United States District Court, S.D. Florida
ALTMAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Defendants'
Motion for Summary Judgment (the “Motion”) [ECF
No. 16], filed on March 13, 2019. The Plaintiff filed his
Response in Opposition (the “Response”) [ECF No.
24] on April 3, 2019. And the matter ripened on April 9,
2019, when the Defendants filed their Reply (the
“Reply”) [ECF No. 26]. The Court held a hearing
on July 30, 2019, [ECF No. 42], at which the parties
presented their oral arguments.
8, 2014, two men committed a strong-arm robbery in Coral
Springs, Florida. See Defs. SOF ¶
An eyewitness to the robbery called the police and described
the robbers as tall, black, male teenagers wearing dark
clothing. See Id. Officers John Yulfo, Camille
Dumornay, and Taylor Anderson of the Coral Springs Police
Department responded to the call and, a few minutes later,
arrived at the scene. See Id. ¶ 3. In their
efforts to locate the suspects, Officers Yulfo and Dumornay
parked their vehicle at the intersection of State Road 7 and
W. Sample Road-in Coral Springs, Florida. See Id.
¶ 6. Officer Anderson, sitting in a separate car, waited
at the same intersection. See id.
that night, the Plaintiff, Jevaughn Moulton, had been playing
basketball with some friends in Coconut Creek. See
Id. ¶ 4; Pl.'s SOF ¶ 4. Moulton, a
19-year-old black male, is almost six feet tall. See
Defs.' SOF ¶ 8. After the game, the Plaintiff
borrowed a bicycle from a friend and was riding home when he
encountered the three officers on Sample Road. See
Defs.' SOF ¶¶ 5, 8.
the Plaintiff-who was wearing dark clothing-Officer Dumornay
ordered him to stop his bike and wait for the officers by the
curb. See Id. Hearing this command, the Plaintiff
stopped and rested his bicycle on the ground. See id
But, when Officer Dumornay tried to handcuff him, the
Plaintiff pulled away and began running eastbound on Sample
Road. See Defs.' SOF ¶ 9-11. With the
officers now in pursuit, the Plaintiff turned into a shopping
plaza, jumped into a dumpster, and closed the lid behind him.
See Id. ¶ 10.
to locate the Plaintiff, the officers called Sergeant Guy
Prosper and his canine partner, Bo. See Id.
¶¶ 3, 12. Bo is a seventy-pound Belgian Malinois
trained both to “track” a suspect and, if
necessary, to “apprehen[d]” him. See Id.
When so “apprehen[ding]” a suspect, Bo is trained
to “bite and hold”-but not to “maul.”
See Id. ¶ 12. Shortly after his arrival, Bo
picked up a scent and followed it to the dumpster. See
Id. ¶ 14. As Bo approached the dumpster, he began
to bark. See Id. At this point, Sergeant Prosper met
Bo at the front of the dumpster. See Id. ¶ 16.
(precisely) happened next is in dispute. Sergeant Prosper
avers that he gave the Plaintiff two verbal warnings-by
which, he says, he made clear that, if the Plaintiff refused
to leave the dumpster voluntarily, he would send the dog into
the dumpster after him. See Defs.' SOF ¶
16. For his part, the Plaintiff admits that he heard people
talking outside the dumpster,  but claims that he could not make
out what they were saying because, as he concedes, he had his
“head tucked in.” Moulton Dep. 71:12. This
testimony, the Plaintiff now contends, supports his view
that, in fact, no warnings were given. See Pl.'s
SOF ¶ 16.
the Plaintiff refused to surrender, Prosper lifted the lid of
the dumpster and commanded Bo to enter and apprehend him.
See Defs.' SOF ¶ 17. As Bo jumped into the
dumpster, he latched first onto the Plaintiffs head,
disfiguring his ear. See Id. ¶ 18. As the
Plaintiff writhed, Bo released his head and bit into his arm.
See Id. After a brief struggle, the Plaintiff
managed to release himself from the dog and to jump out of
the dumpster. See id.
Response to the Motion for Summary Judgment, the Plaintiff
alleges that Bo likewise jumped out of the dumpster and,
seeing him, seized him by the leg. See Resp. ¶
4; Defs.' SOF ¶ 18; Pl.'s SOF ¶ 18. He says
that he then fell to the ground, where Bo mauled him for
approximately three to five more minutes. See
Pl.'s SOF ¶ 19. The officers eventually handcuffed
the Plaintiff and, thirty seconds later, employed a
“tactical release” to free Bo's grip. See
id.; Defs.' SOF ¶ 19. As a result of the
various dog bites he sustained, the Plaintiff suffered
injuries over his entire body. See Moulton Dep.
Plaintiff filed suit against the Defendants on June 6, 2018,
and his Complaint contains four counts: excessive force
against Sergeant Prosper for the use of the dog (Count I);
excessive force against Officer Anderson for failure to
intervene (Count II); excessive force against Officer Yulfo
for failure to intervene (Count III); and excessive force
against Officer Dumornay for failure to intervene (Count IV).
See Compl. [ECF No. 1] at 4-11. Notably, the
Complaint never alleges that Bo bit the Plaintiff after he
emerged from the dumpster. To the contrary, the Complaint
suggests precisely the opposite when it avers, without
further elaboration, that the Plaintiff “exited the
dumpster and was taken into custody by one or more [officers]
for resisting arrest without violence.” Id.
judgment is appropriate where there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a).
In determining whether to grant summary judgment, the Court
must consider “particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c). “By its very terms, this standard
provides that the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). An issue of fact is
“material” if it might affect the outcome of the
case under the governing law. Id. at 248. A dispute
about a material fact is “genuine” if the
evidence could lead a reasonable jury to find for the
non-moving party. Id.
summary judgment, the moving party bears the burden of
proving the absence of a genuine issue of material fact-and,
as a result, all factual inferences are drawn in favor of the
non-moving party. See e.g., Allen v. Tyson Foods
Inc., 121 F.3d 642, 646 (11th Cir. 1997). Once the
moving party satisfies its initial burden, the burden shifts
to the non-moving party to come forward with evidence that a
genuine issue of material fact precludes summary judgment.
See Bailey v. Allgas, Inc., 284 F.3d 1237,
1243 (11th Cir. 2002); Fed.R.Civ.P. 56(e). “If
reasonable minds could differ on the inferences arising from
undisputed facts, then a court should deny summary
judgment.” Miranda v. B & B Cash Grocery Store,
Inc., 975 F.2d 1518, 1534 (11th Cir. 1992). Notably,
assessments of credibility-no less than the weighing of
evidence-are jury questions not susceptible of disposition at
summary judgment. Strickland v. Norfolk S. Ry. Co.,
692 F.3d 1151, 1154 (11th Cir. 2012).
summary judgment, the Court must analyze the record as a
whole-and not just the evidence the parties have singled out
for consideration. See Clinkscales v. Chevron U.S.A.,
Inc., 831 F.2d 1565, 1570 (11th Cir. 1987). Of course,
if there are any genuine issues of material fact, the Court
must deny summary judgment and proceed to trial. Whelan
v. Royal Caribbean Cruises Ltd., No. 1:12-CV-22481, 2013
WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citing
Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th
Defendants move for summary judgment on two grounds. First,
they argue that, under the circumstances, Sergeant
Prosper's decision to deploy the police dog was
“objectively reasonable.” See Mot. at
3-9. Second, they contend that, even if the use of the police
dog was unreasonable, the officers are nonetheless entitled
to qualified immunity. See Id. at 9-18.
Plaintiff offers three responses. First, he says that the
dog's deployment was not “objectively
reasonable” because: (i) the officers had no reason to
fear that they'd be ambushed, see Resp.
¶¶ 6-9; (ii) the officers had no basis to believe
that the Plaintiff was armed, see Id. ¶¶
10-12; (iii) the officers did not warn the Plaintiff before
deploying the dog, see Id. ¶¶ 13-16; and
(iv) a strong-arm robbery is not a particularly serious
crime, see Id. ¶¶ 17-18. Second, the
Plaintiff argues that the officers are not entitled to
qualified immunity. See Id. ¶¶ 19-25. And
third, the Plaintiff insists that summary judgment is
inappropriate because there is a genuine dispute with respect
to the mauling he now says occurred after he left the
dumpster. See Id. ¶¶ 26-30.
these allegations make clear, the Plaintiff's claim
implicates two distinct uses of the police dog. The first
occurred when Sergeant Prosper lifted the lid of the dumpster
and directed Bo inside-what we might call “the initial
deployment.” Here, the Plaintiff argues that both
Sergeant Prosper's deployment of the dog and the other
officers' failure to intervene in that deployment
constituted unconstitutionally excessive force. See
generally Compl. The second (allegedly improper) use of
the dog occurred after the Plaintiff left the
dumpster-what we call “the second deployment.”
See Resp. ¶ 4. Where, as here, a
plaintiff's constitutional challenge implicates two
discrete aspects of a police dog's deployment-an initial,
and then a subsequent (or second), deployment-the Eleventh
Circuit has traditionally treated the two uses separately.
See, e.g., Trammell v. Thomason, 335
Fed.Appx. 835, 842 (11th Cir. 2009); Edwards v.
Shanley, 666 F.3d 1289, 1295-96 (11th Cir. 2012).
The Initial Deployment
Plaintiff alleges that the initial deployment of the police
dog was unconstitutional in two ways. First, he
claims that Sergeant Prosper acted unconstitutionally in
releasing Bo into the dumpster. See Compl. at Count
I. Second, he says that Officers Dumornay, Yulfo,
and Anderson acted unconstitutionally in failing to
intervene. See Id. at Counts II-IV. The Defendants
counter that the initial deployment was “objectively
reasonable, ” and that, even if it wasn't, they are
nonetheless entitled to qualified immunity. See
Claims Against Sergeant Prosper
Plaintiff contends that Sergeant Prosper's decision to
release the dog into the dumpster violated his right to be
free from the use of excessive force. Specifically, the
Plaintiff says, the initial deployment of the dog was
unconstitutional because Sergeant Prosper did not provide a
warning, see Resp. ¶¶ 13-16; because
Sergeant Prosper had no cause to fear an ambush, see
Id. ¶¶ 6-9; and because Sergeant Prosper had
no reason to believe that the Plaintiff was armed, see
Id. ¶¶ 10-12.
Court analyzes an officer's decision to effectuate a
seizure via a police dog under the rubric of the Fourth
Amendment. See, e.g., Priester v. City of
Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000).
“The Fourth Amendment's freedom from unreasonable
searches and seizures encompasses the plain right to be free
from the use of excessive force in the course of an
arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197
(11th Cir. 2002). To adjudicate the Plaintiff's excessive
force claim under the Fourth Amendment, this Court must
determine “whether the officers' actions are
objectively reasonable in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.” Graham v.
Connor, 490 U.S. 386, 397 (1989) (citations omitted)
(cleaned up). In assessing “objective reasonableness,
” the Court looks to “the severity of the crime
at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.” Id. at 396 (the