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Forrest v. Pustizzi

United States District Court, S.D. Florida

June 7, 2017

MICHAEL GEORGE FORREST, Plaintiff,
v.
ANTHONY PUSTIZZI, A. PLESHER, and V. JONES, Defendants.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE.

         THIS CAUSE comes before the Court on motions to dismiss filed by Defendants Anthony Pustizzi, Chief of Police of the City of Coral Springs Police Department [ECF No. 14], and City of Coral Springs Police Officers V. Jones [ECF No. 17] and A. Plesher [ECF No. 18]. The Court has carefully considered the parties' briefs, the Plaintiff's Complaint, and the applicable law and is otherwise fully advised in the premises. For the reasons that follow, Chief Pustizzi's and Officer Jones's motions to dismiss shall both be granted, and Officer Plesher's motion to dismiss shall be granted in part and denied in part.

         I. BACKGROUND

         According to the allegations in the Complaint, on the evening of January 17, 2016, Plaintiff Michael George Forrest was in his home in Coral Springs, Florida, watching a movie with his girlfriend Angela and his cousin Faye. Compl. ¶ 12. At just after 9:00 p.m., Forrest heard a loud knock at the front door. Id. ¶ 13. The group was not expecting any other visitors that evening, so Forrest went downstairs to the front door and looked through the peephole, but he did not see anyone. Id. ¶¶ 14-15. In an abundance of caution, Forrest drew his legally permitted gun from its holster and concealed it behind his back, so as to not expose it to anyone when he opened the door. Id. ¶ 16.

         When he opened the door, Forrest saw Officer Jones close to the corner next to the garage, and Officer Plesher coming from behind the door to confront him. Id. ¶ 17. Officer Jones asked if any women were inside the house. Id. ¶ 19. When Forrest replied in the affirmative, Officer Jones advised him that she and Officer Plesher were investigating a possible domestic violence complaint in the area and stated that a woman was heard crying out for help. Id. ¶¶ 19-20. Forrest told the Officers that they had come to the wrong house, but the Officers asked to confirm that both women in the house were not victims of domestic violence. Id. ¶¶ 21-22. Officer Plesher then forced the front door open and stood in the doorway. Id. ¶ 23. Forrest feared returning his gun to its holster out of fear that the Officers would misunderstand why he was holding it, so he continued to hold the gun behind his back during the parties' discussion. Id. ¶¶ 24-25.

         Forrest called to Angela and Faye to come downstairs, but to do so, he had to turn around and call up the stairs, which revealed his gun to the Officers. Id. ¶ 26. He next heard both Officers yelling at him to “drop the [expletive] gun, ” and he immediately started to turn around to place the gun down on the stairs so it would be plainly visible. Id. ¶ 27. Before Forrest could tell the Officers that the gun was on the stairs, Officer Plesher punched him in the face, breaking his nose. Id. ¶ 28. By then, Angela and Faye had appeared at the top of the stairs, and Officer Jones pointed her gun at them, telling them repeatedly to “stay the [expletive] upstairs and don't move.” Id. ¶ 29. Officer Plesher repeatedly punched Forrest in the head, grabbed Forrest's hair as he forced him to the ground onto his stomach, kicked Forrest in the back, and placed his feet in the center of Forrest's back while saying “Give me your [expletive] hands. I told you how many [expletive] times to drop the gun and get the [expletive] down on your stomach.” Id. ¶¶ 30, 32. Forrest remained passive throughout. Id. ¶ 31. He told the Officers he was within his rights in his own home and had done nothing wrong, and he asked Officer Plesher why he was beating him but Officer Plesher, rather than answering, continued to punch and kick him. Id. ¶¶ 33-34.

         Forrest was eventually lifted from the floor in handcuffs. Id. ¶ 35. He tried to explain that the Officers had the wrong house, but the Officers did not check any other homes in the area, nor did they check on Angela or Faye. Id. ¶¶ 36-37. When Forrest asked why he was being arrested, the Officers replied, “You did not obey the command.” Id. ¶ 39. Because of his injuries, Forrest was taken to be treated at Broward Health Coral Springs, and he was then remanded to the custody of the Broward County Sheriff's Office. Id. ¶ 43. Forrest was admitted into the Broward Main Jail and charged with a violation of Fla. Stat. § 843.02 (resisting an officer-obstruction without violence) by the Broward County Sheriff's Office. Id. ¶ 44. He continued to experience pain as a result of the injuries inflicted by Officer Plesher but he was never provided with pain medication. Id. ¶¶ 45, 48. He was forced to endure booking and processing, arraignment, and imprisonment. Id. ¶ 46. He was forced to seek bail and retain counsel, and all charges against him were eventually dropped. Id. ¶¶ 47, 49-50.

         Forrest filed this action on September 13, 2016, and he brings the following claims: false arrest and/or false imprisonment in violation of the Fourth Amendment to the U.S. Constitution and under 42 U.S.C. § 1983 against Officer Jones (Count I), Officer Plesher (Count II), and Chief Pustizzi (Count III);[1]excessive force in violation of the Fourth Amendment and under 42 U.S.C. § 1983 against Officer Plesher (Count IV) and Chief Pustizzi (Count V); state law negligent training and supervision against Chief Pustizzi (Count VI); state law battery against Officer Plesher (Count VII) and Chief Pustizzi (Count VIII); and state law intentional infliction of emotional distress against Officer Plesher (Count IX) and Officer Jones (Count X). Each Defendant has moved to dismiss all claims against him or her.

         II. LEGAL STANDARD

         To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” meaning that it must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true, “conclusory allegations . . . are not entitled to an assumption of truth-legal conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are construed broadly, ” Levine v. World Fin. Network Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the plaintiff, Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). The question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court's threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011).

         III. DISCUSSION

         A. Federal Claims against the Officers

         Officer Jones and Officer Plesher have moved to dismiss all federal claims against them on the basis of qualified immunity. “Because qualified immunity is a defense not only from liability, but also from suit, it is important for a court to ascertain the validity of a qualified immunity defense as early in the lawsuit as possible.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citation and internal quotation marks omitted).

         “Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right.” Stephens v. DeGiovanni, 852 F.3d 1298, 1314 (11th Cir. 2017) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008)). An official who asserts an entitlement to qualified immunity must first establish that he or she was acting within the scope of his or her discretionary authority when the allegedly wrongful act occurred. Carter v. Butts County, 821 F.3d 1310, 1319 (11th Cir. 2016); see also Moore v. Pederson, 806 F.3d 1036, 1042 (11th Cir. 2015) (“[T]he term ‘discretionary authority' include[s] all actions of a governmental official that (1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority.” (citation and internal quotation marks omitted)). It is not disputed that Officers Jones and Plesher were both acting within their discretionary authority at the time of Forrest's arrest.

         With discretionary authority established, “the burden shifts to the plaintiff to demonstrate that qualified immunity is inappropriate.” Id. To make that determination, the Court undergoes a two-pronged inquiry. First, the Court asks “whether the facts, [t]aken in the light most favorable to the party asserting the injury, . . . show [that] the officer's conduct violated a [federal] right.” Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015) (first and third alterations in original) (quoting Tolan v. Cotton, 572 U.S. __, __, 134 S.Ct. 1861, 1865 (2014) (per curiam)). Second, the Court asks “whether the right in question was ‘clearly established' at the time of the violation.” Id. (quoting Tolan, 135 S.Ct. at 1866). “‘[C]learly established law' should not be defined ‘at a high level of generality, '” White v. Pauly, 580 U.S. __, __, 137 S.Ct. 548, 552 (2017) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)), and “must be ‘particularized' to the facts of the case, ” id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

         1.False Arrest (Counts I and II)

         The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. An arrest is a seizure of the person, and courts assess the reasonableness of an arrest by determining the presence or absence of probable cause for the arrest. Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007). Probable cause to arrest exists if “the facts and circumstances within the officer's knowledge, of which he has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004) (citations and internal quotation marks omitted). That said, “[e]ven if an officer has effected an arrest without probable cause (and without a warrant), he will still be entitled to qualified immunity if the arrest was supported by arguable probable cause.” Fish v. Brown, 838 F.3d 1153, 1165 (11th Cir. 2016). To determine whether arguable probable cause exists, the Court must decide whether “reasonable officers in the same circumstances and possessing the same knowledge as the [defendant] could have believed that probable cause existed to arrest [the plaintiff], ” Morris v. Town of Lexington, 748 F.3d 1316, 1324 (11th Cir. 2014) (emphasis added) (citation and internal quotation marks omitted), a determination which “naturally depends on the elements of the alleged crime and the operative fact pattern, ” Skop, 485 F.3d at 1137-38. Arguable probable cause does not exist if it is “clear that the conduct in question does not rise to the level of a crime, under the facts known at the time.” Wilkerson v. Seymour, 736 F.3d 974, 976 (11th Cir. 2013). Where an officer arrests without arguable probable cause, he violates the arrestee's clearly established Fourth Amendment right to be free from unreasonable seizures. Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009).

         Officers Jones and Plesher arrested Forrest for a violation of Fla. Stat. § 843.02-Resisting officer without violence to his or her person. The statute provides, in relevant part: “Whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . . .” Fla. Stat. § 843.02. The elements of the crime of resisting an officer without violence are: “(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1186 (Fla. 2009). This statute “is intended to apply when a person willfully interferes with an officer's lawful activities, ” although inaction can also constitute the requisite interference. J.M. v. State, 960 So.2d 813, 816 (Fla. 3d DCA 2007); see also C.E.L. v. State, 995 So.2d 558, 563 (Fla. 2d DCA 2008) (holding broadly that “a knowing defiance of a lawful police order” is within the scope of section 843.02), aff'd, 24 So.3d 1181. Refusal to comply with an order to surrender a firearm can give rise to a violation of this statute. E.g., Light v. State, 796 So.2d 610, 613 (Fla. 2d DCA 2001).

         Based on the facts alleged in the Complaint, the Officers went to Forrest's home because of a potential domestic violence incident in the area around Forrest's home. Compl. ¶ 20. The Officers were dressed in police uniforms and informed Forrest as to their investigation and that a woman had been heard crying out for help. Id. ¶¶ 18, 20. They were told by Forrest that there were two women in the house. Id. ¶ 22. The Officers sought confirmation that both women were not victims of domestic violence. Id. When Forrest turned away from them to call the women downstairs, the Officers learned, for the first time, that Forrest had been holding a gun behind his back. Id. ¶ 26. The Officers then demanded that Forrest drop the gun, id. ¶ 27, which the Court finds is an objectively reasonable command, given the circumstances and potential for danger. In making this command, the Officers were engaged in the execution of a legal duty. Despite this lawful command, Forrest did not immediately surrender the gun. Rather, he turned to put the gun on the stairs.[2]A reasonable officer under these circumstances, possessing the knowledge that Officer Jones and Officer Plesher possessed at the time, could believe that probable cause existed to arrest Forrest for resisting an officer without violence. That Forrest alleges that he intended to place the gun on the stairs is immaterial; all that is critical is the Officers' knowledge at the time and whether that knowledge gave the Officers arguable probable cause to arrest.

         Forrest's reliance on Petithomme v. County of Miami-Dade, 511 F. App'x 966 (11th Cir. 2013) (per curiam), a nonprecedential Eleventh Circuit decision, is misplaced. There, police officers, during a valid investigatory stop, demanded the plaintiff produce the identification for her vehicle. The plaintiff alleged that she asked the officers if she could go into her home to retrieve the identification. The court found that the officers did not have arguable probable cause to arrest the plaintiff for resisting an officer without violence because the allegations indicated that the plaintiff did not refuse to provide the identification, but instead attempted to comply with the officers' request. See Id. at 971 (“[A] reasonable officer could not have concluded that [the p]laintiff was acting to or was attempting to ‘resist, obstruct or oppose' the [o]fficers from viewing her identification merely because, while in the process of searching, she could not locate the identification for the vehicle as quickly as the [o]fficers would have liked.”).

         Integral to the court's conclusion in Petithomme was that the plaintiff did everything in her power to comply with the officers' request as soon as it was made. The plaintiff was sitting in her car when the investigatory stop began. Because she believed her identification was inside her home, she asked to go inside to search for it. Forrest, by contrast, had the ability to immediately surrender his gun when Officer Jones and Officer Plesher demanded he do so by simply dropping it or placing it on the floor.[3]Notably, Forrest does not allege that he immediately complied with the Officers' command to drop the gun. Rather, he asserts that he “immediately began to turn around and place the gun down on the stairs.” Compl. ¶ 27 (emphasis added). His failure to immediately comply with the Officers' commands is further revealed by the allegation that Officer Plesher later stated, “I told you how many [expletive] times to drop the gun and get the [expletive] down on your stomach, ” and that one of the Officers also stated, “You did not obey the command, ” in response to Forrest's inquiring why the Officers were arresting him. Id. ¶¶ 32, 39. Given that the Officers instructed Forrest to surrender a firearm, the existence of which Forrest had concealed from them for the majority of the encounter, the Officers reasonably were not required to wait any length of time for Forrest to comply with their command. See Hayden v. Broward County, No. 12-62278, 2014 WL 1877405, at *7-8 (S.D. Fla. May 9, 2014) (“[C]ontrary to [the p]laintiff's assertion that he immediately complied with the officers' request to turn over his firearm, [the p]laintiff admits that he first grabbed his camera case before ...


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