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Webster v. Fredricksen

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

August 21, 2019

D'EDWARD WEBSTER, Plaintiff,
v.
SCOTT FREDRICKSEN, individually, CLIFFORD BELCHER, individually, GEORGE SOLAKIAN, individually, and CITY OF BROOKSVILLE, FLORIDA, Defendants.

          ORDER

          WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.

         This 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 prejudice.

         BACKGROUND

         The 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.

         When 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.

         Plaintiff 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”[1]; (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.

         LEGAL STANDARD

         To 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) (citation omitted).

         Courts 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).

         DISCUSSION

         The Court grants Defendants' motions and will address them in turn.

         I. Defendant Solakian: Count II

         Count 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.

         The 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 ...


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