United States District Court, M.D. Florida, Tampa Division
S. MOODY, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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.
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.
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.
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.
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.
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.
TO DISMISS STANDARD
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).
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 ...