United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
matter comes to the Court on a Second Motion to Dismiss filed
by the Defendants, Chad Chronister and Dean Greene. Dkt. 28.
Plaintiff, Racquel Sanchez, filed a response to this motion,
Dkt. 30, to which Defendants replied, Dkt. 32. The Court
denies the Defendants' Motion to Dismiss. Dkt. 28.
relevant for the purposes of this Order, Ms. Sanchez alleges
the following facts. Ms. Sanchez was the driver of a vehicle
that was detained by a group of Hillsborough County
Sheriff's deputies-including Defendant Greene- during a
stolen firearm “buy-bust” operation. Dkt. 26
¶¶ 9 & 13. Ms. Sanchez alleges that, despite
her complete compliance with the deputies, at some point
during the detention Defendant Greene's firearm
discharged and struck her in the left thigh. Id.
¶¶ 21-27. Ms. Sanchez alleges that Defendant Greene
indicated to Sheriff's Sergeant Christopher Rule that the
discharge of the firearm was intentional. Id. ¶
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 of 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)
argue that Count II of Ms. Sanchez's Amended Complaint,
Dkt. 26, a claim for negligence, must be dismissed. Dkt. 28
at 3. Defendants argue that Count II alleges a claim of
negligence based on an intentional tort, which is not
recognized as a cause of action under Florida law.
Id. Ms. Sanchez argues that Count II of her Amended
Complaint is merely an alternative pleading to her first
count, alleging an intentional tort related to excessive
force by Defendant Greene. Dkt. 30 at 2.
Defendants note, Florida does not recognize “negligent
use of excessive force.” See City of Miami v.
Sanders, 672 So.2d 46, 47-48 (Fla. 3d DCA 1996)
(“[I]t is not possible to have a cause of action for
‘negligent' use of excessive force because there is
no such thing as the ‘negligent' commission of an
‘intentional' tort.”). “Florida law,
however, clearly recognizes a cause of action for the
negligent handling of a firearm and the negligent decision to
use a firearm separate and distinct from an excessive force
claim.” Lewis v. City of St. Petersburg, 260
F.3d 1260, 1263 (11th Cir. 2001); see also Trianon Park
Condo. Ass'n, Inc. v. City of Hialeah, 468 So.2d
912, 920 (Fla. 1985) (recognizing that existing common law
duties of care apply to government employees in “the
handling of firearms during the course of their employment to
enforce compliance with the law”). Further, these
separate negligence claims can be brought in conjunction with
claims of intentional torts so long as the negligence relates
to something other than the actual use of force. See
Mazzilli v. Doud, 485 So.2d 477, 479-80 (Fla. 3d DCA)
(upholding negligence claims-brought in conjunction with
intentional torts-arising from law enforcement failure to
exercise reasonable care when utilizing firearms), rev.
dismissed, 492 So.2d 1333 (Fla. 1986).
II of the Complaint alleges an alternate possibility that
rather than intentionally discharging his firearm Detective
Greene accidently discharged his firearm-clearly a recognized
cause of action under Florida law. In fact, in their Answer
Defendants state, as an affirmative defense, that
“Detective Greene's discharge of his firearm was
purely accidental.” Dkt. 29 at 4. The allegations
related to negligence are separate and distinct from the
allegations regarding the intentional tort claim because they
are alternative claims-meaning, at most, only one of the
claims could be true.
both parties acknowledge, pleading in the alternative is
acceptable. Dkts. 30 at 2 & 32 at 2; see Fed. R.
Civ. P. 8(d)(2). At this stage of the proceedings the facts
surrounding Detective Greene shooting Ms. Sanchez are
unclear. It may very well turn out that Detective Greene
intentional discharged his weapon or that it was entirely an
accidental slip of his finger. Ms. Sanchez can plead both of
these claims and adjust accordingly should either scenario
turn out to be accurate. As such, Count II states a viable
claim for relief from negligence on the part of the
reasons stated above, this Court denies Defendants'
Motion to Dismiss. Dkt. 28. Defendants shall file their
answer and defenses within fourteen (14) days.