Raftopoulos v. City of Palm Bay

JOHN RAFTOPOULOS, Plaintiff, v. THE CITY OF PALM BAY, et al.,, Defendants.

Case No. 6:15-cv-1063-Orl-37KRS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

October 11, 2017

ORDER

This case is before the Court on Defendants Steve Mimbs and John Doe Hughes' Motion to Dismiss the Third Amended Complaint (Doc. 48), Defendants Evans, Richards. And Muldoon's Motion to Dismiss the Third Amended Complaint (Doc. 49), and Plaintiff's Responses in Opposition (Doc. Nos. 53, 54). As discussed hereinafter, Defendants' Motions to Dismiss are granted in part and denied in part.

I. FACTUAL BACKGROUND¹

Plaintiff, a prisoner proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983. (Doc. 47.) Plaintiff is suing John Doe Hughes, Walter Evans, Mark Richards, Steve Mimbs, Douglas F. Muldoon, John Doe Shedrick,² and ten unidentified officers for actions occurring on July 7, 2012, during his arrest. (Id. at 5-7.) According to Plaintiff, DefendantsEvans, Hughes, and ten unidentified officers placed him on the ground. (Id. at 7.) After Plaintiff was subdued and while the ten unidentified officers were "mounted" on his back, Defendant Hughes, a K-9 handler, brought a K-9 to Plaintiff's face and commanded it to attack Plaintiff. (Id.). An unidentified officer told Defendant Hughes that an emergency response unit was in route and to call off the dog before it arrived. (Id.) The unidentified officers failed to protect Plaintiff while he was mauled by the K-9. (Id.). Defendant Hughes ordered the dog to cease its attack when the emergency response unit arrived. (Id.) Plaintiff suffered an injury to his left arm from the dog attack. (Id.).

While Plaintiff was being attacked by the K-9, Defendant Richards repeatedly deployed his Taser on Plaintiff's back without provocation. (Id.) The force lasted for approximately eight minutes. (Id.) The unidentified officers failed to protect Plaintiff from Defendant Richards' use of the Taser. (Id.) Plaintiff suffers from a heart condition caused by the Taser. (Id.) After the incident, Plaintiff sought to preserve the videotape of the incident. (Id.) Defendants Mimbs, Muldoon, and Shedrick destroyed the videotape to cover-up the other Defendants' conduct. (Id. at 7-8).

Plaintiff asserts Defendants violated his Fourth Amendment rights by allowing a K-9 to attack him and by tasering him. (Id. at 9-10.) Plaintiff further contends that Defendants conspired to violate his Fourth and Fourteenth Amendment rights. (Id.) Finally, Plaintiff maintains Defendants Mimbs and Muldoon violated his Fourteenth Amendment right to due process by destroying the videotape. (Id. at 11-12.)

II. STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the FederalRules of Civil Procedure, courts must accept all factual allegations in the complaint as true and read them in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); see also Christopher v. Harbury, 536 U.S. 403, 406 (2002). A complaint must contain a short and plain statement demonstrating an entitlement to relief, and the statement must "give the defendant 'fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007) (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346 (2005)) (citations omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff must supply enough facts "to state a claim to relief that is plausible on its face," rather than simply "conceivable." Twombly, 550 U.S. at 570. Thus, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . 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 (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Id. (citations omitted). In the case of a pro se action, however, the Court should construe the complaint more liberally than it would pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).

III. ANALYSIS

Defendants assert that the Third Amended Complaint should be dismissed inter alia because it does comply with the pleading requirements of the Federal Rules of Civil Procedure and does not state a claim upon which relief may be granted. Defendantsfurther argue that they are entitled to qualified immunity. The Court will address Defendants' arguments in relation to Plaintiff's claims.

A. Fourth Amendment Excessive Force Claims (Claims One, Two, and Five)

Defendants Hughes, Evans, and Richards contend that Plaintiff has failed to state a claim upon which relief may be granted for violation of the Fourth Amendment. They further argue that they are entitled to qualified immunity.

"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (quotation omitted). To be entitled to qualified immunity, a government official first must demonstrate that "he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir. 1988) (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983)). If the defendant satisfies this burden, then the Court must grant qualified immunity unless the plaintiff can demonstrate first, that the facts viewed in the light most favorable to the plaintiff establish a constitutional violation by the officers; and, second, that it was clearly established at the time of the incident that the actions of the defendant were unconstitutional. See Saucier v. Katz, 533 U.S. 194, 201 (2001); see also McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009). Courts are permitted to exercise discretion in determining which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. See Pearson, 555 U.S. at 236.

"'To assert a Fourth Amendment claim based on the use of excessive force, the plaintiffs must allege (1) that a seizure occurred and (2) that the force used to effect the seizure was unreasonable.'" Burge v. Ferguson, 619 F. Supp. 2d 1225, 1236 (M.D. Fla. 2008) (quoting Troupe v. Sarasota County, Fla., 419 F.3d 1160, 1166 (11th Cir. 2005)). An excessive force claim arising out of an arrest is governed by the objective reasonableness standard of the Fourth Amendment. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). A determination of whether the force was objectively reasonable requires the examination of numerous factors like "'(1) the need for the application of force, (2) the relationship between the need and the amount of force used, (3) the extent of the injury inflicted and, (4) whether the force was applied in good faith or maliciously and sadistically.'" Burg, 619 F. Supp. 2d at 1236-37 (quoting Hadley, 526 F.3d at 1329). The necessity for the use of force depends on factors such as "the severity of the crime, immediate danger to the officer or others, and attempts to resist arrest or evade arrest by flight." Id. at 1237 (citing Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003)). "'[T]he right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.'" Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). "'[Q]ualified immunity applies unless application of the [reasonableness] standard would inevitably lead every reasonable officer . . . to conclude the force was unlawful.'" Id. (quoting Slicker v. Jackson, 215 F.3d 1225, 1232 (11th Cir. 2000)).

Plaintiff alleges Defendants Evans, Hughes, and ten unidentified officers placed him on the ground, and while he was subdued with officers on his back, Defendant Hughes, assisted by Defendant Evans, commanded a K-9 to attack Plaintiff. (Doc. 47 at 7-9). Likewise, Plaintiff asserts Defendant Richards deployed a Taser repeatedly to his back during this time without provocation. (Id.) According to Plaintiff, the use of force lasted for approximately eight minutes. (Id.). Plaintiff suffered physical injuries as a result of the use of force. (Id.) From Plaintiff's allegations, the use of force, both the K-9 and the Taser, occurred after he was subdued. Consequently, the Third Amended Complaint states a claim for the use of excessive force against these Defendants. See, e.g., Hadley, 526 F.3d at 1330 ("Our cases hold that gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force."); Hayden v. Broward Cty., No. 12-62278-CIV, 2014 WL 1877405, at *9 (S.D. Fla. May 9, 2014) ("While it was reasonable to use a certain amount of force to subdue Plaintiff and secure his firearm, . . . punching Plaintiff while he was already on the ground and under control, if true, may constitute a higher degree of force than was necessary to achieve the officers' aims."). Therefore, Defendants are not entitled to qualified immunity at this time. See, e.g., Russe v. Losa-ID. 04159, No. 09-20297CIV, 2009 WL 577758, at *3 (S.D. Fla. Mar. 5, 2009) (concluding the defendants could not establish entitlement to qualified immunity where the plaintiff alleged defendants ordered and encouraged dogs to attack him when he was already subdued on the ground). Accordingly, Plaintiff may proceed on his excessive force claims against Defendants Hughes, Evans, and Richards.

B. Conspiracy Claims (Claims Four and...