United States District Court, M.D. Florida, Tampa Division
RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE
THE COURT is Defendant, City of St.
Petersburg's, Dispositive Motion to Dismiss Count II of
the Amended Complaint (Dkt. 12), and Plaintiff's Response
in Opposition (Dkt. 16). After careful consideration of the
allegations of Count II of the Amended Complaint (Dkt. 10),
the arguments, and the applicable law, the Court concludes
the motion is due to be granted.
II seeks § 1983 liability and damages against the City
of St. Petersburg (the City) for Fourth Amendment violations
including excessive force in the arrest of Stephen Woodworth
on the night of January 31, 2014. The allegations of this
count, which this Court must accept as true, are as follows.
Mr. Woodworth was parked in a public parking lot adjacent to
a community pool. A security guard called the police for a
“welfare check” on Mr. Woodworth. Two officers
responded, Mr. Woodworth refused medical care, and the two
officers summoned the DUI unit. Officers Pienik and Carter
with the DUI unit arrived, and Officer Pienik began
questioning Mr. Woodworth.
Mr. Woodworth did not threaten or pose any physical
resistance to him, Officer Pienik became impatient and
aggressive in his questioning. When Mr. Woodworth asked to
speak with the officer's supervisor, Officer Pienik began
shouting obscenities, threw a clipboard to the ground,
grabbed Mr. Woodworth, and “violently” threw him
to the ground. He hit the concrete hard, rolled to the prone
position, and appeared to fall in and out of consciousness.
Officer Carter unsuccessfully attempted to shoot him with a
taser. Officer Pienik then stepped in and shot him in the
back with a taser. None of the three officers watching
expressed disapproval or attempted to stop Officer Pienik,
either when he threw Mr. Woodworth to the ground or when he
tased him. Plaintiff's counsel is in possession
of a videotape of the entire incident.
alleges in Count II that the two unconstitutional uses of
unreasonable force - the “violent take-down” and
the successful discharge of the taser to a non-resisting
victim - “stemmed from the policies, customs, or usages
of the City.” Because none of the three officers at the
scene intervened to stop Officer Pienik at either of the
inflictions of force, the scenario represented
“unwritten but de facto policies, customs and
usages” of the City's police
department. Those policies were “the moving
force of the constitutional violations.” There are no
allegations pertaining to other incidents of use of
unconstitutional, unreasonable force.
City contends that the amended complaint alleges only a
single incident of a Fourth Amendment violation, which cannot
establish proof of a custom, policy or practice under
Monell v. New York City Department of Social
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). “Official municipal policy includes the
decisions of a government's lawmakers, the acts of its
policymaking officials, and practices so persistent and
widespread as to practically have the force of law.”
Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct.
1350, 1359, 179 L.Ed.2d 417 (2011) (citations omitted).
“Proof of a single incident of unconstitutional
activity is not sufficient to impose liability” under
Monell. Craig v. Floyd Cnty., Ga., 643 F.3d
1306, 1310 (11th Cir. 2011) (quoting City of
Okla. City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct.
2427, 2436, 85 L.Ed.2d 791 (1985) (plurality)); Grech v.
Clayton Cnty., Ga., 335 F.3d 1326, 1330 n.6
(11th Cir. 2003). The custom must be so pervasive
and longstanding that the officials “must have known
about it but failed to stop it.” Craig, 643
F.3d at 1310 (citation omitted).
noted above, a single episode of unconstitutional behavior,
no matter how horrendous, does not constitute proof of the
policy itself. See also Martin v. City of Macon,
Ga., 702 Fed.Appx. 941 (11th Cir. 2017)
(unpublished) (affirming summary judgment that city was not
liable under § 1983 for unconstitutional actions of
police officer where no official policy called for officer to
handcuff eight-year old boy in boy's apartment as a way
to show him not to throw things at animals, and that there
was no policy to always handcuff while conducting police
investigation or to handcuff under these circumstances). At
least two district court cases have relied on Martin
in addressing whether a complaint states a claim for relief
for § 1983 municipal liability. See Stryker v. City
of Homewood, 2017 WL 3191097 (N.D. Ala. Jul. 28, 2017);
Riha ex rel. I.C. v. Polk Cnty. Sch. Dist., 2017 WL
2986227 (M.D. Fla. Jul. 13, 2017).
complaint in Riha alleged that one bus driver and
one bus attendant failed to notice one sleeping, special
needs child on the school bus on two different mornings.
Riha ex rel. I.C. v. Polk Cnty. Sch. Dist., 2017 WL
2986227 (M.D. Fla. Jul. 13, 2017). The child eventually
awoke, found a way off the locked bus, and walked home. The
school did not report the absences to the parent. In
dismissing the count, the court noted there were “no
allegations that the driver left another child in a locked
bus or that any other driver left any child in a locked
bus.” Neither was it alleged that there was a pattern
of leaving special needs children on buses, which the school
board knew of and deliberately disregarded. The conclusory
allegations that the school board had certain persistent and
widespread customs were insufficient.
Stryker, the count for § 1983 liability against
the city survived a motion to dismiss. Numerous paragraphs
referred to the “large number of reports” to the
city concerning the police officers' use of excessive
force, the police officers' omission of key facts in
their routine reports to justify the force used, the
supervisors' cursory review of such reports, the numerous
claims and lawsuits filed against the police officers, and
the police chiefs' failure to have excessive force
complaints investigated by internal affairs. The allegations
were found to adequately set forth the city's knowledge
of the culture and knowledge of the previous incidents of
II against the City alleges one single instance. There is no
reference to other similar complaints or acts of excessive
force against the City or its police officers. There is no
hint that the City had knowledge of any culture of using
excessive force. While the conduct alleged may be
reprehensible, the one single instance, without more, will
not bestow knowledge or deliberate indifference to the City.
Plaintiff's argument that the silence and perceived
approval on the part of the officers standing by in this
egregious situation is sufficient to allege the necessary
custom, policy, or practice on the part of the City, does not
overcome Monell. By alleging compliance of the
officers in this single instance, Plaintiff argues that the
officers would not have acted in such conformity had
excessive force not been meted out on a regular basis. He
argues that the heightened pleading standard no longer
employed in § 1983 cases should not be incorrectly
applied to this case. See Hoefling v. City of Miami,
811 F.3d 1271, 1275-76 (11th Cir. 2016)
(explaining there is no longer a heightened pleading standard
in § 1983 cases). That the law requires more than a
single instance to establish a custom, policy, or practice on
the part of a municipality, however, does not equate to a
heightened pleading standard.
therefore ORDERED AND ADJUDGED that
Defendant, City of St. Petersburg's, Dispositive Motion
to Dismiss Count II of the Amended Complaint (Dkt. 12) is
GRANTED. Count II of the Amended Complaint
is dismissed. This case will proceed on the remaining counts.