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Barmapov-Segev v. City of Miami

United States District Court, S.D. Florida

November 20, 2019

Erma Barmapov-Segev, Plaintiff,
v.
City of Miami and others, Defendants.

          OMNIBUS ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          Robert N. Scola, Jr. United States District Judge.

         This matter is before the Court on Defendant City of Miami's motion to dismiss (ECF No. 4) and Defendant Jem Martinez's partial motion to dismiss the Plaintiff's complaint. (ECF No. 9.) The Plaintiff filed responses (ECF Nos. 14, 16) and the Defendants replied (ECF No. 17, 21.) Having considered the parties' briefs, the relevant caselaw, and the record, the Court grants in part and denies in part the Defendants' motions.

         I. Background

         On December 31, 2017, Plaintiff Barmapov-Segev was in Miami celebrating New Year's Eve with a friend. (ECF No. 1-3 at ¶ 15.) The Plaintiff was driving northbound at the intersection of Biscayne Boulevard and SE 3rd Street. (Id. at ¶ 16.) Defendant Martinez, an off-duty Public Service Aide and employee of the City of Miami, was directing traffic at the intersection. (Id.) The Plaintiff asked the Defendant if she could pass because she was running late to a dinner reservation. (Id. at ¶ 17.) Martinez struck the Plaintiff's vehicle with her hand and told the Plaintiff to “fuck off.” (Id.) The Plaintiff proceeded safely past Defendant Martinez and drove for about thirty feet. (Id. at ¶¶ 17-18.) The Plaintiff was then stopped by Defendant Dell Amico, another safety officer, on foot. Dell Amico stopped the Plaintiff because Martinez told him that she had to jump out of the way of the vehicle because the Plaintiff tried to strike her with the vehicle. (Id. at ¶ 18.)

         Defendant Dell Amico detained the Plaintiff on the side of the road from 10:30 p.m. until approximately 11:45 p.m., when she was handcuffed and arrested. (Id. at ¶ 21.) The Plaintiff was handcuffed and left in the car until approximately 2:00 a.m. (Id. at ¶ 21.) The Plaintiff was charged with aggravated assault with a deadly weapon and failure to obey a police officer. (Id. at ¶ 23.) The State eventually nolle prossed all charges filed against the Plaintiff. (Id. at 25.)

         The Plaintiff filed a ten count complaint against the City and the various officers involved with her arrest for false arrest, false imprisonment, unlawful search and seizure, defamation, malicious prosecution, battery, intentional infliction of emotional distress, and various counts of negligence. The City moves to dismiss the Plaintiff's complaint in its entirety and Defendant Martinez filed a partial motion to dismiss.

         II. Legal Standard

         Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests.” Fed.R.Civ.P. 8(a). The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotations and citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of Rule 12(b)(6), a court generally may not look beyond the pleadings, which includes any information attached to a complaint. U.S. ex. Rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).

         III. Analysis

         A. The City's Motion to Dismiss Counts I, II, V, VI, and IX

         The Defendant moves to dismiss Counts I, II, V, VI, and IX based on sovereign immunity under Fla. Stat. § 768.28 because the complaint alleges that they were committed with malicious intent. (ECF No. 4 at 4-5.) The Plaintiff's response does not address the Defendant's argument regarding sovereign immunity under Florida law. (ECF No. 14.) Instead, the Plaintiff argues that her count for malicious prosecution (Count V) is a constitutional claim that may be brought under § 1983. (Id. at 2.) The only count in Plaintiff's complaint that invokes the Constitution is Count III. Nowhere in the complaint does the Plaintiff cite to § 1983. Instead, Counts I, II, V, VI, and IX each refer to “Florida Statutes and the laws of the State of Florida.” (ECF No. 1-3 at ¶¶ 38, 47, 77, 84, 109.) Accordingly, the Court will construe Counts I, II, V, VI, and IX as Florida common law claims for false arrest, false imprisonment, malicious prosecution, battery, and intentional infliction of emotional distress, respectively.

         Florida's sovereign immunity statute provides the following:

The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee or agent, committed while acting outside the course and scope of her or his employment or 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) (emphasis added). “Florida law thus provides that the State and its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed in a manner exhibiting wanton and willfully disregard of human rights, safety and property.” Gregory v. Miami-DadeCty.,719 Fed.Appx. 859, 873 (11th Cir. 2017.) This does not mean, however, that the sovereign immunity statute bars all claims for battery or false arrest. “While battery is an intentional tort, the City may be held liable for an employee's intentional act(s) as long as the employee is acting within the course and scope of his employment and the ...


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