Gordon v. Amundson, CASE NO. 13-60483-CIV-GAYLES

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: MAGISTRATE JUDGE P.A. WHITE
• Decision Date: 30 December 2014
• Docket Number: CASE NO. 13-60483-CIV-GAYLES
• Citation: Gordon v. Amundson, CASE NO. 13-60483-CIV-GAYLES (S.D. Fla. Dec 30, 2014)
• Parties: MAXIMO GORDON, Plaintiff, v. DETECTIVE GARY AMUNDSON, et al., Defendants.

MAXIMO GORDON, Plaintiff, v. DETECTIVE GARY AMUNDSON, et al., Defendants.

CASE NO. 13-60483-CIV-GAYLES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

December 30, 2014

MAGISTRATE JUDGE P.A. WHITE

REPORT OF MAGISTRATE JUDGE

Introduction

Plaintiff Maximo Gordon has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment and monetary damages for alleged violations of his constitutional rights. The cause is before the court on Defendants Amundson's and Hyatt's motion for summary judgment, DE#29. Plaintiff is proceeding in forma pauperis.

Procedural History and Background

Plaintiff's Complaint in this matter alleges violations of his First, Fourth, Fifth and Fourteenth Amendment rights by county officials. As defendants, Plaintiff named Detective Gary Amundson and Sergeant Ryan Hyatt of the Broward County Sheriff's Office, the Broward County Sheriff's Office, and a John Doe police chief for the Broward County Sheriff's Office. The gravamen of Plaintiff's claim is that Defendants Amundson and Hyatt falsely arrested him in retaliation for Plaintiff filming and threatening to report their alleged police misconduct, and that Defendants used excessive force during the arrest. Plaintiff further alleges that the Broward County Sheriff's Office generally engages in police misconduct, andthat the police chief has failed to train and/or intervene in that misconduct.

Upon initial screening, the undersigned recommended that Plaintiff's claims of retaliation and excessive force proceed against Defendants Amundson and Hyatt, but that his remaining claims against them should be dismissed. DE#7.¹ The undersigned further recommended that the Broward County Sheriff's Office be dismissed as a defendant for Plaintiff's failure to state a claim against it, and that Plaintiff be permitted to amend his claim against the police chief. The district judge adopted that report and recommendation, dismissing the case in part, and dismissing the Broward County Sheriff's Office as a defendant. DE#8. The district judge subsequently dismissed the police chief, due to Plaintiff's failure to amend his claim against the police chief within the time alloted. DE#9. Defendants Amundson and Hyatt subsequently filed a motion to dismiss the claim of retaliation, which was granted. DE## 18, 19 & 23.

The case proceeded, Defendants Amundson and Hyatt answered, and then filed a joint motion for summary judgment. DE##24 & 29; see also DE##30 & 31. Plaintiff filed his response, and Defendants have filed their reply. DE##36, 37, 38 & 41. Defendants motion for summary judgment is thus ripe for disposition.

Standard of Review

A motion for summary should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Greenberg v. Bell-SouthTelecomm., Inc., 498 F.3d 1258, 1263 (11^th Cir. 2007)(per curiam); Fed.R.Civ.P. 56©. In accordance with Celotex and its progeny, a movant for summary judgment bears the initial responsibility of informing the court of the basis for his motion, and identifying those portions of the record, including pleadings, discovery material, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

Where the movant seeks summary judgment on the basis that the non-moving party cannot meet its burden of persuasion at trial, the non-moving party's failure to make a showing that is "sufficient to establish the existence of an element essential to that party's case" will mandate the entry of summary judgment against that party. Celotex, 477 U.S. at 322-23; Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11^th Cir. 1987). Conversely, where the movant seeks summary judgment on the basis of an affirmative defense, it must conclusively establish all essential elements of that defense. See Celotex, 477 U.S. at 331 (party bearing burden of persuasion at trial may prevail on a motion for summary judgment when it has produced credible evidence that would entitle it to a directed verdict if not controverted at trial); Thorsteinsson v. M/V DRANGUR, 891 F.2d 1547, 1551 (11^th Cir. 1990).

If a party seeking summary judgment meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the non-moving party to rebut this showing. Avirgan v. Hull, 932 F.2d 1572, 1577 (11^th Cir.), cert. den'd, 502 U.S. 1048, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992); see also Celotex, 477 U.S. at 324, 331-32. This demonstration need not be accompanied by affidavits. Hoffman v. Allied Corp., 912 F.2d 1379, 1382 (11^th Cir. 1990). However, the non-moving party cannot rely solely on the complaint and other initial pleadings to meet its burden, but must establish through evidentiary materials that there are material issues of fact which require a trial.Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. If the evidence relied upon by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Baldwin County, Alabama v. Purcell Corp., 971 F.2d 1558 (11^th Cir. 1992). A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative is not enough to defeat a properly supported motion for summary judgment. See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11^th Cir. 1996); Walker v. Darby, 911 F.2d 1573, 1577 (11^th Cir. 1990)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 252).

For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami, Florida, 363 F.3d 1099, 1101 (11^th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804, 809 (11^th Cir. 2004)("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11^th Cir. 2003)(citation omitted). To demonstrate a genuine issue of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

At this stage of the case, the evidence and all reasonable inferences from that evidence are viewed in the light most favorable to the nonmovant, but those inferences are drawn "only 'to the extent supportable by the record.'" Penley v. Eslinger, 605 F.3d 843, 848 (11^th Cir. 2010)(guoting Scott v. Harris, 550 U.S. 372, 381 n.8, 127 S.Ct. 1769, 1776 n.8, 167 L.Ed.2d 686 (2007)). Although factual inferences must be viewed in a light most favorable to the nonmoving party, the non-moving party has the burden of establishing by sufficient evidence a genuine issue of material fact. Beard v. Banks, 548 U.S. 521, 525 (2006). Conclusory allegations based on subjective beliefs are thus insufficient to create a genuine issue of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11^th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11^th Cir. 1997); Harris v. Ostrout, 65 F.3d 912, 916 (11^th Cir. 1995)(grant of summary judgment appropriate where inmate produces nothing beyond "his own conclusory allegations...."); Fullman v. Graddick, 739 F.2d 553, 557 (11^th Cir. 1984)("mere verification of party's own conclusory allegations is not sufficient to oppose summary judgment....").

Undisputed Facts²

Plaintiff was arrested on October 2, 2009, and charged with various crimes. See generally DE#31, Exhs.2-4; see also DE#1. Relevant to the instant action, Plaintiff was charged with aggravated fleeing or eluding a law enforcement officer, in violation of Florida Statute § 316.1935. See DE#1; DE#31, Exhs.2-4; Gordon v. State, 103 So.2d 231 (Fla. 4^th DCA 2013). The fleeing and eluding charge was premised upon the allegation that Plaintiff fled from police units during an attempted traffic stop. DE#31, Exhs.3, 4. More specifically, the Complaint Affidavit and Broward Sheriff's Office Event Report stated that officers attempted to stop Plaintiff after he was allegedly observed operating an A.T.V. in a reckless manner along portions of South Dixie Highway, and also along portions of railroad tracks running parallel to the highway that had posted "No Trespassing" signs. Id. According to the affidavit and report, Plaintiff fled from a police unit that had its lights and sirens activated, changed his direction of travel numerous times, engaged in evasive maneuvers, and refused to stop his vehicle. Id. The affidavit and report also stated that one of officers gave Plaintiff several commands over a P.A. system for Plaintiff to stop his vehicle and also gave Plaintiff hand signals to pull his vehicle over, but that Plaintiff replied by sticking his middle finger up and continuing to flee. Id. Allegedly, Plaintiff's vehicle eventually struck a pole, and Plaintiff then allegedly attempted to flee on foot. Id. The affidavit and report further stated that the officers then continued to pursue Plaintiff,...