ROY B. DALTON, Jr., District Judge.
In the instant civil rights action, Defendant City of Altamonte Springs moves to dismiss several counts of Plaintiff's complaint. (Doc. 5.) Plaintiff responded on December 23, 2016. (Doc. 13.) For the reasons set forth below, the Court finds that the motion is due to be granted in part and denied in part.
Plaintiff Jennifer Skyles ("
On the date in question, Plaintiff called the Seminole County Fire Department for assistance hospitalizing Decedent, who was exhibiting suicidal behavior and holding a knife to his throat. (Id. ¶ 18.) The Seminole County Fire Department responded by placing a call to the ASPD; in turn, the ASPD dispatched Officer Matthew Fowler ("
But despite such history, upon his arrival, Officer Fowler approached the doorway "with his gun pulled and pointed at [Decedent]." (Id. ¶ 22.) Although Decedent's mental condition was "clear," and he "had not committed a crime or offense[,] nor was he engaged in or planning to commit a crime," Officer Fowler kept his gun pointed at Decedent. (Id. ¶¶ 23, 24.)
Skyles then informed Officer Fowler that he had a pocket knife and intended to place it on the table. (Id. ¶ 26.) At this time, Officer Fowler began shooting at Decedent, firing six shots, four of which struck Decedent. (Id. ¶¶ 26, 27.) Skyles was ultimately pronounced dead at the scene. (Id. ¶ 28.)
Based on the foregoing, Plaintiff asserts: (1) a claim against Officer Fowler under 42 U.S.C. § 1983 for unreasonable seizure ("
Federal Rule of Civil Procedure 8(a)(2) provides that a claimant must plead "a short and plain statement of the claim." On a motion to dismiss under Rule 12(b)(6), the Court limits its consideration to the "well-pleaded factual allegations." See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The factual allegations in the complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this plausibility determination, the Court must accept the factual allegations as true; however, this "tenet . . . is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678 (2009). a PLEADING THAT OFFERS MERE "LABELS AND CONCLUSIONS" IS THEREFORE INSUFFICIENT. Twombly, 550 U.S. at 555.
Section 1983 provides aggrieved persons with a procedural mechanism to seek redress for constitutional violations that are committed while a defendant is acting under color of state law. Acts performed by law enforcement officers—even if illegal or unauthorized—are considered to have been performed under color of state law so long as the acts are done in the defendant's capacity as a law enforcement officer. See West v. Atkins, 487 U.S. 42, 49-50 (1988). However, a § 1983 claim will fail if the plaintiff does not properly allege a constitutional violation. See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 119 (1992) ("Although [§ 1983] provides the citizen with an effective remedy against those abuses of state power that violate federal law, it does not provide a remedy for abuses that do not violate federal law.").
As an initial matter, the City argues that Plaintiff's claims are barred by the applicable statute of limitations ("
State law dictates the SOL governing a § 1983 claim. Penoyer v. Briggs, 206 F. App'x 962, 964 (11th Cir. 2006). Under Florida law, "a cause of action for wrongful death accrues on the date of death," Fulton Cty. Adm'r v. Sullivan, 753 So.2d 549, 552 (Fla. 1999), and must be brought "against a state or one of its agencies or subdivisions" within two years after the claim accrues, Fla. Stat. §§ 768.28(14), § 95.11(4)(d).
But before an individual may institute a wrongful death action against a municipality, the claimant must present a claim to the appropriate agency and receive a written denial.
In light of such tolling, the Court finds that the instant action is not barred by the SOL. Though Decedent's death occurred on June 15, 2014 (Doc. 3, ¶ 2), Plaintiff sent the Florida League of Cities ("
Ultimately, the City Agency denied Plaintiff's claim on May 11, 2015.
On the whole, the SOL ran from June 15, 2014, until September 14, 2016.
While not a model of clarity, sandwiched within the City's SOL argument is a reference to the prohibition under Florida law against personal injury actions that result in death. (Doc. 5, p. 4.) The Court construes such reference as an argument seeking to dismiss Plaintiff's state law claims for: (1) assault and battery in Count V ("
Importantly, "Florida's survival statute preserves the right to bring personal injury actions [that] [a] decedent may have brought prior to his death only when the personal injury was not the cause of death." Cone v. Orosa, No. 13-cv-24674-JLK, 2014 WL 1383028, at *2 (S.D. Fla. Apr. 8, 2014); see also Fla. Stat. § 46.021 ("
Applying these principles to the instant action, it is indisputable that Plaintiff has alleged that Decedent's injuries resulted in death. (See generally Doc. 3.) Because she has already asserted a wrongful death claim against the City for ordinary negligence on a theory of vicarious liability (see Doc. 3, ¶¶ 49-55), if Plaintiff choses to pursue her Battery and Negligent Hiring Claims, she must replead them as wrongful death claims premised on a theory of liability distinct from simple negligence.
The City also argues that any surviving wrongful death claims should be dismissed due to Plaintiff's failure to identify all Decedent's beneficiaries. (See Doc. 5, p. 6.) Indeed, § 768.21 of the Florida Statutes requires that a complaint identify "[a]ll potential beneficiaries of a recovery for wrongful death, including the decedent's estate," and allege their relationships to the decedent. Here, the caption of the Complaint identifies Plaintiff "as Personal Representative of her deceased spouse." (Doc. 3, p. 1.) Additionally, the Complaint states that Plaintiff "is the spouse of the decedent" and that "[s]he is, or will be, appointed the Personal Representative of [Decedent's] Estate." (Id. ¶ 8.) Standing alone, the Court is unable to deduce whether such statements satisfy the requirements of the Wrongful Death Act, and so, the Court will grant Plaintiff leave to amend her Complaint to either: (1) identify all potential beneficiaries; or (2) affirmatively state that Plaintiff is the only potential beneficiary.
Next, to the extent that Plaintiff intends to assert state law claims against Chief McCoy in his individual capacity,
Provided they have not "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property," § 768.28 immunizes state law enforcement officers from individual liability in civil suits— specifically, for tortious acts committed within the scope of their employment. Fla. Stat. § 768.28(9)(a). Bad faith under § 768.28(9)(a) has been characterized as conduct acted out with actual malice. Drudge v. City of Kissimmee, 581 F.Supp.2d 1176, 1194-95 (M.D. Fla. 2008).
The only state law claim asserted against Chief McCoy is a Negligent Hiring Claim in Count VIII. (Doc. 3, ¶¶ 78-88.) In support, Plaintiff alleges that: (1) Officer Fowler has had multiple complaints, infractions, or reports of misconduct filed against him in the past; (2) as a result, Chief McCoy should have known that Officer Fowler was violating the law and the ASPD's policies and procedures; (3) Chief McCoy neither remedied the situation, nor did he discharge, further supervise, or retrain Officer Fowler; (4) it was foreseeable that a member of the public would be killed; and (5) Chief McCoy's supervision, hiring, and retention of Officer Fowler constituted negligence or gross negligence. (Id. ¶¶ 80-87.) The Court has determined that Plaintiff must replead this count as a wrongful death claim. Should it be reasserted, the allegations would need to assert with particularity facts sufficient to demonstrate wanton and willful disregard of human safety. Allegations of simple negligence or even gross negligence are not sufficient to avoid the immunity afforded by Florida Statutes, § 768.28(9)(a). See McClelland v. Cool, 547 So. 2d. 975 (Fla. 2d DCA 1989).
In Count VI, Plaintiff alleges that:
(Doc. 3, ¶ 70.) In its motion to dismiss, the City argues that Count VI fails to state a claim against Chief McCoy in both his individual and official capacities. (Doc. 5, pp. 7-9.) The Court agrees.
To bring a § 1983 claim against Chief McCoy in his individual capacity, Plaintiff must allege more than vicarious liability. Indeed, "[i]t is well established that § 1983 claims may not be brought against supervisory officials on the basis of vicarious liability or respondeat superior." Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (citing Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)). However, supervisors can be found liable under § 1983 "either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional violation." Id. (quoting Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)). "`[F]acts which support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so'" suffice to demonstrate a causal connection. Id. (quoting Gonzalez, 325 F.3d at 1235).
The grab bag of adverbs and conclusory allegations set forth in Count VI do not present any facts evidencing Chief McCoy's personal participation in the Shooting or a causal connection between Chief McCoy's actions and the Shooting. As such, any purported § 1983 claim against Chief McCoy in his individual capacity is due to be dismissed.
As previously discussed, Plaintiff also intends to sue Chief McCoy in his official capacity. (Doc. 3 ¶ 14.)
Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991); see also Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 690 n.55 (1978). Accordingly, the Court construes Plaintiff's § 1983 official capacity claim against Officer McCoy as a claim against the City.
A municipality may be held liable under § 1983 only when the constitutional deprivation was undertaken pursuant to an official policy or custom; respondeat superior is not an appropriate basis for suit. St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur v. Cincinnati, 475 U.S. 469, 478-81 (1986); Monell, 436 U.S. at 690, 694. "[R]ecovery from a municipality is limited to acts that are, properly speaking, acts of the municipality—that is, acts which the municipality has officially sanctioned or ordered." Pembaur, 475 U.S. at 480.
The official policy or custom "must be the moving force of the constitutional violation in order to establish liability of a government body under § 1983."Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981). A municipal act rising to the level of such a policy or custom can be established by alleging the existence of: (1) an express policy, (2) a widespread practice that is "so permanent and well settled as to constitute a custom and usage with the force of law"; or (3) "a single act or decision of a municipal official with final policymaking authority" in the relevant area. Cuesta v. Sch. Bd. of Miami-Dade Cty., 285 F.3d 962, 966, 968 (11th Cir. 2002). A policy or custom has further been defined as tacit authorization, Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987), and a custom as "deeply imbedded traditional ways of carrying out policy," Fundiller v. Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985).
In addition, "[w]here a municipality's failure to train or supervise its employees in a relevant respect evidences a deliberate indifference to the rights of its inhabitants, such a shortcoming may constitute a policy or custom actionable under [§] 1983." Shehada, 965 F. Supp. 2d at 1373 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1989)). Such liability attaches where a municipality "inadequately trains or supervises its employees, this failure to train or supervise is a city policy, and that city policy causes the employees to violate a citizen's constitutional rights." Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citing City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). To establish deliberate indifference, "a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action." Id. at 1350.
Upon examination of the allegations in Count VI, the Court finds that Plaintiff has made wholly conclusory statements that the City "fail[ed] to promulgate reasonable policies and procedures among [its] officers for the use of force," and that such failure "was excessive and unreasonable, was done intentionally, willfully, [and] maliciously . . ., was done without lawful justification or reason, and was designed to and did cause specific serious physical emotional pain, physical pain, and death in violation of [Decedent's] rights under § 1983." (See Doc. 3 ¶ 70.) Plaintiff alleges no facts supporting his conclusion that the City had a policy or custom that was responsible for the death of Decedent, nor does she allege any facts demonstrating deliberate indifference.
As a final matter, the Court takes notice that only one Defendant—the City—has appeared in this action. Though the City endeavors to dismiss the claims against Chief McCoy, no counsel has appeared on his behalf. Consequently, the Court will require Plaintiffs to notify the Court regarding: (1) whether Chief McCoy and Officer Fowler have been served; and (2) how she intends to proceed against these Defendants.
Accordingly, it is
