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Moulton v. Prosper

United States District Court, S.D. Florida

September 11, 2019

JEVAUGHN MOULTON, Plaintiff,
v.
GUY PROSPER, et al., Defendants.

          ORDER

          ROY K. ALTMAN UNITED STATES DISTRICT JUDGE

         THIS 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.

         THE FACTS

         On July 8, 2014, two men committed a strong-arm robbery in Coral Springs, Florida. See Defs. SOF ¶ 1.[1] 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.

         Earlier that night, the Plaintiff, Jevaughn Moulton, had been playing basketball with some friends in Coconut Creek. See Id. ¶ 4; Pl.'s SOF ¶ 4.[2] 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.

         Seeing 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.

         Unable 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.

         What (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, [3] 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.

         When 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.

         In his 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. 79:11-80:13.

         The 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. ¶ 20.

         THE LAW

         Summary 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.

         At 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).

         At 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 Cir. 1981)).

         ANALYSIS

         The 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.

         The 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.

         As 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).

         I. The Initial Deployment

         The 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 generally Mot.

         A. Claims Against Sergeant Prosper

         The 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.

         i. Excessive Force

          This 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 “Graham ...


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