DARRIN P. GAYLES, District Judge.
According to the allegations in the Complaint, on the evening of January 17, 2016, Plaintiff Michael George Forrest was in his home in Coral Springs, Florida, watching a movie with his girl-friend Angela and his cousin Faye. Compl. ¶ 12. At just after 9:00 p.m., Forrest heard a loud knock at the front door. Id. ¶ 13. The group was not expecting any other visitors that evening, so Forrest went downstairs to the front door and looked through the peephole, but he did not see anyone. Id. ¶¶ 14-15. In an abundance of caution, Forrest drew his legally permitted gun from its holster and concealed it behind his back, so as to not expose it to anyone when he opened the door. Id. ¶ 16.
When he opened the door, Forrest saw Officer Jones close to the corner next to the garage, and Officer Plesher coming from behind the door to confront him. Id. ¶ 17. Officer Jones asked if any women were inside the house. Id. ¶ 19. When Forrest replied in the affirmative, Officer Jones advised him that she and Officer Plesher were investigating a possible domestic violence complaint in the area and stated that a woman was heard crying out for help. Id. ¶¶ 19-20. Forrest told the Officers that they had come to the wrong house, but the Officers asked to confirm that both women in the house were not victims of domestic violence. Id. ¶¶ 21-22. Officer Plesher then forced the front door open and stood in the doorway. Id. ¶ 23. Forrest feared returning his gun to its holster out of fear that the Officers would misunderstand why he was holding it, so he continued to hold the gun behind his back during the parties' discussion. Id. ¶¶ 24-25.
Forrest called to Angela and Faye to come downstairs, but to do so, he had to turn around and call up the stairs, which revealed his gun to the Officers. Id. ¶ 26. He next heard both Officers yelling at him to "drop the [expletive] gun," and he immediately started to turn around to place the gun down on the stairs so it would be plainly visible. Id. ¶ 27. Before Forrest could tell the Officers that the gun was on the stairs, Officer Plesher punched him in the face, breaking his nose. Id. ¶ 28. By then, Angela and Faye had appeared at the top of the stairs, and Officer Jones pointed her gun at them, telling them repeatedly to "stay the [expletive] upstairs and don't move." Id. ¶ 29. Officer Plesher repeatedly punched Forrest in the head, grabbed Forrest's hair as he forced him to the ground onto his stomach, kicked Forrest in the back, and placed his feet in the center of Forrest's back while saying "Give me your [expletive] hands. I told you how many [expletive] times to drop the gun and get the [expletive] down on your stomach." Id. ¶¶ 30, 32. Forrest re-mained passive throughout. Id. ¶ 31. He told the Officers he was within his rights in his own home and had done nothing wrong, and he asked Officer Plesher why he was beating him but Officer Plesher, rather than answering, continued to punch and kick him. Id. ¶¶ 33-34.
Forrest was eventually lifted from the floor in handcuffs. Id. ¶ 35. He tried to explain that the Officers had the wrong house, but the Officers did not check any other homes in the area, nor did they check on Angela or Faye. Id. ¶¶ 36-37. When Forrest asked why he was being arrested, the Officers replied, "You did not obey the command." Id. ¶ 39. Because of his injuries, Forrest was taken to be treated at Broward Health Coral Springs, and he was then remanded to the custody of the Broward County Sheriff's Office. Id. ¶ 43. Forrest was admitted into the Broward Main Jail and charged with a violation of Fla. Stat. § 843.02 (resisting an officer—obstruction without violence) by the Broward County Sheriff's Office. Id. ¶ 44. He continued to experience pain as a result of the injuries inflicted by Officer Plesher but he was never provided with pain medication. Id. ¶¶ 45, 48. He was forced to endure booking and processing, arraignment, and imprisonment. Id. ¶ 46. He was forced to seek bail and retain counsel, and all charges against him were eventu-ally dropped. Id. ¶¶ 47, 49-50.
Forrest filed this action on September 13, 2016, and he brings the following claims: false arrest and/or false imprisonment in violation of the Fourth Amendment to the U.S. Constitution and under 42 U.S.C. § 1983 against Officer Jones (Count I), Officer Plesher (Count II), and Chief Pustizzi (Count III);
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face,'" meaning that it must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true, "conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be supported by factual allegations." Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). "[T]he pleadings are construed broadly," Levine v. World Fin. Network Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the allega-tions in the complaint are viewed in the light most favorable to the plaintiff, Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). The question is not whether the claimant "will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer, 562 U.S. 521, 530 (2011).
Officer Jones and Officer Plesher have moved to dismiss all federal claims against them on the basis of qualified immunity. "Because qualified immunity is a defense not only from lia-bility, but also from suit, it is important for a court to ascertain the validity of a qualified immunity defense as early in the lawsuit as possible." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citation and internal quotation marks omitted).
"Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right." Stephens v. DeGiovanni, 852 F.3d 1298, 1314 (11th Cir. 2017) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008)). An official who asserts an entitlement to qualified immunity must first establish that he or she was acting within the scope of his or her discretionary authority when the allegedly wrongful act occurred. Carter v. Butts County, 821 F.3d 1310, 1319 (11th Cir. 2016); see also Moore v. Pederson, 806 F.3d 1036, 1042 (11th Cir. 2015) ("[T]he term `discretionary authority' include[s] all actions of a governmental official that (1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority." (citation and internal quotation marks omitted)). It is not disputed that Officers Jones and Plesher were both acting within their discretionary authority at the time of Forrest's arrest.
With discretionary authority established, "the burden shifts to the plaintiff to demonstrate that qualified immunity is inappropriate." Id. To make that determination, the Court undergoes a two-pronged inquiry. First, the Court asks "whether the facts, [t]aken in the light most favorable to the party asserting the injury, . . . show [that] the officer's conduct violated a [federal] right." Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015) (first and third alterations in original) (quoting Tolan v. Cotton, 572 U.S. ___, ____, 134 S.Ct. 1861, 1865 (2014) (per curiam)). Second, the Court asks "whether the right in question was `clearly established' at the time of the viola-tion." Id. (quoting Tolan, 135 S. Ct. at 1866). "`[C]learly established law' should not be defined `at a high level of generality,'" White v. Pauly, 580 U.S. ___, ____, 137 S.Ct. 548, 552 (2017) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)), and "must be `particularized' to the facts of the case," id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. An arrest is a seizure of the person, and courts assess the reasonableness of an arrest by determining the presence or absence of probable cause for the arrest. Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). Probable cause to arrest exists if "the facts and circumstances within the officer's knowledge, of which he has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004) (citations and internal quotation marks omitted). That said, "[e]ven if an officer has effected an arrest without probable cause (and without a warrant), he will still be entitled to qualified im-munity if the arrest was supported by
Officers Jones and Plesher arrested Forrest for a violation of Fla. Stat. § 843.02—Resisting officer without violence to his or her person. The statute provides, in relevant part: "Whoever shall resist, obstruct, or oppose any officer . . . 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 . . . ." Fla. Stat. § 843.02. The elements of the crime of resisting an officer without violence are: "(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State, 24 So.3d 1181, 1186 (Fla. 2009). This statute "is intended to apply when a person willfully interferes with an officer's lawful activities," although inaction can also constitute the requisite interference. J.M. v. State, 960 So.2d 813, 816 (Fla. 3d DCA 2007); see also C.E.L. v. State, 995 So.2d 558, 563 (Fla. 2d DCA 2008) (holding broadly that "a knowing defiance of a lawful police order" is within the scope of section 843.02), aff'd, 24 So.3d 1181. Refusal to comply with an order to surrender a firearm can give rise to a violation of this statute. E.g., Light v. State, 796 So.2d 610, 613 (Fla. 2d DCA 2001).
Based on the facts alleged in the Complaint, the Officers went to Forrest's home because of a potential domestic violence incident in the area around Forrest's home. Compl. ¶ 20. The Officers were dressed in police uniforms and informed Forrest as to their investigation and that a woman had been heard crying out for help. Id. ¶¶ 18, 20. They were told by Forrest that there were two women in the house. Id. ¶ 22. The Officers sought confirmation that both women were not victims of domestic violence. Id. When Forrest turned away from them to call the women downstairs, the Officers learned, for the first time, that Forrest had been holding a gun behind his back. Id. ¶ 26. The Officers then demanded that Forrest drop the gun, id. ¶ 27, which the Court finds is an objec-tively reasonable command, given the circumstances and potential for danger. In making this command, the Officers were engaged in the execution of a legal duty. Despite this lawful command, Forrest did not immediately surrender the gun. Rather, he turned to put the gun on the stairs.
Forrest's reliance on Petithomme v. County of Miami-Dade, 511 F. App'x 966 (11th Cir. 2013) (per curiam), a nonprecedential Eleventh Circuit decision, is misplaced. There, police officers, during a valid investigatory stop, demanded the plaintiff produce the identification for her vehicle. The plaintiff alleged that she asked the officers if she could go into her home to retrieve the iden-tification. The court found that the officers did not have arguable probable cause to arrest the plain-tiff for resisting an officer without violence because the allegations indicated that the plaintiff did not refuse to provide the identification, but instead attempted to comply with the officers' request. See id. at 971 ("[A] reasonable officer could not have concluded that [the p]laintiff was acting to or was attempting to `resist, obstruct or oppose' the [o]fficers from viewing her identification merely because, while in the process of searching, she could not locate the identification for the vehicle as quickly as the [o]fficers would have liked.").
Integral to the court's conclusion in Petithomme was that the plaintiff did everything in her power to comply with the officers' request as soon as it was made. The plaintiff was sitting in her car when the investigatory stop began. Because she believed her identification was inside her home, she asked to go inside to search for it. Forrest, by contrast, had the ability to immediately surrender his gun when Officer Jones and Officer Plesher demanded he do so by simply dropping it or plac-ing it on the floor.
The Court now turns to Officer Plesher's argument that he is entitled to qualified immunity on Forrest's excessive force claim against him. As the Eleventh Circuit recently explained:
Stephens, 852 F.3d at 1318, 1320 (citations altered).
While "the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it," Graham v. Connor, 490 U.S. 386, 396 (1989), "gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force," Hadley, 526 F.3d at 1330. The Eleventh Circuit has "repeatedly ruled that a police officer violates the Fourth Amendment, and is denied qualified immunity, if he or she uses gratuitous and exces-sive force against a suspect who is under control, not resisting, and not obeying commands." Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014) (citing Priester v. City of Rivera Beach, 208 F.3d 919, 927 (11th Cir. 2000); Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000); Lee, 284 F.3d at 1198). In Saunders, after the plaintiff was handcuffed, he was held down against the hot pavement on his stomach for a long period of time, even though he was not resisting, posing a threat, or attempting to flee. He told the agents that he was getting burned and held his face up off the pavement to prevent the burn to his face. One of the agents slammed the plaintiff's face onto the pavement. The district court, in dismissing the plaintiff's Section 1983 claims on quali-fied immunity grounds, reasoned that because the plaintiff had lifted his head off of the pavement, a reasonable officer in the agents' position could have believed that the use of force to return his head to the pavement was lawful on the basis that the plaintiff was refusing to cooperate or resist-ing arrest when he lifted his head from the pavement. The Eleventh Circuit reversed, finding that the force used by the officers against the plaintiff was gratuitous. Saunders, 766 F.3d at 1266.
Accepting Forrest's allegations as true, Forrest did not resist the Officers and obeyed the Officers' commands. Yet Officer Plesher punched Forrest in the face, repeatedly punched him in the head, kicked him in the back, and placed his feet in the center of his back—all while Forrest told the Officers he was in his own home and had done nothing wrong and asked Officer Plesher why he was beating him. Forrest alleges that he sustained a broken nose, a concussion, headaches, lacerations, and scarring to his shoulder as a result of Officer Plesher's conduct. Compl. ¶ 51; see also Stephens, 852 F.3d at 1325 ("The nature and extent of physical injuries sustained by a plaintiff are relevant in determining whether the amount and type of force used by the arresting officer were excessive." (emphasis omitted)). The right of a nonresistant, obedient plaintiff who is under control to be free from excessive force was clearly established by, at the very latest, the date of the ruling in Saunders (September 8, 2014), nearly a year and a half before the incident in this case. While it
Officer Jones and Officer Plesher both move to dismiss Forrest's state tort claims against them on the ground that they are entitled to individual statutory immunity. Florida's sovereign immunity statute shields police officers from personal liability in tort for injuries or damages they cause while acting within the scope of their employment, provided the officer does not "act in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property." Fla. Stat. § 768.28(9)(a). Thus, to pierce the statutory immunity defense, a plaintiff "must make a good faith allegation in the complaint that the public official either acted outside the scope of his employment or in bad faith." Brown v. McKinnon, 964 So.2d 173, 175 (Fla. 3d DCA 2007).
To establish bad faith, the plaintiff must allege facts demonstrating that the officer acted with "ill will, hatred, spite, [or] an evil intent." Reed v. State, 837 So.2d 366, 369 (Fla. 2002) (citation omitted). To establish willful and wanton conduct, the plaintiff must allege facts that the officer "knew, or reasonably should have known. . ., that his [or her] conduct would naturally or probably result in injury and, with such knowledge, disregarded the foreseeable injurious conse-quences." Gregory v. Miami-Dade County, 86 F.Supp.3d 1340, 1343 (S.D. Fla. 2015) (citation omitted). Facts alleging the violation of constitutional rights by a police officer do not, on their own, demonstrate bad faith, malicious purpose, or wanton and willful conduct. See Moore v. Seminole County, No. 13-0224, 2014 WL 4278744, at *6 (M.D. Fla. Aug. 29, 2014), aff'd sub nom. Moore v. Pederson, 806 F.3d 1036 (11th Cir. 2015), cert. denied, 136 S.Ct. 2014 (2016).
In the Complaint's allegations as to the battery claim against Officer Plesher, Forrest alleges that "[a]t all times relevant herein, [Officer] Plesher acted within the scope of [his] employment with [the Police Department]." Compl. ¶ 111. In his opposition brief, however, he concedes (pre-sumably in an effort to circumvent statutory immunity) that "the allegation within the cause of action for battery that Officer Plesher's actions were within the scope of his employment appears to be at odds with s. 768.28(9)" and requests leave to amend his complaint to remove that allega-tion. Pl.'s Jones/Plesher Opp'n at 13. Such an amendment would be futile, however, because the Florida Supreme Court has found that an officer who uses excessive force during the course of an arrest is acting within the scope of his or her employment as a law enforcement officer. See McGhee v. Volusia County, 679 So.2d 729 (Fla. 1996). Therefore, Forrest's battery claim against Officer Plesher survives only if he plausibly alleged facts that demonstrate bad faith, malicious purpose, or wanton and willful conduct.
He has done so. Viewing the allegations in the light most favorable to Forrest, the Court can reasonably infer that Officer Plesher's actions in beating Forrest were done in a manner exhib-iting wanton and willful disregard of Forrest's rights and safety, given that Forrest posed no imme-diate threat or offered any resistance to either Officer's commands (other than not immediately surrendering his firearm). Officer Plesher is not entitled to statutory immunity on Forrest's battery claim.
As a result, the Court must analyze the substance of Forrest's allegations. Given that "the elements and defenses of a battery claim against a law enforcement officer under Florida law are the same as those of an excessive force claim under the Fourth Amendment," DaSilva v. Lamberti, No. 08-62106, 2010 WL 680925, at *1 (S.D. Fla. Feb. 24, 2010), the Court's conclusion on the federal excessive force claim, supra, also leads the Court to conclude that Forrest has plausibly stated a claim for state law battery against Officer Plesher. Accordingly, Officer Plesher's motion to dismiss the battery claim is denied.
To prevail at this stage on his intentional infliction of emotional distress claims, Forrest must sufficiently allege facts to plausibly show (1) each Officer's conduct was intentional or reck-less, that is, he or she intended his or her behavior when he or she knew or should have known that emotional distress would likely result; (2) each Officer's conduct was extreme and outrageous; (3) each Officer's conduct caused emotional distress to him; and (4) his emotional distress was severe. Stewart v. Walker, 5 So.3d 746, 749 (Fla. 4th DCA 2009). If Forrest can state a substantive claim against the Officers, he can also withstand the Officers' statutory immunity challenge, as Florida courts have long held that the "reckless conduct" element of an intentional infliction of emotional distress claim "would at least constitute willful and wanton conduct" under section 768.28(9)(a). Williams v. City of Minneola, 619 So.2d 983, 986 (Fla. 5th DCA 1993).
To qualify as "extreme and outrageous," a defendant's conduct must have "been so outra-geous 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." Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985). "The standard for outrageous conduct is particu-larly high in Florida." Clemente v. Horne, 707 So.2d 865, 867 (Fla. 3d DCA 1998) (citations and internal quotation marks omitted). "It is not enough that the intent is tortious or criminal; it is not enough that the defendant intended to inflict emotional distress; and it is not enough if the conduct was characterized by malice or aggravation which would entitle the plaintiff to punitive damages for another tort." Id. Whether allegations rise to the required level of outrageous conduct is a ques-tion of law to be determined by the Court. Baker v. Fla. Nat'l Bank, 559 So.2d 284, 287 (Fla. 4th DCA 1990).
"In cases where Florida courts have permitted a plaintiff to move forward with an IIED claim against police officers, they have involved egregious behavior outside of an officer's discre-tionary authority." Sheffield v. City of Sarasota, No. 15-0319, 2015 WL 1346421, at *4 (M.D. Fla. Mar. 24, 2015) (citing Tillman v. Orange County, 519 F. App'x 632 (11th Cir. 2013) (per curiam) (holding that a plaintiff stated a claim for intentional infliction of emotional distress against officers who allegedly falsified charging documents to convict the plaintiff of a nonexistent crime); Williams v. City of Minneola, 575 So.2d 683 (Fla. 5th DCA 1991) (upholding a claim where police officers displayed grotesque photographs and videotape of plaintiff's family member's autopsy to non-police officers, allegedly for entertainment purposes)). Other courts have found that a plaintiff states a claim for intentional infliction of emotional distress where a police officer uses gratuitous force against a citizen who complies with the officer's commands. See Holloway v. City of Orlando, No. 15-0129, 2016 WL 4369958, at *8 (M.D. Fla. Aug. 16, 2016); Williams v. City of Daytona Beach, No. 04-1879, 2005 WL 1421293, at *9-10 (M.D. Fla. June 16, 2005).
Because the Court has found that the Officers had arguable probable cause to arrest Forrest for resisting an officer without violence, the Complaint reveals no "egregious behavior outside of an officer's discretionary authority" by Officer Jones.
However, Given Forrest's allegations that Officer Plesher continually beat him despite his lack of resistance, the Court finds it plausible that Officer Plesher's conduct
Four of the Complaint's ten claims are brought against Chief Pustizzi as Officer Jones and Officer Plesher's supervisor: federal claims for false arrest and excessive force, and state claims for battery and negligent training and supervision. The Court addresses Chief Pustizzi's federal and state law arguments in turn.
"[S]upervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability." Keith v. DeKalb County, 749 F.3d 1034, 1048 (11th Cir. 2014). Instead, such liability "may be shown by either the super-visor's personal participation in the acts that comprise the constitutional violation or the existence of a causal connection linking the supervisor's actions with the violation." Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016). Personal participation is clearly not at issue here, as Chief Pustizzi did not inflict the alleged injuries himself. See Hewett v. Jarrard, 786 F.2d 1080, 1087 (11th Cir. 1986). "A causal connection can be established `when facts 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.'" Smith, 834 F.3d at 1298 (quoting Mercado v. City of Orlando, 407 F.3d 1152, 1158 (11th Cir. 2005)). Alternatively, this connection can be estab-lished "when the history of widespread abuse puts the reasonable supervisor on notice of the need to correct the alleged deprivation, and he fails to do so," or "when a supervisor's custom or policy . . . result[s] in deliberate indifference to constitutional rights." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (citations and internal quotations marks omitted). Regardless of the methods a plaintiff uses to establish the causal connection, the standard to establish the connection "is quite rigorous." Smith, 834 F.3d at 1298.
The Complaint's allegations in support of a causal connection as to the federal claims are as follows:
Compl. ¶¶ 80-81, 98, 100. These legal conclusions and other conclusory assertions are precisely the types of allegations that this Court has been directed to disregard under Twombly and Iqbal. As Chief Pustizzi correctly contends, the only facts Forrest alleges in the Complaint are facts relating to his arrest. He alleges no facts which could plausibly demonstrate a causal connection between Chief Pustizzi's actions and the Officers' actions. Forrest's conclusory assertions that Chief Pustizzi implemented a policy, custom, or practice of permitting false arrests or uses of excessive force do not suffice to plausibly show such a causal connection exists. Therefore, Chief Pustizzi's motion to dismiss the federal claims is granted.
As to the state law claims for negligent training and supervision and for battery, Chief Pustizzi is correct that no "official capacity" claim against him as a governmental
In making this argument, Forrest misunderstands the Police Department's capacity for suit. "Sheriff's departments and police departments are not usually considered legal entities subject to suit, but capacity to sue or be sued shall be determined by the law of the state in which the district court is held." Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992) (citations and internal quotation marks omitted). In Florida, while county sheriff's offices can be subject to suit, see generally, e.g., Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313 (11th Cir. 2015), "[w]here a [city] police department is an integral part of the city government as the vehicle through which the city government fulfills its policing functions, it is not an entity subject to suit," Fla. City Police Dep't v. Corcoran, 661 So.2d 409, 410 (Fla. 3d DCA 1995) (quoting Eddy v. City of Miami, 715 F.Supp. 1553, 1556 (S.D. Fla. 1989)); see also Guzman v. City of Hialeah, No. 15-23985, 2016 WL 3763055, at *3 (S.D. Fla. July 14, 2016) ("[T]he Court agrees that the City of Hialeah Police Department is not capable of being sued . . . .").
Forrest brings these claims against Chief Pustizzi in his official capacity as the head of the City of Coral Springs Police Department. See Compl. ¶ 105 ("Anthony Pustizzi, acting in his official capacity as Police Chief of the City of Coral Springs Police Department, had complete control and authority over all officers in the [Police Department]."); id. ¶ 120 ("Chief Pustizzi, acting in his official capacity as Chief of Police for the City of Coral Springs Police Department, is vicariously liable for the torts committed by agents and employees acting within the scope of their employment pursuant to Florida Statutes § 768.28."). But the City of Coral Springs Police Department is not an entity subject to suit under Florida law, so Chief Pustizzi is similarly not subject to suit in his official capacity as the "head" of an entity that is not itself subject to suit. The proper defendant for these claims would be the City of Coral Springs itself. Chief Pustizzi, as the Chief of Police, is not the "head" of the City of Coral Springs, so he is an improper official capacity defendant for claims that should have been brought against the City. As a result, the state law claims against Chief Pustizzi must be dismissed.
Based on the foregoing, it is
