Johnson v. Cannon, 96-201-CIV-T-17B.

• Decision Date: 19 November 1996
• Docket Number: No. 96-201-CIV-T-17B.,96-201-CIV-T-17B.
• Parties: Jacqueline Gonzalez JOHNSON, Plaintiff, v. Lee CANNON, as Sheriff of Pasco County and Phillip Wayne Armstrong, Defendants.
• Court: U.S. District Court — Middle District of Florida

947 F.Supp. 1567

Jacqueline Gonzalez JOHNSON, Plaintiff, v. Lee CANNON, as Sheriff of Pasco County and Phillip Wayne Armstrong, Defendants.

No. 96-201-CIV-T-17B.

United States District Court, M.D. Florida, Tampa Division.

November 19, 1996.

COPYRIGHT MATERIAL OMITTED

Joseph R. Gaeta, Joseph R. Gaeta, P.A., Ft. Myers, FL, for Jacqueline Gonzalez Johnson.

Keith C. Tischler, Powers, Quaschnick, Tischler & Evans, Tallahassee, FL, for Pasco County Sheriff.

Phillip Wayne Armstrong, Daytona Beach, FL, pro se.

ORDER DENYING MOTION TO DISMISS

KOVACHEVICH, District Judge.

This cause comes before the Court on the following motions, responses, and related documents:

1. Plaintiff Jacqueline Gonzalez Johnson's ("Johnson") Amended Complaint and Demand for Jury (Dkt. 29).

2. Defendant Lee Cannon's ("Sheriff") Motion to Dismiss Plaintiff's Amended Complaint (Dkt. 27).

3. Memorandum of Law in Support of Defendant Cannon's Motion to Dismiss Plaintiff's Amended Complaint (Dkt. 28).

4. Plaintiff's Opposition to Defendant's Motion to Dismiss (Dkt. 32).

5. Memorandum of Law in Opposition to Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Dkt. 31).

I. FACTUAL BACKGROUND

The Complaint alleges that on or about April 7, 1994, Deputy Phillip Wayne Armstrong ("Armstrong"), who was employed by Defendant Sheriff Cannon, stopped Johnson for a vehicle and traffic infraction. Johnson states that she was given two traffic citations, and that Armstrong asked her if she was "willing to negotiate the tickets." (Dkt. 29). Johnson further alleges that Armstrong threatened to arrest her, and have her children removed to an HRS facility if she did not "negotiate" with him (Dkt. 29, 31). The Complaint alleges that Armstrong then proceeded to Johnson's residence, at which time he sexually assaulted Johnson.

Plaintiff alleges that Defendant Cannon has a custom of permitting or tolerating the unconstitutional use of force by its officers. Plaintiff also alleges that Defendant Cannon had received complaints of improper conduct by Armstrong from members of the public prior to April 7, 1994, but failed to investigate or take any measures to prevent such acts or terminate Armstrong. In particular, Plaintiff claims that Defendant Cannon failed to provide Armstrong with proper training in the way to handle traffic stops, deal with the public, interact with female members of the public, report to his supervisors, and with sensitivity training. Plaintiff also alleges that Defendant Cannon failed to ascertain, by administering well-known and standard tests, whether Armstrong was emotionally capable of carrying out his reasonably foreseeable duties. Further, Plaintiff claims that Defendant Cannon, having knowledge of Armstrong's improper acts, failed to adequately supervise him or warn the public of the potential threat posed by Armstrong.

The Complaint contains the following causes of action against the Sheriff: Count I — Action on Sheriff's violation of Johnson's Constitutional Rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments and under 42 U.S.C. § 1983; Count II — Negligent Training; Count III — Negligent Employment; Count IV — Negligent Retention; and Count V — Negligent Supervision.

II. STANDARD OF REVIEW

A complaint should not be dismissed for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.Proc., "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). When reviewing a motion to dismiss, the court is required to view the complaint in the light most favorable to the plaintiff and accept all allegations of the complaint as true. Colodny v. Iverson, Yoakum, Papiano & Hatch, 838 F.Supp. 572 (M.D.Fla.1993) (citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Although the Court must take the allegations in the complaint as true when reviewing the motion to dismiss, it is not permitted to read into the complaint facts that are not there. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944-45, 92 L.Ed.2d 209 (1986); Beck v. Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir.1992).

III. FEDERAL CLAIMS

A. COLOR OF LAW

Only two allegations are required to state a cause of action under 42 U.S.C. § 1983. "First, the Plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). See Tillman v. Coley, 886 F.2d 317, 319 (11th Cir.1989); Barfield v. Brierton, 883 F.2d 923, 934 (11th Cir.1989); Cornelius v. Town of Highland Lake, Ala., 880 F.2d 348, 352 (11th Cir.1989).

Defendant Cannon argues that Deputy Armstrong was not acting under the color of law when the alleged misconduct occurred. "It is firmly established that a Defendant in a Section 1983 suit acts under color of state law when he abuses the position given to him by the State." West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). "Generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." Id. at 50, 108 S.Ct. at 2255. According to the allegations in the Complaint, Armstrong abused the position of deputy which was given to him by the State. Johnson has alleged that Armstrong's misconduct occurred while he was on duty, wearing his uniform, wearing his badge, carrying a gun, utilizing a marked police vehicle, and that Defendant Armstrong stopped her by use of his authority as a Sheriff's Deputy. The Complaint clearly alleges that Armstrong used the authority given to him by the State in order to deprive Johnson of her constitutional rights.

Defendant Cannon is correct in stating that all acts of state employees are not under color of state law, yet the alleged facts in the instant case demonstrate that Armstrong was acting under color of state law. Defendant relies in part on Thomas v. Cannon, 751 F.Supp. 765, 768 (N.D.Ill.1990), which is clearly distinguishable from the instant case. In Thomas, the court found that the attempted rape of two girls by a transit worker of the Chicago Transit Authority was not under color of state law because the act was not "even remotely related to the performance of his job." Id. In the instant case, the alleged act occurred during the performance of Armstrong's job and in conjunction with the authority given to him as a result of his position as deputy. Action is taken under color of state law when it is made possible only because the wrongdoer is clothed with the authority of state law. Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir.1989) (emphasis added).

This Court finds that Plaintiff has alleged facts which could be sufficient for a jury to find that Armstrong was acting under the color of state law at the time that Plaintiff alleges her constitutional rights were violated. Additionally, the Complaint clearly alleges that the Sheriff was acting under color of state law at the time of the alleged incident inasmuch as he was serving in the capacity of Pasco County Sheriff, and presiding over the Pasco County Sheriff's Office. The Court denies the Motion to Dismiss as to this issue.

B. MUNICIPAL LIABILITY

A local government official may be sued in his or her official capacity under Section 1983, where the local government may be sued in its own name. Monell v. Dep't of Social Services of City of N.Y., 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035-36, n. 55, 56 L.Ed.2d 611 (1978). In Monell, the Court held that a local governing body may be sued under 42 U.S.C. § 1983 if its "policy or custom" was "the moving force of the constitutional violation." Id. at 694, 98 S.Ct. at 2038. The Eleventh Circuit has recently stated that "only those officials who have final policymaking authority may render the municipality liable under Section 1983." Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.1996) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). It has been established in Florida that the Sheriff is the policymaker and final authority for his agency. Lucas v. O'Loughlin, 831 F.2d 232, 235 (11th Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1595, 99 L.Ed.2d 909 (1988).

"Official policy may be established by the omissions of supervisory officials as well as their affirmative acts." Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981). Moreover, Section 1983 liability arises when actions or inactions on the part of the municipality lead to "deliberate indifference." See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.1992).

Johnson has alleged that Defendant Cannon, in his official capacity as Sheriff of the Pasco County Sheriff's Office, had de facto policies, as well as customs, which were the moving force behind the deprivation of her Constitutional rights. If proven, Defendant's alleged failure to investigate, supervise, or discipline Armstrong may be sufficient to constitute liability. See Rivas v. Freeman, 940 F.2d 1491 (11th Cir.1991) (explaining that a sheriff may be liable for deprivation of Constitutional rights as a result of his failure to train, supervise, or discipline his deputies). The Court denies the Motion to Dismiss as to this issue.

C. FOURTH AMENDMENT

The Fourth Amendment to the United States Constitution guarantees citizens the right to be secure against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The use of excessive force during an arrest, an investigatory stop, or any other seizure may violate the person's Fourth Amendment rights and be actionable under 42 U.S.C....