United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPEL UNITED STATES DISTRICT JUDGE
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.
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 (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.
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.
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.
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.”
(Id.at ¶ 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
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
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
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).
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.
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.
spent the night in county jail prior to being “Baker
Acted” 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.
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.
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.
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
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.
Deputy Marshall and Sergeant Kizzire's Motion to Dismiss
Counts I, II - 42 U.S.C. § 1983 False
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).
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.
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).
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.
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.
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.
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
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.
(Id.at ¶ 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
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
Count IV - Assault & Battery; Count XII - 42 U.S.C.
§ 1983 Excessive Force
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