Newcome v. Hernando Cnty. Sheriff's Office

1

JAMES R. NEWCOME and UMAMA J. NEWCOME, Plaintiffs, v. HERNANDO COUNTY SHERIFF'S OFFICE, et al., Defendants.

No. 8:21-cv-2171-TPB-TGW

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

August 4, 2023

ORDER DENYING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

TOM BARBER, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the following motions:

“Plaintiff's Motion for Summary Judgment Umaima Newcome” (Doc. 90)

“Plaintiff's Motion for Summary Judgment James Newcome” (Doc. 91)

“Defendant Deputy Sheriff David Martin's Motion for Summary Judgment” (Doc. 92)

“Defendant Deputy Sheriff Troy Hyler's Motion for Summary Judgment” (Doc. 93)

“Motion for Summary Judgment on Behalf of Defendants Deputy Sheriffs Dustin Adkins, Jason Tippin, Brian Schneider and Eric Burburan” (Doc. 94); and

“Motion for Summary Judgment on Behalf of Defendants Deputy Sheriffs Willard Brian Stephens, Seth Pardue, Derik Deso, and Francis Ritchie” (Doc. 95).^[1]

The parties filed responses in opposition (Docs. 111; 112 113; 114; 115; 116; 117; 118; 119; 120; 121; 122; 123; 124 125) and replies (Docs. 127; 128; 129; 130; 131; 132). The Court held a hearing to address this matter on May 14, 2023. (Doc. 139). After reviewing the motion, responses, replies, court file, and the record, the Court finds as follows:

Background

Plaintiffs James and Umama Newcome bring suit against numerous law enforcement officers, in their individual capacities, following a SWAT-team raid on their home conducted by deputies from the Hernando County Sheriff's Office.

On September 14, 2018, Joseph Justen, a delivery driver for a local pharmacy, was making a delivery to Plaintiffs' neighbor. Mr. Justen's brother, Joshua Swisher, accompanied him on this delivery. While Mr. Swisher waited for Mr. Justen to return, Mr. Newcome put a black handgun with a silver port in his pocket and approached the vehicle, which Mr. Newcome believed to be suspicious. Mr. Newcome asked Mr. Swisher to explain what he was doing and to identify himself. According to Mr. Swisher, Mr. Newcome pulled the handgun out of his right pocket, showed it to Mr. Swisher, and held it at his side pointing it towards the ground. Mr. Newcome told Mr. Swisher that he had a concealed weapons permit. When Mr. Swisher did not respond, Mr. Newcome again told Mr. Swisher about his concealed weapons permit and explained he was there to protect his neighbors. Mr. Newcome again asked Mr. Swisher to explain what he was doing and to identify himself.

Next, without saying a word, Mr. Newcome reached in through the window of the vehicle and grabbed Mr. Swisher's Samsung Galaxy S8 cell phone (valued at over $800) that was on Mr. Swisher's lap. Mr. Newcome contends that he believed the cell phone was a gun, and that he needed to disarm Mr. Swisher to protect his neighbor. After taking Mr. Swisher's cell phone, Mr. Newcome put his own handgun back in his pocket. He then walked to the front door and handed his neighbor the cell phone he had just taken from Mr. Swisher and asked the neighbor to give the cell phone to Mr. Justen. Mr. Newcome walked back to Mr. Swisher, who was still in the vehicle, and apologized, and again told him that he had a concealed weapons permit before returning to his home. The neighbor gave the phone to Mr. Justen, and then both he and Mr. Justen went to speak with Mr. Swisher to find out what had happened. After Mr. Swisher explained his version of what had transpired, the neighbor called 911.

Subsequently, Deputy Martin and Deputy Bruce Nichols of the Hernando County Sheriff's Office responded to the scene to investigate whether Mr. Newcome had committed a crime. Based on its investigation, law enforcement would eventually develop probable cause, or at least arguable probable cause, to believe that Mr. Newcome committed an armed robbery of a conveyance.

According to the law enforcement officers, Mr. Newcome was not cooperative, telling them that they were not allowed on his property and refusing to speak with them. Plaintiffs themselves then began calling 911 with various complaints about the law enforcement presence, among other things. Over the course of the night, Mr. Newcome called 911 at least 10 times, and both Plaintiffs spoke with law enforcement at various times, yet Plaintiffs refused to come out of their residence and speak with officers that evening.

At some point during an ever deteriorating situation the Crisis Response Team and the SWAT Team responded to the scene and took over responsibility. They handled further negotiation attempts to get Plaintiffs to come out of the residence. At around 1:07 a.m., the ten individual Defendants - deputies employed by the Hernando County Sheriffs Office - participated in various ways in a home seizure, which included launching 10 shells containing nonlethal chemical agents into Plaintiffs' home, shattering three windows. The deputies did not have an arrest warrant, but they claim that they had probable cause and exigent circumstances to justify a warrantless home seizure.

Mr. Newcome came out of the residence first, showing his hands, walking forward, and then lying on the ground. He was handcuffed by a deputy outside the house. Mrs. Newcome then came out of the residence with hands raised, holding a cordless phone in her right hand. She did not comply with orders to lie on the ground, and she was taken down by a deputy and handcuffed outside the house.

Deputy Martin charged Mr. Newcome with armed burglary of a conveyance, resisting an officer without violence, and misuse of 911 calls. He charged Mrs. Newcome with resisting an officer without violence for failing to comply with law enforcement orders to exit the residence. After Plaintiffs were arrested, a search warrant was issued for their home - in fact, two separate search warrants were applied for, issued, and executed.

Criminal proceedings were initiated against both Mr. and Mrs. Newcome. In a letter dated January 8, 2019, Mrs. Newcome's criminal defense attorney advised her that the state attorney offered to drop or abandon the charge against her if she completed 30 hours of community service. Mrs. Newcome followed this advice and completed the community service hours, and the charge was dropped. Mr. Newcome entered into and completed a pretrial intervention (“PTI”) program.

Plaintiffs subsequently filed suit in this court, alleging various violations of their rights. (Doc. 1). Plaintiffs have sued the officers in their individual capacities. Due to their pro se status, the Court granted numerous opportunities for Plaintiffs to amend their complaint to correct deficiencies. (Docs. 46; 50; 59; 60). The operative complaint is the second amended complaint filed on June 30, 2022, although the Court dismissed two of those claims with prejudice and without leave to amend. (Docs. 60; 65). As such, the pending claims are: Home Seizure by Authority Against All Officers by Mrs. Newcome (Count 1); Home Seizure by Force Against All Officers by Mrs. Newcome (Count 2); Excessive Use of Force (Teargassing) Against All Officers by Mrs. Newcome (Count 3); Excessive Use of Force (Physical Restraining) Against Deputy Tory Hyler by Mrs. Newcome (Count 4); False Arrest/Imprisonment Against Deputy David Martin by Mrs. Newcome (Count 5); Malicious Prosecution Against Deputy David Martin by Mrs. Newcome (Count 6); Home Seizure by Authority Against All Officers by Mr. Newcome (Count 7); Home Seizure by Force Against All Officers by Mr. Newcome (Count 8); and Excessive Use of Force (Teargassing) Against All Officers by Mr. Newcome (Count 9). It should be noted that the Court has held at least two different hearings, in person, and emphasized to Plaintiffs that cases of this nature are difficult even for trained lawyers. Although the Court strongly urged them to retain counsel, Plaintiffs have elected to proceed pro se.

Legal Standard

Summary judgment is appropriate “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 properly supported motion for summary judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 249 (1986). Only the existence of a genuine issue of material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing the existence of genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995). If there is a conflict between the parties' allegations or evidence, the nonmoving party's evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party's favor. Shotz v. City of Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).

The standard for cross-motions for summary judgment is not different from the standard applied when only one party moves for summary judgment. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court must consider each motion separately, resolving all reasonable inferences against the party whose motion is under consideration. Id. “Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart...