Whittington v. Town of Surfside

• Decision Date: 06 June 2007
• Docket Number: No. 06-CIV-21032.,06-CIV-21032.
• Citation: 490 F.Supp.2d 1239
• Parties: Mark WHITTINGTON, Plaintiff, v. TOWN OF SURFSIDE, a municipality, Patrick John Giambalvo, and Luis Perez, individually Defendants.
• Court: U.S. District Court — Southern District of Florida

490 F.Supp.2d 1239

Mark WHITTINGTON, Plaintiff, v. TOWN OF SURFSIDE, a municipality, Patrick John Giambalvo, and Luis Perez, individually Defendants.

No. 06-CIV-21032.

United States District Court, S.D. Florida.

June 6, 2007.

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Keith Chasin, Chasin & Stinson, Miami, FL, for Plaintiff.

Richard Hunt McDuff, Scott David Alexander, Johnson Anselmo Murdoch Burke Piper & McDuff, Fort Lauderdale, FL, Lourdes Espino Wydler, Oscar Edmund Marrero, Law Offices of Oscar E. Marrero, Coral Gables, FL, for Defendants.

ORDER GRANTING DEFENDANTS PATRICK GIAMBALVO AND LUIS PEREZ'S MOTION FOR SUMMARY JUDGMENT [DE # 57]; GRANTING DEFENDANT TOWN OF SURFSIDE'S MOTION FOR SUMMARY JUDGMENT [DE # 55]; DISMISSING TOWN OF SURFSIDE'S MOTION IN LIMINE [DE # 74] AS MOOT; ENTERING FINAL JUDGMENT AGAINST PLAINTIFF; AND CLOSING CASE

ALAN S. GOLD, District Judge.

THIS CAUSE came before the Court upon a Motion for Summary Judgment filed by Defendant Town of Surfside ("Surfside") on February 7, 2007 [DE # 55] and a Motion for Summary Judgment filed by Defendants Officers Patrick John Giambalvo ("Officer Giambalvo")¹ and Luis Perez ("Officer Perez") [DE # 57] filed on February 9, 2007. On February 22, 2007 and February 26, 2007. Plaintiff filed Responses to these Motions [DE # 61 & 62]. Thereafter, Surfside and the Officers filed Reply Briefs [DE # 63 & 651].

I. Background

The following facts are gleaned from the review of the record, the parties' submissions and are viewed in the light most favorable to the Plaintiff when evaluating the pending Motions for Summary Judgment. On or about February 19, 2004, Plaintiff Mark Whittington was at the bus stop on Collins Avenue and 194th Street in Surfside, Florida waiting for a Metro Transit bus, when a posted sign fell and allegedly injured him. (Depo. of Mark Whittington, 68). Plaintiff testified that he thought that a group of young people may have caused the sign to become loose and that the young people started to laugh at him after the sign hit him. (Depo. of Mark Whittington, 73). Plaintiff then confronted the young people and Plaintiff and the young people had a verbal altercation. (Depo. of Nicholas Andrade; 10). At that time, Officer Perez who was on foot patrol in the area was approached by an alleged eyewitness, Chris Marco, who informed the officer that he saw Plaintiff tear off the sign from the pole of the bus stop. (Exhibit A.1 and A.2 to Town of Surfside's Motion for Summary Judgment).² Thereafter, the police officer came up from behind Plaintiff and allegedly stared at him for several minutes as he spoke to the alleged eyewitness, then let him board the bus.³ Plaintiff denies that he pulled the sign down. (Depo. of Mark Whittington, 68).

Both Plaintiff and Nicholas Andrade then boarded the bus, but the young people who Plaintiff had the argument with did not. (Depo. of Nicholas Andrade, 15). Once Plaintiff got on the bus, he went to the back and sat near two African-American men, whom he though were construction workers. (Depo. of Mark Whittington, 88). Thereafter, Surfside police stopped the bus. Once the bus was stopped, Plaintiff went from the back of the bus to the front of the bus to distance himself from the two construction workers, whom he though had contraband on them. (Depo. of Mark Whittington, 88). It is alleged that the officers without warning grabbed Plaintiff and said "get off the bus" "you God damn scumbag." (Depo. of Mark Whittington, 92). As the police officers grabbed and pulled him down, the momentum took the Plaintiff and officers into the bushes, where the officers landed on top of Plaintiffs upper torso and his knee popped. (Depo. of Mark Whittington, 93).⁴ When Plaintiff was up against the hedges, one of the police officers fell on his legs or applied pressure to his legs and he was handcuffed. (Depo. of Mark Whittington, 106). Plaintiff does not testify that he was punched. (Depo. of Mark Whittington, 111). Also, he does not assert that he was kicked, tasered, pepper sprayed or that any weapon, such as a club, were utilized. Id.⁵ Plaintiff testified that he was not sure if any officer punched him, because he only felt pressure either by a fist or foot on his calf. (Depo. of Mark Whittington, 111, 113 and 130). Plaintiff sustained an injury to his knee which resulted in medical expenses. (Depo. of Mark Whittington, 101).

Officer Fiorito, who was the partner of Officer Giambalvo, allegedly witnessed Plaintiff discharge a white plastic bottle as Plaintiff attempted to exited the bus.⁶ Plaintiff claims that the bottle was not his and presumes that it belonged to one of the African-American men who were sitting in front of him on the bus. (Depo. of Mark Whittington, 89).⁷ When Officer Giambalvo searched the bus, he found that the white plastic bottle contained a small amount of marijuana. (Depo. of Mark Whittington, 89-90). Plaintiff testified that he does not take issue with Officer Giambalvo's testimony that the bottle was found on the bus. (Depo. of Mark Whittington, 89).⁸ Instead, Plaintiff argues that the bottle was not his.

Plaintiff was arrested for possession of marijuana and criminal mischief.⁹ Plaintiff was issued a notice to appear instead of being transported to jail. (Depo. of Mark Whittington, 54-55). Thereafter, all of the charges against Plaintiff were dropped because the arresting officer failed to appear in court.

The Amended Complaint was a six Count Complaint. In Count I, Plaintiff alleged that Surfside is liable for the alleged negligence of Officers Giambalvo and the other Officers. (Amended Complaint, ¶ 12-14). In Count II, Plaintiff alleged that Surfside falsely arrested and detained him. (Amended Complaint, ¶ 15-18). In Count III, Plaintiff alleged that Surfside maliciously prosecuted him. (Amended Complaint, ¶¶ 19-23). In Count IV, Plaintiffs alleged that Surfside is liable under 42 U.S.C. § 1983 for the actions of Officers Giambalvo and Perez because Surfside learned of or should have learned of facts or a pattern of inappropriate conduct by its officers, including Giambalvo, yet Surfside demonstrated deliberate indifference toward the constitutional rights of Plaintiff by failing to take any appropriate action that was obviously necessary to prevent the police brutality practiced by Officers Perez and Giambalvo. (Amended Complaint, ¶ 28). Moreover in Count IV, Plaintiff alleged that Surfside violated his substantive due process right to be free from unlawful arrest, his substantive due process right be free from excessive physical assault amounting to police brutality, and right and privilege not to be deprived of life and liberty without due process and equal protection of the law. (Amended Complaint, ¶ 27(A)-(C)). In Counts V and VI, Plaintiff sued Officers Giambalvo and Perez in their individual capacities pursuant to 42 U.S.C. § 1983 for alleged violations of Plaintiff's constitutional rights. (Amended Complaint, Counts V and VI).

In response to the Amended Complaint, Defendants filed Motions to Dismiss [DE # 1 & 4]. On December 29, 2006, I issued an Order addressing the Motions to Dismiss [DE # 50]. In the December 29, 2006 Order, I dismissed Counts I and III based on Surfside's negligence and for malicious prosecution. Additionally, I dismissed Plaintiff's constitutional claims for alleged violations of his due process rights pursuant to the Fourteenth Amendment based on the Officer's use of excessive force and their alleged false arrest of Plaintiff against Surfside contained in Count IV as well as Plaintiff's constitutional claims for violations of his due process rights pursuant to the Fourteenth Amendment against Officers Giambalvo and Perez contained in Counts V and VI. Moreover, I dismissed Plaintiff's constitutional claims for alleged violations of his equal protection rights pursuant to the Fourteenth Amendment against Defendants Giambalvo, Perez, and Surfside contained in Counts IV, V, and VI without prejudice. Furthermore, I allowed Plaintiff leave to file an Amended Complaint to plead with more specificity his claims of municipal liability pursuant to 42 U.S.C. § 1983 against Surfside contained in Count IV and his claims for alleged Fourth Amendment violations against Defendants Giambalvo and Perez contained in Counts V and W. Thereafter, Plaintiff filed a Second Amended Complaint on January 15, 2007 [DE # 52].

Pursuant to the Second Amended Complaint, the following claims remain. Plaintiff asserts two causes of action against Surfside: one count for false arrest and false imprisonment or detention under Florida common law in Count II, and another count under section 1983 for alleged violations of substantive due process, equal protection and the Fourth Amendment in Count IV. Count V against Officer Giambalvo includes § 1983 claims pursuant to the following legal theories: Fourth Amendment false arrest; Fourth Amendment excessive force; substantive due process; and equal protection under the law. Count VI against Officer Perez includes § 1983 claims for Fourth Amendment false arrest; substantive due process; and equal protection under the law and an excessive force claim against Officer Perez. Thereafter, the Defendants filed Motions for Summary Judgment that are the subject of this Order.

II. Standard of Review

Summary Judgment is appropriate only when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of meeting this rather exacting standard. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In applying this framework, the evidence, and all reasonable factual inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. See Arrington v. Cobb County, 139...