United States District Court, M.D. Florida, Jacksonville Division
DENEANE CAMPBELL, as Personal Representative of the Estate of K.A., Deceased, Plaintiff,
THE CITY OF JACKSONVILLE, et al., Defendants.
MORALES HOWARD UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on the Defendants'
Motion to Dismiss, filed by the City of Jacksonville, Mike
Williams, individually and in his Official Capacity as
Sheriff of the Consolidated City of Jacksonville and Duval
County, and J.C. Nobles, (Doc. 5, Motion), on August 25,
2017. In the Motion, Defendants request that the Court
dismiss plaintiff Deneane Campbell's Complaint, (Doc. 2,
Complaint), which she filed in state court July 12,
2017. Deneane Campbell, who files this action as
the Personal Representative of the Estate of her deceased
minor son, K.A., opposes the Motion. See
Plaintiff's Response to Defendants' Motion to Dismiss
and Incorporated Memorandum of Law (Doc. 11, Response), filed
October 4, 2017. Accordingly, this matter is ripe for review.
Standard of Review
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 Randall v. Scott, 610 F.3d 701, 705
(11th Cir. 2010). 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 that is plausible on its
face.” Twombly, 550 U.S. at 570. “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.” 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
(internal quotations omitted); see also Jackson, 372
F.3d at 1262 (explaining that “conclusory 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. 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).
action arises out of an encounter between defendant Officer
J.C. Nobles (“Nobles”) and K.A., in which Nobles
shot K.A., resulting in his death.
early afternoon of March 19, 2015, Nobles responded to a
report of a stolen vehicle in Jacksonville, Florida.
Complaint at ¶ 8. Nobles identified the stolen vehicle
and waited for additional officers to arrive at the scene to
set up a tactical plan. Id. While he was waiting,
Nobles noticed two males approach the vehicle, enter it, and
drive away. Id. at ¶ 9. One of these males was
K.A., who was sixteen years old at the time. Id. at
¶ 4. Nobles followed the vehicle with his siren and
lights activated. After a short pursuit, the vehicle crashed
into bushes, and the two men in the car fled on foot. At the
same time, Nobles “exited his patrol vehicle, and drew
his weapon.” Id. at ¶ 10. He determined
that K.A. had a weapon in his hands, fired two shots at K.A.,
and pursued him on foot. Id. K.A. then discarded the
weapon he was carrying, fled a short distance, and crouched
behind a vehicle. Id. at ¶ 11. Nobles continued
his pursuit. As Nobles approached him, K.A. “stood and
turned to flee at which time . . . Nobles  fired two shots,
striking . . . K.A. in the back of the head.”
Id. K.A. died from his wounds. Id. at
time of these events, Nobles was “an officer acting
within the course and scope of his employment by the
Jacksonville Sheriff's Office and the City of
Jacksonville.” Id. at ¶ 7. Likewise,
Defendant Mike Williams (“Williams”) was
“the duly elected Sheriff of Jacksonville, Duval
County, Florida.” Id. at ¶ 6. In this
position, Williams “was responsible for the
supervision, training, instruction, control, discipline and
conduct of the employees and agents of the Jacksonville
Sheriff's Office [(JSO)], an agency of the City of
Jacksonville, ” id., including Nobles. As
such, “Nobles acted in conformance with the policies of
. . . [Sheriff] Williams.” Id. at ¶ 7.
Campbell (“Campbell”), K.A.'s mother, and the
Personal Representative of the Estate of K.A., brings this
action against the City of Jacksonville (“City”),
Williams, and Nobles. In Count I, she asserts a Florida state
law claim of negligent wrongful death against the City of
Jacksonville. Id. at 4-6. In support of this claim,
she asserts that the City, by and through its “law
enforcement officers, agents and employees, ” breached
its duty of care in the “exercise of the use of deadly
force in the pursuit” of fleeing suspects. Id.
at ¶ 16. More particularly, she asserts that the
City's negligence is evidenced by Nobles' failure to
follow the City's Deadly Force and Firearms policies,
id. at ¶ 16.a., coupled with the City's
failure to train, supervise and discipline Nobles for his
past alleged use of excessive and deadly force, id.
at ¶ 16.e-h, and the City's failure to take
appropriate corrective measures to prevent other unjustified
shootings “in light of the documented history within
the Jacksonville Sheriff's office of such” events.
Id. at ¶ 16.i.
Count II, Campbell asserts that Nobles is liable under 42
U.S.C. § 1983 for depriving K.A. of his life without
substantive due process of law under the Fourth and
Fourteenth Amendments. Id. at ¶¶ 18-22. In
Count III, she brings a § 1983 claim of municipal
liability against the City and Williams, asserting that
Williams “through his agents and employees, acting
within their authority and under color of state law,
instituted customs, practices, and/or policies . . . that
directly deprived . . . K.A. of his life and liberty without
due process of law . . . as a violation of the Fourth and
Fourteenth Amendments.” Id. at ¶
Within this claim, Campbell asserts that Williams failed to
adequately discipline his officers in the use of deadly
force; failed to adequately train his officers in regard to
the effective use of force, especially in the context of
pursuing fleeing and unarmed African-American male suspects;
and ratified his officers' excessive force decisions and
actions, thereby creating a custom, policy, and practice of
the use of excessive force. Id. at ¶¶ 25,
27. Additionally, as part of Count III Campbell asserts that
Nobles, in the context of his encounter with K.A., was a
final policy maker for Williams, in that Nobles'
“decisions were not immediately or effectively
reviewable.” Id. at ¶ 26. Campbell seeks
a jury trial, compensatory damages, punitive damages, and
attorney's fees and costs.
Arguments of the Parties
seek to dismiss all three counts in Campbell's Complaint.
As to Campbell's Count I negligence claim, Defendants
assert that the claim is barred by the state statute of
limitations. Motion at 3-5. Defendants further assert that
Count I should be dismissed because it constitutes a
“shotgun pleading, ” in that it “presents
multiple state claims interwoven in a haphazard
fashion.” Id. at 5-6 (internal quotations and
citations omitted). In parsing through the potential claims
subsumed within Count I, Defendants contend that Nobles'
failure to follow city policies is not sufficient to state a
claim of negligence, id. at 6; there is no such
claim under Florida law for the negligent use of excessive or
deadly force, id. at 7-8; and that as a matter of
law, Campbell cannot bring a claim of negligent training and
supervision against the City. Id. at 8-11.
addressing Campbell's federal claims against Nobles and
Williams for the unconstitutional deprivation of K.A.'s
life, Defendants assert that both claims are barred by the
relevant statute of limitations for § 1983 claims.
Id. at 11-12. Additionally, Defendants contend that
to the extent Campbell denominates Counts II and III as
presenting substantive due process violations under the
Fourteenth Amendment, those counts must be dismissed based on
the facts alleged. Id. at 12. Defendants
alternatively argue that Counts II and III are due to be
dismissed because Campbell fails to sufficiently allege a
constitutional violation as to either Nobles' actions or
those of the City. Id. at 13-15, 18-21. Finally,
Defendants assert that Nobles is entitled to qualified
immunity. Id. at 15-18.
response, Campbell asserts that Count I is not barred by the
state statute of limitations. Response at 3-4. She further
counters that the Complaint is not a “shotgun pleading,
” id. at 4-5, and that the allegations in
Count I are sufficient to state a claim under Florida law.
Id. at 5-7. Similarly, as to Counts II and III,
Campbell contends that neither claim is barred by the
appropriate limitations period for § 1983 claims, and
both are sufficiently pled under either the Fourteenth or
Fourth Amendments. Id. at 7-9. Specifically
addressing Count II against Nobles, Campbell proffers that
Nobles should not be afforded qualified immunity as the
Complaint sufficiently alleges a constitutional violation the
contours of which were clearly established at the time of the
events giving rise to the claim. Id. at 9-16.
Finally, Campbell contends that as to Count III against the
City and Williams, the Complaint sufficiently alleges the
existence of unconstitutional city policies, customs and
practices. Id. at 16.
Count I - Negligence Claim Against the City
Count I, Campbell asserts that the City “through its
law enforcement officers, agents, and employees, ”
failed to use reasonable care in any number of instances
associated with the City's implementation of, and
responses to, deadly force used by its officers. Complaint at
¶¶ 16-17. In the Motion, Defendants argue that the
applicable limitations period for Campbell's negligence
claims against the City has expired, and therefore the claim
should be dismissed as untimely. Motion at 3-5.
statute of limitations for Campbell's negligence claim
against the City for K.A.'s death is determined under
Florida Statutes section § 768.28, which requires that a
wrongful death claim brought “against the state or one
of its agencies or subdivisions for damages” be brought
within two years of the accrual of the action. See Cone v.
Orosa, No. 13-cv-24674-JLK, 2014 WL 1383028, *3 (S.D.
Fla. April 8, 2014) (noting two year statute of limitations
for wrongful death claims against a municipality). Under
Florida law, a cause of action for wrongful death accrues on
the date of the death. Fulton County Adm'r v.
Sullivan, 753 So.2d 549, 552 (Fla. 1999). However, a
party cannot bring a wrongful death claim against a
municipality until the claimant first presents “the
claim in writing to the appropriate agency” and the
“agency denies the claim in writing.” Fla. Stat.
Ann. § 768.28(6)(a). During the period between the
claimant's presentation of the claim and the agency's
denial of it, the limitations period is tolled. Id.
at § 768.28(6)(d). Florida law further provides that
“the failure of the . . . appropriate agency to make a
final disposition of the claim within 90 days after it is
filed shall be deemed a final denial of the claim.”
Id. See also Skyles v. McCoy, No.
6:16-cv-1968-Orl-37TBS, 2017 WL 1322071, *2-3 (M.D. Fla.
April 7, 2017) (statute of limitations is tolled for period
of time taken by agency to deny claim, or ninety days if
agency fails to make a final disposition of the claim);
Cone, 2014 WL 1383028 at *3 (same). Therefore,
Campbell had two years from the date of K.A.'s death to
file her wrongful death action against the City. However,
during the period in which she presented her claim to the
City pursuant to Florida Statute section 768.28(6)(a), the
limitations period paused, but would start again upon the
City's written denial of her claim, or in the absence of
a written denial, ninety days after her submitting notice to
K.A. died on Sunday, March 19, 2015, and as such without
tolling the two-year limitations period would end on Monday,
March 20, 2017. On January 23, 2017, Campbell presented
her notice of claim to the City pursuant to Florida Statutes
section 768.28(6)(a), Complaint at ¶ 2, which
temporarily stopped the running of the limitations period.
The City, however, did not provide Campbell with a written
denial of her claim. As a result, the limitations period
began to run again on April 24, 2017, ninety days after
Campbell presented her claim to the City. Therefore, the
limitations period on K.A.'s wrongful death claim expired
on June 19, 2017.
asserting that her negligence claim against the City is not
untimely, Campbell misreads section 768.28(6)(d) and
overlooks case law interpreting that provision.Campbell reads
the language which states that the “statute of
limitations for . . . wrongful death actions is tolled for
the period of time taken by the . . . appropriate agency to
deny the claim, ” Fla. Stat. Ann. § 768.28(6)(d),
to suggest that unless and until the City affirmatively
denies the claim, the limitations period remains tolled.
Response at 3-4. She argues that the language “to deny
the claim, ” indicates that there must be some action
by the agency before the limitations period resumes.
Id. at 4. Additionally, she contends that to the
extent section 768.28 sought to deviate from common law
sovereign immunity standards by imposing liability on state
and municipal entities, such statutes must be construed
strictly. Id. As such, she asserts that
[t]he legislature in amending section 768.28, as it relates
to claims for wrongful death, could easily have stated that
the limitations period was tolled until the agency denied the
claim or the expiration of 90 days without any
action. Instead, a strict reading of the statute indicates
that the limitations period is tolled until such time as the
agency affirmatively denies the claim. This places the onus
on the agency, if it wishes to end the tolling period, to
deny the claim. The expiration of the 90 day period without
such a denial permits the plaintiff to file suit but does not
end the tolling.
Based on a strict construction of the statute,
plaintiff's claim was timely filed.
Id. (emphasis in original). However, in making this
argument, Campbell overlooks the statute's explicit
language providing that “the failure of the . . .
appropriate agency to make a final disposition of a claim
within 90 days after it is filed shall be deemed a final
denial of the claim.” Fla. Stat. Ann. §
768.28(6)(d). This language is followed by the language which
directs that “[t]he statute of limitations for . . .
wrongful death actions is tolled for the period of time taken
by the . . . appropriate agency to deny the
claim.” Id. (emphasis added). Taken
together, these two sentences dictate that the limitations
period is tolled for the period of time that the agency takes
to deny the claim, and if the agency takes no such action
within ninety days, the claim will be deemed denied. Case law
supports this interpretation. See Thomas v. City of
Jacksonville, No. 3:13-cv-737-J-32MCR, 2017 WL 3316478,
*8 (M.D. Fla. Aug. 3, 2017) (agency's failure to dispose
of a claim within ninety days is deemed a final denial of the
claim); Skyles, 2017 WL 1322071 at *2-3 (statute of
limitations is tolled for period of time taken by agency to
deny claim, or ninety days if agency fails to make a final
disposition of the claim); Cone, 2014 WL 1383028 at
short, K.A.'s wrongful death claim accrued on March 19,
2015, and the limitations period began to run. It was tolled
beginning on January 23, 2017, for ninety days, at which
point the City's failure to respond to Campbell resulted
in a denial of her claim. The limitations period then resumed
on April 24, 2017, and expired on June 19, 2017.Campbell
filed her legal action against the City on July 12, 2017.
See Complaint at 1.Therefore, the Florida wrongful
death claim is due to be dismissed with prejudice as barred
by the statute of limitations.
Counts II and III - § 1983 Claims Against Nobles and the
Denomination of § 1983 Claims
both Counts II and III, Defendants assert the claims in these
counts are due to be dismissed because Campbell has
incorrectly labeled them as implicating K.A.'s
substantive due process rights. Motion at 12-13. While the
Court agrees that Campbell improperly denominated Counts II
and III, her erroneous naming of these claims does not
titles Count II as “Deprivation of Life Without
Substantive Due Process by Defendant Nobles.” Complaint
at 6. Likewise, she titles Count III as a claim of
“Municipal Liability for Deprivation of Life Without
Substantive Due Process.” Id. at 7. Within
each of these counts Campbell includes allegations consistent
with claims based on a substantive due process violation.
See id. at ¶ 19 (Nobles' action
“shockingly offends a universal sense of justice and
conscience”); ¶ 24 (municipal policy, practices,
and customs violated rights in a way that “shocks the
conscience”). See also County of Sacramento v.
Lewis, 523 U.S. 833, 847 (1998) (articulating the shocks
the conscience standard of review for substantive due process
claims); Cockrell v. Sparks, 510 F.3d 1307, 1311
(11th Cir. 2007 (applying shocks the conscience standard of
review for substantive due process claims). However, within
each count, Campbell also asserts that Nobles' and the
City's actions are subject to liability “under 42
U.S.C. section 1983, as a violation of the Fourth and
Fourteenth Amendments.” Complaint at ¶¶ 19,
Supreme Court has unequivocally instructed that
“all claims that law enforcement officers have
used excessive force - deadly or not - in the course of an
arrest, investigatory stop, or other ‘seizure' of a
free citizen should be analyzed under the Fourth Amendment
and its ‘reasonableness' standard, rather than
under a ‘substantive due process' approach.”
Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis
in original). Likewise, a “substantive due process
analysis is inappropriate if a plaintiff's claim is
covered by the Fourth Amendment.” Hardy v. Town of
Hayneville, 50 F.Supp.2d 1176, 1186 (M.D. Ala. 1999)
(citing County of Sacramento, 523 U.S. at 843).
See also Griffin v. Runyon, No. 5:04-CV-348 (DF),
2006 WL 1344818, *6 (M.D. Ga. May 16, 2006) (excessive force
claim is properly analyzed under the Fourth Amendment).
Moreover, the Court observes the well-established principle
that the Federal Rules “do not countenance dismissal of
a complaint for [an] imperfect statement of the legal theory
supporting the claim asserted.” See Johnson v. City
of Shelby, Miss., 135 S.Ct. 346, 346 (2014); see
also Eiber Radiology, Inc. v. Toshiba Am. Med. Sys.,
Inc., 673 Fed.Appx. 925, 927 (11th Cir. 2016). Indeed,
“[a] complaint need not specify in detail the precise
theory giving rise to recovery. All that is required is that
the defendant be on notice as to the claim being asserted
against him and the grounds on which it rests.”
Sams v. United Food & Comm. Workers Int'l Union,
AFL-CIO, CLC, 866 F.2d 1380, 1384 (11th Cir. 1989);
see also Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 604 (5th Cir. 1981) (“The form of the complaint is
not significant if it alleges facts upon which relief can be
granted, even if it fails to categorize correctly the legal
theory giving rise to the claim.”). See also Keene
v. Prine, 477 Fed.Appx. 575, 584 (11th Cir.
2012); Evans v. McClain of Ga., Inc.,
131 F.3d 957, 964 n.2 (11th Cir. 1997); Southern Pan
Servs. Co. v. S.B. Ballard Const. Co., No.
3:07-cv-592-J-33TEM, 2008 WL 3200236, *4 (M.D. Fla. Aug. 6,
facts alleged in Campbell's Complaint, however unartfully
titled, focus on Nobles' alleged use of excessive and
deadly force, and of the City's purported customs,
policies, and practices instituting, supporting, and
permitting the same. See Complaint, ¶¶
11-12, 16. Similarly, subsumed in both Counts II and III,
Campbell asserts that Nobles and the City violated K.A.'s
Fourth Amendment rights. Id. at ¶¶ 19, 24.
Notably, Defendants had no difficulty identifying that the
factual basis of Campbell's claims are grounded in the
Fourth Amendment and responding accordingly. See
Motion at 14-15. Therefore, to the extent Defendants seek
dismissal of Counts II and III on the basis of how Campbell
named those counts in the Complaint, that request is due to
be denied. The Court seeks to avoid turning pleading into
“a game of skill in which one misstep by counsel may be
decisive to the outcome.” Siedle v. Nat'l
Ass'n of Sec. Dealers, 248 F.Supp.2d 1140, 1143
(M.D. Fla. 2002) (quoting Conley v. Gibson, 355 U.S.
41, 48 (1957), abrogated on other grounds by Bell
Atlantic Corp., 550 U.S. 544, 562-63 (2007)).
Accordingly, the Court will proceed to review the
Defendants' substantive challenges to the sufficiency of
Counts II and III of the Complaint.