United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
N. Scola, Jr., United States District Judge.
Robert Elie Menard seeks to recover damages from injuries he
sustained during an interaction with several police officers,
including the defendant Officer Carlos D. Angulo. Menard also
seeks to hold Miami-Dade County (the “County”)
vicariously liable for Officer Angulo's alleged tortious
conduct. The County moves to dismiss the sole count against
it for vicarious liability, arguing that it is barred by
sovereign immunity. For the reasons explained in this Order,
the Court grants the County's motion to
dismiss. (ECF No. 22.) The Court dismisses
count V of the amended complaint but does so without
prejudice and with leave to amend.
alleges that he was parked in front of his cousin's house
when police cars surrounded his vehicle for no apparent
reason. (ECF No. 19 at ¶¶ 15-17.) Menard and his
passenger, Prosper, rolled down their windows and made their
hands visible to the officers. (Id. at ¶ 18.)
Officer Angola sprang out of his vehicle, drew his weapon,
and pointed it at Menard's head. (Id. at ¶
19.) He ran to the driver's side door with his gun drawn
while shouting at Menard. (Id. at ¶ 19.)
Officer Angulo requested Menard's driver's license,
and Menard gave it to him. (Id. at ¶ 21.)
Officer Angulo then asked for his vehicle's registration.
Menard asked “for what?” and Officer Angulo
ripped the car door open and forcefully pulled Menard from
the vehicle. He yanked Menard's left hand behind his
back. (Id. at ¶¶ 22-23.) The amended
complaint never indicates why Officer Angulo and the others
acted in this way except for racial profiling. (Id.
at ¶¶ 20, 36).
point Sergeant Lugo intervened by tapping Officer Angulo on
the shoulder. Officer Angulo roughly pushed Menard against
his vehicle, but released his grip on Menard. (Id.
at ¶ 25.) Menard was held against his will for over
seventeen minutes and ultimately cited for having too dark a
tint on his vehicle's windows. (Id. at
¶¶ 27-28.) Menard was treated at the Aventura
Hospital emergency room for his injuries, and was later
diagnosed with post-traumatic stress disorder. (Id.
at ¶¶ 29-31.)
internal affairs investigation following the incident,
Officer Angulo lied under oath. (Id. at ¶ 32.)
He asserted that he had pulled over Menard's vehicle for
a traffic violation. (Id. at ¶ 33-34.) The
officers at the scene intentionally turned off their body
cameras during their interaction with Menard. (Id.
at ¶ 42.) Menard filed his first amended complaint,
which brings § 1983 and tort claims against Officer
Angulo for his actions and seeks to hold the County
vicariously liable for Officer Angulo's alleged tortious
conduct. (Id. at ¶¶ 76-83.) Specifically,
Menard alleges that the County is liable for Officer
Angulo's false imprisonment and assault and battery.
(Id. at ¶¶ 76-83.)
considering a motion to dismiss, filed under Federal Rule of
Civil Procedure 12(b)(6), must accept all of the
complaint's allegations as true, construing them in the
light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
Although a pleading need only contain a short and plain
statement of the claim showing that the pleader is entitled
to relief, a plaintiff must nevertheless articulate
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “But where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (quoting Fed.R.Civ.P. 8(a)(2)) (internal punctuation
omitted). A court must dismiss a plaintiff's claims if
she fails to nudge her “claims across the line from
conceivable to plausible.” Twombly, 550 U.S.
County moves to dismiss Count V of Menard's first amended
complaint because it is entitled to sovereign immunity under
§ 768.28(9)(a), Florida Statutes.
Statute § 768.28(9)(a) provides that municipalities are
immune from tort liability “for the acts or omissions
of an officer, employee, or agent” when those acts are
“committed in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human
rights, safety, or property.” Fla. Stat. §
768.28(9)(a). Therefore, a municipality cannot be held
vicariously liable for the bad faith or malicious actions of
its officers, employees and agents. Id. The County
argues that it cannot be liable for Officer Angulo's
actions because he acted in bad faith or with a malicious
purpose when he falsely imprisoned and assaulted and battered
Menard. The Court agrees.
Complaint alleges that Officer Angulo ran at Menard shouting
with his gun pointed at his head even though he was
unprovoked and unthreatened- Menard's hands hanging out
of the window, visible to the officers. (ECF No. 19 at
¶¶ 15-19.) Officer Angulo forcefully pulled Menard
from the vehicle and aggressively twisted his hand behind his
back, all while cursing and swelling with anger. (ECF No. 19
at ¶¶ 15-19.) The complaint does not allege or
imply any motivation for this unprovoked behavior except
racial profiling. Menard alleges that the incident was
“a startling reality check of what happens in broad
daylight when two young black men are sitting in a vehicle
with too much tint.” (ECF No. 19 at ¶ 36.)
Tellingly, the officers, including Officer Angulo, turned
their body cameras off for the interaction, and later lied
about the events. (ECF No. 19 at ¶¶ 33-35, 42.)
Officer Angulo's efforts to cover up the incident at the
time and afterwards further indicate that he was acting with
courts in this district have dismissed false arrest and
battery claims under similar circumstances against
municipalities if the individual defendant acted with
malicious intent. See Alicea v. Miami-Dade County,
No. 13-21549-Bloom, DE# 95 (S.D. Fla. Oct. 25, 2014)
(Although the court acknowledged that the plaintiff's
“complaint skillfully avoids the words
‘malicious, bad faith or in reckless and wanton
disregard for human rights, safety, or property, ” the
court held that sovereign immunity barred the claim against
the county because the complaint alleged that the officer
“made false statements and material omissions”
regarding the plaintiff's arrest and
“‘violently pummeled' [the plaintiff] in the
head, face and torso [which was done] without reasonable
suspicion or probable cause.”); Mena v. Miami-Dade
County, No. 14-20030-CIV, 2014 WL 3667806 (S.D. Fla.
July 22, 2014) (Moreno, J.) (finding Section 768.28(9)(a)
barred the claim against the county where the factual
allegations “that [the officers'] actions-pulling
Mr. Mena out of the car, throwing Mr. And Mrs. Mena, beating
them, handcuffing them, and arresting them-can only be
characterized as actions ‘committed in bad faith or
with malicious purpose' ”); Casado v.
Miami-Dade County, 340 F.Supp.3d 1320, 1330 (S.D. Fla.
2018) (O'Sullivan, J.) (sovereign immunity barred the
claim because the complaint alleged that the plaintiff was
pulled out of his car and punched in the face several times,
the officer turned off his body camera, and the officer lied
about the incident).
argues that he pled that Officer Angulo acted in bad faith
and maliciously in Counts III and IV, but that he pled Count
V in the alternative by “specifically omit[ting] any
mention of ‘malicious' or ‘wanton or
willful' behavior.” (ECF No. 27 at 3.) While
Federal Rule of Civil Procedure 8(e)(2) authorizes pleading
in the alternative, and courts have noted the frequency with
which § 768.28 plaintiffs resort to pleading
“mutually exclusive” claims in the alternative,
see, e.g., Reyes v. City of Miami Beach, 2007 WL
4199606 at *3 (S.D.Fla.2007), courts have also
“recognized the limits to a plaintiffs ability to
advance alternative theories in § 768.28 cases where the
factual allegations can only suggest malice or bad faith on
the part of the individual defendant.” Terry v.
Rodriguez, 2010 WL 2342382, *2 (S.D. Fla. June 7, 2010).
It is “inappropriate to include inconsistent factual
allegations within a claim.” Smith v. City of Fort
Pierce, 2018 WL 5787269, *7 (S.D. Fla. Nov. 5, 2018);
see also Thomson v. ...