Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Andrews v. Scott

United States District Court, M.D. Florida, Fort Myers Division

September 1, 2017


          OPINION AND ORDER [1]


         This matter comes before the Court on Defendants Deputy Brandon Marshall (“Deputy Marshall”) and Sergeant Robert Kizzire's (“Sergeant Kizzire”) Motion to Dismiss (Doc. 15) filed on February 28, 2017; Defendants Sheriff Mike Scott (“Sheriff Scott”) and Deputies John and Mary Does' (“Deputy Does”) Motion to Dismiss (Doc. 16) filed on February 28, 2017; and Defendant Corizon, LLC's (“Corizon”) Motion to Dismiss (Doc. 32) filed on March 20, 2017. Plaintiff Anita Andrews (“Plaintiff”) has filed Responses in Opposition to the respective Motions to Dismiss. (Doc. 36; Doc. 37; Doc. 44). Deputy Marshall, Sergeant Kizzire, and Corizon have filed Reply-Briefs to Plaintiff's Responses in Opposition. (Doc. 43; Doc. 48). These Motions are now ripe for the Court's review.

         This is a civil rights action stemming from a traffic stop that took place in the early morning hours of November 7, 2012, resulting in the arrest of Plaintiff. On November 4, 2016, Plaintiff filed an eighteen-count Complaint[2] (Doc. 1), alleging both common law and 42 U.S.C. § 1983 claims against Defendants for false arrest/imprisonment, failure to supervise, assault/battery, intentional infliction of emotional distress, retaliation, and excessive force. Deputy Marshall and Sergeant Kizzire are sued in their individual and official capacities, and Sherriff Scott is sued in his official capacity only. Defendants now move to dismiss all counts for failure to state a claim, and Sheriff Scott moves to strike the prayer for punitive damages against him.


         The facts as set forth in Plaintiff's Complaint, which the Court accepts as true, are as follows: On the late evening of November 6, 2012, until the early morning of November 7, 2012, Plaintiff was a passenger in a pick-up truck driven by her friend, Keith O'Bryant (“O'Bryant”); undertaking post-election clean up by removing political signs from the public roadways and intersections. As a result, the bed of O'Bryant's pick-up truck was filled with campaign signs. Around 1:00 a.m., Deputy Marshall pulled O'Bryant's truck over for a broken headlight. O'Bryant complied with Deputy Marshall's request to turn over his license and registration and informed the deputy that he was aware of the faulty headlight but had not had the opportunity to fix it. Plaintiff alleges Deputy Marshall then began interrogating the two. Refusing to answer some of the questions, Plaintiff informed Deputy Marshall of her privacy guarantees under the Constitution. Deputy Marshall then asked Plaintiff to provide identification. She asserted that she had none and was not legally required to have any as a passenger. Again, Deputy Marshall insisted that she provide identification, but Plaintiff asserted her right to refuse to disclose her name.

         Marshall admitted to Plaintiff and O'Bryant that he did not suspect either of committing a crime and even commented that the couples' appearance discounted the possibility that they did anything wrong. Plaintiff alleges that Deputy Marshall had already obtained her name from O'Bryant and ran an identification check on her. Despite this, Plaintiff alleges that Deputy Marshall and several of his colleagues informed her that they were calling in “the big guns, ” and summoned additional officers to the scene. (Doc. 1 at ¶ 41). Deputy Marshall's supervisor, Sergeant Kizzire, was called to the scene.

         After informing other officers that there were no guns or drugs in the vehicle, Plaintiff alleges that Sergeant Kizzire announced, “I'm tired of this” and proceeded to arrest her. (Doc. 1 at ¶ 42). In doing so, Sergeant Kizzire aggressively pulled her out of the vehicle, forcefully turned her around, and handcuffed her. Plaintiff was then patted down all over, including her breasts and crotch area, and directed to enter the back of the police vehicle. Deputy Marshall then asked, “So, Anita, are you going to tell us your name?” and told her that he was seizing her to “teach her a lesson.” ( ¶ 43). Deputy Marshall, Sergeant Kizzire, and the other officers at the scene huddled together to discuss how to arrest her. Plaintiff was read her Miranda rights, asked additional questions about the campaign signs, and taken to the police station along with O'Bryant. Again, Plaintiff claims she heard one of the officers state, “we need to teach her a lesson.” (Id. at ¶ 45).

         During the car ride to the police station, Deputy Marshall explained to Plaintiff that he was arresting her for loitering and prowling. Deputy Marshall went so far as to explain that loitering and prowling was a term that officers are taught to use when they cannot tell if a crime has been committed and need a legal justification to bring someone in. When asked what she was specifically being brought in for, one of the officers stated “I don't know, but we're going to find something really good for her.” (Doc. 1 at ¶ 46).

         Upon arrival at the police station, Plaintiff alleges her right arm was swollen to twice its normal size due to the rough handling of the officers. Plaintiff was told that she would not be able to leave until she identified herself before being placed in isolation. Plaintiff was disrobed, left barefoot with inadequate clothing in a freezing cold room, and without aid for her swollen arm and shoulder. She then advised her jailors that she suffers from “thick blood, ” requiring continuing hydration and warm temperatures. Plaintiff warned officers that without salt water and an aspirin, her blood could coagulate or she could lose consciousness. She also warned that excessively cold temperatures in the jail could send her into shock and that she had not had any water for hours. None of her requests for aid were met. Instead, the officers informed her that receipt of medical assistance was conditioned on her stating her name. During the numerous instances where officers lobbied Andrews to identify herself, they called her by her full name.

         When Plaintiff met with a nurse, she was refused aid. Plaintiff asserts the grounds for this denial was premised on her failure to surrender her name. At the front booking desk, Plaintiff was again told she could leave the police station if she provided her name. Eventually, Plaintiff was admitted to the county jail. The officer who handed her over stated, “She is crazy. You can do anything you want to with her.” (Doc. 1 at ¶ 56).

         After being booked and entering the jail, Andrews was told to disrobe. Plaintiff lost consciousness while putting on her prison wear and was told to remain on the floor until being placed in a wheelchair. Again, she requested water and aspirin but received none. Plaintiff was then taken from her jail cell and transported to the psych ward. She was pulled out of the van and told to stand up. At this point, she lost consciousness and hit her head on the concrete floor. Plaintiff remembers being pulled up by her hair and asked multiple questions. Multiple officers taunted her with the following statements: “Sit up, ” “Tell us your name or we will drop you again, ” “Tell us your name, or we will spray you, ” and “Tell us your name and we will give you water.” (Doc. 1 at ¶ 61). At this point, Plaintiff gave in and told her name, resulting in a series of congratulatory remarks amongst the officers and jailors for finally getting her to say it.

         Plaintiff was then taken to a cell “to teach her a lesson.” (Doc. 1 at ¶ 62). There, Plaintiff lost consciousness and awoke to find herself surprised that she was in the psych ward. Plaintiff discovered she would not receive medical attention for at least three days. While there, Plaintiff complained of terrible headaches. Although she continued her requests for medical attention, Plaintiff received none. Plaintiff additionally requested to make a phone call or speak with a judge, which were denied.

         Plaintiff spent the night in county jail prior to being “Baker Acted”[3] to the Lee County Mental Health Hospital. Plaintiff was scheduled to spend the next seventy-two (72) hours under mandatory observation. While there, Plaintiff observed personnel disagreeing over the decision to send her there because she was not suicidal and had not threatened to kill herself or others. Later that evening, Plaintiff was released after speaking with a psychiatrist. The psychiatrist concluded that “She doesn't belong in here; she can go.” (Doc. 1 at ¶ 68). All charges against Plaintiff were dropped.


         To survive a motion to dismiss under Rule 12(b)(6), "a [c]omplaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. The issue in resolving such a motion is not whether the non-movant will ultimately prevail, but whether the non-movant is entitled to offer evidence to support his claims. See Id. at 678-79.

         "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citations omitted). Although legal conclusions can provide the framework for a complaint, factual allegations must support all claims. See id.Based on these allegations, the court will determine whether the plaintiff's pleadings plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions couched as factual allegations are not sufficient, nor are unwarranted inferences, unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555.

         Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading requirements that also must be satisfied. Under this rule, "a pleading 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Labels, conclusions, and formulaic recitations of the elements of a cause of action are not sufficient. See Id. at 678-79. Mere naked assertions are also inadequate. See id.


         A. Deputy Marshall and Sergeant Kizzire's Motion to Dismiss (Doc. 15)

         1. Counts I, II - 42 U.S.C. § 1983 False Arrest/Imprisonment

         Counts I and II assert claims under 42 U.S.C. § 1983, alleging that Deputy Marshall and Sergeant Kizzire violated plaintiff's Fourth Amendment rights by arresting and detaining her without probable cause that she had committed the state law offense of loitering and prowling. She contends that her ongoing detention was “intentional, unreasonable, ” and “done to intimidate [her] with a show of force and to be vindictive.” (Doc. 1 at ¶¶ 88, 99). Plaintiff further claims that the stop was without probable cause and that the stated charges of loitering and prowling were a false pretext under which to arrest her. (Id. at ¶¶ 92, 103).

         Deputy Marshall and Sergeant Kizzire seek dismissal of Counts I and II because there was probable cause to arrest or detain Plaintiff, arguing that Plaintiff's presence in an “unfamiliar residential neighborhood at 1 AM in a pickup truck filled with an assortment of campaign signs taken from nearby properties” amounted to probable cause. (Doc. 15 at 9). Alternatively, Deputy Marshall and Sergeant Kizzire assert that at the very least they are entitled to qualified immunity because there was arguable probable cause to arrest and detain Plaintiff.

         “Section 1983 creates a private cause of action for deprivations of federal rights by persons acting under color of state law.” Laster v. City of Tampa Police Dept., 575 F. App'x 869, 872 (11th Cir. 2014) (citing 42 U.S.C. § 1983). An arrest qualifies as a “seizure” of a person under the Fourth Amendment. Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011); California v. Hodari D., 499 U.S. 621, 624 (1991). So does the detention of a person. Manuel v. City of Joliet, Ill., 137 S.Ct. 911 (2017). The reasonableness of an arrest and detention under the Fourth Amendment “turns on the presence or absence of probable cause” for the arrest/detention. Case v. Eslinger, 555 F.3d 1317, 1326-27 (11th Cir. 2009) (citing Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007)). “Probable cause to arrest exists when the facts and circumstances within an officer's knowledge are sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1251 (11th Cir. 2013) (citation omitted). “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

         An arrest or detention without probable cause violates the Fourth Amendment, Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997), and a cause of action for damages may be asserted under § 1983. Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 n.15 (11th Cir. 2010). Plaintiff has the burden of establishing the absence of probable cause to succeed on a § 1983 claim. Rankin v. Evans, 133 F.3d 1425, 1436 (11th Cir. 1998). To do so, plaintiff must show that no reasonably objective police officer would have perceived there to be probable cause based upon the totality of the circumstances. Coffin v. Brandau, 642 F.3d 999, 1006 (11th Cir. 2011). The existence of probable cause “constitutes an absolute bar” to a § 1983 claim for false arrest. Rankin, 133 F.3d at 1435.

         In deciding whether probable cause exists, an officer is “not required to sift through conflicting evidence or resolve issues of credibility, so long as the totality of the circumstances present a sufficient basis for believing that an offense has been committed. Nor does probable cause require certainty on the part of the police.” Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir. 2002) (citations omitted). The fact that the arrestee was never prosecuted, or the charges were dropped, or the arrestee was acquitted of any offense stemming from the arrest, does not impact the existence of probable cause. Knight v. Jacobson, 300 F.3d 1272, 1275 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188, 1195-96 (11th Cir. 2002); Marx v. Gumbinner, 905 F.2d 1503, 1507 (11th Cir. 1990).

         An officer who makes an arrest or detention without actual probable cause is nonetheless entitled to qualified immunity in a § 1983 action if there was “arguable probable cause” for the arrest. When qualified immunity is raised as a defense to false arrest claims, courts inquire whether arguable probable cause existed for the arrest. Davis v. Williams, 451 F.3d 759, 762 (11th Cir. 2006). “The standard for arguable probable cause is whether a reasonable officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in the light of well-established law.” Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997) (quotations omitted). Qualified immunity allows ample room for mistaken judgments to prevent officials from erring on the side of caution due to a fear of litigation. Id. at 1446 (quotations omitted). A court looks to the totality of the circumstances to determine whether arguable probable cause exists. Davis, 451 F.3d at 763.

         Here, Plaintiff was arrested for loitering and prowling under Section 856.201, which encompasses the following:

(1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals;
(2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

State v. Ecker, 311 So.2d 104, 106 (Fla. 1975). Here, accepting the facts of the Complaint as true, Deputy Marshall pulled over the pickup truck for a broken headlight around 1:00 a.m. (Doc. 1 at ¶ 33). He noted that both Plaintiff and O'Bryant were unfamiliar with the residential neighborhood in which they were stopped. ( ¶ 36). While executing the traffic stop, Deputy Marshall observed multiple campaign signs in the bed of the truck and was informed by Plaintiff and O'Bryant that they were cleaning up following the election. (Id. at ¶ 32). Deputy Marshall admitted that he did not suspect either Andrews or O'Bryant of committing a crime and even commented that it did not look like they were doing anything wrong. Despite this, the officers continued to detain the couple and question them, ultimately arresting Plaintiff and telling her that they charge someone with loitering and prowling when they do not know what else to charge them with. Based upon these facts asserted, the Court cannot determinate as a matter of law that probable cause existed for the arrest based on the totality of the circumstances, which will continue to be borne out through the discovery process. Plaintiff has alleged enough facts to support a constitutional violation that survives a motion to dismiss.

         Alternatively, Deputy Marshall and Sergeant Kizzire argue that they are entitled to qualified immunity on any false arrest claims because arguable probable cause exists. (Doc. 15 at 11-13). Again, looking to the totality of the circumstances, which at the motion to dismiss stage encompasses the well-pled allegations in Plaintiff's Complaint, the Court denies the motion to dismiss Counts I and II on qualified immunity grounds.

         2. Count IV - Assault & Battery; Count XII - 42 U.S.C. § 1983 Excessive Force

         Under Counts IV and XII, Plaintiff asserts a state law claim for assault and battery against Sergeant Kizzire for use of excessive force when arresting her. Plaintiff contends he “inflicted a harmful and offensive touching by … aggressively pulling [her] out of the vehicle, forcefully turning her around, and cuffing her hands behind her back.” (Doc. 1 at ¶ 122). Plaintiff adds that the touching was intentional and done for the purpose of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.