Orta v. City of Orlando
| Decision Date | 18 May 2015 |
| Docket Number | Case No: 6:14-cv-1835-Orl-41GJK |
| Court | U.S. District Court — Middle District of Florida |
| Parties | JENELVA ORTA, Plaintiff, v. CITY OF ORLANDO, PAUL FOSTER, K-9 OZZY and JOHN DOE 1, Defendants. |
THIS CAUSE is before the Court on Defendants' Motion to Dismiss (Doc. 11), filed December 4, 2014. Plaintiff1 filed a Response (Doc. 13) on December 18, 2014. For the reasons set forth herein, Defendants' Motion to Dismiss will be granted in part.
This case arises out of Plaintiff's alleged arrest by officers of the Orlando Police Department. The Complaint alleges the following facts surrounding the arrest:
On July 13, 2013, Plaintiff was the passenger in a white minivan. (Compl., Doc. 1, ¶ 15). The driver of the minivan stopped the vehicle and another passenger exited and then reentered the vehicle before the driver resumed driving. (Id. ¶¶ 16-17). Thereafter, officers with the Orlando Police Department pursued the vehicle in connection with a burglary investigation. (Id. ¶¶ 18, 28). The driver failed to immediately stop the vehicle for the officers, (id. ¶ 19), but eventually stopped, (id. ¶ 20). The other passengers fled the vehicle, and Plaintiff followed them. (Id.). The officerscommanded Plaintiff to stop, and Plaintiff complied, lying on the ground in a prone position. (Id. ¶¶ 21-22). Officer Foster and K-9 Ozzy were among the officers present during the stop. (Id. ¶ 21). While Plaintiff was on the ground, Foster ordered K-9 Ozzy to attack Plaintiff. (Id. ¶ 57). K-9 Ozzy attacked Plaintiff causing substantial physical injury. (Id. ¶¶ 25-27). Plaintiff did not fit the description of the burglary suspect sought by police, and he did not possess a weapon or threaten police during the incident. (Id. ¶¶ 28, 30). Plaintiff was arrested by Officer Doe and charged with at least one count of resisting an officer without violence, but the charge was not pursued by the State Attorney's Office. (Id. ¶¶ 33, 36, 78).
Plaintiff filed this case on November 11, 2014, against Officers Foster and Doe, K-9 Ozzy, and the City of Orlando. Plaintiff seeks damages for various alleged constitutional violations pursuant to 42 U.S.C. § 1983 and asserts state law claims for false imprisonment, negligence, battery, and intentional infliction of emotional distress. Defendants have jointly moved to dismiss Plaintiff's claims for unlawful arrest in violation of the Fourth Amendment, § 1983 municipal liability, and intentional infliction of emotional distress. Defendants also move to dismiss all claims against K-9 Ozzy.
"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." In determining whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the complaint as true and construes them in a light most favorable to the non-moving party. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless, "the tenet that a court must accept as true all of the allegations containedin a complaint is inapplicable to legal conclusions," and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Defendants contend that all claims asserted against K-9 Ozzy "should be dismissed as he is not a proper party in accordance with the [Federal Rules of Civil Procedure]." (Mot. Dismiss at 1 n.1). At the outset, this argument is presented solely in a footnote and is not, therefore, properly before the Court. See Dresser v. HealthCare Servs., Inc., No. 8:12-cv-1572-T-24MAP, 2013 WL 82155, at *10 n.1 (M.D. Fla. Jan. 7, 2013) (). Furthermore, this argument fails to cite the provision or provisions of the Federal Rules of Civil Procedure that would prohibit claims asserted against a police canine in his official capacity, or to elaborate on how those provisions provide for such a prohibition. Defendants bear the burden of setting forth sufficient grounds for dismissal. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc) ( ). Accordingly, Defendants' Motion to Dismiss is denied insofar as it seeks to dismiss all claims against K-9 Ozzy.
Defendant Doe moves to dismiss Counts I and III of the Complaint2 on the basis that he is entitled to qualified immunity for these claims. In response, Plaintiff argues that Defendant Doe lacked probable cause to effectuate the arrest and is not entitled to qualified immunity. "In order to receive qualified immunity, the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation omitted). "The question is 'whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official's discretionary duties.'" Hargis v. City of Orlando, No. 6:12-cv-723-ORL-37KRS, 2012 WL 6089715, at *3 (M.D. Fla. Dec. 7, 2012) (quoting Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303 (11th Cir. 2006)). Plaintiff has alleged that Doe was making an arrest in his capacity as an Orlando police officer. (Compl. ¶¶ 33, 39-40, 47, 63). The Eleventh Circuit has noted that "making an arrest is within the official responsibilities of a sheriff's deputy"; thus an officer making an arrest is acting within his discretionary duty. Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004); see also Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (). The allegations of the Complaint are sufficient at the motion to dismiss stage to satisfy the discretionary authority prong.
The remaining burden is on Plaintiff. "To survive a motion to dismiss based upon qualified immunity, a plaintiff must allege sufficient facts to support a finding of [(1)] a constitutional violation of [(2)] a clearly established right." Carter v. DeKalb Cnty., 521 F. App'x 725, 729 (11th Cir. 2013). "Qualified immunity is an affirmative defense that in the posture of a motion to dismiss must clearly appear on the face of the complaint." Rhodes-Courter ex rel. Courter v. Thompson, 252 F. Supp. 2d 1359, 1364 (M.D. Fla. 2003).
Turning to the first element, Plaintiff must have pleaded sufficient facts to allege conduct which would violate his Fourth Amendment right to be free from arrest without probable cause. "'In Fourth Amendment terminology, an arrest is a seizure of the person, and the reasonableness of an arrest is, in turn, determined by the presence or absence of probable cause for the arrest.'" Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008) (quoting Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007)). A law enforcement officer has probable cause to arrest when the facts and circumstances of which he is aware are "'sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime.'" Skop, 485 F.3d at 1137 (quoting United States v. Floyd, 281 F.3d 1346, 1348 (11th Cir. 2002)). Probable cause is assessed based on the totality of the circumstances. See id.
As an initial matter, Plaintiff has only made the conclusory allegations that Officer Doe arrested him without a warrant and without probable cause in Counts I and III of the Complaint. However, the existence of probable cause is a legal conclusion. See United States v. Lindsey, 482 F.3d 1285, 1292 n.5 (11th Cir. 2007) (); Wood v. Kesler, 323 F.3d 872, 880 n.12 (11th Cir. 2003) (same). The allegations pertaining to Plaintiff's alleged unlawful arrest in Counts I and III do not set forth adequate facts for the Court to determine, based on these assertions alone, whetherprobable cause existed. Notwithstanding the lack of allegations in Counts I and III, Plaintiff does allege, in Count V, that he was arrested for resisting an officer without violence in violation of section 843.02 of the Florida Statutes. (Id. ¶¶ 78, 80). For the purposes of judicial economy, the Court will consider this fact, although not properly pleaded in Counts I and III, to resolve the issue of qualified immunity before the Court at this time. However, Plaintiff should exercise greater caution in drafting pleadings in the future.
Section 843.02 provides, "Whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree." "To constitute obstruction of justice . . . the officer must have been engaged in '[1] the lawful execution [2] of a legal duty; and [3] the defendant's action, by his words, conduct, or a combination thereof, [must have]...
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