United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
action concerns an alleged unlawful seizure and use of a
taser by officers. The matter comes to the Court on motions
to dismiss and strike various counts of Plaintiff
Webster's Third Amended Complaint. Dkt. 55. Before the
Court are motions by Defendants City of Brooksville, Dkt. 65;
Officer George Solakian, Dkt. 58; and Officer Clifford
Belcher, Dkt. 57. Plaintiff filed responses in opposition to
Officer Solakian's motion, Dkt. 61; Officer Clifford
Belcher's motion, Dkt. 60; and City of Brooksville's
motion, Dkt. 71. The Court grants the motions without
factual allegations of the Third Amended Complaint must be
accepted as true at this stage of the proceedings.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). Further, Plaintiff's counsel certifies these facts
as true in good faith under Fed.R.Civ.P. 11 by signing the
pleading. The Third Amended Complaint's factual
allegations are substantially similar to the Second Amended
Complaint. As outlined in the Court's prior orders, Dkts.
46 & 53, on August 29, 2016, Brooksville Police Officers
Solakian, Belcher, and Fredricksen were looking for a suspect
with an outstanding warrant in Brooksville, Florida. Dkt. 55
¶ 13. While looking, the officers saw Plaintiff and
another individual, Desmond Fagin (“Fagin”),
“standing on private property at the end of the
driveway of 716 Hazel Avenue.” Id. ¶ 28.
The officers approached the individuals, inquired about the
suspect, and asked for identification. Id.
¶¶ 29-30. Both Plaintiff and Fagin gave their
identification to the officers. Id. ¶ 31.
Fagin handed the officers his identification, “Officer
Solakian grabbed his arm and started asking about
weed.” Id. ¶ 32. Officer Fredricksen
unholstered his taser and, “emboldened by
Fredricksen's show of force, Officer Solakian slammed Mr.
Fagin into the ground.” Id. ¶¶ 34
& 38. “Plaintiff then backed up and turned around
in fear” before Officer Fredricksen discharged his
taser on Plaintiff. Id. ¶¶ 39-40.
Plaintiff alleges a variety of resulting injuries and
damages. Id. ¶¶ 41-42.
raises eight claims in his Third 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”; (2) “illegal stop, detention or
arrest claim against Defendant Solakian and a failure to
intervene”; (3) “failure to intervene against
Defendant Belcher”; (4) § 1983 claim against City
of Brooksville; (5) “supplemental state claim for false
arrest against defendant, City of Brooksville”; (6)
“supplemental state claim for battery or excessive
force against defendant, City of Brooksville”; (7)
“supplemental state claim for false arrest against
defendant, City of Brooksville”; and (8)
“supplemental state claim against defendant, City of
Brooksville[.]” Id. Defendants filed various
motions to dismiss to which Plaintiff responded. Dkts. 55,
57, 58, 60, 61, 65, 71.
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 in 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)
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).
Court grants Defendants' motions and will address them in
Defendant Solakian: Count II
II must be replead. It claims that when Solakian tackled or
“slammed to the ground” Plaintiff's associate
Fagin, Solakian effected an arrest of Plaintiff by proxy. The
Count also contains an allegation of Solakian's failure
to intervene in Fredricksen's tasering of Plaintiff. The
Count is thus duplicitous, and the first ground (arrest by
proxy) is borderline specious.
claims brought here are intentional torts. Fagin is not a
party. If Plaintiff is contending that by tackling Fagin to
the ground that Solakian had an intent to illegally arrest
Webster, that ...