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Tompkins-Holmes v. Gualtieri

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

February 8, 2017

ROBERT GUALTIERI, in his Capacity as Sheriff of Pinellas County, Florida, and TIMOTHY VIRDEN, individually, Defendants.



         This matter comes before the Court pursuant to Defendants Sheriff Robert Gualtieri's Motion to Dismiss (Doc. # 10), and Deputy Timothy Virden's Motion to Dismiss or for More Definite Statement (Doc. # 11), both filed on January 13, 2017. Tompkins-Holmes filed responses on January 26 and 30, 2017. (Doc. ## 14, 16). For the reasons that follow, the Motions are denied.

         I. Background

         On December 30, 2015, Plaintiff Dylan Tompkins-Holmes was a passenger in a car driven by his girlfriend after the couple had spent the evening in John's Pass Village in Madeira Beach. (Doc. # 2 at ¶¶ 42-43). Deputy Randall of the Pinellas County Sheriff's Office and his trainee, Deputy James Blount - who are not parties in this action - pulled the car over because they suspected the driver was under the influence. (Id. at ¶ 45). While Deputies Randall and Blount were speaking with Tompkins-Holmes's girlfriend, Deputy Virden arrived on the scene and approached the passenger side of the car where Tompkins-Holmes was seated. (Id. at ¶ 48). Tompkins-Holmes advised his girlfriend she could refuse to take the field sobriety tests that the other deputies asked her to perform, which “angered Deputy Virden who demanded that Tompkins-Holmes stop instructing [her].” (Id.). When Tompkins-Holmes did not stop, “Deputy Virden aimed his Taser at Tompkins-Holmes, forcefully pulled him from the car, manhandled him against the vehicle, and handcuffed [Tompkins-Holmes's] hands behind his back.” (Id. at ¶ 49).

         As Deputy Virden was transferring Tompkins-Holmes into the backseat of Deputy Virden's vehicle, Tompkins-Holmes verbally protested and “question[ed] [Deputy Virden's] manhood, ” but “at no time did Tompkins-Holmes pose any threat, attempt to flee, or physically resist arrest.” (Id. at ¶¶ 50-52). At this point, Deputy Virden threateningly told Tompkins-Holmes to “keep going, ” and then fired two shots from his pistol into Tompkins-Holmes's abdomen and hip. (Id. At ¶ 52). Although Tompkins-Holmes was handcuffed and wedged in the backseat of Deputy Virden's vehicle at the time, Deputy Virden initially claimed that Tompkins-Holmes had reached for his gun. (Id. at ¶¶ 28-29, 53-54). Later, Deputy Virden justified his use of force by stating that he perceived that Tompkins-Holmes could have kicked him, and thus force was necessary. (Id. at ¶ 54). Deputy Randall told investigators that he believed that “Deputy Virden had mistaken his previously drawn Taser for his pistol” and intended to Taser Tompkins-Holmes, rather than shoot him. (Doc. # 2 at ¶¶ 58-59).

         Although there was no video of the incident, an inadvertently-made audio recording revealed that Tompkins-Holmes had not physically resisted Deputy Virden, as the deputy initially claimed. (Id. at ¶¶ 28-29, 53). Immediately after the shooting, Deputy Virden can be heard asking Deputy Randall if he had seen Tompkins-Holmes reaching for his gun, to which Deputy Randall responded “No.” (Id. at ¶ 53). After reviewing the audiotape, the state attorney charged Deputy Virden with attempted manslaughter on January 28, 2016. (Id. at ¶ 30).

         Tompkins-Holmes, who survived the shooting, alleges that Deputy Virden's use of force was excessive and caused by Sheriff Gualtieri's customs and policies, including:

(1) aggressive community policing resulting in excessive uses of force by deputies, (2) a deliberate policy to not have deputies utilize body-worn cameras to video record interactions with citizens despite the knowledge that body-worn cameras deter incidents of excessive force, and (3) a lack of training or inadequate training of deputies.

(Id. at ¶ 4).

         On December 8, 2016, Tompkins-Holmes filed his Complaint in state court, bringing five counts: (1) a 42 U.S.C. § 1983 claim against Sheriff Gualtieri in his official capacity for maintaining a policy and practice of excessive force; (2) a § 1983 claim against Sheriff Gualtieri in his official capacity for the failure to properly train and supervise deputies; (3) a § 1983 excessive force claim against Deputy Virden in his individual capacity; (4) a state law battery claim against Sheriff Gualtieri in his official capacity; and (5) a state law negligence claim against Sheriff Gualtieri in his official capacity. (Doc. # 2). On January 6, 2017, Sheriff Gualtieri and Deputy Virden removed the case to this Court. (Doc. # 1).

         Subsequently, Sheriff Gualtieri and Deputy Virden filed the instant Motions to Dismiss on January 13, 2017, (Doc. ## 10-11), to which Tompkins-Holmes has responded (Doc. ## 14, 16). The Motions are ripe for review.

         II. Legal Standard

         On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)(“On a motion to dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true.”). However,

[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. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations omitted). Courts are not “bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope of review must be limited to the four corners of the complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002).

         III. Analysis

         A. Shotgun Pleading

         Both Deputy Virden and Sheriff Gualtieri contend that the Complaint is an impermissible shotgun pleading. The Eleventh Circuit has described four varieties of shotgun complaints: (1) “a complaint containing multiple counts where each count adopts the allegations of all preceding counts”; (2) a complaint that is “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action”; (3) a complaint that does “not separat[e] into a different count each cause of action or claim for relief”; and (4) a complaint that “assert[s] multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.” Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015). “The unifying characteristic of all types of shotgun pleadings is that they fail to . . . give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Id. at 1323.

         Deputy Virden and Sheriff Gualtieri argue that the Complaint is the first type of shotgun pleading because the first sixty paragraphs are incorporated into each of the five counts. But, the first sixty paragraphs of the Complaint are general factual and jurisdictional allegations. (Doc. # 2 at ¶¶ 1-60). Each separate count is not rolled into the next, and, thus, the Complaint is not the first type of shotgun pleading. See Weiland, 792 F.3d at 1324 (holding that complaint re-alleging its first forty-nine paragraphs in each count was not a shotgun pleading because “[t]he allegations of each count are not rolled into every successive count on down the line”).

         Still, Deputy Virden and Sheriff Gualtieri complain that only factual allegations relevant to each specific claim should be incorporated into each count. While the general allegations are long and it may be a better practice to incorporate only specific factual allegations into each count, it is clear from reading the allegations which acts each Defendant is alleged to have committed. See Id. (“[T]his is not a situation where a failure to more precisely parcel out and identify the facts relevant to each claim materially increased the burden of understanding the factual allegations underlying each count”). Tompkins-Holmes alleges that Deputy Virden fired two shots into his abdomen and hip at close range even though Tompkins-Holmes was handcuffed and did not physically resist. He likewise complains that Sheriff Gualtieri maintained a custom or policy of excessive force and inadequate training that allowed this incident to occur.

         Therefore, the Complaint gives Deputy Virden and Sheriff Gualtieri adequate notice of the claims against them and is not an impermissible shotgun pleading.

         For the same reason, Deputy Virden's request that the Court grant his alternative Motion for More Definite Statement is denied. ...

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