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Webster v. Fredricksen

United States District Court, M.D. Florida, Tampa Division

June 21, 2019

D'EDWARD WEBSTER, Plaintiff,
v.
SCOTT FREDRICKSEN, individually, CLIFFORD BELCHER, individually, GEORGE SOLAKIAN, individually, and CITY OF BROOKSVILLE, FLORIDA, Defendants.

          ORDER

          WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         The 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.

         When 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.

         Plaintiff 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”[1]; (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.

         LEGAL STANDARD

         To 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) (citation omitted).

         Courts 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).

         DISCUSSION

         The Court grants Defendants' motion and will address them in turn.

         I. Defendant Solakian: Count II

         Defendant 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 claims.

         Most 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 ...


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