Sanchez v. Obando-echeverry

• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: JOSE E. MARTINEZ, District Judge.
• Citation: Sanchez v. Obando-Echeverry, 716 F.Supp.2d 1195 (S.D. Fla. 2010)
• Decision Date: 31 March 2010
• Docket Number: Case No. 09-21743-CIV-MARTINEZ-BROWN.
• Parties: Lazaro SANCHEZ, Plaintiff, v. Jimmy OBANDO-ECHEVERRY and Miami-Dade County, Florida, Defendants.

716 F.Supp.2d 1195

Lazaro SANCHEZ, Plaintiff,

v.Jimmy OBANDO-ECHEVERRY and Miami-Dade County, Florida, Defendants.

Case No. 09-21743-CIV-MARTINEZ-BROWN.

United States District Court,S.D. Florida, Miami Division.

March 31, 2010.

Gregory Richard Barthelette, William Robert Scherer, III, Conrad & Scherer, LLP, Fort Lauderdale, FL, for Plaintiff.

Brenda Kuhns Neuman, Michael Brian Nadler, Miami, FL, William Robert Scherer, III, Conrad & Scherer, Fort Lauderdale, FL, for Defendants.

ORDER GRANTING DEFENDANT MIAMI-DADE COUNTY'S MOTION FOR SUMMARY JUDGMENT

JOSE E. MARTINEZ, District Judge.

THIS CAUSE came before the Court upon the Motion for Summary Judgment filed by Defendant, Miami-Dade County (D.E. No. 61). After careful consideration, the Court GRANTS Defendant's motion for summary judgment.

I. PROCEDURAL HISTORY

Plaintiff, Lazaro Sanchez, is a construction worker who was hired to replace a homeowner's exterior window. While performing the repair on the morning of November 2, 2006, he was mistaken for a burglar by a neighbor who reported him to the police. Jimmy Obando-Echeverry, ¹ who is named as a co-defendant in this case and who is employed by Defendant Miami-Dade County, was the first police officer to arrive at the scene. Plaintiff alleges that he was injured when he was handcuffed and, therefore, he sued Officer Obando under 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from excessive force (Count I), and he sued Miami-Dade County for battery under State law (Count II) (Compl., D.E. No. 1).

Since Defendants raised a qualified immunity defense that applied to Officer Obando only, Plaintiff's two claims have proceeded on somewhat different tracks. The Court denied Officer Obando's motion to dismiss on qualified immunity grounds because the allegations, when construed in the Complaint in the light most favorable to Plaintiff, could reasonably lead to the conclusion that Officer Obando used excessive force by sneaking up on Plaintiff and tackling him for no reason without providing any notice or warning whatsoever. ² Plaintiff appealed this decision, and the Court stayed the case as to Officer Obando until the resolution of the appeal, which remains pending before the Eleventh Circuit.

The Court did not stay the case as to Defendant Miami-Dade in order to, among other things, address the instant motion for summary judgment, which is now ripe for adjudication. With a more complete record, it is now apparent that Officer Obando did, in fact, alert Plaintiff to his presence and Plaintiff failed to respond. The question that remains is whether viewing the undisputed facts from the perspective of a reasonable officer in Officer Obando's perspective indicates that Officer Obando clearly used an excessive amount of force as a matter of law in effectuating Plaintiff's arrest. The undersigned finds that no reasonable factfinder could conclude that an excessive amount of force was used in the course of arresting Plaintiff, based on the circumstances at the time of the arrest. Therefore, no battery occurred and it is appropriate to enter summary judgment in favor of Miami-Dade as to Count II of the Complaint.

II. LEGAL STANDARDSA. Summary Judgment

A motion for summary judgment should be granted “if 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c). By its very terms, this standard provides that “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue of fact is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Matsushita Electric Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. It is “material” if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In addition, in considering a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-moving party. Id. at 255, 106 S.Ct. 2505.

If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment. See United States v. Four Parcels of Real Prop. in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1438 (11th Cir.1991). The moving party “ ‘must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial.’ ” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)). “If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, ‘come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.’ ” Four Parcels of Real Prop. in Greene and Tuscaloosa Counties, 941 F.2d at 1438 (quoting Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991)). See also Fed.R.Civ.P. 56(e).

In contrast, if the non-moving party bears the burden of proof at trial, the moving party may obtain summary judgment simply by establishing the nonexistence of a genuine issue of material fact as to any essential element of a non-moving party's claim or affirmative defense. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. When the non-moving party bears the burden of proof, the moving party does not have to “support its motion with affidavits or other similar material negating the opponent's claim.” Id. at 323, 106 S.Ct. 2548 (emphasis in original). The moving party may discharge its burden in this situation by showing the Court that “there is an absence of evidence to support the nonmoving party's case.” Id. at 324, 106 S.Ct. 2548. Once the moving party discharges its initial burden, a non-moving party who bears the burden of proof must “go beyond the pleadings and by [its] own affidavits or by the ‘depositions, answers to interrogatories, and admissions on file’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Fed.R.Civ.P. 56(e)). A non-moving party “may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).

B. Battery by Police During Arrest

As the Eleventh Circuit Court of Appeals has succinctly stated, “[p]ursuant to Florida law, police officers are entitled to a presumption of good faith in regard to the use of force applied during a lawful arrest, and officers are only liable for damage where the force used is ‘clearly excessive.’ ” Davis v. Williams, 451 F.3d 759, 768 (11th Cir.2006) (quoting City of Miami v. Sanders, 672 So.2d 46, 47 (Fla. 3d DCA 1996)). In other words, “[i]f an officer uses excessive force, the ‘ordinarily protected use of force is transformed into a battery.’ ” Id. (quoting Sanders, 672 So.2d at 47) (ellipses omitted). Courts, however, should not “use hindsight to judge the acts of police officers; we look at what they knew (or reasonably should have known) at the time of the act.” Rodriguez v. Farrell, 280 F.3d 1341, 1352-53 (11th Cir.2002). “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). It is well established that “the typical arrest involves some force and injury.” Rodriguez, 280 F.3d at 1352 (citing Nolin v. Isbell, 207 F.3d 1253, 1257-58 (11th Cir.2000)).

III. FACTUAL BACKGROUND

The facts of this case as set forth below are not disputed, unless otherwise noted.

On November 2, 2006, Miami-Dade police officers responded to an emergency dispatch describing a burglary of a residence in progress in a high-burglary area. When the officers arrived at the address identified by the dispatcher, they observed Plaintiff, who was wearing the clothing described by the dispatcher and who appeared to breaking into the house through the window as depicted by the dispatcher (Deft.'s Statement of Material Facts (“SOF”), D.E. No. 61 at 1-2, ¶¶ 1-4); (Pltf.'s Response to SOF (“RSOF”), D.E. No. 65 at 1, ¶ ¶ 1-4).

Although the parties do not mention it in their briefs or their respective statements of fact, the undersigned notes that the house was near a school (Dispatch Information Report, D.E. No. 61, Ex. 1 at 2) (identifying location as a “res[idence] on corner n[e]xt to a school”) (original in all capital letters); (Pltf.'s Depo., D.E. No. 61, Ex. 5 at 104, 111-13) (noting that there were school signs near the house, that there were children walking along the sidewalk in front of the house when he went there a previous day to measure the window before returning to repair it, and that a crossing guard was positioned on the sidewalk on the same side of the street as the house, less than 100 feet away from the window on the day that he was doing the repair). Moreover, the incident occurred during school hours, between approximately 8:30 and 9:30 a.m. (Dispatch Information Report, D.E. No. 61, Ex. 1 at 2). ³

Moreover, there were no obvious signs that maintenance or repair work was being done on the property, as Plaintiff's van did not have any signs or lettering to indicate that it was a work van and Plaintiff was not wearing any uniform or...