United States District Court, M.D. Florida, Jacksonville Division
ANDREW S. FULKERSON, Plaintiff,
GAIL S. RUSSELL, et. al., Defendants.
MORALES HOWARDS JUDGE
CAUSE is before the Court on Defendant Bradford
County Sheriff's Department's Motion to Dismiss
(Doc. 16; Motion), filed on July 31, 2017. Plaintiff
Andrew S. Fulkerson filed a response on August 9, 2017.
See Plaintiff's Answer to Defendant Bradford
County Sheriff's Department's Motion to Dismiss
(Doc. 22; Response).Accordingly, this matter is ripe
Andrew S. Fulkerson (Fulkerson or Plaintiff) initiated this
action on May 15, 2017, by filing a complaint in which he
named as Defendants the Bradford County Sheriff's
Department (BCSD), BCSD Officers Gail S. Russell (Russell)
and Kevin D. Mueller (Mueller), and Gordon Smith (Smith),
Sheriff Elect of Bradford County. See Complaint for
Violation of Civil Rights (Doc. 1). On June 22,
2017, Fulkerson filed an amended complaint, which is the
operative complaint before the Court. See
Plaintiff's First Amended Complaint, (Doc. 15;
Complaint,  Fulkerson sets forth a series of facts
which he contends relate to his August 4, 2013 unlawful
arrest by Officer Russell, id. at 4, ¶1, and
mistreatment by Officers Russell and Mueller during and after
the booking process, id. at 6-8, ¶¶5-8.
Fulkerson also alleges that Officer Mueller arrested Joshua
Kevin Pelham, Fulkerson's live-in partner, to retaliate
against Fulkerson for complaints that Fulkerson lodged
against Officer Mueller. Id. at 10, ¶13.
Ultimately, the Bradford County Circuit Court entered a
nolle prosequi on the criminal charge stemming from
Fulkerson's August 4, 2013 arrest. Id. at 10-11,
¶14. Fulkerson alleges that his experience at the
Bradford County Jail aggravated his pre-existing
post-traumatic stress disorder, and that he has been unable
to relieve his symptoms because of his financial constraints
and his inability “to find a competent
practitioner.” Id. at 9, ¶12.
on his allegations, Fulkerson asserts a variety of federal
and state law claims against Officers Russell and Mueller.
See generally id. Specifically, Fulkerson asserts
civil rights claims under 42 U.S.C. §1983 (Section 1983)
for false arrest against Officer Mueller (or
Russell) (Count I) and Officer Russell for use of
excessive force (Count II), a state law battery claim against
Officer Russell (Count III),  a federal claim for violation of
Fulkerson's protected right of petition purportedly
brought pursuant to 18 U.S.C. §1512(d)(3) against
Officer Russell (Count IV), a claim for conspiracy to violate
Fulkerson's rights identified in Count IV against Officer
Mueller (Count V), and a claim for violation of
Fulkerson's First Amendment right to petition based on
Officer Mueller's alleged tampering with, or influencing
the timing of, a witness in a federal civil proceeding (Count
VI). Id. at 11-21. Additionally, and of particular
significance to the instant Motion, Fulkerson asserts one
claim, Count VII, against Sheriff Smith, in his individual
and official capacity, as well as the BCSD for failure to
supervise Officers Russell and Mueller, and causing the
alleged constitutional violations by virtue of “de
facto departmental policy or custom.” Id.
Standard of Review
ruling on a motion to dismiss, brought pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (Rule(s)),
the Court must accept the factual allegations set forth in
the complaint as true. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 508 n.1 (2002); see also Lotierzo v.
Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182
(11th Cir. 2002). In addition, all reasonable inferences
should be drawn in favor of the plaintiff. See Omar ex.
rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.
2003) (per curiam). Nonetheless, the plaintiff must still
meet some minimal pleading requirements. Jackson v.
Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir.
2004) (citations omitted). Indeed, while “[s]pecific
facts are not necessary[, ]” the complaint should
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Further, the plaintiff must allege “enough
facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556).
“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.” Twombly, 550
U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that
“[c]onclusory allegations, unwarranted deductions of
facts or legal conclusions masquerading as facts will not
prevent dismissal”) (internal citation and quotations
omitted). Indeed, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions, ” which simply
“are not entitled to [an] assumption of truth.”
See Iqbal, 556 U.S. at 678, 680-81. Thus, in ruling
on a motion to dismiss, the Court must determine whether the
complaint contains “sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Id. at 678 (quoting
Twombly, 550 U.S. at 570).
Motion, BCSD argues that Fulkerson's claim against BCSD
fails because BCSD is not a legal entity capable of being
sued. See Motion at 1-2. In response,
Fulkerson argues that BCSD's case law suggesting that
BCSD lacks the capacity to be sued is inapplicable.
See Motion at 3-4. He also contends that the Motion
should be denied on procedural grounds because BCSD
improperly seeks dismissal under Rule 12(b)(6) and the Motion
is impermissibly vague in violation of Rule 8(d)(1).
See Response at 1-3. The Court will begin its
analysis by considering whether BCSD has the capacity to be
Eleventh Circuit recognizes that “police departments
are not usually considered legal entities subject to
suit.” Dean v. Barber, 951 F.2d 1210, 1214
(11th Cir. 1992). Nevertheless, the Barber Court
instructed that “‘capacity to sue or be sued
shall be determined by the law of the state in which the
district court is held.'” Id. (quoting
Rule 17(b)). In Florida, “‘where a police
department is an integral part of the city government as the
vehicle through which the city government fulfills its
policing functions, it is not an entity subject to
suit.'” See Fla. City Police Dep't v.
Corcoran, 661 So.2d 409, 410 (Fla. 3d DCA 1995) (quoting
Eddy v. City of Miami, 715 F.Supp. 1553, 1556 (S.D.
“Florida courts have consistently found that City
Police Departments are not entities capable of
suit.” Blandin v. Cnty. Of Charlotte, No.
2:07-cv-691-FtM-29DNF, 2009 WL 2634419, at *4 (M.D. Fla. Aug.
24, 2009); see also Faulkner v. Monroe Cnty.
Sheriff's Dep't, 523 F. App'x 696, 700-01
(11th Cir. 2013) (“Florida law has not established
Sheriff's offices as separate legal entities with the
capacity to be sued.”); Williams v. Miami-Dade
Police Dep't, 297 F. App'x 941, 945 (11th Cir.
2008) (“Under Florida law, police departments are not
legal entities amenable to suit.”); Smith v.
Gadsden Cnty. Sheriffs Office, No. 4:11-cv-573-RH/CAS,
2012 WL 2428261, at *1 (N.D. Fla. May 29, 2012) (“The
Sheriff's Office is not an entity that may be sued under
Florida law.”), adopted sub nom, Smith v.
Young, 2012 WL 2428222 (N.D. Fla. Jun. 27, 2012);
Griffin v. Hillsborough Cnty. Sheriff, No.
8:09-cv-1440-T-23TGW, 2009 WL 4547054, at *2 (M.D. Fla. Nov.
30, 2009) (“Under Florida law, a police department
lacks a separate legal identity apart from the city and is
not an entity subject to suit.”); Everett v.
Marianna Police Dep't, No. 5:07-cv-284/RS/MD, 2008
WL 222713, at *2 (N.D. Fla. Jan. 25, 2008) (“[T]he
Florida courts have found that the city police department is
not a legal entity and has no legal existence separate and
apart from the city.”); Mann v. Hillsborough Cnty.
Sheriff's Office, 946 F.Supp. 962, 970-71 (M.D. Fla.
[u]nder Florida law, there are constitutionally created
political subdivisions called “counties” and
separately created constitutional officers including a
sheriff. Fla. Const. art. VIII, §§ 1(a) and (d).
However, no provision is made constitutionally or statutorily
for a “Sheriff's Office” as a separate legal
entity, as an agency of the county, or as a corporate entity,
nor is a Sheriff's Office or Department given authority
to be sued in such a ...