This case arises out of the events surrounding the death of Willie J. Kimbrough, Jr. ("Kimbrough"). Plaintiffs have filed claims under 42 U.S.C. 1983 ("§ 1983") as well as Fla. Stat. § 768.16, et seq. ("Wrongful Death Act"). This matter comes before the Court on a Motion for Summary Judgment (Doc. 360) filed by the City of Cocoa (the "City"), and the Plaintiffs' Response thereto (Doc. 427).
A) The Parties and Relevant Entities
The Plaintiffs, Joanne Kimbrough and Willie J. Kimbrough, Sr., are Kimbrough's parents, and are co-personal representatives of the estate of Kimbrough ("the Estate"). They bring this action on behalf of the survivors of the Estate, including Ashanti Kimbrough, Victoria Fisher Kimbrough, and Di'Andre Michael O'Shone White (the minor surviving children of Kimbrough). The Plaintiffs were residents of Brevard County, Florida.
Officer Terrance Glover ("Glover"), Lt. William Gregory ("Gregory"), Corporal Walter Baker ("Baker"), Officer Michael J. Badarack ("Badarack"), Officer Richard Gregg, II ("Gregg"), and Lt. Anna Cox ("Cox") (collectively "the Officers")*fn1 were police officers, at all times relevant to this action, employed by the Cocoa Police Department ("CPD"). Donald Dobson ("Dobson") was the booking officer at CPD on the evening of November 30, 2002, and early morning of December 1, 2002. Chief Crawford ("Crawford") was the Chief of Police of CPD on November 30 and December 1, 2002.
Late in the evening of November 30, 2002, Kimbrough went to the Shadozz Lounge ("Shadozz") in Cocoa, FL with his cousin, Alivin Adderly ("Adderly"). Kimbrough and Adderly were in the parking lot of Shadozz when Kimbrough left Adderly to walk across the street and talk to a woman. (Adderly Depo. at 65-67). Less than five minutes passed before Adderly heard sirens and turned around to see Glover and Cox approaching Kimbrough from behind.*fn2 (Adderly Depo. at 71-72). Glover yelled "Turn around!" and Kimbrough turned around and gestured with both hands up in the air, as if to indicate "What?". (Adderly Depo. at 65). Badarack, then came up from the side and tackled Kimbrough to the ground, jumped on his back, and then picked him up and threw him on the ground. (Adderly Depo. at 77; Waters Depo at 59).
Glover then came over and began to kick Kimbrough and knee spiked him while he was on the ground. (Waters Depo. at 64-67; Doc. 414-8 at 1). By this time, six to ten patrol cars had descended upon the scene and were parked in a circle around Kimbrough and the Arresting Officers, blocking the view of most bystanders.*fn3 (Adderly Depo. at 75; Waters Depo at 71-72, 81, Gregory Depo. at 13-14). Witnesses heard Kimbrough screaming that he was in pain and begging the Officers to stop beating him. (Waters Depo. at 73, 82; Doc. 414-9 at 6-7). The Officers continued to beat Kimbrough for approximately six minutes, even though he was handcuffed on the ground and not resisting. (Doc. 410 Ex. B; Doc. 414-9 at 4-5). Three officers were seen beating Kimbrough with night sticks and dragging him along the ground. (Doc. 414-11 at 1).*fn4 At least four officers were on top of Kimbrough when Gregory arrived on the scene, and Kimbrough was saying that he could not breathe. (Gregory Depo. at 13-14, 20). Badarack admits to using two knee spikes on Kimbrough. (Badarack Depo. at 59). One witness stated that Kimbrough appeared too weak to comply with the Officers' demands to get up and when he was placed in the patrol car, he fell out, looking limp as if he was dead. (Doc. 414-11). Even after Kimbrough had been pulled up to a standing position, one of the Officers performed another knee spike on him. (Doc. 414-18 at 11- 12). As Kimbrough was being put in the patrol car, Gregory recalls Badarack almost running him over to get to where Kimbrough was, and Badarack admits that Kimbrough was taken to the ground a second time. (Gregory Depo. at 17; Badarack Depo. at 66). Officer Christopher Bradshaw ("Bradshaw"), while putting Kimbrough into a patrol car, noticed that his legs were in shackles and heard Kimbrough say that he needed to catch his breath. (Doc. 414-18 at 14-15). Kimbrough told Bradshaw that he needed help getting his feet into the patrol car. (Doc. 414-18 at 14-15). Bradshaw noticed that Kimbrough had a severely swollen black eye. (Doc. 414-18 at 17).
After the arrest and beating, Kimbrough was brought to CPD for booking. Dobson observed Kimbrough being brought in and placed in a cell, but did not book him. Emergency Medical Technicians ("EMTs") arrived at the station at 23:50 to examine Officer Glover, who was not yet there. EMT Phil Butler ("Butler") looked into Kimbrough's cell and saw him laying on the floor of his cell with his pants around his ankles, calling out for an officer to help him. (Doc. 414-14 at 19-20; Doc. 414-15 at 1, 5-6). Butler smelled an odor of feces coming from Kimbrough's cell. (Doc. 415-15 at 1). Even though EMTs were at the station for over 15 minutes waiting to examine Glover, they were never asked to examine Kimbrough. (Doc. 414-14 at 5, 12, 26) No help was given, even though Kimbrough had a severely swollen black eye, had defecated on himself, had been sprayed in the face with a chemical agent and had mentioned he had asthma. (Doc. 414-18 at 11-12; Doc. 414-18 at 17). Within a few hours of his arrest, Kimbrough was transported to the Brevard County Detention Center ("BCDC") without ever being seen by a medical professional.
On December 4, 2002, Kimbrough bonded out of BCDC, and family members brought him to Cape Canaveral Hospital. He was diagnosed with acute renal failure secondary to rhabdomyolysis,*fn5 and a history of hepatitis and electrolyte abnormalities secondary to rhabdomyolysis. Kimbrough was placed on dialysis but, unfortunately, was pronounced dead at 5:07 p.m. on December 4, 2002.
A party is entitled to summary judgment when the party can show that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir. 1994). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Watson v. Adecco Employment Svc., Inc., 252 F. Supp. 2d 1347, 1352 (M.D. Fla. 2003).
When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the non-moving party bears the burden of proof at trial, the non-moving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986) (internal quotations and citation omitted). Thereafter, summary judgment is mandated against the non-moving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25; Watson, 252 F. Supp. 2d at 1352. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) ("conclusory allegations without specific supporting facts have no probative value").
"Courts must construe the facts and draw all inferences in the light most favorable to the nonmoving party . . . [e]ven though the facts accepted at the summary judgment stage of the proceedings may not be the actual facts of the case." Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006) (internal citations and quotations omitted). The Court is not, however, required to accept all of the non-movant's factual characterizations and legal arguments. Beal, 20 F.3d at 458-59. If material issues of fact exist, the Court must not decide them, but rather, must deny the motion and proceed to trial. Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1246(11th Cir. 1999).
The Plaintiffs allege that the City is liable under § 1983 for violations of Kimbrough's Fourth and Fourteenth Amendment rights. In order to establish municipal liability under § 1983, Plaintiffs must first establish that one or more of Kimbrough's constitutional rights were violated. McDonnell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 1987).
This Court has already ruled that Plaintiffs have offered sufficient evidence to support a violation of Kimbrough's constitutional rights through the use of excessive force and failure to provide medical care by the Officers. (See this Court's Order, issued October 19, 2006, at Doc. 445) Therefore, the Court incorporates by reference its previous discussion of those issues, and moves on.
The City correctly asserts that the doctrine of respondeat superior does not apply to claims arising under § 1983. Engelleiter v. Brevard County Sheriff's Dept., 290 F. Supp. 2d 1300, 1308 (M.D. Fla.). Instead, municipal liability under § 1983 may be established by evidence that:
(1) the constitutional deprivation was caused by a policy or custom of the local governmental entity, or (2), the final policymakers of the local governmental entity acted with deliberate indifference to a constitutional deprivation, or (3) the final policymakers of the local governmental entity delegated their authority to a subordinate who, in turn, caused a constitutional deprivation, or (4) the final policymakers of the local governmental entity ratified a constitutionally impermissible decision or recommendation of a subordinate employee.
Sherrod v. Palm Beach County School District, 424 F. Supp. 2d 1341, 1344 (S.D.Fla. 2006) (emphasis added).
The City argues that Plaintiffs have failed to produce sufficient evidence of any policy or custom that caused, or was the moving force behind, the violations of Kimbrough's constitutional rights. Plaintiffs allege that the City had several policies or customs that led to the violation of Kimbrough's rights, and the Court will address each one individually.
A municipal policy or custom is "a persistent and wide-spread practice." Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994). Plaintiffs must establish, not only that the policy or custom existed but also that "actual or constructive knowledge of such custom" is attributable to city officials. Id. Therefore, "random acts or isolated incidents" are generally not enough to establish municipal liability. Id. However, in Depew v. City of St. Marys, 787 F.2d 1496 (11th Cir. 1986), municipal liability was established on the basis of five prior incidents of excessive force because the city had knowledge of these incidents and failed to take remedial action. See Church, 30 F.3d at 1345.
First, Plaintiffs allege that the City had a policy or practice of using excessive force. The City has a written policy regarding the use of force that requires reporting the use of force to supervisors either in writing or verbally, and provides for review. (Doc. 425-37). Therefore, Plaintiff must show that the City has a custom of allowing the use of excessive force by its officers, and ignoring its own written policies. To meet this burden, Plaintiffs point to 17 incidents involving CPD officers (primarily Badarack) acting improperly, however only 10 of these incidents involve the use of excessive force. (Doc. 427 at 13-14). In the majority of these ten incidents, Plaintiffs admit that some form of official action was taken, whether it be an investigation or a disciplinary action against the officers involved. In fact, in one instance where a suspect was injured from the use of a taser by Badarack, the City responded by suspending the use of tasers by all CPD officers until more training had been provided. Therefore, it seems that there are only four incidents that Plaintiffs can point to where no action was taken, and with regard to at least two of those incidents, there is no evidence that the City was even aware that they occurred. It is true that the City was aware of the Kimbrough incident and that its response can be considered inadequate because it failed to conduct an internal affairs investigation or to discipline any of the officers involved. However, ...