JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon Defendants Brett Livingston and Ivelisse Severance's Renewed Motion to Dismiss Counts II through V and Count VII of Plaintiff's Complaint (Doc. 26), and Plaintiff's response in opposition thereto (Doc. 27). The Court, having reviewed the applicable pleadings, and being otherwise fully advised in the premises, concludes that the motion to dismiss should be granted in part and denied in part.
On October 31, 2009, the Mt. Dora Police Department received an emergency call complaining that several juveniles were throwing rocks at a building in the downtown area. Officer Brett Livingston and Officer Ivelisse Severance (collectively, the "Officers") responded to the area, and Officer Livingston observed a group of juveniles, including minor M.E., walking downtown.
Thereafter, on May 21, 2010, the state court issued an order of adjudication and disposition in M.E.'s juvenile delinquency case withholding adjudication of delinquency on the charge of obstructing an officer without violence. (Doc. 34, Ex. B).
On October 25, 2013, Plaintiff Marie L. Henry initiated this action on behalf of her minor daughter, M.E., arising from M.E.'s arrest on October 31, 2009. (Doc. 1). Plaintiff alleges various claims against the City of Mt. Dora (the "City") and the Officers in their individual and official capacities, including claims under 28 U.S.C. § 1983 for (1) deprivation of civil rights under the Fourth and Fourteenth Amendments against the City (Count I); and (2) deprivation of civil rights under the Fourth, Fifth, and Fourteenth Amendments against the Officers (Counts II & III). Plaintiff also raises state law claims for (1) false arrest and false imprisonment against the Officers and the City (Counts IV-VI); (2) assault and battery against Officer Livingston and the City (Counts VII & VIII); and (3) negligent training and supervision against the City (Count IX). As relief, Plaintiff seeks compensatory damages, punitive damages, where applicable, costs, and attorney's fees.
The City filed an answer to the complaint on December 10, 2013, (Doc. 8) and filed an amended answer on December 17, 2013 (Doc. 11). The Officers filed a motion to dismiss Counts II through V and Count VII of Plaintiff's complaint on December 27, 2013. (Doc. 13). Plaintiff then filed a motion seeking to strike the motion to dismiss because the motion attached confidential records from M.E.'s juvenile proceedings that were not properly redacted. (Doc. 19). The Court granted the motion to strike, permitting the Officers an opportunity to renew their motion to dismiss and to either attach appropriately redacted confidential records or to file the records under seal. (Doc. 24). The Officers filed their renewed motion to dismiss on April 28, 2014, and filed M.E.'s confidential records under seal. (Docs. 26, 34).
Currently before the Court is the Officers' renewed motion to dismiss. (Doc. 26). By their motion, the Officers contend that (1) Counts II through V should be dismissed to the extent that those counts allege claims for false arrest because the claims are barred by the principles established in Heck v. Humphrey, 512 U.S. 477 (1994); (2) Counts IV and V for false arrest/false imprisonment under state law should be dismissed because Plaintiff's claims for false arrest are barred under Florida law;
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be granted. In considering a motion to dismiss under Rule 12(b)(6), a court must accept the factual allegations of the complaint as true and evaluate all inferences derived from those facts in the light most favorable to the plaintiff. See Erickson, 551 U.S. at 94. Conclusory allegations, unwarranted factual deductions, or legal conclusions masquerading as facts, however, are not entitled to the assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
First, Defendants contend that Plaintiff's claims for false arrest under § 1983 and Florida law (Counts II-V) are barred by the Heck doctrine as espoused in Heck v. Humphrey, 512 U.S. 477.
Id. at 486-87. In reaching this conclusion, the Court stated "[w]e think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution." Id. at 486. Heck's holding can be distilled into three main inquiries: (1) whether there is an underlying conviction or sentence; (2) whether a judgment in favor of the plaintiff would necessarily imply the invalidity of the conviction or sentence; and (3) whether the underlying conviction or sentence has been invalidated or otherwise favorably terminated.
Plaintiff asserts that the Officers' contention that Heck applies to Plaintiff's claims for false arrest fails on the first inquiry because the order of adjudication withholding adjudication of delinquency does not constitute a "conviction" for purposes of Heck. The Court disagrees.
Plaintiff is correct in asserting that pursuant to applicable Florida law, an adjudication of delinquency, or in M.E.'s case a withholding of adjudication of delinquency,
Although an issue of first impression in this circuit, a majority of courts that have directly considered whether the Heck doctrine applies to juvenile delinquency adjudications have concluded that Heck applies, such that it could bar a juvenile's claims under § 1983 if the remaining elements of the Heck doctrine are met.
Moreover, application of Heck to juvenile adjudications preserves an underlying purpose of the Heck doctrine—to avoid potentially conflicting resolutions arising out of the same set of facts. See Heck, 512 U.S. at 486 (comparing a claim challenging the lawfulness of a conviction or sentence under § 1983 to a common-law claim for malicious prosecution and recognizing "a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction" (internal citation and quotation marks omitted)); see also McClish v. Nugent, 483 F.3d 1231, 1250 (11th Cir. 2007) (noting that the Heck doctrine "is designed . . . to avoid the problem inherent in two potentially conflicting resolutions arising out of the same set of events by foreclosing collateral attacks on convictions through the vehicle of a § 1983 suit"); Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (noting that the purpose of the Heck doctrine was "to limit the opportunities for collateral attack on state court convictions because such collateral attacks undermine the finality of criminal proceedings and may create conflicting resolutions of issues"). Here, even though adjudication of delinquency was withheld, the state court found that M.E. violated § 843.02, Fla. Stat., and imposed sanctions. (Doc. 34, Ex. B). If this Court concludes that Plaintiff's § 1983 claims for false arrest would necessarily imply the invalidity of M.E.'s juvenile adjudication, then a judgment in favor of Plaintiff on the false arrest claims would conflict with the findings of the state court.
Also, application of the Heck doctrine to juvenile adjudications would not undermine the rehabilitative nature of the juvenile justice system in Florida.
Accordingly, for the foregoing reasons, the Court concludes that the Heck doctrine applies to juvenile adjudications, such that for the purposes of the Heck bar, an adjudication of delinquency (or withholding adjudication of delinquency) is the functional equivalent of a "conviction" or sentence. Thus, the first inquiry of the Heck analysis is satisfied.
Next, the Court must consider whether a judgment in favor of Plaintiff would necessarily imply the invalidity of M.E.'s juvenile adjudication. In making this determination, "the court must look both to the claims raised under § 1983 and to the specific offenses for which the § 1983 claimant was convicted." Hughes v. Lott, 350 F.3d 1157, 1161 n.2 (11th Cir. 2003).
The state court found that M.E. committed the act of resisting an officer without violence in violation of § 843.02, Fla. Stat., which provides, "Whoever shall resist, obstruct, or oppose any officer . . . in the execution of legal process or 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." (Emphasis added.). To prove that M.E. committed the offense of resisting an officer without violence, the state was required to show that (1) the Officers were engaged in the lawful execution of a legal duty; and (2) the actions of M.E. obstructed, resisted, or opposed the Officers in the performance of that duty. See V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001).
Here, Plaintiff alleges claims for false arrest arguing that the Officers originally lacked reasonable suspicion to detain M.E. and, later, lacked probable cause to arrest her. (Doc. 1). "An arrest without a warrant and lacking probable cause violates the Constitution and can underpin a § 1983 [false arrest] claim, but the existence of probable cause at the time of arrest is an absolute bar to a subsequent constitutional challenge to the arrest." Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010); see also Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir. 1990). Thus, Plaintiff's claims for false arrest will turn upon whether reasonable suspicion existed to detain M.E. and probable cause existed to arrest M.E.
However, a finding that the Officers lacked reasonable suspicion to detain M.E. or probable cause to arrest her would necessarily imply the invalidity of the juvenile adjudication. See Quinlan v. City of Pensacola, 449 Fed. App'x 867, 870 (11th Cir. 2011). If the Officers lacked reasonable suspicion to detain M.E. and probable cause to arrest her, then her juvenile adjudication for violating § 843.02, Fla. Stat., would be impugned because such a finding would negate the element that the Officers were engaged in the lawful execution of a legal duty. Accordingly, success on Plaintiff's claims for false arrest would necessarily imply the invalidity of her juvenile adjudication such that the second inquiry of the Heck analysis has been satisfied.
As to the third inquiry, no evidence has been presented, and Plaintiff does not contend, that M.E.'s juvenile adjudication has been reversed on direct appeal, expunged, declared invalid by a state tribunal authorized to make such determination, or called into question by a writ of habeas corpus. Accordingly, Plaintiff cannot satisfy the favorable-termination requirement that would preclude application of the Heck bar.
Finally, the Court recognizes that the Heck analysis may entail a fourth inquiry"whether the plaintiff had access to habeas relief. Relying on Heck's progeny, Plaintiff contends that her false-arrest claims are not Heck barred because M.E. does not have access to federal habeas relief. (Doc. 27 at 13).
Subsequently, in Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court addressed whether a habeas petition filed by an inmate no longer in custody presented a case or controversy under Article III, § 2 of the Constitution. The petitioner wished to challenge his parole revocation and filed a petition for a writ of habeas corpus, but his sentence expired before the district court could consider the petition on the merits. Id. at 5-6. The district court dismissed his petition as moot. Id. The petitioner appealed, arguing, in part, that because Heck "would foreclose him from pursuing a damages action under [§ 1983] unless he can establish the invalidity of his parole revocation, his action to establish the invalidity [of his parole revocation] cannot be moot." Id. at 17. The Court stated that "[t]his [argument] is a great non sequitur, unless one believes (as we do not) that a § 1983 action for damages must always and everywhere be available." Id. However, a majority of the Justices (four concurring and one dissenting) agreed that "a former prisoner, no longer `in custody,' may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy." Spencer, 523 U.S. at 21 (Souter, J., concurring).
Based on the tension created by Justice Souter's concurring opinion in Heck and the "plurality" of Spencer, a circuit split has developed regarding the application of Heck to individuals who file claims under § 1983 and who do not have access to habeas relief, such as those who are no longer in custody due to the expiration of their sentences. On one hand, four circuits have declined to follow the concurring and dissenting opinions of Spencer, and have found that Heck applies to all § 1983 claimants regardless of whether the claimant has access to federal habeas relief.
Eleventh Circuit precedent is not entirely clear on this issue. The Eleventh Circuit first addressed the Spencer plurality in Harden v. Pataki, 320 F.3d 1289, 1298 (11th Cir. 2003), in considering the applicability of the Heck bar to an individual challenging unconstitutional extradition procedures under § 1983. Id. The Eleventh Circuit concluded that the plaintiff's § 1983 claims were not barred by Heck. In reaching this conclusion, the court first found that Heck did not apply to the plaintiff's § 1983 claims challenging the procedural defects of his extradition because the challenge would not impugn the plaintiff's conviction or sentence. Id. at 1296-98. Second, the court stated that "because federal habeas corpus is not available to a person extradited in violation of his or her federally protected rights, even where the extradition itself was illegal, § 1983 must be. If it were not, a claim for relief brought by a person already extradited would be placed beyond the scope of § 1983, when exactly the same claim could be redressed if brought by a person to be, but not yet, extradited." Id. at 1299 (citing Spencer, 523 U.S. at 20-21 (Souter, J., concurring)).
The Eleventh Circuit similarly examined this issue in dicta from Abusaid v. Hillsborough County Board of County Commissioners, 405 F.3d 1298, 1316 n.9 (11th Cir. 2005). In Abusaid, a night-club owner was charged and convicted of violating an ordinance regulating "rave" or "dance halls," and was sentenced to eighteen months' probation. Id. at 1301. The owner subsequently sued the county, the county fire marshal, the county sheriff's office, and the board of county commissioners under § 1983, arguing that the ordinance was unconstitutional. Id. at 1302. The district court dismissed the owner's claims as barred by the Eleventh Amendment, and the Eleventh Circuit reversed. Id. at 1317. Although the court decided the case on Eleventh Amendment immunity grounds, it sua sponte raised the issue of whether the owner's claims would be barred by the Heck doctrine. Id. at 1316 n.9. The court stated that if "habeas relief is not available to [the plaintiff], . . . he may be entitled to bring a § 1983 suit." Id. (emphasis added). Nevertheless, the court concluded that whether Heck applied was a fact-intensive inquiry that would be better resolved by the district court upon a proper motion by one of the parties.
On remand, the district court found that, at the time the owner initiated his § 1983 action, he was no longer on probation or "in custody," and, therefore, habeas relief was unavailable to him. Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 637 F.Supp.2d 1002, 1018 (M.D. Fla. 2007). The district court then concluded that to the extent the owner's claims would necessarily imply the invalidity of his underlying convictions, his claims were barred by the Heck doctrine because the doctrine had not been expressly overruled or qualified by the Supreme Court. Id. at 1019. The owner did not appeal.
At first blush, the Eleventh Circuit's discussion of the Heck doctrine in Harden and Abusaid appears to indicate that the court is inclined to follow the Spencer plurality. However, in Vickers v. Donahue, 137 Fed. App'x 285, 289 (11th Cir. 2005), an unpublished opinion,
Next, in McClish v. Nugent, 483 F.3d 1231, the Eleventh Circuit examined the applicability of the Heck doctrine to a § 1983 plaintiff who was charged with a crime, but the charge was later dismissed for successful completion of a pretrial intervention program ("PTI"). The district court concluded that the plaintiff's claim was Heck barred because dismissal of his charge for participation in PTI was not a favorable termination. Id. at 1251. The Eleventh Circuit reversed, holding that Heck did not apply because the plaintiff was never convicted of a crime; thus, there was no need to satisfy the favorable-termination requirement. Id. The court further stated that even if Heck applied, the plaintiff "correctly cites to Abusaid . . . for the proposition that the Supreme Court has apparently receded from the idea that Heck's favorable-termination requirement also applies to non-incarcerated individuals." Id. at 1251 n.19.
In another unpublished opinion, Christy v. Sheriff of Palm Beach County, 288 Fed. App'x 658 (11th Cir. 2008), the Eleventh Circuit upheld the district court's dismissal of a plaintiff's claims under § 1983 as barred by Heck. First, the court stated that if the plaintiff prevailed on the claims, it would necessarily imply the invalidity of his conviction. Id. at 666. The plaintiff argued that Heck did not apply to his claims because habeas relief was unavailable to him, but the court rejected that argument stating that, "we have expressly declined to consider that issue in an opinion where the § 1983 action is otherwise barred under Heck."
The Eleventh Circuit opinions that have considered this issue and found that the plaintiff's claims were not barred by Heck have not addressed a situation analogous to the instant case where the plaintiff is both no longer in custody (i.e., habeas relief is unavailable) and the plaintiff's § 1983 claims would impugn his or her conviction or sentence. Rather, in each case where the Eleventh Circuit found that a plaintiff's claims were not barred by Heck and the plaintiff did not have access to habeas relief, the plaintiff's claims did not necessarily imply the invalidity of his or her conviction or sentence. See Morrow, 610 F.3d 1271; Harden, 320 F.3d 1289. In contrast, in each case where the Eleventh Circuit found that the unavailability of habeas relief would not preclude application of the Heck bar, the plaintiff's claims necessarily implied the invalidity of a conviction.
Thus, as to Plaintiff's claims for false arrest, the Court concludes that the unavailability of federal habeas review does not preclude application of the Heck doctrine. First, as discussed above, Plaintiff's claims for false arrest would necessarily imply the invalidity of the order of adjudication issued by the state court. See Vickers, 137 Fed. App'x at 289-90; Christy, 288 Fed. App'x at 665-66. And, second, federal habeas relief was not the only means by which M.E. could challenge her juvenile adjudication and disposition and thus receive a favorable termination. See Domotor, 630 F. Supp. 2d at 1380. M.E. could have appealed the order of adjudication or sought habeas relief through state avenues. See § 985.534, Fla. Stat. (allowing a juvenile to appeal a final order of the court under the Juvenile Justice Act, §§ 985.01-807, Fla. Stat.); see also T.P.H. v. State, 739 So.2d 1180, 1181 (Fla. 4th DCA 1999) (stating that a juvenile has a "constitutional right to appeal his [or her] adjudication of delinquency, disposition, and order of restitution"); J.E.P. v. State, 130 So.3d 764, 765 (Fla. 2d DCA 2014) (stating that a petition for habeas corpus is the appropriate avenue for seeking postdisposition relief in juvenile cases).
Because Plaintiff's juvenile adjudication is equivalent to a conviction for Heck purposes, to the extent Plaintiff seeks damages under § 1983 for false arrest in Counts II and III, such claims are barred by Heck. Nevertheless, Plaintiff also raises claims for Abusaid, 637 F. Supp. 2d at 1017-19; Bilal v. City of Pensacola, No. 3:05CV366 LAC/MD, 2006 WL 173692, at *6 (N.D. Fla. Jan. 24, 2006) (adopting report and recommendation). excessive force in Counts II and III, which the Officers do not contend are Heck barred. Accordingly, Counts II and III may proceed on this theory.
As to the Officers' contention that Plaintiff's state law claims for false arrest and false imprisonment are barred by Heck (Doc. 26 at 4, 9), the Court declines to consider whether state law claims are within the scope of the Heck doctrine because, as discussed in more detail below, Plaintiff's state law claims for false arrest and false imprisonment are due to be dismissed on other grounds.
The Officers argue that Plaintiff's state law claims for false arrest and false imprisonment (Counts IV and V) should be dismissed because M.E.'s adjudication of delinquency establishes probable cause for her arrest such that her state law claims for false arrest are barred. (Doc. 26 at 3, 9). Under Florida law, the existence of probable cause is an absolute bar to a claim of false arrest. See Bolanos v. Metro. Dade Cnty., 677 So.2d 1005, 1005 (Fla. 3d DCA 1996); see also Von Stein v. Brescher, 904 F.2d 572, 584 n.19 (11th Cir. 1990). And "in the absence of fraud, prejudice, or any other corrupt means, a conviction is [a] sufficient determination of the element of probable cause," such that a claim for false arrest will be foreclosed. Carter v. City of St. Petersburg, 319 So.2d 602, 604 (Fla. 2d DCA 1975); see also Behm v. Campbell, 925 So.2d 1070, 1072 (Fla. 5th DCA 2006); Moody v. City of Key West, 805 So.2d 1018, 1021 (Fla. 3d DCA 2001). Plaintiff does not allege that the juvenile adjudication was the product of fraud, prejudice, or other corrupt means.
Next, the Officers contend that M.E.'s claims for false arrest under § 1983 (Counts II and III) should be dismissed because the Officers are entitled to qualified immunity.
"Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity." Cottone, 326 F.3d at 1358. To overcome qualified immunity, Plaintiff must satisfy a two-prong test. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Plaintiff must show (1) that the Officers violated a constitutional right, and (2) the constitutional right violated was clearly established at the time of the alleged violation. Id. In other words, "[i]f, assuming the plaintiff's allegations were true, no such right would have been violated, the analysis is complete. However, if a constitutional violation can be made out on the plaintiff's facts, we then must determine whether, at the time of the arrest, every objectively reasonable officer would have realized the acts violated already clearly established federal law." Davis v. Williams, 451 F.3d 759, 762 (11th Cir. 2006).
With regard to a claim of false arrest, "[a] warrantless arrest without probable cause violates the Constitution and provides a basis for a section 1983 claim." Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004). However, an action for an impermissible arrest is barred if probable cause existed at the time of arrest. Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003). An arrest is supported by probable cause when it is objectively reasonable based on the totality of the circumstances. Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998). It is well settled that "`[e]ven law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.'" Wood, 323 F.3d at 878 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). The Eleventh Circuit frames this inquiry as whether an officer had "arguable probable cause." Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). Because only arguable probable cause is needed, "the inquiry is not whether probable cause actually existed, but instead whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed." Id. at 184.
Plaintiff argues that the Officers lacked reasonable suspicion to first detain M.E. and subsequently lacked probable cause to arrest her. According to Plaintiff, at the time Officer Livingston stopped M.E., M.E. was not in close proximity to the building where the criminal mischief occurred, and Officer Livingston had already been informed by another officer that M.E. and the group she was with was not involved in the criminal mischief the Officers were investigating. (Doc. 1 at 3). Officer Livingston instructed M.E. that she was not free to leave and requested that she provide her name and address. (Id. at 4). M.E. refused to provide her name and address, at which point she avers that Officer Livingston grabbed her, threw her to the ground, and arrested her for resisting an officer without violence.
However, the Officers do not argue that the facts as alleged by Plaintiff give rise to actual, or even arguable probable cause, to arrest M.E. Rather, similar to the Officers' argument regarding Plaintiff's state law claims for false arrest, the Officers contend that M.E.'s juvenile adjudication constitutes conclusive proof that the Officers had probable cause to arrest M.E, and, therefore, the Officers are entitled to qualified immunity. (Doc. 26 at 3). Persuasive authority exists on each side of this issue.
Because the Officers are entitled to qualified immunity as to Plaintiff's claims for false arrest under § 1983, Counts II and III are also due to be dismissed on this ground to the extent they allege claims for false arrest.
The Officers contend that Counts II through V should be dismissed to the extent they seek redress against the Officers in their official capacities because those claims amount to claims against the City and are merely duplicative of claims already alleged in the complaint. (Doc. 26 at 10). Plaintiff clarifies in her response to the motion to dismiss that she is only asserting claims against the Officers in their official capacities under Counts IV and V for false arrest and false imprisonment under state law. (Doc. 27 at 20). The Court has already determined that Plaintiff's state law claims for false arrest and false imprisonment are due to be dismissed. Accordingly, whether the state law claims against the Officers in their official capacities are duplicative of claims alleged against the City is now moot.
Finally, Officer Livingston argues that Plaintiff's claim for assault (Count VII) should be dismissed because it fails to state a claim upon which relief could be granted.
To prove her claim for assault, Plaintiff "need not plead specific facts for every element." Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006). Rather, Plaintiff must provide "either direct or inferential allegations respecting all material elements of a cause of action." Id.; see also Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) ("[A]t a minimum, notice pleading requires that a complaint contain inferential allegations from which [the court] can identify each of the material elements necessary to sustain a recovery under some viable legal theory."). Officer Livingston argues that Plaintiff's claim for assault fails because Plaintiff did not specifically allege a well-founded fear of imminent violence. (Doc. 26 at 11). Plaintiff counters that the facts as alleged allow for the reasonable inference that M.E. had a well-founded fear of imminent violence. (Doc. 27 at 19).
Because Plaintiff alleged that Officer Livingston forcibly grabbed M.E. and threw her to the ground, at the motion to dismiss stage, the facts as alleged provide an adequate basis to infer that M.E. experienced a well-founded fear of imminent violence. Thus, Plaintiff has alleged sufficient facts to establish a prima facie claim for assault, and the Officers are not entitled to dismissal of this claim.
As an additional matter, because the Court has concluded that M.E.'s arrest was based upon probable cause, Plaintiff's claim for assault and battery against Officer Livingston may only survive to the extent it constitutes a claim for the use of excessive force. Under 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)). "If an officer uses excessive force, `the ordinarily protected use of force is transformed into a battery.'" Id. (quoting Sanders, 672 So. 2d at 47 (internal punctuation omitted)).
Accordingly, it is therefore
1. Defendants Brett Livingston and Ivelisse Severance's Renewed Motion to Dismiss Counts II through V and Count VII of Plaintiff's Complaint (Doc. 26) is GRANTED in part and DENIED in part, as follows:
