Bing v. Landreville

VERNELL CHARLES BING, SR., as father and personal representative of the Estate of his son,Vernell Charles Bing, Jr., deceased, Plaintiff, v. TYLER L. LANDREVILLE, Deputy Sheriff Jacksonville Sheriff's Office,in his individual capacity, et al., Defendants.

Case No. 3:16-cv-1140-J-34JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

March 1, 2018

ORDER

THIS CAUSE is before the Court on the Defendant City of Jacksonville's Motion to Dismiss (Doc. 28, Motion), filed on April 17, 2017.¹ In the Motion, the City of Jacksonville requests that the Court dismiss portions of plaintiff Vernell Charles Bing Sr.'s, Second Amended Complaint, (Doc. 25, SA Complaint), filed April 1, 2017. Vernell Bing, Sr. (Bing, Sr.), who files this action as the Personal Representative of the Estate of Vernell Charles Bing, Jr. (Bing, Jr.), opposes the Motion. See Plaintiff's Response in Opposition to Defendant Williams' Motion to Dismiss (Doc. 36, Response), filed June 7, 2017. Accordingly, this matter is ripe for review.

I. Standard of Review

In ruling on a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while "[s]pecific facts are not necessary[,]" the complaint should "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege "enough facts to state a claim that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal") (internal citation and quotationsomitted). Indeed, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]" which simply "are not entitled to [an] assumption of truth." See Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S. at 570).

II. Background²

This case arises out of an encounter between Bing, Jr., and Officer Tyler L. Landreville (Landreville), during which Landreville shot Bing, Jr., resulting in Bing, Jr.'s, death.

On the early evening of May 22, 2016, Bing, Jr., was driving a red Chevrolet Camaro convertible in Jacksonville, Florida. SA Complaint at ¶ 16. The car had been reported stolen in March of that same year, but there was no indication that Bing, Jr., was the individual who stole the vehicle. Id. At some point, Landreville observed Bing, Jr., driving the Camaro and attempted to stop him. Id. Bing did not stop and a brief pursuit followed, during which Landreville "intentionally rammed his patrol vehicle head-on" into Bing, Jr.'s, vehicle. Id. at ¶ 17. The pursuit covered approximately 3.7 miles and concluded with Landreville again "ramming into the vehicle driven by" Bing, Jr., id., causing Bing, Jr., to crash into the corner of a building. Id.

As a result of the crash, . . . Bing, Jr. was injured and subsequently pulled himself out of the driver's side of the vehicle and into the street. Once . . . Bing, Jr. exited, he was limping away from the vehicle in the middle of thestreet away from . . . Landreville. At this point in time, . . . Landreville drew his service weapon from his holster and began firing at unarmed and defenseless . . . Bing, Jr. At no time was . . . Bing, Jr. ever armed with any type of weapon nor was . . . Bing, Jr. ever a threat to . . . Landreville. Despite these facts, . . . Landreville began firing his service weapon at unarmed and defenseless . . . Bing, Jr. . . . . Bing, Jr., was immediately struck by a bullet from . . . Landreville's service weapon in the left side of his head, critically wounding him as he fell defenseless to the ground completely incapacitated. Reports indicate . . . Landreville fired his service weapon at . . . Bing, Jr. more than once severely and critically wounding him.

Id. at ¶ 18. Bing, Jr., was taken to the hospital, id. at ¶ 19, where staff later informed his family that he "had no brain function and would not recover from his critical head injuries." Id. at ¶ 23. The next day, the family made the difficult decision to withdraw life-support for Bing, Jr., and he died. Id. at ¶ 24.

At the time of the encounter between Bing, Jr., and Landreville, Landreville was "employed as a member of the Jacksonville Sheriff's Office [JSO]" and was also on "reserve status with the United States Army as an active member of the Army Reserves." Id. at ¶ 27. Defendant Sheriff Mike Williams (Williams) was the Sheriff of Jacksonville and in that capacity was responsible for the direction and oversight of the JSO. Id. at ¶ 30.

As alleged in the SA Complaint, in the six years prior to the filing of this action "Jacksonville Sheriff's deputies [had] shot 54 people including 40 black citizens, killing 29." Id. at ¶ 31. Bing, Sr., includes various other statistics regarding the number of citizens shot by police in Jacksonville in a ten year period, and the seemingly small number of sheriff's deputies terminated for their involvement in a shooting. Id. Bing, Sr., further alleges that JSO "hires and employs multiple Sheriff's deputies who have had active and/or reserve military experience either during, before or after employment as a duly sworn law enforcement deputy employed by the [JSO]." Id. at ¶ 32. Landreville,along with at least three other deputy sheriffs are "former military members who [have] been involved in police involved shootings with citizens of Jacksonville." Id. at ¶ 34. Bing, Sr., asserts his belief that the military training these men received served as a "foundation for their decisions, actions and reactions" in police/citizen encounters that resulted in police shootings and citizen deaths. Id. Likewise, Bing, Sr., contends that these officers did not receive any assimilation and re-training to help them transition from serving in a military capacity to serving in a domestic policing capacity. Id. at ¶ 33.

Based on these allegations, Bing, Sr., as the appointed Personal Representative of Bing, Jr.'s, estate, and as the natural parent of Bing, Jr., filed the instant action against Landreville, in his individual capacity, and Williams, in his official capacity as Sheriff of the Consolidated City of Jacksonville. Bing, Sr., asserts five claims in the SA Complaint.³ In Count I, he asserts that Williams instituted a policy and custom permitting officers to use deadly force in violation of the Fourth and Fourteenth Amendments through his failure to instruct, supervise, control and/or discipline his officers. Id. at ¶ 31. In doing so, Bing, Sr., claims that Williams' failure to properly re-train and assimilate deputy sheriffs who "have had active and/or reserve military experience either during, before or after employment as a duly sworn law enforcement deputy employed by the [JSO]," id. at ¶ 32, also created a municipal custom, policy, and practice that "created a heightened increase in police involved shootings of citizens within the Jacksonville community by deputies who have had military training and experience." Id. As a result of Williams' actions, Bing, Sr.,claims that Williams caused his son's death, in violation of the United States Constitution and 42 U.S.C. § 1983. Id. at ¶¶ 37-38. Bing, Sr., also asserts that as a result of Williams' actions, Bing, Sr., "suffered mental anguish, and loss of capacity for the enjoyment of life. The losses are either permanent or continuing, and . . . Bing, [Sr.], will suffer the losses in the future, in violation of Bing, [Sr.'s] civil rights." Id. at ¶ 39.

In Count III, Bing, Sr., asserts a claim for wrongful death pursuant to Florida Statute sections 768.16-21, against Williams in his official capacity. Id. at ¶¶ 46-51. So doing, he seeks relief on behalf of Bing Jr.'s, estate, and himself, as a survivor of Bing, Jr. Id. at ¶¶ 11-12, 44. Finally, in Count IV, Bing, Sr., asserts a claim pursuant to 42 U.S.C. § 1983 of federal municipal liability against the City for Bing, Jr.'s, death.⁴ As relief, Bing, Sr., seeks damages, attorney's fees, post-judgment interest, statutory and discretionary costs, any other relief the Court may deem appropriate, and a jury trial.⁵

III. Arguments of the Parties

In the Motion, the City seeks to dismiss the federal § 1983 claim (Count I) and the Florida statutory wrongful death claim (Count III). As to the § 1983 claim in Count I, the City asserts that Bing, Sr., fails to allege that his son was deprived of a constitutional right, and even if he was, the SA Complaint fails to show that the JSO's customs, policies, or practices were the moving force that caused...