United States District Court, S.D. Florida
SCOTT T. BICKEL, Plaintiff,
CITY OF CORAL SPRINGS, and JASON CARTER, Defendants.
ORDER ON MOTIONS TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Jason
Carter's (“Carter”) Motion to Dismiss Count
II of Plaintiff's Amended Complaint, ECF No. 
(“Carter's Motion”), and Defendant City of
Coral Springs' (the “City”) Motion to Dismiss
Count IV of the Amended Complaint, ECF No.  (the
“City's Motion”). The Court has reviewed the
Motions, all opposing and supporting submissions, the record
and the applicable law, and is otherwise fully advised. For
the reasons set forth below, Carter's Motion is granted
and the City's Motion is granted in part and denied in
Scott T. Bickel (“Plaintiff” or
“Bickel”) filed suit against the City and Carter,
a law enforcement officer with the Coral Springs Police
Department (“CSPD”), on March 27, 2017,
see ECF No. , and, in an Amended Complaint filed
on May 1, 2017, see ECF No. , alleged various
claims against them. As alleged in the Amended Complaint,
this action stems from an incident that occurred at
Bickel's home on September 6, 2013. See ECF No.
 at ¶¶ 1, 9-22.
to the Amended Complaint, on September 6, 2013, an argument
between Bickel's son and son-in-law occurred inside
Bickel's home-located on the first story of an apartment
complex-while Bickel and other family members were present.
Id. at ¶¶ 9, 13. Neighbors called the
police, and Carter and other CSPD officers were dispatched to
Bickel's home. Id. at ¶¶ 9-10.
“The argument inside the home had concluded”
before any of the officers arrived. Id. at ¶
13. Upon the officers' arrival, everyone inside the home
was ordered to exit. Id. at ¶ 12. Bickel, his
son, and his son-in-law all exited the home peacefully and
without resistance. Id. at ¶ 13.
Bickel was exiting the front door of his home, he attempted
to caution the officers about his “severely injured
arm” that he had recently undergone a major surgical
operation, from which a scar held closed by surgical staples
was “readily identifiable.” Id. at
¶¶ 14-15. At that point, one or more of the
officers present, possibly including Carter, “forced
Plaintiff's arm behind his back [and] plac[ed] him in
handcuffs” without attempting to protect his arm from
further injury. Id. at ¶ 16. This caused
further and permanent injury to Bickel's arm.
Id. at ¶ 17.
more of the officers, possibly including Carter, then moved
Bickel a short distance from the home's front door and
forced him down to his knees near the first step of the
apartment complex's concrete stairway. Id. at
¶ 19. At no point did Bickel “oppose, resist, or
fail to obey” any of the officers. Id. at
¶ 21. As Bickel remained handcuffed and on his knees
facing the stairway, Carter “came up from behind, took
hold of [Bickel's] head, and slammed it into the concrete
stair.” Id. at ¶ 22. As a result of this
encounter, Bickel sustained significant and permanent injury.
Id. at ¶ 24.
according to the Amended Complaint, Carter fabricated the
police report he prepared as well as a “Use of Force
Form” he was required to complete. Id. at
¶ 26. Apparently, Carter's use of force during
Bickel's arrest was summarily deemed justified by the
City, CSPD, and/or CSPD's Response to Resistance Board.
See Id. at ¶¶ 27-28.
in part on these factual allegations, Bickel brings five
claims for relief, including: excessive force under the
Fourth Amendment and 42 U.S.C. § 1983 against Carter
(Count I); intentional infliction of emotional distress
(“IIED”) against Carter (Count II);
“assault and/or battery” against Carter (Count
III); a claim “pursuant to 768.28 Fla. Stat.”
against the City based on Carter and the other officers'
purported “wrongful acts of battery and/or negligent
infliction of emotional distress” (Count IV); and a
claim under Monell v. Dep't of Soc. Servs., 436
U.S. 658 (1978) and 42 U.S.C. § 1983 against the City
(Count V). ECF No. . Through their respective Motions,
Carter moves to dismiss Count II for failure to state a
claim, ECF No. , and the City moves to dismiss Count IV,
arguing that in seeking to assert a negligence claim against
the City based upon its vicarious liability for the actions
of Carter, Count IV fails as a matter of state law because
“there are no allegations of negligent (as opposed to
intentional) conduct” by Carter in the Amended
Complaint, ECF No.  at 3.
pleading in a civil action must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy
the Rule 8 pleading requirements, a complaint must provide
the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512, (2002). While a
complaint “does not need detailed factual allegations,
” it must provide “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The Supreme Court
has emphasized that “[t]o 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.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570); see also Am.
Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90
(11th Cir. 2010). With respect to Rule 12(b)(6),
“[d]ismissal pursuant to Rule 12(b)(6) is not
appropriate ‘unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'” Magluta v.
Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A
court considering a Rule 12(b) motion is generally limited to
the facts contained in the complaint and attached exhibits,
including documents referred to in the complaint that are
central to the claim. See Wilchombe v. TeeVee Toons,
Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also
Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d
1337, 1340 (11th Cir. 2005) (“[A] document outside the
four corners of the complaint may still be considered if it
is central to the plaintiff's claims and is undisputed in
terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).
Intentional Infliction of Emotional Distress Against Carter
for IIED under Florida law requires a showing of: “1)
deliberate or reckless infliction of mental suffering by
defendant; 2) by outrageous conduct; 3) which conduct of the
defendant must have caused the suffering; and 4) the
suffering must have been severe.” Goldenv. Complete Holdings, Inc., 818 F.Supp. 1495, 1499
(M.D. Fla.1993) (citing Metro. ...