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Sheven J. Marshall, et al v. Regions Bank

January 5, 2012


The opinion of the court was delivered by: Cecilia M. Altonaga United States District Judge


THIS CAUSE came before the Court on Defendants, Officer James Washington ("Washington") and Officer Orlando Lazaro Fleites ("Fleites") (collectively, "Officers[']") Motion to Dismiss ("Motion") [ECF No. 7], filed December 7, 2011. Plaintiffs, Sheven J. Marshall ("Marshall") and Zuleyka Bremer ("Bremer"), filed a Complaint [ECF No. 1-2] against the Officers and Defendant Regions Bank on November 3, 2011. The Complaint contains five counts: (1) false imprisonment as to Regions Bank; (2) intentional infliction of emotional distress as to Regions Bank; (3) negligence as to Regions Bank on behalf of Plaintiff Marshall; (4) negligence as to Regions Bank on behalf of Plaintiff Bremer; and (5) false arrest, false imprisonment, and unlawful detention in violation of 42 U.S.C. § 1983 ("section 1983"), as to Washington and Fleites. Washington filed a Notice of Removal [ECF No. 1], with Regions Bank's consent, on November 30, 2011. At the time the Notice of Removal was filed, Fleites had not yet been served. Fleites filed a notice of consent to removal on December 12, 2011 (see [ECF No. 9]), and a notice of joinder in the Motion on December 14, 2011 (see [ECF No. 14]). The Officers move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs filed a Response in Opposition ("Response") [ECF No. 17] on December 17, 2011, to which the Officers filed a Reply [ECF No. 28] on January 3, 2012. The Court has carefully considered the Motion, the parties' submissions, and applicable law.


Plaintiff Marshall is an African-American man and Florida resident. (See Compl. ¶ 2). Plaintiff Bremer is a biracial Hispanic woman, also a Florida resident. (See id. ¶ 3). Defendant Regions Bank is a bank incorporated under Alabama law and maintains 49 offices to transact business within Miami-Dade County. (See id. ¶¶ 4--5). Defendant Washington is a Miami-Dade County resident and at all relevant times was employed as a Miami-Dade Police Department Officer. (See id. ¶ 7). Fleites is also a Miami-Dade County resident, and also was employed at all relevant times as an Officer for the Miami-Dade Police Department. (See id. ¶ 8).

On January 31, 2011, Marshall entered a Regions Bank branch office in Miami, Florida, with his girlfriend Bremer, to open a checking account and deposit his federal income tax return check. (See id. ¶ 14). Marshall provided Regions Bank his driver's license and offered other forms of identification, along with the check. (See id. ¶¶ 15--16). Regions Bank informed Marshall it needed a couple of minutes to verify the authenticity of the check. (See id. ¶ 17). Regions Bank determined that the check was possibly fraudulent. (See id. ¶ 19). Regions Bank kept the check so Marshall would not leave the branch and called the Miami-Dade Police Department to report that Marshall was attempting to deposit a possibly fraudulent check. (See id. ¶¶ 22--23). Regions Bank "advised the Miami-Dade Police Department that Plaintiff Marshall had attempted to deposit a fraudulent check." (Id. ¶ 24).

Washington arrived at the branch and told Marshall to stand and put his hands behind his back. (See id. ¶ 25). Marshall "stood up calmly and said that he had not done anything." (Id. ¶ 26).

Washington again asked Marshall to put his hands behind his back, then "grabbed him by the collar and pulled him through the lobby, which was full of customers and bank employees," toward a room near the branch entrance. (Id. ¶ 27). Holding Marshall by the collar, Washington instructed Marshall to open the door and turn on the lights, which Marshall did. (See id. ¶ 28). Washington then removed a Taser from his waistband and pointed it at Marshall, telling him to sit down. (See id. ¶ 29). Marshall then tried to telephone Bremer to inform her of the situation, but he hung up when Washington demanded it. (See id. ¶ 30). Washington told Marshall to stand and put his hands behind his back, after which Marshall again asked what he had done. (See id. ¶ 31). Fleites then entered the room, "pushed Plaintiff Marshall by the middle of his back, and slammed him chest first into a desk." (Id. ¶ 32). Fleites "yelled profanely" at Marshall and "forcefully grabbed" his wrists, handcuffing and pushing him into a chair. (Id. ¶ 33).

Bremer had accompanied Marshall to the branch, but left to go to work while Regions Bank was supposedly verifying the authenticity of the check. (See id. ¶ 34). Bremer then returned to the branch and "was promptly handcuffed upon entering." (Id.). Regions Bank accused Bremer of being Marshall's accomplice to alleged check fraud, and she was led to a room for questioning. (See id. ¶ 35). Marshall saw Bremer in handcuffs and asked why she was detained, to which one of the Officers responded that she was an accomplice to check fraud. (See id. ¶ 36). Marshall offered to show his tax paperwork with the name and address of his tax preparer, and Fleites kept telling Marshall "to tell the truth," as check fraud was a felony. (Id. ¶ 37).

Detective Hernandez ("Hernandez") of the Miami-Dade Police Department then arrived and read Marshall his Miranda rights. (See id. ¶ 38). At this point, three hours had passed during which Plaintiffs were confined at the branch against their will. (See id. ¶ 39). Hernandez questioned Marshall about the check. (See id. ¶ 40). Marshall explained to Hernandez that there was a blue folder in Bremer's automobile containing the completed tax return. (See id. ¶ 41). Hernandez then questioned Bremer. (See id. ¶ 42). After Bremer was allowed to show Hernandez the blue folder containing the tax return, Hernandez visited the residence of the tax preparer for further investigation. (See id. ¶ 43). Hernandez then concluded the check was legitimate, returned to the Regions Bank branch, returned Marshall's check, told Marshall that Regions Bank had made a mistake, and released Marshall from the handcuffs. (See id. ¶¶ 44-- 45). Plaintiffs were ultimately detained and interrogated at the Regions Bank branch for over four hours. (See id. ¶ 47).


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555). Pleadings must contain "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. Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556). To meet this "plausibility standard," a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949).


The Officers argue that Count V of the Complaint, alleging a violation of section 1983 for false arrest, false imprisonment, and unlawful detention, is barred by the doctrine of qualified immunity. (See Mot. 4).*fn2 "Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)). In order to illustrate entitlement to the qualified-immunity defense, a government official must demonstrate that the acts complained of were committed within the scope of the officer's discretionary authority. Id. at 1232. Once the officer has done so, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002); see also McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) ("[O]nce an officer or official has raised the defense of qualified immunity, the burden of persuasion as to that issue is on the plaintiff."). This is embodied in the Eleventh Circuit's two-part Zeigler/Rich analysis:

1. The defendant public official must first prove that "he was acting within the scope of his discretionary authority when the ...

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