Mercado v. City of Orlando

Page 1266

323 F.Supp.2d 1266

Ramon A. MERCADO, Plaintiff, v. The CITY OF ORLANDO, a municipal corporation and political subdivision of the State of Florida, Officer Ramfis Padilla, and, Officer Christina Rouse, individually and as agents and employees of The City of Orlando and Orlando Police Department, Defendants.

No. 6:03-cv-227-ORL-18KRS.

United States District Court, M.D. Florida, Orlando Division.

June 24, 2004.

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John W. Dill, Attorneys Trial Group, John W. Dill, The Allen Firm, P.A., Orlando, FL, for Plaintiff.

Bruce R. Bogan, Hilyard, Bogan, Palmer & Lockeby, P.A., Orlando, FL, for Defendants.

ORDER

G. KENDALL SHARP, Senior District Judge.

THIS CAUSE comes before the Court upon Defendants' motion for reconsideration (Doc. 52, filed April 21, 2004), to which Plaintiff has responded in opposition (Doc. 54, filed May 6, 2004). After considering the arguments set forth by the parties, the Court hereby grants Defendants' motion and issues the following amended order.

I. BACKGROUND

On the morning of June 29, 2002, Plaintiff's wife, Ibis Mercado ("Ms. Mercado"), told Plaintiff that she was going to leave him. Plaintiff became upset and told her that he would kill himself if she left him. He wrapped a telephone line around his neck and wrapped the other end around a ceiling vent. Plaintiff stated in his deposition that he planned to use the telephone line to hang himself. He also used a kitchen knife to make multiple cuts across his arm. Plaintiff then held the knife with both hands against his chest and pointed it at his heart. Ms. Mercado took the phone and ran from the apartment. Plaintiff locked the door behind her.

Ms. Mercado called the Orlando Police Department, and Defendant Officer Ramfis Padilla ("Officer Padilla"), Defendant Officer Christina Rouse ("Officer Rouse"), and other officers were dispatched to investigate. Ms. Mercado told the officers that Plaintiff was armed with a knife and was threatening to commit suicide. The officers remained outside the apartment for twenty to twenty-five minutes trying, but failing, to make verbal contact with Plaintiff. Ms. Mercado gave the officers a key and they entered the apartment. They found Plaintiff sitting on the kitchen floor and crying, holding the knife with both hands and pointing it to his heart. The telephone line was still wrapped around his neck, but no longer attached to the ceiling.

Plaintiff alleges that an officer ordered him two times to put the knife down. Officer Padilla testified in his deposition that he repeatedly ordered Plaintiff to put the knife down, in both English and Spanish. Plaintiff did not put the knife down, although he made no threatening movements toward the officers. Officer Rouse ordered Officer Padilla to use the "Sage SL6 Launcher" ("Sage launcher") and hit Plaintiff two times. According to Defendants' expert, Major Steven Ijames, the Sage launcher fires a polyurethane (soft plastic) baton that is 1.5 inches wide and travels much slower than a bullet and delivers less impact.¹ The Sage launcher is primarily used to protect persons from self-inflicted injury, when a "night stick" would be unsafe or impractical to use. It is not designed to penetrate the body and generally causes only minor bruises or abrasions. (Ijames Aff., ¶¶ 5-7.)

Standing approximately six feet away from Plaintiff, Officer Padilla alleges that he aimed for Plaintiff's shoulder. Officer Padilla fired twice and hit Plaintiff once in the head. The shot fractured Plaintiff's skull and caused injuries to his brain. Plaintiff takes medication to prevent seizures and suffers from headaches, loss of memory, loss of balance, insomnia, dizziness, stuttering, loss of sensation and movement, loss of strength, and sensitivity to light. The Social Security Administration classified Plaintiff as disabled and he no longer works.

II. DISCUSSION

A. Summary Judgment

A court will grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see, e.g., Stachel v. City of Cape Canaveral, 51 F.Supp.2d 1326, 1329 (M.D.Fla.1999). Material facts are those that may affect the outcome of the case under the applicable substantive law. Disputed issues of material fact preclude the entry of summary judgment, but factual disputes that are irrelevant or unnecessary do not. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the moving party has satisfied its burden, the Court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Matsushita Elec. Ind. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party may rely solely on his pleadings to satisfy its burden. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548.

When the non-moving party has the burden of proof at trial, the moving party may meet its initial burden in one of two ways. It may support the motion by directing the Court's attention to affirmative evidence "that negates an essential element of the non-moving party's claim." Celotex, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting).² Alternatively, the moving party may point out to the court the "absence of evidence to support the non-moving party's case." Id. at 324, 106 S.Ct. 2548; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir.1993).

If the moving party shows the absence of a genuine material fact that is triable, in either of these ways, and that it is entitled to judgment, the burden shifts to the non-moving party to make a sufficient showing to establish the essential elements of her case with respect to which she has the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In contrast to the moving party, the non-moving party may not rest solely on her pleadings to satisfy this burden and escape summary judgment. Id. at 324, 106 S.Ct. 2548. It must designate evidence within depositions, answers to interrogatories or admissions that indicates that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. If the evidence offered by the non-moving party is merely colorable, or is not significantly probative, the Court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

B. 42 U.S.C. § 1983

Although Section 1983 is not a source of substantive rights, it provides a conduit by which aggrieved parties may recover against those who have violated their rights under federal law. See 42 U.S.C. § 1983; see also Skinner v. City of Miami, Fla., 62 F.3d 344, 347 (11th Cir.1995). To recover under Section 1983, Plaintiff must prove that Defendants acted under color of state law to deprive the Plaintiff of a right conferred by federal law. See White v. Scrivner Corp., 594 F.2d 140, 141 (5th Cir.1979).³

In addition to the Fourth Amendment claims discussed below, Plaintiff also presented claims under the Fifth Amendment, Sixth Amendment, Eighth Amendment, and Fourteenth Amendment. Defendants failed to move to dismiss these claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. By neglecting any mention of these claims in their motion for summary judgment, Defendants failed to meet their burden at summary judgment, which is discussed in the previous section. Defendants also failed to abide by Local Rule 3.01(a), which requires a "brief or legal memorandum with citation of legal authorities in support of the relief requested." Defendants now argue in their motion for reconsideration, properly supported with legal authority, that these claims are meritless. Defendants are, of course, correct. See Riley v. Camp, 130 F.3d 958, 972 (11th Cir.1997) (no Fifth Amendment claim absent federal action); Purvis v. City of Orlando, 273 F.Supp.2d 1321, 1325 (M.D.Fla.2003) (Sixth Amendment not implicated until adversarial judicial proceedings have been initiated); id. (Eighth Amendment protects only those convicted of a crime); Graham, 490 U.S. at 396, 109 S.Ct. 1865 (Fourth Amendment, rather than Fourteenth Amendment substantive due process approach, should be used to evaluate excessive force cases). The Court accordingly grants summary judgment with respect to Plaintiff's claims under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

1. Officer Padilla and Officer Rouse: Individual Capacity Claims

Plaintiff alleges that by shooting him in the head with the Sage launcher, Officer Padilla and Officer Rouse violated his Fourth Amendment right to be free from the use of excessive force.⁴ Officer Padilla and Officer Rouse assert the defense of qualified immunity. The Eleventh Circuit has established a two-part analysis to determine whether qualified immunity is available. Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir.1995). First, the defendant must prove that he was acting within the scope of his discretionary authority when the alleged wrongful action took place. Id. (citing Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983)). There is no dispute in the instant case that the challenged act was within the discretionary authority of Officer Padilla and Officer Rouse. The burden then shifts to the plaintiff to show that the defendant violated the plaintiff's constitutional rights and that these rights were clearly established. Id.

Claims of excessive force are analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct....