was standing or after he was on the ground,¹¹ Officer Williams shot his taser

[768 F.Supp.2d 1198]

probes into Maurice's rib cage, because Williams perceived Maurice to be struggling against Bergert. See J. Williams Dec. ¶ 12, ECF No. 155, Ex. 1; Fils Dep. at 86, 88. Williams and then a third officer crouched beside Maurice with Bergert and began taking him into custody. Cineus Dep. 46:19–22.

During and after the tasing, Ms. Fils was positioned several feet behind Officers Bergert and Williams. Fils. Dep. 85–86. Once Maurice was on the ground, she moved closer to the huddle of police...