ORDER GRANTING FINAL SUMMARY JUDGMENT FOR DEFENDANT CITY OF WEST MIAMI; AND GRANTING IN PART DEFENDANT DIAZ'S MOTION FOR SUMMARY JUDGMENT

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court upon Defendant JORGE DIAZ's Motion for Summary Judgment and Incorporated Memorandum of Law (DE 56) and Defendant CITY OF WEST MIAMI's Motion for Summary Judgment and Incorporated Memorandum of Law (DE 57), both of which were filed on July 7, 2014. The Court heard oral argument on both motions on August 13, 2014. After careful consideration of the pleadings and arguments raised by the parties,1 the Court finds that Defendant JORGE DIAZ's motion must be granted in part and denied in part, and Defendant CITY OF WEST MIAMI's motion must be granted.

I. BACKGROUND

A. Procedural Facts

On March 15, 2012, Plaintiff initiated this action by filing a four-count complaint in the Circuit Court for the Eleventh Judicial Circuit in and for Miami-Dade County, Florida against Officer Jorge Diaz,2 the City of West Miami (the "City"),3 and the City of West Miami Police Department (the "Police Department"). This action stems from Plaintiff's arrest on May 23, 2009, which he claims was effected without probable cause. As the original complaint raised, inter alia, claims under 42 U.S.C. § 1983 for an alleged deprivation of federally protected rights, Defendants timely removed this action pursuant to 28 U.S.C. §§ 1441 and 1446 to the United States District Court for the Southern District of Florida. DE 1. This Court has original jurisdiction because the original complaint presented a federal question and sought to redress the alleged deprivation of Plaintiff's federally protected civil rights pertaining to seizures, arrests, and uses of force under 42 U.S.C. § 1983. Additionally this Court has supplemental jurisdiction over the state law and common law claims raised by the complaint pursuant to 42 U.S.C. § 1367.

On February 25, 2013, the Court granted the Police Department's Motion to Dismiss (DE 20), and dismissed all claims against the Police Department with prejudice. The operative complaint in this matter is the Second Amended Complaint (the "Complaint") (DE 24), which states claims against Officer Diaz for battery (Count I), intentional infliction of emotional distress (Count II), false arrest and imprisonment (Count V), and false arrest and excessive use of force in violation of 42 U.S.C. § 1983 (Count VI), as well as claims against the City for negligent hiring (Count III) and negligent retention and supervision (Count IV).

B. Facts4

Plaintiff is co-owner of a residence located at 6591 SW 15th Street (the "Residence"). DE 58, ¶ 1; DE 76-1, ¶ 1. During the evening of May 23, 2009, Plaintiff's son was having a get-together in the backyard area of the Residence. DE 73-1, ¶¶ 10-11; DE 73-3. Plaintiff's neighbor, Barbara Revuelta, made a noise complaint to the police. DE 73-11. At approximately 10:42 p.m. and 10:47 p.m., respectively, Officer Diaz and a back-up police officer, Officer Eric Guzman, were dispatched to the Residence to respond to the complaint. DE 58, ¶ 8, 12; DE 59-2, ¶¶ 5-12; DE 59-13; DE 73-9 at 4-5; DE 73-11 at 4-5. The dispatch operator, Barbara Knowles, identified the Residence as the source of the noise, and the address of Plaintiff's neighbor Barbara Revuelta as the location of the complaining party. DE 58, ¶ 19; DE 59-2, ¶¶ 10-11. Officer Diaz was the first officer to arrive at the Residence, and Officer Guzman arrived at the Residence a few minutes after Officer Diaz. DE 58, ¶¶ 14, 18; DE 76-1, ¶¶ 14, 18.

While approaching the Residence, Officer Diaz noticed an illegally parked car and issued parking citation. DE 58, ¶ 22; DE 76-1, ¶ 22. As Officer Diaz was writing the citation, he was approached by Plaintiff's son, who asked Officer Diaz if there was a problem. DE 58, ¶ 23; DE 76-1, ¶ 23. Officer Diaz advised Plaintiff's son that he wanted to speak with the owner of the Residence, and asked Plaintiff's son if he knew where the owner was. Id. Plaintiff's son told Officer Diaz that the owner of the Residence was not at home. DE 73-3 at 5; DE 59-22 at 3. Officer Diaz spotted Plaintiff on the front porch of the Residence, pointed him out, and told Plaintiffs son "that's the owner right there, I know him."5 DE 59-22 at 6; DE 58, ¶ 25; DE 76-1, ¶ 25.

Officer Diaz approached Plaintiff on the front porch of the Residence and asked Plaintiff to produce identification. DE 58, 26; DE 76-1, ¶ 26. Rather than produce his identification, Plaintiff told Officer Diaz to "get off my property." DE 58, ¶ 27; DE 58-3 at 26-27. Officer Diaz responded by grabbing Plaintiff by the arm, forcibly turning him around and twisting his arm behind his back, and pushing him up against a wall in order to handcuff him. Id.; DE 76-1, ¶ 30. Officer Diaz then dragged Plaintiff from the front porch down to the street level and handcuffed him. DE 76-1, ¶ D61.

C. Facts in Dispute

Plaintiff's Corrected Statement of Undisputed and Disputed Facts (DE 76-1) states that, while being led by Officer Diaz to the police cruiser in handcuffs, Plaintiff turned to his family and asked them to call his attorney and the captain of the Police Department, whereupon Officer Diaz violently elbowed Plaintiff in the eye.6

II. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT

"The Court shall grant summary judgment 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). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, elecontrincally stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers or other materials; or showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Id. at 56(c)(1). "In determining whether summary judgment is appropriate, the facts and inferences from the facts are viewed in the light most favorable to the non-moving party, and the burden is placed on the moving party to establish both the absence of a genuine material fact and that it is entitled to judgment as a matter of law." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

Vignoli v. Clifton Apartments, Inc., No. 12-24508, Report and Recommendation, DE 101 (S.D. Fla. Oct 2, 2014) (Torres, Mag. J.).

III. DISCUSSION

Defendants' respective motions urge the Court to enter summary judgment on their behalf with respect to each count of the Complaint. Officer Diaz's motion asserts that he is entitled to both statutory and qualified immunity from the battery, intentional infliction of emotional distress, false arrest/imprisonment, and section 1983 claims against him because his arrest of Plaintiff was supported by probable cause. The City's motion asserts that Plaintiffs claims for negligent hiring, supervision, and retention must fail because: 1) the City is entitled to sovereign immunity against claims related to its policy decisions, 2) Plaintiff has failed to offer any evidence which establishes that Officer Diaz engaged in conduct which fell outside the course and scope of his employment as a police officer, and 3) Plaintiff has failed to offer any evidence which establishes that the City was put on notice of Officer Diaz's alleged propensity to effectuate arrests without probable cause or to employ excessive force. For the reasons cited herein, the Court finds that Officer Diaz's motion must be granted in part and denied in part, and the City's motion must be granted.

A. False Arrest, Excessive Use of Force, and Battery

With respect to Plaintiff's state law claims for false arrest and battery, as well as Plaintiff's 42 U.S.C. § 1983 claims for false arrest and excessive use of force, Officer Diaz argues he is entitled to summary judgment because: 1) Plaintiff's arrest was supported by probable cause and 2) a finding that the arrest was supported by probable cause compels summary judgment on the excessive force and battery claims. While the Court agrees that Plaintiff's arrest was supported by probable cause, Officer Diaz's argument with respect to the excessive force and battery claims misses the mark. See Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000) (holding a claim for use of excessive force during a legal stop or arrest is a discrete claim)).

1. The False Arrest Claims

It is the law of this Circuit and the state of Florida that the existence of probable cause to arrest constitutes a bar to claims for false arrest. Skop v. City of Atlanta, 485 F.3d 1130, 1137-38 (11th Cir. 2007); see also Miller v. City of Jacksonville, 603 So.2d 1310, 1311 (Fla. 1st DCA 1992). Additionally, government officials are entitled to qualified immunity from civil liability in their individual capacities when performing discretionary functions of their office "insofar as their conduct does not violate clearly established statutory or constitutional rights . . . ." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In his motion, Officer Diaz argues that he believed he had probable cause to arrest Plaintiff for violation of either: 1) Miami-Dade County's excessive noise ordinance7 or 2) Florida's obstructing justice statute.8 In response, Plaintiff merely points to a dispute of fact pertaining to whether Officer Diaz personally observed excessive noise emanating from the Residence, and argues that Plaintiff's evidence supports the conclusion that Officer Diaz did not. Plaintiff is correct that this dispute of fact precludes summary judgment based on a finding that Officer Diaz had probable cause to arrest Plaintiff by virtue of having observed a violation of the excessive noise ordinance. Cf. § 901.15(1), Fla. Stat. (2009) ("A law enforcement officer may arrest a person without a warrant when: (1) The person has committed a. . . misdemeanor . . . or violated a municipal or county ordinance in the presence of the officer."). However, for the reasons cited herein, the Court finds that summary judgment must be granted in favor of Officer Diaz on Plaintiff's false arrest claims nonetheless, because Officer Diaz had probable cause to arrest Plaintiff for violating Florida's obstructing justice statute. § 843.02, Fla. Stat. (2009).

The existence probable cause is a fact-specific inquiry which is dependent on the elements of the purported crime. Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004). Florida's obstructing justice statute provides:

The following facts make it plain that Plaintiff was in violation of section 843.02, Florida Statutes: 1) Officer Diaz was dispatched to the Residence to investigate a complaint of excessive noise,10 2) investigating the report of a misdemeanor is indisputably a legal duty of a police officer, 3) Plaintiff is an owner of the Residence; 4) Officer Diaz asked Plaintiff to produce his identification so that he could issue him a Promise to Appear; and 5) Plaintiff refused Officer Diaz's lawful order to produce identification, and instead told Officer Diaz to, "get off my property." Thus, Plaintiff's actions on the evening of May 23, 2009 constituted obstruction of a police officer in the lawful execution of a legal duty, and Officer Diaz had probable cause to arrest Plaintiff. Moreover, it is irrelevant whether or not Officer Diaz announced which Florida Statute he believed Plaintiff to be in violation of at the time of arrest, because "[t]he validity of an arrest does not turn on the offense announced by the officer at the time of the arrest." Lee, 284 F.3d at 1196 (quoting Bailey v. Bd. Of Cnty. Comm'rs of Alachua Cnty., 956 F.3d 1112, 1119 n.4 (11th Cir. 1992). Accordingly, the Court finds that Officer Diaz is entitled to summary judgment in his favor as to Plaintiff's state law and 42 U.S.C. § 1983 claims for false arrest.

2. The Excessive Use of Force and Battery Claims

Once summary judgment is granted in Officer Diaz's favor on the false arrest claim, Plaintiff's claim that Officer Diaz used excessive force must be analyzed independently. See Lee, 284 F.3d at 1197. Officer Diaz argues 1) he is entitled to qualified immunity from the section 1983 excessive use of force claim and 2) Plaintiff's battery claim must also fail because physical contact incident to a valid arrest cannot form the basis of a battery claim. To defeat a claim to qualified immunity, a plaintiff must demonstrate: "(1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011) (quoting Harlow, 457 U.S. at 818). Based on the facts of this case, the Court finds that Officer Diaz is not entitled to summary judgment on Plaintiff's excessive force and battery claims.

The law of this Circuit states:

Lee, 284 F.3d at 1197-98.

The Court has already determined that Plaintiff's arrest was supported by probable cause. However, the facts of this case necessitate separate analyses of: 1) the force used to secure and subdue Plaintiff in handcuffs and 2) the force used after Plaintiff was secured and subdued in handcuffs. See generally id. Based on the undisputed facts, which include that Officer Diaz was surrounded by at least five of Plaintiffs guests at the time he arrested Plaintiff, it was objectively reasonable for Officer Diaz to grab Plaintiff by the arm, twist his arm behind his back, push him up against a wall, and drag him down to the street level to handcuff him and place him under arrest. Zivojinovich v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008) (determining whether the amount of force used was objectively reasonable presents a question of law). However, there is evidence in this case upon which a reasonable jury could rely to find that Officer Diaz violently elbowed Plaintiff in the eye after Plaintiff was subdued and secured in handcuffs. Moreover, there is absolutely no evidence in this case which indicates any reasonable law enforcement need for Officer Diaz to have elbowed Plaintiff in the eye under those circumstances. And, even though Officer Diaz had the lawful power to effect a custodial arrest and secure Plaintiff in handcuffs, no reasonable officer could have possibly believed that he then had the lawful authority to violently elbow Plaintiff in the eye after he was already handcuffed, secured, and not at risk of flight. See Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000).

Thus, the Court finds that the evidence in this case is sufficient to defeat Officer Diaz's claim to qualified immunity from the section 1983 excessive force claim because a reasonable jury could rely on the evidence to find that Officer Diaz violated Plaintiff's clearly established constitutional rights by elbowing him in the eye after he was already handcuffed and secured. Moreover, as Officer Diaz's post-arrest physical contact with Plaintiff went beyond the scope of the physical contact which was necessary to effect Plaintiff's arrest, Officer Diaz's argument with respect to Plaintiff's battery claim must also fail. Accordingly, Officer Diaz's motion must be denied with respect to Plaintiff's excessive force and battery claims.

B. Intentional Infliction of Emotional Distress

Officer Diaz argues that, even assuming all of Plaintiff's allegations are true, the facts of this case fail to establish that Officer Diaz's conduct was outrageous enough, or that Plaintiff suffered emotional distress sufficient enough, to support a claim for intentional infliction of emotional distress. Plaintiff's response merely recites the elements of a claim for intentional infliction of emotional distress and asserts in conclusory fashion that Officer Diaz's conduct was "outrageous, that is, it went beyond all bounds of decency, and was odious and utterly intolerable in a civilized community such as the City [ ]."

Plaintiff may recover for intentional infliction of emotional distress only if Officer Diaz's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Borneisen v. Capital One Fin. Corp., 490 F. App'x 206, 213 (11th Cir. 2012) (quoting Johnson v. Thigpen, 788 So.2d 410, 412-13 (Fla. 1st DCA 2001)). The elements of a claim for intentional infliction of emotional distress are: "1) extreme and outrageous conduct; 2) an intent to cause, or reckless disregard to the probability of causing, emotional distress; 3) severe emotional distress suffered by the plaintiff; and 4) proof that the conduct caused the severe emotional distress." R. W. v. Armor Corr. Health S'ervs., Inc., 830 F.Supp.2d 1295, 1304 (M.D. Fla. 2011). "Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Borneisen, 490 F. App'x at 213 (citing Johnson, 788 So. 2d at 412-13). Whether alleged conduct rises to this level is a question of law. Id. (citing Gandy v. Trans World Comp. Tech. Grp., 787 So.2d 116, 119 (Fla. 2d DCA 2001)).

As a preliminary matter, courts uphold claims of intentional infliction of emotional distress only in "extremely rare circumstances," and the conduct complained of in this case is insufficient as a matter of law to qualify as extreme and outrageous conduct. See Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla. 1985). Moreover, Plaintiff has failed to come forward with competent evidence upon which a jury might rely to find that Plaintiff suffered severe emotional distress as a result of this incident. Accordingly Officer Diaz is entitled to summary judgment with respect to Plaintiff's claim for intentional infliction of emotional distress.

C. Negligent Hiring, Supervision, and Retention

"The negligent hiring, retention[,] or supervision of an incompetent, dangerous agent or servant under circumstances which establish that the employer knew or should have known of the agent's or servant's incompetence and dangerousness, and the likelihood or foreseeability that the agent would injure a third person, is long established as a basis for tort liability under Florida law." Jackson v. Montesino, No. 08-80554-CIV, 2009 WL 1515511, at *9 (S.D. Fla. June 1, 2009) (citing Mallory v. O'Neil, 69 So.2d 313 (Fla. 1954). The viability of this tort claim notwithstanding, at the current stage of this action, Plaintiff must come forward with competent evidence supporting his allegations of negligence or see his claims dismissed. In its motion, the City argues that it is entitled to summary judgment on Plaintiff's state law negligence claims because Plaintiff has failed to carry his burden.

As a preliminary matter, the record bears out that Officer Diaz was screened and investigated in accordance with the Police Department's administrative directive on applicant criteria. See DE 73-41. Indeed, Plaintiff cites to the report of Officer Ruben Yero, who was delegated the task of conducting a background check on Officer Diaz when he applied to be a reserve officer with the City, which states, "I personally met with representatives of [Officer] Diaz's prior empoyer, the City of Hialieah . . . [and] none of the information that I received or reviewed during my investigation indicated that Jorge Diaz was unqualified to serve as a City police officer or was otherwise unfit to perform as a City reserve police officer." DE 75 at 9. The pre-employment screening and investigation concluded that there was nothing in Officer Diaz's employment history which would have counseled against his hire. Moreover, when Officer Diaz applied to be a full-time police officer in 2006, the City assigned another officer to investigate Officer Diaz and prepare a memorandum on his fitness for hire. This further investigation came to the same conclusion.

Plaintiff's argument regarding the City's pre-employment screening blatantly ignores the pre-employment reports. The record bears out that the City performed a background check on Officer Diaz, evaluated the incidents Plaintiff complains it did not, and determined Officer Diaz was fit for employment. Moreover, there is nothing in the record which could have put the City on notice of any particularized problem with Officer Diaz's application of force or tendency to make arrests without probable cause that would have warranted additional training, supervision, or caused the City to reconsider retaining him as an employee prior to May 23, 2009. Finally, even if the record did support Plaintiff's allegations of negligent hiring, supervision, and retention, the City would be entitled to immunity from tort liability, as these are classic examples of "discretionary" types of governmental functions by municipalities into which courts are precluded from intervening under the separation of powers doctrine. Dep't of Health and Rehabilitative Servs. v. Yamuni, 529 So.2d 258, 260 (Fla. 1988). Accordingly the City is entitled to summary judgment in its favor on Plaintiff's state law negligence claims.

IV. CONCLUSION

Therefore, it is ORDERED, ADJUDGED and DECREED:

DONE AND ORDERED.