Stephens v. Broward Sheriff's Office

• Decision Date: 10 December 2014
• Docket Number: Case No. 0:13–CV–60349.
• Citation: 84 F.Supp.3d 1327
• Parties: Paul STEPHENS, Plaintiff, v. BROWARD SHERIFF'S OFFICE and Nick DeGiovanni, Defendants.
• Court: U.S. District Court — Southern District of Florida

84 F.Supp.3d 1327

Paul STEPHENS, Plaintiff

v.BROWARD SHERIFF'S OFFICE and Nick DeGiovanni, Defendants.

Case No. 0:13–CV–60349.

United States District Court, S.D. Florida.

Signed Dec. 10, 2014.

Wendell Terry Locke, Locke Law, P.A., Plantation, FL, Kelsay Dayon Patterson, Tampa, FL, for Plaintiff.

Louis Reinstein, Richard Thomas Woulfe, Bunnell & Woulfe P.A., Fort Lauderdale, FL, for Defendants.

ORDER DENYING DEFENDANT'S MOTION TO STRIKE AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROBIN L. ROSENBERG, District Judge.

This matter is before the Court on DefendantNick DeGiovanni's Motion for Summary Judgment as to Counts II–V [DE 101] and DefendantNick DeGiovanni's Motion to Strike Plaintiff's Unauthorized Sur–Reply[DE 119].The Motions have been fully briefed by both sides.The Court has reviewed the documents in the case file and is fully advised in the premises.A hearing was held on the Motions on December 5, 2014.

The Court first denies DefendantNick DeGiovanni's Motion to Strike Plaintiff's Unauthorized Sur–Reply[DE 119].To the extent that the Plaintiff's affidavit, which was filed after (and is responsive to)the Defendant's reply to the Plaintiff's response to the Defendant's Motion for Summary Judgment, can be construed as an unauthorized sur-reply, the Court in its discretion will allow the affidavit and consider it as part of the record.For the reasons set forth below, DefendantNick DeGiovanni's Motion for Summary Judgment as to Counts II–V [DE 101] is granted, and the remaining state law claims (Counts I and VI) are dismissed without prejudice.

I.INTRODUCTION

The Plaintiff filed the instant suit under the Civil Rights Act,42 U.S.C. § 1983and42 U.S.C. § 1981, additionally alleging common law tort claims (assault and battery), for damages resulting from the use of excessive force against the Plaintiff in the course of an unlawful seizure, and racial discrimination against the Plaintiff.DE 37¶ 1.Although the Plaintiff's Amended Complaint contains six counts, only Counts II through V, all of which are brought against Defendant DeGiovanni only, are before the Court on the Defendant's Motion for Summary Judgment.DE 101at 1.Count I, for assault and battery against the Broward Sheriff's Office, and Count VI, for assault and battery against Defendant DeGiovanni (pled in the alternative to Count I) are not before the Court.

II.SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(a).Judgment as a matter of law is merited when, after “adequate time for discovery,” the nonmoving party“has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.”Celotex Corp. v. Catrett,477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).“In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”Id.The standard for granting summary judgment “mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.”Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).

The Court is required “to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.’ ”Scott v. Harris,550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686(2007)(quotingUnited States v. Diebold, Inc.,369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176(1962)(per curiam)).Where the parties' versions of events differ in significant respects, that means adopting the nonmoving party's version of the facts.Seeid.

Here, there is no question that a genuine dispute exists as to material facts.

As just one example, the parties present very different pictures of the plaintiff's injuries.The Defendant's expert opines, in part, that “[t]he findings made in all the imaging studies of the cervical spine and neck of Paul Stephens were pre-existing conditions that were not caused by the incident,” and “[t]he imaging studies of the cervical spine show no evidence of herniation,” while the Plaintiff's expert attributes “a cervical sprain /strain with multilevel disc herniations and resultant foraminal stenosis” to the incident.DE101 Ex. 5 at 6;DE100 Ex. 1 at 9.For purposes of determining whether the Defendant is entitled to judgment as a matter of law, then, the Court must accept the Plaintiff's version of events as true where a genuine dispute exists as to material facts.¹

III.PLAINTIFF'S ACCOUNT OF THE FACTS

On February 16, 2009, PlaintiffPaul Stephens and his cousin, Roan Greenwood, were in the parking lot of the Shoppes of St. Croix, a mixed-use business and residential complex, where they were working on a car belonging to Stephens's girlfriend.²DE109 Ex. 1 ¶¶ 2–3.Both men were there on the invitation of Claudia White, who lived at 4001 NW 34thStreet, Apt. 205, Fort Lauderdale, Florida 33319, which was on the second floor of the Shoppes.Id.¶ 2.The men were examining the car because the “check engine” light had come on.Id.¶ 3.The car was off and parked in a space that was not designated “Retail Parking Only.”Id.¶ 3;see alsoDE111 Ex. 1 ¶ 3.The key was not in the ignition.DE111 Ex. 1 ¶ 3.The driver's car door was open and Stephens was on the driver's side of the car, sitting on the metal frame of the driver's door doorway, with both feet outside of the vehicle and on the ground.DE109 Ex. 1 ¶ 3.Greenwood was sitting in the passenger seat.Id.At “some point” during Stephens's examination of the car, but before the Defendant drove by, Stephens employed a scanner to determine what was wrong with the car.DE118 Ex. 1 ¶ 3.While he was using the scanner, the ignition of the car was on but the engine was off.Seeid.

DefendantNick DeGiovanni was employed as a Deputy Sheriff by the Broward County Sheriff's Office.DE101 Ex. ¶ 2.On February 16, 2009, at 8:15 P.M., he was on road patrol assigned to Lauderdale Lakes.Id.at ¶¶ 2–3, 5.He was patrolling in Lauderdale Lakes when he saw a 1997 gray Toyota Camry with Florida license plate # U54–0RT parked in front of closed businesses at the Shoppes of St. Croix.Id.¶ 3.Because DeGiovanni was aware of recent burglaries in the area, and it was late in the day (all of the businesses in the Shoppes were closed), he decided to investigate.Id.¶ 5.

According to Stephens, DeGiovanni drove past the Camry, reversed his car, parked it immediately behind the Camry, and exited the car to approach Stephens while he(Stephens) remained seated.DE109 Ex. 1 ¶ 4.DeGiovanni asked, “What are you two doing over here?”Stephens responded that he and Greenwood were chatting, at which point DeGiovanni said, “You two are not supposed to be over here.”Id.Stephens explained that White lived in the Shoppes and that he and Greenwood were her guests, facts which Greenwood verbally confirmed.Id.To prove this to DeGiovanni, Greenwood used the key White had given them to unlock the door on the first floor that led to White's second-floor apartment.DE111 Ex. 1 ¶ 4.

DeGiovanni then turned away from Stephens and Greenwood, returning to his patrol car.DE109 Ex. 1 ¶ 5.As he reached the front of the patrol car, “one or two” other police cars turned into the Shoppes, driving in their direction.³Id.At that point, DeGiovanni turned around and returned to the Camry, asking Stephens for identification, but not his driver's license.Id.Stephens stood up to give DeGiovanni his identification and while standing asked, “What is the problem?”Id.DeGiovanni did not answer the question, but instead said, “Give me your ID.”Id.Stephens gave DeGiovanni his State of Florida identification card as requested.Id.DeGiovanni never asked for his driver's license.Id.

Stephens's cell phone then rang, and he answered it using the Bluetooth device on his ear.Id.¶ 6.DeGiovanni slapped the Bluetooth from his ear and said, “Who told you to answer that phone?”Id.Stephens then asked DeGiovanni for a field supervisor to be present, and DeGiovanni responded by stating, “Shut your damn mouth.”Id.DeGiovanni then “forcefully” shoved Stephens in his chest, causing him to fall backwards and land in the driver's seat.Id.Stephens stood up and asked DeGiovanni, “Why are you doing this?”Id.DeGiovanni “forcefully” shoved Stephens a second time, and Stephens said, “The kids are upstairs looking at you.What kind of example are you setting for the kids?”Id.

DeGiovanni then stepped on Stephens's left foot while simultaneously “forcefully” grabbing him (Stephens) by the neck and “forcefully” shoving him backwards, this time causing Stephens to fall in the space between the open driver's door and the car.Id.¶ 7.Stephens's head and neck struck the car.Id.Stephens then reached up with his right hand to grab the car door and lift himself, and DeGiovanni grabbed his right hand, twisting it so that the palm faced up.Id.DeGiovanni forced the last three fingers of Stephens's right hand back towards his (Stephens's) forearm, causing all of Stephens's body weight to be placed on those three fingers.Id.

After Stephens was standing, and while DeGiovanni still had Stephens's fingers bent backwards, DeGiovanni told Stephens to turn around and handcuffed him.Id.¶ 8.The handcuffs were “very” tight on Stephens, causing him to lose the feeling in his hands.Id.He asked DeGiovanni to loosen the handcuffs because they were too tight and he was losing feeling in his hands, but DeGiovanni simply said, “You people come here and think you can do as you please.”Id.Greenwood told DeGiovanni that the two had...