Lewis v. City of St. Petersburg, 8:00-CV-00128-T-17A.

• Decision Date: 03 May 2000
• Docket Number: No. 8:00-CV-00128-T-17A.,8:00-CV-00128-T-17A.
• Citation: 98 F.Supp.2d 1344
• Parties: Pamela LEWIS, Plaintiff, v. CITY OF ST. PETERSBURG, Defendant.
• Court: U.S. District Court — Middle District of Florida

98 F.Supp.2d 1344

Pamela LEWIS, Plaintiff, v. CITY OF ST. PETERSBURG, Defendant.

No. 8:00-CV-00128-T-17A.

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

May 3, 2000.

Jean A. Laws, Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, Stuart, FL, for plaintiff.

William N. Drake, Jr., City of St. Petersburg, St. Petersburg, FL, for defendant.

ORDER

KOVACHEVICH, Chief Judge.

THIS CAUSE is before the Court on:

(1) Defendant, City of St. Petersburg's, Motion to Dismiss or for Summary Judgment, (Dkt.4), filed on January 25, 2000;

(2) Plaintiff, Pamela Lewis', Response in Opposition, (Dkt.22), filed on March 10, 2000;

(3) Defendant, City of St. Petersburg's, Motion for Summary Judgment, (Dkt.16), filed on February 25, 2000; and

(4) Plaintiff, Pamela Lewis', Response in Opposition, (Dkt.22), filed on March 10, 2000.

I. Background

The following factual allegations are taken from Plaintiff's Fourth Amended Complaint, filed on January 20, 2000. (Dkt.2). Plaintiff is the duly appointed personal representative of the Estate of TyRon Lewis, deceased. Plaintiff brought this suit pursuant to Florida's Wrongful Death Act, Fla. Stat. § 768.16-768.27, as the personal representative of the Estate of TyRon Lewis, a deceased minor. The survivors of TyRon Lewis are listed as: Pamela Lewis, the mother of TyRon Lewis; Joe Hawkins, the father of TyRon Lewis; and Aaron M. White, the surviving minor child of TyRon Lewis.

According to Plaintiff, on or about October 24, 1996, St. Petersburg Police Officers, James Knight and Sandra Minor, shot decedent TyRon Lewis through the windshield of a motor vehicle being operated by decedent TyRon Lewis. At the time Officers Knight and Minor shot TyRon Lewis, TyRon Lewis was seated in the driver's seat of a motor vehicle that had stopped at the intersection of 18th Avenue South and 16th Street South in St. Petersburg, Florida. The shots fired by Officers Knight and Minor resulted in the death of TyRon Lewis.

Plaintiff alleges that Officers Knight and Minor were acting within the scope of their employment with the St. Petersburg Police Department when they fired shots at decedent TyRon Lewis. According to Plaintiff, Officers Knight and Minor, as well as all other St. Petersburg Police Officers, owed a duty to decedent TyRon Lewis to operate their firearms, and conduct themselves, in a reasonable manner in attempting to stop and/or arrest decedent TyRon Lewis. Plaintiff states that Officers Knight and Minor breached the duty of care owed to decedent TyRon Lewis by discharging their firearms through a vehicle windshield and by otherwise conducting themselves in a careless and negligent manner. The death of TyRon Lewis, according to Plaintiff, was the result of excessive force used by the St. Petersburg Police Department. Plaintiff states that Defendant and the St. Petersburg Police Department breached the duty owed to TyRon Lewis, by failing to properly train law enforcement officers on how to handle a crisis management situation and how to properly use force in a crisis management situation.

In addition to claiming wrongful death under Florida Statutes, Plaintiff alleges that Defendant violated 42 U.S.C. § 1983. Plaintiff states that as a result of the single instance of misconduct performed by Defendant, it can be inferred that a departmental policy exists which condones the use of excessive force by law enforcement officers. The departmental policy of condoning excessive force, according to Plaintiff, permitted and tolerated a pattern and practice of using excessive force against the public by law enforcement officers. Plaintiff states that a de facto policy and custom of tolerating and condoning the use of excessive force has been created by the St. Petersburg Police Department. According to Plaintiff, the policy of condoning the use of excessive force was continued after the death of TyRon Lewis through Defendant's failure to investigate, prosecute, and discipline Officers Knight and Minor, and all other St. Petersburg Police Officers involved. Plaintiff states that as a direct and proximate result of the actions taken by Defendant and the St. Petersburg Police Department, TyRon Lewis suffered severe bodily injury, which resulted in his death.

II. Standards of Review

A district court should not dismiss a complaint 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." See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). To survive a motion to dismiss, a plaintiff may not merely "label" his or her claims. See Blumel v. Mylander, 919 F.Supp. 423, 425 (M.D.Fla.1996). At a minimum, the Federal Rules of Civil Procedure require a "short and plain statement of the claim" that "will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." See Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)).

In deciding a motion to dismiss, the court may only examine the four corners of the plaintiff's complaint. See Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233 (M.D.Fla.1995). "The threshold sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). In addition, a court must accept the plaintiff's well pled facts as true and construe the complaint in the light most favorable to the plaintiff. See Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla. 1995). However, when on the basis of a dispositive issue of law, no construction of the factual allegations of the complaint will support the cause of action, dismissal of the complaint is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991).

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue of material fact' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of the case with respect to which that party has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of genuine issues of material fact. See id. That burden of showing a basis for a motion can be discharged by "showing ... that there is an absence of evidence to support the non-moving party's case." See id. at 323, 325, 106 S.Ct. 2548.

Issues of fact are "`genuine' only if a reasonable jury considering the evidence presented could find for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which will affect the outcome of the trial under governing law. See id. at 248, 106 S.Ct. 2505. In determining whether a material fact exists, the court must consider all the evidence in a light most favorable to the non-moving party. See Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. See Hayden v. First Nat'l Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir., 1979) (quoting Gross v. Southern Railway Co., 414 F.2d 292, 297 (5th Cir.1969)).

Although factual disputes preclude summary judgment, the "mere possibility that factual disputes may exist, without more, is not sufficient to overcome a convincing presentation by the party seeking summary judgment." See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). When a party's response consists of "nothing more than a repetition of his conclusional allegations," summary judgment is not only proper but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981).

III. Discussion

A. State Law Claims

Defendant states that dismissal is warranted because Plaintiff has failed to allege a sufficient factual basis for the state law claims contained within Plaintiff's Fourth Amended Complaint. According to Defendant, Plaintiff's state law allegations of negligent use of force, negligent training, and other unspecified negligent actions must be dismissed because: (1) Florida law does not recognize a duty of care with respect to how a police officer fires a weapon; (2) Florida law does not recognize a cause of action for negligent use of excessive force; (3) a general immunity exists for discretionary police power functions involving law enforcement; (4) no common law duty exists for the exercise of discretionary police power functions; (5) no common law duty exists for the training of police officers; (6) police training is within the discretionary, judgmental, planning-level activities protected by state law immunities; and (7) Plaintiff's statement that police officers were "conducting themselves in a careless and negligent manner" does not state sufficiently the conduct alleged to be negligent.

Florida Statute § 768.19, in pertinent part, states:

When the death of a person is caused by the wrongful act, negligence,...