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King v. Lake County

United States District Court, M.D. Florida, Ocala Division

December 19, 2017

SCOTTY KING, Individually and as Personal Representative of the Estate of Kimberly King, Plaintiff,
v.
LAKE COUNTY, et al., Defendants.

          ORDER

          MARCIA MORALES HOWARD United Slates District Judge

         THIS CAUSE is before the Court on the separate motions to dismiss filed by the several defendants in this case. Defendant Gary S. Borders, in his official capacity as Sheriff of Lake County, filed a Partial Motion to Dismiss Amended Complaint and Memorandum of Law (Doc. 20, Sheriff's Motion), on March 29, 2017.[1] Defendants Nick Jones, Robert Sellers, Pablo Rivera, and Shawn Lukens filed a Motion to Dismiss Amended Complaint (Doc. 22, Individual Defendants' Motion), on March 30, 2017. Defendant Nate Pickens filed a Motion to Dismiss Plaintiff's Amended Complaint and Notice of Intent to Adopt and Join in Portions of Motion to Dismiss Amended Complaint by Defendants Jones, Sellers, Rivera, and Lukens (Doc. 24, Pickens' Motion), on April 4, 2017. Also, Defendant Mascotte Police Department filed its Motion to Dismiss (Doc. 37, Mascotte Motion), on April 18, 2017.[2] In their motions, the Defendants request that the Court dismiss the amended complaint of Plaintiff Scotty King (King), individually and as Personal Representative of the Estate of Kimberly King. (Doc. 13, Amended Complaint, filed February 16, 2017). King opposes the Defendants' motions. See Plaintiff's Response to Defendant Sheriff of Lake County, Florida's Partial Motion to Dismiss (Doc. 54, Plaintiff's Response to Sheriff), filed May 12, 2017; Plaintiff's Response to Defendants Jones, Sellers, Rivera, and Lukens' Motion to Dismiss (Doc. 53, Plaintiff's Response to Individual Defendants), filed May 12, 2017; Plaintiff's Response to Defendant Nate Pickens' Motion to Dismiss (Doc. 56, Plaintiff's Response to Pickens), filed on May 15, 2017; Plaintiff's Response to Defendant Mascotte Police Department's Motion to Dismiss (Doc. 59, Plaintiff's Response to Mascotte), filed on May 23, 2017. Accordingly, this matter is ripe for review.[3]

         I. STANDARD OF REVIEW

         In ruling on a motion to dismiss, 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 Atl. 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). A “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 (citations omitted); see also BellSouth Telecomm., 372 F.3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (citations 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 679. 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).

         II. BACKGROUND[4]

         This action arises out of a high speed police chase that resulted in the untimely and tragic death of Kimberly King.

         On May 12, 2016, at approximately 6:30 p.m., Deputy Nick Jones, a member of the Street Crimes Unit of the Lake County Sheriff's Department (LCSD), who was on patrol in Leesburg, Florida, observed a female driver stop beyond the stop bar at an intersection. Amended Complaint at ¶¶ 21-22. The driver's action constituted a noncriminal traffic violation punishable as a moving violation. Id. at ¶ 22. Two of Jones' fellow Street Crime Unit members, Deputy Shawn Lukens and Deputy Robert Sellers, were positioned two blocks from Jones. Allegedly, “upon apparently observing these officers, ” the driver made an abrupt turn. Id. at ¶ 25. Jones followed the driver, eventually turning on his emergency equipment. Id. at ¶¶ 25-27. When the driver began to accelerate, Sellers and Lukens, along with Deputy Pablo Rivera, joined in the pursuit with their emergency equipment activated. Id. at ¶ 28. As the pursuit continued, the driver failed to yield at stop signs, and the chase proceeded to a local highway. Id. at ¶ 30. Additionally, Corporal Nate Pickens, a supervisor of Jones, Sellers, Lukens, and Rivera, joined in the chase, taking the lead. Id. at ¶ 31. During the pursuit, and on two different occasions at two different locations, deputies from the LCSD and the City of Leesburg placed “stop sticks”[5] in the driver's path in an attempt to stop her. The driver was able, nonetheless, to evade both sets of stop sticks. Id. at ¶ 33, 36, 37.

         At approximately 6:51 p.m., the LCSD deputies “requested via radio transmission that the Mascotte Police Department deploy two sets of stop sticks [along the driver's route] at the Mascotte city limits.” Id. at ¶ 39. At that time, the “Mascotte Police Department was advised that [the driver] was suspected of grand theft, fleeing, and eluding.” Id. at ¶ 40. Mascotte Police Department officers placed the stop sticks in the driver's path, and “at approximately 6:58 p.m., [the driver's] vehicle hit both sets of stop sticks, travelling at approximately 70 miles per hour. The suspect continued . . . [and] appeared to completely lose control and travel into oncoming traffic.” Id. at ¶ 43.

         At that time, Kimberly King was travelling on the same roadway in the opposite direction of the driver. Id. at ¶ 44. The driver's vehicle hit Kimberly King's “vehicle head-on and caught fire. [The driver] was pronounced dead at the scene. Kimberly King was transported via ambulance to [a local hospital] where she was pronounced dead.” Id. at ¶¶ 45-47.

         Information gathered after the crash from the pursuing deputies' global positioning software indicated that the pursuit of the driver lasted 17 minutes, and that the deputies' speeds ranged between 66 and 123 miles per hour. Id. at ¶ 48. The LCSD has a vehicular pursuit policy which guides as follows:

[A] deputy must realize that it is his or her duty to operate the vehicle safely at all times, especially while in the act of pursuit. The fact that a deputy is engaged in a pursuit does not relieve nor protect that deputy from the consequences of a reckless disregard for the safety of others . . . Pursuits involving traffic or non-violent misdemeanors will involve only one primary patrol unit in pursuit and no more than one secondary unit assisting unless directed otherwise by a supervisor . . . The secondary back-up unit will remain at a safe distance during the pursuit. The secondary back-up unit's purpose will be to arrive shortly after the pursuit termination.

Id. at ¶ 49. Additionally, LCSD policy directs that a “deputy is to terminate a pursuit when the danger involved in the pursuit is greater than the offence which was committed or believed to have been committed.” Id. at ¶ 50 (internal quotations omitted).

         After the crash, the Office of Professional Standards of the LCSD interviewed the officers involved in the pursuit. Id. at ¶ 53. During those interviews, the deputies stated that they were aware of LCSD's pursuit policy, “but that the ‘Street Crimes Unit always stays together, ' and that all units within the Street Crimes Unit are involved each time any officer initiates a vehicular pursuit.” Id. at ¶ 53 (quoting Defendant Pablo Rivera); see also at ¶ 54 (Street Crimes Unit frequently “pushes the boundaries” of department guidelines); ¶ 56 (it was understood that the Street Crimes Unit “stick together when it comes to pursuits”); ¶ 57 (“there is an understanding with Street Crimes supervisors that all units will be involved” in vehicular pursuits); ¶ at 59 (the use of two or more units during vehicular pursuits has been “an accepted practice since the Street Crimes Unit was formed” and “has never come under scrutiny”).

         LCSD placed all of the deputies involved in the incident “on administrative leave with pay during a period of administrative review.” Id. at ¶ 60. At the conclusion of the administrative review, Lake County Sheriff Gary Borders concurred with the division major's determination that Jones, Sellers, Rivera, and Lukens did not violate the vehicular pursuit policy given that Pickens “‘supervised and ultimately led' the pursuit.” Id. at ¶ 61. However, the Sheriff found Pickens, a corporal, to have violated regulations “pertaining to failure to perform the duties of rank or assignment.” Id. at ¶ 62.

         As a result of these events, Scotty King, as the surviving spouse and Personal Representative of the Estate of Kimberly King, brought this action alleging a host of claims against the various Defendants. In Count I, King seeks relief from Defendants Jones, Sellers, Rivera, Lukens, Pickens and John Doe Officers 1-10 (herein, Individual Defendants and Pickens), under 42 U.S.C. § 1983 (§ 1983), asserting that the Individual Defendants and Pickens deprived Kimberly King of her constitutionally protected right under the Due Process Clause of the Fourteenth Amendment to be “free from state actions that deprive her of life, liberty, or property in such a manner as to shock the conscience.” Id. at ¶ 65.[6] In Counts II through IV, King brings claims against the LCSD, Borders, and the Mascotte Police Department. In Count II, he asserts these Defendants are subject to liability under § 1983 for failing to properly train their deputies in vehicular chases and the use of stop sticks. Id. at ¶ 72. In Count III, King claims that these Defendants are also liable under § 1983 for having “in effect policies, practices, or customs that perpetuated and fostered the unconstitutional conduct of” the Individual Defendants and Pickens. Id. at ¶ 82. Finally, in Count IV, he alleges that the same Defendants failed to “properly supervise its agents, employees, and officers, ” thereby resulting in Kimberly King's death. Id. at ¶ 94.

         In Count V, King asserts that the Lake County Sheriff's Department, Borders, and the Individual Defendants are liable under § 1983 for ratification because those in a supervisory capacity “knew of and specifically approved of” the Individual Defendants' actions. Id. at ¶ 107. Finally, in Counts VI and VII, King brings Florida wrongful death actions against the Individual Defendants and Pickens, and Borders, respectfully. Id. at ¶¶ 114, 119.[7]

         III. ARGUMENTS OF THE PARTIES

         The various Defendants have filed motions to dismiss the claims asserted in this case. In the Sheriff's Motion for partial dismissal, the Sheriff raises three issues. First, he seeks to dismiss the LCSD as a defendant, as that office “has no legal status as an entity that may sue or be sued.” Sheriff's Motion at 4. Second, the Sheriff requests that the Court substitute Gary S. Borders, in his official capacity as Sheriff of Lake County, with the more appropriate denomination of “Sheriff of Lake County, Florida, in his official capacity.” Id. at 5.[8] Third, the Sheriff asserts that Counts V and VII should be dismissed for failure to state a claim.[9] As to the Count V ratification claim, the Sheriff contends that he neither knew in advance of, nor approved of the deputies' high speed pursuit and use of stop sticks while those events were occurring. Id. at 8. Moreover, he asserts that any post-incident review of the deputies' pursuit does not satisfy the legal requirements for ratification. Id. at 9. As to the Count VII wrongful death claim, the Sheriff argues that pursuant to Florida law, he cannot be held vicariously liable for the acts of his employees where, as is the case here, King alleges that the employees acted in a willful and wanton manner. Id. at 10.[10]

         In response to the Sheriff's Motion, King acknowledges the improper identification of Gary S. Borders as a defendant, and seeks to clarify that all relevant claims are asserted against the “Sheriff of Lake County, Florida, in his official capacity.” Plaintiff's Response to Sheriff's Motion at 6. King also alleged that he has asserted sufficient facts to support a claim of ratification. Id. at 6-7. Finally, King asserts that should the Court determine that the Individual Defendants and Pickens did not act in a willful and wanton manner in the events surrounding Kimberly King's death, through pleading in the alternative, the Sheriff of Lake County, Florida, in his official capacity, could be held vicariously liable for Kimberly King's death. Id. at 8.

         In the Individual Defendants' Motion, the Individual Defendants assert that as to the Count I due process claim, King has failed to state a claim upon which relief can be granted, or in the alternative, that they are entitled to qualified immunity from suit. Individual Defendants' Motion at 2. In response to the Count V ratification claim, the Individual Defendants argue that it is inappropriate to include them in that claim. They assert that the facts that King sets forth in the Amended Complaint allege that it was the County and the LCSD that ratified the Individual Defendants' actions, and there is no allegation that the Individual Defendants engaged in the act of ratifying anyone else's actions. Id. at 2. Finally, in response to the Count VI wrongful death claim, the Individual Defendants contend that they are entitled to immunity from suit pursuant to Florida law. Id. at 2. Therefore, the Individual Defendants seek dismissal of Counts I, V and VI as against them.

         In response to the Individual Defendants' Motion, King argues that he has alleged sufficient facts to support the Count I substantive due process claim against the Individual Defendants, and that they are not entitled to qualified immunity. Plaintiff's Response to Individual Defendants at 6, 11. Likewise, in regard to the Count VI wrongful death claim, King argues that he has alleged sufficient facts to overcome the Individual Defendants' claims of immunity. Id. at 13.[11]

         In the Pickens' Motion, Pickens “adopts and incorporates the argument and legal citation set forth” in the Individual Defendants' Motion regarding the Count I § 1983 claim. Pickens' Motion at 3. Additionally, Pickens contends that King's Amended Complaint lacks sufficient factual allegations to “support liability against Defendant Corporal Pickens under the theory of supervisory liability, ” and therefore Count I should be dismissed against him. Id. at 3. Finally, Pickens asserts that the Count VII claim for wrongful death should be dismissed against him for the same reasons articulated by the Individual Defendants. Id. at 4. In response, King “adopts and incorporates the arguments set forth . . . [in] his Response” to the Individual Defendants' Motion, and also asserts that in the Amended Complaint he has alleged sufficient facts to support a claim of supervisory liability against Pickens. Plaintiff's Response to Pickens at 6.

         Finally, the Mascotte Police Department raises two issues in the Mascotte Motion. First, Mascotte notes that all claims against the Mascotte Police Department should be dismissed because the Police Department is not a separate legal entity subject to suit. Mascotte Motion at 3. Second, to the extent that the Court decides to construe the claims against the Mascotte Police Department as claims against the City of Mascotte, the Mascotte Police Department contends that King has failed to allege facts suggesting that the City of Mascotte committed a constitutional violation against Kimberly King, whether directly through its officers laying down the stop sticks, or through a “failure to train, ” “failure to supervise, ” or “custom, policy, and practice” theory of liability. Id. at 4, 7, 8. In response, King recognizes that he improperly identified the Mascotte Police Department as a defendant, and seeks to clarify that he intended to reference the City of Mascotte. Plaintiff's Response to Mascotte at 5. Additionally, King asserts that he did indeed sufficiently allege facts to support a § 1983 claim against the City of Mascotte and its deputies in the context of the placement of the stop sticks that contributed to Kimberly King's death. Id. at 6-9.

         The Court will first address the arguments raised by various Defendants regarding the manner in which they are identified in the Amended Complaint, and whether they are proper parties to this action. Then the Court will turn to the substantive arguments on the merits of King's claims.

         IV. DISCUSSION

         a. Preliminary Pleading Matters

         Before addressing the merits of the parties' arguments, the Court first addresses a number of pleading inaccuracies in King's Amended Complaint, wherein King either inaccurately names, or improperly includes, certain Defendants in this action.

         First, and as noted previously, the Lake County Sheriff's Office is misidentified by Plaintiff as the Lake County Sheriff's Department. Sheriff's Motion at 4. More importantly, and regardless of whether King intended to sue the Lake County Sheriff's Office as a defendant or the LCSD, King's claims against this Defendant are due to be dismissed. Rule 17(b) of the Federal Rules of Civil Procedures (Rule(s)), provides that the “[c]apacity to sue or be sued is determined . . . by the law of the state where the court is located.” Fed. R. Civ. Pro. 17(b)(3). Under Florida law, a sheriff's department is not a legal entity that can be sued. Christy v. Sheriff of Palm Beach County, Fla., 288 Fed.Appx. 658, 662-63 (11th Cir. 2008). See also Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (“Sheriff's departments and police departments are not usually considered legal entities subject to suit.”). As such, the claims against the LCSD (or arguably, properly named the Lake County Sheriff's Office) will be dismissed from this action.

         Next, the Court turns to the Sheriff's assertion that Borders is not a properly named party to this action. As to this issue, the Sheriff explains that Borders has retired and is no longer Sheriff of Lake County. Sheriff's Motion at ¶ 8. In bringing an action against a public official, it is not necessary to identify the public officer by name. Rather, the party may be designated merely by his or her official title. See Fed. R. Civ. Pro. 17(d) (“A public officer who . . . is sued in an official capacity may be designated by official title rather than by name . . . .”). As such, the Sheriff requests that the Court substitute “Sheriff of Lake County, in his official capacity, ” in lieu of “Gary S. Borders, in his official capacity.” Notably, King acknowledges that as to the Lake County Sheriff's Office and Gary S. Borders, his designation of both was in error. Plaintiff's Response to Sheriff at 6. He explains that his intent was to name as a defendant the “Sheriff of Lake County, in his official capacity, ” and joins the Sheriff in requesting that the Court identify the Sheriff as the proper defendant in this action. Id.

         Rule 25(d) states that “[a]n action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party.” Fed. R. Civ. Pro. 25(d). See also Hafer v. Melo, 502 U.S. 21, 25 (1991) (“ . . . when officials sued in [their official] capacity in federal court die or leave office, their successors automatically assume their roles in the litigation”); Nat'l Wildlife Fed. v. Burford, No. 85-2238, 1987 WL 12129, *1 (D. D.C. June 2, 1987) (Rule 25(d) provides for the automatic substitution of a public official's successor in an action where the party is sued in his official capacity). Accordingly, the Court will substitute the Sheriff of Lake County, in his official capacity, for Defendant Borders, and will direct the Clerk of the Court to correct the case style accordingly.

         Additonally, the Court notes that the John Doe Defendants 1-10 should be dismissed from this action. Generally, the federal courts do not permit fictitious party pleading. See Williams v. DeKalb County Jail, 638 Fed.Appx. 976, 976-77 (11th Cir. 2016); Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1318 n.4 (11th Cir. 2015). A narrow exception exists where “the plaintiff's description of the defendant is so specific as to be ‘at the worst, surplusage.'” Minnis v. Keaton, No. 17-CIV-20575-GAYLES, 2017 WL 2471080, *8 (S.D. Fla. May 5, 2017) (citing Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992)), affirmed and adopted by Minnis v. Keaton, No. 17-cv-20575/GAYLES/WHITE, 2017 WL 2464835 (S.D. Fla. June 7, 2017). This exception permits a plaintiff to “proceed against an unnamed or fictitious defendant only when . . . it is clear that discovery will uncover the defendant's identity, or when the plaintiff's description of the individual is sufficiently clear to allow service of process on that defendant.” Id. Conversely, “failing to describe unnamed defendants, or merely giving general descriptions without making any timely discovery requests to attempt to ascertain their identities, will properly result in the dismissal of those defendants.” Id. Here, King, who is represented by counsel, has had the opportunity to investigate and determine the names of the ten unnamed officers, but has failed to do so. See White v. City of Birmingham, 96 F.Supp.3d 1260, 1281-82 (N.D. Ala. 2015) (where plaintiff is represented by counsel who fails to investigate names of otherwise fictitiously named defendants, claims against defendants should be dismissed). Given the Court's inability to identify the John Doe Defendants in order to summon them to answer the claims against them, Paulcin v. McNeil, No. 3:08cv378/RV/EMT, 2009 WL 311078, *2 (N.D. Fla. Feb. 9, 2009) ("If a John Doe cannot be identified sufficiently in order to summon that individual to appear, dismissal of that Defendant from this action will be warranted."), and the general prohibition against fictitious party pleading, the Court determines that the John Doe Defendants are due to be dismissed from this action.

         Finally, the Court addresses King's naming of the Mascotte Police Department as a defendant in this action. As noted earlier, the “[c]apacity to sue or be sued is determined . . . by the law of the state where the court is located.” Fed. R. Civ. Pro. 17(b)(3). Pursuant to Florida law, “municipalities have the power to sue and be sued.” Fla. City Police Dep't v. Corcoran, 661 So.2d 409, 410 (Fla. 3d Dist. Ct. App. 1995). Additionally “[w]here 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.” Id. See also Everett v. Marianna Police Dep't, No. 5:07cv284/RS/MD, 2008 WL 222713, at *2 (N.D. Fla. Jan. 25, 2008) (recognizing that "the 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"); Zayas v. Osceola Mental Health, Inc., No. 6:07-cv-1779-Orl-31KRS, 2007 WL 4287638, at *2 (M.D. Fla. Dec. 5, 2007) (acknowledging that "[t]he Eleventh Circuit has held that police departments are not usually considered legal entities subject to suit") (citing Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)); Hall v. M. Neal, T-10, No. 5:04-cv-65-Oc-10GRJ, 2006 WL 462600, at *3 (M.D. Fla. Feb. 27, 2006). Instead, the proper party to be named is the city or municipal corporation of which the police department is a part. Mann v. Hillsborough County Sheriff's Office, 946 F.Supp. 962, 970-71 (M.D. Fla. 1996).

         In this regard, the Mascotte Police Department contends that it is improperly named as a defendant and should be dismissed. Mascotte's Motion at 4. King acknowledges his error in naming the Mascotte Police Department, and states that it was his intent to designate the City of Mascotte as the proper defendant. Plaintiff's Response to Mascotte at 5.[12] Accordingly, the Court also will dismiss the Mascotte Police Department from this action.

         In summary, the Lake County Sheriff's Department, the Mascotte Police Department, and the John Doe Defendants will be dismissed from this action. Additionally, the Sheriff of Lake County, in his official capacity will be substituted for Gary S. Borders, in his official capacity as Sheriff of Lake County. The Court will limit its discussion of the merits of King's claims to those Defendants that remain after these dismissals and the substitution.

         b. Count I: § 1983 Substantive Due Process Claim against the Individual Defendants and Pickens

          In Count I of his Amended Complaint, King asserts that the Individual Defendants and Pickens violated Kimberly King's right “to be free from state actions that deprive her of life, liberty, or property in such a manner as to shock the conscience.” Amended Complaint at ¶ 65. More particularly, King claims that the acts of the Individual Defendants and Pickens

shock[] the conscience, in that they acted with deliberate indifference to the constitutional rights of . . . Decedent, and with purpose to harm unrelated to any legitimate law enforcement objective, when they continued a vehicular pursuit despite the duration of the chase, the high rates of speed, the ability to run [the driver's] license plate number and apprehend her at a later time, and the lack of probable cause to believe [the driver] had committed a violent crime or felony.

Id. at ¶ 66. In response, the Individual Defendants and Pickens argue that King's Amended Complaint fails to allege that they acted with the purpose to cause harm unrelated to any legitimate law enforcement objective, or at a minimum, they are entitled to qualified immunity. Individual Defendants' Response at 8, 19.

         “Qualified immunity protects from civil liability government officials who perform discretionary functions if the conduct of the officials does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As a result, this defense protects from suit “‘all but the plainly incompetent or those who knowingly violate the law.'”[13]Carr v. Tatangelo, 338 F.3d 1259, 1266 (11th Cir. 2003) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Indeed, as “‘government officials are not required to err on the side of caution, ' qualified immunity is appropriate in close cases where a reasonable officer could have believed that his actions were lawful.” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) (quoting Marsh v. Butler Cnty., 268 F.3d 1014, 1031 n. 8 (11th Cir. 2001)). In order to be ...


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