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Clarke v. Phelan

United States District Court, S.D. Florida

February 20, 2018

Dara Clarke, Plaintiff,
Charles Phelan, and others, Defendants.


          Robert N. Scola, Jr. United States District Judge

         This matter is before the Court upon two motions for summary judgment filed by the Defendants Terry Scott and Joseph Craig (together, the “Officers” or “Officer Defendants”), and the Defendant City of Aventura (the “City”) (ECF Nos. 60, 119). After careful consideration of the motions, all opposing and supporting submissions, and the applicable case law, the Court denies the Officer Defendants' motion (ECF No. 60) and grants the City's motion (ECF No. 119).

         1. Introduction

         This case arises as a result of a bitter dispute over property rights between individual homeowners in the Island Estates development on the southern island located in Dumbfoundling Bay within the City, and a group of developers and their principals (collectively, the “Developer Defendants”).[1] The Plaintiff Dara Clarke, and her husband David Clarke, as well as a number of other homeowners, have clashed with the Developer Defendants and the City over the construction of a sidewalk along a portion of land that the homeowners contend belongs to them, and on which the Developer Defendants maintain they had a right to build pursuant to an easement, and as a requirement by the City related to the development of high rise condominiums on the northern island. For purposes of this case, the Court is not concerned with the details or merits of the property dispute, but rather with the events that transpired on the evening of February 26, 2015.

         2. Relevant Facts

         At the time, the Plaintiff and her husband were staying at a condominium nearby while their home in the Island Estates development was being renovated. (Pl's. Statement of Material Facts (“Pl's. SOMF”), ECF Nos. 98, 135 at ¶ 8.)[2] On February 26, 2015, the Plaintiff had parked a Porsche sports utility vehicle (“SUV”) on the swale in front of her home in the area where the Developer Defendants intended to build the sidewalk, near her other vehicle (a BMW), which she and her husband had left parked at the property the night before. (Defs.' Statement of Material Facts (“Defs'. SOMF”), ECF Nos. 64, 120 at ¶¶ 8-9; Pl's. SOF at ¶¶ 8-9.) The Developer Defendants began construction of the curb and sidewalk that morning near one of the Clarkes' neighbor's property (id. at ¶ 10), coincidentally immediately after a state appeals court reversed an injunction preventing the construction. In order to prevent further construction, Clarke sat down on the property to block the workers' progress. (Id. at ¶ 11.) She left at around midday, after moving the BMW to the marina parking area, and after learning about a development in related state court proceedings, with the understanding that the Developer Defendants would move forward with the sidewalk construction in her absence. (Id. at ¶ 12.)

         When Clarke returned later that evening, the Developer Defendants had poured concrete into wood forms in an area of the swale that had been dug out. (Id. at ¶ 13.) Clarke then left again to pick up her husband, and upon their return, Mr. Clarke, who was driving, drove over the freshly-poured concrete in the SUV. (Id. at ¶¶ 14-15.) During this time, the Clarkes were observed by one of the Developer Defendants, Charles Phelan. (Id. at 16.) The parties exchanged “pleasantries, ” and the Clarkes left to retrieve their other vehicle, a BMW, which was parked at the Island Estate marina. (Id. at ¶ 18.) Phelan followed them to the marina, where Clarke exited the SUV, and got into the BMW. (Id. at ¶¶ 18-19.) Thereafter, Phelan returned to the Clarke's property, and upon observing Phelan heading in that direction, Clarke decided to follow him and call the police. (Id. at ¶ 20.) At some point, Phelan had contacted another Developer Defendant, Gary Cohen, who also contacted the police to report that the Clarkes had intentionally damaged the newly-constructed curb and sidewalk. (Id. at ¶ 21.)

         At this juncture, the factual account of events diverges significantly. According to Clarke, she attempted to speak to the Officer Defendants first when they arrived on scene, but Craig told her that he would “get to [her] in a minute, ” and they instead began speaking to Phelan. (Id. at ¶¶ 22-23.) Phelan told the Officer Defendants that he had observed the Clarkes drive over the freshly poured concrete. (Id. at ¶ 23.) The parties dispute whether Clarke was agitated or not, with Clarke maintaining that she was calm, and the City and Officer Defendants contending that she was very upset and yelling. (Id. at ¶ 26.) Clarke further maintains that she never raised her voice, and attempted to show the Officer Defendants a survey of her home on her telephone, in order to better explain the situation to them. (Pl's. SOMF at ¶ 26.) The Officer Defendants, on the other hand, assert that Clarke shoved her phone into their faces and insisted that they look at the survey. (Defs'. SOMF ¶ 26.) Rigaud Seraphin, an individual who was providing security services for the worksite, and who arrived at the scene as events were unfolding, said in his statement that he heard a commotion and shouting from the development marina where he parked his car. (ECF No. 96-6 at 4-5.)

         According to Clarke, she tried to show Officer Craig the survey on her phone (ECF No. 58-1 at 82-83), but Craig maintains that she was talking to Sergeant Scott (ECF No. 96-3 at 38). Clarke describes Craig as being dismissive and telling her that he didn't care, and that rich people think they can do whatever they want. (ECF No. 58-1 at 85.) Clarke never raised her voice (id. at 83). She then turned to Sergeant Scott and asked him why Craig was being rude to her. (Id. at 86.) At that point, the officers looked at each other, Scott stomped on Clarke's foot, and he grabbed his handcuffs and her right hand, which he twisted behind her back. (ECF No. 96-1 at 23.) Then Craig grabbed her other hand and twisted it behind her back, the Officer Defendants handcuffed her, put their knees into the back of her calves, and lifted her up by her arms. (Id.) Clarke maintains that the Officer Defendants held her up by her arms for between thirty seconds to a minute after she was handcuffed. (Id. at 24.) Clarke sustained injuries as a result, including a left shoulder impingement, a labrum tear, an inflamed rotator cuff, and herniation in her neck. (Id.; ECF No. 96-7.) Thereafter, the Officer Defendants dragged Clarke to the squad car.

         Craig, on the other hand, stated that Clarke disobeyed an order from Scott to step back after she put the phone in his face. (ECF No. 96-3 at 44.) Craig describes Clarke as kicking, swinging, and trying to pull away when Sergeant Scott grabbed her arm after she disobeyed his command (ECF No. 96-3 at 42). Officer Craig said that he stepped in to help Sergeant Scott restrain Clarke after she disobeyed the command to step back (id. at 45). Officer Craig testified at his deposition that Clarke continued to struggle with the Officer Defendants as they pulled her toward the squad car. (Id. at 48.)

         Sergeant Scott's account of the events is consistent with Officer Craig's, though Scott's testimony is that he felt that Clarke might actually injure him by hitting him in the face with her cell phone. (ECF No. 96-4 at 49.) Both the Officer Defendants deny that anyone stepped on Clarke's foot, or dug their knees into the back of her calves. Officer Worthington, another officer on-scene and the author of the police report, also testified that Clarke was very irate, and he was unable to speak to her as a result. (ECF No. 96-5 at 26-27.) In addition, Officer Worthington's account of the incident is consistent with the Officer Defendants'. (Id. at 29, 34-36, 37, 40-41.)

         The City has in place official policies regarding the use of force by its officers and procedures for investigation of complaints. (ECF Nos. 118-2, 118-3.) It is undisputed that Clarke did not lodge a complaint directly with the City after her arrest, but filed this lawsuit instead. According to Captain Castronovo, the individual in charge of overseeing the internal affairs unit at the Aventura police department (ECF No. 134-1 at 6), the department receives complaints in person, or online. (Id. at 14.) Captain Castronovo also testified that it is the department's policy and practice that any complaint of excessive force of which the department becomes aware is investigated (id. at 16-17), and during deposition, Captain Castronovo detailed the investigation procedure. Captain Castronovo also testified that in the past ten years, there had not been one finding of excessive force by internal affairs or through the citizen complaint process against any of the City's officers. (Id. at 27.)

         3. Legal Standard

         Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. “An issue of fact is ‘material' if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260.

         All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004). “If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

         Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of fact. Id. at 249; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the nonmoving party. Id.

         4. ...

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