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Gaviria v. Guerra

United States District Court, S.D. Florida

April 19, 2018

FRANCISCO GUERRA, et al., Defendants.



         THIS CAUSE came before the Court on Defendants, Francisco Guerra, Jennifer Alvarez, Mayor Carlos A. Gimenez, and Miami-Dade County's Motion to Dismiss Counts II, IV, and VIII of Plaintiff's Amended Complaint [ECF No. 26], filed February 9, 2018. Plaintiff, Brian Gaviria, filed a Response [ECF No. 29], to which Defendants filed a Reply [ECF No. 31]. The Court has carefully considered the parties' written submissions, the record, and applicable law.

         I. BACKGROUND

         This action arises out of an encounter between Gaviria and police officers Guerra and Alvarez at Gaviria's home. (See generally Amended Complaint [ECF No. 25]). In the early morning hours of April 21, 2016, Guerra and Alvarez arrived at Gaviria's home to investigate a noise complaint. (See Id. ¶ 15). Gaviria and his brother met the two officers at the front door of the home, and Gaviria questioned the officers as to their purpose for stopping by. (See Id. ¶¶ 16- 17). Gaviria and the officers had a heated exchange of words. (See Id. ¶ 17).

         At some point, Guerra and Alvarez entered the home, even though neither officer had a search or arrest warrant authorizing entry, and Gaviria never granted them consent to enter his home. (See Id. ¶¶ 18-20). Gaviria began to video record the encounter and continued to question them as to their purpose and authority for entry. (See Id. ¶¶ 18, 21). Guerra stated he did not need a “judicial order” to enter the home and instructed Gaviria to produce identification. (Id. ¶ 22 (internal quotation marks omitted)).

         Shortly thereafter, without provocation or threat of harm by Gaviria or his brother, Guerra shot Gaviria with a Taser or other electronic-control device. (See Id. ¶ 23). Gaviria's body was given three different discharges of an electric current. (See id.). Guerra and Alvarez then used “unnecessary physical force” to restrain and handcuff Gaviria. (Id. ¶ 24). Guerra punched Gaviria as he was on the ground; while Alvarez kicked Gaviria's midsection, placed her boot on his chest and neck, and forcibly placed Gaviria in handcuffs with Guerra's assistance. (See Id. ¶¶ 25-26). Gaviria did not resist the officers with violence or otherwise. (See Id. ¶ 27).

         Once questioned by other Miami-Dade police officers about the incident, Guerra and Alvarez misrepresented numerous factual details, and falsely stated: when they arrived at Gaviria's home they overheard loud noise emanating from inside; Gaviria instantly became irate when he came into contact with the officers; Gaviria appeared to be under the influence of alcohol; Gaviria had bloodshot eyes, slurred speech, and an odor of alcohol; Gaviria was belligerent and pushed Guerra onto his back; and Gaviria mounted Guerra necessitating Alvarez to strike Gaviria's head. (See Id. ¶ 28). Alvarez and Guerra “colluded and/or conspired together to fabricate their own version of events” prior to their respective depositions on August 29, 2016 and October 10, 2016 as part of the state court criminal case brought against Gaviria. (Id. ¶ 29 (citing Deposition of Jennifer Alvarez [ECF No. 30-1]; Deposition of Francisco Guerra [ECF No. 30-2][1])).

         In contrast to Guerra and Alvarez's testimony, police officer Manuel Machado, while transporting Gaviria to jail, observed: Gaviria was calm; he was cooperative; he did not resist in any way; he did not seem unbalanced; and he did not have any odor of alcohol. (See Id. ¶ 30). Additionally, Alvarez and Guerra presented conflicting accounts in their sworn testimony: Guerra claims Gaviria pushed him into Alvarez, but Alvarez denies that happening; Guerra claims Gaviria had a criminal violation at the time he attempted to take him into custody, but Alvarez denies that; Guerra claims Gaviria used violence toward him prior to attempting to take him into custody, but Alvarez denies that; and Guerra claims Gaviria invited him into the home, but Alvarez said there was no invitation. (See Id. ¶ 31).

         Guerra and Alvarez “colluded and/or conspired to unlawfully gain access to Gaviria[] and his brother's cellular phones to locate the video recordings to destroy them.” (Id. ¶ 32 (alteration added)). “Other officers were involved in the attempt to unlawfully acquire access to Gaviria's cell phone.” (Id.).

         Detective Alain Rodriguez brought the phone to Joel Tavio, a digital forensics examiner with the Miami-Dade Police Department, to download the videos from the phone. (See Id. ¶ 33). Gaviria gave Guerra, Alvarez, and other MDPD officers the passcode to his phone after the officers falsely told him he was “legally required to provide the passcode” and stated they needed to obtain the videos on the phone “quickly.” (Id. (internal quotation marks omitted)). Rodriguez claimed there was consent for the search of the phone, but Gaviria asserts it was “obtained under fraudulent pretenses.” (Id.). Once Guerra and Alvarez accessed the phone using Gaviria's fraudulently obtained passcode, they deleted the video footage taken by Gaviria. (See Id. ¶ 45). Gaviria did not discover the officers' destruction of evidence until he was released from custody, but he was able to retrieve the videos because they were uploaded to iCloud prior to their deletion by Guerra and Alvarez. (See id.).

         The MDPD had a “pattern, policy and custom” to “fraudulently attempt to obtain consent, and to quickly act upon the consent before it is uncovered.” (Id. ¶ 34). Tavio indicated consent cases were a “priority” in the MDPD office because the consent may later be revoked. (Id.).

         Guerra and Alvarez also attempted to alter the crime scene to create the appearance of a struggle with Gaviria. (See Id. ¶ 35). As part of an effort to cover up their violations of Gaviria's civil rights, they took alcoholic beverage containers and threw them around Gaviria's living room, damaged a piece of electronic equipment on the wall, and broke Gaviria's coffee table. (See id.).

         According to Gaviria, the County “routinely fails to punish officers who commit clear civil rights violations as part of its longstanding widespread deliberately indifferent custom, habit, practice and/or policy of granting officers a ‘free-pass' for improper conduct.” (Id. ¶ 36). Guerra and Alvarez's actions violating Gaviria's civil rights occurred “pursuant to the preexisting and ongoing deliberately indifferent official custom, practice, decision, policy, training, and supervision of the . . . County acting under the color of state law.” (Id. ¶ 37 (alteration added)). The County has encouraged, tolerated, ratified, and acquiesced in a dangerous environment of police brutality by: failing to conduct sufficient training or supervision with respect to the constitutional limitations on the use of force; failing to adequately punish unconstitutional uses of force; tolerating the use of unconstitutional force; failing to properly or neutrally investigate citizen complaints of excessive force; and tolerating, encouraging, and permitting collusive statements by involved officers in such situations. (See Id. ¶ 38).

         The County and the MDPD have a longstanding and widespread custom, habit, practice, or policy to find no fault with police conduct “as long as any story is given by police, regardless of how incredible.” (Id. ¶ 40). The Division of Internal Affairs routinely ignores complaints of excessive force and collusion between acting officers (see Id. ¶ 41), and fails to pursue inconsistencies in officer or witness accounts (see Id. ¶ 42). The MDPD's failure to thoroughly investigate claims leads to a heightened risk MDPD officers will use force excessively, as there is no danger of retribution or punishment. (See Id. ¶ 43). Plaintiff alleges “[u]pon information and belief . . . other members of the public have been hurt by at least some of the same officers who have been the subject of citizen complaints both prior to April 21, 2016 and thereafter.” (Id. ¶ 44 (alterations added)).

         The County was a “policymaker[]” for the MDPD (id. ¶ 75 (alteration added)); and “was charged with the responsibility of adopting and implementing rules, policies, practices, customs and procedures for the proper and efficient maintenance, supervision, and control of MDPD Officers” (id. ¶ 76). The County had a duty to “exercise reasonable care in hiring, training, and retaining safe and competent employees.” (Id. ¶ 77). The County “failed to adequately train or otherwise supervise and direct” the MDPD and its officers concerning the use of excessive force in police encounters (id. ¶ 78); even though it was “on notice” of a history of widespread abuse and of a well-settled policy, practice, and custom of MDPD officers committing “extreme and reckless actions” (id. ¶ 79). Although both Guerra and Alvarez had “reports of excessive use of force incidents, ” the County ratified and condoned their unlawful behavior, resulting in Gaviria's subsequent injuries. (Id. ¶¶ 83-84).

         The Amended Complaint contains eight counts: a claim under 42 U.S.C. section 1983 for excessive force in violation of the Fourth and Fourteenth Amendments against Guerra and Alvarez (“Count I”); a claim under 42 U.S.C. sections 1981 and 1983 for deliberately indifferent policies, practices, customs, training and supervision in violation of the Fourth and Fourteenth Amendments against the County (“Count II”); a claim under section 1983 for unlawful entry and search of a home in violation of the Fourth Amendment against Guerra and Alvarez (“Count III”); a claim under section 1983 for unlawful entry and search of a cellular phone in violation of the Fourth Amendment against Guerra and Alvarez (“Count IV”); a claim under section 1983 for false arrest and false imprisonment in violation of the Fourth and Fourteenth Amendments against Guerra and Alvarez (“Count V”); a malicious prosecution claim against Guerra and Alvarez (“Count VI”); a battery claim against Guerra and Alvarez (“Count VII”); and a battery claim against the County (“Count VIII”). (See generally id.).

         Defendants move to dismiss Counts II, IV, and VIII under Federal Rule of Civil Procedure 12(b)(6) for failure to state claims for relief. (See generally Mot.). Defendants argue Count II should be dismissed because Plaintiff fails to identify an official or unofficial County policy linked to his injuries, and fails to allege a final policymaker for the County. (See Id. 3-6). Defendants argue Count IV fails to state a claim for illegal search of Plaintiff's cell phone against Alvarez and Guerra because Plaintiff admits he consented to the search and fails to properly allege the consent was obtained fraudulently, and because Plaintiff does not allege Alvarez and Guerra actually possessed his cell phone. (See Id. 6-7). Finally, Defendants contend Count VIII should be dismissed because Plaintiff fails to state a battery claim against the County, as the County is not liable for malicious tortious acts by its police officers under Florida law. (See Id. 7-8).


         Rule 8(a) requires a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although this pleading standard “does not require ‘detailed factual allegations, ' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings must contain “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 (citation omitted).

         “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (alteration added) (quoting Twombly, 550 U.S. at 570). Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679 (citing Twombly, 550 U.S. at 556). To meet this plausibility standard, a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556).

         When a plaintiff alleges fraud or mistake, he must “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). A plaintiff must allege: “(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.” Holguin v. Celebrity Cruises, Inc., No. 10-20215-CIV, 2010 WL 1837808, at *2 (S.D. Fla. May 4, 2010) (internal quotation marks omitted) (quoting Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)). The purpose of Rule 9(b)'s particularity requirement is to “alert[] defendants to the precise misconduct with which they are charged and protect[] defendants against spurious charges of immoral and fraudulent behavior.” Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988) (citations and internal quotation marks omitted; alterations added). “Rule 9(b) applies by its plain language to all averments of fraud, whether they are part of a claim of fraud or not.” Lone Star Ladies Inv. Club v. Schlotzsky's Inc., 238 F.3d 363, 368 (5th Cir. 2001) (footnote call number omitted); see also Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1278 (11th Cir. 2006) (holding plaintiffs must plead non-fraud claims with particularity when those claims are based on defendants' fraudulent conduct).

         In addressing a Rule 12(b)(6) motion, the Court considers the allegations of the complaint, exhibits attached or incorporated by reference, and exhibits attached to the motion to dismiss if they are central to Plaintiff's claim and undisputed. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); Space Coast Credit Union ...

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