Pellegrino v. Wengert, Case No. 15-cv-60535-BLOOM/Valle

• Decision Date: 11 July 2016
• Docket Number: Case No. 15-cv-60535-BLOOM/Valle
• Parties: HUMBERTO PELLEGRINO and PEDRO CLAVERIA, Plaintiffs, v. GERALD WENGERT, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

HUMBERTO PELLEGRINO and PEDRO CLAVERIA, Plaintiffs, v. GERALD WENGERT, et al., Defendants.

Case No. 15-cv-60535-BLOOM/Valle

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

July 11, 2016

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon the Motion for Summary Judgment, ECF No. [119] (the "Motion"), filed by Defendant Scott Israel, in his capacity as Sheriff of Broward County, Florida ("BSO"), with respect to Plaintiffs Humberto Pellegrino and Pedro Claveria's ("Plaintiffs") Second Amended Complaint, ECF No. [75] ("SAC"). The Court has carefully reviewed the Motion, all supporting and opposing submissions, the record in this case and applicable law. For the reasons set forth below, the Court grants the Motion.

I. BACKGROUND

This action centers on Plaintiffs' allegations that BSO police officers used excessive force against them in investigating a potential burglary. Familiarity with the procedural and factual background in this matter is assumed. See Pellegrino v. Wengert, No. 15-CIV-60535, 2015 WL 4065376, at *1 (S.D. Fla. July 2, 2015). Plaintiffs allege that BSO Deputies released and instructed a police dog to attack Plaintiffs for no apparent reason and without provocation. Plaintiffs Pellegrino and Claveria each assert an identical claim against BSO, under 42 U.S.C. § 1983 (Counts XIII and XIV of the SAC). The Motion targets only those two claims. Deputies Gerald Wengert, Davis Acevedo, and Leonard Smith are Defendants in this action but have made no submission in connection with the instant Motion.

Plaintiffs allege that the deputies' conduct constitutes excessive force, and that their conduct was implemented or ratified by BSO or effected pursuant to BSO custom or practice. SAC ¶¶ 183, 199. Further, Plaintiffs allege that BSO has "implemented a policy of inadequate investigation that allows an environment for the use of unreasonable force because officers may believe they will not be held accountable for the consequences of using excessive force." Id. ¶¶ 185, 189. In support of their theory of causation and liability, Plaintiffs detail a long series of alleged misconduct by Deputy Wengert, followed by effective inaction by BSO, including several separate incidents involving Wengert's alleged inappropriate conduct and use of excessive force between 2006 and 2012:

• In February 2006, Wengert threw to the ground a suspect who had surrendered and lay prone and subdued, commanded his dog to engage in a "deadly force" bite, and kicked the man in his face and mouth. Id. ¶ 186.a.

• In May 2006, Wengert twice slammed onto a police vehicle a man who had not committed any crime or infraction, and threatened to kill the man while holding him in a headlock. Id. ¶ 186.c.

• In May 2008, Wengert discharged multiple rounds from his weapon at a vehicle containing several suspects while investigating a potential burglary. Id. ¶ 186.d.

• In March 2010, Wengert taunted a man at a gas station, pulled the man over without any cause a short distance away after the man left the station, yanked the man from hisvehicle, and smashed the man's face into the car's door frame. Id. ¶ 186.k. BSO conducted no investigation into Wengert's use of excessive force. Id.

• In December 2012, Wengert engaged in an improper and retaliatory traffic stop of a teenager who had driven imprudently but inadvertently in close proximity to Wengert's girlfriend. Id. ¶ 186.e. The teenager had reversed his car on a relatively major street and nearly hit the girlfriend's car. Id. She followed the teen to a restaurant and phoned Wengert. Id. Wengert pulled over the teen's car as it left the restaurant. Id. In abrogation of BSO protocol, Wengert did not call in a traffic violation or traffic stop, did not look up the vehicle's tag, did not request the driver's license or his vehicle registration, did not notify the teen of the reason for the traffic stop, and did not ask the teen to step out of his vehicle. Id. Rather, Wengert forced the car door open and pulled the driver from the car. He punched the teen, forced him toward his police vehicle, opened that vehicle's door, and set his police dog on the teen. Id. The victim's father lodged a formal complaint with BSO; Wengert was suspended from June 14, 2012 to August 16, 2013; and a grand jury indicted Wengert on criminal charges for his conduct. Id. Wengert was acquitted. Despite the higher burden of proof required for criminal conviction, BSO did no investigation of its own, did not levy on Wengert any punishment, and paid Wengert over $63,000 in back-pay after his acquittal. Id.

Plaintiffs also cite to an incident involving BSO Detective Jeffrey Kogan, who witnessed and reported excessive force by a Fort Lauderdale Police Department K-9 unit and was purportedly demoted as a result. SAC ¶¶ 189-92, 205-08; see also Resp. at 7 (citing Kogan Depo., ECF No. [130-3]). According to Detective Kogan, he witnessed a K-9 officer deploy his dog on a murder suspect while the suspect was sitting on the ground, apprehended, with hishands secured behind his back. Kogan Depo. at 8-11. Detective Kogan reported the incident to his supervisors, the prosecutor, and ultimately the Florida Department of Law Enforcement. Id. at 11-14. Detective Kogan alleges that, as a result of reporting the alleged excessive force, he was demoted. Id. at 29-33. Detective Kogan filed a whistleblower action against BSO and received a jury verdict in his favor. Id. at 26. Detective Kogan, however, has not yet been placed back as detective. Id. at 36.

In support of its Motion, BSO provides evidence of its various accreditations, including by the Commission on Accreditation for Law Enforcement Agencies, Inc. ("CALEA"), which is an outside group of trained assessors who have signed off on BSO's Use of Force Policy as "compliant" with CALEA and constitutional standards. See Defendant BSO's Statement of Facts, ECF No. [119] at 3-9 ("Def. Stat. Fact.") ¶ 3, 6, 9, 12 ("BSO has over 16 accreditations . . . ."). BSO also outlines its policy procedures surrounding use of force and the employee disciplinary process. Plaintiffs' expert, Dr. George Kirkham, testified in his deposition that BSO's written policies and procedures are standard and "good policies." Kirkham Depo., ECF No. [121-16] at 149-50. BSO policy mandates that every time a deputy uses force, that deputy must fill out the appropriate use of force form and the matter is sent to a supervisor to complete a review and then to Internal Affairs for review. Def. Stat. Fact ¶ 14. The BSO Internal Affairs Division has in place an early warning system to flag potential problems, which is triggered if a deputy has three incidents or complaints within three months or five within a calendar year. Id. ¶ 15. Once an Internal Affairs investigation is completed, it is then submitted to the Professional Standards Committee ("PSC"), which consists of eleven members, including two administrative members from the Department of Law Enforcement, two administrative members from the Department of Detention and Community Control, two administrative members fromunrepresented departments selected by the Sheriff or designee, one employee union representative, and four non-employee members (residents) selected by the Sheriff. Id. ¶ 17; Sheriff's Policy Manual, ECF No. [121-14] at 20. The PSC meets once a month in a formal setting to review, vote, and make recommendations concerning investigations presented by the BSO Internal Affairs Division. Def. Stat. Fact ¶ 17. Ultimately, the PSC votes to find the alleged policy violation sustained, not sustained, exonerated, or unfounded, and, if sustained, to consider and recommend discipline.¹ Id. ¶ 18. Plaintiffs' expert, Dr. Kirkham, testified that he does not believe the PSC is corrupt. See Kirkham Depo. at 219: 18-220:4.

BSO asserts that "[a]t no time has the [PSC] ever determined Deputy Wengert to have used excessive force, violated policy, nor has any court of competent jurisdiction ever found that Deputy Wengert's actions as a law enforcement officer violated the law." Def. Stat. Fact ¶ 22 (citing Wengert Internal Affairs case history, ECF No. [122-5]). Plaintiffs dispute this assertion, but have provided no evidence, argument, or other support in contravention of BSO's assertion and the case history report. See Resp., ECF No. [130] at 2 ("Plaintiff controverts the following paragraphs alleged in Defendant's statement of material facts . . . 22. Disputed.").

Major Angelo Cedeno, head of BSO Internal Affairs Department, testified as BSO's Rule 30(b)(6) corporate representative in this matter and provided testimony as to BSO's actions regarding the incidences involving Wengert. Def. Stat. Fact. ¶ 19-21 (citing Cedeno Depo., ECF No. [121-17]). Major Cedeno testified as to the investigator assignments, each investigatory steptaken, and the ultimate determinations by the PSC with regard to the complaints made against Wengert, including those set forth in the Second Amended Complaint:

• The February 2006 dog bite complaint was investigated by Internal Affairs and exonerated by the PSC. See Cedeno Depo. 7-11, 108-09.

• The May 2006 complaint alleging that Wengert slammed an individual onto a car was investigated and determined unfounded by the PSC. See Cedeno Depo. at 22-26, 110-11.

• The May 2008 incident in which Wengert discharged his firearm while investigating a potential burglary was investigated by the Shooting Review Board and the firearm use was deemed proper. See Cedeno Depo. at 33-35, 40.

• No citizen complaint was made with regard to the March 2010 incident in which Wengert is alleged to have smashed a man's face into a car's door frame. See Cedeno Depo. at 52-57. A suit was filed in this District and summary judgment was granted in favor of BSO with regard to the plaintiffs' § 1983 claim against the Sheriff for deliberate indifference. See Buckler v. Israel, 13-62074-CIV, slip op. (S.D. Fla. Jan. 28, 2016).

• The December 2012 canine use of force

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