United States District Court, M.D. Florida, Orlando Division
G. BYRON UNITED STATES DISTRICT JUDGE
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.
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.).
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. (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).
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. (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).
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. (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 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).
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).
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).
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.
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).
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.
STANDARD OF REVIEW
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 ...