United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
action concerns an alleged unlawful seizure and use of a
taser by officers. The matter comes to the Court on motions
to dismiss various counts in Plaintiff Webster's Second
Amended Complaint, Dkt. 47, from Defendants City of
Brooksville, Dkt. 51, Officer George Solakian, Dkt. 48, and
Officer Clifford Belcher, Dkt. 50. Plaintiff has not
responded to Defendants' motions; as such, they are
deemed unopposed. Alvarez v. Specialized Loan Servicing
LLC, No. 8:15-CV-1388-T-27AEP, 2015 WL 4609573, at *1
(M.D. Fla. July 30, 2015) (citing Local Rule 3.01(b)). The
Court GRANTS the motions.
Second Amended Complaint's factual allegations, which the
Court accepts as true on a motion to dismiss, are
substantially similar to the Amended Complaint. As outlined
in the Court's prior order, Dkt. 46, on August 29, 2016,
Brooksville Police Officers Solakian, Belcher, and
Fredricksen were looking for a suspect with an outstanding
warrant in Brooksville, Florida. Dkt. 47 ¶ 13. While
looking, the officers saw Plaintiff and another individual,
Desmond Fagin, “standing on private property at the end
of [a] driveway.” Id. ¶ 19. The officers
approached the individuals, inquired about the suspect, and
asked for identification. Id. ¶¶ 20-21.
Both Plaintiff and Fagin gave their identification to the
officers. Id. ¶ 22.
Fagin handed the officers his identification, “Officer
Solakian grabbed his arm and started asking about
weed.” Id. ¶ 23. Officer Fredricksen
unholstered his taser and, “emboldened by
Fredricksen's show of force, Officer Solakian slammed Mr.
Fagin into the ground.” Id. ¶¶
25-26. Plaintiff then “backed up and turned around in
fear” before Officer Fredricksen discharged his taser
on Plaintiff. Id. ¶¶ 29-30. Plaintiff
alleges a variety of resulting injuries and damages.
Id. ¶ 37.
raises seven claims in his Second Amended Complaint: (1)
Fourth Amendment violations under 42 U.S.C. § 1983
against Defendant Fredricksen for “illegal stop or
arrest claim based on lack of probable cause” or, in
the alternative, “the discrete claim of excessive
force”; (2) “illegal stop or arrest claim
based on lack of probable cause against Defendant Solakian
and failure to intervene”; (3) failure to intervene in
illegal stop or arrest against Defendant Belcher; (4) a
§ 1983 claim against Brooksville; and (5)-(7)
“supplemental state claims against [the officers] based
on respondeat superior of City of Brooksville.” Dkt. 47
at 6-12. Defendants have filed motions to dismiss to which
Plaintiff did not respond.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead sufficient facts to state a claim that is
“plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In
considering the motion, the court accepts all factual
allegations of the complaint as true and construes them in
the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008)
should limit their “consideration to the well-pleaded
factual allegations, documents central to or referenced in
the complaint, and matters judicially noticed.” La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845
(11th Cir. 2004) (citations omitted). Courts may also
consider documents attached to a motion to dismiss if they
are (1) central to the plaintiff's claim; and (2)
undisputed or, in other words, the “authenticity of the
document is not challenged.” Horsley v. Feldt,
304 F.3d 1125, 1134 (11th Cir. 2002) (citations omitted).
Court grants Defendants' motion and will address them in
Defendant Solakian: Count II
Solakian moves to dismiss Count II in which Plaintiff merely
alleges that “Officer Solakian illegally detained or
seized [Plaintiff] without a warrant or probable cause when
he slammed Mr. Fagin into the ground.” Dkt. 47 at 7.
Putting aside the inconsistencies between the Amended
Complaint and Second Amended Complaint, compare Dkt.
27 ¶¶ 43-46 with Dkt. 47 ¶¶
26-30, there are once more problems with Plaintiff's
fundamentally, probable cause or a warrant is not a
requirement to detain a suspect-reasonable suspicion is.
See Terry v. Ohio, 392 U.S. 1 (1968). Secondly,
though the Court in its prior order noted that Solakian
tackling Fagin might be relevant to the question of whether a
reasonable person in Plaintiff's shoes would feel free to
leave, Dkt. 46 at 5, this barebones allegation is by itself