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Cushman v. City of Largo

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

June 26, 2019

CITY OF LARGO, FLORIDA and BRIAN LIVERNOIS, in his individual capacity, Defendants.



         This cause is before the Court on Defendants' Motions to Dismiss (Dkts. 13, 21) and Plaintiff's Responses in Opposition (Dkts. 20, 25). Upon review of these filings, and being otherwise advised in the premises, the Court grants Defendant City of Largo's motion and denies Defendant Brian Livernois's motion, except for the intentional infliction of emotional distress claim.


         Plaintiff Natalia Cushman is suing the City of Largo and Brian Livernois, in his individual capacity, for alleged constitutional violations and related state law tort claims based on her arrest at a L.A. Fitness Gym. The Court has twice dismissed Cushman's complaint as a shotgun pleading. So this is Cushman's third attempt to properly plead her claims. The relevant facts of the second amended complaint, which is the operative complaint, now follow.

         Cushman was approximately sixty years old at the time of the subject incident. Specifically, on January 2, 2016, at about 4:00pm, she was at a local L.A. Fitness gym, located in Largo, Florida. Around this same time, Officer Brian Livernois was conducting an investigation into an alleged battery that had occurred at the gym. Officer Livernois entered the woman's bathroom where Cushman was sitting without any clothes or shoes on, wrapped in only a sheet. Officer Livernois “made no attempt to assess the circumstances for which he was dispatched to the L.A. Fitness gym and instead immediately approached [Cushman] and ordered her to stand.” (Dkt. 10 at ¶14).

         Cushman complied with Officer Livernois's order and stood; while standing she asked him why he was in the woman's locker room. Officer Livernois responded: “You will be arrested, and you will find your answers in jail.” At the same time, he grabbed her right hand, “twisting it to her back and handcuff[ed] just the right hand.” Id. at ¶16. Then, Officer Livernois grabbed and twisted Cushman's left hand and pushed her face forcefully into a nearby locker door.

         Cushman felt excruciating pain in her chest area and told Officer Livernois she was experiencing pain. He pushed her down on the bench and requested the front desk staff to help Cushman put on her leggings. Cushman asked to wear her underwear first. Officer Livernois said: “If you want your underwear, then you are going to jail naked in your sheet.” Id. at ¶19.

         Officer Livernois never told Cushman why she was being arrested. He never requested her identification prior to conducting the arrest. He dragged Cushman out of the gym and put her in his police car. Cushman was wearing only the sheet. She was not wearing shoes. Cushman began to experience difficulty breathing. English is not her first language, but she tried to tell Officer Livernois that she was unable to breathe. She remained in handcuffs during this time.

         After Cushman's arrest, she was taken to Largo Medical Center where she was diagnosed with a sprained wrist and contusions related to the force Officer Livernois used during the arrest. Her body was covered with numerous contusions.

         Cushman was charged with resisting arrest with violence. She had never been arrested prior to this incident. Cushman spent a night in jail and had to obtain criminal defense counsel. The next day, she was released on bond. Subsequently, the Pinellas County State Attorney's Office investigated the case and determined that “the facts and circumstances” did not warrant prosecution. Id. at ¶28.

         Cushman alleges that Liudmila Smeth Buell (with a date of birth of 2/7/79) was the actual perpertrator of the incident leading to Cushman's unlawful arrest. This case is at issue upon Defendants' motions to dismiss.


         Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim on which relief can be granted. When reviewing a motion to dismiss, courts must limit their consideration to the well-pleaded allegations, documents central to or referred to in the complaint, and matters judicially noticed. See La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal citations omitted); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Courts must accept all factual allegations as true, and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007).

         Legal conclusions, however, “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). In fact, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). To survive a motion to dismiss, a complaint must instead 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 (internal quotation marks and citations omitted). This plausibility standard is met when the plaintiff pleads ...

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