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Vicente-Abad v. Sonnenberg

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

July 29, 2019

CARLOS IVAN VICENTE-ABAD, Plaintiff,
v.
TIMOTHY SONNENBERG, in his individual capacity, Defendants.

          ORDER

          PAUL G. BYRON UNITED STATES DISTRICT JUDGE

         This cause comes before the Court without oral argument on Defendant Officer Timothy Sonnenberg's Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. 43 (the “Motion”)) and responsive briefs (Docs. 59, 61), and Defendant's Unopposed Request for Judicial Notice (Doc. 53). Upon consideration and review of the record as cited by the parties in their respective briefs, Defendant's Request for Judicial Notice will be granted, and Defendant's Motion for Summary Judgment is due to be granted in part and denied in part.

         I. BACKGROUND[1]

         This action arises out of the shooting of Carlos Ivan Vicente-Abad (“Plaintiff") by Officer Timothy Sonnenberg (“Defendant”) of the Melbourne Police Department on February 15, 2015. (Doc. 2). Plaintiff brings constitutional and state law claims against Defendant in his individual capacity. (Id.).

         On the evening of February 15, 2015, Defendant and Officer D'Errico were patrolling the “high crime” Area 9, part of the University Boulevard corridor, in a marked police vehicle. (Doc. 57, ¶¶ 1-3). Shortly after midnight, Defendant and Officer D'Errico observed a grey four-door Chevrolet (“Suspect Vehicle”) driving east at a high rate of speed in excess of the posted speed limit of thirty-five miles per hour.[2] (Doc. 43, p. 3; Doc. 57, ¶¶ 6-7; Doc. 59, p. 3). Defendant and Officer D'Errico followed the grey Chevrolet into the Shull Manor Apartment parking lot. (Doc. 44, ¶¶ 15-16; Doc. 45, ¶¶ 15-16). The Suspect Vehicle then proceeded to the back of the complex and pulled into a parking spot. (Doc. 44, ¶¶ 19-21; Doc. 45, ¶¶ 17-18; Doc. 59-1, pp. 8, 11, 12).

         After stopping a few feet away, Defendant activated and shined a spotlight on the Suspect Vehicle prompting the driver, James Markel Turpin (“Turpin”), to pull the vehicle forward, make a three-point turn, and then back into a space. (Doc. 44, ¶ 24; Doc. 45, ¶ 22; Doc. 59-1, p.12; Doc. 59-5, p. 9). The police car was thus positioned between the rows of parked cars directly east of the Suspect Vehicle. (Doc. 44, ¶¶ 22-23; Doc. 45, ¶¶ 20-21; Doc. 57, ¶¶ 11-12). Officer D'Errico and Defendant stepped out of their cruiser to approach, but Defendant had to turn around to retrieve his flashlight. (Doc. 44, ¶¶ 25, 27; Doc. 59-1, p. 4). While shining a flashlight into the Suspect Vehicle, Officer D'Errico approached and observed three individuals in the car. (Doc. 45, ¶ 24). According to statements from the car's occupants, each was aware that the spotlight was from a police vehicle and that an officer was approaching.[3] (Doc. 59-1, pp. 8, 10-12). However, neither Officer D'Errico nor Defendant announced to Plaintiff and other occupants in the vehicle that the officers were approaching the vehicle. (Doc. 59-1, pp. 6, 9).

         When Officer D'Errico reached the Suspect Vehicle, the officers testified the tires made a squealing noise as the suspect vehicle sped forward. (Doc. 44, ¶ 27; Doc. 45, ¶ 25). Plaintiff disputes this fact. According to Plaintiff, Turpin, and an eyewitness, Shamor Bledsoe, the Suspect Vehicle started to slowly drive out of the parking spot to pass between the police cruiser and the parked cars.[4] (Doc. 59-1, pp. 10, 11, 13). When Turpin began to drive east out of the parking spot, Defendant stepped out of the cruiser in the “narrow[5] gap between [the] patrol car and the parked cars.” (Doc. 44, ¶ 29; Doc. 57, ¶ 17). According to Defendant and Officer D'Errico, the Suspect Vehicle headed directly toward Defendant. (Doc. 44, ¶¶ 27-29; Doc. 45, ¶ 28). Contrarily, Bledsoe testified the vehicle was never heading directly at either Defendant or Officer D'Errico. (Doc. 59-4, p. 2).

         At this time, Defendant shot ten rounds at the approaching Suspect Vehicle, with five rounds striking the front and four rounds striking the driver's side of the vehicle. (Doc. 44, ¶ 31; Doc. 57, ¶¶ 19-21). The Suspect Vehicle continued past the police cruiser and struck the curb. (Doc. 46, ¶ 18). Plaintiff was struck in the neck and the left bicep by one of the fired bullets. (Doc. 59-5, p. 9). After the Suspect Vehicle stopped, Defendant ordered Plaintiff out of the car. (Doc. 59-1, p. 5). Once Plaintiff exited the car, Defendant discovered Plaintiff had been shot in the neck and arm and called for medical assistance. (Id.). During the course of his medical treatment, Plaintiff's shoes were removed exposing a bag of cocaine hidden in his shoe. (Doc. 59-6, p. 2). Plaintiff was charged with possession of less than twenty-eight grams of cocaine and possession of drug paraphernalia. (Doc. 47). Plaintiff pled no contest to the charge for possession and was sentenced to two years of probation. (Doc. 48; Doc. 49).

         The following day, crime scene investigators came to survey the scene. (Doc. 46, ¶¶ 10-13). According to the scene mapping, the Suspect Vehicle traveled 59 feet, 3.6 inches from the original parking spot to the midpoint of the patrol vehicle. (Id. ¶ 17). The Suspect Vehicle then traveled another 59 feet, 8.53 inches before it struck the curb. (Id. ¶ 18). After hitting the curb, the vehicle completely stopped after traveling 74 feet, 11.4 inches further. (Id. at ¶ 19). Thus, the Suspect Vehicle traveled a total of 193 feet, 11.53 inches from its original parked position. (Id. ¶¶ 17-19). During the investigation, Defendant explained that he feared for his life due to the speed and size of the Suspect Vehicle approaching him. (Doc. 44, ¶ 30-31).

         Thereafter, Plaintiff brought suit in this Court. (Doc. 2). The Complaint asserts three Counts against Defendant, in his individual capacity: two 42 U.S.C. § 1983 claims for excessive force in violation of the Fourth Amendment and for false imprisonment (Counts I and II); and a state law battery claim (C o un t III) . (Id.). Defendant moves for summary judgment on all claims. (Doc. 43). With briefing complete, the matter is ripe.

         II. JUDICIAL NOTICE

         Under Federal Rule of Evidence 201(b), a “court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonable be questioned.” Additionally, a court “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c)(2) (emphasis added).

         Defendant properly attached the state court docket entries in Case Number 05-2015-CF-015952-AXXX-XX from the Florida state court, supplying the Court with the necessary information support judicial notice. (Doc. 53). The accuracy of the supplied court records is easily verified and cannot be reasonably questioned. Fed.R.Evid. 201(b)(2). Thus, the Court takes judicial notice of the state court records regarding Plaintiff's arrest and adjudication of guilt for the possession of cocaine.

         III. STANDARD OF REVIEW

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” to support its position that it is entitled to summary judgment. Fed.R.Civ.P. 56(c)(1)(A). A factual dispute is “genuine” only if “a reasonable jury could return a verdict for the nonmoving ...


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